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Reference E001 of 2024 | In re National Land Commission (Reference E001 of 2024) [2025] KESC 12 (KLR) (21 March 2025) (Advisory Opinion) | Advisory Opinion | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 March 2025 | 2,025 | Nairobi | CIvil | The National Land Commission vs The Honorable Attorney General and The Law Society of Kenya | [2025] KESC 12 (KLR) | null | A. Introduction
1.
The Applicant, the National Land Commission (NLC), filed a request for an Advisory Opinion dated 21st March, 2024 on 25th March, 2024 pursuant to Article 163(6) of the Constitution. The Reference seeks answers to the following questions:
a.
What is the definition and scope of the word ‘Government’ for purposes of the Government Proceedings Act? ;
b.
Whether the applicant, being an independent constitutional commission/state organ constitutes or is part of ‘Government’ for purposes of the Government Proceedings Act; and
c.
Whether the applicant is protected and/or insulated from execution proceedings, attachment of its assets and/or garnishee of its accounts in satisfaction of a decree as provided under Section 21 and 25 of the Government Proceedings Act.
d.
The status of independent commissions in relation to the Government Proceedings Act, Cap 40 Laws of Kenya.
2.
In the Reference, NLC has stated that it is established under Article 67(1) of the Constitution, with the duty of, among others, to manage public land on behalf of the county and national governments. In the discharge of its functions, it has over the years received requests from government agencies as well as the national and county governments to facilitate compulsory acquisition of land pursuant to Article 40 of the Constitution as read with Part VII of the Land Act, No. 6 of 2012. In the process of compulsorily acquiring such land, the NLC is mandated to receive compensation funds from various acquiring entities for onward transmission to the affected land owners. The applicant thus opened and maintains an account for receiving payment and holding such deposits, being Account Number 01xxxxxxxxxx0 at National Bank, in trust for various designated recipients of compensation, pursuant to Section 111(1) (A) of the Land Act.
3.
The applicant urged that not every acquisition is always settled amicably, and therefore there is bound to be litigation and eventual court decrees to be satisfied by the applicant as an agent of the acquiring entities. The NLC set out the pending cases in court against it as over 3,300, in relation to compulsory acquisition litigation and several court decrees issued requiring compliance and settlement by the applicant.
4.
The applicant stated that its trust compensation account held at the National Bank has over time been under sustained attack in the nature of garnishee proceedings to satisfy pending court decrees. As a result of the numerous applications for execution and garnishee proceedings, the NLC averred that its functions have significantly been affected, hampering its administrative functions and threatening to grind it to a halt. It contended that its efforts to seek refuge under the provision of Sections 21 and 25 of the Government Proceedings Act have not yielded the desired result as the superior courts below have exhibited split schools of thought, on the one hand holding that the applicant is ‘government’ for purposes of the Act, and therefore insulated by the Act, while on the other hand, it has been held that the applicant is not ‘government’ and thus the provisions of the Act do not apply.
5.
It was the applicant’s contention that the uncertainty offends Article 201 (d) of the Constitution on prudent utilisation of public money thus requiring urgent resolution through an advisory opinion as opposed to the ordinary and lengthy adversarial process. It was also NLC’s case that a barrage of cases and applications for garnishee orders of its accounts continue to be filed for the numerous decrees pending settlement. According to it, the uncertainty and litigation threatens its day- to-day operations, a situation that is detrimental to finance and public administration, and the Reference is of utmost urgency as the resultant Advisory Opinion will guide litigants, state organs and other independent constitutional commissions on the applicability or otherwise of the Government Proceedings Act to them.
6.
The applicant listed the conflicting court decisions as follows:
i.
Eldoret High Court, Misc. Application No.29B of 2016- NLC vs. Prof. Tom Ojienda & Associates and others: the court held that NLC is a body corporate and an independent state organ and could not be therefore be construed as government or a government department, and is thus not protected by the Government Proceedings Act.
ii.
Milimani Civil Case No. 445 of 2014, Five Star Agencies Limited vs. NLC & Another: the court found that the NLC is a Government agency and subject to the Government Proceedings Act and therefore garnishee proceedings could not issue. An appeal on the matter is pending before the Court of Appeal.
iii.
Republic vs. NLC & 2 others Ex parte Cabin Crew Investments Limited [2019] eKLR: the court noted that the administration of public land had a public element and thus the NLC was a government department for purposes of Section 21 of the Government Proceedings Act.
iv.
Vivo Energy Limited (formerly known as Shell Kenya Limited) vs. National Land Commission [2020] eKLR: the court noted that independent constitutional commissions are part of government and thus satisfaction of decrees against them are to be done in conformity with the Government Proceedings Act.
v.
Rose Aoko Ogwang vs. National Gender and Equality Commission [2020] eKLR: the court took the view that the Government Proceedings Act applied only to the government and/or government department and thus independent commissions could not rely on the Act to defend attachment proceedings directed at them.
7.
The applicant, noting the above cases, contended that the pendency of any case before the superior courts below is not a hindrance to the Court exercising its advisory jurisdiction. It urged therefore that, the unique circumstances and the threat presented by the uncertainty expressed above, constitute matters of great public importance ripe for determination, which would not be ideal for the normal adversarial process.
8.
The applicant also urged that its request for an advisory opinion is pegged on the need for clarity on whether the NLC and other independent constitutional commissions constitute ‘Government’ for purposes of the Government Proceedings Act in light of Part 2, Item 6 of the Sixth Schedule on the transitional and consequential provisions under Article 262 of the Constitution. It added that, the Government Proceedings Act does not define the scope of ‘government’, while Section 3 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya defines ‘government’ as “the Government of Kenya”.
9.
The applicant lastly averred that prior to the filing of the instant Reference, the applicant sought the advice of the Hon. Attorney General through its letter dated 15th December, 2023 on the question whether the National Land Commission is ‘Government’ and thus insulated from execution proceedings by dint of Section 21(4) of the Government Proceedings Act. By a letter dated 7th March 2024 the Attorney General opined that Constitutional Commissions and Independent Offices are part of Government, hence are within the purview of Section 21(4) of the Government Proceedings Act, but also recommended guidance by a higher Court given the contradicting decisions of the superior courts below. | C. Issues For Determination
25.
From the pleadings and the submissions, the following issues crystallised for our determination:
i.
Whether this Court has jurisdiction to render the advisory opinion and if so;
ii.
What is the definition and scope of the word ‘government’ for purposes of the Government Proceedings Act?;
iii.
Whether the applicant, being an independent constitutional commission/state organ constitutes or is part of ‘government’ for purposes of the Government Proceedings Act; and
iv.
Whether the applicant is protected and/or insulated from execution proceedings, attachment of its assets and/or garnishee of its accounts in satisfaction of a decree as provided under Section 21 and 25 of the Government Proceedings Act.
D. Analysis
i. Whether this Court has jurisdiction to render the advisory opinion
26.
The applicant seeks this Court’s Advisory Opinion on whether the term “government” under the Government Proceedings Act, Cap 40 Laws of Kenya includes constitutional commissions, such as the applicant, and if so, whether it is insulated from execution proceedings, attachment of its assets and/or the garnishee of its accounts in satisfaction of a decree under Sections 21 and 25 of the Government Proceedings Act.
27.
Section 21(4) of the Government Proceedings Act provides that:
“
(4)
Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs”.
Section 25(1) on the other hand provides that:
“
25.
Exclusion of proceedings in rem against the Government
(1)
Nothing in this Act shall authorise proceedings in rem in respect of any claim against the Government, or the arrest, detention or sale of any Government ship or aircraft, or of any cargo or other property belonging to the Government, or give to any person any lien on any such ship, aircraft, cargo or other property”.
28.
At the outset and before addressing the above sections, we have to determine whether, the jurisdiction of this Court to render an advisory Opinion has been properly invoked, and if so, whether the Court should exercise its discretion to render the Opinion as prayed. Towards this end, it is instructive to recall our decision in Re Matter of Gender Representation to the National Assembly & Senate; Advisory Opinion No. 2 of 2012, [2012] eKLR; wherein the following principles were laid down to guide the Court on the exercise of its jurisdiction under Article 163 ( 6) of the Constitution. At paragraph 83, the Court stated:
“
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government “will be determined by the Court on a case-by-case basis.
ii.
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
iii.
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
iv.
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process”.
29.
At paragraph 17 of the decision, the Court re-emphasized that:
“
Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in Section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing “rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”
30.
The 1st limb to the issue of jurisdiction is whether the National Land Commission has capacity to make a request for an advisory opinion. Article 260 of the Constitution describes a state organ to mean “a commission, office, agency or other body established under the Constitution”. Article 248 (b) lists the National Land Commission as being one of the independent commissions. Article 67 then establishes the National Land Commission while Article 67 (2) specifically lists its functions to be among others (a) to manage public land on behalf of the national and county governments.
31.
In National Land Commission v Attorney General & 5 others; Kituo Cha Sheria & another (Amicus Curiae) [2014] KESC 10 (KLR) we determined that from the National Land Commission’s status and standing it had the capacity to request an advisory opinion. We also held that the NLC being a state organ is entrusted with the function of managing public land on behalf of both the national and county government.
32.
In this case, the issues relate to the conversion of private property to public land through compulsory acquisition. Section 9 (1) (c) provides that land may be converted from private land to public land through compulsory acquisition. The Land Act further mandates the National Land Commission to pay out compensation for the said compulsory acquisition. Article 111 (1) & (2) specifically provides that:
“
(1)
If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.
(2)
The Commission shall make rules to regulate the assessment of just compensation”.
33.
The conversion of private land to public land is for the benefit of both county and national government. The issue raised herein is therefore one involving county government as the same involve the administration and management of public land.
34.
Having determined that the applicant has capacity to make a request for an advisory opinion, the issues equally concern county government and noting that the applicant herein sought the advice of the Attorney General before instituting the Reference before us, the next question is whether the issues raised have been the subject of proceedings in the lower courts and whether the matter has been substantively determined by the decision of the lower courts.
35.
The applicant urged that the determination by the Court of Appeal in the Five Star agencies case (supra) is not a hindrance to this Court in exercising its advisory jurisdiction citing this Court’s decision in Re: Matter of Gender representation, the National Assembly and Senate (supra) where the court held that despite there being proceedings instituted in the lower courts a request for an advisory opinion can still be made. The Attorney General taking a contrary view submitted that in light of the decision of the Court of Appeal in the Five Star Agencies case (supra), it is not necessary to render an opinion on a matter that has been determined through the regular adversarial system and that the applicant is in any event not aggrieved by the decision of the Court of Appeal and is not in any danger of being denied the protection of the Government Proceedings Act.
36.
In the Five Star Agencies case (supra) the trial court issued an order of mandamus and also ultimately found that the NLC is a government agency and subject to the Government Proceedings Act and therefore garnishee proceedings could not issue. At the Court of Appeal one of the main issues for determination was Whether execution against the NLC can proceed by way of garnishee proceedings contemplated under Order 23 rule 1 of the Civil Procedure Rules 2010. The Court of Appeal determined that the certificate of order against the government is a mandatory condition precedent, the same was not obtained, and it thus follows that the trial court ought not to have issued an order of mandamus directed at the NLC.
It also ultimately found that the procedure adopted by Five Star Agencies in enforcing the decree issued by the trial court was wrong. Paragraphs 98 – 100 of the decision aptly captures the appellate court’s position on that issue as follows:
“
98.
In the present circumstances, Five Star did not obtain Certificate of Order against the Government from the trial court, which it was required to. Instead, it obtained a copy of the decree which it served upon the NLC. The obtaining of the said certificate was a condition precedent to the making and issuance of an order of mandamus. In our view, the trial court could only issue an order of mandamus after satisfying itself that the said certificate was issued and served. The trial court vide its ruling dated 13th December 2018 correctly held that a copy of the judgment dated 24th November 2014 and the decree issued on 16th December 2014 had been served on the NLC. However, the court did not satisfy itself as to whether a Certificate of Order against the Government had been obtained and served upon the NLC pursuant to the provisions of section 21 of the Government Proceedings Act. The certificate is mandatory and is a condition precedent to the issuing of an order of mandamus. It follows therefore that in the absence thereof, the trial court ought not to have issued an order of mandamus in favour of Five Star.
99.
Having noted as above, it follows therefore that the garnishee proceedings instituted by Five Star through the notice of motion dated 20th January 2023 and brought under the provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 were incompetent, bad in law and unsustainable as provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 do not apply in execution against the Government and/or State organs. Five Star ought to have commenced execution proceedings against the NLC in strict adherence with the provisions of section 21 of the Government Proceedings Act.
100.
We fully agree with Five Star that the Constitution of Kenya, 2010 under Article 40 (3) (b) (i) guarantees every person and/or entity whose land has been compulsorily acquired by the Government prompt payment in full, of just compensation. This obligation is replicated under section 111 and 115 of the Land Act. Five Star is, by all means, entitled to prompt payment in full of the compensation amount as assessed by the trial court. However, the procedure it adopted in enforcing the decree issued by the trial court was wrong. In upshot, therefore, we do not find merit in the argument advanced by Five Star that the provisions of section 21 of the Government Proceedings Act and Order 29 rule (2) of the Civil Procedure Rules, 2010 limits its right to prompt payment as stipulated under Article 40 (3) (b) (i) of the Constitution. The rationale for the requirement that there should be adherence with the procedure laid down under section 21 of the Government Proceedings Act cannot be gainsaid. See Kisya Investments Ltd (supra). This ground of appeal is therefore unmerited and must therefore fail” [ Our emphasis].
37.
The issues set out in the Five Star case (supra) are clearly related and pertinent to the issues raised in this Reference. The conflicting decisions cited by the applicant, herein, and which emanate from the High Court were considered by the Court of Appeal in its determination, and at paragraph 32 of its decision settled whatever confusion may have arisen in the past.
38.
We have equally considered the decision in Re: Matter of Gender representation, the National Assembly and Senate (supra) and we note that the dispute therein related to the general principles of the electoral system and the application of the two- third gender representation under Article 81 (b) of the Constitution. The question posed was whether the same should have been applicable in the general election, then slated for March 2013. The Court in the decision noted that there were decisions made by the High Court concerning the same subject. The cases in question were Federation of Women Lawyers & Others vs Attorney General 2011 eKLR where the court held that the two-thirds gender principle was subject to progressive realization, Centre for Rights Education and Awareness & Others vs. the Attorney General and Others (Nairobi High Court Constitutional Petition Number 16 of 2011); Milka Adhiambo Otieno & Another vs. The Attorney General & Another (Kisumu High Court Constitutional Petition Number 33 of 2011) and; Centre for Rights Awareness & Others vs. The Attorney General and Another (Nairobi High Court Constitutional Petition Number 208 of 2012 as consolidated with Nairobi High Court Constitutional Petition Number 207 of 2012 which held otherwise. In the circumstances and noting that the general election was fast approaching, a clear controversy persisted at the time the High Court rendered its determinations hence necessitating further legal clarification by way of an Advisory Opinion. In this case, the Court of Appeal has brought clarity to the issues sought in the Reference by issuing a conclusive and definitive decision. That case is therefore distinguishable from the instant one since there is a clear determination by the Court of Appeal hence establishing a binding precedent on the courts below it. That determination has not been set aside and remains the law on the subject.
39.
While we therefore acknowledge that there are instances where this Court can render an advisory opinion while there is a pre-existing dispute before the lower courts, the same can only be done in novel situations. The Court is equally hesitant to make a determination in any situation that will usurp the role of another court in the constitutional set- up. (See, In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County (Reference 3 & 4 of 2020 (Consolidated)) [2021] KESC 61 (KLR) (16 March 2021) (Ruling)
40.
In addition to our findings above, we also note the applicant’s argument that the Supreme Court can still decide the issues herein to avert the likelihood of conflicting decisions emanating from the appellate mechanism, based on similar issues raised therein. To this issue we answer that, rendering an opinion on an issue in the pretext that there is a likelihood of conflicting decision arising in future will be urging us to act on mere speculation an invitation we decline to accept. Further, we reiterate that, in the hierarchy of courts and the principle of stare decisis, the High Court and courts below it, are bound by the decision of the Court of Appeal and this Court has been unequivocal in its respect for the hierarchy of courts in Kenya. In Peter Ngoge v. Ole Kaparo, Sup. Ct. Petition No. 2 of 2012, this Court affirmed the same as follows:
“
…The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals……….In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court….”
41.
It is therefore our determination that the questions for which an opinion has been sought from us by the applicant herein have been answered by the decision in the Five star Agencies case (supra) and specifically that government under the Government Proceedings Act, Cap 40 Laws of Kenya includes constitutional commissions, such as the applicant, and it is therefore insulated from execution proceedings, attachment of its assets and/or garnishee of its accounts in satisfaction of a decree under Section 21 and 25 of the Government Proceedings Act. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/12/eng@2025-03-21 |
Petition 19 (E027) of 2021 | Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021) [2025] KESC 11 (KLR) (21 March 2025) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 March 2025 | 2,025 | Nairobi | CIvil | Senate & 3 others vs Speaker of the National Assembly & 10 others | [2025] KESC 11 (KLR) | null | A. Introduction
1.
This appeal dated 23rd December, 2021 was filed by the appellants. The 6th and 8th respondents also jointly filed a cross appeal dated 8th March, 2022 while a second cross appeal dated 15th March, 2023 was filed at the instance of the 1st and 2nd respondents. It is necessary to mention that going by the date when the appeal was filed, it would have been determined way back, but was adjourned several times to allow the parties pursue an out of court settlement which did not materialise.
2.
The gravamen of the appeal and cross appeals revolves around the question of interpretation of Article 110(3) of the Constitution. More particularly, the scope and process of concurrence or joint resolution by the Speakers of the two Houses of Parliament as to whether a Bill concerns County Government as envisaged under the said Article. Concomitantly, the legislative role, if any, that the Senate plays with regard to money Bills under Article 114 of the Constitution.
B. Background
Factual History
3.
Following the promulgation of the 2010 Constitution and the establishment of a bicameral Parliament, disputes have arisen with respect to the legislative mandate of the two Houses of Parliament, that is, the National Assembly and the Senate. Central to the matter before us, is the extent of the legislative authority of each House. In that regard, it is contended that during the 12th Parliament, the National Assembly curtailed Senate’s legislative role in two significant ways. First, it passed several Bills, which were subsequently enacted into law, without the participation of the Senate contrary to the Constitution. Second, it declined to consider several Bills originating from the Senate, claiming they were money Bills that ought to originate in the National Assembly. | D. Analysis
61.
Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, we find that the following issues arise for determination:
i.
Whether this Court has jurisdiction to entertain the appellants’ appeal.
ii.
Whether the 6th and 8th respondents’ cross appeal is properly before this Court.
iii.
Whether the Constitution provides for the participation of the Senate in the consideration and enactment of a money Bill.
iv.
Whether it is mandatory for every Bill published by either House of Parliament to undergo the joint concurrence process under Article 110(3) of the Constitution.
v.
Whether the impugned Acts and Bills are unconstitutional for want of Senate’s participation in their enactment.
vi.
What reliefs should issue? | Dismissed (with further directions) | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/11/eng@2025-03-21 |
Petition (Application) E038 of 2024 | Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others (Petition (Application) E038 of 2024) [2025] KESC 9 (KLR) (21 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 21 March 2025 | 2,025 | Nairobi | CIvil | Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others | [2025] KESC 9 (KLR) | null | Upon perusing the Notice of Motion dated 27th January 2025 and lodged before this Court on 3rd February 2025, by the Applicants seeking orders inter alia:
That the application herein be heard and determined in limine and in priority to the Petition of Appeal dated 1st November 2024.
That this Honourable Court lacks jurisdiction to hear and determine the appeal herein under Article 163 (4) (a) of the Constitution.
That the Appeal/Petition of Appeal herein dated 14th November 2024 be struck out for want of jurisdiction as no certification or leave to appeal to the Supreme Court has either been sought or granted under Article 163 (4) (b) as read with Article 163 (5) of the Constitution, 2010.
That the cost of the application be borne by the Petitioner. | Affidavit and Submissions
Taking into account the affidavit in support of the Motion sworn by Nairuko Ene Mutarakwa Kiruti and written submissions both dated 27th January 2025, the main issue before the trial court and the Court of Appeal was whether the appellant could obtain title to the suit premises (Land References numbers Kajiado/Kitengela/10624, 10625, 10630, and 10631) under the doctrine of adverse possession. The issues considered by the High Court and the Court of Appeal were not questions of constitutional interpretation or application to warrant the institution of the present appeal as a matter of right. Issues touching on adverse possession are dealt with under Section 38 (1) of the Limitations of Actions Act. The appellant never asked the trial court to consider the unconstitutionality of Section 38 of the Limitations of Actions Act, and this Court cannot be the first point of call to ventilate the said issue.
Appellant’s Submissions
Upon considering the appellant’s replying affidavit dated 10th February 2025 and submissions dated 13th February 2025, it is argued that the Court is invited to settle conflicting decisions of the lower courts and address the failure of lower courts to address all issues raised by a litigant, such as whether Section 26 of the Limitations of Actions Act rendered the respondent’s counterclaim statute-barred. The appellant also argues that the Court of Appeal introduced the question of jurisdiction and the claim for adverse possession, which were not raised at the trial court.
Court's Jurisdiction
Bearing in mind that this Court in Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v. Attorney-General & 2 others [2020] KESC 9 (KLR) set out the following attributes for an appeal to this Court under Article 163(4)(a) of the Constitution:
The jurisdiction reveres judicial hierarchy and constitutional issues must have been raised and determined by the High Court in the first instance, with a further determination by the Court of Appeal.
Jurisdiction is discretionary in nature, and a party must categorically state aspects/issues that fall for determination on appeal.
A mere allegation of constitutional violations or citation of constitutional provisions does not bring an appeal within the jurisdiction of the Supreme Court under Article 163(4)(a).
Only cardinal issues of constitutional law or jurisprudential moment deserve the further input of the Supreme Court.
Challenges of findings on matters of fact by the trial court do not bring an appeal within the ambit of Article 163(4)(a).
Determination of the Appeal
The issues raised in the Magistrate’s Court related to ownership of the suit properties. The trial court found that the appellant did not establish ownership as there was no record of the sale agreement, Land Control Board consent, or payment of stamp duty. The High Court dismissed the appeal, finding that the trial court had no jurisdiction to hear claims for adverse possession and that the counterclaim was not statute-barred. The Court of Appeal noted that claims for adverse possession fall under the jurisdiction of the Environment and Land Court and not the Magistrates Court. The Court also upheld concurrent findings of fact by the trial and appellate courts.
Given the long history of the matter and the lack of a live controversy relating to constitutional interpretation or application, the Court found that it lacked jurisdiction to address the issues raised.
Cost of the Appeal
The respondents, being the successful parties, are entitled to costs of the appeal based on the principle in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR.
Final Orders
Consequently, the following orders are made:
The Applicant’s Notice of Motion dated 27th January 2025 and filed on 3rd February 2025 is allowed as prayed.
The Petition of Appeal dated 14th November 2024 and filed on 2nd December 2024 is hereby struck out.
The appellant shall bear the costs of the appeal.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/9/eng@2025-03-21 |
Application E004 of 2024 | Boit & another v Muyesu (Application E004 of 2024) [2025] KESC 8 (KLR) (14 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 14 March 2025 | 2,025 | Nairobi | CIvil | Boit & another v Muyesu | [2025] KESC 8 (KLR) | null | The Notice of Motion application, filed on 8th November 2024 and dated 16th July 2024, seeks a review of the Court of Appeal Ruling (Sichale, Achode, and Korir JJ.A) dated 2nd February 2024. This ruling declined to certify the matter as raising issues of public importance, and the application seeks leave to appeal against the Court of Appeal's judgment delivered on 9th July 2021 (Koome, Mohammed, and Kantai JJ.A). The application is made under Article 163(4) of the Constitution, Section 19 of the Supreme Court Act, Rules 24 and 26 of the Supreme Court Rules, and Rules 5(2) and 40 of the Court of Appeal Rules.
In the application, the applicants argue that the intended appeal raises critical issues that are of general public importance. They contend that the judgment of the Court of Appeal is erroneous, contradicts relevant statutes, and creates precedents that could significantly affect the legal landscape, especially concerning land agreements. The applicants challenge the decision of the appellate court, which they claim overlooked key trial court findings and introduced uncertainties in legal principles related to contracts and land law. | Upon reviewing the application, supporting affidavit, and the submissions of both parties, it is clear that the central issue involves the application of contractual and legal principles, especially with regard to land agreements and the consent of the Land Control Board. The applicants argue that the appellate court's decision has created ambiguity, particularly with the concept of constructive trust in the context of written and oral agreements.
The Court of Appeal had earlier dismissed an application for review, stating that it was essentially an appeal disguised as a review. The applicants then sought leave to appeal to the Supreme Court, citing public interest. However, the Supreme Court found that the issues presented were not of public importance, and no legal uncertainties were created by the appellate court’s judgment. The matter, based on an agreement made in 1997, was ruled to be governed by settled legal principles concerning land transactions and the applicability of parole evidence.
Furthermore, the Supreme Court held that once the applicants chose to pursue a review of the appellate decision, they were precluded from pursuing an appeal on the same matter. The court also emphasized that allowing this appeal would undermine the finality of legal processes and unnecessarily prolong litigation.
Ultimately, the Supreme Court dismissed the application, ruling that the issues raised were not sufficiently novel or significant to warrant certification for appeal. The applicants were ordered to bear the costs of the motion, adhering to the principle that "costs follow the event." | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/8/eng@2025-03-14 |
Application E001 of 2025 | Julius v Chief Registrar of the Judiciary & 14 others (Application E001 of 2025) [2025] KESC 7 (KLR) (14 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 14 March 2025 | 2,025 | Nairobi | CIvil | Julius v Chief Registrar of the Judiciary & 14 others | [2025] KESC 7 (KLR) | null | This Court, on 18th January 2024, communicated to Mr. Ahmednasir Abdullahi SC regarding his relentless campaign in the broadcast, print, and social media that scandalized, ridiculed, and outrightly denigrated the Court. The Court indicated that action would be taken against him.
Following this communication, the Court, on 23rd January 2024, issued an order where all seven (7) judges recused themselves from hearing Zehrabanu Mohammed S.C. (Suing as the executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi & Anor vs Nathaniel K. Lagat & 4 Others SC Petition No. 17 (E021) of 2022, consolidated with Petition No. 24 (E027) of 2022), as long as Mr. Ahmednasir Abdullahi SC, or any person associated with his firm, was appearing. Similar orders were issued on 25th January 2025 for the case of Fatuma Athman Abud Faraj vs Rose Faith Mwawasi & 2 Others SC Petition No. E035 of 2023.
In light of these developments, the applicant filed a Notice of Motion on 3rd January 2025, seeking a review of the Court's recusal decision, as set out in the January 2024 and January 2025 orders. The application was based on several constitutional provisions and statutory sections, requesting the review or setting aside of the recusal decision and any consequential administrative communication by the 1st respondent. | Whether the Motion as filed is procedurally flawed
The applicant argued that a 'miscellaneous application' was the appropriate route for collateral issues. However, Supreme Court Rules 2020 specify that interlocutory applications should be anchored on an existing petition or appeal. Rule 31 of the Supreme Court Rules requires that interlocutory applications be filed with written submissions, and the application should be made in the context of an ongoing appeal or petition. The applicant's filing was not aligned with the prescribed procedures, making the application procedurally flawed. Additionally, Section 21A of the Supreme Court Act emphasizes that review applications should be made in cases where judgments or orders were made under misrepresentation or incompetence, which was not the case here.
Whether a non-party to proceedings has the legal standing to seek a review of the Court’s decision
The applicant, not being a party in the original proceedings, was found to lack locus standi. The Court referenced the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others, where the issue of locus standi was determined to be crucial for jurisdiction. Since the applicant did not have a direct, substantiated interest in the recusal decision, the Court concluded that the applicant could not seek a review.
Whether the Motion meets the threshold for granting the orders sought
Given the procedural flaws and lack of locus standi, the application was deemed defective and was struck out. The absence of responses from the respondents and the Court's earlier ruling on similar matters led to the conclusion that no further action would be taken on the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/7/eng@2025-03-14 |
Application E026 of 2024 | Mombasa Cement Limited v Ramji & 3 others (Application E026 of 2024) [2025] KESC 5 (KLR) (Civ) (14 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 14 March 2025 | 2,025 | Nairobi | CIvil | Mombasa Cement Limited v Ramji & 3 others | [2025] KESC 5 (KLR) | null | Filing and Legal Basis
The Court considered the Originating Motion dated 4th October 2024 and filed on 9th October 2024 pursuant to Article 163(4)(b) & (5) of the Constitution, Sections 3, 15, 15B, 23(2B) & 24 of the Supreme Court Act, and Rules 3, 32, 33, 36 & 37 of the Supreme Court Rules, 2022. The motion sought a review of the Court of Appeal’s decision made on 20th September 2024, which declined to certify the intended appeal in Nairobi Civil Appeal No. 590 of 2019 as raising matters of general public importance.
Applicant’s Submissions
The application was supported by an affidavit sworn by the applicant’s Manager, Evans Francis Muigai, and submissions dated 23rd October 2024. The applicant argued that the Court of Appeal's rulings contradicted the Supreme Court’s decision in the Dina Management Case and conflicted with its own past judgments. Further, the applicant raised concern that fresh evidence of fraud and illegality was ignored, infringing on constitutional rights under Article 50 and Article 159(3).
Public Interest and Legal Issues Raised
The applicant contended that the matter was of general public importance regarding the legal consequences of referencing different parcels of land in a transfer deed. It cited several precedents on the necessity of procedural fairness and the importance of courts adhering to natural justice.
Additional Submissions
The applicant also argued that the Court of Appeal’s ruling created legal uncertainty regarding the enforceability of oral contracts under Section 3(3) of the Law of Contract Act, contrary to previous decisions allowing for part performance to suffice.
Respondents’ Opposition
The 1st to 3rd respondents, through an affidavit by Bharat Ramji and submissions dated 26th November 2024, opposed the application. They argued the application failed to meet the threshold for certification, raised new issues not previously determined, and reintroduced previously dismissed allegations of fraud.
Nature of Dispute
The dispute concerns property LR No.11895/50, which the applicant claimed to have purchased and occupied since 2010. The Court of Appeal had overturned a ruling from the Environment and Land Court that had recognized the applicant’s counterclaim and proprietary interest. | Ownership History and Competing Claims
The suit property was initially part of LR No.11895/24, allegedly sold to the 1st to 3rd respondents. The applicant counterclaimed ownership, citing prior dealings with NSSF over LR No.11895/25. The trial court had ruled in the applicant’s favor, but this was reversed on appeal.
Allegations of Fraud and Title Validity
The applicant accused the respondents of fraud, citing discrepancies in the Transfer Deed. However, the Court of Appeal found these to be clerical errors. The Supreme Court reiterated that fraud is a factual issue, requiring specific evidence and pleading, which was not sufficiently demonstrated to raise matters of general public importance.
Fresh Evidence and Procedural Concerns
The Court acknowledged the applicant’s attempt to introduce new evidence but emphasized that it was procedurally incorrect to seek certification based on material not part of the record under review.
Constitutional Violations
Alleged violations of Articles 25(c) and 28 were also deemed to be factual and specific to the parties. The Court maintained that constitutional issues must follow the appellate pathway and meet jurisdictional requirements under Article 163(4)(a).
Threshold for Certification
The Court reiterated that an apprehension of injustice does not suffice for certification under Article 163(4)(b). The issues raised did not demonstrate a transcendence beyond the specific dispute to justify Supreme Court intervention.
Final Determination
The Court affirmed the decision of the Court of Appeal declining certification.
It found no substantial questions of law or general public importance.
Each party was ordered to bear its own costs.
Orders: i. The Originating Motion dated October 4, 2024, is dismissed.
ii. Each party to bear its own costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/5/eng@2025-03-14 |
Application E025 of 2024 | Sicpa SA v Public Procurement and Administrative Review Board & 2 others (Application E025 of 2024) [2025] KESC 4 (KLR) (14 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 14 March 2025 | 2,025 | Nairobi | CIvil | Sicpa SA v Public Procurement and Administrative Review Board & 2 others | [2025] KESC 4 (KLR) | null | Upon perusing the applicant’s Motion dated 23rd September, 2024 filed under Articles 50, 159(d) and 163(4)(a) of the Constitution, Sections 3A, 15B and 21A of the Supreme Court Act, and Rules 15(2), 33 and 36 of the Supreme Court Rules, the applicant seeks an order of extension of time to file an appeal from the decision of the Court of Appeal in COACA E474 of 2024 delivered on 2nd August, 2024.
Upon considering the grounds in support of the application and the supporting affidavits sworn on 23rd September, 2024 by Lilian Atogo (General Manager) and Kithinji Marete (Counsel), and the submissions of even date, it is noted that:
The applicant was aggrieved by the decision of the Court of Appeal and filed a Notice of Appeal on 15th August, 2024, transmitting it to the Supreme Court Registry on 21st August, 2024.
The applicant was required to file its appeal by 16th September, 2024, but due to a miscalculation based on the date of transmission, the appeal was erroneously set for filing on 20th September, 2024.
In the intervening period, counsel for the applicant encountered personal challenges involving his wife's medical emergency, necessitating urgent travel between 17th and 19th September, 2024.
The mistake came to light on 20th September, 2024, and the present application was promptly filed on 23rd September, 2024.
The applicant argues that:
The delay of 7 days is not inordinate and should not be visited upon the client.
The appeal is arguable, raising significant constitutional issues under Articles 10, 27, 50, 201, and 227.
The respondents will suffer no prejudice as they were served with the notice of appeal on 15th August, 2024.
The 1st respondent objects, asserting:
The matter does not involve constitutional interpretation or general public importance.
Section 175(4) of the PPAD Act renders the Court of Appeal’s decision final in procurement matters and prohibits further appeal.
The 2nd and 3rd respondents support the 1st respondent’s position and emphasize the legislative intention for procurement matters to be expeditiously handled under the PPAD Act.
In rebuttal, the applicant contends:
The respondents have not challenged the reasons for the delay.
Jurisdictional questions raised by the respondents should be addressed in the main appeal, as per Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others (2014).
Constitutional issues such as discriminatory eligibility criteria and double jeopardy under Articles 2, 10, 27, 50, and 227 were raised and merit Supreme Court adjudication. | Guided by Rule 38(1)(a) and Rule 15(1) and (2) of the Supreme Court Rules, 2020, and the principles in the Nicholas Salat Case, the Court considered:
Extension of time is a discretionary, equitable remedy.
The applicant bears the burden of justifying the delay.
The delay must be reasonably explained and brought without undue delay.
Potential prejudice to the respondents.
Public interest, where applicable.
Having reviewed the facts and arguments:
The Court confirms the judgment under appeal was delivered on 2nd August, 2024, with the notice of appeal filed on 15th August, 2024.
The appeal was due by 16th September, 2024, but due to an error in date calculation and personal emergencies, was delayed by 7 days.
The reasons for the delay, including the advocate’s urgent travel due to medical issues, are plausible and not contested by the respondents.
The respondents challenge the merits of the intended appeal rather than the reasons for delay.
The Court reiterates that:
Whether the appeal falls within the Court’s jurisdiction under Article 163(4)(a) is a matter for determination in the substantive appeal.
A respondent cannot seek to strike out an intended appeal during an extension of time application.
The Court finds the delay reasonable and not inordinate. The applicant has laid a sufficient basis for the exercise of discretion in its favor.
Orders
The Notice of Motion dated 23rd September, 2024 and filed on 24th September, 2024 is allowed.
The applicant is granted leave to file and serve the intended petition/appeal within fourteen (14) days from the date of the ruling.
Costs of the Motion shall abide the outcome of the intended appeal.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/4/eng@2025-03-14 |
Petition (Application) E005 of 2023 | Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association (Intended Amicus Curiae) (Petition (Application) E005 of 2023) [2025] KESC 14 (KLR) (14 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala,I Lenaola, W Ouko | 14 March 2025 | 2,025 | Nairobi | CIvil | Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association (Intended Amicus Curiae) | [2025] KESC 14 (KLR) | null | Judgment in SC Petition No. E005 of 2023:
On 28th June 2024, the Supreme Court delivered a judgment in SC Petition No. E005 of 2023, dismissing the substantive appeal. The Court held that interest rates on loans and facilities advanced by banks/financial institutions are subject to regulatory oversight under Section 44 of the Banking Act. Further, such institutions must obtain approval from the Cabinet Secretary before increasing interest rates on loans or facilities.
Review Application by Appellant:
Following this decision, the appellant filed a Notice of Motion on 4th September 2024 seeking a review or amendment of the portion of the judgment relating to the requirement of Cabinet Secretary approval, or alternatively, clarification on the same.
Application by Kenya Bankers Association (KBA):
On 30th September 2024, the Kenya Bankers Association sought to be joined as amicus curiae in the appellant's review application. KBA also requested that its amicus brief be accepted as duly filed and considered by the Court.
KBA’s Supporting Affidavit and Submissions:
KBA’s Acting CEO Raimond Molenje supported the application, highlighting the association's expertise in banking regulation and its neutral stance. KBA contended that its input would help the Court in determining the issue of prospective overruling, a matter not addressed by either party.
Respondent's Objection:
The respondent objected to the application, arguing that KBA had previously failed to join as an interested party and was now improperly attempting to re-enter the proceedings under the guise of amicus curiae. The respondent further argued that allowing the application would violate the principle of finality in litigation, introduce prejudice, and contravene Rule 54 of the Supreme Court Rules.
Applicable Legal Principles:
The Court considered Rule 19 of the Supreme Court Rules, 2020, and its precedent in Trusted Society of Human Rights Alliance vs. Matemo & 3 others [2015], which outlines the principles for admitting an amicus curiae, including neutrality, timing, and contribution to legal development. | Inconsistency in KBA’s Role:
The Court noted that KBA had earlier sought to be joined as an interested party and was denied. It held that KBA could not now switch its position to claim neutrality as amicus curiae within the same proceedings.
Scope of Amicus Contribution Misaligned:
The Court found that the arguments KBA wished to make regarding prospective overruling were distinct from the specific review sought by the appellant. Therefore, KBA’s proposed brief did not align with the purpose of the review application.
Violation of Finality in Litigation:
Allowing KBA’s application at the post-judgment stage would prejudice the other parties and undermine the principle of finality in litigation.
Limits on Post-Judgment Intervention:
Based on Section 21A of the Supreme Court Act and the Outa v. Okello case, the Court concluded that there are strict limitations on post-judgment intervention, including by amici.
Costs:
Invoking its discretion and principles from Rai & 3 others vs. Rai & 4 others [2014], the Court directed that each party should bear its own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/14/eng@2025-03-14 |
Petition (Application) E005 of 2023 | Stanbic Bank Kenya Limited v Santowels Limited (Petition (Application) E005 of 2023) [2025] KESC 3 (KLR) (14 March 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, I Lenaola & W Ouko, SCJJ | 14 March 2025 | 2,025 | Nairobi | CIvil | Stanbic Bank Kenya Limited v Santowels Limited | [2025] KESC 3 (KLR) | null | Whereas this Court by a Judgment dated 28th June 2024 in SC Petition No. E005 of 2023 dismissed the appeal and settled the substantive issue arising in the following terms:
“[70] In conclusion on this issue, we find that interest rates on loans and facilities advanced by banks/financial institutions are subject to the regulatory process under Section 44 of the Banking Act. In addition, that such banks/financial institutions are required to seek the Cabinet Secretary’s approval under Section 44 of the Banking Act prior to increasing interest rates on loans and/or facilities advanced to its customers.”;
And whereas upon considering the Notice of Motion brought by the applicant dated 4th September 2024 after the dismissal of the appeal, expressed to be brought under Sections 3A and 21A of the Supreme Court Act, Cap 9B and erroneously invoking Rules 3, 24, 25(2) and 28 instead of Rule 28(5) of the Supreme Court Rules 2020, for orders:
Spent;
That this Court be pleased to review and amend that portion of its Judgment and the Order therein dated 28th June 2024…
In the alternative, that Court be pleased to clarify the said portion;
That the Court be pleased to grant such further or other orders as it deems just;
There be no orders as to costs;
And upon reading the affidavit in support of the Motion sworn by the applicant’s Head of Legal, Janet Wanjohi Kabiru, on 4th September 2024 and its submissions of even date asserting:
That under Section 21A and its inherent jurisdiction per Section 3A of the Supreme Court Act, and drawing on the Outa Case, the Court can review its own decision;
That Section 44 of the Banking Act requires prior Cabinet Secretary approval before increasing banking charges;
That legislative changes since 2003 have effectively delegated this power to the CBK Governor through circulars, regulations, and Legal Notice No. 35 of 2006;
That Article 231 of the Constitution supports CBK’s independence and its Governor’s role in regulating banking charges;
That the judgment under review contradicts the legal framework established by this delegation and potentially nullifies all interest rate approvals by CBK Governor;
And upon reviewing the respondent’s Replying Affidavit and submissions dated 20th September 2024, opposing the Motion on grounds that:
The Motion raises no new issues and merely re-argues already adjudicated matters;
It improperly seeks an appeal in the guise of a review;
That delegation of power to the CBK Governor does not override express statutory wording assigning approval authority to the Cabinet Secretary;
That the legal instruments cited by the applicant were either ultra vires or do not supplant the statutory framework;
And that any actions by the CBK Governor contrary to the delegation terms are ultra vires;
And upon considering the applicant’s further affidavit and submissions of 27th September 2024 reiterating:
That the application is not for an appeal but for clarification of an apparent omission;
That the CBK Governor has acted within his delegated authority;
And that Section 44 is applicable as decided by the Court, but the power has lawfully been delegated. | Bearing in mind the jurisdiction of this Court under Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules, 2020, and the principles in the Outa Case, we reaffirm:
The Supreme Court, generally, does not review its own decisions except in cases involving fraud, nullity, mistaken consent, or reliance on repealed/concealed law;
Rule 28(5) permits review only in exceptional, meritorious, and public interest cases;
The applicant’s Motion does not satisfy the threshold for review as it cites no fraud, deceit, misrepresentation, or reliance on repealed/concealed law;
Section 21A was erroneously invoked. The correct provision should have been Section 21(4) (the Slip Rule) which allows for correction of minor clerical or typographical errors, not substantive reinterpretation;
The Motion instead attempts to relitigate and reinterpret the core finding of the judgment, which is not permissible under Rule 28(5);
Accordingly, the Court finds that the application lacks merit and dismisses the Motion in its entirety. There shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/3/eng@2025-03-14 |
Petition E006 of 2024 | Ngao v Kitheka (Petition E006 of 2024) [2025] KESC 1 (KLR) (31 January 2025) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 31 January 2025 | 2,025 | Nairobi | Civil | Ngulungu Kitheka Ngao vs Alexander Matuvi Kitheka | [2025] KESC 1 (KLR) | null | Bearing in mind that this ruling is in respect of the Notice of Preliminary Objection dated 28th May 2024 and raised by the respondent challenging this Court’s jurisdiction to entertain the appeal. And that, at the commencement of the hearing of the appeal on 23rd October 2024, the Court, considering the nature of the objection directed that the objection be taken in limine, quite in line with its previous dicta and the provisions of the Supreme Court Act as well as the Rules of the Court; that the question of jurisdiction can be raised at any stage of the proceedings; that the Court has inherent power to summarily dismiss a petition, reference or an application, which are wholly defective; and that in exercise of that inherent power, and depending on the nature of the objection, the Court can either deal with the question in limine or hear the objection alongside the appeal. See Trattoria Limited vs. Maina & 3 others [2022] KESC 75 (KLR) and Megvel Cartons Limited vs. Diesel Care Limited & 2 others [2023] KESC 24 (KLR); and
2.
Noting in addition that the Petition dated 6th March, 2024 and filed on 19th April, 2024 has been brought pursuant to Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act, Cap 9B and Rule 33 of the Supreme Court Rules, 2020 to challenge the Judgment of the Court of Appeal delivered on 25th January, 2024 in which it affirmed the decision of the Environment and Land Court (ELC) to the effect that a constructive trust existed in favour of the respondent, a younger brother of the appellant; and
3.
Taking into account the following background that led to the dispute: According to the appellant, he was the registered owner of the suit property known as Matinyani/Mutulu/475 (parcel 475), having bought it in 1975. His main grievance was that on or about January 1998, the respondent unlawfully trespassed, entered the suit property without his consent, and started cutting down trees, burning charcoal and even building a house. In addition to the suit property, the appellant further contended that in 1984, he purchased another parcel of land No. Matinyani/Mutulu/476 (parcel 476), upon which the respondent again trespassed. As a result, the appellant filed a suit before the Principal Magistrate’s Court at Kitui in Civil Case No. 311 of 2004 seeking orders to evict the respondent and also to restrain him permanently by an order of injunction from laying claim to the suit property; and
4.
Considering the respondent’s defence and counterclaim that he was in possession of the suit property; that in 1974 he, jointly with the appellant, purchased parcels Nos. 475 and 476; and that he allowed the appellant to have the parcels registered in his name thereby creating a trust in the respondent’s favour. Consequently, he sought a declaration that the appellant held the titles to the two properties in trust for him and further, that the titles to the two properties be transferred to him. He also sought that the appellant be restrained by an order of permanent injunction from interfering with his possession of the suit property; and
5.
Upon considering these competing claims, the trial court by a Judgment delivered on 1st December 2011, dismissed the appellant’s claim for eviction and injunction but found instead that the respondent had proved his counterclaim on a balance of probabilities and granted the reliefs sought; and
6.
Dissatisfied, the appellant appealed to the Environment and Land Court (ELC) in Civil Appeal No. 2 of 2018. The ELC (Angote J.) in a judgment delivered on 15th February, 2019 upheld the decision of the trial court, dismissed the appeal and reiterated that, from the facts of the case there was a common intention to create a trust, therefore a constructive trust existed; and
7.
Aggrieved further, the appellant preferred a second appeal to the Court of Appeal in Civil Appeal No. 152 of 2019. In determining the single question; whether the courts below properly invoked the doctrine of constructive trust, the Court of Appeal was of the view that the conclusion reached by the ELC was indeed correct; that a common intention had been established that pointed to the existence of a constructive trust; and that the case fell within the exception in Section 26 of the Registered Land Act (repealed). In the end, the Court of Appeal found that the appeal had no merit and dismissed it with costs to the respondent; and
8.
Undeterred, the appellant has now filed the instant third appeal before this Court on five (5) grounds, contending that the learned Judges of Appeal erred in law by violating his constitutional rights to property and fair hearing under Articles 40 and 50 of the Constitution, respectively. He has also filed written submissions dated 14th June 2024 and replying affidavit deposed on 26th June 2024, in which he has reiterated that the appeal is filed pursuant to Article 163(4)(a) of the Constitution as it involves the application and interpretation of Articles 25(c), 40 and 50 of the Constitution; that the constitutional questions under the cited provisions are traceable in all the judgments of the three courts right from the Magistrate’s Court, the ELC and finally the Court of Appeal; that this Court has an opportunity to render itself on what constitutes a question of law; whether the conclusions reached were not supported by the established facts or evidence on record; and whether the conclusions reached were so perverse or so illegal that no reasonable tribunal would arrive at the same; and
9.
Upon considering the respondent’s Notice of Preliminary Objection dated 28th May, 2024 contending that the Court lacks jurisdiction to entertain the Petition and therefore it ought to be struck out or dismissed with costs. In addition, the respondent has also filed Grounds of Opposition dated 28th May, 2024 as well as written submissions wherein, it is contended that the appeal does not fall within the provisions of Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act and Rule 33 of the Supreme Court Rules, cited by the appellant, since in all the matters litigated at every level, from the Magistrate’s court through to the Court of Appeal, no issues of interpretation or application of the Constitution ever arose; that the word ‘Constitution’ was never mentioned even once in all the three Judgments of the courts below; and that all the determinations were based on evidence and fact, purely on the question of the ownership of the suit property and whether the case met the threshold of a constructive trust; and
10.
Appreciating, that an appeal under Article 163 (4)(a) of the Constitution will lie as of right only where there is a question as to the interpretation or application of the Constitution. And that this Court in Wanga vs. Republic [2024] KESC 38 (KLR) emphasized this requirement as follows:
iii
…
iv.
Article 163 (4) of the Constitution is not a thoroughfare for all intended appeals from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution or those that can be said to involve matters of general public importance will be entertained by the Supreme Court. It is not the mere allegation in pleadings by a party that clothes this Court with jurisdiction. See Lawrence Nduttu & 6000 Others vs. Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012; [2012] eKLR, Samuel Kamau Macharia and Another vs. Kenya Commercial Bank and 2 Others, SC Application No. 2 of 2011; [2012] eKLR, among many other decisions.
v.
The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163(4)(a).
vi.
However, in the case of Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others, SC Petition No. 2 of 2014; [2014] eKLR, it was clarified that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
iv.
In addition, a party must indicate to this Court in specific terms, the issue requiring the interpretation or application of the Constitution and must signal the perceived difficulty or impropriety with the Appellate Court’s decision. See Zebedeo John Opore vs. Independent Electoral and Boundaries Commission & 2 Others [2018] eKLR.
v.
The Supreme Court retains the discretion to determine what matter is appealable to it under Article 163(4)(a), always bearing in mind that such a matter must be founded on cogent issues of constitutional controversy to warrant its input. See Gladys Wanjiru Munyi vs. Diana Wanjiru Munyi [2015] eKLR.” | Upon reflection on the Preliminary Objection and rival arguments by the parties on both sides, we opine as follows:
i.
Applying the foregoing principles to the instant appeal, we note that the genesis of the dispute was the alleged trespass by the respondent on the suit property which the appellant also claimed to be his. The respondent for his part maintained that he had, jointly with the appellant purchased the suit property; and that the latter held it in trust for him. The trial court found in favour of the respondent holding that he had established the existence of a trust. On a first appeal, the ELC agreed with the trial court. Likewise, on a second appeal, the Court of Appeal affirmed the decision of the ELC.
ii.
Throughout the proceedings before the three courts below, the central issue was whether the suit property, registered in the appellant's name, was held by him in trust for his brother, the respondent. The determination of this question entailed a factual examination and analysis of evidence to ascertain whether indeed there was a common intention, an agreement, joint payment of consideration towards the purchase price, and occupation of the suit property. Considering the factual nature of the pleadings, proceedings and the decisions of the courts below, we cannot, in our assessment say that the issues in contention concerned the application or interpretation of the Constitution. Indeed, none of the three judgments allude to any provision of the Constitution. The reasoning and ultimate conclusions of the Court of Appeal did not take a trajectory of constitutional interpretation or application.
iii.
But before us, the appellant has urged us to find that his rights under Articles 25(c), 40 and 50 of the Constitution were violated; and violated by the Court of Appeal. First, the Court of Appeal was never a party to the proceedings. Second, but more fundamentally, the appellant has not demonstrated that the issues at the core of this appeal were the same issues in controversy and around which both the ELC and the Court of Appeal based their respective decisions.
iv.
An examination of the five grounds upon which this appeal was brought leaves no doubt in our mind that the invocation of Articles 25(c), 40 and 50 of the Constitution was not only inappropriate but also inapplicable. Those grounds seek to draw the Court into factual analysis and consideration of the record, quite outside the ambit of a third appeal. The appellant’s case appears to have mutated upon reaching this Court, from a claim of trust to a violation of constitutional rights.
v.
Based on the foregoing, we reach the inescapable conclusion that the appellant has not satisfied the strictures for the application of Article 163(4)(a) of the Constitution, with the result that we down our tools at this stage, without the need to consider the merits of the appeal. In the end, we uphold the Preliminary Objection.
vi.
On costs, we underscore the fact that an award of costs is an exercise of discretion and follows the principle set out by this Court in Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR), that costs follow the event. In exercise of our discretion, we direct that the appellant shall bear the costs of this appeal.
12.
Accordingly, we make the following orders:
i.
The Notice of Preliminary Objection dated 28th May 2024 is hereby upheld.
ii.
The Petition dated 6th March, 2024 is hereby struck out for want of jurisdiction with costs to the respondent.
iii.
We hereby direct that the sum of Kshs. 6,000 deposited as security for costs upon lodging of this appeal be refunded to the depositor. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/1/eng@2025-01-31 |
Petition (Application) E022 of 2024 | Kenya Wildlife Service v Sea Star Malindi Limited (Petition (Application) E022 of 2024) [2024] KESC 80 (KLR) (20 December 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, N Ndungu, I Lenaola, W Ouko | 20 December 2024 | 2,024 | Nairobi | Civil | Kenya Wildlife Service vs Sea Star Malindi Limited | [2024] KESC 80 (KLR) | null | Before This Court are two applications filed by both parties. Though brought separately, they are intertwined and to make good use of judicial time, we shall proceed to dispose of both of them in this ruling.
2.
Upon Considering the respondent’s Notice of Motion dated 28th June 2024 filed under Sections 3A and 20(1) of the Supreme Court Act, Cap 9B, Rules 3(5) and 13(1) of the Supreme Court Rules, 2020 where it seeks to have the Appeal, Record of Appeal, both dated 24th May 2024 and the Supplementary Record of Appeal dated 6th June 2024 struck out for failing to meet this Court’s jurisdictional threshold, being incomplete and filed out of time; and
3.
Upon Further Considering the grounds in support of the application and the supporting affidavit sworn by Michele Marchioro on even date and submissions of similar date and further submissions dated 18th July 2024 to the effect that the issue before the superior courts below did not deal with the interpretation or application of the Constitution and therefore falls afoul the jurisdictional threshold set out in Article 163(4)(a) of the Constitution and elaborated in Lawrence Nduttu & 6000 Others v Kenya Breweries Limited & Another, SC Petition No. 3 of 2012; [2012] eKLR; therefore the appeal can only fall under Article 163(4)(b) of the Constitution but the appellant did not seek, obtain or attach proof of such certification that the appeal raises a matter of general public importance; in addition, in line with this Court’s decision in the case of Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General, SC Petition No. 10 of 2019; [2020] KESC 52 (KLR), while the appellant filed the Notice of Appeal on 25th April 2024, it filed its Record of Appeal on 3rd June 2024 outside the statutory timelines rendering them a nullity; and
4.
Bearing In Mind the appellant’s replying affidavit sworn by Benta Musima, its Acting. Corporation Secretary, on 12th July 2024, submissions of even date and further submissions dated 18th July 2024 to the effect that the issue before the Court of Appeal involved the interpretation and application of the Constitution and the Court of Appeal’s decision took a trajectory of constitutional interpretation or application, that is, whether the appellant violated the respondent’s right to property and the remedy(ies) available thereof; that the Appeal therefore invokes and meets the appellate jurisdiction threshold set out in Article 163(4)(a) of the Constitution; that in the circumstances this Court has jurisdiction to hear and determine the appeal; that further, the Appeal, Record of Appeal and Supplementary Record of Appeal were filed on time; and
5.
Taking Into Account the appellant’s Notice of Motion dated 16th July 2024 and brought under Section 23(1)(a) of the Supreme Court Act and Rule 31 of the Supreme Court Rules seeking a stay of execution of the judgment and orders of the Court of Appeal in Malindi Civil Appeal No. E018 of 2022 Kenya Wildlife Service v Sea Star Malindi Limited; and
6.
Further Taking Into Account the grounds on the face of the application, the supporting affidavit sworn on 16th July 2024 by Benta Musima, the submissions dated 25th July 2024 and further submissions dated 22nd August 2024 to the effect that the appellant had met the threshold for issuance of orders of stay of execution as set out in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, [2014] eKLR, that is, the appeal is arguable with a high chance of success, if stay is not granted, the appeal will be rendered nugatory because the decretal sum of Kshs.421,179,039.15/= is colossal, and executing for the said amount would cripple the appellant’s business which had become overwhelming over time owing to increased human-wildlife conflict; that moreover, being a State institution funded from taxpayers’ funds or donor funds, public interest tilts in favour of granting stay of execution since executing the decree would negatively affect Kenya’s wildlife conservation efforts; that, the budgetary allocations are not enough to meet its resource requirements and it has to rely on donor support for the deficit; that further, the application is not premature since execution is a risk given that the appellant does not enjoy the immunity afforded by the Government Proceedings Act; that the respondent is unlikely to refund the sums owing as its means are unknown; and
7.
Bearing In Mind the respondent’s grounds of opposition dated 16th August 2024, replying affidavit sworn by Michele Marchioro on 16th August 2024 and submissions dated 19th August 2024 contending that the application does not meet the test set out in the Gatirau Peter Munya Case (Supra); that the application is premature since there is a pending application to strike out the Appeal, Record and Supplementary Record of Appeal, and the execution process is the subject of Judicial Review under the Government Proceedings Act which process has not been commenced; that in addition, the appellant did not serve the subject application on 7th August 2024 as per the Court’s directions; that the application is mala fides because the appellant has had over 26 years to make good the claim and mitigate their exposure but instead, continues to rely on protecting national resources at the respondent’s expense; that in any event, the decretal sum is yet to be ascertained through a decree to be issued by the Deputy Registrar, Court of Appeal; that, in any event, the appellant is acting in bad faith since the parties were in negotiations on how to settle the decretal sum only for the appellant to file the present application; that, lastly, the appellant has not offered any security for the payments; and | Having Considered the totality of the applications, the responses and submissions put forth, We Now Opine as follows:
a.
For good order, we shall begin with the respondent’s application dated 28th June 2024.
b.
Rule 38(1) of the Supreme Court Rules provides that an appeal shall be lodged with this Court within 30 days of filing the notice of appeal, where the appeal is as of right. Rule 12 of the Supreme Court Rules on its part provides that documents shall be filed in both printed and electronic form. In the instant case, the appellant filed the Appeal and Record of Appeal electronically on 24th May 2024 which was within the 30-day statutory timeline, but submitted printed copies on 10th June 2024. Going by our decision in Kenya Hotel Properties Limited v Attorney General & 5 Others, (Application 2 (E004) of 2021; [2021] KESC 49 KLR, where we held that filing is complete once the electronic and printed copies are filed, in this case, filing of the Appeal, Record of Appeal was completed on 10th June 2024. Therefore, filing was completed approximately 15 days out of time.
c.
In Kenya Airports Authority v Otieno, Ragot & Company Advocates, SC Petition (Application) No. E011 of 2023; [2023] KESC 104 (KLR), we reiterated that court orders and directions on filing and service of documents should be followed. That said, this Court can exercise its power under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules and issue such orders or directions as would regularize the case bearing in mind that this Court has an obligation to ensure parties reasonably access justice.
d.
In our view, the delay of 15 days cannot be said to be inordinate and the respondent has not established what prejudice it stands to suffer or has suffered. In the circumstances, and in the interests of justice, we invoke our powers under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules and order that the Appeal, Record and Supplementary Record of Appeal be admitted and deemed to have been filed within time.
e.
On the question of jurisdiction, we note that the appellant has invoked this Court’s appellate jurisdiction under Article 163(4)(a) of the Constitution. The appellant alleges that the trajectory of the Court of Appeal’s decision ushers in the interpretation and application of the Constitution. The respondent, on the other hand, posits that the matter as presented before the superior courts below, did not substantively deal with the constitutional interpretation or application. Therefore, according to the respondent, the appeal can only be brought under Article 163(4)(b) of the Constitution which is a matter of general public importance, for which, the appellant had not sought certification.
f.
According to the record of appeal, the respondent’s further re- amended plaint dated 27th March 2006 and appellant’s defence dated 3rd November 1998, the respondent was the registered proprietor of land parcel LR No. 3170. On or around 9th November 1997, the appellant caused armed wardens to take physical possession of a portion the land under construction, stop the ongoing construction of a hotel and to keep guard thereon. This was premised on the allegation that the portion under construction encroached on a statutorily protected area in line with Legal Notice No. 99 of 1968 that designated a-100ft from the highest watermark on the land adjoining the Indian Ocean as a protected zone under the Wildlife Conservation and Management Act Cap 376 of the Laws of Kenya, and hence an exclusive Government zone under the appellant’s jurisdiction. Subsequently, by Sea Star Malindi Limited v Kenya Wildlife Services & 2 Others, High Court Miscellaneous Civil Suit No. 982 of 1997; [2002] eKLR, the Court (Onyango, J. (as he then was)) (Judicial Review Case) held that the suit land extended to the high- water mark and as such, the 100 feet area did not exist and so, Legal Notice No. 99 of 1968 did not apply to it. For that reason, the Court held that the appellant acted ultra vires and interfered with the respondent’s enjoyment of its property and violated Section 75 of the Constitution. In Sea Star Malindi Limited v Kenya Wildlife Services & Another Malindi ELC Case No. 6 of 2016 (ELC), the ELC relied on this decision that was delivered during the pendency of its proceedings and held that it settled the question of liability. Consequently, the ELC proceeded to determine the issue of damages which it awarded as follows: Kshs.90,000,000/= for the reconstruction of the hotel, and Kshs.30,000,000/= as general damages.
g.
By a majority judgment delivered on 12th April 2024, the Court of Appeal in Civil Appeal No. E018 of 2022, the Court (Nyamweya, Gatembu, Odunga JJA.) delineated several issues for determination. To our minds, the crux of the matter before the Court of Appeal was whether the ELC erred in relying on the Judicial Review case and extrapolating its determination on liability to the suit before it. That said, we take cognizance of various issues. First, the Judicial Review case held that the appellant’s acts violated Section 75 of the Constitution. The ELC relied wholly on this exposition and held that it settled the question of liability. Secondly, the Court of Appeal acknowledged the Judicial Review case decision to the effect that the appellant’s acts violated the respondent’s constitutional right and also constituted a tort. It went further to speak to damages as a proper remedy for constitutional violations under Article 23(3) (e) of the Constitution and the applicable principles.
h.
Having held as above, we find that indeed, the suit took a trajectory of constitutional interpretation and application. Therefore, the appellant has properly invoked this Court’s jurisdiction under Article 163(4)(a) of the Constitution.
i.
Concerning the appellant’s application for stay of execution, Section 23A of the Supreme Court Act vests this Court with the requisite jurisdiction to grant the said orders. The test for grant of stay of execution was set out in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (supra) as follows: the appeal or intended appeal is arguable and not frivolous, unless stay is granted, the appeal or intended appeal will be rendered nugatory should it eventually succeed, and it is in the public interest that stay be granted.
j.
The gist of the appeal, as we understand it, is whether the Court of Appeal erred in relying on and adopting the rationale in the Judicial Review case in ascribing liability to the appellant; awarding the respondent Kshs.3,000,000/= as compensation for violation of its rights; and, affirming the ELC’s award of Kshs.90,000,000/= as compensation for the reconstruction of the respondent’s hotel. Without delving into the merits of the appeal, we find that the foregoing issue warrants this Court’s consideration. Therefore, we find that the appeal is arguable.
k.
While no evidence has been placed before the Court that the decretal sum is well over Kshs.400,000,000/=, we acknowledge that the sum of Kshs.93,000,000/= together with interest is in itself a colossal sum from a public body without the attendant comfort that it can be recovered it found not due to the respondent. Further, as the dispute involves a statutory body funded by public coffers as rightly advanced by the appellant to which any monies paid out are subject to budgetary allocation. Being a public body, it is not necessary to offer security and in particular of such an amount, as to itself be an impediment to access to justice as we held in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) . To that extent therefore, we find that the application for stay has met the 3-prong test.
l.
However, we take cognisance of the period this matter has been in the court system, that is from 15th August 1998. To ensure that justice is dispensed expeditiously, we deem this matter fit to be heard on priority basis.
1.
In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we order that the costs shall abide the outcome of the appeal. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/80/eng@2024-12-20 |
Petition (Application) E008 of 2024 | Likowa v Aluochier & 2 others (Petition (Application) E008 of 2024) [2024] KESC 79 (KLR) (20 December 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 20 December 2024 | 2,024 | Nairobi | Civil | Charles Owino Likowa vs Isaac Aluoch Polo Aluochier, Vincensia Awino Kionge, County Assembly of Migori | [2024] KESC 79 (KLR) | null | Upon perusing the Notice of Motion dated July 30, 2024by the 1st respondent, filed on July 31, 2024 and seeking the admission of additional evidence; and
2.
Upon perusing the grounds on the face of the application, the affidavit sworn by the 1st respondent on July 30, 2024 in support thereof, and the submissions of even date, wherein it is asserted that the present application is a reiteration of a previous one filed on May 20, 2024, to which the court has allegedly not rendered a decision; that the request for the admission of additional evidence is made pursuant to section 20 of the Supreme Court Act, cap 9B, the said evidence comprising of the returned nomination papers of eight (8) candidates who duly submitted their papers within the nomination period, which closed at 9:00 AM on September 19, 2022; that the proposed additional evidence is directly relevant to the issues before the court and has the potential to influence or materially impact its decision; that the additional evidence emerged following the parties’ engagement in an out of court settlement; that this evidence removes any ambiguity or uncertainty surrounding the case, is credible, has merit and was previously withheld by the 2nd and 3rd respondents and furthermore, it reveals deliberate deception to the Court; and
3.
Taking into account the petitioner’s grounds of opposition dated August 20, 2024 and submissions of even date to the effect that the jurisdiction of the court to admit additional evidence has not been properly invoked, as a similar application dated May 20, 2024, was dismissed with reasons provided in a ruling dated July 26, 2024; consequently, the subsequent Motion amounts to an appeal against that ruling and therefore, the 1st respondent’s remedies lie solely within the Court’s review jurisdiction; and in any case, the issues intended to be addressed through the additional evidence have been rendered moot, as there is no ongoing dispute between the petitioner and the 1st respondent, the petitioner having vacated the office of Speaker of the County Assembly of Migori, and Christopher Odhiambo Rusana elected to the position on May 28, 2024; and
4.
Noting the written submissions of the 3rd respondent dated August 20, 2024 wherein they reiterate the sentiments of the petitioner save to add that the application constitutes a gross abuse of the court process; that no additional evidence is required for this court to render a merit-based decision on the remaining issues in the present appeal, particularly in light of the changed circumstances; that the 1st respondent, failed to present any evidence before the trial court to support his constitutional petition and consequently, the matter of introducing additional evidence does not arise; that while the court has powers under rule 26 of the Supreme Court Rules 2020 to admit and or call for additional evidence, that power is exercised sparingly and on a case by case basis and a party must lay a basis for the same; that the Court can still pronounce itself on the issues which the 1st respondent had raised without resorting to the additional evidence; that the appeal dated March 18, 2024, along with the cross-appeal, constitute second appeals, wherein only issues of law may be raised, however, the so-called additional evidence is being introduced in a second appeal and pertains to matters of fact; that therefore the Motion is frivolous, vexatious and ought to be dismissed with costs; and | We now opine as follows:
i.
We take cognizance of the fact that the present application is a replica of the one dated May 20, 2024, which this court conclusively determined by its ruling dated July 26, 2024. In the circumstances, the instant application is a disguised appeal against the said ruling and as such the application is a blatant abuse of court process. In any event, having already declined to grant the 1st respondent leave to adduce additional evidence, the subject matter of the present application, is spent.
ii.
Furthermore, we can only reaffirm our findings in the ruling dated July 26, 2024, emphasizing that the petitioner having been impeached by the Members of the County Assembly of Migori on April 23, 2024 followed by the election of a new Speaker on May 28, 2024, the 1st respondent’s application has been overtaken by events. It is also clear that the issues raised in the present application do not relate to the appeal before us. The Motion raises a whole new cause of action arising from the Standard Newspaper advertisement dated May 15, 2024 calling for the election of a new Speaker for the County Assembly of Migori following the impeachment.
7.
Consequently, and for the reasons aforesaid, we make the following Orders:
i.
The Notice of Motion dated July 30, 2024 and filed on July 31, 2024 is hereby dismissed.
ii.
The 1st respondent shall bear the costs of this application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/79/eng@2024-12-20 |
Petition (Application) 12 (E014) of 2022 | Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) v Commissioner of Domestic Taxes(Large Taxpayers Office); Kenya Bankers Association & another (Interested Parties) (Petition (Application) 12 (E014) of 2022) [2024] KESC 78 (KLR) (13 December 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 13 December 2024 | 2,024 | Nairobi | Civil | Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) vs Commissioner of Domestic Taxes(Large Taxpayers Office), Kenya Bankers Association, Mastercard Asia Pacific PTE Limited | [2024] KESC 78 (KLR) | null | Upon perusing the Notice of Motion dated August 23, 2024by the respondent, filed on August 26, 2024pursuant to sections 21 and 24 of the Supreme Court Act 2011, rules 3(2), 3(5), 15(2), 15(1), 23(3), 31 and 32 of the Supreme Court Rules, 2020 seeking leave for extension time to file their submissions; and
2.
Upon perusing the affidavit sworn by George Ochieng, counsel on record for the respondent, on August 23, 2024in support of the Motion and written submissions of even date and further affidavit sworn on September 10, 2024and further submissions of even date wherein they contend that the respondent’s submissions were filed on August 23, 2024instead of the stipulated date of August 22, 2024; that the delay was occasioned by counsel’s inadvertent oversight of the prescribed timelines, compounded by a period of illness that hindered the completion of the respondent’s written submissions as initially scheduled; that a genuine mistake of counsel should not be visited upon the respondent who is desirous of ventilating its case on merit; that relying on the case Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), the delay was not inordinate since there were valid reasons for the said delay and lastly, no prejudice would be suffered by the other parties; and
3.
Taking into account the replying affidavit sworn by Wilson Murage, the petitioner’s Senior Legal Counsel, on September 2, 2024and the written submissions of even date opposing the Motion wherein the petitioner contends that the respondent has failed to establish a proper basis for the delay, as no application for extension of time was made prior to the expiration of the stipulated timelines. Furthermore, that the respondent ought to have presented a doctor’s report and in the absence of one, a sick sheet from a pharmacy does not suffice; and
4.
Noting the replying affidavit sworn by Raimond Molenje, the Ag Chief Executive Officer of the 1st interested party, on the September 3, 2024 and the written submissions of even date opposing the Motion wherein 1st interested party contends that the respondent was, in fact, required to file their submissions by August 14, 2024 as opposed to August 22, 2024 as asserted, representing an eight- day delay beyond the stipulated deadline; that this court will be sanctioning an illegality by allowing the submissions that had already been filed without leave to remain on record; and that extension of time is an equitable remedy which is only available to the deserving party; and
5.
Appreciating that this court is clothed with unfettered discretion under rule 15(2) of the Supreme Court Rules to extend the time for filing any document; and that the principles that govern the exercise of such discretion as delineated in the Salat Case are as follows:
“
…
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
6.
Whether the application has been brought without undue delay; and
7.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” | We now opine as follows:
i.
Upon review of the record, it is undisputed that the respondent filed their submissions on August 23, 2024 following a mention of the matter before the Honourable Deputy Registrar on the same date, during which any further extension of time to file any pleading in the matter was denied. Counsel for the respondent has attributed the delay to an inadvertent oversight of the prescribed deadlines, compounded by a period of illness that hindered the timely completion of the submissions, as evidenced on the record of August 23, 2024. Counsel has urged that this oversight should not prejudice his client.
ii.
While the petitioner and the 1st interested party take a contrary stance, we give the respondent’s counsel the benefit of doubt as an officer of the court. Consequently, we find that the respondent has adequately established a plausible reason for the delay. Moreover, the delay was neither unreasonable nor inordinate.
iii.
Based on the foregoing, we are inclined to exercise our discretion by extending time within which the respondent is to file its submissions. Towards this end, the respondent is hereby granted seven days from the date of this ruling, within which to file and serve its submissions. Both the petitioner and the 1st interested party shall have seven days from the date of service, within which to file any responses thereto.
iv.
Taking into account the foregoing and this court’s decision in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), we deem it just to order that costs of the motion shall abide the outcome of the appeal.
7.
Consequently, and for the reasons aforesaid, we make the following orders:
i.
The Notice of Motion dated August 23, 2024 and filed on August 26, 2024 is hereby allowed.
ii.
Costs of the Motion shall abide the outcome of the appeal.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/78/eng@2024-12-13 |
Petition (Application) E009 of 2024 | Freedom Limited v Mbarak (Petition (Application) E009 of 2024) [2024] KESC 76 (KLR) (13 December 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 13 December 2024 | 2,024 | Nairobi | Civil | Freedom Limited vs Omar Awadh Mbarak | [2024] KESC 76 (KLR) | null | Upon reading the Notice of Motion dated 28th August, 2024 and filed on 29th August, 2024, expressed to be brought pursuant to Sections 3A and 20 of the Supreme Court Act, Cap 9B, Rules 3(2), 26 and 31 of the Supreme Court Rules, 2020, the inherent powers of the Court and all other enabling provisions of the law, in which the applicant is seeking orders that:
i.
The Honourable Court be pleased to grant leave to the applicant to adduce additional evidence being documents to be introduced through an affidavit supporting the Petition.
ii.
Upon grant of leave, this Honourable Court be pleased to admit the following additional documents to be filed through an affidavit sworn by the applicant:
a.
Letter dated 26th March 2023, by the applicant to the Chief Land Registrar requesting for certified copies of documents, plans and correspondence in relation to land parcel No. 287/V/MN (the Original Parcel) and the subsequent subdivisions thereof.
b.
An inventory of documents dated 9th April 2024 prepared by the Directorate of Land Administration in the Ministry of Lands, Public Works, Housing and Urban Development in respect of land parcel No. 287/V/MN.
c.
Various documents annexed to the aforementioned inventory of documents dated 9th April 2024.
d.
Letter dated 8th April 2024 by the applicant to the Director of Survey requesting for certified copies of survey records, correspondence and any documents relating to the original parcel No. 412/Section V/MN, Parcel No. 1948/Section V/MN and Parcel No. 2028/ Section V/MN.
e.
Survey report dated 15th April 2024 by the Director of Surveys in respect of the original parcel, Parcel No. 412/Section V/MN, Parcel No. 1948/Section V/MN, Parcel No. 2028/Section V/MN and Parcel No. 2838/Section V/MN.
iii.
The costs of and incidental to this application be provided for; and
2.
Upon examining the grounds on the face of the application; the supporting affidavit of Harji Govind Ruda, the applicant’s director, deposed on 28th August 2024; his supplementary affidavit sworn on 12th September 2024; and the applicant’s submissions dated 28th August 2028, all to the effect that: the central issue for determination before the Environment and Land Court (ELC) was the contested ownership of the suit property between the applicant and the respondent with the ELC finding in favour of the applicant; the Court of Appeal in setting aside that decision, termed all the title documents presented by the parties before the ELC as unreliable and instead, proceeded to determine the appeal based on an unpleaded doctrine of seisin thereby overturning the ELC’s decision; while doing so, the Court of Appeal highlighted multiple uncertainties and doubts over the rival title documents that had been sighted and analyzed by the ELC; it is these uncertainties that the additional evidence, if allowed to be adduced, is intended to clarify; the additional evidence is of relevance to the issues in the appeal and will assist the Court to determine the legality of the transactions recorded on the mother title and the authenticity of the root title to the suit property which the Court of Appeal avoided to address even after expressing doubts over the competing title documents that were before it; that the evidence intended to be presented is likely to settle the factual and legal questions that are in dispute in the appeal; the documents in question comprising the correspondence file, together with the survey report and records, will enable the Court to fully appreciate the ownership trajectory of the original parcel and to determine whether indeed the respondent’s grandfather acquired the suit property and was in possession; and
3.
Further, that the intended additional evidence could not be obtained with the exercise of reasonable diligence for use at the trial as the applicant neither had possession nor access to the inventory of documents, the original parcel’s correspondence file or the survey report and records, prior to the filing of the petition; that as a point in fact, at the time of the hearing before the ELC, the deed file in respect of the original parcel that was supposed to be domiciled at the Mombasa land registry was lost; moreover, all other documents relating to the historical ownership of the original parcel had been lost; that in initiating the suit before the ELC, the applicant depended on a file which had been reconstructed on the strength of a court order on the basis of the applicant’s title documents which were in its possession; that the new evidence does not introduce new substance to the dispute rather, it is aimed clarifying the authenticity of all the documents presented before the trial court; that the evidence is credible as it emanates from official public documents from the Ministry and is not voluminous; that the introduction of this evidence is needed to forestall the injustice occasioned to the applicant by the Court of Appeal as the court disregarded title documents and relied on unpleaded issues thereby denying parties a fair trial; that the introduction of this additional evidence will not prejudice the respondent; and that the applicant has satisfied the threshold under Section 20 of the Supreme Court Act and the principles for additional evidence as enunciated in the case of Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others, [2018] KESC 62 (KLR) (Mohamed Abdi Mahamud Case); and
4.
Upon reviewing the respondent’s replying affidavit sworn by Omar Awadh Mbarak on 6th September, 2024 and his submissions dated 9th September, 2024 in opposition to the Motion to the effect that: the estate of the late Mbarak Awadh Salim is the legal owner of the suit property and that the respondent claims ownership on behalf of his grandfather (the deceased); that the Court of Appeal rightfully declared him as the owner of the suit property; that he was neither party nor privy to the proceedings granting to the applicant an order of reconstruction of the parcel file; that it was false for the applicant to aver that all other documents relating to the history of ownership of the original parcel had been lost or could not be established, given that the respondent produced the original title to the suit property at the ELC; that it is equally false for the applicant to aver that it was not required to go to the root of the title to the original parcel before purchasing it; and that if the applicant is allowed to adduce the additional evidence, the respondent stands to suffer immense and irreversible prejudice; and
5.
Further noting the fact that the respondent maintains that the applicant has not met any of the conditions precedent under Section 20 of the Supreme Court Act and the principles for adducing additional evidence in the Mohamed Abdi Mahamud Case for the reasons that: the documents sought to be adduced are irrelevant to the appeal before this Court and are unlikely to influence or impact upon the result of the verdict; that the applicant has been indolent in advancing its case and the new evidence is meant to fill gaps in the applicant’s evidence whereas this is a second appeal which should purely be on matters of law and not points of fact; that admission of the documents listed in the applicant’s Motion is tantamount to sanctioning litigation by installments; and that given the applicant’s indolence, it is undeserving of leave to adduce additional evidence; and | Having considered the Motion, affidavits and rival arguments summarized in the preceding paragraphs we now opine as follows:
i.
As a general rule, parties to litigation must bring forward their whole case, and will not (except under special circumstances) be permitted to open the same subject of litigation in respect of matters which might have been brought forward at the trial.
ii.
The admission of additional evidence on appeal before this Court is regulated by the provisions of Section 20 of the Supreme Court Act and Rule 26 of the Supreme Court Rules, 2020. The former empowers the Court to admit further evidence, which the Court considers necessary and appropriate in the circumstances. The section requires that, in admitting additional evidence, the Court shall consider whether the additional evidence —
“
(a)
is directly relevant to the matter before the Court;
b.
is capable of influencing or impacting on the decision of the Court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the Court”.
iii.
To these strictures, the Court has espoused the following further criteria to be considered in an application of this nature:
“
a.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
b.
whether a party would reasonably have been made aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process;
c.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
d.
the court must be satisfied that the additional evidence is not utilized for the purpose of removing the lacunae and filling gaps in evidence. The court must find the further evidence needful;
e.
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case;
f.
the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
See the Mohamed Abdi Mahamud case (supra).
iv.
Applying these principles to the Motion, it is evident that the material sought to be introduced consists of documents, plans, and correspondence in relation to land parcel No. 287/V/MN (the Original Parcel) and the subsequent sub-divisions thereof. These documents are aimed at addressing certain questions raised by the Court of Appeal as to the authenticity of the applicant’s Certificate of Ownership; and the propriety of the process which was adopted by the Registrar of Titles to facilitate the reconstruction of file to the suit property, based on documents supplied solely by the applicant.
v.
The applicant, having initiated the action, first before the High Court for the reconstruction of the file and subsequently before the ELC claiming ownership of the suit property as against the respondent’s rival claim was expected, indeed, required to bring the entire evidence at that initial stage to support that claim.
vi.
The applicant has not demonstrated that the additional evidence it seeks to adduce could not have been obtained with reasonable diligence for use at the trial or could not have otherwise been produced earlier. To the contrary, within a short time of the applicant writing to the relevant government departments, the documents were supplied, confirming that they were always available.
vii.
By its admission, the applicant pleads that the additional evidence it wishes to present could not have been obtained and introduced before the trial court “because its necessity has only been brought about by the skewed decision of the Court of Appeal which has decided to disregard documents of title and instead determine a matter concerning property on a medieval doctrine of seisin… that the applicant had no way of predicting that the Court of Appeal would render such a skewed decision and veer away from the title documents which had been produced and analysed by the ELC”.
viii.
The documentary evidence sought to be introduced is therefore in direct answer to the questions raised by the Court of Appeal in its impugned judgment. Parties cannot use the window provided for by Section 20 and Rule 26 aforesaid to fill the lacuna or patch up parts of the evidence of the unsuccessful party. The rule of thumb is that additional evidence will be required to do justice between the parties.
ix.
It is on record that the only file that could not be traced at the Mombasa Land Registry during the proceedings before the trial court, was the Deed File in respect of the original parcel. Nothing has been said about the status of that file. There is, however, no evidence of any attempts by the applicant, prior to the delivery of the Court of Appeal judgment, to procure the multiple documents in the Correspondence File that it now wishes to produce.
x.
Further, the applicant has averred that the Correspondence File and Survey Report, “were not necessary documents that needed to be submitted before the ELC because the applicant was not required to go to the root of the title of the suit property.” That, since the applicant was successful in the ELC, its title to the suit property was valid, and there was no necessity or requirement for it to introduce any document before the Court of Appeal as proof of the transactions that took place in the Original Parcel prior to the applicant acquiring it.
xi.
It is a requirement under Section 20, Rule 26 aforesaid and the ratio decidendi in Mohamed Abdi Mahamud (supra) that only evidence that is directly relevant to the matter before the Court would be considered for admission. The applicant has not illustrated how the new evidence will assist the Court in determining the authenticity of the root title of the suit property, over and above the material already on record and upon which the two superior courts below based their respective decisions.
xii.
For the foregoing reasons, it is our considered opinion that the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal; the evidence has always been available and could have easily been obtained; and it has not been demonstrated in what way it will impact on the decision of this Court.
xiii.
Looking at the nature of the additional evidence, we doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties. The two superior courts below based their respective decisions upon the evidence presented by the parties, the ELC finding in favour of the appellant and the Court of Appeal for the respondent. Based on this fact, we are being asked in this appeal to determine, on the basis of the material on record, whether or not the Court of Appeal erred in its determination as to the ownership of the suit property. We believe this question is capable of being answered without the introduction of further evidence.
xiv.
On costs, we underscore the fact that an award of costs is an exercise of discretion and follows the principle set out by this Court in Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR) that costs follow the event. In exercise of our discretion, we direct that the applicant shall bear the costs of this Motion.
7.
Accordingly, we make the following orders:
i.
The Notice of Motion application dated 28th August, 2024 be and is hereby dismissed.
ii.
The Applicant shall bear the costs of this application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/76/eng@2024-12-13 |
Election Petition (Reference Application) E004 of 2024 | Independent Electoral and Boundaries Commission v Attorney General & another (Election Petition (Reference Application) E004 of 2024) [2024] KESC 77 (KLR) (13 December 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 13 December 2024 | 2,024 | Nairobi | Civil | Independent Electoral and Boundaries Commission vs Attorney General, Centre for Legal Aid and Clinical Legal Education (CLACLE) at Kabarak University Law School | [2024] KESC 77 (KLR) | null | Cognisant that, His Excellency the President of the Republic of Kenya published a Gazette Notice No 2641 dated February 27, 2023, appointing members of the Selection Panel for the recruitment of nominees for appointment as Chairperson and Members of the Independent Electoral and Boundaries Commission (IEBC) following vacancies in the said positions. That subsequently, the Selection Panel placed a public advertisement in various local dailies, the Kenya Gazette, and on the Parliamentary Service Commission’s website inviting applications for the said positions. However, before the recruitment process was completed, a suit was filed in the High Court, Abdullahi v Attorney General & 2 Others (Constitutional Petition E148 of 2023) [2024] KEHC 434 (KLR) (Abdullahi case), wherein the petitioner therein contended that the Selection Panel and the Parliamentary Service Commission had deliberately slowed down the recruitment process; and by a judgment dated January 26, 2024, Thande, J issued orders inter alia that -
“
...
3.
A mandatory order be and is hereby issued to the selection panel for the recruitment of nominees for appointment as the chairperson and members of the Independent Electoral and Boundaries Commission take immediate measures and/or steps to undertake the nomination exercise and to submit for appointment successful applicants for the positions of members and chairperson of the Independent Electoral and Boundaries Commission as to make it possible for the Commissioners to be in office.”
2.
Noting that, the recruitment for nominees as well as the appointment of the Commissioners is still pending despite the aforementioned order; IEBC did on March 6, 2012 vide Legal Notice No 14 of 2012 publish the National Assembly Constituencies and County Assembly Wards Order, 2012 (the delimitation order); and in line with article 89 of the Constitution, IEBC was required to conduct the delimitation of constituencies and wards between March 6, 2020 (being the minimum period of 8 years after the March 6, 2012 delimitation order) and March 6, 2024 (being the maximum period of 12 years after the March 6, 2012 delimitation order). Nonetheless, IEBC has not been able to undertake the delimitation process within the set timelines; and
3.
Further noting that the aforementioned circumstances led to IEBC filing the reference herein which seeks this court’s advisory opinion on the following issues:
a.
Whether IEBC can undertake the process of delimitation of electoral boundaries and other electoral processes in the absence of Commissioners or the requisite quorum of Commissioners;
b.
Whether IEBC can conduct a review of the names and boundaries of constituencies and wards when timelines envisaged under article 89(2) and 89(3) as read with section 26 of the County Governments Act have lapsed; and
c.
Whether the constitutional timelines envisaged under the provisions of article 89(2) and 89(3) as read with section 26 of the County Governments Act can be extended, and if so, by whom and under what circumstances.
4.
Moreover, while the aforesaid reference is pending, the instant notice of motion dated July 25, 2024 was filed on August 1, 2024 pursuant to rule 19 of the Supreme Court Rules, 2020 seeking the following orders:
i.
Leave be granted for admission of the Centre for Legal Aid and Clinical Legal Education (CLACLE) at Kabarak University Law School as amicus curiae in the Advisory Opinion.
ii.
Leave be granted for the intended amicus curiae to make oral and written submissions limited to the following point of law:
a.
Whether the Secretariat of an Independent Office or Commission can undertake roles and functions assigned by the Constitution to the Commission or Office in cases of vacancies in the office of the Commissioners or the Office holder(s).
5.
Upon considering the affidavit sworn by Prof John Osogo Ambani, the Dean of Kabarak University Law School, in support of the motion and the intended amicus’ submissions of even date to the effect that; Kabarak University Law School was established in 2010 and accredited by the Council of Legal Education; and the Law School’s mission is to impact the universe through excellent legal education, cutting edge research and devoted community service based on ethical and biblical perspectives. The intended amicus curiae is a Centre at the said Law School whose objective includes conducting relevant legal research as well as enhancing clinical and experiential learning. Furthermore, that, the intended amicus curiae’s participation in the Reference will ensure that legal education institutions such as itself play a vital part in the complex process of evolution and development of the law; in point of fact, the single issue that the amicus seeks to address is geared towards assisting the court in developing the law and addressing a novel question that confronts constitutional bodies like IEBC; the intended amicus is neutral and members of Faculty of the Law School possess the necessary expertise and experience with respect to the single issue it intends to submit on; and the Motion has been brought without delay; and
6.
Considering also IEBC’s submissions dated August 16, 2024 in response to the motion, the tenor of which is; the intended amicus has met the requisite threshold and ought to be admitted in the Reference. However, that there are substantial inconsistencies in the draft amicus brief; in that, the intended amicus has taken the position that the advisory opinion sought is ‘unnecessary’ yet in the same breath seeks to be admitted into the matter. What is more, that contrary to the draft amicus’ brief, the issues upon which the court’s opinion is sought are not settled; while the High Court (Thande, J) by a judgment dated January 26, 2024 in the Abdullahi case directed the Selection Panel to complete the nomination exercise of persons for appointment as Commissioners of IEBC, the exercise is still pending; and besides, the High Court has on various instances directed the Chief Executive Officer of IEBC, notwithstanding the absence of Commissioners, to perform functions that would ordinarily have to be sanctioned by Commissioners. Towards that end, reference was made to the High Court decision in County Government of Kisii & 2 others v IEBC (Constitutional Petition E006 of 2024) [2024] KEHC 8477 (KLR) wherein the court issued orders inter alia directing the Secretary/Chief Executive Officer or any other person occupying that position to firstly, gazette the Returning Officer for Kisii County for the clearance and gazettement of the Deputy Governor nominee for Kisii County; and secondly, to gazette the nominated Deputy Governor as the Deputy Governor of Kisii County. Therefore, the issues in question require this court’s Advisory Opinion as a guiding principle not only to the current predicament facing IEBC but for other constitutional offices that may face similar challenges in future; and the intended amicus, as a bona fide friend of the court, should address all the issues raised since they are weighty and require its expertise; and | Upon deliberations on the motion and the submissions by IEBC as well as the intended amicus curiae, we opine as follows:
i.
It is well settled that admission of an amicus curiae in any proceedings lies within the discretion of the court, and this is determined on a case-by-case basis. See Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (intended amicus curiae) (Petition 15 & 16 of 2015 (Consolidated))[2016] KESC 12 (KLR). Further, this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] KESC 26 (KLR), aptly set out the following guiding principles in relation to an amicus curiae:
“
….
ii.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
…
viii.
The court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role.
ix.
In appropriate cases and at its discretion, the court may assign questions for amicus research and presentation.
…
xiii.
The applicant ought to show that the submissions intended to be advanced will give such assistance to the court as would otherwise not have been available. The applicant ought to draw the attention of the court to relevant matters of law which would otherwise not have been taken into account. Therefore, the applicant ought to show that there is no intention of repeating arguments already made by the parties. And such new matter as the applicant seeks to advance, must be based on the data already laid before the court, and not fresh evidence.
xiv.
The applicant ought to show expertise in the field relevant to the matter in dispute, and in this regard, general expertise in law does not suffice.
...”
Rule 19(2) of the Supreme Court Rules also succinctly delineates matters that this court should address its mind to in the following manner:
“
19
2.
The court shall before admitting a person as a friend of the court, consider—
a.
proven expertise of the person;
b.
independence and impartiality of the person; or
c.
the public interest.”
ii.
Equally, in considering admission of an amicus curiae in a Reference, such as the one before us, this court must always remain alive to the nature of its jurisdiction under article 163(6) of the Constitution in issuing an Advisory Opinion. More particularly, that the essence of the court rendering an opinion is to settle matters of great public importance which may not be suitable for conventional mechanisms of justiciability and/or to unravel a legal uncertainty in such a manner as to promote the rule of law and the public interest. See In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinion Application 2 of 2012); [2012] KESC 5 (KLR). Additionally, that an opinion rendered by the court guides not only the conduct of the organ(s) that sought it, but all governmental or public action thereafter, as pronounced In the Matter of the Interim Independent Electoral Commission (Constitutional Application 2 of 2011); [2011] KESC 1 (KLR).
iii.
Turning to the merits of the Motion, there is no dispute that the members of Faculty of Kabarak University Law School possess expertise and experience in research as well as different spheres of law as evinced by the list of members of Faculty and the publications annexed to the motion. Nonetheless, it is the intended amicus, CLACLE, as opposed to the members of Faculty of Kabarak University Law School who seek to be admitted as an amicus curiae in the Reference. It follows therefore, that the intended amicus is required to demonstrate its expertise in relation to the issues subject of the reference. In this regard, we note that the intended amicus has not annexed any research papers or publications that would speak to its expertise and experience in the issues in question.
iv.
Moreover, upon perusal of the draft amicus brief, we find that the intended amicus has not demonstrated that the submissions it proposes to put forth will draw the attention of the court to relevant matters of law which would otherwise not be taken into account.
v.
Consequently, we find that the intended amicus curiae has not met the threshold for admission in the Reference, and as such, the motion lacks merit.
vi.
Taking into account the nature of this matter and this court’s decision in Rai & 3 others v Rai, Estate of & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR), we deem it just to order that each party bears its own costs.
8.
Consequently and for the reasons afore-stated, we make the following orders:
i.
The notice of motion dated July 25, 2024 and filed on August 1, 2024 is hereby dismissed.
ii.
Each party shall bear its costs of the Motion.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/77/eng@2024-12-13 |
Petition E021 of 2023 | Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR) (6 December 2024) (Judgment) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 6 December 2024 | 2,024 | Nairobi | Civil | Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 others | [2024] KESC 75 (KLR) | null | A. Introduction
1.
Two appeals are before us for determination: Petition No. E019 of 2023 filed by the 1st Appellant dated 1st August 2023 and filed on 24th August 2023, and Petition No. E021 of 2023 by the 2nd – 11th appellants dated 5th August 2023 and filed on 7th August 2023 both pursuant to the provisions of Article 163 (4) (a) of the Constitution. The appeals arise out from the Judgment of the Court of Appeal at Mombasa (Gatembu, Nyamweya & Lesiit, JJA) in Civil Appeal No. E004 of 2020 as consolidated with Civil Appeal No. E032 of 2021 delivered on 23rd June 2023.
2.
The appeals concern the alleged violation of the right of the 2nd – 11th appellants to a clean and healthy environment, the highest attainable standard of health care and sanitation as guaranteed by Articles 42 and 43 of the Constitution and by dint of Article 70 of the Constitution. The appeal also interrogates the applicability of the polluter pays principle, the precautionary principle, the doctrine of presumption of regularity, apportionment of liability and, the interpretation of the constitutional remedy of compensation provided under Article 23(3) of the Constitution in instances where a court has made a pronouncement on violation of rights and fundamental freedoms with a specific focus on environmental protection.
B. Factual Background
3.
The 2nd to 11th appellants are residents of Owino-Uhuru Village within Changamwe Division, Mikindani Area of Mombasa County. They claim that they have been living in the densely populated village situate on Plot No. 148/V/MN in Mikindani which measures about 13.5 acres of land and that in the year 2006 Penguin Paper and Book Company Limited leased a neighbouring plot to Metal Refinery (EPZ) Limited (hereinafter Metal Refinery) which set up a lead acid battery recycling factory. The lead acid recycling activity produced toxic waste which seeped into the village causing the area residents various illness and ailments as a direct consequence of lead poising with more than 20 deaths attributed to it.
4.
Upon seeing the adverse effects of the existence of the factory, the 2nd – 11th appellants campaigned for its permanent closure and urged the concerned authorities to investigate the environmental degradation caused as well as the negative impacts suffered. This led to several intermittent closures and re- openings of the factory until it permanently closed in 2014. Even so, they posited that the responsible State agencies licensed and sanctioned the activities of Metal Refinery contrary to their mandate, thus violating their constitutional rights. | It is imperative for this Court to first point out that the undisputed facts in the appeal before us is that the factory in question was operated by Metal Refinery on land owned by Penguin Paper and Book Company Limited. Secondly, the parties concede that there was proof of violation of the 2nd to 11th appellants’ right to clean and healthy environment. The issues raised in the consolidated appeals before us therefore largely turn on the legality and propriety of the findings of the Court of Appeal on the liability to be borne by NEMA, EPZA and other state agencies for the adverse effects from the operations of the said factory and the basis for the quantum of the award of damages and compensation.
85.
None of the parties have disputed that this Court lacks jurisdiction to entertain the consolidated appeal. The appeal is brought under Article 163 (4) (a) of the Constitution. We have reflected on our jurisdiction and found that the suit here originated from the ELC court and proceeded to the Court of Appeal as a constitutional issue raising issues of constitutional interpretation and application. In line with our decision Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Anor S. C. Petition No.3 of 2012 [2012] eKLR, we find that this Court has jurisdiction to entertain the appeal before us. Having considered the respective parties’ pleadings and submissions in the consolidated petition, this Court is of the considered view that the issues arising for determination are;
a.
Whether the Court of Appeal misinterpreted and misapplied the provisions of Article 69 of the Constitution as read with Article 70 (2) of the Constitution.
b.
Whether the Court of Appeal erred in its assessment of liability.
c.
Whether the Court of Appeal erred in its interpretation of Article 23 of the Constitution specifically the available remedies once a Court has determined that there were violations of rights.
d.
Whether the Court of Appeal erred in reversing the ELC Court’s award on damages.
e.
Whether the Court of Appeal erred in remitting the matter back to the ELC for re-assessment of the award of damages.
f.
Whether the appellants are entitled to the reliefs sought.
g.
Who shall bear the costs of the Appeal?
a. Whether the Court of Appeal misinterpreted and misapplied the provisions of Article 42, 69 and 70(2) of the Constitution
86.
EPZA’s submission in this respect is that the superior courts erroneously and retrospectively applied the provisions of the Constitution for actions which took place prior to promulgation of the Constitution. That the actions complained of are also the subject of legislation since they took place in 2007 before enactment of the Constitution 2010 and that, under both the former and current constitutional architecture, it is the 1st, 2nd and 3rd respondents who are obligated to ensure sustainable management and conservation of the environment.
87.
The 2nd- 11th appellants in a rejoinder submitted that although the Pre-2010 Constitution does not capture aspects of environmental protections and management this does not mean there was no regard to it and in Peter K. Waweru v Republic, Nairobi, HC Misc. Application No. 118 of 2004 the court interpreted the right to life in Section 71 of the retired Constitution to include a right to a clean and healthy environment. Subsequently, where there is a right, there must be a remedy for any violation, which rights are now clearly defined in Articles 42 and 70 of the Constitution. We understand EPZA’s argument to be that the issues in dispute ought to be anchored in the previous Constitution and the legislation in existence at that time since the alleged violations took place in the year 2007.
88.
We have considered the history pertinent to the environmental degradation in Owino-Uhuru Village and note that the same did not commence and end in the year 2007 because the discharge of the affluent which posed a significant risk to those who came into contact with it continued until the eventual close down of the factory in the year 2014. This fact is well captured in the report of The Task Force on Decommissioning Strategy for Metal Refinery EPZ Ltd which was conducted in the year 2015 and at that time the tests still showed evidence of lead exposure at the factory and amongst residents of Owino- Uhuru village. The suit before the ELC was commenced by way of constitutional petition dated 20th February 2016 under the current Constitution as the violations had continued beyond 2010.
89.
In Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that ‘every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues”. The infringement in this case was not static but a continuing violation. Being a continuous act the same cannot be the subject of mathematical computation of time. The provisions of the current Constitution were therefore applicable to the circumstance of this case as the said principle in tort finds favour in allegations of constitutional violations.
90.
As regards whether in the constitutional architecture it is only the 1st, 2nd and 3rd respondents who are obligated to ensure sustainable management and conservation of the environment, the preamble of the Constitution 2010 acknowledges the need to be respectful to the environment which is the people’s heritage, and also expresses the determination to sustain it for the benefit of future generations. Article 42 of the Constitution further provides that every person has the right to clean and healthy environment. This includes the right to have the environment protected for the benefit of future generations. It is noteworthy that this right has both individual and collective dimensions. The individual dimension is the right of any victim or potential victim of any environmentally damaging activity to obtain reparation for harm suffered, while the collective dimension imposes a duty on individuals and states to cooperate to resolve environmental problems.
91.
The Final report of the Constitution of Kenya Review Commission (CKRC) at pages 267 and 268 made various recommendations in relation to the environment citing that it is the duty of the State to prevent pollution and its effects. The report also called for the application of the precautionary principle, environmental impact assessment and environmental audits. The CKRC recommendations have been adopted in Article 69 of the Constitution and when implementing the right to clean and healthy environment, the primary responsibility lies with the Government to adopt measures that will ensure effective environmental conservation and management. Article 69 of the Constitution imposes on the state the obligation to;
a.
ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
b.
work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
c.
protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;
d.
encourage public participation in the management, protection and conservation of the environment;
e.
protect genetic resources and biological diversity;
f.
establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
g.
eliminate processes and activities that are likely to endanger the environment; and
h.
utilise the environment and natural resources for the benefit of the people of Kenya.
92.
On the other hand, Article 69 (2) provides that every person has a duty to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Article 70 (1) provides mechanism to redress any violation of the right to clean and healthy environment in the following terms:
“
(1)
If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter”.
93.
The provisions of Article 69 places the obligation in respect of the environment to “the State” defined in Article 260 of the Constitution to mean the collectivity of offices, organs and other entities comprising the Government of the Republic under the Constitution. Article 69 (2) further elaborates this point by mandating every person to cooperate with “all state organs”. The obligation to ensure respect of the environment is therefore not a preserve of the 1st, 2nd and 3rd respondent as submitted but an obligation to all State organs.
94.
In that context, EPZA is a State Corporation under the Ministry of Investments, Trade and Industry, established in 1990 by the EPZ Act Cap. 517, Laws of Kenya. EPZA’s mandate is to promote and facilitate export-oriented investments and to develop an enabling environment for such investments. Section 19 of the EPZ Act grants EPZA the mandate to issue a licence to any person to carry on business as an export processing zone developer, or an export processing zone operator or an export processing zone enterprise.
95.
Section 23 (c) of the EPZ Act further provides that a license for the establishment of export processing zone enterprise shall be granted if the application is found to meet the objectives of the Act and if the proposed business enterprise -
“
(c)
shall not have a deleterious impact on the environment, or engage in unlawful activities, impinging on national security or may prove to be a health hazard.”
96.
the Constitution and the law therefore directly imposes an obligation on all State organs to ensure the protection of the environment. Section 23 (c) of the EPZ Act imposes a specific and clear obligation to EPZA in ensuring there is protection to the environment. We must for these reasons dismiss EPZA’s argument that it is only the 1st, 2nd and 3rd Respondents who are obligated to ensure sustainable management and conservation of the environment.
b. Whether the Court of Appeal erred in its assessment of liability
97.
The 1st appellant and the respondent’s submission on liability is a vicious blame game, each seeking not to attach liability to itself either by omission and commission and be culpable to the environmental degradation and the violations suffered by the 2nd to 11th appellants. This back-and-forth between parties is common in complex environmental or liability cases where multiple parties may be involved in the causation or exacerbation of harm. The court in such cases needs to assess the roles each party played, whether through direct actions (commission) or through failing to act when required (omission), and ultimately determine who is responsible for the degradation and the injuries caused.
98.
The arguments by the 1st appellant and the respondents revolve around the various principles of sustainable development some of which are embodied in Section 3 (5) of EMCA. They also urge the Court to consider their respective mitigation of loss.
99.
Principle 1 of the 1992 Rio Declaration on the Environment and Development states that human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature and one of the national values and principles of governance as provided under Article 10 of the Constitution is sustainable development. The principles of sustainable development are also captured in Section 69 (2) of EMCA to include: the principle of sustainable development of policies, plans and processes for the management of the environment; the principle of international cooperation in the management of the environmental resources shared by two or more states; the polluter pays principle; and the pre-cautionary principle.
100.
Further, the Constitutional provision on the enforcement of the right to clean and healthy environment is largely based on the polluter pays principle where the provisions give extensive power to the court to compel the government or any public agency to take restorative measures and to provide compensation for any victim of pollution and to compensate the costs borne by the victims for the lost use of natural resources as a result of an act of pollution. In addition to the polluter pays principle there is also the precautionary principle which directly impacts on environmental liability. The precautionary principle marks a shift from post-damage control (civil liability as a curative tool) to the level of pre-damage control (anticipatory measures of risks). Principle 15 of the Rio Declaration on Environment and Development states in that context;
[i]
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
(See also Kariuki Muigua, Attaining Environmental Justice for Posterity Vol 2 Glen Wood Publishers Limited Pg. 26-47).
101.
Section 3 (5) of the EMCA embodies these principles to guide the courts at arriving at a determination in an application for redress for a contravention to a clean and healthy environment. The same have been described under Section 2 of the Act as follows;
“
polluter-pays principle" means that the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, cost of beneficial uses lost as a result of an act of pollution and other costs that are connected with or incidental to the foregoing, is to be paid or borne by the person convicted of pollution under this Act or any other applicable law;
“
precautionary principle" is the principle that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;
102.
The polluter pays principle therefore inclines that the person who will be targeted to carry out clean-up of contaminated land is the polluter, regardless of whether the contamination was foreseeable when the pollution event occurred or whether the polluter was at fault. The test of ‘causing’ involves some active operation or chain of operations to which the presence or continued presence of the pollutants is attributable. Such involvement may take the form of a failure or omission to act in certain circumstances. The test of ‘knowingly permitting’ would also require both knowledge that the substances in question were in, on or under the land and the possession of the power to prevent such substances being there. There is also the presumption that if a person has caused or knowingly permitted the presence of a contaminated substance on one piece of land, he will also be regarded as having caused or knowingly permitted that substance to be present on any land to which it appears to have migrated.
(See also Freshfields, Tolley Environmental Law, Tolley Publishing Ltd Issue 3 April 1998)
103.
Courts also rely on common law principles when determining the issue of strict liability in environmental matters. The old and often quoted case of Ryland vs Fletcher (1868) LR 3 HL 330 imposes strict liability on the owner of land for damage caused by the escape of substances to his or her neighbours land. From this case the pre-requisites of strict liability are that the defendant must have made a non- natural or special use of his land; that the defendant brought onto his land something that was likely to do mischief if it escaped; the substance in question escaped; and the plaintiff’s property was damaged because of the escape.
104.
Furthermore, in David M. Ndetei v Orbit Chemical Industries Limited [2014] KEHC 4354 (KLR), the court in its analysis of Ryland v Fletcher took the view that a non-natural use of land relates to the nature of the activity carried out by the defendant on his land and it must be one that is special, exceptional or out of the ordinary, hazardous or inherently dangerous. It should also be one that carries high risk of great harm which risk cannot be ameliorated by the defendant despite exercise of reasonable care. The time and place where the activity is carried out is, in addition, a factor to consider so that a factory set up in an otherwise industrial area would not be deemed as non-natural use of land. In the case of M. C. Mehta v Union of India [1987] 1 SCC 395, the court stated that the test upon which such liability is to be imposed is based on the nature of the activity. Consequently, where an activity is inherently dangerous or hazardous, then absolute liability for the resulting damage attaches on the person engaged in the activity.
105.
As relates to state obligations the findings and recommendations of the African Commission on Social and Economic Rights in its decision in Action Centre (SERAC) & Another v Nigeria Communication 155/96 (Otherwise known as the Ogoni Case or Serac case) brought out pertinent issues on Article 21 (disposal of natural resources) and Article 24 (right to environment) of the African Charter. The African Commission on Human and Peoples Rights found that, when a state allows private persons or groups to act freely and with impunity to the detriment of the rights recognized in the Charter, it would be in violation of its obligation to protect the human rights of its citizens. In relation to Article 21 of the Charter the Commission stated;
“
Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement, but also by protecting them from damaging acts that may be perpetrated by private parties. This duty calls for positive action on the part of governments in fulfilling their obligations under human rights instruments…”
106.
In the present appeal, EPZA relies on the doctrine of presumption of regularity, and urges this Court to find that it was not for it to investigate whether there were procedural lapses on the part of the 1st and 3rd respondents or that the proposed activities were harmful to the environment and human health, as the latter are the experts in matters relating to the environment. The ELC and the Court of Appeal on their part faulted EPZA for issuance of a license to Metal Refinery without prior submission of an EIA license, the superior courts also found that the letters were in respect to distinct parcels of land. The ELC Court also noted that in accordance with Principle 2 of the Stockholm declaration 1973, export processing zones have neighbourhoods which ought to be protected for intra-inter- generational equity.
107.
In general, the presumption of regularity presupposes that no official or person acting under an oath of office will do anything contrary to their official duty, or omit anything which their official duty requires to be done. The doctrine provides a degree of deference to the actions or decisions made by government officials or institutions. It is grounded in the assumption that these officials act within the bounds of the law, follow established procedures, and operate in good faith when performing their duties. This presumption also relieves courts or reviewing bodies from conducting a deep, thorough review of every action or decision unless there is specific evidence to suggest wrongdoing, procedural lapses, or irrational behavior. (See The Presumption of Regularity In Judicial Review Of The Executive Branch Harvard Law Review pg. 2432). The idea is that, in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful, and reasonable.
108.
However, this concept must be balanced with other important values like accountability, due process, and the rule of law. Such a balance ensures that decisions and actions can still be challenged if there are indications of arbitrariness, unlawfulness, or significant procedural flaws, helping protect individuals and entities from potential abuse of power or wrongful outcomes. In practice, the presumption of regularity requires a showing of some evidence or claim to overcome, after which a more probing review can take place.
109.
In the above context, the Court of Appeal in Chief Land Registrar and 4 others vs Nathan Tirop Koech & 4 others (2018) eKLR, stated that there is a presumption that all acts done by government officers are done in official capacity and that all procedures have been duly followed. And in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR the Court of Appeal also held that the evidence required to rebut the presumption of regularity must be cogent, clear and uncontroverted and that the presumption of regularity cannot be rebutted through conflicting interpretation of a statutory or regulatory provision. The Court further held that liability for any action cannot be founded on conflicting interpretation of statute.
110.
In this case, EPZA under Section 23 of the EPZ Act was under a duty to ensure that the business entities it licensed under the Act “shall not have a deleterious impact on the environment”. The decision in Kibos (supra) is therefore distinguishable from this case as in Kibos the court held that the starting point is that NEMA acted lawfully and procedurally in issuing the EIA Licenses. That is not the case in this appeal because prior to issuing Metal Refinery with a license and by a letter dated 27th June 2006 responding to Metal Refinery, EPZA required it to submit a certified copy of an EIA license from NEMA. It is clear to us therefore that EPZA was aware that an EIA license was necessary prior to its issuance of a license to Metal Refinery and it subsequently relied on a letter from NEMA to issue Metal Refinery a license yet the letter referred to LR No. MN/III/3697 Kilifi District/County, a totally different parcel of land because Metal Refinery was stationed in Changamwe, Mombasa District/County.
111.
In any event the presumption of regularity does not oust a State organ’s responsibility to probe the administrative duties of another institution where in its opinion it finds that such institution has not complied with due process. We are therefore in agreement with the Court of Appeal’s finding that EPZA was not only in direct violation of Article 69 of the Constitution and Section 23 of the EPZ Act, but also assumed the legal risk and responsibility for any shortcoming by NEMA in its process of issuance of the EIA license to Metal Refineries.
112.
Further to the above finding, we note that NEMA’s submissions on liability are largely to the effect that Section 58 of the EMCA contemplates scenarios where a project can actually commence and proceed without issuance of an EIA License. That in a bid to exercise due caution and in line with the precautionary principle it deemed it fit to monitor the project for a while before issuing an EIA licence. They also submit that the learned judges of the superior courts below erred in finding that there was a direct link between NEMA’s act of approving Metal Refinery’s activities and the injuries suffered by the 2nd -11th appellants.
113.
The Court of Appeal in enhancing NEMA’s apportionment of liability held that NEMA bears greater responsibility because once evidence of the adverse and hazardous effects on the operations of the project became apparent, given the nature of the wide ranging effects on the ecosystem, human health, water, and air quality, it ought to have applied a wide range of enforcement measures at its disposal, including the cancellation of the EIA License, restoration orders, and prosecution of the perpetrators of the pollution.
114.
Section 7 of the EMCA establishes NEMA while Section 9 provides for the objects and functions of NEMA to include amongst others;
“
(k)
initiate and evolve procedures and safeguards for the prevention of accidents which may cause environmental degradation and evolve remedial measures where accidents occur;
(l)
monitor and assess activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and adequate early warning on impending environmental emergencies is given.”
115.
Section 19 on the other hand provides the liability of the Authority for damages and states;
“
The provisions of section 18 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of the powers conferred on the Authority by this Act or by any other written law or by the failure, whether wholly or partially, or any works”.
116.
Section 25 also establishes the National Environment Restoration Fund whose objects under Section 25 (4) include the fact that it shall be a supplementary insurance for the mitigation of environmental degradation where the perpetrator is not identifiable or where exceptional circumstances require NEMA to intervene towards the control or mitigation of environmental degradation.
117.
Part V of the Act provides for the protection and conservation of the environment while Part VI provides for an integrated Environmental Impact Assessment. Section 58 (2) specifically provides;
“
The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:
“
Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases”.
118.
The process that follows after the conduct of an Environmental Impact Assessment is the publication of the EIA in at least two newspapers of nationwide circulation; receipt of comments on the EIA report by lead agencies; if necessary receipt of further advise from comments received through a technical committee set up by the Authority and the conduct of further evaluation of environmental impact assessment study. It is after these processes are done and the Authority is satisfied as to the adequacy of an Environmental Impact Assessment study, evaluation or review report, that it may issue an EIA license on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.
119.
Section 64 provides that the Authority may conduct a further Environmental Impact Assessment even after issuance of the license while Section 69 mandates the Authority to conduct environmental monitoring with a view to assessing any possible changes in the environment and their possible impacts; or the operation of any industry, project or activity with a view of determining its immediate and long-term effects on the environment.
120.
NEMA equally has other roles including the issuance of licenses for effluent and emissions discharge and the issuance of environmental restoration and conservation orders in any matters relating to the management of the environment. Rule 14 of the Environmental Management and Co- Ordination (Waste Management) Regulations provides the general obligation to mitigate pollution and mandates every trade or industrial undertaking to install anti- pollution equipment for treatment of industrial waste. The anti-pollution equipment installed is determined by the best practicable means, environmentally sound practice or other guidelines NEMA may determine. In relation to treatment of Industrial waste, Rule 15 & 19 prohibit discharge of waste unless the waste has been treated.
121.
The Court of Appeal in apportioning liability to NEMA held that it approved the project at its commencement before the full impact of the project was considered and evaluated. It specifically found and held in paragraph 84 that;
“
NEMA did not provide evidence that the EIA Study undertaken by Metal Refinery (EPZ) Limited dated 13th March 2007 that was produced in evidence was subjected to technical evaluation in light of the parameters that require to be satisfied in terms of impact as set out in the Second schedule to the Environmental (Impact Assessment and Audit) Regulations, 2003 and confirmation of the relevant standards that required to be met by Metal Refinery EPZ Ltd, including on hazardous waste. The casual link between the approval of the operations of Metal Refinery EPZ Limited before completion of the EIA Process and the damage suffered as a result of effects of the projects is therefore evident, since appropriate controls could have been put in place by NEMA ex ante were the hazardous impact of the project properly identified, including an absolute prohibition on the project. Put differently, the project would never have seen the light of day and hence no damage would have been resulted…(sic)”
122.
Section 1 of the Second Schedule of EMCA sets out general projects that require EIA to include any activity out of character with its surrounding, any structure of a scale not in keeping with its surrounding and major changes in land use. The Schedule provides a more specific and comprehensive list of projects such as urban development, transportation, dams and rivers, mining, forestry and agriculture. The provisions of Section 58 do not therefore provide the Authority the power to conduct ‘test runs’ as suggested by NEMA in its submissions. It is also clear to us that due procedure was not conducted by NEMA prior to issuance of the license to Metal Refinery. There are inconsistencies as to where the actual location of the factory was to be located, despite there being clear provisions in Section 59 of the Act that the publication of the Environmental Impact Assessment should contain the place where the project is to be carried out and where the environmental impact assessment study, evaluation or review report may be inspected. There is also no indication that the EIA was gazetted prior to its approval or comments were received concerning the same. NEMA issued a cessation Order on 23rd April 2007 only to later approve and issue the EIA license on 16th May 2007 without confirming that the terms set out in the cessation order had been complied with. It thereafter reverted and urged Metal Refinery to conduct ‘test runs’ and even after issuance of the license and noting that Metal Refinery was discharging effluents harmful to the environment, it only issued improvement orders and this continued until the eventual closed down of Metal Refinery in 2012. Again, NEMA proceeded to transfer the EIA License to Max Industries Limited on 23rd April 2013 without addressing the environmental concerns already apparent.
123.
We have already outlined the responsibility that state organs have under Article 69 of the Constitution in relation to protection of the environment. NEMA in this regard has a myriad of duties under EMCA to safeguard the environment. In its enforcement capabilities under Section 117 of that Act, NEMA could order the immediate closure of any manufacturing plant or other establishment or undertaking which pollutes or is likely to pollute the environment contrary to the provisions of the Act and require the owner or operator of such establishment or undertaking to implement any remedial measures that an environmental inspector may direct; under Sections 108 -116, NEMA can order restoration and conservation of the environment. Part XIII of EMCA also outlines environmental offences, Section 141 and 142 makes it an offence for failing to manage any hazardous waste and materials and polluting the environment. Despite this huge mandate, it is discernable that NEMA was negligent in the conduct of its duties in the present case or as the ELC held, NEMA’s actions assisted Metal Refinery in breaching the law instead of holding them to account.
124.
As to whether there was a causal link between the actions of NEMA and the damage suffered by the 2nd -11th appellants, there is no doubt that NEMA’s actions and inactions provided the casual link between Metal Refinery’s negligence and the injury occasioned to the 2nd – 11th appellants. NEMA had on numerous occasions the opportunity to avert the discharges from the factory but it clearly failed on its mandate and this led to the unwarranted suffering occasioned to the residents of Owino-Uhuru Village. We therefore find that the Court of Appeal was right in holding that NEMA bore a greater responsibility and that NEMA and EPZA were the main actors in so far as the cause of deleterious activities were concerned with the liability of the other actors being either passive or reactive in relation to the pollution.
125.
We further note that the 2nd, 3rd and 4th respondents have advanced the argument that the negligence and inactions of Metal Refinery should not be placed on NEMA, EPZA, the Ministry of Health and the Ministry of Environment, Water and Natural Resources. We have in that regard already highlighted that the State and its organs and agencies can be responsible even to actions of private persons, and that the provisions of Articles 42, 69 and 70 of the Constitution bears both an individual and collective dimension. We also note that the superior courts imposed individual responsibility on each of the respondents and specifically on the 3rd respondent because it issued a mining license to Metal Refinery on 31st December 2006 whereas Metal Refinery had not obtained an EIA license. Under Section 103 of the Mining Act, the Cabinet Secretary is to issue a mining license where inter alia;
“
the applicant has obtained an approved environmental impact assessment and environmental management plan in respect of the applicant’s proposed mining operations”.
To the 4th respondent, the superior Courts held that it had an obligation under Sections 115 – 120 of the Public Health Act to have Metal Refinery remove any nuisance but it failed to do the same.
126.
As relates to mitigation of loss, mitigation measures are means to prevent, reduce or control adverse environmental effects of a project, and include restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means. Freshfields, Tolleys Environmental Law Tolley Publishing Company Ltd Issue 3 April 1998 states that the exercise of reasonable care, or even the highest standard of care to try to avoid the damage is not necessarily a defence. For example, the employment of diligent, well- qualified management and the installation of expensive state- of- the art effluent treatment systems will avail a company little if its routine discharges cause foreseeable discharges to a neighbouring property.
127.
EPZA on the above issue now submits that the appellate court failed to consider its actions in mitigation of the adverse effects on the environment by it failing to renew the license of Metal Refinery. EPZA did not however renew the license for one year i.e. 2006 – 2007 while Metal Refinery continued to operate within the EPZ zone for seven (7) years; and there is no evidence on record that EPZA tried to close down Metal Refinery due to lack of a license. We note that during the deliberations of the Public Complaints Committee under EMCA in PCC vs Metal Refinery Ltd PCC Complaint No. 22 of 2009, a Mr. Itegi from EPZA stated that Metal Refinery has a valid license expiring December 2009; this inconsistency from EPZA does not aid its defence on mitigation. EPZA clearly did not thus exercise reasonable care and its action of failing to renew a license for one year did not mitigate the loss occasioned. The temporary closures by NEMA and the actions of the 2nd, 3rd and 4th respondents in treating the residents of Owino- Uhuru Village did not equally avail much in mitigation. We have to restate that the state’s obligation is first precautionary before relying on the polluter pays principle which is not the case here.
128.
Upon arriving at the above findings we find no reason to disturb the Court of Appeal’s finding on liability.
c. Whether the Court of Appeal erred in its interpretation of Article 23 of the Constitution specifically the available remedies once a Court has determined that there was a violation of rights
129.
Article 23 of the Constitution provides the authority of courts to uphold and enforce the Bill of Rights. Article 23 (3) provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including-
a.
Declaration of rights;
b.
An injunction;
c.
A conservatory order;
d.
A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24.
e.
An order of compensation; and
f.
An order of judicial review. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/75/eng@2024-12-06 |
Petition E001 of 2024 | Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) (6 December 2024) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 6 December 2024 | 2,024 | Nairobi | Civil | Kwanza Estates Limited vs Jomo Kenyatta University of Agriculture And Technology | [2024] KESC 74 (KLR) | null | A. Introduction
1.
This Petition of Appeal dated 12th January, 2024, was filed pursuant to certification by the Court of Appeal (Nyamweya, Ochieng & Korir, JJ.A) in its Ruling dated 15th December 2023 as one involving a matter of general public importance under Article 163(4)(b) of the Constitution. The Petitioner seeks orders setting aside the Judgment and Order of the Court of Appeal (Sichale, Achode & Korir, JJ. A) in Civil Appeal No. 64 of 2022 delivered on 16th June 2023. The appellate court set aside the orders of the Environment and Land Court at Nakuru (D.O. Ohungo, J.) in ELCC No. E019 of 2020.
B. Background
2.
The parties herein entered into a lease agreement on 1st May 2010. The terms of the lease were that the petitioner agreed to lease to the respondent, Nakuru Municipality Block 9/90 and the building erected thereon, hereinafter the “suit premises” for a period of six (6) years, which expired on 30th April, 2016. After the expiry of the said lease, the parties entered into another lease agreement of the suit premises for a period of six (6) years, from 1st May 2016 to 30th April, 2022. The Respondent was to pay an increasing annual rent commencing Kshs.45,543,000/- and service charge quarterly in advance, clear of all deductions, and a 5% late payment would be incurred if the sum was not paid within 14 days.
3.
On 10th July 2020, the respondent issued a three (3) months’ notice to the petitioner intimating its intention to terminate the lease and vacate the premises. Upon expiry of the notice period, on 10th October, 2020, when the respondent commenced the process of vacating the suit premises, the petitioner restrained it from removing its property from the suit premises by placing security guards and goons at the entry and exits of the premises. Further, the petitioner proceeded to serve the respondent an invoice dated 19th October, 2020 for Ksh.15,776,973/- being rent for November 2020 to January 2021.
4.
Subsequently, through a letter dated the 6th November, 2020, the petitioner instructed Messrs Pyramid Auctioneers who issued a Proclamation for Distress of Moveable Property dated the 6th November, 2020 for the sum of Ksh.15,776,973/- and auctioneers’ fees of Kshs.1,577,697/-.
5.
The respondent ultimately vacated the premises on 31st January 2021 and despite vacating, the petitioner instructed Messrs Pyramid Auctioneers through a letter dated the 10th February 2021 to proclaim against the respondent’s properties for recovery of rent arrears in respect of the period of February 2021 to April 2021 for the sum of Kshs.17,659,138/-. The auctioneers issued a Proclamation for Distress of Moveable Property dated the 10th February 2021 for the sum of Kenya Shillings Kshs.16,053,762/- and auctioneer's fees of Kshs.1,605,376/-. Through a letter dated 8th February 2021, the respondent gave the petitioner notice for the formal handover of the premises and invited the petitioner through a letter dated 11th February 2021 for the formal handover which was to be done on 12th February 2021. The caretaker declined to participate in the handover exercise and upon conclusion of the exercise, a report was prepared. | i) Whether the respondent pleaded force majeure or frustration in order to be discharged from its agreement with the petitioner?
52.
In addition to the written submissions, Prof. Ojienda SC, Counsel for the petitioner submitted that the Court of Appeal misdirected and erroneously rewrote the terms of the lease in the interchangeable use of frustration and force majeure and the eventual finding that Covid-19 was a force majeure event. He submitted that parties are obligated to comply with the terms of their contracts and cannot unilaterally plead the effect of Covid-19 to depart from the terms of their contracts. He further contended that a party cannot use the plea of force majeure to depart from a contract unless they first prove that the contract provided for such a clause, or its possibility, and second that the supervening event was inter alia unforeseeable, insurmountable and external. It was urged that pursuant to Section 107 of the Evidence Act, the onus was on the respondent to demonstrate how Covid-19 frustrated its performance and obligations under the lease and it failed in this duty. He argued that there was no evidence submitted to the extent that the effects of the Covid-19 pandemic were sufficient to vary, to nullify or lead to a departure from the terms of the lease.
53.
Counsel further pointed out that the respondent did not cease to exist, rather it simply avoided its obligations under the lease and moved to another building about 100 meters away from the site of the contract. Mr. Konosi, the petitioner’s Counsel highlighted several decisions from various jurisdictions including Kenneth Tracy Vs. Lee James Men’s Wear Limited, Broadway LLC Vs. Blood Food LLC and East 75 Street Corporation Vs. Christian Lofting from the United States and the case of Gap Inc. Vs. Ponte Gadea and Porter Airlines from the Supreme Court of Canada to demonstrate that the courts have generally found that Covid-19 would not assist parties in avoiding their contractual obligations.
54.
Mr. Issa Mansur, Counsel for the respondent, submitted that there is distinction between force majeure and frustration. Force majeure is a contractual clause where the parties provide in a contract if the events specified in the clause occur, then performance is suspended or excused. Frustration on the other hand is by operation of law and has existed since 1864. For frustration to apply, there must be a supervening event that radically changes what was contemplated by the parties such that the performance is radically different. It is the performance of the contract that is frustrated and the frustration must not have been caused by one of the parties. A party in a claim of frustration pleads the facts and the courts decide whether the party has established frustration and whether further performance is discharged.
55.
He argued that the Court of Appeal in the case of Charles Mwirigi Miriti vs. Thananga Tea Growers Sacco Limited & Another [2014] eKLR set out five tests for a party to prove that the doctrine of frustration applies. It is this test that Mr. Mansur argued the trial court properly set out but then went off tangent and applied the principle that the courts in this Country cannot interfere with the contracts entered into by the parties. He urged that the Court of Appeal on the other hand properly considered the principles, applied them to the facts and reversed the decision of the Environment and Land Court. In the comparative analysis, Mr. Mansur highlighted that the doctrine of frustration is applied differently between the American and the English position.
56.
The terms "force majeure," "frustration," and "act of God" are frequently used interchangeably. However, it is important to note that while they are similar, as both force majeure and frustration result in discharging parties from contractual obligations, they are not one and the same. On the other hand, Black’s Law Dictionary, 11th Edition, at page 43 defines an “act of God” as follows:
“
An overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood or tornado. The definition has been statutorily broadened to include all natural phenomena that are exceptional, inevitable and irresistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight.”
57.
Force majeure is defined at page 788 as follows:
“
[Law French “a superior force”] (1883) An event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (eg. floods and hurricanes) and acts of people (eg. riots, strikes and wars)
Force majeure clause – a contractual provision allocating the risks of loss if performance becomes impossible or impracticable esp. as a result of an event or effect that the parties could not have anticipated or controlled.”
58.
While frustration is defined at page 812 as follows:
1.
The prevention or hindering of the attainment of a goal, such as contractual performance.
Commercial frustration An excuse for a party’s non- performance because of some unforeseeable and uncontrollable circumstance. Also termed economic frustration.
Self induced frustration. A breach of contract cause by one party’s action that prevents the performance. The phrase is something of a misnomer since self-induced frustration is not really a type of frustration at all but is instead a breach of contract.
Temporary frustration. An occurrence that prevents performance and legally suspends the duty to perform for the duration of the event. If the burden or circumstances is substantially different after the event, then the duty may be discharged.
2.
Contracts. The doctrine that if a party’s principal purpose is substantially frustrated by unanticipated changed circumstances, that party’s duties are discharged and the contract is considered terminated. Also termed frustration of purpose.”
59.
We find the decision in Pankaj Transport PVT Limited v SDV Transami Kenya Limited [2017] eKLR by the High Court (Ogola J.) to be of persuasive value as it expounded the doctrine of force majeure quite aptly. The doctrine of force majeure has its origin in French law where there are express force majeure provisions in the French civil code which excuse contractual performance where events have happened outside the parties’ control which could not have been foreseen at the time of contracting and which could not have been avoided by appropriate measures. The doctrine of force majeure has expanded to include events caused by both human actions and natural occurrences, defining situations beyond the control of parties that prevent them from meeting contractual obligations. Further, the interpretation the courts give is dependent on the choice of wording and events delineated by the parties in their contract.
60.
Notably, in Davis Contractors Ltd v Fareham Urban District Council (1956) 696 at 729 [Pages 9-50], it was highlighted that such events can hinder performance without fault from either party. Similarly, McCardie J in Lebeaupin v. Richard Crispin & Co. (1920) 2 KB 714, [Pages 51-63] noted that "force majeure" is frequently used in commercial contracts without a clear definition. Under French law, a party may be excused from performance if they can show the event was unforeseeable and insurmountable.
61.
A notable aspect of the force majeure doctrine is that while English Common law and American jurisprudence recognize similar principles, courts will enforce the force majeure doctrine only when it is explicitly stated in contracts. Put another way, if a provision is not made contractually by way of a force majeure clause, a party will only be able to rely on the very stringent provisions of the common law doctrine of frustration. Under English law, contractual performance will be excused due to unexpected circumstances only if they fall within the relatively narrow doctrine of frustration. This doctrine will apply by default unless the parties agree on something different in their contract.
62.
A summation of the above distinction leads us to the conclusion that an act of God refers specifically to the natural events that occur and can neither be prevented nor controlled by people. Force majeure applies to contracts to excuse further performance due to both natural disasters and human-caused events such as wars or strikes that prevent a contract from being fulfilled. It must be written into the contract, specifying what kinds of events would apply. Frustration is a common law doctrine which is implied into contracts to allow the discharging parties from further performance due to unforeseen event which makes it impossible to carry out the contract's main purpose, essentially altering the situation so much that the contract no longer makes sense.
63.
As demonstrated hereinabove the paths force majeure and frustration take are different. It is therefore crucial to determine which of the two was pleaded by the respondent and to do so , we have to examine the record.
64.
The respondent in its letter dated 10th July, 2020 wrote to the petitioner seeking to be discharged from the Lease Agreement. In particular the respondent stated that the intervening circumstances had made it financially untenable for it to continue with its tenancy. We reproduce part of the letter herein below:
As you may very well aware, Jomo Kenyatta University of Agriculture and Technology (JKUAT) like all other Public Universities in Kenya has been going through dire financial constraints in the recent times due to drastic fluctuations in Government support as well as a declining uptake of Programmes at the Campuses
This has been aggravated by the reduction of self-sponsored students following a Government directive on absorption of self-sponsored students as Government of Kenya students. Our Nakuru CBD campus was 100% dependent on self-sponsored students hence the unprecedented decline in student numbers.
The recent closure of the University on 18th March, 202o due to the Covid-19 pandemic as directed by the Government has further aggravated the cash-flow challenges the University is facing noting that most of the University income is pegged on revenues obtained from Academic operations.
The two issues highlighted above are unprecedented happenings that the Education sector had not foreseen. Consequently, the University found it financially untenable to continue with the tenancy at Kwanza House.
We therefore wish to notify you of our intention to terminate the lease agreement and vacate the said premises upon the expiration of a notice period of Three (3) months from the date of this letter.
We undertake to restore the building to a tenantable state of repair in accordance with clause 5.26 of the lease agreement which requires the Lessee to:.…”
65.
The respondent in its Amended Plaint dated 29th May, 2021 at paragraphs 13 and 14 pleaded frustration out of its prevailing circumstances and at paragraph 15 pleaded particulars of frustration as follows:
“
Particulars of Frustration of the Lease
a.
Change in law occasioned by implementation of a new placement policy by the KUCCPS where all students who attain the minimum entry requirement for admission to the university are sponsored by Government in both the private and public universities. This was done pursuant to Section 56 of the Universities Act, 2012 (the “Universities Act”).
b.
Reduced student enrolment occasioned by lack of self- sponsored students on account of the move by the government to fully sponsor all students who attain the minimum entry grade of C+.
c.
Reduced and/or non-existent government support which was critical to financing the operation of the Plaintiff.
d.
The emergence of the Covid-19 pandemic which resulted in the closure of schools and learning institutions.
e.
The lack of funds for the Nakuru CBD campus whose income and expenditure is wholly reliant on revenues obtained from academic operations from its self-sponsored students program.”
66.
The trial court noted that the respondent had urged that the lease had been frustrated and/or rendered commercially impossible and that the respondent ought to be discharged from it. This frustration stemmed from the operation of law or a change in the law in the implementation of government policy regarding placement and the Covid-19 pandemic.
67.
We note that the Court of Appeal when making a determination on the second issue of whether the lease had been frustrated by circumstances or the law, from paragraphs 38 to 43 analyses the principles of the doctrine of frustration juxtaposed against the circumstances of the present case. At paragraph 44, the Court of Appeal introduces the concept of force majeure and concluded as follows:
“
Consequently, it is our view that the pandemic was a force majeure event that caused the appellant undue difficulty in continuing with the lease agreement in accordance with its purpose and making the payments thereupon agreed.”
68.
We have perused the lease agreement between the parties and found that no force majeure clause is contained therein. Equally, there was consensus by Counsel for both parties that the lease between the parties did not contain a force majeure clause and that the respondent in its pleadings only pleaded frustration as opposed to force majeure.
69.
Consequently, it is clear to us that the question before the trial court as pleaded was on the applicability of the doctrine of frustration and not force majeure and the effect of the Covid-19 pandemic in the context of the contract.
ii. Whether the Covid-19 pandemic constituted a ground for discharging the respondent from its contractual obligations under the Lease agreement?
70.
The applicability of the doctrine of frustration is not new to our jurisdiction. As noted by the Court of Appeal in the present matter, the principles of the doctrine of frustration have been restated repeatedly and are now old hat. The doctrine of frustration has been applied severally by the Court of Appeal for instance in the cases of Kenya Airways Limited vs. Satwant Singh Flora [2013] eKLR, Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another [2014] eKLR and Five Fourty Aviation Limited vs Richard Oloka [2015] eKLR. The Kenyan Courts acknowledge that the doctrine of frustration, first established in Taylor v. Caldwell 122 Eng. Rep. 309 (1863), discharges parties from a contract when unforeseen events destroy the subject matter or render performance impossible without fault from either party. Further, modern interpretation, as articulated by Lord Radcliffe in Davis Contractors Ltd v. Fareham U.D.C. (1956) A.C 696, recognizes frustration where a contractual obligation becomes radically different due to external circumstances, beyond what was originally agreed. The doctrine aims to ensure fairness and mitigate the rigidity of strict contractual obligations but must be invoked cautiously.
71.
In summary, the doctrine of frustration releases parties from their contractual obligations when an unforeseen event fundamentally alters the nature of the contract, rendering further performance impossible or significantly different from the original agreement. Key principles include limitation to narrow circumstances, and reliance on events beyond the control or fault of the invoking party, the effect of bringing the contract to an end forthwith, without more and automatically. The final principle is the effect of fully discharging the parties from further liability under the contract from the moment the frustrating event occurs. Though accepted in civil law jurisdictions, the concept of partial discharge has been rejected in common law jurisdictions. This finds footing in the treatise Treitel on the Law of Contract, 11th edition para 50-07 it stated that:
“
…the contract is either frustrated or remains in force. There is no such concept as partial or temporary discharge frustration on account of partial or temporary impossibility…the concept of partial discharge in English law is restricted to obligations which are severable, whether in point of time or otherwise”
As a matter of logic, the doctrine of frustration operates to discharge a contract, bringing it to an immediate and definitive end. Once the doctrine is applied, the contract cannot be deemed suspended or temporarily inoperative; it is terminated entirely unless the parties expressly agree to revive it through a subsequent agreement.
72.
These are the principles that the Courts have applied time and again when asked to consider the plea of applying the doctrine of frustration. However, the doctrine of frustration is not absolute. The alleging party must prove that the frustrating event occurred without their fault or contribution. Self-induced frustration, where the event results from the party's own actions or breach, cannot be relied upon to terminate a contract.
73.
Turning back to the dispute at hand, the Covid-19 virus was first identified in December, 2019 and declared a global pandemic in March 2020. This Court in the case of Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR), as a matter of general public notoriety, took judicial notice of the fact that the Covid-19 pandemic was a public health emergency that affected not just Kenya, but the whole world.
74.
We acknowledge that the Covid-19 pandemic was an extraordinary and unprecedented global event that disrupted every facet of life, affecting economies, healthcare systems, and daily activities across the world. Never in modern history had governments been forced to implement such widespread lockdowns, travel restrictions, and social distancing measures to contain a virus. The scale and impact of the pandemic are often compared to the Spanish Flu of 1918, which similarly caused widespread devastation, killing millions globally. Covid-19 stood out as unique in its reach and the overwhelming strain it placed on societies, economies, and public health infrastructure, with the world grappling for solutions in real time amidst uncertainty.
75.
We equally acknowledge that the pandemic had an effect on landlords and commercial properties causing income losses due to missed rental income, increased vacancies, and depreciated property values as businesses closed or moved online. Landlords also faced legal challenges over the terms of leases as well increased costs for adopting safety measures. It is the effects of the Covid- 19 pandemic on the landlords and the tenants that we are called to balance in this appeal.
76.
Both parties invited the Court to consider decisions made on the effect of the Covid-19 pandemic to contracts by courts in other jurisdictions for their persuasive value. The cases presented by both parties reflect a broad application of the doctrines of frustration and impossibility of performance in contractual disputes, particularly in light of Covid-19 related disruptions. The petitioner highlighted several decisions, including Porter Airlines Inc. v. Nieuport Aviation Infrastructure Partners GP, 2022 ONSC 5922 (Supreme Court of Canada), where force majeure rather than frustration was central, and U.S. cases such as 1140 Broadway LLC v. Bold Food, LLC, 2020 WL 7137817, 35 East 75th Street Corp. v. Christian Louboutin L.L.C., 2020 WL 7315470, and The Gap Inc. v. Ponte Gadea New York LLC, 2021 WL 861121 where the New York Courts emphasized that financial hardship alone does not meet the threshold for frustration of purpose. In In re: CEC Entertainment, Inc., No. 20-33162, 2020 WL 7356380, the U.S. Bankruptcy Court distinguished frustration from force majeure, holding that government restrictions alone were insufficient to discharge contractual obligations. The South African case Slabbert N.O. & Others v. Ma-Afrika Hotels t/a Rivierbos Guest House, (772/2021) [2022] ZASCA 152, found that impossibility due to government restrictions was temporary, and obligations resumed once restrictions were lifted. Similarly, the Irish case Kenneth Treacy v. Lee James Menswear Limited and James O’Regan, [2022] IEHC 600, concluded that financial hardship due to the pandemic did not absolve rental obligations.
77.
The respondent equally pointed on to several cases including Newbury, LLC v. Caffe Nero Ams Inc., No. 20184 CV01493-BLS2, 2021 WL 956069 where the Massachusetts Superior Court held that frustration was recognized when government orders temporarily rendered a lease’s purpose impossible. Similarly, in Development LLC v. Brooklyn Babies and Toddlers LLC, No. 510160/2020 the Appellate Division of the Supreme Court of the State of New York held that the impossibility doctrine applied because government measures directly prevented contract performance. While in the cases of Fitness Int’l LLC v. National Retail Props LP, 25 Wash. App. 2d 606, 524 P.3d 1057, 1065 (2023), and AGW Sono Partners, LLC v. Downtown Soho, LLC, 343 Conn 309, 273 A.3d 186 (2022), the Courts in the US states of Washington and Connecticut underscored the narrow application of frustration, emphasizing that contracts remain enforceable if alternative uses or partial performance are possible. What we note from these cases is that across jurisdictions, the courts underscore the stringent criteria required to invoke frustration or impossibility to discharge contractual obligations, striking a delicate balance between fairness and contractual certainty.
78.
We see no reason to depart from the principles of the doctrine of frustration as expressed in common law and applied by the courts in Kenya. As the various courts have cautioned time and again, it is a doctrine that must not be lightly invoked by parties or lightly applied by the courts. Where parties have provided for it in their agreement, then it is for the court to look at the agreement before applying the doctrine of frustration. However, where the parties have not made provision for this doctrine, then the courts fall back on common law and the parameters we have set out in the preceding paragraphs.
79.
Applying these parameters to the current matter, we note that the Covid-19 pandemic caused an exceptional disruption to educational institutions around the world. In response, governments were grappling for solutions in real-time amidst uncertainty and Kenya was no different. The most effective solution which was replicated the world over was government-mandated lockdowns and health measures forcing the temporary closure of all learning facilities.
80.
The virus was confirmed to have reached Kenya on 12th March 2020 with the initial cases reported in the capital, Nairobi and in the coastal area of Mombasa. On 15th March, 2020 the government directed all schools and higher learning institutions be closed from 20th March, 2020 until further notice. On 6th June, 2020, the Government announced that schools would begin to reopen gradually from 1st September, 2020.
81.
It was during this intervening period that the respondent issued its notice of termination on 10th July 2020. Among the reasons the respondent cited was the ‘the reduction of self-sponsored students following a Government directive on absorption of self-sponsored students as Government of Kenya students. Our Nakuru CBD campus was 100% dependent on self-sponsored students hence the unprecedented decline in student numbers.’
82.
The Court of Appeal noted that the change in law and policy as well the implementation of the government directives prior to signing the impugned lease agreement had not affected the respondent’s operations. This was demonstrated by the fact that the respondent was able to maintain its Nakuru CBD campus without a hitch until the year 2020, when it appears that the campus ran into financial trouble following the closure of the universities by the government directive due to the Covid-19 pandemic.
83.
The principle of pacta sunt servanda is one of the oldest most fundamental principles of international law that requires parties to honour their agreements and obligations. This is why the doctrine of frustration is interpreted narrowly to maintain the certainty of contracts. It is only when the frustration is substantial and the contract’s purpose becomes meaningless, that the courts should step in to apply the doctrine of frustration and discharge the parties. This intervention is intended to provide reprieve to a party where it would be unjust and unreasonable to hold them to their contract. Further, as is evident from the cases we have cited and expounded on hereinabove, a party is not absolved from performing their obligations under a contract simply because it has become more expensive or more difficult.
84.
We acknowledge that the respondent entered into the contested lease agreement to teach and train self-sponsored students. Additionally, the respondent's Nakuru CBD campus was heavily dependent on income from self- sponsored students. During the lockdown, the respondent, like many other higher learning institutions, was forced to close its doors albeit temporarily.
85.
The temporary closure of institutions of higher learning by the Government caused the respondent some financial hardship. However, we are of the considered view that this did not amount to an absolute impossibility of performance in the legal sense, especially once restrictions eased and the respondent, along with all learning institutions reopened and resumed normal learning. This is well demonstrated by the fact that once it vacated the petitioner’s premises, the respondent moved to another location within Nakuru City. It is a pertinent demonstration of the fact that the pandemic and lockdown measures by the government did not amount to the impossibility of performance. Further, the government restrictions did not bar the respondent entirely from teaching and training self-sponsored students, but only from using the traditional method of in-person teaching. One of the positives from the pandemic was the significant shift towards moving services online, and education was no different.
86.
As a result, we are of the considered view that financial hardship alone, even one stemming from an extraordinary event like the Covid-19 pandemic, does not automatically discharge a tenant’s rental obligations. Consequently, this Court arrives at a conclusion that in the circumstances of the present appeal, the Covid-19 pandemic did not constitute a frustrating event, that would allow the respondent to be discharged from further performance under the lease.
87.
Before closing, we must address the issue concerning the respondent’s notice of termination dated 10th July 2020 and subsequently vacation of the suit premises on 31st January 2021 that was in issue. We note this was not one of the issues that was certified as concerning general public importance. However, flowing from our finding hereinabove, its consideration is corollary to the main issues.
88.
The petitioner contends that the lease did not contain a termination clause, thus making the notice invalid. The respondent, in opposition, makes two key arguments. First, the respondent argues that the phrase "sooner determination" in the lease agreement is clear and unambiguous. It should be interpreted in its ordinary, literal sense, meaning the contract could end earlier than its full term under certain conditions. Second, the respondent using the doctrine of pari materia, arguing that the Court should interpret the lease in harmony with related laws. Specifically, Section 57(4) of the Land Act Cap 280 is cited. It provides that in a periodic tenancy, where no termination notice provision exists, either party can terminate the tenancy by giving notice equivalent to the tenancy period. This argument suggests that the lease agreement should be read to allow termination under similar conditions, aligning with this statutory provision.
89.
We note that Clauses 5.5, 5.27, 5.36 and Clause 7.10 of the Lease contained the phrase “or sooner determination” and from this, the respondent asks us to make a finding that the contract could end earlier than its full term under certain conditions. The trial court found that having perused the lease, it did not come across any termination clause. The appellate court held that the contract contents should be read in context and not as separate clauses rather as clauses that make up a whole. The Appellate Court on the hand concluded that the effect of the phrase “or sooner determination” in those clauses, was to allow the parties to opt out of the lease agreement prior to the fixed term of the lease and therefore, the trial Judge erred in finding that the phrase did not amount to a break clause entitling the parties to determine the contract before the expiry of the lease term.
90.
We are minded differently. The phrase “or sooner determination” may hint atsome intention that there was some possibility of the Lease terminating sooner than the expiry date. However, in the absence of a termination clause, this intention failed to crystallize and to our minds, the intention is neither clear nor unambiguous. From this one phrase, we are unable find that the parties intended to give themselves an exit window out of the agreed terms upon change of circumstances and we must look elsewhere to find an answer.
91.
Commercial leases in Kenya are governed by the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act which was enacted in 1965 for the purpose of ‘the protection of tenants of such premises from eviction or from exploitation’. It creates controlled tenancies defined under Section 2(1) of the Act as arising when the lease is not in writing, or if it is in writing, contains a provision for termination or is for a period of less than five years.
92.
In controlled tenancies, the law severely curtails the landlord. According to Section 4 (2), (4) and (5), the party intending to terminate the lease must issue a termination notice, providing at least two months' notice to the other party. The receiving party then has one month to respond, indicating whether they intend to comply with the notice. Additionally, the termination notice cannot take effect unless it specifies the grounds upon which the requesting party seeks the termination. Further, a tenant may challenge such notice by filing a reference with the Business Premises Rent Tribunal. In such cases, the notice will not take effect until the Tribunal determines the reference, as stipulated under Section 6(1). During this process, the tenant is entitled to remain in occupation, paying the same rent, until the reference is resolved.
93.
Mr. William Maema, a senior legal practitioner in Kenya, in an article titled Kenya's archaic commercial leases law now ripe for repeal published in the Business Daily on 12th June, 2018 questioned the relevancy of the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act which was enacted in 1965 in today’s economy. He contended that the statute no longer serves the interests of both the landlords and the tenants. On the one hand the owners of commercial properties, through the ingenuity of their lawyers, devised ways of ensuring that the leases avoid the application of the Act to their properties. They achieve this by drafting commercial leases in way that all the elements of a controlled tenancy as defined by the Act are excluded. Two key features of this ingenuity is that such leases have no termination clause and will run for a term exceeding five years. This enables landlords to operate outside the Act with the ability to take actions which would otherwise be prohibited under the Act. On the other hand, the tenants who the statute was intended to protect are forced to enter into long-term commercial leases, which they cannot terminate on a need basis.
94.
The impugned lease in this instant appeal appears to be one such lease, which has been crafted in such a manner as to avoid the application of the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act. It is likely the reason why the respondent’s counsel requests the Court to apply Section 57 of the Land Act, Cap 280 Laws of Kenya. Section 57(1) (a) and (b) provides that where the term of a lease is not specified, and there is no provision of notice for termination, then it is deemed as a periodic lease, and the implied notice period is taken to be the periodic basis of payment of rent. The provisions provide as follows:
“
(a)
the term of the lease is not specified and no provision is made for the giving of notice to terminate the tenancy, the lease shall be deemed to be a periodic lease;
(b)
the term is from week to week, month to month, year to year or any other periodic basis to which the rent is payable in relation to agricultural land the periodic lease shall be for six months;”
95.
In such cases, Section 57(4) provides that a period tenancy may be terminated by either party giving notice to the other, the length of which is to be not less than the tenancy period. As we understand it, this means that either the landlord or the tenant can end the tenancy by giving a notice period at least as long as the period of the tenancy. For example, if it’s a monthly tenancy, at least one month's notice is required or for a weekly tenancy, at least one week's notice is needed.
96.
Applying this provision to the circumstance of this appeal, the respondent was to pay an increasing annual rent commencing Kshs.45,543,000/- and service charge quarterly in advance. Going by the provision in Section 57(4) of the Land Act, then the respondent should have given a three-month notice to the petitioner. On 10th July 2020, the respondent issued a three-month notice to the petitioner intimating its intention to terminate the lease and vacate the premises. That notwithstanding, the respondent did not reference or rely on this legal provision in its notice to the petitioner. Instead, its reliance on this provision appears to be a mere afterthought, used retroactively to justify the termination of the lease.
97.
Further, as we have found, the impugned lease lacked a termination clause, making the respondent’s actions constitute a unilateral termination. By proceeding with a unilateral termination, the respondent effectively breached the terms of the lease, rendering the termination notice void.
98.
Finding the termination notice to be void, and the respondent having vacated the suit premises in January, 2021, thereby breaching the lease, what remedies lie to the petitioner?
iii) Whether the appellant is entitled to the reliefs sought?
99.
As we have pointed out, the lease was operating outside the ambit of the the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act. We therefore look to case law to find an appropriate remedy. The Environment and Land Court in the present appeal relied on the decision of the Court of Appeal in Kenya Commercial Bank Limited vs. Popatlal Madhavji & another [2019] eKLR where the appellate court held that termination of a lease without a termination clause is not possible and therefore the tenant was obligated to continue to occupy the suit premises for the entire period of the lease and pay the agreed rent. The Court held as follows:
“
But having found as we have above that an agreement to lease for a period of 5 years and 3 months had resulted from the terms outlined in the letter of 23rd December 1998 and the ensuing correspondence, the appellant was bound to a lease term of a period exceeding five years, which removed it from the ambits of Cap 301. This meant that termination of the lease mid-term was not available to the appellant. The consequence of this was that the notice of termination of 25th March 2002 could not validly terminate the lease, with the result, we find that, the appellant was obligated to continue to occupy the suit premises for the entire period of the lease, and to pay the agreed rent and service charge for the period upto the date of expiry, that being the 31st December 2003.”
100.
The Court of Appeal, in the present appeal, held that the trial court fell into error in condemning the respondent to making rental payments for the entire duration of the lease when it was no longer using or benefiting from the premises due to forces beyond its control.
101.
We note that two cases from the High Court are also often cited when dealing with this issue. In the case of Chimanlal Meghji Shah & Another vs. Oxford University Press (EA) Limited [2007] eKLR, the High Court (Warsame J. (as he then was)) ruled that it is unconscionable for a landlord to demand full rent for the remaining part of the lease period when such lease has been terminated. This is because the landlord reserves the right to offer the same premises to a different tenant for occupation. The Court went on to hold thus:
“What happens if the tenant cannot afford to pay the rent agreed and he wants to vacate the premises? What happens if the market is depressed and due to that economic depression, the tenant is unable to meet his obligation? It is because of such circumstances that landlords of premises vacated by tenants are required to look for other tenants. The landlord cannot perpetually wait and waste the premises simply because he had a fixed lease with no termination clause.”
102.
While in the case Indar Singh Limited vs Star Times Media Company Limited [2021] eKLR, the High Court (Majanja J.) held that a tenant cannot unilaterally terminate a fixed-term lease that has no termination clause. However, the defendant could not be forced to continue the occupation of the leased premises if it had decided to vacate citing the inability to meet its rental obligations. Therefore, while dismissing the plaintiff’s prayers, the court held that the plaintiff’s only remedy, in this case, would be a claim for damages for breach of the contract. The court specifically held as follows:
“
Even if the defendant had not terminated the lease and vacated the suit property as at the time this suit was brought, I would still not have granted the injunctive orders sought by the plaintiff. I am in agreement with the plaintiff that a tenant cannot unilaterally terminate a fixed term lease which has no termination clause. However, I have not come across any authority in support of the plaintiff’s contention that a tenant in a fixed term lease who is unable to pay rent to a landlord can be forced by the court to continue in occupation of the leased premises if it has decided to vacate citing inability to pay rent. In my view, the court cannot compel a tenant to continue in occupation of leased premises even if the tenant has no valid reason for vacating the premises. The plaintiff’s remedy in my view is in damages for breach of contract if it proves that the termination of the lease by the defendant was unlawful. Its remedy does not lie in compelling the defendant to continue in occupation of the suit property against its wishes.”
[Emphasis ours]
103.
The issue remaining largely unsettled, it now falls to us to find the way forward regarding how to go about the termination of a lease for a fixed term without a termination clause.
104.
We find persuasive value in the Court of Appeal’s finding in the case of Kasturi Limited vs. Nyeri Wholesalers Limited [2014] eKLR where it very aptly held that: “A tenant cannot impose or force him/herself/itself on a landlord.” The converse is equally true that a landlord cannot impose or force themselves on a tenant. This delicate balance is the cornerstone of harmonious co-existence and mutual respect in the rental world.
105.
Similarly, as Warsame J. (as he then was) articulated in Chimanlal Meghji Shah & Another v Oxford University Press (EA) Limited (supra) , we concur that it is unconscionable to compel a tenant to continue in occupation of a premises or for a landlord to demand full rent for the remaining portion of the tenancy when the tenancy has been terminated and the tenant vacated the premises. Both parties bear a responsibility to mitigate any losses incurred. Whereby landlords should actively seek new tenants to minimize potential financial harm, tenants must communicate any challenges that may affect their ability to fulfill their lease obligations. This mutual duty to mitigate loss underscores the importance of collaboration in navigating contractual challenges. This duty to mitigate was elaborated in African Highland Produce Limited v John Kisorio [2001] eKLR, where the Court of Appeal held that;
“
It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues, and he cannot claim as damages any sum which is due to his own neglect.”
106.
The duty to mitigate arises as soon as the injured party realizes an interest has been injured. They must act in the interest of both parties, provided this does not require them to suffer additional injury or engage in unreasonable expenditure or speculative litigation. Whether the actions in mitigation are reasonable depends on the specific facts of each case, with the burden of proving failure to mitigate resting on the defendant (See African Highland Produce Limited v John Kisorio [2001] eKLR, citing Halsbury's Laws of England, Vol. 11, Page 289, 3rd Edn 1955).
107.
For avoidance of doubt, it is our considered finding that, where the parties are compelled to disengage without mutual agreement, resulting in the termination of the lease either by the tenant vacating the premises voluntarily or by eviction initiated by the landlord, this shall be deemed a breach of contract. Consequently, we take the position that, notwithstanding the absence of a termination clause, it would be unconscionable to compel a tenant to remain in premises they no longer wish to occupy. Equally, it would be unreasonable to claim rent for the unexpired lease term after the tenant has vacated. Therefore, the remedy for such termination is rent due up to the date of vacating and damages for breach of contract. In such a case, the remedy is for the party responsible for the breach to be liable to pay damages.
108.
It is a well-established principle of law that damages for a breach of contract aim, subject to mitigation, to restore the claimant to the position they would have been in had the breach not occurred. This principle, known as restitutio in integrum, underscores the compensatory nature of contractual damages. Kenyan case law has consistently affirmed this approach, as seen in Kenya Industrial Estates Ltd vs. Lee Enterprises Ltd (NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR) and Kenya Breweries Ltd v Natex Distributors Ltd (Milimani HCCC No. 704 of 2000 [2004] eKLR).
109.
However, it is equally established that general damages for breach of contract are not awardable in addition to quantified or special damages. The legal position on this issue was first stated in Dharamshi v Karsan [1974]
EA 41 by the Court of Appeal for East Africa and restated several times by the Court of Appeal in subsequent cases including Postal Corporation of Kenya v Gerald Kamondo Njuki t/a Geka General Supplies NRB CA Civil Appeal No. 625 of 2019 [2021] eKLR. The measure of damages follows the rule established in Hadley v Baxendale (1854) 9 Exch.341, which holds that damages should encompass losses arising naturally from the breach itself or those reasonably foreseeable by both parties at the time the contract was formed. This principle has been adopted in Kenyan jurisprudence, as demonstrated in Standard Chartered Bank Limited vs. Intercom Services Ltd & Others, NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR. Such damages are special damages, which must be specifically pleaded and proven, a requirement reiterated in Coast Bus Service Ltd vs. Sisco Murunga Ndanyi & 2 others (NRB CA Civil Appeal No. 192 of 92 (UR)) and Charles C. Sande v Kenya Co-operative Creameries Ltd (NRB CA Civil Appeal No. 154 of 1992 (UR)).
110.
Applying these principles to the present circumstances, the petitioner argued that the respondent was obligated to continue paying rent for the lease term ending on 30th April 2022, and sought Kshs.162,469,481/- in financial losses as damages. This amount included Kshs.97,817,231/- for rent due until lease expiry and Kshs.64,652,250/- for premises restoration.
111.
The respondent vacated the premises on 31st January 2021, with a year and two months (14 months) remaining on the lease. Had the respondent not vacated the property, then the petitioner would have received the rent for these 14 months. However, we cannot turn a blind eye to the inordinate period that is 14 months that the respondents would have been expected to pay rent for premises that it was not in occupation of. Therefore, invoking the principles of mitigation, we find that it was the petitioner’s obligation to attempt and endeavour to market and find an alternative tenant for the suit premises rather than let the premises lie unoccupied for a period of 14 months. It is why, in exercise of our discretion, while also considering that we cannot predict the future, we find it reasonable to limit the petitioner’s claim to rent for a three- month period. We consider this time sufficient to conduct necessary renovations and actively market the premises to prospective tenants in a competitive market.
112.
Applying the principles of equity, we must strike a balance between the interests of the petitioner and those of the respondent. This is why, during our perusal of the record before the Court, the issue of the security deposit appears to have fallen through the cracks of the case. The security deposit for rent of Kshs.11,385,750 was paid by the respondent in accordance with Clause 3.3 of the initial Lease and by agreement, the same was applied to the impugned lease. Despite being raised by the respondent the issue was not given due consideration by the Environment and Land Court. The security deposit is a crucial component in commercial leases, serving as a financial safeguard for the landlord against potential losses or damages associated with tenant occupancy. Conversely, for tenants, the security deposit is a refundable asset, incentivizing them to maintain the premises and adhere to lease terms to recover the amount upon lease termination. Accordingly, we must give it due regard in crafting a remedy which balances the interests of both parties.
113.
While the petitioner sought damages for breach of contract, any such assessment should reflect reasonable mitigation efforts. Exercising our powers under Section 21 of the Supreme Court Act to make any orders or grant any relief that could have been made or granted by a court or tribunal of first instance, we make the following assessment. It is our considered opinion that the petitioner’s claim of Kshs.162,469,481/- is excessive for two main reasons. Firstly, the respondent agreed to pay Ksh.40,000,000/- for restoring the premises as per the consent recorded on 2nd June 2021 before the Environment and Land Court. Secondly, under the mitigation principle, we hold the view that it would have been unreasonable for the petitioner to wait over a year without securing a new tenant. As stated hereinabove, we consider three months to be a reasonable timeframe for renovations and re-leasing efforts by the petitioner.
114.
The respondent vacated the premises on 31st January 2021, with three months remaining in the lease year ending on 30th April 2021. According to the lease, the annual rent for this period was Ksh.55,357,799/-, making the prorated rent for February, March, and April 2021 Ksh.13,839,449.75. We therefore award the petitioner three months’ rent, totalling Ksh.13,839,449.75, minus the security deposit of Ksh.11,385,750/-. After deducting the security deposit, the final amount awarded is Ksh.2,453,699.75.
115.
Briefly addressing the question of VAT, on further perusal of the record, we note that the appellant failed to plead the issue of Value Added Tax in its statement of defence and counterclaim. That notwithstanding, our award pertains not to rent arrears, but rather to an award of damages. Consequently, the issue of VAT falls by the wayside.
C. Costs
116.
In the circumstances and for the reasons given above, the appeal is partially successful. In line with our decision in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to order that parties bear their own costs. Accordingly, in this instance, we find that what commends itself to us is that we direct each party to bear its own costs. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/74/eng@2024-12-06 |
Petition (Application) E024 of 2023 | Nairobi Bottlers Limited v Ndungu & another (Petition (Application) E024 of 2023 & Application E030, E034 & E038 of 2023 (Consolidated)) [2024] KESC 73 (KLR) (6 December 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim | 6 December 2024 | 2,024 | Nairobi | Civil | Nairobi Bottlers Limited vs Mark Ndumia Ndungu, Coca Cola Central, East & West Africa Limited | [2024] KESC 73 (KLR) | null | Before the court are four motions filed by Mark Ndumia Ndungu, the 1st respondent/applicant, arising from the decision of this court in a Taxation decision delivered on August 30, 2024. These motions seek similar orders and are addressed collectively in this ruling to save judicial time. The motions, filed on September 5, 2024, concern Petition No E024 of 2023 and Applications Nos E030, E034, and E038 of 2023. The 1st respondent/applicant seeks to set aside or review the Taxing Officer’s decision regarding instruction fees and other items related to the definition and application of "folios." The applicant challenges the Taxing Officer’s findings, which include disagreements on the taxed instruction fees for various applications. | The 1st respondent/applicant disputes the taxed instruction fees and other items in the bill of costs dated November 29, 2023. Specifically, the applicant claims that the Taxing Officer failed to account for several factors, such as the high compliance costs and the complex nature of the case. The applicant argues that the instruction fees were taxed too low, particularly in the context of a significant consumer rights issue involving the appellant/respondent.
In reviewing the applications, the Taxing Officer’s decisions regarding instruction fees for various petitions and applications are scrutinized. The Taxing Officer’s discretion in determining fees is grounded in the Supreme Court Rules, 2020, particularly Paragraph 9(2) of the Third Schedule, which provides for the consideration of several factors when determining the reasonableness of fees. The court emphasizes that taxation is not a mathematical exercise and must consider the nature of the appeal, the amount involved, and the complexity of the issues at hand.
The 1st respondent/applicant's objections regarding the taxation of instruction fees and the definition of "folio" are also discussed. The court finds that while the Taxing Officer applied the "folio" definition in a manner that could be updated, the Taxing Officer’s approach to instruction fees was reasonable and justified. The court upholds the Taxing Officer’s decisions on the instruction fees for Applications Nos E030, E034, and E038 of 2023, deeming them fair and in accordance with legal standards.
Finally, the court remits the bill of costs to the Taxing Officer for the purpose of reconsidering other contested items related to "folios," ensuring that the sums are reasonable and aligned with the Supreme Court Rules. The ruling partially supports the 1st respondent/applicant’s motions, leading to a mixed outcome for the parties involved. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/73/eng@2024-12-06 |
Application E024 of 2024 | Kithangari & 4 others v Mutahi (Application E024 of 2024) [2024] KESC 72 (KLR) (29 November 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko | 29 November 2024 | 2,024 | Nairobi | Civil | Alex njue Kithangari,Muriithi Kithangari,Peterson Mugo Kithangari, Njeru Tetu,Kathangari king'angi
vs Benson Gichohi Mutahi | [2024] KESC 72 (KLR) | null | The applicants sought leave from the Supreme Court to file their Notice of Appeal out of time after the Court of Appeal's decision on June 7, 2024, overturned a ruling in their favor. The Court of Appeal had previously upheld the applicants' counterclaim, but its judgment in Civil Appeal No. 105 of 2021 at Nyeri reversed this decision. Dissatisfied with the Court of Appeal's ruling, the applicants intended to appeal to the Supreme Court but failed to meet the 14-day filing requirement for the Notice of Appeal as outlined in rule 36(1) of the Supreme Court Rules, 2020. They applied for an extension of time on August 28, 2024, citing delays due to the inaction and unresponsiveness of their legal representatives, leading them to change counsel multiple times. The respondent opposed the application, arguing that the delay was unjustified and inordinate. | The Supreme Court evaluated the application based on the principles for granting extensions of time. These principles include the following considerations:
Equitable Remedy: Extension of time is not a right but an equitable remedy available at the court's discretion.
Burden of Proof: The applicant must demonstrate to the satisfaction of the court that there is a valid reason for the delay.
Reasonable Cause: The court examines whether the delay is justifiable and whether there was due diligence in pursuing the case.
Prejudice to Respondents: The court considers whether granting the extension would cause undue prejudice to the respondent.
Timeliness: The application should not be unduly delayed, and in some cases, public interest factors should also be considered.
In this case, the applicants claimed the delay was caused by their advocates' inaction. However, the Court found that no credible evidence supported these claims, and the applicants failed to show any proactive efforts to follow up with their advocates. The delay was deemed inordinate, lasting 68 days beyond the filing deadline, and no sufficient justification was provided.
Given these findings, the Court dismissed the application for an extension of time and ruled that the applicants had not demonstrated compelling reasons for the delay. The applicants were reminded that responsibility also lies with them to ensure their cases are pursued diligently, even when represented by counsel.
As a result, the application was dismissed, with each party ordered to bear their own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/72/eng@2024-11-29 |
Application E001 of 2024 | Mohamed v Diamond Trust Bank Kenya Ltd & another (Application E001 of 2024) [2024] KESC 71 (KLR) (29 November 2024) (Ruling) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 29 November 2024 | 2,024 | Nairobi | Civil | Mohamed v Diamond Trust Bank Kenya Ltd & another | [2024] KESC 71 (KLR) | null | Before this Court are two applications filed by the Applicant. The first is an Originating Motion dated 11th January 2024 and filed on 25th July 2024, seeking to review the decision of the Court of Appeal, which declined to certify the applicant’s intended appeal to this Court. The intended appeal concerns the judgment delivered on 14th April 2023 in Civil Appeal No. E074 of 2021 (Diamond Trust Bank Limited vs. Fuad Mahmoud Mohamed & Diamond Trust Insurance Agency Ltd). The applicant seeks certification for an appeal that raises matters of general public importance.
The second application is a Notice of Motion dated 17th July 2024, filed on 25th July 2024, seeking leave to amend the Originating Motion. This ruling will dispose of both applications, which are correlated, in order to save judicial time.
Upon reviewing the Originating Motion filed pursuant to Article 163(4)(b) and (5) of the Constitution, and Sections 15(1) & 16(2) of the Supreme Court Act 2011, the applicant raises several questions for determination:
Whether the applicant is entitled to leave to appeal to the Supreme Court following the dismissal of its appeal from the Court of Appeal.
Whether, based on the facts and circumstances set out in the application, a substantial miscarriage of justice would occur if the applicant were locked out of the appellate process.
Whether the Court of Appeal's decision refusing certification should be reviewed.
Costs. | Upon considering the averments in the supporting affidavit of Fuad Mahmoud Mohamed, the applicant argues that the case involves issues of general public importance, such as the duties and obligations in a bancassurance arrangement. Despite the Court of Appeal’s finding that bancassurance was not sufficiently pleaded, the applicant believes that the issue is of significant public interest and seeks the Court's review of the certification.
The 1st respondent, through a replying affidavit sworn by Faith Ndonga, opposes the application, arguing that the application for certification before the Court of Appeal was filed out of time, rendering it incompetent. The 1st respondent further argues that the Court of Appeal correctly determined that the issue raised by the applicant does not transcend the contractual matter at hand and is not of general public importance.
Additionally, the applicant seeks to amend the Originating Motion to specify the points of general public importance. The proposed amendments include clarifying whether a bank offering bancassurance services owes a duty of care to its customers and the legal status of a judgment that proceeds without a critical document.
The 1st respondent opposes the amendment, citing an inordinate delay and arguing that it lacks a statutory basis. The respondent claims that the amendments aim to address weaknesses in the original application and will prejudice the 1st respondent.
Upon considering the applications, responses, and opposing arguments, we first address the propriety of the substantive application for review of certification. We observe that the application for review was filed well beyond the 14-day window stipulated under Rule 33(2) of the Supreme Court Rules. The applicant filed the Originating Motion on 17th January 2024 and presented the physical copy on 25th July 2024, a delay of approximately six months.
Rule 12 of the Supreme Court Rules requires pleadings to be filed in both printed and electronic form, and in case of inconsistency, the printed copy prevails. The applicant’s failure to meet this requirement and seek an extension of time renders the Originating Motion improperly filed.
Moreover, the applicant did not seek leave for an extension of time for filing the Originating Motion. As per Rule 4 of the Court’s Rules, a party must apply for an extension of time before proceeding. Given that the motion is not properly on record, it is unnecessary to delve into the merits of the appeal or the certification issue.
In light of the above, we find that the Originating Motion is not properly before the Court and must be struck out. Consequently, the application to amend the Originating Motion also fails.
Regarding costs, we adopt the principle that costs follow the event. However, considering the circumstances of this case, each party shall bear its own costs.
Orders:
The Originating Motion dated 11th January 2024 and filed on 25th July 2024 is hereby struck out.
The Notice of Motion dated 17th July 2024 and filed on 25th July 2024 is hereby dismissed.
No order as to costs. | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/71/eng@2024-11-29 |
Petition (Application) 5 of 2017 | British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners) (Petition (Application) 5 of 2017) [2024] KESC 68 (KLR) (22 November 2024) (Ruling) | null | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 22 November | 2,024 | Nairobi | Civil | British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners) | [2024] KESC 68 (KLR) | null | Upon perusing the Notice of Motion dated 17th July 2024 and lodged before this Court on 21st August 2024, the Applicants sought the following orders:
a. To be enjoined as parties in the matter and designated as "Intervener/Applicant" in Supreme Court Petition No. 5 of 2017 for the purpose of applying for a review of the judgment made on 26th November 2019, in accordance with Section 21A of the Supreme Court Act Cap 9B, Laws of Kenya. b. That the costs of the application be provided for.
The affidavit in support of the motion, sworn by James Gicheru Kariuki, and written submissions both dated 17th July 2024, indicated that the applicants sought to be enjoined in the matter to apply for the review of the judgment of 26th November 2019. Their petition to the Chief Justice had been referred to the Office of the Ombudsman, which after analyzing the petition, advised them to move the Court accordingly. The applicants argued that only a party to the proceedings could apply for a review of the judgment and that they should be enjoined as parties for this purpose to reveal some concealed statutory provisions. | In considering the application, the Court took into account the case of British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others, where the guidelines for public participation were set out, and the Court upheld the decision of the Court of Appeal. The Court also noted that the judgment of 26th November 2019 upheld the Regulations and the Tobacco Act provisions as constitutional, and did not violate any rights of the appellants or tobacco industry players.
Upon reviewing the applicable laws and rules, the Court determined the following:
Supreme Court Act and Rules: The Supreme Court Act 2011 and the Supreme Court Rules 2020 provide two instances for a party to be enjoined in Supreme Court proceedings. Rule 19 allows for amici curiae (friends of the Court) to participate based on expertise, impartiality, or public interest. Rule 24 permits the joinder of interested parties, with certain conditions, including the application being filed within seven days of the response to the proceedings.
Enjoining as an Intervener: The Court noted that the Supreme Court Act and Rules do not contemplate a situation where a party can be joined as an intervener after the final decision of the Court. The Rules and the Practice Directions are clear that amicus curiae or interested parties must apply during the proceedings, not after the judgment is rendered.
Failure to Show Prejudice or Grounds for Review: The applicants failed to demonstrate the grounds they intended to advance in seeking a review of the judgment, apart from alleging concealed statutory provisions. They also failed to show any prejudice they would suffer if their application was denied.
Misguided Application: The application was deemed misguided, frivolous, and an abuse of the court process. It was filed almost five years after the judgment was rendered, and no response had been filed by the respondents.
Conclusion
For the reasons outlined, the Court dismissed the applicants' Notice of Motion with no order as to costs, given that the motion was unopposed.
Orders:
The Applicant’s Notice of Motion dated 17th July 2024 and filed on 21st August 2024 is hereby dismissed.
No order as to costs, as the motion was not opposed.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/68/eng@2024-11-22 |
Application E017 of 2024 | Kibutiri (Suing as the Legal Representative of the Estate of Loise Wanja Kibutiri) v Njoro, Kibutiri & Kibutiri (Sued as the Legal Representatives of the Estate of James Njoro Kibutiri) & another (Application E017 of 2024) [2024] KESC 70 (KLR) (22 November 2024) (Ruling) | Judgement | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 22 November 2024 | 2,024 | Nairobi | Civil | Kibutiri (Suing as the Legal Representative of the Estate of Loise Wanja Kibutiri) v Njoro, Kibutiri & Kibutiri (Sued as the Legal Representatives of the Estate of James Njoro Kibutiri) & another | [2024] KESC 70 (KLR) | null | Upon perusing the Originating Motion by the applicant dated 9th May 2024 and filed on 13th May 2024 pursuant to Article 163(4)(b) of the Constitution, Section 15 of the Supreme Court Act, Cap 9B, and Rule 33 of the Supreme Court Rules, 2020, the applicant seeks:
A review of the ruling by the Court of Appeal (Musinga, Kantai & Gachoka, JJ.A) dated 26th April 2024, which denied certification of the intended appeal as one involving matters of general public importance.
Certification of the intended appeal against the judgment of the Court of Appeal (Ouko (P) (as he then was), Okwengu & Makhandia, JJ.A) delivered on 25th September 2020 in Civil Appeal No. 156 of 2019, David Muthee Kibutiri (suing as the legal representative of the estate of Loise Wanja Kibutiri) vs. Thomas Kibutiri Njoro & Others, as consolidated with Civil Appeal No. 192 of 2019, David Kibutiri Njau (suing as the legal representative of the estate of Loise Wanja Kibutiri) vs. David Muthee Kibutiri & Others.
The application was supported by an affidavit sworn by David Muthee Kibutiri, contending that the appeal raises substantial questions of general public importance concerning the doctrine of resulting trusts. The questions posed included:
The nature and legal conceptualization of a resulting trust.
Whether resulting trusts imply gifting without express intention.
Whether the contributor’s intention solely determines ownership.
The timing and permanence of ownership under resulting trust principles.
The public interest of the doctrine’s application in Kenyan jurisprudence.
The applicant relied on legal authorities including Snell’s Principles of Equity (27th Ed.), and cases such as Re Golcar Sick and Funeral Society, Westdeutsche Landesbank Girozentrale vs. Islington LBC, Pettitt vs. Pettitt, Kerr vs. Baranow, and Vanasse vs. Sequeine. The respondents did not file any response to the application. | The Court considered the relevant legal provisions including Article 163(5) of the Constitution, Section 15B of the Supreme Court Act, and Rule 33 of the Supreme Court Rules 2020, in light of the Court’s precedents on certification, particularly:
Hermanus Phillipus Steyn vs. Giovanni Ruscone SC App No. 4 of 2013
Malcolm Bell vs. Daniel Toroitich Arap Moi & Another SC App No. 1 of 2013
The Supreme Court examined the basis for the Court of Appeal’s denial of certification. It found that the appellate court dismissed the application not on the substantive issue of whether the matter was of general public importance, but because the application was filed out of time without an extension being sought or granted.
Specifically, the appellate court held:
“This application was filed on 5th November 2020, forty-one (41) days after the impugned judgment. No extension of time was granted by the Court prior to the filing. This anomaly renders the entire application incompetent...”
Accordingly, the Supreme Court held that the Court of Appeal did not reject the application on the merits of general public importance, but due to procedural default. Thus, there was no basis for the Supreme Court to interfere with the appellate court's invocation of its own procedural rules. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/70/eng@2024-11-22 |
Petition E015 of 2024 | Nyagol v Judicial Service Commission & another (Petition E015 of 2024) [2024] KESC 69 (KLR) (22 November 2024) (Judgment) | null | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 22 November 2024 | 2,024 | Nairobi | Civil | Nyagol v Judicial Service Commission & another | [2024] KESC 69 (KLR) | null | The Appellant, Judith Nyagol, filed the appeal dated 4th April 2024, which was amended on 15th May 2024 pursuant to a consent Order dated 14th May 2024. The appeal is brought under Article 163(4)(a) of the Constitution. The Appellant challenges the judgment of the Court of Appeal (P. Nyamweya, F. Ochieng & W. Korir, JJ.A) delivered on 23rd February 2024 in Civil Appeal No. E097 of 2021 wherein the Court of Appeal overturned the decision of the Employment and Labour Relations Court (Wasilwa, J.) in ELRC Petition No. E005 of 2020 and held that the Respondents followed due procedure when dismissing the Appellant from employment. The Court of Appeal also dismissed the Appellant’s Cross- Appeal where she sought reinstatement.
2.
Notably, before this Court the 1st and 2nd Respondents filed a notice of preliminary objection dated 6th June 2024 challenging this Court’s jurisdiction to hear the appeal on grounds that it does not raise questions touching on the application or interpretation of the Constitution.
B. Background
3.
The Appellant was employed by the 1st Respondent on 20th June 2012 as a Resident Magistrate and deployed to Sirisia Law Courts. She was later transferred to Kericho Law Courts, where she served in a similar capacity. It was at this station that she was arrested on 20th August 2015 by officers from the Ethics and Anti- Corruption Commission (EACC) on allegations of corruption.
4.
Subsequently, she was charged with the offence of corruptly soliciting for benefit contrary to Section 39(3) of the Anti-Corruption and Economic Crimes Act (ACECA). The particulars were that on 27th July 2015, while serving as a judicial officer at Kericho Law Courts, she corruptly solicited for a benefit of Kshs.20,000/= from Wilson Yegon, for purposes of securing a favourable penalty in Kericho Case No. 3140 of 2014 wherein Wilson Yegon was the accused person. She was also charged with corruptly receiving a benefit contrary to Section 39(3) of ACECA. The particulars were that the Appellant received a benefit of Kshs.10,000/= from Wilson Yegon as an inducement to deliver a favourable outcome in the said Criminal Case.
5.
Meanwhile, the Appellant received a letter dated 4th September 2015 interdicting her from employment and a charge of similar date. The charge read as follows:
That on 27th July 2015 at Kericho Law Courts as Resident Magistrate you corruptly solicited a benefit of 20,000/= from Wilson Yegon through Robert Cheruiyot as inducement so as to award a favourable penalty in a Kericho case file Number 3140 of 2014 where the said Wilson Yegon was an accused person.
Further to this on 20th August, 2015 at the Kericho Law Courts, as the Resident Magistrate, you corruptly received a benefit of Kshs.10,000/= from Wilson Yegon through Robert Cheruiyot as inducement so as to award a favourable penalty in a Kericho case file No. 3140 of 2014 where the said Wilson Yegon was an accused person.
This is contrary to Section 39(a) as read with Section 48(1) of ACECA.”
6.
Upon hearing the prosecution’s 12 witnesses, the Anti-Corruption Court held that there was no evidence: to show that the Appellant either asked Robert Cheruiyot (1st accused), to solicit the bribe on her behalf or that she contacted anyone to solicit for a bribe; or that the Appellant received the bribe from the 1st accused. Furthermore, that it was not established beyond reasonable doubt that the money recovered from the Appellant’s purse was not planted there, especially considering that the door to her chambers was open and there was no one inside at the time of the search conducted by the EACC officers. In any event, Wilson Yegon was eventually convicted. Consequently, on 15th September 2016, the Appellant was acquitted under Section 210 of the Criminal Procedure Code.
7.
Subsequently, the Appellant presented proof of her acquittal to the 1st Respondent who in turn, informed her by a letter dated 27th January 2017, to await the final judgment of the criminal case since the 1st accused had been placed on his defence. On 13th January 2017, the Appellant’s co-accused was convicted of soliciting for benefit contrary to Section 39(3) as read with Section 48(1) of ACECA and corruptly receiving a benefit contrary to Section 39(2) as read with Section 48(1) of ACECA. He was fined Kshs.100,000/= and in default to serve 1-year imprisonment for each count.
8.
On 22nd August 2017, the Appellant received a letter of similar date titled “commencement of fresh charges against you” from the Office of the Chief Justice communicating the following charges:
Charge 1
Breach of Rule 6 of the Judicial Code of Conduct and Ethics, Legislative Supplement No. 24, Legal Notice No. 50.
Rule 6 of the Judicial Code of Conduct and Ethics states that “a judicial officer shall not knowingly convey or permit others to convey the impression that anyone is in a special position to influence him.” That you knowingly permitted one Robert Cheruiyot to convey the impression to one William Yegon that he was in a special position as a staff of Kericho Law Courts to influence you to award a favourable penalty in Kericho CMC Criminal Case No. 3140/2014 Republic vs William Yegon contrary to Rule 6 of the Judicial Code of Conduct and Ethics, 2003.
Charge 2
Breach of Rule 5 of the Judicial Code of Conduct as read together with Paragraph 9(a) Appendix 1, Part III of the Public Officers Ethics Act, 2003.
Rule 5 of the Judicial Code of Conduct and Ethics states that in all activities a Judicial Officer shall exhibit respect for the rule of law, comply with the law, avoid impropriety and appearance of impropriety and act in a manner that promotes public confidence in, the integrity and the impartiality of the Judicial Service.
That in or the month of August 2015, the officers from the Ethics and Anti-Corruption Commission recovered Kshs.10,000/= from your bag in your chambers at Kericho Law Courts, money believed to have been a bribe for you to give a favourable penalty to the accused person in Kericho CMC Criminal Case No. 3140/2014, Republic vs William Yegon.
9.
We note at this early stage that the interdiction letter which attached charges of the 4th September 2015 referred to a ‘Wilson Yegon’, and yet the Respondents letter to the Appellant of the 22nd August 22017 referred to a ‘William Yegon’, However, we can glean from the record that the name “William” was inadvertently or otherwise mistakenly used in the place of “Wilson”. Nonetheless, the Appellant responded and denied the allegations in a letter dated 30th August 2017. She was later summoned by the Respondents through a letter dated 5th February 2018 for a disciplinary hearing scheduled for 5th March 2018. The Appellant appeared before the disciplinary committee on the material date with her advocate, Wambeyi Makomere. According to the Appellant, her advocate was denied audience.
10.
Later, on 24th August 2018, the Appellant received a dismissal letter based on her conduct during the events leading up to the corruption case. According to the letter, the Appellant’s conduct was deemed improper and exhibited a lack of propriety. Dissatisfied with the decision, the Appellant applied for a review, through her letters dated 24th September 2018 and 7th November 2018, as well as reminders dated 25th September 2020 and 2nd June 2020. By a letter dated 1st October 2020, the 1st Respondent declined to review its decision stating that the Appellant had not presented new material facts which would warrant a review and further, the acquittal in the criminal case could not be the basis for her reinstatement. | i. Whether the appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution
44.
This Court’s jurisdiction is set out in Articles 58, 140 and 163 of the Constitution and the Supreme Court Act, Cap 9B of the Laws of Kenya. The instant appeal is anchored on Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act and Rules 38(2) and 39 of the Supreme Court Rules, 2020 and the Appellant has claimed that issues of constitutional interpretation or application have been raised.
45.
There are numerous decisions touching on this subject, Lawrence Nduttu & 6000 Others vs Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012 being the leading authority. Further, given our finding in Rutongot Farm Ltd. vs Kenya Forest Service & 3 Others, SC Petition No. 2 of 2016; [2018] eKLR, and considering the pleadings, history and trajectory of the matter as well as the parties’ submissions, we find that the present appeal raises questions centred on the interpretation and application of the Constitution. Specifically, the appeal is pegged on the alleged violation of the Appellant’s rights under Articles 47 and 50 of the Constitution. We also note that the dispute presented before the ELRC was similarly anchored on whether there was any violation of the Appellant’s constitutional rights. This invariably will entail an exercise of evaluation of questions around the interpretation and application of the Constitution.
46.
We therefore find this Court has jurisdiction to hear and determine the appeal. The preliminary objection by the Respondents is therefore unmerited and dismissed.
ii) Which legislation applies to the employment matters of judicial officers and staff: the Judicial Service Act (JSA) or the Employment Act (EA)?
47.
On this question, the Appellant contends that the Court of Appeal erred in applying Section 41 of the EA as opposed to Articles 47 and 50 of the Constitution, or even Section 4 of the FAAA and the JSA. She further urged that different benches of the Court of Appeal have in the past, taken different positions as relates to this issue.
48.
The Respondents, on the other hand, contended that the issue was raised before this Court for the first time and was not the subject of consideration by the Superior Courts below. In any event, that both the EA and the JSA apply to the present appeal. They further supported this submission by stating that the Appellant heavily relied on the provisions of the EA at the ELRC and was therefore estopped from claiming that the EA does not apply.
49.
We have considered the contents of the petition before the ELRC. The Appellant relied on various Articles of the Constitution, Sections 43(1) and 47(5) of the EA, the JSA and the Judiciary Human Resource Policies & Procedures Manual, in that order. In the body of the petition, however the Appellant focused primarily on the constitutional provisions. Equally, the ELRC (Wasilwa, J.) relied on Sections 41 and 45(2) of the EA, the JSA, FAAA and the Judiciary Human Resource Policies and Procedures Manual and held that the Appellant was not subjected to a fair disciplinary process, which meant that her dismissal was also unfair. Similarly, at the hearing of the appeal, the Appellant relied on the EA and submitted that the Respondents’ actions contravened the JSA, the Evidence Act, the EA, and various Articles of the Constitution.
50.
The question as to which legislation applies to the termination of a judicial officer’s employment, though not expressly raised before the superior courts below, is an issue that has transmuted from the natural course of the proceedings.
51.
It is the rule of thumb in statute interpretation that a specific law governing a matter should be applied instead of a general law touching on the matter, lex specialis derogat legi generalis. In India, for instance the Supreme Court applies a harmonious construction of the law, that is, general and specific statutes will generally be considered to give effect to a legal policy. However, if the two cannot be reconciled, a general law is impliedly repealed, to the extent that a special law provides for an issue. (See Commercial Tax officer, Rajasthan vs Binani Cement Ltd. & Another, Civil Appeal No. 336 of 2003) This position is founded on the Latin maxim generalia specialibus non derogant which means that general law yields to special law where they operate in the same field and on the same subject. The exception however, is where it is clear from the language employed that the Legislature intended for a general law to prevail over a special law, in which case, a special law would have to yield to a general law.
52.
In St. Stephen’s College vs University of Delhi, (1992) 1 SCC 558, Kasliwal J., in his partial dissent to the majority judgment, stated as follows:
“
140.
…The golden rule of interpretation is that words should be read in the ordinary,natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated. The House of Lords observed in Warburton v. Loveland, (1824-34) All ER Rep 589 as under:
“
No rule of construction can require that when the words of one part of statute convey a clear meaning
… it shall be necessary to introduce another part of statute which speaks with less perspicuity, and of which the words may be capable of such construction, as by possibility to diminish the efficacy of the first part.” (Anandji Haridas and Co. (P) Ltd. v. S.P. Kasture, (1968) 1 SCR 661, Patna Improvement Trust v. Lakshmi Devi, 1963 Supp (2) SCR 812, Ethiopian Airlines v. Ganesh Narain Saboo, (2011) 8 SCC 539, Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271, South India Corpn. (P) Ltd. v. Secy., Board of Revenue, Trivandrum, (1964) 4 SCR 280, Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27)”
53.
This rule has gained notoriety so much so that Lord Cooke of Thorndon in Effort Shipping Co. Ltd. vs Linden Management, SA [1998] AC605 stated that “… it represents simple common sense and ordinary usage”. Bennion, Statutory Interpretation, 5th Ed. (2008) also explains that it is a rule that is based “… on the rules of logic, grammar, syntax and punctuation, and the use of language as a medium of communication generally.” This rule also applies to general provisions in one statute and the special provisions in another, and also in resolving a conflict between general and special provisions in the same legislative instrument.
54.
Applying the principle of generalia specialibus non derogant to the present context, the JSA, being a special law for matters of appointment, removal and discipline of judges, judicial officers and staff supersedes the EA, to the extent that it specifically provides for certain matters. The EA, on its part, will apply in matters relating to the employment and other consequential aspects of judges, judicial officers and staff generally and where there are gaps in the JSA.
iii. Whether the Appellant’s right to a fair trial was violated, and if so, how
55.
Under this head, the Appellant raised several issues that we have summarized as follows:
a.
The extent of the applicability of circumstantial evidence in disciplinary proceedings for judicial officers;
b.
Whether there was sufficient evidence to overturn the ELRC’s decision;
c.
Application of the doctrine of double jeopardy in matters relating to disciplinary proceedings for judicial officers and whether there was indeed double jeopardy in the present case;
d.
Whether in denying the Appellant’s counsel the opportunity to address the 1st Respondent’s disciplinary committee breached the Appellant’s right to fair trial;
e.
Whether the Appellant was dismissed on account of the charges dated 4th September 2015 or those dated 22nd August 2017;
f.
Whether the delay in communicating the Respondents’ decision prejudiced the Appellant’s right to a fair trial; and
g.
Should the Supreme Court expand the principles in Mathew Kipchumba Koskei vs Baringo Farmers, ELRC Cause No. 37 of 2013; [2013] eKLR?
56.
On circumstantial evidence, the Appellant stated that if indeed there was any, it was disparaged by the judgement of the Anti-Corruption Court. The Respondents, on the other hand, stated that there was overwhelming circumstantial evidence incompatible with her evidence of innocence, and her responses to the questions raised were inconsistent thus diminishing her credibility. The report from the 1st Respondent at paragraph 77 reads as follows:
“
77.
That upon deliberation the Committee notes that despite there being no direct evidence linking Hon. Nyagol to the criminal charges brought against her, there is however circumstantial evidence that she was aware of the events leading to the criminal charges. As such her conduct exhibited impropriety and compromised the integrity and impartiality of Judicial Service. In the circumstances it can be said that she knowingly conveyed and permitted Mr. Cheruiyot to convey an impression that she was in a special position to influence the judgment.”
The Court of Appeal, on its part, merely adopted and reiterated the reasons given by the Respondents and did not therefore test the alleged circumstantial evidence. To our minds and in the circumstances, it is obvious to us that the Court of Appeal abdicated its primary role as a first appellate court, to re-analyze and re-evaluate the evidence placed before the trial court.
57.
In finding as above, we take cognizance of our decision in the case of Mutava vs Tribunal Appointed to Investigate the Conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya, SC Petition 15” B” of 2016; [2019] KESC 49 (KLR), wherein at paras. 203-205, we held as follows:
203.
… We need to state that once a standard of proof has been agreed upon, the evidence on record whether circumstantial or direct must be tested against that accepted standard…
204.
… To our mind therefore, all the cases cited by the petitioner, including the case of R v. Taylor, speak to one thing: they reaffirm the principle that circumstantial evidence is the use of reasoning and logic to get to a conclusion. When relying on circumstantial evidence, a Court or Tribunal is presented with a set of facts through which an inference may be drawn to prove an existence of a fact that inference, must be supported by the facts presented. Since both parties agree on the applicable standard of proof, the evidence on record must then be tested against that standard. In this case, the inference should not go beyond reasonable doubt but should be higher than a balance of probabilities. In essence, it is not enough that an alleged fact is more likely to have happened but there should be a level of certainty or real possibility that it must have happened.
205.
The Supreme Court of Papua New Guinea in the case of Nara v. State [2007] PGSC 54; SC1314 (28 November 2007) aptly captured the principles guiding the application of circumstantial evidence as follows:
“
What these principles say in simple terms is that where a case against an accused person is only circumstantial, he must be acquitted unless such a person's guilt is the only rational and reasonable inference open within the four corners of the circumstantial evidence that is actually before the Court on the required standard of proof, beyond any reasonable doubt. This means the Court must consider only the evidence properly adduced and presented before the Court and nothing else.” [Emphasis ours]
58.
We note that in the above context, by its judgment delivered on 13th January 2017, the Anti-Corruption Court held that no evidence was adduced to establish that the Appellant had directed the 1st accused to solicit any money on her behalf. Neither was there any evidence indicating that the Appellant had solicited for the bribe directly from Wilson Yegon. In addition, the said Wilson Yegon, was ultimately convicted in the criminal case, contrary to the expectation of an acquittal upon giving the bribe. The EACC investigating officers also confirmed they did not interrogate Yegon to verify who actually received the money. Secondly, at the time of the alleged recovery of Kshs.10,000/= from the Appellant’s handbag, the door to the Appellant’s chambers was slightly open, the handbag’s contents were strewn on the floor and the Appellant was not in the chambers. Thirdly, the inventory was compiled in the Appellant’s absence and the handbag was taken to the police station from her office in her absence. Fourthly, the evidence tendered was contradictory as to whether the Appellant’s fingers were swabbed to confirm whether she had handled the recovered money or not. The Anti-Corruption Court ultimately held that there was no thread in the evidence for it to follow and there was no evidence that the Appellant solicited for money through the 1st accused, to give a favourable outcome. There was also no evidence that she received the money, given that Wilson Yegon was asked by the 1st accused to wait in Court 4, as he delivered the bribe. The ELRC reiterated these findings and, on its part, held that there was no reason to terminate the Appellant’s employment.
59.
Looking at the record, we note that the Anti-Corruption Court went to great lengths to describe the loopholes in the case against the Appellant, which loopholes we have outlined above. We also note that when put on his defence, the Appellant’s co-accused claimed that the Appellant sent him to solicit money on her behalf from Yego, and further that he was informed at the police station that he would be released if he cooperated and said that he gave the Appellant the money. In addition, we have considered the report of the JSC Human Resource & Administration Committee on the disciplinary proceedings against the Appellant dated 4th June, 2018, the minutes of the disciplinary case heard on 5th March, 2018, the judgments of the superior courts below and the Respondents’ response.
60.
To our minds, the circumstantial evidence relied on by the Respondents was:
a.
The Appellant left her handbag and phone in her chambers without alerting the Magistrate-in-Charge which inferred that she left her chambers in a hurry to evade the EACCofficers.
b.
The Appellant walked to a nearby hospital instead of using her car.
c.
The Appellant could not explain who opened her chambers, (despite the spare key being in the custody of the Executive Officer who would also share it with the cleaners and court clerks).
d.
The Appellant could not explain how the money got into her handbag.
e.
She was inconsistent as to whether she left her handbag on the table or in the drawer of her chambers.
61.
To our minds, the facts as outlined above cannot reasonably lead to the inference of guilt on the part of the Appellant. The Respondents seem to allege that the offence likely occurred without establishing a tangible level of real possibility. We are therefore inclined to agree with the ELRC that, cognizant of the decision of the Anti-Corruption Court and noting the chronology of events, there was nothing indicative that the Appellant’s involvement was the only possible inference to be made in the circumstances. There was a notable and vital break in the chain of events that invariably deconstructs any notion that the Appellant’s guilt was the only reasonable inference to have been made either by the trial court, the ELRC or even the JSC.
62.
Further, we note that in her application for review, the Appellant attached an affidavit sworn by Robert Cheruiyot on 21st September 2018 wherein he confirmed the Appellant’s narrative. Considering that the Respondents indicated in the charge that the Appellant and Robert Cheruiyot were in agreement in soliciting a benefit from Wilson Yegon, we cannot fathom how this affidavit was said not to adduce any new or persuasive evidence speaking to the Appellant’s innocence, or at the very least, call for further inquiry by the Respondents. The Respondents ought to have considered the evidence contained in the Appellant’s application for review and reached a different finding.
63.
Closely related to the question of circumstantial evidence, is whether the Court of Appeal properly appreciated or applied the doctrine of double jeopardy. The Court of Appeal held that double jeopardy did not apply because the disciplinary process was not based on the Appellant’s criminal culpability. The Respondents on their part submitted that it only applies to criminal proceedings, not civil or administrative proceedings. The Appellant, on her part contended that the two charges as framed by the Respondents have a common root with the criminal case and they raise substantially similar issues. She further submitted that Sections 18(1) to (3) of the Third Schedule of the JSA are normative derivatives of Article 50(20)(o) of the Constitution, which Article applies to civil, criminal and quasi-criminal disputes.
64.
The Black’s Law Dictionary, 9th Edition defines ‘double jeopardy’ as “… being prosecuted or sentenced twice, for substantially the same offence.”
65.
In the United States of America, double jeopardy is captured in the Fifth Amendment to the US Constitution which reads as follows:
“
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
It is also provided for in the American Convention on Human Rights in the following terms:
“
Article 8. Right to a Fair Trial
4.
An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.”
66.
In the European context, prohibition against double jeopardy is enshrined in Article 4 of the Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No.117). It has been ratified by all Member States, save for Germany, the United Kingdom and the Netherlands. The Protocol reads:
“
Right not to be tried or punished twice
1.
No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2.
The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3.
No derogation from this Article shall be made under Article 15 of the Convention.”
67.
In Canada, the Constitution Act, 1982 under the Canadian Charter of Rights and Freedoms provides for double jeopardy in the following terms:
11.
Any person charged with an offence has the right
(h)
if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;”
68.
In R v. Van Rassel, [1990] 1 S.C.R. 225, the Supreme Court of Canada held that double jeopardy is a principle of general application with more specific rules. They are:
a.
Autrefois acquit-this is a special plea that rests with the plea of autrefois convict and pardon under Section 535 of the Criminal Code. It is established once the following conditions are proved:
i.
The matter is the same, in whole or in part; and
ii.
The new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible then to make the necessary amendments. The charges need not be absolutely identical. (See Section 537 of the Criminal Code)
b.
The rule in the decision of the Supreme Court of Canada, Kienapple v.R [1975] 1 S.C.R 729 is based on the broader principle of res judicata. It applies when two separate charges are based on the same delict or cause so that one cannot be convicted of the second charge if they had been convicted on the first charge. Issue estoppel bars a court from deciding a matter that has already been the subject of a judicial decision.
69.
In India, double jeopardy is recognized in Article 20(2) of the Constitution, Section 300 of the Criminal Procedure Code, Section 40 of the Indian Evidence Act, Section 71 of the Indian Penal Code and Section 26 of the General Clauses Act, 1897. The elements of double jeopardy are also set out in the case of Vijayalakshmi vs Vasudevan (1994) 4 SCC 656 as follows:
i.
The accused has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts;
ii.
The accused has been convicted or acquitted at the trial; and
iii.
Such conviction or acquittal is in force.
70.
The Supreme Court of India reiterated the foregoing in the case of TP Gopalakrishnan vs The State of Kerala, Criminal Appeal Nos. 187-188 of 2017. In paragraph 28 of the decision, the Court considered what “same offence” means and held:
28.
… The term ‘same offence’ in simple language means, where the offences are not distinct and the ingredients of the offences are identical. Where there are two distinct offences made up of different ingredients, the embargo under Article 20 of the Constitution of India, has no application, though the offences may have some overlapping features. The crucial requirement of Article 20 is that the offences are the same and identical in all respects, vide State (N.C.T. of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.”
71.
In addition, in the case of Sangeetaben Mahendrabhai Patel vs State of Gujarat (2012 (7) SCC 621, the Supreme Court of India held:
24.
In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence.” [Emphasis ours]
72.
Section 35(3)(m) of the Constitution of South Africa is similar to our Article 50(2)(o) of the Constitution, both speaking to the rights of an accused person. They both provide that “every accused person has the right to a fair trial, which includes the right—not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.”
73.
In the case of the S vs Basson (CCT 30/03A) [2005] ZACC 10: 2005 (12) BCLR 1192 (CC); 2007 (3) SA 582 (CC); 2007 (1) SACR 566 (CC), the Constitutional Court of South Africa cited the case of R v Manasewitz, 1933 A 165 at 173-4 where the Court set out the 3 elements that establish the plea of autrefois acquit:
… I accept, for the purpose of these reasons, the following requisites to establish a plea of autrefois acquit, namely that the accused has been previously tried (1) on the same charge, (2) by a Court of competent jurisdiction and (3) acquitted on the merits. Obviously, an accused so tried must have been in jeopardy. The proposition is sometimes stated slightly differently thus: That the accused has been previously indicted on the same charge, was in jeopardy,and was acquitted on the merits.” [Emphasis ours]
74.
This position was also applied in the case of S v Basson (CCT 30/03) [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC); 2004 (1) SACR 285 (CC).
75.
Article 14(7) of the ICCPR (1966) provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”.
76.
William Blackstone in his Commentaries on the Laws of England (Vol. 1V 18th Ed. 1829, Chapter XXVI) states:
First the plea of autrefois acquit or a former acquittal, is grounded on the universal maxim of the Common Law of England that no man is to be brought into jeopardy of his life, more than once, for the same offence. And hence it is allowed as a consequence, that when a man is once fairly not guilty upon an indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.”
77.
In the Kenyan context, Article 50 (2) (o) of the Constitution and Section 138 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya provide for the plea of autrefois acquit and autrefois convict which are founded on the doctrine of double jeopardy, that is, one must not be tried for an offence for which they have been previously acquitted or convicted. This doctrine of double jeopardy is based on the Latin maxim nemo debet bis vexari pro una et eadem causa which means that no man shall be put in jeopardy twice for the same offence. It is also founded on public policy that there ought to be an end to the same litigation. The High Court (Odero, J.) in Nicholas Kipsigei Ngetich & 6 Others vs Republic, Criminal Case No. 123 of 2010 [2016] KEHC 1507 (KLR) expounded it to be a protection afforded to an accused person from the prejudice of going through a second trial after the State is made privy to his/her entire defence and to also protect citizens from undue oppression by the State. The importance of double jeopardy cannot be overemphasized. In this connection, the High Court (Gikonyo, J.) in Johnson Kobia M’Impwi vs Director of Public Prosecutions, Criminal Case 333 of 2018; [2020] KEHC 4685 (KLR) described it not only as a procedural defence but a constitutional protection against subsequent trial based on a prior acquittal or conviction. This Court has also had occasion to weigh in on this discourse in the case of Steyn vs Ruscone, SC Application No. 4 of 2012; [2013] KESC 11 (KLR) where we posited that a party cannot present their dispute before one forum or court and subsequently present the exact dispute over the same subject matter before another forum, even where both fora have jurisdiction. Further, in Wetangula & Another vs Kombo & 5 Others, SC Petition No. 12 of 2014 ;2015] KESC 12 (KLR), we held that Section 87(1) of the Elections Act Cap 7 of the Laws of Kenya, allows for electoral malpractice with a criminal underpinning to be prosecuted under the relevant criminal law process. This in itself does not violate double jeopardy since election proceedings are not in the same category of “trial for an offence” and are sui generis nature.
78.
Applying the foregoing to the issue at hand, we note that the ELRC, on its part, interpreted the fresh charges of 22nd August 2017 which it found to be dissimilar to those of 4th September 2015, to amount to double jeopardy. We disagree with the ELRC’s exposition of double jeopardy. According to our reading and understanding of the Constitution, double jeopardy applies when there has been a previous conviction or an acquittal on a charge, not when 2 proceedings over the same cause are subsisting.
79.
Ordinarily, criminal proceedings may be prosecuted alongside civil proceedings. See Section 93A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. However, Section 18(2) of the Third Schedule of the JSA provides as follows:
If criminal proceedings are instituted against an officer, proceedings for their dismissal upon any grounds involved in the criminal charge shall not be taken until the conclusion of the criminal proceedings and the determination of any appeal therefrom:
Provided that nothing in this paragraph shall be construed as prohibiting or restricting the power of the Chief Justice to interdict or suspend such officer”.
Against this background, the case of Mathew Kipchumba Koskei vs Baringo Teachers SACCO, Cause 11 of 2012; [2013] eKLR lays outs the general principles applicable where there is a criminal element in a disciplinary case. However, given the specific provisions in the JSA, the said principles do not apply. To that end, we decline the Appellant’s invitation to develop the said principles, which in any event emanate from a court of first instance.
80.
Furthermore, our understanding of Section 18(2) of the Third Schedule of the JSA is that the above provision prohibits the commencement of disciplinary proceedings during the pendency of criminal proceedings. The Black’s Law Dictionary, 9th Edition at page 1324 defines proceeding as ‘the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.’ The author further writes that ‘proceeding’ concerning the court may include-
1.
The institution of the action.
2.
The appearance of the defendant.
3.
All ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat.
4.
The pleadings.
5.
The taking of testimony before trial.
6.
All motions made in the action.
7.
The trial.
8.
The judgment.
9.
The execution.
10.
Proceedings supplementary to execution, in code practice.
11.
The taking of the appeal or writ of error.
12.
The remittitur, or sending back of the record to the lower court from the appellate or reviewing court.
13.
The enforcement of the judgment, or a new trial, as may be directed by the court of last resort. Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899).
In the charge of 4th September 2015, the Chief Justice directed the Appellant to give a written response to the charge within 21 days. Preparing a response is part of the disciplinary proceedings in view of the definition above. To that extent, therefore, we find and hold that disciplinary proceedings were indeed commenced against the Appellant contrary to the law. To this end, we agree with the Appellant and the ELRC, that the Chief Justice violated Rule 18(2) of the Third Schedule of the JSA.
81.
We have also set out above the offences in the criminal case and the charges drawn by the Respondents. Are they similar? To answer this question, the ingredients of the offences must be set out. In this connection, we find guidance in the TP Gopalakrishnan Case (Supra) and Sangeetaben Mahendrabhai Patel Case (Supra) where the Supreme Court of India held that “… The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence.”
82.
In the instant case, the charges in the criminal court were corruptly soliciting for a benefit, corruptly receiving a benefit and conspiracy to commit an economic crime. The Respondents, on the other hand drew charges to the effect that the Appellant knowingly conveyed or permitted Robert Cheruiyot to convey the impression that he was in a special position to influence her as a Judicial Officer; the Appellant failed to exhibit respect to the rule of law, comply with the law, avoid impropriety and appearance of impropriety and acted in a manner that did not promote public confidence in the integrity and impartiality of the Judicial Service.
83.
The war against Corruption in Kenya has been incorporated in key government policies over the last three decades and several statutes have been enacted in consequence. Corruption under Section 2 of the Anti-Corruption and Economic Crimes, is defined as follows:
“
corruption’ means-
a.
an offence under any of the provisions of sections 39, 44, 46 and 47; (Sections 44, 46 and 47 refer to bid rigging, abuse of office and dealing with suspect property respectively)
b.
bribery;
c.
fraud;
d.
embezzlement or misappropriation of public funds;
e.
abuse of office;
f.
breach of trust; or
g.
an offence involving dishonesty—
i.
in connection with any tax, rate or impost levied under any Act; or
ii.
under any written law relating to the elections of persons to public office;’”
Section 2 of ACECA defines economic crime to include laundering the proceeds of corruption, acting dishonestly or fraudulently with regard to the maintenance or protection of public revenue or public property, and failure to pay taxes, fees, levies or charges due to a public body. In addition, for purposes of going after unexplained assets, Sections 47(3) and 55(1) of ACECA define corrupt conduct as conduct that constitutes corruption or economic crime, whether it took place before or after the commencement of the Act for as long as it constituted an offence at all material times.
84.
To our minds, the charges dated 22nd August 2017 read against the facts of the case constitute the same issue as the subject of the criminal charges. Considering the definitions set out above, we do not doubt that the offences/ issues in the cases are similar and we, therefore, agree with the Appellant that the Respondents contravened the principle of double jeopardy.
85.
On whether the Appellant’s counsel was denied a chance to be heard, we note that neither of the Superior Courts below handled this issue despite it being raised in Petition No. E005 of 2020. Mr. Wambeyi Makomere represented the Appellant before the Respondents’ disciplinary committee. The Respondents recognized his presence. The record reads:
“
Com. Ms. Mercy Deche: …then the Commissioners will ask you any questions that they deem fit, which you will answer and after that, your lawyer need not say anything because you will have an opportunity to file submissions...
Hon. Judith Nyagol: Yes.
Com. Ms. Mercy Deche: …but we welcome you to this session. However, if you need any clarification, you are not gagged from clarifying anything. So, Hon. Nyagol, tell us, we have not sworn you in as yet, sorry….
Hon Judith Nyagol: It is okay…
The record further reads:
“
Com. Ms. Mercy Deche: Thank you. You wanted to say something, Counsel?
Mr. Wambeyi Makomere: Yes, Madam Chair, I just wanted to see if I can consult with her (Appellant) concerning that question because there are a few things that are – Probably to assist her finish.
Com. Ms. Mercy Deche: You can consult her at the end. Is that okay?
Mr. Wambeyi Makomere: Very well.”
86.
Subsequently in the proceedings, although this excerpt may be construed to mean that Counsel was given a very limited role in the process, he was given the opportunity to address the disciplinary committee on the timelines for filing submissions. Could the foregoing reasonably be read to mean that the Appellant’s counsel was denied audience? We think not. The Appellant’s counsel was given audience. Further, he did not register any opposition to the directions issued by the committee.
87.
This then brings us to the next limb of the aspect of fair trial, and that is whether it was prejudicial to fail to avail the witnesses. It would appear that the Respondents relied predominantly on the judgment of the criminal court which was also the basis of the ‘complaint’. They did not call any witnesses and did not produce any evidence. While it was upon the Respondents to elect which witnesses to call if any, it was upon them to prove their case and not leave it to conjecture or even worse, to shift the burden of proof to the Appellant. To that extent, we find that failure to avail witnesses was fatal to the Respondents’ case, trial and ultimate decision.
iv. Whether the Appellant was prosecuted for the charges of 4th September 2015 or those of 22nd August 2017.
88.
The Respondents’ report on the disciplinary proceedings reads that the trial was on account of the charges dated 22nd August 2017. In addition, the proceedings of the disciplinary hearing held on 5th March 2018, the application for review dated 24th September 2018 and ‘further’ application for review dated 7th November 2018 indicate that the charges read out to the Appellant were those dated 22nd August 2017. The termination letter dated 24th August 2018, however read that the Appellant was dismissed based on the charges dated 4th September 2015.
89.
The Court of Appeal held that the Appellant was all along aware that she was facing a disciplinary hearing on account of the charges of 22nd August 2017 and that the Respondents erroneously indicated that they dismissed the Appellant from employment on account of the charges of 4th September 2015 as opposed to the charges of 22nd August 2017. Further, the court observed that, going by the chronology of events, the Appellant suffered no prejudice on account of the Respondents indicating that she was dismissed from employment on account of the charges of 4th September 2015.
90.
We disagree. The right to a fair hearing and a fair trial, as provided under the Constitution and the relevant laws, including the FAAA is clear. A person has a right to know the exact case, including charges, they are facing. This enables them to mount a defence, decide which witnesses to call, if any, and prepare adequately for the hearing. In the instant case, our understanding is that the disciplinary hearing was based on the charges dated in August 2017 but the Appellant was subsequently dismissed based charges dated in September 2015. While the Respondents indicate that the dismissal letter had an error in terms of the date of the charge, it is notable that to date, they have not issued an amended version. Secondly, the letter communicating the charges dated August 2017, spoke to ‘fresh charges’ but did not specifically speak to the fate of the charges of September 2015, which could still be pending, there being no evidence to the contrary. The Appellant was therefore, at best, left in limbo, not knowing which exact set of charges she was facing. The same was prejudicial to the Appellant’s rights to a fair hearing or a fair trial.
iv. Whether the remedy of reinstatement is available to the Appellant.
91.
The JSA does not speak to the remedies available to a judicial officer who, after termination from employment, successfully challenges the said termination before a Court of law. In line with the Latin maxim generalia specialibus non derogant and to allow for harmonious interpretation of the statutes, we find and hold that the provisions of the EA and ELRCA apply. Section 49(3) of the EA, as read together with Section 12(3)(vii) of the ELRCA, provides that the ELRC has the power to make a range of orders, including reinstatement within 3 years of dismissal, subject to such conditions as the Court thinks fit in line with any written law. A reading of Section 12(3)(vii) of the ELRCA provides that reinstatement is pegged on the court’s discretion. In the case of Ferdinand Ndungu Baba Yao Waititu vs Republic, SC Petition No. 2 of 2020; [2021] KESC 11 (KLR) we relied on the case of Mbogo vs Shah; [1968] EA 93 to the effect that a court’s discretion should only be interfered with where the court misdirected itself in some matter or where it is manifest from the whole case that the court was wrong in the exercise of its discretion.
92.
The Court of Appeal declined to issue an order of reinstatement because the statutory timelines had lapsed, a valid consideration set out in the ELRCA and the EA. The Appellant did not set out how, if at all, the Court of Appeal failed to exercise this discretion judiciously. We, therefore, shall not interfere with this finding.
93.
In the circumstances, the appeal is partially successful. In line with our decision in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to award costs to the Appellant.
The Amended Appeal dated 15th May 2024 succeeds in the following terms–
a.
The Judgment of the Court of Appeal dated 23rd February, 2024 is hereby set aside to the extent that it set aside the judgment of the Employment and Labour Relations Court.
b.
The judgment of the Employment and Labour Relations Court dated 7th October, 2021 is hereby reinstated in the following terms:
i.
A declaration is hereby issued that the dismissal of the Appellant was unfair and unjustified as provided under Section 45(2) of the Employment Act.
ii.
The 1st Respondent shall pay the appellant Kenya Shillings Five Million (Kshs.5,000,000/=) for the unfair and unjustified dismissal which cut off the appellant’s career prematurely.
iii.
The 1st Respondent shall pay the appellant all withheld salary from the time of interdiction on 4th September, 2015 to the time of her dismissal on 21/8/2018.
iv.
The 1st Respondent shall pay the costs of the suit plus interest at court rates with effect from the date of the judgment.
2.
The 1st Respondent shall bear the costs in the Court of Appeal and in this Court.
3.
For the avoidance of doubt, all other prayers in the appeal are dismissed.
4.
We hereby direct that the sum of Kshs.6,000/= deposited as security for costs upon lodging of this appeal, be refunded to the Appellant.
Orders accordingly. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/69/eng@2024-11-22 |
Petition (Application) E010 of 2024 | Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024 & Petition E011 of 2024 (Consolidated)) [2024] KESC 66 (KLR) (8 November 2024) (Ruling) | null | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 8 November 2024 | 2,024 | Nairobi | Civil | Dock Workers Union & another v Portside Freight Terminals Limited & 10 others | [2024] KESC 66 (KLR) | null | The Dock Workers Union, the 1st appellant in SC Petition No. E010 of 2024, filed a petition challenging the development of a second grain handling facility at the Port of Mombasa. Later, the Union sought to withdraw the petition, arguing that the project would create jobs, increase revenue for the Kenya Ports Authority, and lower grain prices. The Union claimed its Executive Committee had not authorized its joinder in earlier proceedings or the filing of the petition. The 2nd appellant, opposed the withdrawal, alleging improper motives and perjury by the Union’s Secretary General. Despite these allegations, the respondents in the petition did not file any responses or objections to the application.
Issues
Whether the Supreme Court had the power to deny a party that sought to withdraw proceedings before it. Held
Through the provisions of rule 27(1) of the Supreme Court Rules, 2020, a party could with leave of the Supreme Court, withdraw the proceedings at any time before the delivery of judgment. A party’s right to withdraw its case from court could not be denied, and the court could not prohibit a party from doing so.
Since the Union had expressed its desire to withdraw its petition, and despite the 2nd appellant’s arguments and concerns, the Supreme Court allowed the Union’s Motion for leave to withdraw SC Petition No. E010 of 2024. The withdrawal effectively left SC Petition No. E011 of 2024 [Okiya Omtatah Okoiti vs. Portside Freight Terminals Limited & 10 Others] as the only petition of appeal in the matter.
An award of costs was an exercise of discretion. Costs follow the event. The 2nd appellant, in his replying affidavit, had not sought for costs of this application. The appeal was being withdrawn before the respondents had filed any responses or substantive submissions to the consolidated appeal. There would be no prejudice to any of the parties.
Petition withdrawn, no order as to costs. | Upon reading the applicant’s (Union) notice of motion dated August 14, 2024, expressed to be brought under rule 27 of the Supreme Court Rules, 2020 and Practice Direction No 48 of the Supreme Court (General) Practice Directions, 2020 for orders, that:
a.
The Petition No E010 of 2024 filed by the Dock Workers Union against Portside Freight Terminal Limited & 10 others as respondents, be withdrawn;
b.
In the alternative, leave be granted to the Dock Workers Union, the 1st appellant, to cease participating as a petitioner and its further participation in the matter be dispensed with; and
c.
The costs of this application and Petition No E010 of 2024 sought to be in the discretion of the court (sic); and
2.
Upon considering the supporting affidavit sworn by the Union’s Secretary General, Simon Sang, on August 14, 2024 together with its written submissions of even date to the effect that: in addition to the construction and development of a grain handling facility and island berth at G- Section Area Kenya Port Authority, Portside Companies (1st, 2nd and 3rd respondents) had agreed to develop an offshore berth, which will be a common user berth, at the port of Mombasa which will result in additional cargo traffic; it has now become apparent to the Union that more job opportunities will be created at the Port of Mombasa for its members and the wider public, besides generating additional revenue for Kenya Ports Authority (KPA) and the likely decrease in grain and food prices by reason of competition that will result from the introduction of a second player in the sector; and
3.
Considering further, that before the High Court, the Union was an interested party whereas the dispute essentially involved private interests, which do not concern the Union in any real sense; that neither the Executive Committee nor the membership of the Union were aware that the applicant had been joined in the High Court or Court of Appeal and such joinder had not been authorized; equally, neither the Executive Committee nor the membership of the Union has permitted the filing of the instant petition before this court. In any event, KPA which is a material stakeholder, seems to support the development of a second bulk grain handling facility as it has not participated in these proceedings. Consequently, the Executive Committee of the Union has therefore resolved to withdraw this petition as there is no plausible reason for the Union to proceed with this matter in view of the aforementioned benefits to both its members and the wider public; and
4.
Noting that the 2nd appellant in a replying affidavit sworn by Okiya Omtatah Okoiti on September 5, 2024 has opposed this motion on the grounds that: the Union has not demonstrated that it would be detrimental to the interests of the dock workers and the public interest if the project in issue was to be established either at Lamu or Dongo Kundu in compliance with KPA’s masterplan; that the Union’s Secretary General who is the deponent of the affidavits by the Union, was aware of the proceedings and actively participated in them; that although the 2nd appellant has no objection to the petition being withdrawn as prayed, he reasonably suspects that the same is being withdrawn for improper motives and to advance corrupt practices. What is more, he alleges perjury on the part of, Mr. Simon Sang, the Union’s Secretary General by his affidavits before this court; and
5.
Cognizant that none of the respondents have filed any pleadings in response to or in opposition to this motion; and
6.
Having considered the application, affidavits and rival arguments, We now opine as follows:
i.
By the provisions of rule 27(1) of the Supreme Court Rules, 2020, “A party may with leave of the court, withdraw the proceedings at any time before the delivery of judgment.”
ii.
We are alive to the fact that a party’s right to withdraw its case from court cannot be denied, and the court cannot prohibit a party from doing so. This court observed as much in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), where it held:
“
A party’s right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
iii.
Bearing this in mind, since the Union has expressed its desire to withdraw its petition, and despite the 2nd appellant’s arguments and concerns, we hereby allow the Union’s motion for leave to withdraw SC Petition No E010 of 2024. This withdrawal effectively now leaves SC Petition No E011 of 2024 Okiya Omtatah Okoiti v Portside Freight Terminals Limited & 10 others as the only petition of appeal in the matter.
iv.
On costs, we underscore the fact that an award of costs is an exercise of discretion and follows the principle set out by this court in Rai & 3 others v Rai, Estate of & 4 others, [2014] KESC 31 (KLR) that costs follow the event. In applying this principle, we note that the 2nd appellant, in his replying affidavit, has not sought for costs of this application. Moreover, we note from the record, that the appeal is being withdrawn before the respondents had filed any responses or substantive submissions to the consolidated appeal. There will be no prejudice to any of the parties. In view of the foregoing and in the exercise of our discretion, we make no orders as to costs.
7.
Consequently, and for the reasons aforestated, we make the following Orders:
i.
The applicant’s notice of motion dated August 14, 2024 be and is hereby allowed;
ii.
SC Petition No E010 of 2024 dated March 21, 2024 and filed on April 4, 2024, be and is hereby marked as withdrawn, leaving SC Petition No E011 of 2024 Okiya Omtatah Okoiti v Portside Freight Terminals Limited & 10 others as the only petition of appeal; and
iii.
There shall be no orders as to costs.
It is so ordered | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/66/eng@2024-11-08 |
Petition E005 of 2024 | Kamau v Karanja & another (Petition E005 of 2024) [2024] KESC 64 (KLR) (8 November 2024) (Judgment) | null | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 November 2024 | 2,024 | Nairobi | Civil | Kamau v Karanja & another | [2024] KESC 64 (KLR) | null | At the heart of the instant case was a long- drawn ownership dispute of the suit property, which began in 1986. The appellant had filed a constitutional petition together with an application under certificate of urgency at the Environment and Land Court (ELC) in 2018. In the two, the appellant applied for interim orders to restrain the respondents from further subdividing, selling, trespassing and or in any manner interfering with the suit property. In response to the application, the 1st respondent raised a preliminary objection on the ground that the court had no jurisdiction to hear the petition as the same did not disclose the rights and the manner in which the respondents violated them; and that both the application and the petition offended section 7 of the Limitation of Actions Act. The ELC agreed and sustained the preliminary objection on two fronts: that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specific constitutional provisions alleged to have been violated, and the reliefs sought; and that the petition was time-barred by virtue of section 7 of the Limitation of Actions Act. The petition at the ELC was thus struck out. Aggrieved, the appellant filed an appeal at the Court of Appeal. The Court of Appeal affirmed the ELC’s decision. Further aggrieved, the appellant filed the instant appeal.
Issues
Whether failure of respondents to participate in proceedings relieved appellants from proving their claims on a balance of probabilities. What was the effect of failure to specify under which limb of article 163(4) of the Constitution under which a litigant was invoking the Supreme Court’s appellate jurisdiction? What were the requirements for one to appeal to the Supreme Court as of right in matters involving the interpretation or application of the Constitution? Held
Both the respondents had not participated in the proceedings despite being accordingly notified of the appeal. Sections 107 and 109 of the Evidence Act cast the burden of proof on a party who desired to get a judgment from the court to prove the existence of any legal right or liability and the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by law that the proof of that fact lay on any particular person. Even though the respondents had not participated in the proceedings, the respondent's absence did not relieve the appellant from proving his claim on a balance of probabilities.
The appellant had not specified under what limb of article 163(4) of the Constitution the appeal had been brought. Given the court’s specialized jurisdiction, a party desiring to invoke its jurisdiction under article 163(4) must specifically identify the limb upon which the petition was premised. In view of the fact that the two avenues of the court's appellate jurisdiction under article 163(4)(a) and (b) of the Constitution were distinct, counsel or a litigant invoking that jurisdiction to appeal a decision of the Court of Appeal must strictly demonstrate either that the appeal was as of right under article 163(4)(a) or that the appeal had been certified as involving a matter of general public importance under 163(4)(b).
It was a basic rule of procedure that jurisdiction must, in the first instance exist when the proceedings were initiated and because the question of jurisdiction was so fundamental, it could be raised at any stage of the proceedings before the final decision was rendered. It could be raised by any party or even by the court suo motu. In fact, it was customary for the court to independently confirm that an appeal had been properly filed and that it had jurisdiction before hearing it.
The onus of proving that the appeal involved a question of constitutional interpretation or application was upon the party relying on article 163(4)(a) of the Constitution. The court did not automatically acquire jurisdiction merely because a party claimed in their pleadings or submissions that the appeal concerned the interpretation or application of the Constitution.
A party must identify with precision the relevant articles of the Constitution that were the subject of interpretation or application and show that the subject of the appeal before the court was the same one upon which either the High Court or courts of equal status and indeed the Court of Appeal based their respective decisions. Where the decision being challenged on appeal had nothing or little to do with the interpretation or application of the Constitution, such a decision could not be the subject of a further appeal to the court under the provisions of article 163(4)(a).
Though the grievance was presented as a constitutional question, there was no constitutional issue involved that required the ELC’s interpretation or application. The question was simply, who between the appellant and the 1st respondent was entitled to the suit property. From the pleadings, the issues raised in the petition were purely factual, and the reliefs sought had no bearing on the application or interpretation of the Constitution at all.
Based on the fact that the petition did not specify what constitutional rights had been violated, the trial court allowed the 1st respondent’s notice of preliminary objection, agreeing that it lacked jurisdiction to entertain the petition. The court struck out the petition for failure to set out the constitutional provisions threatened or violated by the respondents, the specific constitutional provisions violated, and the reliefs sought. The claim was statute-barred in terms of section 7 of the Limitation of Actions Act.
The two courts below were unanimous in their conclusions that the appellant did not particularize or present evidence of how the respondents breached his rights. The petition was dismissed at a preliminary stage without its merits being considered by both courts. Mere citation of constitutional provisions in the pleadings did not in itself bring an appeal within the scope of article 163(4)(a) of the Constitution.
The appellant had failed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution and the matter turned purely on factual issues being camouflaged as constitutional violations, and for which the court lacked jurisdiction to determine.
Appeal dismissed. | Jurisdiction under Article 163(4)(a) of the constitution Constitution
22.
At the onset, we reiterate that the appellant has not specified under what limb of Article 163(4) of the Constitution this appeal has been brought. It is only in paragraph 20 of the written submissions that the appellant has cited a case in reference to Article 163(4)(a) of the Constitution. Is that enough for us to assume that the appeal has been brought pursuant to Article 163(4)(a)? This Court has cautioned, time without number, that, given its specialized jurisdiction, a party desiring to invoke its jurisdiction under Article 163(4) must specifically identify the limb upon which the petition is premised. See Steyn v Ruscone [2013] KESC 11 (KLR) and Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] KESC 75 (KLR).
23.
In view of the fact that the two avenues of this Court's appellate jurisdiction under Article 163(4)(a) and (b) of the Constitution are distinct, counsel or a litigant invoking that jurisdiction to appeal a decision of the Court of Appeal must strictly demonstrate either that the appeal is as of right under (a) of Article 163(4) or that the appeal has been certified as involving a matter of general public importance under (b) of that Article.
24.
It is a basic rule of procedure that jurisdiction must, in the first instance exist when the proceedings are initiated, and because the question of jurisdiction is so fundamental, it can be raised at any stage of the proceedings before the final decision is rendered. It can be raised by any party or even by the Court suo motu.
In fact, it is now customary for this Court to independently confirm that an appeal has been properly filed and that it has jurisdiction before hearing it.
25.
To ascertain whether or not the jurisdiction has been properly invoked, the Court will consider the nature of the pleadings and proceedings in the trial court, the remedy or remedies sought, and the decisions of the superior courts below. The onus of proving that the appeal involves a question of constitutional interpretation or application is upon the party relying on Article 163(4)(a). The Court does not automatically acquire jurisdiction merely because a party claims in their pleadings or submissions that the appeal concerns the interpretation or application of the Constitution.
26.
A party must also identify with precision the relevant Articles of the Constitution that were the subject of interpretation or application and show that the subject of the appeal before this Court was the same one upon which both the High Court or courts of equal status and indeed the Court of Appeal based their respective decisions. Where the decision being challenged on appeal has nothing or little to do with the interpretation or application of the Constitution, such a decision cannot be the subject of a further appeal to this Court under the provisions of Article 163(4)(a).
27.
These are collectively the ratio decidendi to be extracted from our decisions in Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] KESC 9 (KLR), Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission, Ford Kenya & Edith Were Shitandi [2015] KESC 17 (KLR), Opore v Independent Electoral and Boundaries Commission & 2 others [2018] KESC 5 (KLR) and Daniel Kimani Njihia v Francis Mwangi Kimani & Thika District Land Registrar [2015] KESC 19 (KLR). In the latter, we expressly declared that;
“
… the extraordinary standing of this Court would demand that, in principle, litigants be clear as to the terms of the jurisdiction they are invoking. The litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution.” (Our emphasis).
28.
Although we have given the background to this dispute in one of the preceding paragraphs, it bears repeating that, at the heart of this case is a long- drawn ownership dispute of the suit property, which began in 1986. But of immediate relevance to answer is the first question we have framed is a constitutional petition together with an application under certificate of urgency filed at the Environment and Land Court at Nyahururu in 2018. In the two, the appellant applied for interim orders to restrain the respondents from further subdividing, selling, trespassing and or in any manner interfering with the suit property. In response to this application, the 1st respondent raised a preliminary objection on the ground that the court had no jurisdiction to hear the petition as the same did not disclose the rights and the manner in which the respondents violated them; and that both the application and the petition offended Section 7 of the Limitation of Actions Act.
29.
The Environment and Land Court (Oundo, J) agreed and sustained the preliminary objection on two fronts: that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specific constitutional provisions alleged to have been violated, and the reliefs sought; and that the petition was time-barred by virtue of Section 7 of the Limitation of Actions Act. For these two reasons, the petition was struck out. The Court of Appeal affirmed this decision on the second appeal.
30.
The question before us now is whether this appeal meets the criteria for invocation of Article 163(4)(a) as enunciated in Nduttu (supra), Joho (supra), Peninah Nadako Kiliswa (supra), in a long line of such similar decisions. In other words, does this appeal strictly involve constitutional interpretation or application; what were the questions that engaged the two courts below, and how did the two courts resolve the said questions?
31.
It is apparent to us that, though the grievance was presented as a constitutional question, there was no constitutional issue involved that required the ELC’s interpretation or application. The question was simply, who between the appellant and the 1st respondent was entitled to the suit property? It is evident from the pleadings that the issues raised in the petition were purely factual, and the reliefs sought had no bearing on the application or interpretation of the Constitution at all. The appellant simply asked the court to declare;
“
i.
“The proceedings and final orders in Nyahururu Principal Magistrate Court Succession Cause No. 83 of 2006 in respect of the Estate of Hezekiah Karanja Njagi be declared null and void in so far as they pertain to the suit property;
ii.
The issuance of the title deed to the 1st respondent similarly be declared illegal, null and void;
iii.
The subdivision in respect of all that parcel of land, namely, Nyandarua/Olkalau Central/1088 be nullified;
iv.
The title deed issued to the 1st respondent on 31st May 2007 in respect of Nyandarua/Olkalau Central/1088, and all entries or transactions resulting from the said title deed be canceled; and
v.
The 2nd respondent be directed to issue to the appellant a new title deed for all that piece of land, namely, Nyandarua/Olkalau Central/1088.”
32.
Based on the fact that the petition did not specify what constitutional rights had been violated, the trial court allowed the 1st respondent’s Notice of Preliminary Objection, agreeing that it lacked jurisdiction to entertain the petition.
33.
The Court struck out the petition for failure to set out the constitutional provisions threatened or violated by the respondents, the specific constitutional provisions violated, and the reliefs sought. Secondly, the court found that the claim was statute-barred in terms of Section 7 of the Limitation of Actions Act.
34.
There having been no constitutional question before the trial court, none arose, indeed none was expected to arise in the Court of Appeal, which affirmed the decision of the trial court. The Court of Appeal confined its consideration of the first appeal to the trial court’s determination on whether or not the petition raised constitutional issues and whether it was barred by the statute of limitation. The two courts below were unanimous in their conclusions on the twin issues that the appellant did not particularize or present evidence of how the respondents breached his rights. The petition was dismissed at a preliminary stage without its merits being considered by both courts. We reiterate that the mere citation of constitutional provisions in the pleadings does not in itself bring an appeal within the scope of Article 163(4)(a) of the Constitution.
35.
We, therefore, come to the inescapable conclusion that the appellant has failed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution and that, in our view, the matter turned purely on factual issues now being camouflaged as constitutional violations, and for which this Court lacks jurisdiction to determine.
36.
Having arrived at this conclusion, no purpose will be served to go into the second issue framed in this appeal as it does not present exceptional circumstances or distinctive opportunity for the Court to provide interpretive guidance on the question, as was the situation in Rai & 3 others v Rai & 5 others [2013] KESC 21 (KLR); Speaker of the Senate & another v Attorney- General & another; Law Society of Kenya & 2 others (Amicus Curiae) [2013] KESC 7 (KLR); and Sonko v County Assembly of Nairobi City & 11 others [2022] KESC 76 (KLR). This is indeed another of those cases where we must down tools as we do at this stage.
37.
We accordingly dismiss this appeal for lack of merit. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/64/eng@2024-11-08 |
Petition (Application) 42 of 2019 | Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others (Petition (Application) 42 of 2019) [2024] KESC 67 (KLR) (8 November 2024) (Ruling) | null | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 November 2024 | 2,024 | Nairobi | Civil | Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others | [2024] KESC 67 (KLR) | null | By a Judgment dated March 24, 2021, this court made the following orders:
The Petition of Appeal dated November 6, 2019, and filed on November 7, 2019, is hereby allowed.
The Judgment of the Court of Appeal sitting at Nairobi dated September 27, 2019, is hereby quashed and set aside.
For the avoidance of doubt, the Judgment of the High Court delivered on February 26, 2016, is hereby upheld.
The costs of this Appeal shall abide by the outcome of the appeal.
Additionally, the appellant/applicant wrote to the court on April 1, 2021, and May 13, 2021, invoking section 21(4) of the Supreme Court Act, No. 9B of the Laws of Kenya, requesting clarification on the issue of costs in the proceedings before the Court of Appeal. This was followed by the filing of the Notice of Motion on November 23, 2022, and July 9, 2024, seeking clarification regarding the appellant's costs in the Court of Appeal proceedings, Nairobi Civil Appeal No. 141 of 2015. | Upon reviewing the Notice of Motion dated November 23, 2022, and filed on July 9, 2024, the appellant/applicant sought clarification on the costs in the Court of Appeal proceedings, arguing that although the costs of the appeal were awarded to the appellant, the judgment did not pronounce itself on costs before the Court of Appeal. The appellant/applicant contended that, according to the rule of thumb, costs follow the event, as established in the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012. It was urged that, since the appellant was the successful party, the costs should be awarded in their favor and borne by the 1st respondent, the Commission on Administrative Justice.
Despite service of the application and submissions, the respondents did not respond. In considering the application, the court invoked section 21(4) of the Supreme Court Act, which allows for correction of any oversight, clerical error, or error apparent on the face of a judgment or ruling. The court also referred to Rule 28(5) of the Supreme Court Rules, 2020, which permits the review of decisions in exceptional and meritorious circumstances.
The court confirmed that failure to pronounce itself on the issue of costs in the Court of Appeal was an error that could be corrected under the Slip Rule. Referencing the case of Fredrick Outa vs Jared Odongo Okello & 3 Others, SC Petition No. 6 of 2014, the court reaffirmed that such errors must be obvious and not alter the substance of the judgment.
Additionally, the court acknowledged that, while costs generally follow the event, it retains discretion to determine the appropriate party to bear the costs, as stipulated in section 21(2) of the Supreme Court Act. In this instance, the appellant was the successful party, and there was no reason not to award costs for the proceedings in the Court of Appeal.
Finally, the court concluded that the appellant/applicant’s application had merit and issued the following orders:
The Notice of Motion dated November 23, 2022, and filed on July 9, 2024, is hereby allowed.
The Judgment dated March 24, 2021, is hereby reviewed, and the appellant/applicant is awarded the costs of the proceedings in the Court of Appeal in Civil Appeal No. 141 of 2015.
As the respondents did not oppose the motion, no order was made as to costs for this motion.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/67/eng@2024-11-08 |
Petition E003 of 2024 | Mwei v Attorney General & 3 others (Petition E003 of 2024) [2024] KESC 65 (KLR) (8 November 2024) (Judgment) | null | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko | 8 November | 2,024 | Nairobi | Civil | Mwei v Attorney General & 3 others | [2024] KESC 65 (KLR) | null | The Appeal dated 19th January, 2024, and lodged on 4th March 2024, seeks to set aside the Judgment of the Court of Appeal (Ochieng, Achode & Korir, JJ. A) delivered on 25th January 2024 in Samwel Kiplangat Mwei v Attorney General of Kenya & 3 Others, Civil Appeal No. 196 of 2019. The Court of Appeal upheld the High Court (Muya, J.) decision in Samwel Kiplangat Mwei v Attorney General of Kenya & 3 Others, HCCA No. 19 of 2017, which decision, in turn, had upheld the Principal Magistrate’s decision in Samwel Kiplangat Mwei v Attorney General of Kenya & 3 Others, PMCC No. 33 of 2009, which had dismissed the Appellant’s case.
The Appellant, Samwel Kiplangat Mwei, was arrested on or around 15th December 2006 by Officer Munyanja, the 3rd Respondent, on account of a complaint lodged by Johnstone Terer, the 2nd Respondent, alleging that the Appellant had destroyed part of the common boundary between Kericho Chesoen Plot Nos. 34 and 35. He was taken to Bomet Police Station on the same day and later confined by the 4th Respondent, CJ. Opiyo. The Appellant was eventually released without any charges being brought against him.
In response to this, the Appellant filed a suit on 25th February 2009 against the 2nd Respondent for unlawful arrest and confinement, seeking damages for assault, injury, and loss. This suit was initially filed before the Magistrates’ Court and progressed through various stages of litigation, including appeals and the reinstatement of his case after being dismissed for want of prosecution. Ultimately, the Magistrate's Court at Sotik dismissed the Appellant’s case on 21st September 2017, ruling that while the Appellant was arrested and confined, he was released on cash bail and the Respondents had acted legally.
The Appellant then appealed the decision to the High Court, which upheld the decision of the Magistrate’s Court on 25th January 2024. The Court of Appeal subsequently dismissed his appeal in Civil Appeal No. 196 of 2019, which led to the current appeal before the Supreme Court. | The Appellant filed this appeal with the Supreme Court on 19th January 2024, raising four principal grounds, including issues related to the law governing the appeal process, the role of evidence in proving facts, and claims of fraud in the judgment entered against him. The Appellant sought to have the judgment of the Court of Appeal set aside and to confirm the ruling entered on 17th April 2015 by the Principal Magistrate, Hon. P. Olengo.
In response, the Respondents raised a preliminary objection, arguing that the appeal did not meet the jurisdictional threshold under Articles 163(4)(a) and (b) of the Constitution, asserting that the matter did not involve the interpretation or application of the Constitution. The Appellant, in his submissions, contended that the Supreme Court had the jurisdiction to hear the appeal, citing relevant provisions under Article 163(4)(a) of the Constitution and Section 15A of the Supreme Court Act.
The key issue for determination was whether the Supreme Court had jurisdiction to hear the appeal. The Court examined previous rulings and established that a Court cannot entertain proceedings without jurisdiction, as jurisdiction is a foundational requirement. In this case, the Appellant failed to clearly specify the jurisdiction invoked and did not demonstrate that the appeal raised issues concerning the interpretation or application of the Constitution, which would have brought the matter within the Supreme Court’s jurisdiction.
The Court found that the Appellant had not raised constitutional issues in the earlier proceedings in the High Court or the Court of Appeal and that the matter did not transmute into one involving constitutional interpretation. As a result, the appeal was dismissed.
The Supreme Court upheld the preliminary objection raised by the Respondents, ruling that the appeal failed to meet the jurisdictional threshold. The Appellant was commended for his persistence in representing himself, and the Court decided that each party should bear their own costs. Additionally, the security deposit of Kshs. 6,000 was ordered to be refunded to the Appellant.
The final orders were as follows:
The Notice of Preliminary Objection dated 4th April 2024 is upheld.
The Appeal dated 19th January 2024 is dismissed.
Parties shall bear their own costs.
The sum of Kshs. 6,000 deposited as security for costs upon lodging of the appeal be refunded to the Appellant. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/65/eng@2024-11-08 |
Petition E031 of 2024 | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 63 (KLR) (29 October 2024) (Judgment) | null | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21November 2024 | 2,024 | Nairobi | Civil | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] | [2024] KESC 63 (KLR) | null | Three appeals were filed before this Court at the instance of the appellants namely, SC Petition Nos. E031, E032 & E033 of 2024. In addition, two cross appeals were filed jointly by the 15th -19th & 22nd respondents and the 38th -49th respondents, respectively. The appeals primarily revolve around whether the Finance Act, 2023 was enacted in line with the prescribed constitutional and statutory parameters; and the reliefs that can issue upon a court finding a statute unconstitutional. Consequently, on 15th August 2024, this Court on its own motion consolidated the appeals and designated SC Petition No. E031 of 2023 as the lead file. The consolidated appeal challenges the judgment of the Court of Appeal (M’inoti, Murgor and Mativo, JJ.A.) dated 31st July, 2024 in Civil Appeal No. E003 of 2023 as consolidated with Civil Appeal Nos. E016, E021, E049, E064 & E080 of 2023, which declared, inter alia, the Finance Act, 2023 unconstitutional. | null | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/63/eng@2024-10-29 |
Petition (Application) E021 of 2024 | Kenya National Highways Authority v Five Star Agencies Limited & another (Petition (Application) E021 of 2024) [2024] KESC 62 (KLR) (25 October 2024) (Ruling) | null | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 25 October 2024 | 2,024 | Nairobi | Civil | Kenya National Highways Authority v Five Star Agencies Limited & another [2024] | [2024] KESC 62 (KLR) | null | This case concerned an application seeking, inter alia, the striking out of a Petition of Appeal filed under Article 163(4)(a) of the Constitution, which allows appeals to the Supreme Court as of right in matters involving interpretation or application of the Constitution.
The applicant argued that the appeal raised no constitutional issues, either at the trial court or in the Court of Appeal. It was alleged that the respondent was attempting to convert procedural issues relating to garnishee proceedings into constitutional matters, in a bid to avoid the certification requirement under Article 163(4)(b).
The case involved the enhancement of compensation for compulsorily acquired land from Kshs. 87 million to Kshs. 413 million. The appellant was not party to the trial, only sought joinder post-judgment, and thus the applicant contended they had no locus standi to raise the matter as an appeal of right under Article 163(4)(a). | The Supreme Court examined the jurisdictional question by reviewing:
Whether constitutional issues were litigated in the lower courts;
Whether the appellant had locus standi;
Whether the appeal met the threshold under Article 163(4)(a).
The court reaffirmed that for an appeal as of right under Article 163(4)(a):
The issues must have revolved around constitutional interpretation or application before the lower courts;
The Court of Appeal must have made its decision based on those constitutional issues;
The appellant must have actively litigated the issues in the lower courts.
The court referenced earlier rulings, including:
Lawrence Nduttu & 6000 others v Kenya Breweries Ltd – emphasizing that an appeal must stem from constitutional matters determined by the Court of Appeal;
Law Society of Kenya v Communications Authority of Kenya – clarifying that only an aggrieved party with locus standi can bring an appeal under this article.
Upon examination of the record, it was found that:
The issues before the trial court and Court of Appeal related mainly to execution of a judgment through garnishee proceedings, and whether the appellant was a necessary party;
The appellant lacked locus standi, and no constitutional interpretation occurred in the lower courts;
Therefore, the matter did not qualify as an appeal as of right under Article 163(4)(a). | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/62/eng@2024-10-25 |
Application E050 of 2023 | FAAF v RFM & 2 others (Application E050 of 2023) [2024] KESC 61 (KLR) (18 October 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 18 October 2024 | 2,024 | Nairobi | civil | Fatuma Athman Abud Faraj vs Rose Faith Mwawasi ,Judith Malele Mwawasi,Marlin Coram Pownali | [2024] KESC 61 (KLR) | null | Representation:
Ms. Asli Osman for the applicant (Ahmednasir Abdullahi Advocates, LLP)
Mr. Joseph Munyithya for the 1st and 2nd respondents
(Munyithya, Mutungi, Umara & Muzna Co. Advocates)
No appearance for the 3rd respondent
1.
Whereas on 23rd January 2024 six (6) Justices of this Court, with Ouko SCJ being indisposed, in SC Petition No. 17 (E021) and 24 (Eo27) of 2022 (consolidated) - Zehrabanu Janmohamed (S.C Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & Another vs. Nathaniel K. Lagat & 4 Others recused themselves from hearing any matters filed by the firm of M/S Ahmednasir Abdullahi Advocates LLP, or wherein Mr. Ahmednasir Abdullahi, SC appears either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions due to his persistent improper conduct towards the Court; and
2.
Noting however, that prior to making the said order of recusal, this Court had on 23rd December 2023 issued interim ex-parte orders of stay of execution of the Court of Appeal judgment dated 10th November, 2023 in Mombasa Civil Appeal No. E043 of 2023, and stay of proceedings in Mombasa HC Succession Cause No. 200 of 2015 pending the hearing and determination of the instant Motion, which orders have remained in force; and
3.
Bearing in mind that those orders were issued ex-parte, and the nature of the matter, we are constrained by necessity to proceed and make a full determination of this part-heard Motion. However, for the record, save for the present ruling and for the reasons above, our recusal in the Zehrabanu matter, shall apply with equal force to the main appeal being SC Petition No. E035 of 2023 as long as the firm of M/S Ahmednasir Abdullahi Advocates LLP remains on record, or Mr. Ahmednasir Abdullahi, SC appears either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions; and
4.
Cognisant that Mombasa HC Succession Cause No. 200 of 2015, was filed at the instance of Rose Faith Mwawasi (the 1st respondent) and Judith Malele Mwawasi (the 2nd respondent) following the demise of Salim Juma Hakeem Kitendo who died intestate on 22nd May, 2015; and that Fatuma Athman Abud Faraj (the applicant), the 1st respondent, and Marlin Coram Pownali (the 3rd respondent), not only claimed to be the deceased’s widows, but also that their respective children are beneficiaries of the deceased’s estate. However, the applicant disputed this claim contending, that the 1st respondent’s marriage with the deceased was marred with fraud while, on the other hand, the 3rd respondent lacked capacity to solemnise a subsequent marriage with the deceased on account of a previous subsisting monogamous marriage with another man. Furthermore, that one of the 1st respondent’s children namely, SSJHK, was not sired by the deceased while the other three were born out of wedlock hence they were deemed as illegitimate children under Islamic law; and that the 3rd respondent’s child who was born about six months after the celebration of her alleged marriage with the deceased was not entitled to the estate; and | Bearing in mind that the High Court (Onyiego, J.), by a judgment dated 25th March, 2022 found that, the distribution of the deceased’s estate was subject to Islamic law; only the applicant and the 1st respondent were the deceased’s widows; the 1st respondent’s first child, SSJHK (minor), was not a beneficiary to the estate; and where a child is born out of wedlock by a deceased male Muslim, he/she is entitled to be treated as a dependent or beneficiary of the deceased’s estate by virtue of Section 29 of the Law of Succession Act (Cap 160 Laws of Kenya). Towards that end, the court issued the following orders:
“
i.
That it is hereby declared and ordered that the objector (the applicant herein) and the 1st petitioner (the 1st respondent herein) are widows of the deceased and therefore beneficiaries entitled to a share of the estate in accordance with Islamic sharia law. (sic)
...
iii.
The children of the objector known as ASJM (Son), ASJM (Son), BSJM (Son) and MSJM (Daughter) being children born within wedlock are heirs hence beneficiaries to the estate entitled to a share in accordance with the Islamic sharia law. (sic)
...
v.
The fate of the three children sired by the 1st petitioner and the interested party (the 3rd respondent herein) whose paternity is in dispute shall be subjected to a DNA test after extracting samples from their bodies and compared with those extracted from the bodies of at least two of the objector’s children whose paternity is not in dispute. (sic)
v.
For avoidance of doubt, the children to be subjected to DNA test are HSJK (child to the interested party), LSK, TSK and HK (children of the 1st petitioner).
...
viii.
Parties to agree on which of the two children of the objector will donate DNA samples for examination before a mutually agreed laboratory. (sic)
ix.
... a fresh grant do issue to the 1st petitioner and objector jointly.”; and
6.
Appreciating that the applicant and the 3rd respondent challenged the High Court’s decision in the Court of Appeal, Mombasa Civil Appeal No. E043 of 2022, and the said court (Gatembu, Nyamweya & Odunga, JJ.A.) by a judgment dated 10th November, 2023 (the impugned judgment) upheld the High Court’s decision save for the issue of DNA testing. The appellate court found that the issue of DNA sampling had neither been raised by any of the parties nor should it have been the basis upon which the children’s entitlement to the deceased’s estate was determined. Accordingly, the court set aside the order relating to DNA testing and substituted it with an order that the applicant’s, 1st and 3rd respondents’ children are entitled to benefit from the estate of the deceased either as dependants or beneficiaries. The court also remitted the matter back to the High Court for determination of the respective entitlements of the beneficiaries; and
7.
Upon perusing the Notice of Motion dated 14th December, 2023 and filed on 18th December, 2023 by the applicant pursuant to Sections 21 & 23A(1)(a) of the Supreme Court Act (Cap 9B Laws of Kenya) and Rules 31 & 32 of the Supreme Court Rules, 2020 seeking inter alia orders that -
“
…
d.
That this Honourable Court be pleased to issue a stay of execution of the judgment and order of the Court of Appeal at Mombasa Civil Appeal No. E043 of 2023 pending the hearing and determination of the applicant’s appeal against the said judgment.
e.
That this Honourable Court be pleased to issue an order for stay of proceedings at the High Court Mombasa Succession Cause No. 200 of 2015 pending the hearing and determination of the applicant’s appeal.
f.
That this Honourable Court be pleased to issue any other order that it deems just and expedient.
g.
That the costs of the application be in the cause.”; and
8.
Upon considering the affidavit sworn by the applicant in support of the Motion and her submissions of even date to the effect that, she has filed an appeal before this Court, SC Petition No. E035 of 2023, challenging the impugned judgment; the said appeal is arguable as the Court of Appeal failed to appreciate the provisions of Article 24(4) of the Constitution and Section 2 (3) of the Law of Succession Act; in that, the distribution of the deceased’s estate is subject to Islamic law, and as such, illegitimate children cannot inherit from the said estate; the Court of Appeal totally misapprehended the fact that Article 27 of the Constitution which enshrines the right to equality and freedom from discrimination is subject to the limitation/qualification under Article 24(4) of the Constitution in so far as the distribution of the estate of a deceased Muslim is concerned; and that the Court of Appeal’s decision was tantamount to finding that Article 27 reigned supreme over the explicit provisions of Article 24(4) of the Constitution ; and
9.
Taking into account the applicant’s contention that the Court of Appeal had remitted the matter back to the High Court for distribution of the deceased’s estate in terms of the impugned judgment, and in turn, the respondents have since filed an application dated 11th November, 2023 before the High Court for such distribution; therefore, she is apprehensive that the deceased’s estate will be distributed before the appeal herein is determined rendering the appeal nugatory; that the issues raised in the appeal also have a significant bearing on public interest; and that the Motion had met the parameters for granting the orders sought as delineated in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others, SC Applic. No. 5 of 2014; [2014] eKLR (Gatirau Munya Case); and
10.
Upon examinig the replying affidavit sworn by the 1st respondent on 30th April 2024, on her own behalf and the 2nd respondent, the gist of which is that following the High Court judgment, the said court (Mutai, J.) vide a ruling dated 3rd August, 2023 directed that school fees for the applicant’s children as well as a monthly upkeep for the applicant in the sum of Kshs. 340,000 be drawn from the deceased’s estate pending further orders of the court; that the said orders undermine the rights of the other beneficiaries to the said estate since only the applicant and her children are currently benefiting from the estate; that from August, 2023 to April, 2024 the applicant had collected a sum of Kshs. 2,720,000, excluding the amount paid as school fees for her children; the applicant seeks a blanket stay of the High Court proceedings, and there ought to be a balance between the rights of all the beneficiaries; and therefore, this Court should also stay the execution of the aforementioned orders of the High Court of 3rd August,2023; and
11.
Noting that on 23rd December, 2023 this Court issued ex-parte interim orders of stay of execution of the impugned judgment and stay of the High Court proceedings, High Court in Succession Cause No. 200 of 2015 pending the determination of this Motion; and
12.
Further noting that this Court’s jurisdiction regarding issuance of interim orders in the nature of stay of execution and proceedings is aptly delineated under Section 23A of the Supreme Court Act; and that the rationale for such orders is to preserve the subject matter of the appeal pending the resolution of the contested issues as appreciated in Board of Governors, Moi High School, Kabarak & Another vs. Bell & 2 Others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR); and
13.
Upon deliberations on the Motion and the rival arguments, we opine as follows:
i.
The parameters within which this Court may issue orders of stay of execution and proceedings are well settled. An applicant, in that regard, is required to establish that his/her appeal is arguable, and that unless the orders sought are granted, the appeal would be rendered nugatory in the event it succeeds. However, an additional criterion arises where the matter in question has a public interest connotation and in such a case, an applicant is required to also establish that it is in the public interest that the order of stay be granted. See Gatirau Munya Case.
ii.
Having considered the grounds of appeal as advanced in this Motion as well as set out in the applicant’s appeal, we find that the question of the interpretation of Article 27 vis-à-vis Article 24(4) of the Constitution as it pertains to the distribution of the estate of a deceased Muslim calls for our consideration. Therefore, without delving into other grounds and/or the merits of the applicant’s appeal, we find that SC Petition No. E035 of 2023 is arguable. See Kampala International University vs. Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR).
iii.
On the nugatory aspect, we are persuaded that the deceased’s estate may be distributed in terms of the impugned judgment, the subject of the appeal before this Court, SC Petition No. E035 of 2023, which is pending determination. Consequently, we find that the applicant’s appeal may be rendered nugatory unless the orders sought are granted. In any event, nothing has been placed before us to demonstrate that any action(s) taken pursuant to the impugned judgment would be capable of being reversed should the appeal be successful.
iv.
Besides, we are alive to the fact that the determination of the issue(s) in dispute in the applicant’s appeal will have a significant bearing on the distribution of the estates of Muslims who die intestate. In the circumstances, we are convinced that it is in the public interest to issue the orders sought.
v.
Be that as it may, we cannot overlook the 1st and 2nd respondents’ contention that by dint of the High Court’s ruling dated 3rd August 2023, the applicant and her children have solely been benefiting from the deceased’s estate to the exclusion of other beneficiaries. Having weighed the said concern coupled with the fact that the applicant has not denied drawing such amounts from the estate despite the ex-parte interim orders issued by this Court, we find that it is necessary to strike a balance between the rights of all beneficiaries in order to preserve the estate as well to ensure equality of arms between the parties.
vi.
Consequently, we find that the Motion has met the threshold of granting the stay orders sought. In addition, we find that it is also in the interest of justice to issue an order staying further execution of the High Court’s ruling dated 3rd August, 2023 with respect to monies being drawn out of the deceased’s estate pending the hearing and determination of the appeal or further orders of this Court, as the case may be.
vii.
Taking into account the nature of this matter and this Court’s decision in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR, we deem it just to order that each party bears their own costs.
14.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The Notice of Motion dated 14th December, 2023 and filed on 18th December, 2023 is hereby allowed in the following terms:
a.
An order of stay of execution of the judgment of the Court of Appeal in Mombasa Civil Appeal No. E043 of 2023 dated 10th November, 2023 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
b.
An order of stay of the proceedings in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
c.
An order of stay of further execution of the High Court ruling dated 3rd August, 2023 in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023 or further orders of this Court, as the case may be.
ii.
Each party shall bear their costs of the Motion.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/61/eng@2024-10-18 |
Petition (Application) E027 of 2024 | Heineken East Africa Import Company Limited & another v Heineken International BV & 2 others (Petition (Application) E027 & E028 of 2024 (Consolidated)) [2024] KESC 59 (KLR) (Civ) (18 October 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 23rd October 2024 | 2,024 | Nairobi | Civil | Heineken East Africa Import Company Limited vs Heineken International BV and Maxam Limited | [2024] KESC 59 (KLR) | null | Ruling
1.
Two separate appeals, being Petition No E027 of 2024 and Petition E028 of 2024 have been lodged before this court arising out of the Court of Appeal Judgment in Civil Appeal No 403 of 2020 as consolidated with Civil Appeal No E404 of 2020. In Petition No E027 of 2024, the petitioner, Heineken East Africa Import Company Limited has filed a notice of motion application seeking stay of execution of the Court of Appeal Judgment. The 2nd respondent, Maxam Limited on the other hand has filed a notice of motion application seeking to strike out the petition of appeal. In Petition No E028 of 2024, the petitioner, Heineken International BV has similarly filed a notice of motion application seeking stay of execution of the Judgment of the Court of Appeal while the 2nd respondent has equally filed a notice of motion application seeking to strike out the petition of appeal. In order to save on precious judicial time and in view of the related nature of the applications, this ruling disposes the four (4) applications set out above.
i. Petition No E027 of 2024
a. Notice of Motion Application dated 1st June, 2024
2.
The notice of motion application dated June 1, 2024 and filed on June 13, 2024 pursuant to sections 3, 3A, 21(1)&(2) and 23(A) of the Supreme Court Act, and rule 32 of the Supreme Court Rules, seeks, inter alia, an order of stay against the execution and or enforcement of the Judgment delivered on May 24, 2024 by the Court of Appeal at Nairobi in Civil Appeal No. 403 of 2020 as consolidated with Civil Appeal No. E404 of 2020. The application is supported by the affidavit of Kevin Santry, a director of Heineken East Africa Import Company Limited, sworn on June 1, 2024. The petitioner additionally filed submissions dated June 1, 2024, a supplementary affidavit sworn by Victor Mailu, the applicant’s counsel on July 4, 2024, and a Rejoinder dated July 4, 2024.
3.
The petitioner avers that: in a Judgment delivered on July 29, 2019 the High Court awarded the 2nd respondent special damages of Kshs 1,799,978,868.00 and a declaration that the 2nd respondent’s constitutional rights under article 19 and 27 were violated; the Court of Appeal suo moto upheld the High Court’s decision predicated on the imperatives of article 10 of the Constitution when applying or interpreting contract law; it did not consider that the Distribution Agreement expressly excluded compensation for any such losses; and that parties did not have an opportunity to be heard in relation to the novel application of article 10, thereby occasioning violation of article 25(c) of the Constitution.
4.
The petitioner contends that its appeal is arguable and not frivolous, and that unless the order of stay is granted, the appeal, if it were to succeed would be rendered nugatory. It urges that it is in the public interest that the order of stay be granted. To support its averments, it cites this court’s decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC App No 5 of 2014 [2014]eKLR and Kenya Airports Authority vs. Otieno Ragot & Company Advocates SC App No E011 of 2023 [2024] KESC 44 (KLR).
5.
The petitioner further submits that the Court of Appeal perceived a normative basis for award of the special damages as the equity set out in article 10 of the Constitution whereas no such claim was advanced by the 2nd respondent. It urges that its petition raises eight pertinent questions for determination, inter alia: whether the Court of Appeal erred in law by holding that it is an imperative of article 10 when applying or interpreting contract law; whether it is an imperative of article 10(2) of the Constitution that investments made by beer distributors in Kenya constituted irrebuttable goodwill constituting as property; whether the Court of Appeal erred by holding that there was clear presumption that unilateral termination is not available in the distributorship agreement; whether the distributorship agreement could only be terminated by “mutual separation” and which was to be guided by, conform and be consistent with, the imperatives of article 10(2) of the Constitution, and adds that the decision of the Court of Appeal took a trajectory of constitutional interpretation or application which became the basis of the financial award.
6.
It is the petitioner’s case that a bank guarantee for the substantial sum of Kshs 1,799,978,868.00 is at risk of being called in any time by the 2nd respondent. It adds that once it is paid out it will be out of this court’s reach, and further that restitution may be impossible as the 2nd respondent has no known assets, and there is no certainty that the assets will be available at the time of restitution.
7.
The 1st respondent (Heineken International BV), as indicated by its counsel during the mention before the Hon. Deputy Registrar, is not opposed to the petitioner’s application for stay, and therefore did not file a response or submissions to the notice of motion dated June 1, 2024.
8.
In response and in opposition to the application, the 2nd respondent filed the replying affidavit of Ngugi Kiuna, its Managing Director, sworn on July 1, 2024 and submissions dated July 1, 2024. The 2nd respondent contends that: the petitioner has failed to discharge the burden for the grant of an order for stay of execution to the required standard; the Judgment of the Court of Appeal is incapable of execution in any manner whatsoever to warrant an order for stay of execution as it upheld and affirmed the High Court Judgment. This court’s decision in Edwin Harold Dayan Dande & 3 others v Director Public Prosecutions & 2 others Petition 4(E005) of 2024 [2022] KESC 23 (KLR) is cited in this regard. It further avers that the Supreme Court cannot stay execution of a decree pending before the High Court and the proceedings therein, adding that the bank guarantee was issued in compliance with the High Court order made on November 14, 2019 as security for the decretal sum. Therefore, it urges that all matters pertaining to the guarantee can only be addressed before the High Court.
9.
The 2nd respondent avers that: the appeal is not arguable; the issue for determination at the Court of Appeal was a pure and singular contract principle on “repudiatory breach” of the Distribution Agreement; the Court of Appeal did not interpret or apply the Constitution in reaching its determination, but did the opposite, admonishing the High Court for elevating a matter in the realm of private law into a public law dispute by introducing constitutional issues, which were totally unnecessary in the determination of the dispute at the High Court; and further annulled all constitutional interpretations and applications including public law remedies and reliefs introduced by the High Court.
10.
The 2nd respondent further urges that: this court does not have jurisdiction to determine the matter as the Court of Appeal decision was on simple principles of the law of contract; it is not enough to generally plead that the case involves issues of constitutional interpretation and application; only cardinal issues of constitutional law or of jurisprudential moment, legal issues founded on cogent constitutional controversies deserve further input of the Supreme Court under article 163(4)(a); and that challenges of finding or conclusions on matters of fact by the trial court of competent jurisdiction after taking and evaluating evidence do not bring an appeal under the ambit of article 163(4)(a) of the Constitution.
11.
According to the 2nd respondent, the petition seems to be seeking an advisory opinion on matters that may have been discussed by the Court of Appeal, on the effects and consequences of article 10 of the Constitution on private contracts, which did not affect the decision of the Court of Appeal. The 2nd respondent contends that the matters on the face of the notice of appeal require certification under article 163(4)(b) of the Constitution on matters of general public importance before lodging the appeal. It adds that the dispute between the parties is a private contract and therefore the circumstances of public interest do not arise.
12.
On the issue of restitution, the 2nd respondent avers that it was the sole distributor of the petitioner’s Heineken products throughout the Republic of Kenya for over four (4) years with a turnover of billions of shillings per year. It therefore argues that failure of restitution, in the event the petition succeeds is therefore unfounded and is made in bad faith. It adds that in any event the petitioner’s breach of the Agreement had a bearing on the 2nd respondent’s financial status, and it is entitled to enjoy the fruits of the Judgment of July 29, 2019. It submits that it is only just, equitable and in the interest of justice that the petitioner’s application dated June 1, 2024 be dismissed with costs.
b. Notice of Motion Application dated 26th June, 2024
13.
The 2nd respondent filed the notice of motion application dated June 26, 2024 on June 27, 2024 pursuant to articles 163(3)(b), 163(4)(a) and (b), 163(8) of the Constitution, sections 21(1) and (2), 23(2)(i) and 29D of the Supreme Court Act 2011, rules 31(1),(2) and (3), 32 (1)(a) and (b) of the Supreme Court Rules, 2020. The petitioner seeks, inter alia, that the petition of appeal dated June 1, 2024 and filed on June 13, 2024 be struck out for want of jurisdiction, and consequently the notice of motion application dated June 1, 2024 and filed on June 13, 2024 be struck out. The application is supported by the affidavit sworn on June 26, 2024 and the further affidavit sworn on July 15, 2024 both by Ngugi Kiuna.
14.
The 2nd respondent contends that: this court does not have jurisdiction to hear and determine the matter pursuant to article 163(4)(a) as the grounds of appeal set out do not disclose a case involving the interpretation and application of the Constitution; the Court of Appeal determined that it was an error for the trial court to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution as the law of contract is sufficient in the adjudication of contractual cases.
15.
It further argues that: the judges of appeal made minimal and brief reference to article 10 of the Constitution, which reference does not have any significant effect on the final outcome of the Judgment; the petitioner has not demonstrated the impact or the effect the reference of article 10 had on the entire judgment; the reference on article 10 was peripheral and not central to the final determination; the Court of Appeal was clear on the import of article 10 of the Constitution; it expressly stated that its decision was based on the principles of the “law of contract” and not the interpretation of the Constitution; and further that the petitioner has not controverted the deficiency and incompetence of the notice of appeal, and therefore admits and concedes that the court does not have jurisdiction.
16.
Its case is that the petitioner and the 1st respondent succeeded in eliminating all references to the interpretation and application of the Constitution which the High Court had erroneously relied upon, and it is only the 2nd respondent that can competently urge the reinstatement of the constitutional interpretation and application which were in its favour, but dismissed by the Court of Appeal. The 2nd respondent further urges that the petitioner cannot invent a cause of action that has not been declared in the limited and self-contained Notices of Appeal to revive the dismissed constitutional matters in order to impermissibly base its appeal to the Supreme Court. It adds that the constitutional anchoring is not disclosed on the face of the notice of appeal, references to article 10 of the Constitution is an afterthought to circumvent the mandatory requirement of seeking certification, and that the decision of the Court of Appeal is based on the concept of “repudiatory breach” and not on any constitutional premise.
17.
The 2nd respondent avers that the Judges of the Court of Appeal evaluated all the evidence, submissions and documents tendered during the trial at the High Court in arriving at the conclusion that the letter and Notice of Termination dated January 27, 2016 issued by the petitioner and the 1st respondent on a “without prejudice” basis could not be construed as amounting to a lawful or valid Notice of Termination under Clause 17 of the Distribution Agreement. It adds that in its dispositive decision, the Court of Appeal relied on the House of Lords decision in Attorney General v Blake [2000] 4 All ER 385 on the award of restitutionary damages for breach of contract and not on any interpretation or application of the Constitution. To support its case, it relies on this Court’s decisions in Lawrence Nduttu & 6000 others vs. Kenya Breweries Ltd. & Another [2012]eKLR, Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR and Espie Njuguna & 46 others vs. Spire Properties K Limited & 12 others Pet.No.28 (E030) of 2022 [2023] KESC 37 (KLR) to urge that this court does not have jurisdiction to hear and determine the matter pursuant to article 163(4)(a) of the Constitution.
18.
In response and in opposition to the application, the petitioner filed the replying affidavit of Victor Mailu, its counsel on record sworn on July 11, 2024 and submissions dated 1July 1, 2024. The petitioner urges that: contested issues before the superior courts revolved around the interpretation or application of various constitutional provisions; in the Re-Amended Plaint filed at the High Court, the 2nd respondent alleged that the petitioner’s and the 1st respondent’s actions were in violation of Articles 19 and 27 of the Constitution; the High Court in its Judgment applied or interpreted the constitutional issues declaring that the petitioner’s and 1st respondent’s actions were in violation of article 19 and 27(2) of the Constitution; the Court of Appeal held that the declarations under article 19 and 27(2) were unnecessary under the principle of constitutional avoidance; the Court of Appeal invoked article 10 of the Constitution as a normative basis for application of ‘good faith, equity and fairness’ as applicable in interpreting contract law, and justified the award of special damages; the interpretation of contract law took a constitutional trajectory as the court stated that, the law of contract must now be read and applied inside the baseline threshold prescribed by article 10(2)(b) of the Constitution; the appeal before this court challenges the application of article 10 of the Constitution to private contracts; and the points of law raised and facts in the petition of appeal are based on the application or interpretation of constitutional issues.
19.
The petitioner further avers that: the application and interpretation of contract law within imperatives set by article 10 was invoked by the appellate court in its Judgment whereas no party made a plea nor arguments; the appellate court further held that the commercial relationship between the parties was sui generis and the award of special damages was justified on the basis on article 10 of the Constitution; its notice of appeal meets the requirements of rule 36(2)(a) of the Supreme Court Rules by specifying the dispositive parts of the appellate court’s judgment which is subject of the appeal; and that the 2nd respondent’s application is bad in law and an abuse of the court process. To support its averments, the petitioner relies on this court’s decisions in Peter Munya (supra); George Mike Wanjohi vs. Steven Kariuki & 2 others App. No. 6 of 2014 [2014]eKLR; Geo Chem Middle East vs. Kenya Bureau of Standards SC Pet. No. 47 of 2019 [2020] KESC 1 (KLR) and Anami Silverse Lisamula vs. Independent Electoral and Boundaries Commission & 2 others [2019] KESC 55 (KLR) and urge that the appeal took a trajectory of constitutional interpretation or application.
(ii) Petition No E028 of 2024
a. Notice of Motion Application dated 24th June, 2024
20.
The petitioner, Heineken International BV has filed the notice of motion application dated June 24, 2024, but within Application No. E021 of 2024. The application is filed pursuant to sections 3, 3A, 21(1) and (2), 23A and 24 of the Supreme Court Act, 2011 and rules 3(5) and 31(6) of the Supreme Court Rules, 2020 seeking, inter alia, a stay of execution and/or enforcement of the entire Judgment and resultant order of the Court of Appeal delivered on May 24, 2024 in Civil Appeal No 403 of 2020 as consolidated with Civil Appeal No E404 of 2020.
21.
The application is premised on the grounds on the face of the application and the supporting affidavit sworn on June 24, 2024 by Kevin Santry, a director of Heineken International BV and submissions dated July 24, 2024. The petitioner avers that its appeal is arguable with decent prospects of success, and has met the threshold set in Kenya Electricity Transmission Ltd v Instalanciones Inabensa S.A [2021] eKLR. It argues that the appeal raises weighty constitutional issues premised on the Court of Appeal’s erroneous introduction of new issues and article 10(2) of the Constitution suo moto as they were never pleaded or submitted upon by the parties at the High Court or Court of Appeal. It avers that the appellate court exceeded its jurisdiction under article 164(3) of the Constitution and was in violation of the petitioner’s right to property, fair trial, fair administrative action and access to justice provided under articles 40, 25(c), 47, 48 and 50(1) and (2) of the Constitution.
22.
According to the petitioner, the Court of Appeal erred gravely by suo moto applying the national values and principles of governance under article 10(2) to: establish and make a finding of a repudiatory breach of the Distributorship Agreement; to determine and award special damages to the 2nd respondent for loss of business amounting to Kshs 1,799,978,868.00 in violation of the petitioner’s constitutional rights; to find that the 2nd respondent created substantial goodwill for the petitioner; and holding that the special relationship between beer manufacturers and distributors creates an inherent power imbalance favouring manufacturers was sui generis and therefore any mutual separation must conform to the imperatives of article 10(2) of the Constitution.
23.
The petitioner contends that the appeal will be rendered nugatory if the execution of the appeal is not stayed, the Court of Appeal having ordered and upheld the High Court award of the sum of Kshs.1,799,978,868.00. It argues that the amount is colossal and cannot be recovered from the 2nd respondent, who had previously admitted that it is financially ailing and has no known assets. Further, the 2nd respondent has taken positive steps to commence execution including filing of an application dated June 6, 2024 seeking leave to execute the High Court’s decree issued on August 15, 2019 before taxation and the final determination of its bill of costs dated August 1, 2019. It avers that the High Court issued directions for the expedited hearing of the application and directed parties to return to court on July 4, 2024 to obtain a ruling date.
24.
The petitioner posits that the petition raises issues pertinent to the public interest as the consolidated Judgment of the Court of Appeal will affect contract law in Kenya and the manner in which distribution agreements particularly in the beer industry will be performed, enforced and interpreted going forward. It relies on this court’s decisions in Peter Munya (Supra), Board of Governors, Moi High School Kabarak & Ano. vs. Malcolm Bell [2013] eKLR where it was held that the court’s capability to arrive at a just decision on the merits of the appeal would be substantially diminished unless the court was able to make an interlocutory order to preserve the subject matter of the dispute.
25.
The 1st respondent (Heineken East Africa Import Company Limited), informed the court during the mention before the Hon Deputy Registrar that it supports the petitioner’s application for stay, and therefore did not file a response or submissions to the notice of motion dated June 24, 2024.
26.
In response to the application, the 2nd respondent filed the replying affidavit of Ngugi Kiuna sworn on July 5, 2024, and submissions dated July 8, 2024. The deponent reiterates the averments as was set out in the replying affidavit sworn on July 1, 2024 in response to the 1st respondent’s application for stay dated June 1, 2024 filed in Petition No E027 of 2024. The 2nd respondent’s submissions are also a replica of the submissions dated July 1, 2024 filed in Petition No E027 of 2028 and therefore we shall not rehash the averments therein. The 2nd respondent urges that: the court does not have jurisdiction to stay the proceeding pending before the High Court; the petition is not arguable as it is incompetent for want of jurisdiction; the court does not have jurisdiction pursuant to article 163(4)(a) of the Constitution and therefore, the application dated June 24, 2024 ought to be dismissed with costs to it.
b. Notice of Motion Application dated 8th July, 2024
27.
The 2nd respondent, Maxam Limited filed the notice of motion application dated July 8, 2024 pursuant to articles 163(3)(b), 163(4)(a) & (b)163(8) of the Constitution, sections 21(1) & (2), 23(2)(i) and 29D of the Supreme Court Act 2011, rule 31(1),(2)&(3), 32 (1)(a)&(b) of the Supreme Court Rules 2020, seeking, inter alia, that the petition of appeal dated June 24, 2024 and filed on June 27, 2024 be struck out for want of jurisdiction, and consequently the notice of motion application dated June 24, 2024 and filed on June 27, 2024 be struck out for want of jurisdiction.
28.
The application is supported by the affidavit of Ngugi Kiuna sworn on July 8, 2024. The 2nd respondent also filed submissions dated July 8, 2024. The application and submissions are similar to those dated June 26, 2024 filed in Petition No E027 of 2024. The 2nd respondent additionally filed a further affidavit sworn on July 17, 2024 by Ngugi Kiuna and further submissions of even date. The 2nd respondent maintains that this court does not have jurisdiction to hear and determine the petition of appeal citing this court’s decisions in Espie Njuguna (supra), Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] KESC 36 (KLR), Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others [2017] KESC 11 (KLR) to urge that the Court of Appeal did not interpret or apply the Constitution and adds that the petition is an attempt to craft a backdoor jurisdictional creep to this court.
29.
In response and in opposition to the notice of motion application dated July 8, 2024, the petitioner filed the replying affidavit of Ikoha Muhindi, the petitioner’s Counsel on record sworn on July 16, 2024, and submissions dated July 16, 2024. The petitioner urges that: its application dated June 24, 2024 is properly before court as the proceedings in the matter relate to interpretation and application of the Constitution and therefore within the purview of article 163(4)(a) of the Constitution; the High Court applied both article 19 and 27(c) of the Constitution and issued declarations that the petitioner’s and 1st respondent’s actions were in violation of article 19 of the Constitution and that the conduct of offering lower market prices to other distributors of the Heineken Lager beer, approving higher market prices to the 2nd respondent on the same products and arbitrarily reducing the 2nd respondent’s approved margins as discriminatory and offended article 27(2) of the Constitution; and that the Court of Appeal engaged in and analysed the application of article 19 and 27(c) of the Constitution, and suo moto introduced and determined interpretation and application of article 10(2) of the Constitution on the Distribution Agreement.
30.
The petitioner further submits that the crux of the Court of Appeal’s decision was premised on heavy reliance and novel interpretation and application of article 10(2) of the Constitution to the Distribution Agreement on: the extension of national values and principles of governance to a private agreement between the 1st and 2nd respondents; interpretation of article 10(2) to conclude that the investments made by beer distributors constitute irrebuttable goodwill protected as property under constitutional principles; by applying article 10(2) the appellate court concluded that the appointment of third party distributors by the petitioner and the 1st respondent constituted a repudiatory breach of the Distribution Agreement leading to the award of special damages for business losses; holding that the relationship between beer manufactures and distributors was sui generis creating a power imbalance that must conform to the principles of article 10(2) of the Constitution; and that it applied article 10(2) to find that the 2nd respondent was in fact and in law a business joint venture of the petitioner and the 1st respondent entitling the 2nd respondent to share in the petitioner’s profits thus redefining the nature of the contractual relationship implying that the constitutional principles of fairness and equity necessitate profit sharing arrangements even in the absence of explicit contractual terms.
31.
The petitioner further avers that its notice of appeal meets the statutory requirements of rule 36(2)(a) of the Supreme Court Rule. It urges that the 2nd respondent’s application lacks any legal basis and is intended to delay the hearing and determination of the petition and stay application, thus it ought to be dismissed with costs. | 32.
Jurisdiction is a preliminary issue and ought to be dealt with at the onset. Without jurisdiction a court is obligated to down its tools as it does not have the power to adjudicate upon the proceedings before it.
33.
This court has settled with finality its jurisdiction pursuant to article 163(4)(a) of the Constitution in several of its decisions. We have held that not all intended appeals lie from the Court of Appeal to the Supreme Court. It is only those appeals arising from cases involving the interpretation or application of the Constitution that can be entertained by this court. In Lawrence Nduttu (supra) we stated as follows
“
(27)
… it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application. [28] The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a). If an appeal is challenged at a preliminary level on grounds that it does not meet the threshold in article 163(4)(a), the court must determine that challenge before deciding whether to entertain the substantive appeal or not. But the court need not wait for a preliminary objection before applying the test of admissibility in article 163(4)(a). It is the court’s duty as the ultimate custodian of the Constitution to satisfy itself that the intended appeal meets the constitutional threshold.”
34.
In Hassan Joho (supra) we stated that:
"
[37]
…the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution.”
35.
As we determined in Rutongot Farm Ltd v Kenya Forest Service & 3 others SC Petition No 2 of 2016 [2018] eKLR, the questions that need to be answered are: (i) What was the question in issue at the High Court and the Court of Appeal? (ii) Did the superior courts below dispose of the matter after interpreting or applying the Constitution? (iii) Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?
36.
The genesis of the dispute between the parties is the Distribution Agreement dated May 21, 2013 made between Heineken East Africa Import Company Limited and the 2nd respondent, for a term of three (3) years with effect from May 1, 2013. The Agreement was to automatically be extended for a period of one year and subsequent one-year periods unless terminated by either party giving the other written notice of termination within three (3) months. On January 27, 2016 Heineken International BV issued Maxam Limited, the 2nd respondent with a termination notice. Aggrieved by this action, the 2nd respondent instituted a suit vide a Re-Amended Plaint dated December 18, 2013 seeking several orders inter alia: a permanent injunction restraining the petitioner and the 1st respondent from, (a) terminating the Distribution Agreement and (b) appointing any other distributor for the distribution of the Heineken larger beer brand in Kenya; a declaration that the Notice of Termination from the 1st respondent to the 2nd respondent was unlawful, irregular, unprocedural and therefore null and void ab initio; a declaration that the Kenyan Distribution Agreement dated May 21, 2013 between the petitioner and the 1st respondent is in full force and effect as per the terms and conditions set out therein; a declaration that the petitioner and 1st respondent’s actions and breaches aforesaid have infringed on the 2nd respondent’s rights as protected by article 19 of the Constitution; and a declaration that the petitioner and 1st respondent’s conduct of offering lower market prices to other distributors of the Heineken Lager Beer, approving higher market prices to the 2nd respondent on the same products and arbitrarily reducing the 2nd respondent’s approved margins is discriminatory and offends the provisions of article 27(2) of the Constitution.
37.
We note that in its judgment, the High Court framed the issues for determination as: whether the Distribution Agreement is admissible for want of Stamp Duty; whether there was breach of legitimate expectation; whether the termination notice was valid and whether the 2nd respondent is entitled to any remedy. From the issues set out, we note that none concerned an interpretation or application of the Constitution. In its Judgment the court mainly addressed the termination of the Distribution Agreement. It held that: the termination notice was not issued in accordance with clause 18 of the Agreement as no reason was given for termination of the agreement; the notice thus did not result in termination of the subsisting Agreement of May 21, 2013; and the Agreement was constructively terminated by the deliberate appointment of numerous other distributors even after the reinstatement of interim orders by the trial court on August 28, 2017 without the issuance of any fresh legally binding Termination Notice.
38.
On the award of the claim of special damages, reliance was placed on a Valuation Report produced by an expert witness to prove the claim of Kshs 1,799,978,868.00. The trial court found that the special damages were pleaded and proved. It noted that the Valuation Report was also neither challenged nor controverted by any expert witness of equal measure on the part of the petitioners and as such was an admission on their part. The court thus amongst other orders, awarded the sum of Kshs.1, 799,978,868.00 as special damages for loss of business as tabulated by the 2nd respondent. Although one of the prayers sought by the 2nd respondent in the re-amended plaint and the declaration made in the Judgment that the petitioner and the 1st respondent’s actions were in violation of article 19 and 27(2) of the Constitution, this order had no impact on the main question on the validity of the termination notice issued to the 2nd respondent.
39.
The petitioners anchor their respective appeals on what the Court of Appeal stated concerning article 10 of the Constitution. From a perusal of the appellate court’s Judgment we note that the court made findings concerning article 10 of the Constitution at paragraphs 63, 130, 131 and 145 of the Judgment. This is to the effect that, “the law of contract must now be read and applied inside the baseline threshold prescribed by article 10(2)(b) of the Constitution” and that “the courts are therefore bound by the imperatives set out in article 10 when applying or interpreting contract law.” The Court of Appeal further stated that, “in the assessment of damages arising from a breach of exclusive beer distribution agreements, being a sui generis class, requires that the special commercial and legal characteristics of these agreements are taken into account. We also accept the proposition that, consistent with the sui generis nature of this commercial relationship, and as an imperative of article 10(2) of the Constitution investments made by beer distributors in Kenya constitute irrebuttable goodwill, automatically qualifying as property.”
40.
We however note that the Court of Appeal held that it was in error for the trial court to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution. In this respect, it found that the Law of Contract was sufficient in the adjudication of contractual cases when applied in the context of the procedural imperatives contained in article 159(2)(d) (without undue regard to procedural technicalities) and article 10 (national values) of the Constitution. The Court of Appeal dismissed the appeals save for the grounds of legitimate expectation and the order for account for profits. It set aside the injunction order terminating the distribution agreement and appointing any other distributor including the declaration that there was a violation of article 19 and 27(2) of the Constitution. The appellate court upheld the award of special damages for loss of business of Kshs.1,799,978,868.00 to be paid by the petitioners arising from their repudiatory breach of the Kenya Distribution Agreement and the declaration issued by the High Court that the Notice of Termination was unlawful, irregular, unprocedural and therefore null and void.
41.
It is clear that whereas there was mention of constitutional provisions by the High Court and the Court of Appeal, the material question before the two superior courts was on the validity of the termination notice issued to the 2nd respondent. In arriving at its final orders, the two courts examined the Distribution Agreement, in the grant of the orders sought. Its final determination was therefore not pegged on and indeed had nothing to do with the interpretation or application of the Constitution. The petitioners have urged that the Court of Appeal’s decision took a constitutional trajectory based on its finding on article 10 of the Constitution. An examination of the judgment of the appellate court demonstrates that whereas there was a mention of article 10(2) of the Constitution, this was only to aid the court but had no impact on the final decision as the court. Further, the appellate court even held that the law of contract was sufficient in determining the matter and found that the trial court erred to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution.
42.
In Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others Petition 4 of 2015 [2017] KESC 11 (KLR) where this court was faced with a similar issue, we stated as follows:
“
…Although the superior courts may have made reference to certain provisions of the Constitution, it was only in broad terms in the spirit of the new constitutional order, which requires that all decisions made by any public organ, officer or person, must lie in consonance with certain constitutional signals. In that regard, the Constitution is a living charter which governs our daily lives. Hence the pertinence of the Industrial Court’s finding that the 1st respondent, in making its decisions, is to be guided by the values and principles enshrined in article 10 of the Constitution. To answer the question, therefore, whether article 10 of the Constitution was the subject of the court’s interpretation, we find that the appellant’s case at the Industrial Court, as well as the 1st respondent’s case at the Court of Appeal, squarely entailed the interpretation and application of the terms of the Employment Act and the Labour Relations Act, in so far as their focal point was the issue of redundancy. All references to the terms of the Constitution were guided only by the object of incorporating this charter’s spirit, values and principles.”
43.
In Benson Ambuti Adega (supra) we held that where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this court may not be properly invoked. The mere reference to the rich generality of a constitutional principle as the Court of Appeal did in the present case on article 10 is not a sufficient ground to invoke article 163(4)(a). A perusal of the judgment of the Court of Appeal demonstrates that the main issue concerned the validity of the termination notice pursuant to the Distribution Agreement. We note that the court based its decision mainly on the repudiatory breach of the contract. At paragraph 108, the court held as follows:
“
The appointment of the third party distributors by Heineken EA and Heineken B.V during the litigation between the parties was accordingly in breach of Clause 26 of the Kenya Distribution Agreement. In addition, since the appointment of the third party distributors essentially terminated the exclusive nature of the Kenya Distribution Agreement, we find it to have been a repudiatory breach by Heineken E.A and Heineken BV, as it essentially deprived Maxam Ltd of the core benefit of the Kenya Distribution Agreement.”
44.
Further in its final orders at paragraph 155, Order No 5 it stated; “We affirm and uphold the award by the High Court to Maxam Ltd of special damages for loss of business of Kshs 1,799,978,868.00 to be paid by Heineken EA and Heineken BV, arising from their repudiatory breach of the Kenya Distribution Agreement.” This was not based on the interpretation or application of the Constitution, specifically of article 10(2). The interpretation or application of article 10 therefore had a limited bearing to the decision of the Court of Appeal. It is crystal clear to us that the petitioners’ cases do not meet the requisite jurisdictional threshold under article 163(4)(a) of the Constitution.
45.
Having determined that we have no jurisdiction to determine the appeals, the notice of motion applications seeking stay of execution fall by the way side.
46.
Consequently, for reasons aforesaid, we make the following orders:
i.
The notice of motion application dated June 26, 2024 and filed on June 26, 2024 be and is hereby allowed;
ii.
The notice of motion application dated July 8, 2024 and filed on even date be and is hereby allowed;
iii.
The notice of motion application dated June 24, 2024 and filed on June 27, 2024 is hereby struck out for want of jurisdiction;
iv.
The notice of motion application dated June 1, 2024 and filed on June 13, 2024 is hereby struck out for want of jurisdiction;
v.
The Petition of Appeal No E027 of 2024 dated June 1, 2024 and filed on June 13, 2024 is hereby struck out for want of jurisdiction;
vi.
The Petition of Appeal No E028 of 2024 dated June 24, 2024 and filed on June 27, 2024 is hereby struck out for want jurisdiction;
vii.
We hereby direct that the sum of Kshs 6,000/= deposited as security for costs in Petition of Appeal No E027 of 2024 and Appeal No E028 of 2024 herein be refunded to the petitioner.
viii.
There shall be no orders as to costs.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/59/eng@2024-10-18 |
Application E020 of 2024 | Njenga v Masto Holdings Limited & 4 others; The Co-Operative Bank Of Kenya (Interested Party) (Application E020 of 2024) [2024] KESC 60 (KLR) (18 October 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 18 October 2024 | 2,024 | Nairobi | Civil | Judith Wanjiru Njenga vs Masto Holdings Limited and PM Ng’Ang’A and The Chief Land Registrar and The Attorney General and National Land Commission and The Co-Operative Bank Of Kenya | [2024] KESC 60 (KLR) | null | Representation:
Mr. Mbichire for the Applicant
(Mbichire & Company Advocates)
Dr. Muthomi Thiankolu for the 1st Respondent
(Muthomi & Karanja Advocates)
Mr. William Muthee for the Interested Party
(TripleOK Law LLP Advocates)
1.
Upon reading the Motion dated June 19, 2024and filed on June 25, 2024by the applicant, pursuant to articles 47, 48, 50, 163(4)(b) of the Constitution, section 3, 3A and 23A of the Supreme Court Act, rule 32 of the Supreme Court Rules, 2020 seeking the following orders:
1.
That this Honourable Court be pleased to grant a stay of execution of the Judgment of the Court of Appeal at Nairobi delivered on the April 26, 2024by Honourable Justices F Tuiyott, L. Achode and M Gachoka JJ A in Civil Appeal No 632 of 2019 Mastro Holdings Ltd v Judith Njenga & 4 others pending the determination of the Certification Application filed in Civil Application SUP No E010 of 2024 before the Court of Appeal;
2.
That this Honourable Court be pleased to issue a temporary injunction restraining the 1st respondent, its members, its agents, servants, employees and/or representatives from entering, taking possession of and in any other manner interfering with the suit property namely LR No 209/522/2 pending the determination of the Certification Application filed in Civil Application SUP No E010 of 2024 before the Court of Appeal;
3.
That this Honourable Court be pleased to grant such other appropriate relief as it deems fit to give effect to the orders sought herein; and
4.
That costs of this application be provided for; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit by Judith Wanjiru Njenga sworn on June 19, 2024and written submissions of even date wherein the applicant contends that she has been the registered proprietor of LR 209/522/2 (hereinafter the “suit property”) which has been the subject matter of several suits between herself, the 1st respondent and the interested party herein on allegations that the suit property was charged to the interested party and sold to the 1st respondent; she contends that the suit property comprises her matrimonial home to which she holds an original title; that the 1st respondent produced a fraudulent copy of title and which has never been verified by lands office or supported by any search nor was the original copy produced in court. After a protracted court battle before the Environment and Land Court, the Court (Bor J) found in favour of the applicant issuing a permanent injunction against the 1st respondent stopping him from harassing, evicting, trespassing upon or in any manner interfering with the suit property; upon appeal by the 1st respondent, the Court of Appeal overruled the trial court and revoked the applicant’s title, ordered for rectification of the register in favour of the 1st respondent, issued a permanent injunction against the applicant and ordered for the applicant’s eviction to be enforced by the OCS Central Police Station; the Court of Appeal granted the applicant reprieve of sixty (60) days from the date of the judgment to vacate the land, failing which she would be evicted.
3.
Further, aggrieved by the decision of the Court of Appeal, the applicant lodged an application on May 17, 2024seeking leave to appeal and certification to appeal under article 163(4)(b) of the Constitution, which application was heard on June 11, 2024 and ruling reserved for November 8, 2024; that her application seeking stay of execution and/or status quo was rejected by the Court of Appeal on account of lack of jurisdiction; that should her application for certification and eventual decision by this Court be successful, it would amount to an act in futility as the 1st respondent would have proceeded with her eviction from the suit property; that her application before this court is merited as her intended appeal is arguable urging that the Court of Appeal disregarded any attempt to interrogate the issues of validity of the instrument of charge that gave rise to the statutory power of sale and ended up validating a charge that was not registered against the title; the Court of Appeal further failed to rule as regards the operational parts of the transfer of a proprietary right or interest in property under the provisions of section 23(1) of the Registration of Titles Act and whether the provisions of section 69 (B) (2) of the Indian Transfer of Property Act are absolute and afford protection to a ‘purchaser’ even where there was a flawed process followed in the exercise of a statutory power of sale.
4.
Moreover, the applicant adds that the decision by the Court of Appeal was in conflict with the dicta in the decision by this court in Dina Management Limited vs County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR); that due to the date given for the ruling on certification, she is left exposed to eviction pursuant to the orders in the Judgment of the Court of Appeal as the sixty(60) days granted in the judgment expired on 25th June, 2o24; she adds that she is aged 80 years old and has been in occupation of the suit property for over 50 years (since 1974) and without the stay of execution she will be forcefully evicted which will cause her irreparable harm that cannot be compensated by any form of damages.
5.
Additionally, the applicant acknowledges that the rules of this court, in particular, rule 31(2) of the Supreme Court Rules, 2020, do not permit applications to be brought before a petition is lodged; she, however, urges that this court is her saving grace to help her maintain her home and preserve the suit property; she implores the court to exercise its jurisdiction to grant conservatory status quo orders under its inherent powers to prevent a miscarriage of justice and preserve the subject matter of the intended appeal; she cites the cases of Deynes Muriithi & 4 Others vs Law Society of Kenya & Another [2016] e KLR and Board of Governors, Moi High School, Kabarak & Another vs Bell & 2 Others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR) to bolster her plea; and
6.
Upon perusing the response by the 1st respondent by way of preliminary objection dated July 3, 2024 anchored on sections 15B and 23A of the Supreme Court Act and rules 31(2) and 32 of the Supreme Court Rules, 2020 and submissions dated July 5, 2024; citing the decisions in National Land Commission vs. Tom Ojienda & Associates & 2 Others [2024] KESC 16 (KLR) and Mbugua alia George Boniface Nyanja vs. Iqbal (Personal representative of the Estate of the Late Ghulan Rasool Janmohamed [2024] KESC 41 (KLR) the 1st respondent argues that the court has no jurisdiction on account of the applicant’s Motion being premature or unripe to the extent that the applicant’s right to appeal to this Court has yet to crystallize as her application for certification or leave to appeal is still pending before the Court of Appeal; interlocutory applications in appeals to the Supreme Court can only be filed within an existing appeal; therefore the question of whether the applicant has met the legal threshold for grant of stay of execution or any other relief is equally premature or unripe; it is also argued that the two decisions the applicant relies on being Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] e KLR and Deynes Muriithi & 4 Others vs Law Society of Kenya & another [2016] e KLR are irrelevant and distinguishable as they relate to cases involving appeals as of right under article 163(4)(a) of the Constitution; while the case of Board of Governors, Moi High School, Kabaraka & Another vs. Malcolm Bell [2013] eKLR is equally irrelevant and distinguishable as the applicant therein had already secured certification and timeously filed their Petition and Record of Appeal; this court is urged to dismiss or strike out the application, with costs; and
7.
Upon perusing the preliminary objection dated July 2, 2024and written submissions dated July 4, 2024by the interested party in opposition to the application and on similar grounds as those advanced by the 1st respondent; | Having considered the totality of the applications, responses and rival arguments by the parties, We Now Opine as follows:
i.
Guided by the provisions of section 23A of the Supreme Court Act, this Court has jurisdiction to issue an order for stay of execution, an injunction, stay of further proceedings or any other conservatory or interim orders, on such terms as the Court may deem fit. It is well established following our decision in the case of Gatirau Peter Munya vs. Dickson Mwenda & 2 others, SC Application No. 5 of 2014, [2017] eKLR that an applicant must satisfy the Court that the appeal is arguable and is not frivolous; that unless the orders of stay are granted, the appeal will be rendered nugatory; and thirdly, it is in the public interest that the order of stay be granted.
ii.
However, appreciating what we stated in Aviation & Allied Workers Union Kenya v. Kenya Airways & Others; SC Application No. 50 of 2014, [2015] eKLR that where a court’s jurisdiction, is objected to by any party to the proceedings, such an objection must be dealt with as a preliminary issue, before the meritorious determination of any cause. We must therefore evaluate whether the instant application has met the set jurisdictional threshold.
iii.
Noting that in the cases of James Mbatia Thuo & Ephantus Mwangi v Kenya Railways Corporation & Attorney General of Kenya, SC Civil Application No. 10 of 2017 [2018] eKLR and Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed), SC Misc. Application No. 7 (E011) of 2021 [2021] eKLR this court held that interlocutory applications have no legal basis in the absence of an appeal accompanied by a memorandum of appeal. We further note that this judicial pronouncement is now enacted in the Supreme Court Rules, 2020 in which rule 31(2) provides that: “an interlocutory application shall not be originated before a petition of appeal or a reference is filed with the court.”
iv.
For the above reason, no interlocutory application can be brought before a petition of appeal or reference is lodged. Put another way, an interlocutory application must be based on an existing petition or Reference. We are thus inclined to agree with the 1st respondent and interested party that without a substantive appeal to anchor the applicant’s motion, this Court is bereft of jurisdiction to grant the orders sought.
v.
Further, the applicant states that she had sought conservatory orders of stay of execution before the Court of Appeal but the same was denied due to a lack of jurisdiction. However, having perused the record, we note that the applicant, though represented by counsel, rather than file a proper application under the relevant rules before the Court of Appeal, erroneously sought stay of execution before the Deputy Registrar of the Court of Appeal when the parties appeared for settlement of terms. We say no more on the issue.
vi.
Consequently, while we appreciate and understand the applicant’s circumstances, the court lacks the requisite jurisdiction to grant the orders sought.
9.
Accordingly, and for the reasons aforestated we make the following orders:
i.
The applicant’s Notice of Motion dated June 19, 2024and filed on June 25, 2024be and is hereby dismissed;
ii.
Each Party shall bear their costs of the Application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/60/eng@2024-10-18 |
Petition (Application) E012 of 2023 | Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 58 (KLR) (Civ) (11 October 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 11 October 2024 | 2,024 | Nairobi | Civil | Dari Limited and Raphael Tuju, Mano Tuju, Alma Tuju, YMA Tuju, SAM Company Limited and East African Development Bank
, | [2024] KESC 58 (KLR) | null | 1.
This Ruling disposes of the Notice of Motion dated May 16, 2024and filed on May 17, 2024, seeking stay of this Court’s proceedings pending the determination of the complaint lodged before the Judicial Service Commission (hereinafter JSC) as well as costs. The Motion is brought pursuant to articles 48, 50(1), 163(3) and (4)of the Constitution, Section 24 of the Supreme Court Act, and rule 32 of the Supreme Court Rules. It is instructive to note that prayers 1, 2, and 3 are now spent following the court’s directions for the disposal of the instant application issued on May 21, 2024.
2.
The proceedings before this Court were instituted by the appellants/applicants through their Petition No. E012 of 2023 dated April 25, 2023and lodged on April 26, 2023, against the Judgment of the Court of Appeal (M’inoti, Laibuta & Gachoka, JJA) delivered on April 20, 2023 in Civil Appeal No 70 of 2020. The crux of the appeal is the interpretation of the jurisdiction of the High Court under the Foreign Judgment (Reciprocal Enforcement) Act. We shall say no more on the appeal, its merits or demerits as it is not for determination before us at this juncture.
3.
However, it is imperative to set out in summary the proceedings before this court leading to the instant application. Following the filing of the appeal, on one hand, the appellants/applicants filed the notice of motion(Application E017 of 2023) dated April 25, 2023, seeking stay of execution and stay of proceedings before the High Court. On the other hand, the respondent filed two Motions, Petition (Application) E012 of 2023 dated 2June 3, 2023, and application E017 of 2023 of even date, both seeking to strike out the appellants/applicants’ supplementary affidavits by Raphael Tuju, Amos Oketch and Edward Kenneth Okundi. By a composite Ruling delivered on October 6, 2023, the court disposed of all three applications, dismissed the appellants/applicants’ application and allowed the respondent’s applications.
4.
Aggrieved, the appellants/applicants filed two new applications; Notice of Motion (Application E017 of 2023) dated October 12, 2023, seeking review of the Court’s Ruling dated October 6, 2023; and Notice of Motion (Petition (Application) E012 of 2023) dated October 26, 2023, seeking to strike out the respondent’s replying affidavit sworn by Justa Kiragu on May 12, 2023, or in the alternative, leave to adduce additional evidence in terms of the affidavits of Raphael Tuju, Amos Oketch and Edward Kenneth Okundi sworn on October 26, 2023.
5.
On October 31, 2023, the court issued a hearing notice scheduling the main appeal for hearing on November 13, 2023. Of pertinence is that the two applications were pending when the Court listed the appeal for hearing. In reaction to the hearing notice, by a letter dated November 6, 2023, addressed to the President of the court, the appellants notified the court of the two pending applications and requested the court to have the main appeal set down for hearing after the determination of all the pending applications.
6.
In response, vide a letter dated November 6, 2023, the court through its Deputy Registrar categorically communicated that it had no intention or reasons to rush the matter unprocedurally. Further, that the court’s only objective was to expeditiously dispose of all cases filed before it without undue delay. Noting the pending applications, the hearing notice of November 13, 2023was vacated to allow for their determination. Thereafter, the two applications were determined by way of submissions and dismissed by two separate Rulings dated November 7, 2023.
7.
After the Rulings of November 7, 2023, the appellants/applicants filed two more applications; the Notice of Motion (Petition (Application) No. E012 of 2023) dated January 26, 2024, seeking to adduce additional evidence in a further witness statement dated December 21, 2023, recorded by one David Washington Barnabus Ochieng with the Directorate of Criminal Investigations; and the Notice of Motion (Petition (Application) No. E012 of 2023) dated February 2, 2024, seeking to strike out the respondent’s replying affidavit sworn by Carol Luwaga on January 31, 2014, in response to the latter motion. By a composite Ruling delivered on April 26, 2024, both applications were dismissed.
8.
By a second letter dated February 5, 2024, addressed to the President of the court, the appellants/applicants complained of the manner in which the court handled their applications, challenging the merits of the Rulings of October 6, 2023and November 7, 2023. They accused the court of handling the applications in a manner that led them to believe that the court was working towards a pre- determined outcome. In a response dated February 13, 2024, the full Bench of the court, through the Registrar, acknowledged receipt of the letter dated February 5, 2024, and reassured the appellants/applicants that the Judges were mindful of the oath of office as they discharge their constitutional mandate. Be that as it may, the court made it clear that it cannot be directed as to the manner in which it discharges this mandate.
9.
Subsequently, on April 30, 2024, the appellants/applicants through the firm of Okatch & Partners Advocates, filed a complaint before the JSC against a Bench of the Court (Mwilu, DCJ & VP; Ibrahim, Wanjala, Njoki, & Ouko, SCJJ) that had heard and determined the impugned Rulings. The complaint was brought pursuant to section 3 of the Judicial Service Act, Part II, sections 8,9,11,14,15 and 16 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and section 29E of the Supreme Court Act. The gist of their complaint is that the Court has dealt with applications filed before it and issued case management directions in a manner that disregards the appellants/applicants’ rights to fair hearing and access to justice. Further, that the Court has been working towards a pre-determined goal in the matter.
10.
Thereafter, vide a Notice of Change of Advocates dated May 2, 2024, the appellants/applicants appointed the firm of Okatch & Partners Advocates, to conduct this matter on their behalf and in place of the firm of VA Nyamodi & Company Advocates. Upon the determination of all the pending interlocutory applications, on May 6, 2024, the court issued a hearing notice to the parties scheduling the matter for hearing on May 21, 2024. The court’s hearing notice triggered the instant application under certificate of urgency. Upon considering the Certificate of Urgency, on May 17, 2024, the court directed that the application be mentioned on the May 21, 2024, when the main appeal was scheduled for hearing.
11.
On May 21, 2024, when the appeal came up for hearing, the question of the appellants/applicants’ representation was raised. It was unusually contended that the firm of Okatch & Partners Advocates was on record for the appellants/applicants with regards to the instant application only, while the firm of VA Nyamodi, led by Paul Muite SC (to the exclusion of the firm of Okatch & Partners Advocates) was on record for the appellants/applicants in the main appeal. The court adjourned the hearing pending the determination of the instant application. Moreover, it directed that the application was to be determined by way of written submissions, and issued consequential compliance directions to that effect.
12.
Turning back to the motion before us, we note the grounds on the face of the application, and supporting affidavit sworn by Raphael Tuju on May 16, 2024. Wherein, the appellants/applicants argue that; the jurisdictional issues raised in the appeal transcend the parties’ case and the court’s determination is binding on all the courts below. The deponent avers that the court (specifically Lady Justice Philomena Mwilu (DCJ & VP), Justice Mohammed Khadar Ibrahim, Justice (Dr) Smokin Wanjala, Lady Justice Njoki Ndungu and Justice William Ouko, SCJJ), has ignored important and pertinent matters and procedures that are directly relevant and integral to the main issues in the appeal. It is his assertion that despite the appellants/applicants’ complaints, the Court has ignored or refused to take any action in remedy thereof. The deponent is categorical that the Judges’ actions are not only unfair to the appellants/applicants, they are also indicative of the fact that the court is working towards a predetermined outcome. The deponent goes on to aver that the court has actively and continually worked to defeat the appellants/applicants’ rights to fair hearing and access to justice.
13.
It is the appellants/applicants’ further case that the five Judges have conducted themselves in a manner that is impartial and departs from the basic expectations of a court of law; that the court has fallen short of its mandate under the Constitution; that the said Judges’ conduct falls short of the required standard of conduct under the Judicial Service (Code of Conduct and Ethics) Regulations2020, and the Judicial Service Act; and that the impugned actions and omissions necessitated the filing of the complaint against the five Judges to the JSC.
14.
Consequently, it is their case that once the complaint is heard and determined, the Judges will have a chance to introspect, recalibrate and appreciate the impact of their decisions and the JSC will give proper directions on the hearing of the main appeal. In the foregoing, it is only fair to first allow the complaint before the JSC to run its course, and as such, it is just and equitable that the instant application be determined on a priority basis.
15.
In their submissions dated May 16, 2024, the appellants/applicants reiterate their grounds in support of the application. In addition, they argue that they have completely lost faith in the court’s administration of justice and would ideally call for the recusal of the said Judges. They cite the House of Lords decision in R v Bow Street Metropolitan Stipendiary Magistrates & Others Ex Parte Pinochet Urgate to the effect that where a Judge’s action gives rise to a suspicion of lack of impartiality, this is enough for the Judge to recuse himself from the proceedings. However, they are quick to add that guided by this court’s decisions in Gladys Boss Shollei & Another v Judicial Service Commission and Another (Petition 34 of 2014) [2022] KESC 5 (KLR), despite the fact that they have adduced enough grounds for recusal, the doctrine of necessity and of statutory authority would militate against such a prayer. In the circumstances, they urge that it is only fair for the court to allow the JSC to hear and determine the pending complaint before proceeding to hear the main appeal.
16.
Opposing the motion, the respondent filed its replying affidavit sworn by Carol Luwaga on May 27, 2024, to the effect that the application lacks merit as no justification has been demonstrated for the orders prayed to issue. The respondent states that the application has failed to meet the principles for grant of stay of proceedings and is therefore, one for dismissal. In response to the specific arguments by the appellants/applicants, the respondent sets out in great detail the sequence of the proceedings and court orders issued by this court and the superior courts below, illustrating the appellants/applicants’ continued contempt and disobedience of the same.
17.
Moreover, the respondent sets out the events and parties’ conduct during the proceedings before this court leading to the impugned Rulings, urging that the application fails to demonstrate how the court’s determination would warrant the grant of stay. It is the respondent’s further case that in any event there is no nexus between the appeal and the complaint before the JSC. Furthermore, it is the respondent’s case that the allegations levelled by the appellants/applicants against the court are unsubstantiated by evidence.
18.
The respondent also asserts that the appellants/applicants are undeserving of the orders for stay of proceedings on account of their continuing contempt and non- compliance with the superior court rulings and orders as well as this court’s case management directions. It is also the respondent’s averment that the appellants/applicants have intentionally delayed the conclusion of the dispute; attempted to harass the Judges handling this matter with unsubstantiated allegations of bias and/or applications for their recusal both before the superior courts and this court; continually advanced a false basis for their failure to pay the outstanding loan amount; and therefore, have approached the courts with unclean hands and are underserving of any equity.
19.
In its written submissions dated May 28, 2024, the respondent submits that the appellants/applicants have failed to meet the principles for grant of stay of proceedings under section 23A of the Supreme Court Act settled in Khan v International Commercial Company (K) Ltd (Petition (Application) E009 & E010 of 2023 (consolidated) [2023] KESC 84 (KLR) (Ruling). It emphasises that grant of stay of proceedings is only entertained in very deserving cases, to protect parties’ right to expeditious trials. In any event, it is the respondent’s argument, firstly, that the appellants/applicants have lodged an unsubstantiated complaint before the JSC and failed to expressly identify the law the court has contravened as a consequence of its impugned Rulings or case management directions. The respondent submits that the JSC has yet to acknowledge or confirm the substance of the complaint. Therefore, the mere lodging of the same by the appellant cannot operate as a basis for grant of stay. It is the respondent’s argument that the appellants/applicants have failed to explore all the legitimate avenues for redress before the court including moving the court for review of the impugned Rulings. The respondent submits that the real intention of the appellant vide the instant application, is to inhibit the court from exercising its mandate under article 163 of the Constitution.
20.
Secondly, the respondent submits that the appellants/applicants have not approached the court in good faith and therefore are not entitled to the discretionary prayer sought. The respondent contends that the appellants/applicants have employed reprehensible tactics to delay the conclusion of the appeal including employing calculated and deliberate intimidation of the Judges of the court; their application is not in compliance with the Supreme Court Rules or the Civil Procedure Rules that guide litigation in Kenya; and that the conduct of the appellants/applicants’ counsel is without decorum and does not preserve the dignity of the court.
21.
The respondent relies on this court’s jurisprudence in Odinga & 16 Others v Ruto & 10 Others; Law Society of Kenya & 4 Others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (Judgment); and R v Ahmad Abolfathi Mohamed & Sayed Mansour Mousavi (Petition 39 of 2018) [2019] KESC 48 (KLR) (Judgment) to caution and frown against behaviour unbecoming of advocates, as officers of the court. In conclusion, it is urged that justice delayed is justice denied and the respondent should be allowed to enjoy the fruits of its Judgment based on the foreign court Judgment issued on June 19, 2019. In the circumstances, the respondent urges that it will be greatly prejudiced if the application is allowed.
22.
The court also takes note of the appellants/applicants’ rejoinder affidavit sworn by Raphael Tuju on June 4, 2024and supplementary submissions of even date both filed on June 10, 2024, reiterating the grounds in support of the application. The appellants/applicants also urge the court to render justice and allow the application by exercising its powers to grant discretionary orders under section 24A, or to grant interlocutory reliefs under 24(1) of the Supreme Court Act, or exercise its inherent powers under articles 159, 163 of the Constitution and rule 3(3) and(5) of the Court’s Rules to regulate its own processes as settled in Board of Governors, Moi High School Kabarak & Another v Bell & 2 Others (Petition No 6 &7 of 2013 & Civil Application No 12 &13 of 2012(consolidated) [2013] KESC 12 (KLR) (Ruling). It is also their submission that contrary to the respondent’s argument, the JSC complaint was registered on May 17, 2024 as JSC Petition No 35 of 2024; and the instant application can be distinguished from the facts leading to the Khan v International Commercial Company (K) Ltd [supra] decision, for reasons that the instant application was brought in good faith, filed in the earliest time possible without any delay, and seeks to economically utilise the Court’s time;
23.
Furthermore, the appellants/applicants urge that the complaint before the JSC raises clear grounds of impropriety and misconduct which has affected their perception of fairness; the application is not meant to delay the determination of the appeal before this court; and, even though restrained from arguing the merits of the appeal at this stage, in response to the respondent’s assertions, it is imperative to point out that the Judgment of the foreign court was acquired by reliance on perjured evidence and statement. In conclusion, they contend that the rights to fair hearing and access to justice are inalienable and must be protected by all institutions including the apex court. | 24.
The appellants/applicants herein are seeking a stay order from this court in the most unusual, strange, and we daresay, disingenuous strategy. Through this application, they are moving the court to stay these proceedings awaiting the conclusion and determination of a complaint they have filed at the JSC against the Five-Judge Bench constituted to hear and determine their Appeal. In their Petition before the JSC, the appellants/applicants have brazenly accused the five Judges of impropriety and misconduct. They allege that the Court is working towards a predetermined outcome. The details of their petition have already been highlighted in paragraphs 12, 13, 14 and 15 of this Ruling.
25.
We shall limit ourselves to the technical and substantive adequacy of the Motion before us, so as not to prejudice the appellants/applicants’ prosecution of their petition before the JSC. Towards this end, it is clear that the appellants/applicants are not seeking a stay of the Judgment of the Court of Appeal. Instead, they are seeking a stay of their own appeal pending the determination of a complaint they have filed against the five of us at the JSC. As such, the principles established for grant of stay by this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR are not applicable to this application. In the same vein, it does not require superlative archival effort to discover that there exists no provision of the Constitution, the Supreme Court Act, or Rules of this Court as would entitle a litigant to make such an application.
26.
What is undeniable, is the fact that by resorting to this course of action, the applicants are unequivocally accusing this Bench of lack of impartiality, fairness, and integrity. Such an accusation against a Judge goes to the very core of his/her oath of office. Coming from a party to ongoing proceedings, such an allegation, must strongly persuade the Judge to recuse him/herself from further participation in the proceedings. Indeed, the honourable recourse by the litigant is to seek the recusal of the Judge. This is precisely what has happened to us, save that instead of applying for our recusal, the applicants herein would rather this court stayed the proceedings until the JSC determines their complaint, a very strange move, to say the least.
27.
Having arrived at the inescapable conclusion that we are being accused of bias and working towards an undisclosed predetermined outcome, we are strongly persuaded that our further participation in these proceedings would not serve the ends of justice, at least in the eyes and perception of the appellants/applicants. Consequently, and inevitably, each of us on this Bench does hereby recuse him/herself from further participation in the hearing and determination of the appeal dated April 25, 2023and filed on April 26, 2023.
28.
In taking this decision, we are keenly aware of its consequences on the appeal before us, given the constitutional provisions as to quorum of this court. Indeed, such a decision is one that ought only to be taken very sparingly, on a case by case basis, and in the most compelling circumstances. However, in the face of the accusations of impropriety and bias, levelled against an entire Bench of the court, even the doctrine of necessity cannot be available to the appellant/applicants. Furthermore, what would become of the administration of justice in the Country, if courts of law, leave alone the Supreme Court, were to be required to stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges?
29.
The following Orders shall issue:
i.
The Notice of Motion dated May 16, 2024, is hereby dismissed.
ii.
The Judgment of the Court of Appeal dated April 20, 2023, shall stand until it is either affirmed, or reversed by a competent Bench of this court.
iii.
Each party shall bear its own costs.
It is so ordered. | Dismissed | https://kenyalaw-website-media.s3.amazonaws.com/media/judgment/598445/attachments/854480e38863db19/Ruling-SC_PetitionApplication_No._E012_of_2023_Dari_Limited__5_Others_V_East_African_Development_Bank.docx?X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIAW3MD6KGF6U7CTJHR%2F20250414%2Feu-west-1%2Fs3%2Faws4_request&X-Amz-Date=20250414T102333Z&X-Amz-Expires=3600&X-Amz-SignedHeaders=host&X-Amz-Signature=a8a7eb9dda264f60097913c4f0fe63243bc0ae660e27ccc1e31516fd1618a4bf |
Petition E031 of 2024 | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 57 (KLR) (5 September 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 5 September 2024 | 2,024 | Nairobi | Civil | The Cabinet Secretary For The National Treasury And Planning,The Attorney General,The National Assembly,The Speaker of the National Assembly,Kenya Revenue Authority and Okiya Omtatah Okoiti
,Eliud Karanja Matindi,Michael Kojo Otieno,Benson Odiwour Otieno,Blair Angima Oigoro,Hon Senator Eddy Gicheru Oketch
,Victor Okuna,Florence Kanyua Lichoro,Daniel Otieno Ila,Rone Achoki Hussein,Clement Edward Onyango,Paul Saoke
,Law Society Of Kenya,Azimio La Umoja One Kenya Coalition Party,Kenya Human Rights Commission,Katiba Institute,The Institute For Social Accountability (Tisa),Transparency International Kenya,International Commission Of Jurists-Kenya (Icj Kenya),Siasa Place
,Tribeless Youth
,Africa Center For Open Governance,Robert Gathogo Kamwara,Trade Unions Congress of Kenya , Kenya Medical Practitioners,Pharmacists and Dentist Union, Kenya National Union of Nurses, Kenya Union of Clinical Officers, Fredrick Onyango Ogola, Nicholas Kombe, Whitney Gacheri Micheni, Stanslous Alusiola, Herima Chao Mwashigadi, Dennis Wendo, Mercy Nabwire , Bernard Okelo, Nancy Otieno, Mohamed B DUB, Universal Corporation Limited, Cosmos Limited, Elys Chemical Industries, Regal Pharmaceuticals, Beta Healthcare Limited , Dawa Limited, Medicel Kenya Limited, Medivet Products Limited, Lab and Allied Limited ,BioPharm Limited, Zain Pharma limited, The Speaker of the Senate, Consumers Federation of Kenya ( cofek), Kenya Export Floricullture, Horticulture, and Allied Workers Union, Dr Maurice Jumah Okumu | [2024] KESC 57 (KLR) | null | Upon reading the Notice of Motion dated 29th August 2024 and lodged before this Court on 30th August 2024, by 1st, 2nd 4th & 5th Respondents/Applicants seeking, orders inter alia that-
a.
The directions and orders issued by this Honourable Court in the ruling dated and delivered 20th August 2024, specifically Order No. (iii) be and are hereby varied and set aside.
b.
An Order be and is hereby issued that the 1st, 2nd, 4th, and 5th Respondents herein having filed and transmitted to the Registrar of this Court, and served on all parties, their Notice of Appeal dated 12th August 2024, have up to 24th September 2024 to institute their intended Petition of Appeal.
c.
This Honourable Court do issue fresh directions in line with the Supreme Court Rules, 2020 taking into consideration the timelines and statutory requirements, allowing all parties sufficient time to file and serve their respective pleadings, responses, and any necessary cross-appeals.
d.
The consolidated appeals be rescheduled for hearing on a date that allows all parties adequate time to comply with the procedural requirements as provided under the Supreme Court Rules, 2020.
e.
Any other or further directions that this Honourable Court deems fit and just to grant in the circumstances; and
2.
Taking into account the affidavit in support of the Motion sworn by Benson Odiwuor Otieno, the 4th Respondent/Applicant herein, and their written submissions both dated 29th August 2024 wherein the applicants submit that; their case before the High Court i.e. Petition No. E181 of 2024 and Petition E021 of 2024 and in the Court of Appeal i.e. Civil Appeal No. E021 of 2024 had sought broader declarations on the unconstitutionality of the Finance Act 2023 than are now before the Court; the appeals were distinct in scope and raised unique issues not found in the three consolidated appeals; this Court ordered the consolidation of the petitions of appeal herein, while the timeline for filing responses to the consolidated appeal, particularly S.C. Petition No. E033 of 2024, had not lapsed thus prejudicing their right to adequately prepare their responses and any necessary cross- appeals; the consolidation order did not address or provide any guidance regarding the responses to the Petition of Appeal as consolidated; the deadline for filing a response to S.C. Petition No. E033 of 2024 would lapse on 30th August 2024 but, when the matter was mentioned before the Deputy Registrar of the Court, only 9 days had lapsed out of the 14 days allowed for an affected party to respond to an appeal; the Deputy Registrar’s directions, stating that the time for filing a response had lapsed, were in clear violation of Rule 42 of the Supreme Court Rules and blatantly disregarded the statutory timelines; the Court, having already granted conservatory orders, should not have had any legitimate reason, under the guise of urgency of the appeal, to curtail the parties’ right to fully prepare for the hearing of the appeal.
3.
They urge further that, based on the rules of computation of time as provided under Section 57 of the Interpretation and General Provisions Act (Cap.2) as read with Section 15 of the Supreme Court Rules, having filed and transmitted to the Registrar and served on all parties their Notice of Appeal, the deadline for the applicants to institute their appeal will lapse on 24th September 2024, and therefore, it would be contrary to the Rules of the Court to lock them out while they are still within the timeline set for institution of appeals. That the issues raised in their Notice of Appeal are also unique in scope and have not been raised by the petitions already filed in this matter and they are apprehensive that should they later institute their petition of appeal, the Court will most likely want to consolidate it with the already consolidated ones, or should the Court proceed to determine the three petitions already filed, it may later decline to entertain their appeal. It would, in the circumstances, be just and expedient to hear all the appeals relating to the challenge of the Court of Appeal judgment, at once, rather than in instalments; and
4.
Upon reading the Replying Affidavit by the 1st and 2nd Appellant’s dated 3rd September 2024 and sworn by Charles Hinga the Principal Secretary for the Ministry of Public works, Housing and Urban Development wherein he avers that they have complied with the directions issued by the Court on 20th August 2024; and that they understand the need to expedite the matters and the overbearing public interest as well as the need for this Court to fully settle the issues raised in appeal as they are matters of national concern affecting revenue collection in the country. The 1st and 2nd Appellants also urge this Court to balance the rights of the applicants and respondents to a fair hearing vis-a-vis the need to expedite hearing of the consolidated Petitions; and
5.
Upon reading the submissions by Eliud Karanja Matindi, the 2nd Respondent herein, in support of the application and wherein he submits that allowing the application will ensure that the applicants have an opportunity to have their intended Petition of Appeal heard and determined on its merits. Conversely, a failure to grant the application will mean the intended appeal will be fatally compromised and the Applicants will have been condemned unheard. He anchors his submission on this Court’s decision in Deynes Muriithi & 4 Others v Law Society of Kenya & another [2016] eKLR where it was held that this Court has inherent jurisdiction to forestall an injustice, and in this context, the requirement that all parties are heard freely and fairly before a matter is concluded. The persuasive authority of the Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR is also cited in support of this submission, where the Court reaffirmed the position that the right to fair hearing under Article 50 (1) of the Constitution as read with Article 25 cannot be limited; and
6.
Bearing in mind that this Court on 20th August 2024 issued orders which were to the effect that;
“
a.
conservatory order is hereby issued suspending and staying the declarations in Orders iii, iv, vi, vii & ix (i) issued in the Court of Appeal Judgement dated 31st July, 2024 in Civil Appeals No. E003, E016, Eo21, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal;
ii.
the consolidated appeal be set down for mention before the Deputy Registrar of the Court for purposes of ensuring compliance with earlier directions on filings.
iii.
The consolidated appeals shall be set for hearing- virtually- on 10th and 11th September 2024 at 9 a.m. each day”.
7.
Subsequent to the above orders, the Deputy Registrar of this Court, on 23rd August 2024, issued orders directing the parties to file their responses and cross- appeals in line with Order iii above and in the aforesaid directions, the Deputy Registrar declined to offer any advice to the applicants herein in relation to their notice of appeal upon considering the fact that the consolidated appeal had already been fixed for hearing on 10th and 11th September 2024. The said directions triggered the filing of the present Motion and with the above background in mind; | We now opine and determine as follows;
i.
Under Section 21 A of the Supreme Court Act as read with Rule 28 (5) of the Supreme Court Rules, and the guiding principles in Fredrick Otieno Outa vs Jared Odoyo Okello & 3 Others S.C. Petition No. 6 of 2014 [2017] eKLR this Court, may, upon application by a party, or on its own motion, review its own decision where: (a) the judgment, ruling, or order, was obtained, by fraud, deceit or misrepresentation of facts; (b) the judgment, ruling, or order, is a nullity by virtue of being made by a court which was not competent; (c) the Court was misled into giving judgment, ruling or order, under a belief that the parties had consented to the same; or (d) the judgment, ruling or order was rendered, on the basis of a repealed law, or as a result of a deliberate concealment of a statutory provision; and
ii.
Rule 3 of the Supreme Court Rules provides for the scope and objectives of the Supreme Court Rules and Rule 3 (5) specifically provides that;
“
(5)
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.
This Rule is pertinent and applicable to the present Motion for reasons to be detailed out below.
iii.
In the above context, this Court, in issuing its directions dated 20th August 2024, was cognisant of the time of filing of respective pleadings as anchored in Part IV of the Supreme Court Rules. Amongst the considerations made by the Court in fast tracking the matter is the public interest involved in the consolidated appeal and the fact that the Finance Act is a time bound statute. Indeed, in paragraph 20 of its decision the Court stated;
“
...Furthermore, balancing the loss and uncertainty which would be occasioned to the applicants as against the loss by the respondents and public, we find that public interest tilts in favour of granting conservatory and stay orders to preserve the substratum of the consolidated appeal and maintain stability in the budget and appropriation process pending the determination of this appeal. In addition, in view of the public interest in the matter, we direct that the consolidated appeal herein be set down for hearing within the shortest time possible after the delivery of this ruling.” [Emphasis added]
iv.
The subsequent directions by the Deputy Registrar dated 23rd August 2024 are therefore in conformity with the Ruling dated 20th August 2024 and we note that all parties including the applicants have partly complied with the said directions.
v.
Noting the Fredrick Outa decision and Rules 21A and 28(5) aforesaid, the applicants have not shown how the impugned directions were a nullity, or were obtained, by fraud, deceit or misrepresentation of facts. We also find that the applicants had, from the date of the Court of Appeal judgement i.e. 31st July 2024, sufficient time to file their appeal especially because of the public interest, sensitivity and urgency of the matters in dispute. The fact that the appellants filed their appeals with the said urgency and have complied with all the directions issued by this Court as have the applicants, means that the applicants could have similarly done so but for their own indolence.
vi.
The applicants’ plea that they are within the time for filing their appeal is negated by the fact that this Court has inherent jurisdiction to make such orders as would meet the ends of justice, the timelines set out in the Rules notwithstanding. We have also not been shown how our directions are capricious or injudicious.
vii.
It will be prejudicial to the appellants herein and all the close to fifty (50) other affected parties to allow the filing of a subsequent appeal in this matter at this stage as none has raised any issue with the fast tracking of the hearing of the consolidated appeal save the 2nd Respondent and for reasons set out above.
viii.
We further note that the issues raised by the applicants in their Notice of Appeal have already been canvassed by other parties in the consolidated appeal; for example, the 15th, 16th , 17th 18th and 19th respondents’ cross appeal advances the argument that the Court of Appeal erred in law when it failed to hold that the Act is a Bill concerning county governments and that the lack of concurrence between the Speaker of the Senate and the Speaker of the National Assembly before the introduction of the Finance Bill vitiated the constitutionality of the Act. We also note that the pith and substance test alongside all other related issues raised in the Notice of Appeal filed by the applicants on 20th August 2024 can be addressed in submissions as a matter of law without the filing of a fresh appeal. The only other issue that we see in the said Notice relevant to this Ruling is the question whether the Court of Appeal failed to grant appropriate reliefs pursuant to Articles 2(4) and 23(3) of the Constitution. Again, that issue is already germane to the determination of the consolidated appeal and we said so in our Ruling under attack. In effect, none of the five (5) issues in the applicants’ Notice of Appeal fall outside the existing appeal to warrant the filing of a separate appeal and in any event they all arise from the same judgment of the Court of Appeal that the appellants have challenged and can be raised in the context of submissions already filed by the parties.
ix.
In view of the foregoing we, find that the application does not fall within the parameters for review in the Fredrick Otieno Outa Case as set out above and must be therefore be dismissed.
x.
On costs, award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v. Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. We find that the application was not superfluous and that the applicants were endeavoring to exhaust every remedy to ventilate their case. In the circumstance, it will not serve the ends of justice to condemn the applicants to pay costs of the application.
7.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The Notice of Motion dated 29th August 2024 and filed on 30th August 2024 is hereby dismissed; and
ii.
There shall be no order as to costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/57/eng@2024-09-05 |
Election Petition (Application) E026 of 2023 | Arale v Independent Electoral and Boundaries Commission & 4 others (Election Petition (Application) E026 of 2023) [2024] KESC 51 (KLR) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | MK Ibrahim | 30 August 2024 | 2,024 | Nairobi | Civil | Ahmed Boray Arale vs The Independent Electoral and Boundaries Commission
, Abdibashir Ali Noor Ibrahim The Constituency Returning Officer Eldas Constituency, Maryan Hassan Mohamed The Deputy Constituency Returning Officer Eldas Constituency, Feisal Abdi Billow Presiding Officer Orote Polling Station, Adan Keynan Wehliye | [2024] KESC 51 (KLR) | null | Representation:
Ms. Moturi for the Appellant/Respondent
(Ondieki, A. Hashi & Company Advocates)
Mr. Kibihi holding brief for Mr. Mwiti for the 1st to 4th Respondents/Applicants
(Mwiti & Partners Advocates, LLP)
1.
Upon perusing the Motion dated 4th December, 2023 by the 1st to 4th Respondents/Applicants (hereinafter referred to as “Applicants”), filed pursuant to Rules 60 and 62 of the Supreme Court Rules, 2020 in which the Applicants seek to have a single Judge review the decision of the Deputy Registrar dated 1st December, 2023 on their bill of costs concerning item 1 being the instruction fees; and either set it aside, issue direction for re-taxation or to tax it afresh; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit by Duncan Mwiti Kinyua, Counsel for the Applicants, sworn on 4th December, 2023 and submissions dated 5th November, 2023 contending that the Taxing Officer admitted as crucial evidence the instruction letter dated 31st August, 2023 disclosing the instruction fees between the 1st Applicant and its Advocate as a fee of Ksh 3,500,000/- but failed to consider the same in awarding the fees claimed by the Applicants without giving any justification; that in the consideration of the bill of costs, the Taxing Officer failed to consider the rejoinder submissions dated 22nd November, 2023 and further failed to give reasons as to how the low amount of Ksh 600,000/- was arrived at; that the Taxing Officer gave undue regard to the cost cap of Ksh 1,000,000/- by the High Court and consequently made an unreasonable consideration in arriving at a very low instruction fee of Ksh 600,000/-; that the Taxing Officer in considering the issue of novelty and complexity of the matter, held that with the matter having been settled by consent, there was no opportunity to consider these issues, then proceeded to award instruction fees without considering any other legal principles as enumerated in the Applicants’ rejoinder submissions dated 22nd November, 2023; and
3.
Upon perusing the response by the Appellant/Respondent (hereinafter referred to as “Respondent”) by way of replying affidavit sworn by Ahmed Boray Arale on 21st December, 2024 and submissions of even date contending that the application does not raise any grounds for the interference with the decision of the Taxing Officer; that the amount awarded by the Taxing Officer was reasonable and sound in regards to the principles of taxation especially in election petitions; the Taxing Officer in her ruling clearly stated that she had considered all submissions including the Applicants’ rejoinder submissions and the reasons for the award had been clearly stated in the ruling; the taxation process is a discretionary one and therefore the Taxing Officer was not bound by the amounts alleged in the letter of instruction dated 31st August, 2023 and in any case and as this Court held in Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR), costs are not meant to punish an unsuccessful litigant or create a barrier to access to justice under Article 48 of the Constitution; that she had awarded costs having considered all the relevant principles of taxation including the public interest nature of the matter, the compromise reached by the parties, the lack of alleged novelty and complexity as the same was not heard and the capping of costs by the High Court in its Judgment dated 6th March, 2023 at a sum of Ksh 1,000,000/-; that the capping of costs was pursuant to Rule 30(1)(b) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 and if the Applicants were dissatisfied with the decision to cap, they ought to have appealed the same, which they did not; and having considered the totality of the application, response and rival arguments by the parties, I now opine as follows:
4.
Guided by the provisions of Rule 60 of the Supreme Court Rules, 2020, the Registrar and by extension, courtesy of Section 2 of the Supreme Court Act, the Deputy Registrars, have the power to tax costs arising out of any proceedings between the parties. In the taxation exercise, the Registrar must adhere to the scale set out in the Third Schedule of the Supreme Court Rules on party and party costs and in particular Paragraph 9 on quantum of costs; while the jurisdiction of a single Judge is to entertain a reference made within seven days by a person who is dissatisfied with a decision of the Registrar in the taxing of costs. | This Court in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a taxation decision:
“
(11)
A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;
a.
there is an error of principle committed by the taxing officer;
b.
the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).
c.
the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and
d.
the award proposed is so far as practicable, consistent with previous awards in similar cases.
To these general principles, I may add that;
i.
There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,
ii.
Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,
iii.
The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer’s shoes.”
6.
Bearing these principles in mind, I note that the only item in contention is item no. 1 which was on the instruction fees. The Applicants had sought the instruction fees to be taxed at Ksh 3,500,000/- as per the instruction letter dated 31st August, 2023 between the Applicants and their Counsel on record. The Respondent on the other hand had proposed a figure of Ksh 600,000/-. The Taxing Officer expressed herself as follows in her consideration of item no. 1 on instruction fees before arriving at the sum of Ksh 600,000/-:
“7. It is acknowledged that the subject matter was of public interest and revolved around constitutional issues on election matters. However, the appeal was compromised through consent and, therefore, was not heard. Considering that novelty and complexity of the matter was not determined and given that costs were already capped at the High Court, I am of the view that the proposed amount of Ksh 3,500,000/- is excessive and unreasonable considering the range of costs already determined as reasonable in election petitions as cited in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others (2017) e KLR. I find the sum of Ksh 600,000/- to be reasonable in the circumstances and award it accordingly under this heading and the balance taxed off.
7.
Guided by the multitude of decisions on costs of election petitions cited in the Ruling of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR), it is my considered view that the Taxing Officer properly set out her reasons for finding that the amount of Ksh 3,500,000/- was manifestly excessive. However, she failed to give the same due consideration in why the figure of Ksh 600,000/- was appropriate. Although taxation is not a mathematical exercise but a discretionary process, the Taxing Officer merely purported to pick the proposal by the Respondent mechanically. There has to be some justification for doing so.
8.
The Court recently restated in its decision in the case of Kenya Airports Authority v Otieno Ragot & Company Advocates, SC Petition No. E011 of 2024 delivered on 2nd August, 2024, that the fees allowed for instructions to appeal or to oppose an appeal is at the discretion of the taxing officer; and nonetheless the absolute least is that fees must be commensurate to work done, and it will amount to unjust enrichment if it is not awarded for this purpose. In any case, the Supreme Court Rules, 2020 at paragraph 9 (1) of the Third Schedule, peg this absolute least figure at Ksh 1,000/-.
9.
I take note that the substantive cause of action and genesis of the reference is an election petition for the election of the Member of the National Assembly, Eldas Constituency where both the Appellant and the 5th Respondent were contestants, with the 5th Respondent emerging victorious. The matter began at the High Court, progressed to the Court of Appeal to finally reach this Court through Petition of Appeal dated 31st August, 2023 and filed on 1st September, 2023; the High Court dismissed the Appellant’s Petition for failing to prove his allegations while the Court of Appeal struck out both the Notice of Appeal and Record of Appeal for being filed and served outside the prescribed timelines; while the main contestation before this Court revolved around the legal framework of electronic filing of election appeals and the enforcement of the filing timelines. Shortly after filing the appeal, the parties entered into a consent dated 14th September, 2023 which was adopted by the Court in an Order dated 15th September, 2023 officially withdrawing the appeal in less than a month from the date of filing. However, save for the 5th Respondent who chose not to pursue costs, the parties left the issue of costs of the appeal to the Court’s determination, with the Applicants filing their bill of costs dated 3rd October, 2023 for taxation claiming a total sum of Ksh 4,709,049/-.
10.
Having considered the history of the matter and the fact that the Petition of Appeal was short-lived before the Court, I also note the industry of the Applicants in filing their respective responses to the Petition of Appeal in the form of grounds of objection, written submissions as well an application to strike out the Appeal for want of jurisdiction. Taking that into account, alongside their Advocate’s attendance before the Court and the reasons I stated in the preceding paragraphs, I would be hesitant to interfere with the award of Kshs 600,000/- by the Taxing Officer, which in my opinion was commensurate to the work done and therefore a fair and reasonable award.
11.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. I exercise my discretion to order that each party shall bear its costs.
12.
Accordingly, and for the reasons aforestated, I disallow the Reference dated 4th December, 2023 and make the following orders:
i.
Notice of Motion dated 4th December, 2023 by the 1st to 4th Respondents/Applicants be and is hereby dismissed;
ii.
Item No. 1 on the instruction fees shall remain at Ksh 600,000/-; and
iii.
Parties shall bear their own costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/51/eng@2024-08-30 |
Petition (Application) E031 of 2024 | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae) (Petition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (Consolidated)) [2024] KESC 55 (KLR) (30 August 2024) (Ruling) | Consolidated | Supreme Court of Kenya | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others | [2024] KESC 55 (KLR) | null | 1.
Upon perusing the notice of motiondated and lodged before this courton August 22, 2024, by Gautam Bhatia seeking, orders inter alia that-
a.
Dr Gautam Bhatia, the applicant herein, be granted leave to be admitted in the Appeals as amicus curiae.
b.
Dr Gautam Bhatia, the applicantherein, be granted leave to present written and oral submissions by way of an Amicus brief in the Appeals.
c.
Upon granting leave to participate in the proceedings, the honourable courtgive directions on how the amicus curiae shall participate herein on such other or further directions as this honourable court may deem fit to give.
d.
There be no order on costs for or against the amicus curiae.
2.
Taking into account the affidavit in support of the motionsworn by Dr. Gautam Bhatia and his written submissions dated August 21, 2024to the effect that; the applicant is an expert in comparative constitutional law, and a practicing constitutional lawyer before the Supreme Court of India; he possesses and has demonstrated his scholarly expertise with regards to the questions that form the subject matter of the appeal, in particular the doctrine, history, practice and theory of public participation that will assist the court in answering the questions raised in the appeal; he is the author of The Transformative Constitution: A Radical Biography in Nine Acts, and of numerous scholarly articles in peer-reviewed comparative constitutional law journals; he has engaged with Kenyan constitutional law in a comparative context for some years and has been previously admitted as amicus curiae before this Court in Attorney-General and Others v David Ndii and Others [“the BBI Case”]; he is the author of Law Making, Political Process, and the State: Transformative Constitutionalism in Kenya – 2010 – 2025 (James Currey 2025, forthcoming), and of ‘The Hydra and the Sword: Constitutional Amendments, Political Process, and the BBI Case in Kenya’ (Global Constitutionalism 2025, forthcoming). In addition to his scholarly work, the applicant has also submitted that he has participated in legal proceedings involving the subject of public participation before the Supreme Court of India and the High Court of Bombay.
3.
Further, it has been submitted that the applicant is impartial, has no professional relationship with any of the parties involved in this appeal, nor does he have any personal or pecuniary interest in the appeal and its outcome. That, he only seeks to provide his scholarly expertise in the service of the Court on the questions raised in the appeal that are of great importance to the people and the future of the Republic of Kenya. Specifically, he has urged the point that, if admitted as amicus curiae, he will make submissions, subject to this court’s directions, on the following issues:
a.
Whether the national value of public participation entails an obligation upon State organs to give reasons in the event that they choose to reject the suggestions that have emanated from the public.
b.
If, after one round of public participation, a Bill is substantively amended by the National Assembly, whether there is an obligation to subject the amended provisions and/or new provisions to further public participation. | Noting that none of the parties in the consolidated appeals have opposed the application, We now opine and determineas follows;
i.
An applicant seeking to be enjoined as amicus curiae has to satisfy this Court that he or she has satisfied the legal requirements for such an application. In that context, rule 19 of the Supreme Court Rules 2020 provides that, before admitting a person as a friend of the court, this court has to consider the proven expertise of the person; independence and impartiality of the person; or the public interest involved.
ii.
The role of an amicus curiae in any proceedings is to aid a court in arriving at a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty and in Trusted Society of Human Rights Alliance v Mumo Matemu & 4 Others SC Petition No 12 of 2023, this Court set out the guiding principles for admission of an amicus curiae in the following terms:
“
....
i.
An amicus brief should be limited to legal arguments.
ii.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
iii.
An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.
iv.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law....”
iii.
Amongst the issues in dispute in the consolidated appeal are the place and extent of public participation in the legislative process; whether Parliament can amend bills after they have been subjected to public participation; the parameters and considerations of a declaration of the unconstitutionality of a statute; the orders to be issued upon such a declaration including whether to allow or disallow suspension or otherwise of the declaration to enable remedial action by the offending party.
iv.
Having considered the proposed amicus brief we note that the applicant has, with the necessary precision, set out germane points of law that he intends to address this court on and they clearly resonate with the issues in dispute in the consolidated appeal. We also perceive that the amicus brief will be of valuable assistance to this Court in addressing the issues raised in the consolidated appeal and that the applicant has demonstrated expertise in the field of comparative constitutional law which we find relevant to the appeal. We further note that none of the parties to the appeal has raised any issue of bias in the intended brief and we see none on our part and should any arise, we are quite capable of identifying and rejecting it as we make our final decision on the appeal. We therefore find that the Applicant has met the criteria set out in Mumo Matemu on admission of amicus curiae.
5.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The applicant’s notice of motion dated and filed on August 22, 2024 by the intended amicus curiae is allowed.
ii.
The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
iii.
As the motion was not opposed, we make no orders as to costs.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/55/eng@2024-08-30 |
Petition E023 of 2023 | Gatuma v Kenya Breweries Ltd & 3 others (Petition E023 of 2023) [2024] KESC 52 (KLR) (Civ) (30 August 2024) (Judgment) | Judgment | Supreme Court of Kenya | Supreme court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | Symon Wairobi Gatuma and Kenya Breweries Ltd, East African Breweries Ltd, Kenya Maltings Ltd, East African Maltings Ltd
, | [2024] KESC 52 (KLR) | null | A. Introduction
1.
This appeal is premised on Article 163 (4) (b) of the Constitution, and was filed pursuant to the leave issued by the Court of Appeal by its ruling dated 9th June 2023 certifying the appeal as one involving a matter of general public importance. The Court of Appeal in singling out the issues for determination did not delineate the questions of law but highlighted that the main issues revolve around the unilateral reduction of salary yet retaining the basic tenets of employment and whether it is fair labour practice to change terms of employment especially as refers to remuneration while retaining basic tenets of said employment.
B. Background
2.
The appellant was employed by the 1st respondent as an Artisan Grade F, attached to the engineering department in its malting unit, effective from 3rd November, 1986. On 23rd April 2003, he was informed that the 1st respondent had de-linked its malting operations from its beer business and subsequently, declared all positions in the malting unit redundant. In consequence, the 1st respondent offered the appellant a redundancy package totaling Kshs. 2,083,852/-. After statutory deductions, the take home amount was Kshs. 1,109,363/-. Two days later, the appellant received a letter of employment from the 3rd respondent offering him a permanent position as a Technical Operator in its production department.
3.
The appellant claims to have been taken advantage of due to the absence of his trade union representation, the Kenya Union of Commercial, Food & Allied Workers (KUCFAW), and that he was intimidated into signing the letter on April 28, 2003 which significantly reduced his gross salary from Kshs 66,064 to Kshs 29,665. He continued to earn the latter amount until May 31, 2009, when his position was once again declared redundant by 4th respondent. Consequently, he received a redundancy package based on the six years he had worked for the 3rd respondent. After his termination, the appellant felt he was treated unfairly by the respondents, prompting him to institute a suit before the Industrial Court. | F. Orders
88.
We make the following consequential Orders:
i.
The petition of appeal dated 9th August 2023 and lodged on 4th December 2023 is hereby dismissed
ii.
Each party to bear the costs of the Appeal.
iii.
We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the appeal be refunded to the appellant.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/52/eng@2024-08-30 |
Application E016 of 2024 | Gitson Energy Limited v Energy and Petroleum Regulatory Authority & 5 others (Application E016 of 2024) [2024] KESC 56 (KLR) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 31 August 2024 | 2,024 | Nairobi | Civil | Gitson Energy Limited v Energy and Petroleum Regulatory Authority & 5 others | [2024] KESC 56 (KLR) | null | Representation:-
Ms. Ruth Kiunga for the applicant
(Theuri Wesonga & Company Advocates)
Mr. Maina for the 1st respondent
(Mwaura & Wachira Advocates)
Ms. Rael Muyoka for the 5th respondent
(Dr. Mutubwa Law)
1.
Upon perusing the Notice of Motion dated 25th March 2024 and filed on 30th April 2024, pursuant to Article 163(4)(b) of the Constitution, rule 15(2) of the Supreme Court Rules and other enabling provisions of law; seeking extension of time to file an appeal and record out of time against the ruling by the Court of Appeal (Tuiyot, Lesiit & Gatembu, JJ.A) in Civil Application No. E043 of 2022, and costs; and
2.
Upon considering the applicant’s grounds on the face of the application and affidavit sworn by James Gitau on 3rd April 2024, wherein it is contended that, even though the Notice of Appeal was filed within the prescribed time, the time to file an appeal and record has lapsed; the delay is excusable and not inordinate; the same was occasioned by the Court of Appeal’s failure to avail complete typed proceedings to the applicant; the request for typed proceedings was made on 12th February 2024 but the appellate court only furnished part of the relevant proceedings; despite several reminders and follow up, the Court of Appeal has failed to furnish the said proceedings; the appeal raises matters of general public importance warranting this Court’s determination; the application is brought without delay; and if granted would not be prejudicial to the respondents; and
3.
Upon further considering the applicant’s submissions dated 25th March 2024 and filed on 30th April 2024, wherein the applicant reiterates its grounds in support of the application and further submits that: the Court is clothed with the powers to extend time pursuant to Rule 15(2) of Supreme Court Rules, 2020; the application meets the principles for enlargement of time established in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014; [2014] eKLR (Nicholas Kiptoo Case); and the applicant has exercised all due diligence including numerous follow ups at the Court of Appeal, but to no avail. It relies on this Court’s decision in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, SC Application No. 15 of 2014; [2014] eKLR, to urge that it would not be in the interest of justice to turn away a party who, despite exercise of due diligence in pursuit of his cause, is impeded by the slow turning wheels of the court’s administrative machinery; and
4.
Having read and considered the 1st respondent’s Grounds of Opposition dated 15th May 2024 and 5th respondents Preliminary Objection dated 21st May 2024, wherein it is urged that the application is bad in law, inadmissible and incurably defective for want of certification as the application and intended appeal is premised on Article 163 (4) (b) of the Constitution, and for want of jurisdiction as the Court cannot entertain an appeal against an interlocutory ruling where the substantive issues are still pending before the superior courts; the notice of appeal having lapsed, the same stands withdrawn by dint of Rule 46(1) of the Court’s Rules; no appeal has been filed despite the mechanism under Rule 40 (1) (2) and (3) allowing an intending appellant to file its record with the exclusion of some documents; and without jurisdiction, the court cannot exercise its discretion under Rule 15 (2); and
5.
Upon noting the 1st respondent’s submissions dated 15th May 2024 and filed on 12th July 2024, re-emphasizing its grounds in support of the grounds of opposition, and in addition, urging that the application fails to meet the principles for extension of time laid down in the Nicholas Kiptoo Case. Moreover, the 1st respondent contends that this Court lacks jurisdiction on grounds that the intended appeal challenges a ruling by the Court of Appeal granted under Rule 5(2)(b) of the Court of Appeals Rules; the said ruling does not involve any matters of constitutional interpretation or application and the applicant has not sought nor has the appeal been certified as one involving matters of general public importance; and, as such the Court lacks jurisdiction both under Article 163(4)(a) and 163(4)(b) of the Constitution; and
6.
Upon further considering the 5th respondent’s submissions dated 21st May 2024 and filed on 22nd May 2024 restating its grounds in support of the preliminary objection, and further reiterating the arguments proffered by the 1st respondent; moreover, noting the 5th respondent’s case that the applicant is inviting the Court to sit on appeal against a Court of Appeal ruling under Rule 5(2)(b) of the Court of Appeal Rules, contrary to the principle established inter alia in Teachers Service Commission v. Kenya National Union of Teachers & 3 Others [2015] eKLR. It is further argued that in any event, typed proceedings are not among the mandatory documents that must accompany an appeal; under Rule 40 of the Court’s Rules, the applicant ought to have filed the record with the exclusion of unavailable typed proceedings; having failed to institute its appeal within the prescribed time, the notice of appeal was deemed withdrawn by dint of Rule 46(1); and the notice of appeal is a jurisdictional prerequisite; and
7.
Upon considering the applicant’s replying affidavit sworn on 31st May 2024 and further submissions in a rejoinder of even date, reiterating its arguments in support of the application, more so that it meets the criteria for extension of time under Rule 15 (2). Further, the applicant shifts its argument that the intended appeal only raises issues of general public importance under Article 163 (4) (b). Instead, it contends that the intended appeal also raises issues of constitutional interpretation and application, particularly of Articles 27, 43 and 47 under Article 163(4)(a). Furthermore, it urges that the notice of appeal cannot be deemed withdrawn, for reasons that it has proffered justifiable reasons for the applicant’s failure to file the appeal and record within the prescribed timelines; and in response to the argument that the application is lacking in form, it asserts that under Article 159(2)(d) procedural technicalities should not override substantive justice; and
8.
Cognisant of the fact that a preliminary objection has been raised by the 1st and 5th respondents, it is our considered view that the challenge of our jurisdiction goes to the competency of the instant application as well as the intended appeal. It is consequently apposite to determine the jurisdictional question in the first instance; and
9.
Bearing in mind that this Court has delineated with finality its jurisdiction to hear appeals emanating from interlocutory orders of the Court of Appeal made in exercise of its discretion under rule 5(2)(b) of the Court of Appeal Rules; specifically in Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, SC Application No. 16 of 2015; [2015] eKLR wherein we stated;
“
The application before us contests the exercise of discretion by the appellate court, when there is neither an appeal, nor an intended appeal pending before this Court. Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of article 163 (4) (a) of the Constitution. Any square involvement of this Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, …. Such an early involvement of this Court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.
In these circumstances, we find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.”
10.
Appreciating that this principle is echoed in; Basil Criticos v. Independent Electoral and Boundaries Commission & 2 Others SC Petition No. 22 of 2015; [2015] eKLR; Clement Kungu Waibara v. Annie Wanjiku Kibeh & Another, SC Application No. 31 of 2020; [2020] eKLR; Bia Tosha Distributors Limited v. Kenya Breweries Limited & 6 Others, SC Application No. 10 of 2017 [2018] eKLR; and most recently in Sonko v. Clerk County Assembly of Nairobi City & 11 Others (Application 14 (E022) of 2021) [2021] KESC 14 (KLR). | We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, we find that the substantive appeal before the Court of Appeal is yet to be heard and determined on the merits. The intended appeal emanates from an interlocutory ruling made pursuant to rule 5(2)(b) of the Court of Appeal Rules. The said Ruling entails no interpretation or application of the Constitution, nor can it be founded on any question of great public importance.
ii.
Guided by the principles established in the cited decisions, particularly, Teachers Service Commission v. Kenya National Union of Teachers & 3 Others [supra], we find that without a substantive determination, and in the absence of a judgment of the Court of Appeal in the appeal pending before it, this application and the intended appeal are premature and do not meet the threshold under Article 163 (4)(a) or (b) of the Constitution;
iii.
For the foregoing reasons, we hold that this Court lacks jurisdiction to entertain the application or the intended appeal.
12.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 25th March 2024 and filed on 30th April 2024, is hereby dismissed.
ii.
The Costs of this application shall be borne by the applicant.
It is so Ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/56/eng@2024-08-30 |
Petition (Application) 18 (E025) of 2021 | Judicial Service Commission v Oduor & 5 others (Petition (Application) 18 (E025) of 2021) [2024] KESC 53 (KLR) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | Judicial Service Commission v Oduor & 5 others | [2024] KESC 53 (KLR) | null | Representation:
Mr. Bernard Ndeda, the applicant, appearing in person (C/O Billy Amendi & Co. Advocates)
Mr. Edwin Musyoka h/b for Mr. Charles Kanjama for the appellant (Muma & Kanjama Advocates)
Mr. Christopher Marwa for the 5th and 6th respondents
(Attorney General’s Chambers)
Non-appearance by the 1st, 2nd and 3rd respondents
1.
Bearing in mind that the 1st to 4th respondents, then serving magistrates, were vetted by the Judges and Magistrates Vetting Board (the Board) and found unsuitable to continue serving; and that the Board dismissed their request for review of its decision, and were consequently removed from office. In affirming the Board’s decision, the High Court ruled that courts lacked jurisdiction to review the vetting process unless the Board exceeded its constitutional mandate. On a first appeal, the Court of Appeal by a majority decision disagreed with the High Court and held that the Supreme Court in Judges and Magistrates Vetting Board and 2 Others vs. Centre for Human Rights and Democracy and 11 Others, SC Petition No.13A of 2013 as consolidated with Petition No.14 of 2013 and 15 of 2013; [2014] eKLR (‘JMVB (1)’) and in Judges and Magistrates Vetting Board vs. Kenya Magistrates and Judges Association & another, SC Petition No. 29 of 2014; [2014] eKLR (‘JMVB (2)’) had not conclusively settled the question of whether courts could review the Board’s decisions; that in the two cases the Supreme Court was concerned with the removal of a judge and not a magistrate. Ultimately, when the appellant (JSC) brought a second challenge to this Court in Judicial Service Commission vs. Oduor & 5 others, (Petition 18 (E025) of 2021) [2023] KESC 32 (KLR) (21 April 2023) (Judgment), the Court clarified in its judgment delivered on 21st April 2023, that its findings apply to magistrates, reaffirming that the Board's decisions are not subject to review by the High Court. Consequently, the decision of the Court of Appeal was set aside, and the High Court’s decision was affirmed thereby validating the removal from office of the applicant and 1st to 3rd respondents; and
2.
Upon reading the applicant’s present application, which is one of its kind since the establishment of this Court, and brought after the Court’s Registrar had advised him against approaching the Court by a letter in which he had sought a “tier 2 application/petition to this honourable court for criterion review either suo moto or as the Apex Court deems fit.” The application itself is strangely headed “Notice of Review/Reversal/Overturn”, dated 10th October 2023 and erroneously referred to, throughout the pleadings, as a Petition for Review. It is, in any event, expressed to be brought pursuant to Article 163(7) of the Constitution and Rule 28 (5) and (6) of the Supreme Court Rules, 2020 for orders, inter alia, that:
“
i.
The Judgment issued on 21st April 2023 in SC Petition No. 18 (E025) of 2021 (the judgment) is in error of law and in error of jurisdiction thus ripe for review;
ii.
A declaration be made that the judgment is rendered in error of construction and interpretation of Section 23(1)(2) of the Sixth Schedule, Section 22(4) of the Vetting of Judges and Magistrates Act, 2011 (VJMA) and Articles 163(7) and 165 of the Constitution;
iii.
A declaration that the judgment lacks the requisite legal legitimacy and validity as the bench intermeddled with the main transitional constitutional provision. The main source of vetting on jurisdictional mandate is already created, delineated and circumscribed on the effective date (sic);
iv.
A declaration that the denial or limitation or obstruction of jurisdiction under Section 23(2) of the sixth schedule, the main vetting clause, to any court to question in or review the final decision of the vetting board on the removal or process leading to removal of a judge from office applies to a judge only. To extend this limitation or ouster by courts or judges (JMBV I) to apply to magistrates is to act without jurisdiction;
v.
A review of the wrongful judgment by this Court to correct its own errors to conform with the rule of law and constitutionalism;
vi.
A declaration that Section 23(2) an ouster of jurisdiction is to all courts over a specific group, judges only but not magistrates and no court has discretion or authority to extend this constitutional transitional ouster to magistrates;
vii.
A declaration that Section 22(4) of the VJMA, a retrospective statutory law, cannot amend Section 23 of the Sixth Schedule to the Constitution;
viii.
That paragraph 70 of the judgment (which are the final orders), has occasioned a travesty of justice and the judgment is a nullity or voidable as its effect is to infringe on the constitutional rights and freedoms of the four magistrates”; and
3.
Upon considering the supporting affidavit sworn by Bernard Ndeda, the applicant, on 12th September 2023 together with his written submissions dated 3rd June 2024 to the effect that; upon delivery by this Court of its judgment on 21st April 2023, he was aggrieved and filed what he has described as “a two-tier rare and exceptional public interest review petition brought pursuant to Articles 37 and 163(7) of the Constitution on a novel approach only applied in a situation where it is the Supreme Court, in its normal discharge of duties, has infringed or contravened the Constitution to correct the errors of the Court”; that the first tier being a petition to the Legislature and the Speaker of the National Assembly to co- opt three other national institutions being the Chief Justice, the President of the Law Society of Kenya and the President of the Kenya Judges and Magistrates Association (KMJA) in order to review the decision of the Supreme Court made in excess of its jurisdiction; and the second tier being the one being pursued in the instant Motion, for the Supreme Court to review its own judgment; that both petitions were to run pari passu; that the first tier petition to the National Assembly having been rejected by the Clerk of the National Assembly for lack of jurisdiction, the applicant has elected to institute the instant Motion for this Court to review its judgment; and
4.
Noting the 15 grounds on the face of the application which can be summarized as follows: that the impugned judgment was delivered on 21st April 2023, being a public holiday, Idd ul fitr, therefore without jurisdiction; that it eroded the gains made in the case of ‘JMVB (2)’ which had allowed a review of the Board’s decision on the grounds that the Board did not operate within the provisions of Section 23 (1) and (2) of the Sixth Schedule to the Constitution and also because the Board improperly construed and interpreted Section 23 (1) and (2) of the Sixth Schedule to the Constitution; that in those circumstances, the judgment of this Court is ultra vires and ought to be reviewed ex debito justitiae, as it has divested and denied the four magistrates of their constitutionally guaranteed rights of review or appeal against the final decision of the Board; that the judgment failed to take into account applicable, relevant constitutional and transitional laws regarding the magistrates which are Section 23 (2) of the Sixth Schedule to the Constitution as read with Articles 165 (3)(c), 172 and 260 of the Constitution and as cross referenced with Article 262 and Section 7 of the Sixth Schedule in a holistic, purposive and harmonious manner as prescribed by the Constitution. Consequently, the applicant urges that, since this is a petition for reversal, the issues for determination remain the same as those in the original petition, again another alien proposition; and
5.
Upon reviewing the appellant’s (the JSC’s) grounds of opposition dated 24th June 2024 and submissions dated 28th June 2024 to the effect that; the application is filed belatedly, nearly 6 months after the date of delivery of judgment sought to be reviewed; this Court lacks the jurisdiction to determine the petition/application as framed because it is functus officio and lacks jurisdiction to sit on appeal on the issues it determined in respect of the applicability of Section 23 (2) of the Sixth Schedule of the Constitution to magistrates; the issues raised regarding the unconstitutionality of Section 22 (4) of the VJMA and misapplication of Articles 163(7) and 165 of the Constitution were not in issue before both superior courts below; the application does not demonstrate or establish any of the circumstances for the grant of a remedy of review of the judgment under Section 21A of the Supreme Court Act and as enunciated in the cases of Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others [2014] eKLR (Rai Case) and Fredrick Otieno Outa vs. Jared Odoyo Okello & 3 others [2017] eKLR (Outa Case); the application is a disguised appeal from the Court’s judgment and does not fall within the confines of review; that the application is an affront to the principle of finality of litigation, is defective, untenable, an afterthought, a gross abuse of the court process and should accordingly be dismissed; and
6.
Upon perusing the 5th and 6th respondents’ submissions dated 24th June 2024 to the effect that; the two-tier petition does not disclose any of the grounds for review under Section 21A of the Supreme Court Act or as expressed in the Outa Case rather, they are grounds of appeal on the merit of the impugned judgment and the court is being invited to sit on appeal of its own judgment; there are no compelling reasons to review the judgment; and that once a judgment is delivered, it can only be reviewed under the slip rule. For these reasons, they urge that the application be dismissed with costs to the 5th and 6th respondents; and
7.
Further noting the applicant’s rejoinder and supplementary submissions dated 27th June 2024 to the effect that; the application is not a second appeal or an application for the Court to sit on appeal on its prior decision; that the Rai and Outa Cases are distinguishable as they were litigated under Section 20(1) of the Supreme Court Rules, 2012 which have since been repealed by Section 28 (5) of the Supreme Court Rules; that the amendment now allows merit review as sine qua non; and that contrary to JSC’s and the 5th and 6th respondents’ assertions, the applicant has established valid grounds for review as envisioned in the Rai and Outa Cases; and
8.
Appreciating that under this Court’s Rules, a party can only file the following pleadings to move the Court, a petition, reference, originating motion or notice of motion. Therefore, the so-called “Notice of Review/Reversal/ Overturn” or “Tier-Two Review Petition” are unknown phenomena and procedures in this Court; and
9.
Taking into account the jurisdiction of this Court under Section 21A of the Supreme Court Act as well as Rule 28(5) of the Supreme Court Rules, 2020, together with the principles enunciated in the Outa Case, it is now firmly established that, as a general rule, the Supreme Court cannot sit on appeal over its own decisions, or review its decisions, save to correct obvious errors apparent on the face of the decision. However, in exercise of its inherent powers, the Court may, review its decision(s) in exceptional circumstances, so as to meet the ends of justice. It will only do so in instances where:
“
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii.
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii.
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv.
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”; and
10.
In addition Rule 28(5) of the Supreme Court Rules stipulates that; “The Court may review any of its decisions in any circumstance which the Court considers meritorious, exceptional, and in the public interest, either on the Court’s own motion, or upon application by a party”.
11.
Having considered the application, affidavits and rival arguments summarized in the preceding paragraphs we now opine as follows:
i.
Apart from the fact that the application as filed is wanting in form, the reliefs it seeks are unavailable as they do not meet the criteria for review. Instead, going by the prayers and grounds on the face of the application, there is no doubt that the applicant has merely regurgitated the original petition hoping that the Court would arrive at a different conclusion. The applicant did not hide his conviction that what he had filed was a petition; he headed it as such and in the entire application he has repeatedly made reference to a petition.
ii.
Secondly, we note that the application was filed almost 6 months after the delivery of our judgment. Although Rule 28(5) of the Supreme Court Rules places no time within which an application for review must be brought, it is a principle of statutory and constitutional construction that where a law does not prescribe a particular time for performing an act, the act must nonetheless be done without unreasonable delay. It cannot be an open-ended thoroughfare. It must follow that an application for review must be brought within a reasonable time, determined on a case- by-case basis and delay in bringing an application for review must be explained to the satisfaction of the Court. The applicant has not offered any explanation for the delay.
iii.
On the merits of the application and applying the provisions of Section 21A of the Supreme Court Act as well as Rule 28(5) of the Supreme Court Rules, 2020, as interpreted in the Outa Case, we find that as framed and presented, the application falls short of the exceptional circumstances or public interest and therefore lacks merit.
iv.
Generally, when this Court gives a judgment in a case on merit, it becomes functus officio in relation to that judgment upon its pronouncement. An invitation to the Court to re-open the case must be founded on firm grounds. A strong case must be established based on the provisions of Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules, before the Court can consider reviewing its decision. It is not sufficient to merely allege fraud, incompetence, or deceit without giving the particulars thereon.
v.
It should be apparent from the provisions of Section 21A and Rule 28(5) aforesaid that the conditions precedent for review are extremely stringent and exceptional in terms because it is a serious matter to allege that a decision of this Court has been obtained by fraud or deceit; or that the Judgment, Ruling, or Order, is a nullity; or that the Court itself was not competent or was misled when it made the decision; or that the decision was rendered on the basis of a repealed law. Where these allegations are proved, the power of the Court in granting the relief of review is inherent.
vi.
The applicant has not only failed to meet the criteria for review but seems to have set out to re-litigate the very matters canvassed and determined on merit in the appeal, namely whether Section 23(2) of the Sixth Schedule to the Constitution applied to magistrates and whether in so far as it implicates the function of the Board in the vetting of judges and magistrates, it is subject to the review jurisdiction of the High Court. These questions, we reiterate were settled by this Court with finality not only in Judges and Magistrates Vetting Board and 2 Others vs. Centre for Human Rights and Democracy and 11 Others, SC Petition No.13A of 2013 as consolidated with Petition No.14 of 2013 and 15 of 2013 [2014] eKLR (‘JMVB (1)’) and in Judges and Magistrates Vetting Board vs. Kenya Magistrates and Judges Association & another, SC Petition No. 29 of 2014; [2014] eKLR (‘JMVB (2))’ but also in our judgment, the subject of this application.
vii.
Finally, the applicant challenged the validity of the judgment, arguing that it was delivered on a public holiday being Idd ul fitr. We wish to clarify that delivering a judgment on a public holiday does not invalidate the judgment. The essence of a decision is its content and the legal reasoning behind it, not the specific day on which it is delivered, especially when the same was delivered virtually, on email and not in open court.
viii.
For all the reasons proffered, we find no merit in the application, and we accordingly dismiss it.
ix.
As for the costs, we are guided as always by this Court’s pronouncement in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, that an award of costs is an exercise of judicial discretion. Taking into account the circumstances of this matter, we make no orders as to costs. | 12.
Accordingly, we make the following Orders:
i.
The application dated 10th October 2023 is hereby dismissed.
ii.
There shall be no orders as to costs.
It is so ordered | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/53/eng@2024-08-30 |
Application E011 of 2024 | Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & another v Standard Chartered Financial Services Limited & another (Application E011 of 2024) [2024] KESC 49 (KLR) (Civ) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | Between
Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited
1st Applicant
Galot Industries Limited
2nd Applicant
and
Standard Chartered Financial Services Limited
1st Respondent
A.D. Gregory & C.D. Cahill
2nd Respondent | [2024] KESC 49 (KLR) | null | null | Orders
14.
Consequently, and for the reasons aforesaid, we make the following Orders:
a.
The Originating Motion dated 5th March 2024 is partly successful to the extent that the third question certified by the Court of Appeal as a matter of general public importance, to wit, Whether this Court can proceed to enter judgment on its own discernment and interpretation of a Record of Appeal which is inconsistent, illegible, incomplete and/or portions of the same are missing and whether an incomplete record of appeal which obscures evidence denies a party a right to fair hearing (as protected by Article 25 of the Constitution) and access to justice (as protected by Article 48) of the Constitution) is not a matter of general public importance. In the result this question is stuck off the record of issues to be determined by this Court.
b.
For the avoidance of doubt, we uphold the certification of and determination of the following two issues as matters of general public importance:
i.
Whether a financier holding securities in a charge or debenture is required to register fresh securities whenever a subsequent advance is made, even if the securities for the previous advances have not been discharged;
ii.
Whether there is a correlation between a security instrument drawn in favour of a lending institution, and the right of recovery under a facility advanced by the same lending institution. In particular, as submitted by the applicant, the Supreme Court will be called upon to determine whether a borrowing which has not been secured (whether as contemplated by the parties or otherwise) discharges a borrower from its obligation to repay a loan;
c.
The costs shall abide the outcome of the appeal.
Orders accordingly. | Certification allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/49/eng@2024-08-30 |
Petition (Application) E012 of 2024 | Standard Chartered Financial Services Ltd v Manchester Outfitters (Suiting Division) Limited now called King Woolen Mills Ltd & 2 others (Petition (Application) E012 of 2024) [2024] KESC 50 (KLR) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | Standard Chartered Financial Services Ltd
Appellant
and
Manchester Outfitters (Suiting Division) Limited now called King Woolen Mills Ltd
1st Respondent
Galot Industries Ltd
2nd Respondent
AD Gregory & CD
3rd Respondent | [2024] KESC 50 (KLR) | null | Representation:
Ms. Radhika Arora h/b for Mr. George Oraro, SC for the Appellant (Oraro & Company Advocates)
Mr. Philip Nyachoti for the 1st and 2nd Respondents (Nyachoti & Co. Advocates)
Mr. Chege for the 3rd Respondent (Amolo & Gachoka Advocates)
1.
Before this Court are three Motions, two of which have been filed by Standard Chartered Financial Services Limited (the Appellant) and the third by Manchester Outfitters (Suiting Division) Limited and Galot Industries Limited (the 1st and 2nd Respondents respectively).
2.
Noting the facts pertaining this matter as established by the superior courts below; that the Standard Chartered Merchant Bank Limited of London (SCMB) advanced 1,300,000 Deutschemarks and 1,050,000 Swiss Francs to the 1st Respondent vide a Euro-currency loan dated 22nd March 1982; that the 1st Respondent executed a debenture dated 5th April 1982 in favour of the Appellant who was its guarantor for the said loan; that on 7th October 1986, the 1st Respondent and Appellant ‘localized’ the Euro-currency loan to Kshs.9,000,000/= through a facility letter; that the Appellant advanced the Kshs.9,000,000/= to the 1st Respondent who in turn offset its dues to SCMB; that the 1st Respondent defaulted in repaying this loan to the Appellant and it (the Appellant) sought to recover a total of Kshs.19,024,522.05/= being the amounts owing to the Appellant by the 1st Respondent and hence appointed the 3rd Respondent as receiver and manager over the 1st Respondent’s assets; and
3.
Taking into account the High Court’s decision (Githinji, J. (as he then was)) in Manchester Outfitters (Suiting Division) Ltd. & Another v Standard Chartered Financial Services Ltd & Others, HCCC No. 5002 of 1990 wherein it was held that the debenture registered in 1982 was indeed valid for purposes of enforcing the localized agreement; equally, the appointment of the 3rd Respondent as receiver and manager of the 1st Respondent’s assets for the recovery of the amounts owing under the localization agreement was valid; and
4.
Cognisant that the Court of Appeal (Asike-Makhandia, Kantai & Nyamweya, JJ. A) in Manchester Outfitters (Suiting Division) Limited now called King Woollen Mills Limited & Another v Standard Chartered Financial Services Limited & Another, Civil Appeal No. 88 of 2000 overturned the High Court’s decision (Githinji, J. (as he then was)) in HCCC No. 5002 of 1990; that the Court of Appeal held that the debenture registered in 1982 between the Appellant and the 1st Respondent did not extend to the localization agreement executed in 1986 between the same parties; that consequently, the appointment of the 3rd Respondent as receiver and manager of the 1st Respondent’s assets was invalid and it was so declared; that the 1st Respondent was entitled to damages as sought in the re-amended plaint and the matter was referred to the High Court for assessment of damages. It is important to note at this juncture that in the course of the appeal before the Court of Appeal, the 3rd Respondent proceeded to sell the 1st Respondent’s assets; and
5.
Noting that subsequently, on 24th February 2024 vide Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited now called King Woollen Mills Limited & 2 Others, Civil Application No. Sup. E001 of 2023, the Court of Appeal (Warsame, M’Inoti and Mativo, JJ. A) certified the following 3 issues as raising matters of general public importance:
a.
Whether a charge or debenture applies to future advances made between the same parties;
b.
The place of a lender in the face of an unsecured loan that has become due; and
c.
Whether the Court of Appeal can proceed to determine an appeal where the record is incomplete, illegible, faded and parts of it missing, contrary to the Court of Appeal Rules.
6.
Further noting that the parties, specifically, the Appellant and the 1st and 2nd Respondents, differed on whether the letter agreement dated 27th November 1981 formed part of the record before the superior courts below and whether it, in fact, was considered; that the parties continue to advance conflicting arguments as to whether the debenture executed on 5th April 1982 was a continuing security between the Appellant and the 1st Respondent; and
7.
Upon perusing the Notice of Motion dated 5th April 2024 brought under Articles 48, 50(1) of the Constitution of Kenya, Sections 3, 21 and 23A of the Supreme Court Act, Cap 9B of the Laws of Kenya and Rules 17, 31 and 32 of the Supreme Court Rules, 2020, wherein the Appellant seeks the following orders:
i.
Spent.
ii.
That pending the hearing and determination of the appeal in Petition No. E012 of 2024, this Honourable Court be pleased to issue an order of stay of execution of the judgment and order of the Court of Appeal dated 16th December 2022 in Nairobi Civil Appeal No. 88 of 2000- Manchester Outfitters (Suiting Division) Limited & Another v Standard Chartered Financial Services Limited & Others, together with any other consequential orders arising therefrom.
iii.
That pending the hearing and determination of the appeal in Petition No. E012 of 2023 (sic), this Honourable Court be pleased to stay any further proceedings (assessment of damages) before the High Court in HCCC No. 340 of 2006- Manchester Outfitters (Suiting Division) Limited now called King Woollen Mills Limited & Another v Standard Chartered Financial Services Limited & Others.
iv.
That the costs of this application be awarded to the Appellant herein; and
8.
Upon perusing the grounds in support of the application, the supporting affidavit and further affidavit sworn on 5th April 2024 and 18th April 2024 respectively, by Dr. Davidson Mwaisaka, the Head of Legal (Kenya & East Africa) of the Standard Chartered Group which group includes the Appellant, and the Appellant’s submissions of even date to the effect that the Appellant has lodged SC Petition No. E012 of 2024 challenging the Court of Appeal’s decision in Civil Appeal No. 88 of 2000; that in the meantime, the 1st and 2nd Respondents lodged Machakos ELC No. 94 of 2017, Galot Limited & Another v the Honourable the Attorney General & Another, wherein they seek orders nullifying the sale of L.R. Nos. 12867/1 and 128671/2 and for reversion of the said properties to the 1st and 2nd Respondents; that the 1st and 2nd Respondents have also commenced HCCC No. 340 of 2006 Manchester Outfitters (Suiting Division) now called King Woollen Mills Limited & Another v Standard Chartered Financial Services & Others for the assessment of damages wherein they seek the total sum of Kshs.33,940,614,490/= as the 1st Respondent’s asset valuation; that the application has met the 3-pronged test laid out in the case of Kombe Harrison Garama v Kenga Stanley Karisa & 3 Others, SC Application No. E028 of 2023; [2023] KESC 83 (KLR) that is, the appeal or intended appeal is arguable and not frivolous; unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and that it is in the public interest that the order of stay be granted; that the certification of 3 issues as raising matters of general public importance in Civil Application No. Sup. E001 of 2023 is testament to the appeal’s arguability; that the Appellant is apprehensive that, should the appeal be successful, the 1st and 2nd Respondents may not be in a position to refund the large sums of money claimed since they have not been a going concern from the year 1990; that they have an active dispute as to their rightful shareholders and directors and further, their assets are unknown; that in the absence of a stay order, the Appellant is likely to suffer a huge loss capable of bringing it to its knees and in this connection, it attached a Bank Supervision report by the Central Bank of Kenya to the effect that only 9 banks out of the 39 banks in Kenya have a capital base close to the damages sought by the 1st and 2nd Respondents; and
9.
Upon considering the 1st and 2nd Respondents’ replying affidavit sworn on 12th April 2024 by Mohan Galot who describes himself as the principal shareholder, governing director and chairman of the 1st and 2nd Respondents’ board of directors and exercising full management and control of the 1st and 2nd Respondents’ affairs, and the 1st and 2nd Respondents’ submissions of even date to the effect that the Appellant had failed to meet the test for grant of stay orders; that the judgment in Civil Appeal No. 88 of 2000 is not capable of execution and stay is not effective in the circumstances; that ELC No. 94 of 2017, which was previously Milimani HCCC No. 122 of 2008, was instituted in 2008 before the delivery of the Court of Appeal judgment and therefore, did not amount to execution; that in addition, there is a pending application for stay of proceedings in ELC No. 94 of 2017; that this Court can only stay further proceedings in the Court of Appeal and not in Milimani HC Commercial No. 340 of 2006 (formerly Milimani Civil Suit No. 5002 of 1990); that having caused the sale of the 1st Respondent’s assets and business, for which it was yet to render accounts, the Appellant had in effect fully recovered Kshs.19,024,522/= being the monies it claimed in its counter-claim in HCCC No. 5002 of 1990; that the 1st and 2nd Respondents had since filed SC Originating Motion No. E011 of 2024 Manchester Outfitters (Suiting Division) Ltd. now called King Woollen Mills Ltd. & Anor. v Standard Chartered Financial Services Ltd. & Anor. challenging the decision in Civil Application No. Sup. E001 of 2023 which ruling would affect the instant application; that given that HCCC No. 340 of 2006 was pending, the Appellant’s prayers were largely speculative and there are avenues open to the Appellant to seek recourse in the event of entry of any adverse orders in HCCC No. 340 of 2006; that the dispute relating to the 1st and 2nd Respondents’ directorship and/or shareholding is inconsequential and in any event, had been settled in Milimani HCCC No. 55 of 2012 Manchester Outfitters Limited v Pravin Galot & 4 Others; that the Appellant has not demonstrated that execution is imminent or that it would suffer substantial loss; that whilst citing the case of Edwin Harold Dayan Dande & 3 Others v The DPP & 2 Others, SC Petition 6 (E007), 4(E005) and 8(E010) of 2022 (Consolidated); [2023] KESC 40 (KLR), submitted that this Court does not have the power to halt further proceedings before the High Court; and
10.
Taking into account the 1st and 2nd Respondents’ application dated 11th April 2024 brought under Sections 3A, 21(1) and (2) of the Supreme Court Act and Rules 31(6), 40(1)(d), 65(1) and (2) of the Supreme Court Rules, wherein they seek the following orders:
a.
That the Record of Appeal dated 22nd March 2024 and filed in court on 25th March 2024 be struck out.
b.
That costs of this application be provided for.
11.
Further taking into account the grounds on the face of the application and the affidavit in support thereof and the further affidavit sworn on 11th April and 26th April 2024 respectively, by Mohan Galot, and their primary submissions and supplementary submissions dated 11th April and 26th April 2024 respectively, wherein they urge that the Appellant contravened Rules 38(2)(b) and 40(1)(d) of the Supreme Court Rules by deliberately omitting the following critical documents in the record of appeal:
a.
the 1st and 2nd Respondents’ supplementary record of appeal dated 24th February 2001,
b.
5 volumes of the entire High Court file in HCCC No. 5002 of 1990 filed in the Civil Appeal 188 of 2000,
c.
the orders and directions of the Court of Appeal issued on 9th December 2021, 17th February 2022, 12th May 2022 and 7th July 2022,
d.
the 1st and 2nd Respondents’ submissions dated 9th December 2020 and the digest of authorities thereto, the Appellant’s written submissions dated 12th February 2021 and the digest of authorities thereto and lastly, the 3rd Respondent’s written submissions dated 9th July 2021 and the digest of authorities thereto, to the 1st and 2nd Respondents’ utter prejudice and cited the case of Law Society of Kenya v The Centre for Human Rights Democracy & 12 Others, SC Petition No. 14 of 2013; [2014] eKLR in support of this position; that the 15-days’ statutory timeline for filing a supplementary record of appeal as provided for in Rule 40(4) of the Supreme Court Rules had since lapsed without any application from the Appellant for leave to file a supplementary record of appeal; that the failure to include all the relevant pleadings renders the record of appeal incomplete and incurably defective; that the omission was fatal and could not be saved under Article 159(2) of the Constitution and liable to be struck out and cited this Court’s decision in Erdemann Property Ltd. v Safaricom Staff Pension Scheme & 3 Others, SC Petition (Application) No. E013 of 2023; [2023] KESC 76 (KLR) in support; that without the complete record, this Court is handicapped in determining the appeal; that the appeal cannot stand in the absence of a record of appeal and should equally be struck out; and
12.
Noting the Appellant’s replying affidavit sworn on 22nd April 2024 by Dr. Davidson Mwaisaka and the submissions of even date urging that some of the documents identified by the 1st and 2nd Respondents as allegedly missing from the record of appeal are either actually part of the record of appeal, and if they are not, they are not relevant to the matters certified as being of general public importance; that in any event, the Appellant discharged its duty by writing to the Deputy Registrar of the Court of Appeal requesting for the proceedings and attaching those proceedings it received to the record of appeal and can therefore, not be faulted/ penalized and in support thereof, cited the case of Alfred Asidaga Mulima & 2 Others v The Hon. Attorney General & 8 Others, SC Petition (Application) No. 17 of 2019; while citing this Court’s decision in Arvind Shah & 7 Others v Mombasa Bricks & Tiles Limited, SC Petition (Application) No. 18 (E020 of 2022); [2023] KESC 28 (KLR), given that the appeal touches on matters of general public importance, it urged that any missing documentation would only speak to the facts of the case, which would equate to asking this Court to go beyond its jurisdiction and delve into the facts; that the 1st and 2nd Respondents have not demonstrated any prejudice they are likely to suffer should the appeal proceed on the basis of the record of appeal as filed; that relying on this Court’s decision in Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 Others, SC Petition No. 23 of 2018; [2018] KESC 9 (KLR), it would be improper to strike out a record of appeal on account of failure to include non-mandatory documents in the record of appeal; that in any event, and citing the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 Others, SC Petition (Application) No. 38 of 2018; [2019] KESC 42 (KLR), Rule 40(4) of the Supreme Court Rules accords a litigant a chance to seek leave to file a supplementary record of leave, which application the Appellant was amenable to filing; that the application was therefore, frivolous, an abuse of court process and meant to defeat the appeal; that Article 159(2)(d) of the Constitution calls upon this Court to administer justice without undue regard to technicalities; and
13.
Bearing in mind the Appellant’s second application dated 26th April 2024 (second application) brought under Articles 48, 50 and 159(2)(d) of the Constitution, Sections 3A and 21(2) of the Supreme Court Act and Rules 31 and 40(4) of the Supreme Court Rules, 2020 wherein it seeks the following principal orders:
i.
Spent
ii.
This Honourable Court be pleased to extend time for the filing of a Record of Appeal and grant leave to the Appellant to file a Supplementary Record of Appeal containing the following documents-
a.
The 1st and 2nd Respondent’s Supplementary Record of Appeal dated 24th February 2001 and filed in Civil Appeal No. 88 of 2000;
b.
The five (5) volumes containing copies of the High Court file in Milimani HCCC No. 5002 of 1990; and
c.
The Court of Appeal’s directions and transcribed copies of the handwritten notes of the Judges of the Court of Appeal in Civil Appeal No. 88 of 2000 dated 9th December 2021, 17th February 2022, 12th May 2022 and 7th July 2022.
iii.
The costs of this application be in the appeal.
14.
Further bearing in mind the grounds on the face of the application and the affidavit in support and further affidavit sworn on 26th April and 13th May 2024 respectively by Dr. Davidson Mwaisaka, and the submissions of even date wherein it is urged that the Appellant had filed a record of appeal that is compliant with Rule 40(1) of the Supreme Court Rules; that the Appellant had indeed deliberately failed to include some of the documents contested to be missing since they do not fall within the ambit of Rule 40(1) of the Supreme Court Rules; that while the omitted documents are not necessary for the determination of the appeal, nonetheless, the instant application was for purposes of filing a supplementary record of appeal in line with this Court’s decision in Surya Holdings Limited & 2 Others v CFC Stanbic Limited & Another, SC Petition No. 8 of 2019; [2020] KESC 2 (KLR), so as to afford the 1st and 2nd Respondents a chance to rely to the said documents, should they so wish; that no prejudice would be visited upon the Respondents, especially in view of the fact that 1st and 2nd Respondents were yet to file their submissions to the appeal; that the Appellant was amenable to the 1st and 2nd Respondents filing further and/or supplementary affidavits in view of the imminent supplementary record of appeal; that it was in line with the precepts of justice to allow the application in the terms sought; and
15.
Considering the 1st and 2nd Respondents’ replying affidavit sworn on 6th May 2024 by Mohan Galot and submissions of even date to the effect that the Appellant’s second application is incompetent (the reasons wherefore were not advanced in the affidavit); that the orders sought were discretionary and the Appellant was undeserving since it had deliberately failed to include the contested documents in the record of appeal and cited the Law Society of Kenya Case in support; that the Appellant’s deliberate failure was calculated to paint a picture that the Court of Appeal entered judgment on account of an incompetent record; that, citing the Sammy Kemboi Case, a pending application for striking out an appeal was not ground enough to file an application for leave to file a supplementary record of appeal; that in fact, the 1st and Respondents’ application to strike out both the petition and record of appeal ideally closed the door on the Appellant filing an application for leave to file a supplementary record of appeal; that in order to properly interrogate whether the Court of Appeal proceeded to render judgment on the basis of an incomplete record, the Appellant was duty-bound to indeed file the entire record of the proceedings in the superior court below; that the application was meant to defeat the 1st and 2nd Respondents’ application dated 11th April 2024; and
16.
Having considered the totality of the applications, the responses and submissions put forth, we now opine as follows:
a.
Sections 3A and 21 of the Supreme Court Act, empower this Court to grant such orders as are necessary for the administration of justice, including orders of stay of execution of a superior court’s judgment. This jurisdiction was restated in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, SC Application No. 5 of 2014; [2014] eKLR. The parameters for granting stay of execution pending appeal were set also out in Board of Governors, Moi High School, Kabarak & Another v Bell Bell & 2 Others, SC Petition Nos. 6 & 7 of 2013 & Civil Application Nos. 12 & 13 of 2012 (Consolidated); [2013] KESC 12 (KLR), as follows:
i.
The appeal or intended appeal is arguable and not frivolous;
ii.
Unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and
iii.
It is in the public interest that the order of stay be granted.
b.
We note that the Court of Appeal certified the matter and dispute between the parties herein as raising matters of general public importance. We further note that the 1st and 2nd Respondents separately challenged the certification and by a separate Ruling delivered at the same time as this one, we have found that the matter indeed raises matters of general public importance. In the circumstances, we find that the appeal is indeed not frivolous.
c.
On whether the appeal will be rendered nugatory, we note that the Appellant spoke to the 1st and 2nd Respondents’ inability to refund the monies sought in the event the appeal is successful. The 1st and 2nd Respondents urged that the stalemate on its directorship/shareholding had since been resolved. However, we note that the 1st and 2nd Respondents did not indicate that they would be able to repay sum claimed by the Appellant should the appeal be successful neither did they advance evidence to this end.
d.
It is uncontested that proceedings for the assessment of damages have commenced in HCCC No. 340 of 2006. The damages sought by the 1st and 2nd Respondents are indeed colossal and the High Court will ultimately determine whether the same are founded or not. Taking into account that one of the issues before this Court is whether the referral of the matter back to the High Court for assessment was proper, it follows that it would be in the interests of justice and public policy to save precious judicial time and stay those proceedings. In addition, and out of abundance of caution, the proceedings in ELC No. 94 of 2017 are hereby stayed pending the hearing and determination of SC Petition No. E012 of 2024 given that the transfer of L.R. Nos. 12867/1 and 128671/2 will be directly affected by the final decision in the appeal before this Court.
e.
With regard to the 1st and 2nd Respondents’ application wherein they seek to strike out the record of appeal and the appeal, we have considered and appreciated the tenor of Rule 40 of the Supreme Court Rules. Indeed, it behoves the Appellant to ensure that the record of appeal before the Court contains all the relevant pleadings necessary to enable this Court discharge its mandate. The rule specifically provides for the following critical documents:
a)
a certificate certifying the matter as of general public importance, b) the judgment or ruling of the Court of Appeal being appealed from, and c) a judgment or ruling of the High Court or a court of equal status. Notably, there is no contest that these 3 documents have been filed. The last document according to the Rule 40 is d) the relevant pleadings required to determine the appeal. See The Law Society of Kenya Case.
f.
A record of appeal that does not comply with these parameters would impede on this Court’s mandate to efficiently discharge justice. The Kenya Revenue Case is distinguishable from the case herein since in that case, the Appellant was aware that the record of appeal was incomplete but chose not to rectify the anomaly.
g.
Having found as above, are the documents alleged to be missing so vital that the record of appeal ought to be regarded as incomplete? We think not. Black’s Law Dictionary, 9th Edition defines a pleading as a formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials or defences. Submissions support the pleadings and elaborate the facts and evidence. However, they in themselves are not pleadings. In any event, in their judgments, the superior courts below, summarized the proceedings and the parties’ submissions. We therefore find and hold that we have sufficient information before us for a judicious consideration of the appeal before us. In any event, we accept and have confirmed the Appellant’s explanation that the submissions in question are indeed part of the record of appeal.
h.
As regards the supplementary record of appeal and the 5 volumes in HCCC No. 5002 of 1990, in its judgment, the Court of Appeal summarized the relevant events, directions and orders that culminated to its final judgment delivered on 9th December 2022. We have considered the 1st and 2nd Respondents’ affidavits containing the said supplementary record of appeal. To our minds, the same constitutes the record before the High Court in HCCC No. 5002 of 1990. We have the record of appeal in Civil Appeal No. 88 of 2000. Rule 89 of the Court of Appeal Rules 2022 provides for the documents that must form the record of appeal. Among these documents are the pleadings, trial judge’s notes, documents put in evidence at the hearing before the superior court below (High Court) among others. There is no contention or indication that there is any document that has been left out and there is no doubt that the record of appeal filed in the Court of Appeal contains the pleadings and evidence adduced before the High Court. We therefore find and hold that the supplementary record of appeal as postulated is not necessary in the circumstances.
i.
Inarguably, the 15-day statutory timeline to file a supplementary record of appeal has lapsed. However, we note that the Appellant has since sought to rectify the situation by seeking leave to file a supplementary record of appeal that includes the documents alleged to be critical but missing from the record, vide an application dated 26th April 2024. See the Hamida Yuri Case. To our minds, an existing application for striking out does not in itself bar a litigant from rectifying an anomaly that has come to its attention, especially in a case of general public importance, like the one before us. Such a blanket finding contravenes the dictates of justice. We decline the 1st and 2nd Respondents’ argument on this ground.
j.
However, in view of our finding herein above to the extent that none of the documents alleged to be missing is vital to the determination of the appeal before us, it follows that the Appellant’s application for leave to file a supplementary record of appeal must fail.
17.
In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, that the award of costs is ultimately a question of judicial discretion, the order that commends itself to us is that each party shall bear its own costs. | 18.
Accordingly, and for the reasons afore-stated, we make the following Orders:
i.
The Appellant’s application dated 5th April, 2024 is hereby allowed to the extent that the execution of the Court of Appeal’s judgment in Civil Appeal No. 88 of 2000 is hereby stayed pending the hearing and determination of SC Petition E012 of 2024. For the avoidance of doubt, the proceedings in Milimani HCCC No. 340 of 2006 and Machakos ELC No. 94 of 2017 are hereby stayed pending the hearing and determination of SC Petition E012 of 2024.
ii.
The 1st and 2nd Respondents’ application dated 11th April, 2024 seeking to strike out the Appellant’s record of appeal is hereby dismissed.
iii.
The Appellant’s application dated 26th April, 2024 seeking leave to file a supplementary record of appeal is hereby dismissed.
iv.
Each party shall bear its costs of the applications.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/50/eng@2024-08-30 |
Application E012 of 2024 | TMG & another v AP (Application E012 of 2024) [2024] KESC 48 (KLR) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | TMG
1st Applicant
QFG (A Minor Suing Through His Mother and Next Friend TMG)
2nd Applicant
and
AP
Respondent | [2024] KESC 48 (KLR) | null | Brief facts
The 1st applicant and RAP (P) celebrating a monogamous marriage before the Registrar of Marriages; on March 19, 2003. P left for the United States on the very same day and never returned; the 1st applicant commenced divorce proceedings seeking nullification of the marriage on the ground that the marriage was not consummated, which proceedings were still pending before the Kilifi Chief Magistrate’s Court. The 1st applicant was blessed with a minor (2nd applicant) on November 15, 2005 from a different relationship; thereafter, the 1st applicant and the respondent began an intimate relationship in 2008. They lived together in a house in Mtwapa, which was jointly registered in their names. After selling that property and sharing the proceeds, the respondent purchased another property, referred to as the suit property, in Shanzu in 2011 and constructed a residential house on it. The applicants, including QFG (the 2nd applicant, a minor), moved into the suit property in 2014.
In 2016, the relationship ended, and the respondent served the 1st applicant with a notice to vacate the suit property. The 1st applicant filed a suit in the High Court claiming an equitable interest in the property, arguing that they lived as husband and wife and that the respondent had assumed parental responsibility over the 2nd applicant. The respondent denied the claims, stating that he purchased the suit property for resale and allowed the applicants to stay temporarily while the 1st applicant arranged for her own residence. He also argued that the 1st applicant's prior marriage to another man was still legally valid, thereby precluding any presumption of marriage.
The High Court found that no valid marriage existed between the 1st applicant and the respondent due to the 1st applicant's subsisting marriage. Consequently, the court ruled that the suit property was not matrimonial property and dismissed the applicants’ claims. The Court of Appeal upheld that decision and refused to certify the case for appeal to the Supreme Court, stating it did not raise issues of general public importance. The applicants then sought a review of the decision in the Supreme Court, arguing that their case raised significant issues regarding evolving societal norms and property rights in cohabitation arrangements. | 11.
Upon deliberations on the Motion and the rival arguments, we opine as follows:
i.
It is trite that a matter(s) of general public importance which would warrant the exercise of this court’s appellate jurisdiction under article 163(4)(b) of the Constitution should transcend the dispute between the parties, and have a significant bearing upon public interest. Further, the onus lies with the applicants to demonstrate that the matter in question carries specific elements of real public interest and concern.
ii.
We cannot help but note that the applicants did not concisely set out the issues they deem are of general public importance in their Motion. Rather, they set out the issues in their written submissions. This Court has time and time again underscored the requirement and necessity of an intended appellant(s) to concisely set out the issues deemed to be of general importance as appreciated in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (Supra). In short, the delineated issues form the basis upon which both the Court of Appeal and this Court determine whether indeed an intended appeal raises issues of general public importance which warrant this Court’s consideration. Therefore, we find that for proper order and notice to the other parties, an intended appellant, like the applicants, should concisely delineate the issue(s) of general public importance he/she deems arises from an impugned decision of the Court of Appeal not only in a Motion seeking certification but also in the instant Motion seeking review of the decision of the Court of Appeal declining such certification. Be that as it may, do the issues set out in the applicants’ written submissions constitute issues of general public importance?
iii.
The applicants’ contention is that the superior courts below erred by finding that the 1st applicant and respondent’s relationship was not a marriage simply because her marriage with P had not been nullified. We understand the applicants to argue that the superior courts below had failed to take into account that society has since accepted such relationships which they termed as “unconventional” relationships as giving rise to valid unions/marriages.
iv.
To begin with the applicants have not demonstrated that there is any lacuna or inconsistency with regard to what constitutes a valid marriage. In point of fact, as correctly observed by the superior courts below, the Marriage Act (cap 150 Laws of Kenya) is clear on this issue. In particular Section 3(1) of the Act defines a marriage as, “… a voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act”. Section 9(a) thereof provides that-
“
9.
Subject to section 8, a married person shall not, while —
a.
in a monogamous marriage, contract another marriage; …”
Likewise, Section 11(1)(c) expressly speaks to the relationship between the 1st applicant and the respondent in the following manner:
11.
Void marriages
1.
A union is not a marriage if at the time of the making of the union—
a.
either party is incompetent to marry by reason of a subsisting marriage; …”
v.
It is common ground that the applicants claim to the suit property was anchored on the contention that it was the matrimonial home. Similarly, the superior courts below found that the law is clear as to what constitutes a matrimonial home. In that regard, the courts found that since no marriage could be presumed between the 1st applicant and the respondent, it followed that the suit property was not matrimonial property. The Matrimonial Property Act (cap 152 Laws of Kenya) is quite explicit on what constitutes a matrimonial home. Section 2 thereof defines matrimonial home as follows:
“
‘matrimonial home’ means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property; …”
The said interpretive section also defines a spouse as –
“
‘spouse’ means a husband or a wife; …”
vi.
Looking at the issues that were before the superior courts below, we note that, as the Court of Appeal correctly observed, issues relating to violation of the applicants’ constitutional rights were never subject of the litigation before the said courts. Therefore, such issues cannot be raised for the first time at the point of seeking certification as appreciated in Thika Coffee Mills v Rwama Farmers’ Co-operative Society Limited (Application 11 of 2020) [2020] KESC 17 (KLR). Moreover, allegations of the violation of Articles 28, 40 and 53(3) were not even raised by the applicants in their Motion seeking certification before the Court of Appeal. This court in Wandabusi & another v Attorney General for and on behalf of the Commissioner for Lands & 3 others (Originating Motion 23 of 2017) [2019] KESC 4 (KLR) held that an intended appellant cannot introduce new issues in a Motion seeking review of the Court of Appeal’s decision declining certification, when such issues had not been raised in the Motion for certification before the Court of Appeal.
vii.
In totality, we find that the instant Motion has fallen short of demonstrating to our satisfaction beyond a mere restatement that the intended appeal raises issues of general public importance. It is apparent that the intended appeal seeks to secure an interpretation of the law in the context of the peculiar facts of this case, which is beyond this Court’s appellate jurisdiction under article 163(4)(b) of the Constitution. Therefore, we find the instant Motion lacks merit and is hereby dismissed.
viii.
Taking into account the nature of this matter and this Court’s decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that each party bears his/her own costs.
12.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The Originating Motion dated March 8, 2024 and filed on April 26, 2024 is hereby dismissed.
ii.
Each party shall bear his/her own costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/48/eng@2024-08-30 |
Petition (Application) 26 (E029) of 2022 | Trattoria Limited v Maina & 3 others (Petition (Application) 26 (E029) of 2022) [2024] KESC 54 (KLR) (30 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 30 August 2024 | 2,024 | Nairobi | Civil | Trattoria Limited
Appellant
and
Joaninah Wanjiku Maina
1st Respondent
County Government of Nairobi
2nd Respondent
Director of Public Prosecutions
3rd Respondent
Inspector General of Police
4th Respondent | [2024] KESC 54 (KLR) | null | 1.
Cognizant that by a ruling dated November 25, 2022, this court dismissed the appellant’s appeal since it did not disclose a question touching on the interpretation and application of the Constitution; that contemporaneously, the court found that it lacked jurisdiction to entertain the application and the appeal; that ultimately, the court made the following orders:
a.
The notice of motion dated September 9, 2022 is hereby dismissed.
b.
The petition of appealdated September 5, 2022 is hereby struck out for want of jurisdiction.
c.
The applicant shall bear the costs of this application.
2.
Further cognizant that the 1st respondent filed her party and party bill of costs dated August 7, 2023 wherein she claimed Kshs 2,344,292 against the appellant; that by a ruling dated December 15, 2023, the Deputy Registrar declined to assess the costs of the appeal as the same were not awarded by the court, and hence taxed the bill of costs at Kshs 17,500; that dissatisfied with the same, the 1st respondent/applicant filed the instant application on 5th April 2024; and
3.
Upon perusing the notice of motion by the 1st respondent/applicant dated March 27, 2024, filed pursuant to section 21A of the Supreme Court Act, cap 9B of the Laws of Kenya and all other enabling provisions of the law seeking the following orders:
a.
That this honourable court be pleased to review its Ruling dated 25th November 2022 delivered by Honourable Justices of the Supreme Court; Honourable Deputy Chief Justice and Vice President of the Supreme Court, Honourable Lady Justice Philomena M Mwilu, Honourable Justice Smokin Wanjala, Honourable Lady Justice Njoki Ndung’u, Honourable Justice Lenaola, and Honourable Justice W Ouko in Petition No 26 (E029) of 2022.
b.
That this honourable court award the costs of this Petition to the 1st respondent against the appellant.
c.
That costs of this application be awarded to the 1st respondent; and
4.
Upon perusing the grounds on the face of the application and the supporting affidavit and further affidavit sworn by the 1st respondent/applicant on March 27, 2024 and May 24, 2024, respectively, and the submissions and further submissions dated March 27, 2024 and June 5, 2024, respectively, to the effect that by a ruling dated November 25, 2022, this court dismissed both the appeal dated September 5, 2022 and the appellant’s application dated September 9, 2022 seeking stay of execution of the orders of the High Court (Mativo, J) in High Court Petition No 132 of 2014 as consolidated with Petition No 129 of 2014; that the court condemned the appellant/Respondent to bear the costs of the application but inadvertently failed to make orders as to the costs of the substantive appeal; that costs follow the event and being the successful party, the 1st respondent/applicant is entitled to costs of the appeal and relied on the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition No 4 of 2012; [2014] eKLR in support of that submission; that the application meets the test set out in the case of Fredrick Otieno Outa v Okello & 3 Others, SC Petition No 6 of 2014; [2017] KESC 25 (KLR); that the error in question is clerical arising from an omission which deviates from the full meaning or intention of the court’s decision; that notably, the 1st respondent/applicant only relied on section 21(4) of the Supreme Court Act in her supplementary affidavit; and
5.
Taking Into accountthe appellant/respondent’s replying affidavit sworn by its director, Gaetano Ruffo, on April 24, 2024and submissions of similar date to the effect that the application lacks merit since it does not meet the conditions set out in section 21A of the Supreme Court Act and in Kaluma v NGO Co-ordination Board & 5 Others, SC Civil Application No E011 of 2023; [2023] KESC 72 (KLR); that the application was filed after inordinate delay (15 months after the delivery of the subject ruling); that the award of costs is a discretionary matter as was held in the Jasbir Singh Rai case and failure to award the same is not a ground for review neither was it an oversight or a clerical error or error apparent on the face of the record; and
6.
Appreciating that the 2nd, 3rd and 4th respondents did not participate in these proceedings despite being served with the application; and | Having considered the application, response and submissions before us, we now opine as follows:
i.
It is a well-established principle that this court can only review its decision(s) in the manner prescribed in the Fredrick Outa Case (supra) and section 21A of the Supreme Court Act, which section provides as follows:
The Supreme Court may review its own decisions, either on its own motion, or upon application by a party in any of the following circumstances-
i.
where the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
ii.
where the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
iii.
where the court was misled into giving a judgment, ruling or order under the belief that the parties have consented; or
iv.
where the judgment, ruling or order was rendered on the basis of repealed law; or as a result of a deliberate concealment of a statutory provision.
ii.
The 1st respondent/applicant premises her application on the fact that despite being the successful party in the appeal, she was not awarded the costs of the appeal. She classifies this failure as ‘… an oversight, clerical error or an error, as costs follow the event…”.
iii.
Applying the above principles to the instant case, it is our view that the 1st respondent/applicant has not demonstrated that the subject ruling was obtained through fraud, deceit, or misrepresentation of facts; neither has she claimed or established that the court was not competent to render the said ruling. She has also not claimed nor established that the court was beguiled into believing that there existed a consent between the parties; and lastly, she has not claimed or established that the ruling was rendered on the basis of repealed law or on account of a deliberate concealment of a statutory provision.
iv.
Consequently, it is our considered view that the application dated 27th March 2024 does not fall within the parameters enunciated in the Fredrick Outa Case and section 21A of the Supreme Court Act.
v.
Notwithstanding the above findings, sections 21(4) and 21A of the Supreme Court Act speak to two very different jurisdictions. See para. 5(iv) in Mbugua & Another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & Another) vs Timber Manufacturers & Dealers Limited, SC Civil Application No. E019 of 2023; [2023] KESC 86 (KLR).
vi.
Section 21(4) of the Supreme Court Act reads:
The court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the court.
vii.
Rule 28(5) of the Supreme Court Rules on the other hand reads:
(5)
The court may review any of its decisions in any circumstance which the court considers meritorious, exceptional, and in the public interest, either on the court’s own motion, or upon application by a party.
viii.
The former is what is commonly referred to as the slip rule, where this court can correct errors apparent on the face of the judgment, ruling or order of the court and where such correction is obvious and does not generate any controversy on the decision of the court. In the Fredrick Outa case (supra), we held that “… In other words, the Slip Rule does not confer upon a court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it.” We also held that under the slip rule, the correction should be seen to steer a Judgment, decision or Order of this court towards a logical, or clerical perfection. It, however, should not change the substance of the Judgment or alter the clear intention of the court.
ix.
Notably, a clerical error is an issue that falls squarely under the slip rule. Looking at the 1st respondent/applicant’s application therefore, despite citing section 21A of the Supreme Court Act, the grounds thereof align with section 21(4) of the Act.
x.
In addition, like in the case of Cogno Ventures Limited & 4 Others vs Bia Tosha Distributors Limited & 15 Others; Kenya Breweries Limited & 6 Others (interested parties); Ferran & 24 Others (Contemnor), SC Application Nos. E005, E006 & E012 of 2023 (Consolidated)); [2023] KESC 33 (KLR),and Musembi & 13 Others (Suing on their own behalf and on behalf of 15 residents of Upendo City Cotton Village at South C Ward, Nairobi) vs Moi Educational Centre Co. Ltd. & 3 Others, SC Application No. E019 of 2021; [2022] KESC 19 (KLR), we shall invoke our jurisdiction under section 21(4) of the Supreme Court Act as read with Rule 28(5) of the Supreme Court Rules and shall proceed to clarify the court’s intention on the award costs of the appeal in its Ruling dated November 25, 2022 so as to steer this court’s ruling towards logical perfection.
xi.
In the Jasbir Singh Rai case (supra), we held in paragraph 8 that, while the general rule is that costs follow the event, this court is not bound to adhere to it. In support thereof, we relied on section 21(2) of the Supreme Court Act which reads:
In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award.
We also relied on rule 3(5) of the Supreme Court Rules 2020 which reads:
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the courtto make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the court.
xii.
We further emphasized that this courtmaintains an open-ended mandate in the invocation of discretion to ensure that the ends of justice are met, much like section 27(1) of the Civil Procedure Act, cap 21 of the Laws of Kenya which provides, inter alia, that the award of costs shall remain at the discretion of the court or judge. Further, Halsbury’s Laws of England, 4th Ed. Re-Issue (2010) Vol 10, para 16 also provides that costs lie at the court’s discretion, including, but not limited to, whether to award costs or not, and no party has a right as to costs unless and until the court awards them. Of course, this discretion, ought to be exercised judiciously and not arbitrarily.
xiii.
As noted elsewhere in this ruling, the court retains the discretion to award costs and in that context, we dismissed the appellant/respondent’s appeal because it did not raise any questions that involved the interpretation and application of the Constitution and had improperly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution. We further note that although the matter had not progressed to an oral hearing of the appeal, costs were still expended by parties in preparing for the hearing and therefore the successful party must be entitled to costs.
Orders
8.
Consequently, and for the reasons aforesaid, we make the following orders:
i.
The application dated March 27, 2024 is allowed.
ii.
The costs of the appeal dated September 5, 2022 shall be borne by the appellant/respondent.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/54/eng@2024-08-30 |
Petition E031 of 2024 | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 47 (KLR) (20 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 20 August 2024 | 2,024 | Nairobi | Civil | Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others | [2024] KESC 47 (KLR) | null | 1.
The enactment of the Finance Act, 2023 precipitated a total of 11 petitions being filed in the High Court, that is, Okoiti & 6 Others vs. Cabinet Secretary for The National Treasury and Planning & 3 Others; CommissionerGeneral, Kenya Revenue Authority & 3 Others (Interested Parties) (Petitions Nos. E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of [2023] (Consolidated)) [2023] KEHC 25872 (KLR). The gist of the said petitions was a challenge to the constitutionality of not only the legislative process that culminated in the said Act but also some of the provisions therein. The High Court (Majanja, Meoli & Mugambi, JJ.) by a judgment dated 28th November, 2023 only declared some of the provisions in the Finance Act, 2023 as unconstitutional and not the whole Act as some parties had prayed.
2.
Subsequently, six appeals and three cross-appeals were lodged at the Court of Appeal, that is, The National Assembly & Another vs. Okiya Omtatah Okoiti & 55 Others, Civil Appeals Nos. E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) against the judgment of the High Court aforesaid. Apart from finding some of the provisions of the Act as unconstitutional, the Court of Appeal (M’Inoti, Murgor & Mativo, JJ.A.), unlike the High Court, by a judgment dated 31st July 2024, declared the entire Finance Act, 2023 unconstitutional. In particular, the court issued Orders inter alia that –
“
i.
The appellants’ appeals in Civil Appeals Nos. E003 of 2024 and E080 of 2024, against the findings that section 84 (the Affordable Housing Levy) and sections 88 and 89 (the Statutory Instruments Act) are unconstitutional, are hereby dismissed on grounds that the said issues have been caught up by the doctrine of mootness, therefore, they present no live controversies.
ii.
The notices of cross-appeal by the 15th to 22nd and 38th to 49th respondents and Civil Appeal No. E064 of 2024 are devoid of merit and the same are hereby dismissed, save that we find that the High Court misconstrued its mandate under Article 165 (3) by holding that it had no jurisdiction to intervene in policy matters.
iii.
The notice of cross-appeal by the 13th respondent (LSK) is hereby allowed in the following terms: (a) a declaration be and is hereby issued decreeing that sections 24 (c), 44, 47 (a) (v), 100 and 101 of the Finance Act, 2023, introduced post-public participation, are unconstitutional and void for having been enacted in a manner that by-passed the laid down legislative stages including publication, First Reading, Second Reading and contrary to Articles 10 (1) & (2) and 118 of the Constitution and Standing Orders.
iv.
Civil Appeal No. E016 of 2024 is allowed to the extent that a declaration be and is hereby issued that sections 18, 21, 23, 24, 26, 32, 34, 38, 44, 47, 69, 72, 79, 80, 81, 82, 83, 85, 86, 100, 101, and 102 of the Finance Act No. 4 2023, introduced post-public participation to amend the Income tax Act, Value Added Tax Act, Excise Duty Act and Miscellaneous Fees and Levies Act, Kenya Revenue Authority Act, Retirement Benefits Act, Alcoholic Drinks Control Act of 2010, Special Economic Zones Act and Export Processing Zones Act, are unconstitutional, null and void for not having been subjected to fresh public participation and having been enacted in total violation of the constitutionally laid down legislative path.
…
v.
Civil Appeal No. E021 of 2021 is merited. Accordingly, we hereby issue a declaration that the enactment of the Finance Act, 2023 violated Articles 220 (1) (a) and 221 of the Constitution as read with sections 37, 39A, and 40 of the PFMA which prescribes the budget making process, thereby rendering the ensuing Finance Act, 2023 fundamentally flawed and therefore void ab initio and consequently unconstitutional.
vi.
Civil Appeal No. E049 of 2024 partially succeeds in terms of the following orders:-
(a)
a declaration be and is hereby issued that in conformity with Article 10 (1) & (2) (c), Parliament is obligated to provide reasons for adopting or rejecting any proposals received from members of the public during (the) public participation process;
(b)
a further declaration is hereby issued that the failure to comply with this constitutional dictate renders the entire Finance Act, 2023 unconstitutional.
viii.
We affirm the finding by the High Court that sections 76 and 78 of the Finance Act, 2023 amending section 7 of the Kenya Roads Act, 1999 are all unconstitutional, null and void.
ix.
We uphold the finding by the High Court that concurrence of both houses in the enactment of the Finance Act, 2023 was not a requirement under Article
(i)
Having found that the process leading to the enactment of the Finance Act, 2023 was fundamentally flawed and in violation of the Constitution, sections 30 to 38, 52 to 63 and 23 to 59 of the Finance Act, 2023 stand equally vitiated and therefore unconstitutional...” | 14.
We have considered the Motions and the parties’ rival submissions. The applicants herein seek interlocutory orders in the nature of stay of execution and conservatory orders pending the hearing and determination of the consolidated appeal by this Court. It is common ground in that context that, this Court is vested with jurisdiction to issue such interlocutory orders as provided for under Section 23A of the Supreme Court Act. As also appreciated in Board of Governors, Moi High School, Kabarak & another vs. Bell & 2 Others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR), the essence of such interlocutory orders is to safeguard the character and integrity of the subject-matter of an appeal, pending the resolution of all contested issues.
15.
The parameters within which stay of execution and conservatory orders may be issued by this Court were aptly set out in the Gatirau Munya Case as follows:
“
The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:
i.
the appeal or intended appeal is arguable and not frivolous; and that
ii.
unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:
iii.
that it is in the public interest that the order of stay be granted.”
16.
Based on the foregoing, we wish to disabuse the misconception that the element of public interest supersedes all the other elements when it comes to granting stay and conservatory orders. As the aforementioned decision clearly states, the element of an arguable appeal and the nugatory aspect should be established conjunctively and not disjunctively in an application for stay and conservatory orders. The reason for such a position is obvious-that stay or conservatory orders deny a successful litigant the fruits of his judgment albeit temporarily and so the applicant has to satisfy both limbs above in order to succeed in his prayers. However, it is only in specific circumstances, such as in this case, where public interest arises that the said element should be met. It is also common ground that not all cases will have a public interest element in them. Do the Motions in question meet the aforementioned parameters?
17.
To begin with, whether an appeal is arguable does not call for the interrogation of the merit of the appeal. It need not necessarily succeed, but it ought to warrant consideration by this Court. Further, even one arguable point is sufficient to meet the test. See Dock Workers Union & Another vs. Portside Freight Terminals Limited & 10 Others, SC Petition (Applic) No. E010 & E011 of 2024 (consolidated). Being mindful not to make definitive findings at this stage, we find that the place and extent of public participation in the legislative process, and whether Parliament can amend bills after they have been subjected to public participation are some of the issues which warrant this Court’s consideration. Similarly, the parameters and considerations of a declaration of the unconstitutionality of a statute requires our input as would the questions on the orders to be issued upon such a declaration being issued including whether to allow or disallow suspension or otherwise of the declarations to enable remedial action by the offending party.
18.
On the nugatory aspect, we understood some of the respondents to argue that the Court of Appeal declined to issue stay orders following the High Court judgment and opted to hear the consolidated appeal before it on merit. Therefore, in their view, the same was indicative that the appeal before us would not be rendered nugatory. In that regard, it is not in dispute that the Court of Appeal vide National Assembly & 47 Others vs. Okoiti & 169 Others (Civil Application E577, E581, E585 & E596 of 2023 (Consolidated)) [2024] KECA 39 (KLR) declined to stay the execution of the High Court judgment pending the hearing and determination of the appeal before it. However, we are cognisant that the High Court judgment had not declared the entire Finance Act, 2023 unconstitutional like the Court of Appeal Judgment did. The circumstances now obtaining are different for that reason alone. In any event, the fact that the superior courts below declined to issue stay of execution or conservatory orders by itself does not bar this Court from issuing interlocutory orders on a case-by-case basis.
19.
On our part therefore, taking into account the uncertainty regarding the revenue raising measures and difficulty that may arise in the operations of the two levels of governments as posited by the applicants, coupled with the far-reaching implications of the declaration of the entire Finance Act, 2023 as unconstitutional, we are persuaded that the consolidated appeal may be rendered nugatory. Besides, prima facie, we are not convinced that the consequences of such a declaration would be reversible should the consolidated appeal be successful.
20.
Furthermore, balancing the loss and uncertainty which would be occasioned to the applicants as against the loss by the respondents and public, we find that public interest tilts in favour of granting conservatory and stay orders to preserve the substratum of the consolidated appeal and maintain stability in the budget and appropriation process pending the determination of this appeal. In addition, in view of the public interest in the matter, we direct that the consolidated appeal herein be set down for hearing within the shortest time possible after the delivery of this ruling.
21.
Taking into account the public interest nature of the matter and this Court’s decision in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR, we deem it just to order that each party bears its own costs.
22.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The 1st, 2nd, 3rd and 4th appellants/applicants’ Notice of Motions dated 1st and 2nd August, 2024 and filed on 1st and 5th August respectively are hereby allowed in the following terms:
a)
A conservatory order is hereby issued suspending and staying the declarations in Orders iii, iv, vi, vii & ix(i) issued in the Court of Appeal judgment dated 31st July, 2024 in Civil Appeals Nos. E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal before this Court.
ii.
The consolidated appeal be set down for mention before the Deputy Registrar of the Court for purposes of ensuring compliance with earlier directions on filings. iii. The consolidated appeals shall be set for hearingvirtually- on 10th and 11th September 2024 at 9 am each day.
iv.
Each party shall bear its costs of the Motions.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/47/eng@2024-08-20 |
Petition (Application) E020 of 2023 | Garama v Karisa & 3 others (Petition (Application) E020 of 2023) [2024] KESC 45 (KLR) (9 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 9 August 2024 | 2,024 | Nairobi | Civil | Between
Kombe Harrison Garama
Appellant
and
Kenga Stanley Karisa
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
Amir Abubakar Seng (Magarini Constituency Returning Officer)
3rd Respondent
Michael Thoyah Kingi
4th Respondent | [2024] KESC 45 (KLR) | null | Representation:
Mr. Munyua Ezekiel, Mr Ometo Bryson & Mr. Wakwaya Kelvin for the Applicant (Rachier & Amollo LLP)
Mr. Wesley Gichamba for the 1st Respondent (Gichamba & Co. Advocates)
Ms. Kiboi & Mr. Juluis Anyonka for the 2nd and 3rd Respondents (Hussein Mutembei & Co. Advocates)
Ms. Naazi & Mr. Edgar Busiega for the 4th Respondents (Mayede Busiega Advocates)
1.
Upon perusing the Notice of Motion by the applicant dated 6th June 2024 and filed on 13th June 2024 pursuant to the provisions of section 21 A (a) of the Supreme Court Act and rule 28 (5) of the Supreme Court Rules, 2020 seeking an order of review of our judgment dated 31st May 2024 and in the alternative, an order allowing the Petition of Appeal dated 1st August 2023; and
2.
Upon reading the grounds on the face of the application, the supporting affidavit dated 6th June 2024 sworn by Harrison Garama Kombe, and the written submissions dated 11th June 2024 and filed on 13th June 2024 wherein the applicant submits that this Court, in the impugned judgment, misapplied the disjunctive test set in Raila Odinga & 6 others v. William Ruto & 10 Others, Presidential Election Petition E005 of 2022 (Consolidated with) Presidential Election Petition Nos. E001, E002, E003, E004, E007 & E008 of 2022); the Court did not specifically state the place of scrutiny vis a vis burden of proof where allegations of election malpractice are made, creating a precedence that the results of a scrutiny exercise are to be disregarded and should have no effect on allegations of election malpractice; the Court did not state which of the two grounds under Section 83 of the Elections Act was proved by the 1st respondent to warrant overturning of the election; and that the impugned judgment was obtained through misrepresentation of facts.
3.
Further Noting that the applicant has outlined the alleged instances of misrepresentation in ten (10) polling stations within Magarini Constituency in Kilifi County and urges that his application has met the test for review under Section 21A of the Supreme Court Act because the findings by the two superior courts below as well as this court were based on misrepresentation and deceit by the 1st respondent and where the deceit and misrepresentation did not originate from the 1st respondent, the courts’ findings were based on non- existent claims and documents, warranting the invocation of this Court’s jurisdiction to review its decision; and
4.
Considering that the 2nd and 3rd Respondents indicated to the Court on 5th July 2024 that they support the application and have consequently not filed any formal response to it; and
5.
Upon reading the 1st respondent’s grounds of opposition and submissions both dated 29th June 2024 and filed on 8th July 2024 wherein he submits that this Court lacks jurisdiction to entertain the application as it does not fall within the purview of Section 21 (a) of the Supreme Court Act; the grounds in support of the Motion are a replica of the petition and submissions in support thereof, which the court dealt with at length in its judgment; the issues of alleged irregularities and illegalities of the election result for Magarini Constituency during the 2022 general election were dealt with in great detail when this Court delivered its verdict; the court rendered itself on the question of opening the ballot papers at the tallying centre, and even went further to refer to and apply the test in IEBC v. Maina Kiai & 5 others; Civil Appeal 105 of 2017; [2017] eKLR (the Maina Kiai Case); and
6.
Noting the further submission by the 1st respondent that the application is a camouflaged appeal of this Court’s decision delivered on 31st May 2024 and is also an abuse of the court process meant to delay the process of conducting a by-election for Magarini Constituency which has already commenced because the contested seat was declared vacant by the Speaker of the National Assembly vide Gazette Notice No. 7207 of 10th May 2024; the application does not meet the threshold in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others S.C. Petition No. 6 of 2014 [2017] eKLR and that it is a classic case of forum shopping seeking to forestall the implementation of the orders of this Court as the applicant, through his campaign manager and proxies, filed the suit at the High Court in Malindi being Jackline Kabibi Juma & 2 Others v Attorney General & Others Malindi H.C. Pet No. E007 of 2024 seeking orders to stop the conduct of the by- election for Magarini Constituency; and
7.
Upon also considering the Replying Affidavit dated 1st July 2024 and sworn by Michael Thoyah Kingi, the 4th respondent herein, averring that the application is incurably defective as it discloses no ground for review; and that the application is a disguised appeal which seeks to reopen and relitigate matters already determined with finality by this Court;
8.
Furthermore noting that the applicant’s submissions on the alleged misrepresentation of facts by this Court revolve around the Court’s appreciation of the record and in particular its analysis of the scrutiny exercise conducted by the trial court and the resultant report on the exercise, its finding on transparency of the process specifically the reopening of the ballot boxes and whether the standard of proof was met in establishing the veracity of the allegations in the ten (10) named polling stations i.e. Adimaye, Kaemebeni, Shomela, Kadzuhoni, Kinyaule, Mekatilili, Malindi G.K. Prison, Kayadagamra, Vuga, Kibaoni and Mapimo Youth Polytechnic; and
9.
Bearing in mind the decision of this Court in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others (supra) and its inherent powers, under Section 21 A of the Supreme Court Act as read with Rule 28 (5) of the Supreme Court Rules, wherein this Court, may, upon application by a party, or on its own motion, review its own decision where:
(a)
the judgment, ruling, or order, was obtained, by fraud, deceit or misrepresentation of facts;
(b)
the judgment, ruling, or order, is a nullity by virtue of being made by a court which was not competent;
(c)
the Court was misled into giving judgment, ruling or order, under a belief that the parties had consented; or
(d)
the judgment, ruling or order was rendered, on the basis of a repealed law, or as a result of a deliberate concealment of a statutory provision; and | Having considered the totality of the application, submissions put forth, we now opine as follows:
i.
The general rule is that once this Court delivers a judgment, it becomes functus officio and such a judgment stands until it is departed from in a future case or reviewed based on exceptional circumstances as delineated under Section 21A of the Supreme Court Act and Rule 28 (5) of the Supreme Court Rules. The Court in Fredrick Otieno Outa also specifically warned that an application for review is not meant to afford a party an opportunity to appeal, or relitigate its case. See also Hon. Mike Mbuvi Sonko v The Clerk, County Assembly of Nairobi City & 11 Others SC Petition (Application) No. 11 (E008) of 2022, and Member of Parliament Balambala Constituency v Abdi & 7 others SC Petition 21 (E023) of 2020 [2023] KESC 80.
ii.
On the disjunctive application of Section 83 of the Elections Act, the Court, in its judgment aforesaid, analysed the Raila 2017 & Raila 2022 decisions, the long history of the ‘disjunctive and conjunctive debate’ and the legislative reforms arising therefrom at paragraphs 72- 82. At paragraph 77 of the judgment, the Court noted that the amendments to Section 83 of the Elections Act were brought about by the Elections Laws Amendment Bill 2017. It concluded at paragraph 82 that ‘the test to be applied in Section 83 is a disjunctive one and not a conjunctive one as argued by the appellant’. The amendment to Section 83 was not therefore singly, an analysis of the Raila 2017 decision, as urged by the applicant but the subject of legislative reforms leading up to the Raila 2022 which reaffirmed the current construction of Section 83. The Court ultimately held that proof of either of the two limbs under Section 83 of the Election Act is sufficient to nullify an election.
iii.
As to the standard of proof in an election dispute, the impugned decision at paragraph 87 reiterated that in an allegation of an election offence or quasi-criminal conduct, the proof expected is one that is beyond reasonable doubt. In any other case, the standard has been set at an intermediate level, being higher than balance of probabilities but lower than beyond reasonable doubt.
iv.
On the alleged misrepresentation of facts, the Court, in its judgment, first cautioned itself that the duty to re-evaluate evidence is a function of the first appellate court and at paragraph 97 stated instances where it will entertain a question of fact. At paragraphs 22, 25 and 90 of the judgment, the Court undertook a summarized reproduction of facts of the case as recorded by the courts below, and did not in any way introduce new facts to the dispute; further, the Court referred to the Maina Kiai Case as well as Ahmed Abdullahi Mohamed &Anor v. Hon Mohamed Abdi Mohamed & 2 Others Election Petition No. 14 of 2017 and made a finding at paragraph 100 that the results declared at the polling station are final because that is the true locus of the vote and where the verification exercise of votes is done.
v.
On the scrutiny report, the Court at paragraph 108 appreciated that the scrutiny exercise and resultant report was one of the factual considerations the 1st respondent took into account in arguing his case but that did not preclude him from presenting and relying on other pieces of evidence to illustrate the fact that the election in question did not conform with constitutional and legal imperatives; and this finding does not in any way create a precedence that scrutiny results are to be disregarded and have no effect on allegations of election malpractice as alleged by the applicant.
vi.
Lastly, on the grounds under Section 83 of the Elections Act proved by the 1st respondent to warrant overturning of the election, the Court was categorical in paragraph 111 that the same was satisfied on both limbs of Section 83 of the Elections Act.
vii.
In view of the foregoing, we find and in agreement with the 1st respondent that, the application is an appeal disguised as a Motion for review and does not fall within the confines of the parameters in the Fredrick Otieno Outa Case as set out above and must be therefore be dismissed.
viii.
On costs, we are convinced that the Motion is a clear abuse of the court process and the applicant must bear the consequences of its filing and dismissal. He must therefore pay the costs thereof.
11.
For the aforestated reasons we make the following final orders:
i.
The Notice of Motion dated 6th June 2024 and filed on 13th June 2024 is hereby dismissed; and
ii.
The applicant shall bear the 1st and 4th Respondents’ costs.
12.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/45/eng@2024-08-09 |
Petition E031 of 2023 | Ondimu & another v Commissioner of Police & 3 others (Petition E031 of 2023) [2024] KESC 46 (KLR) (9 August 2024) (Judgment) | Judgement | Supreme Court of Kenya | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 9 August 2024 | 2,024 | Nairobi | Civil | Alex Otuke Ondimu
1st Appellant
Motor World Limited
2nd Appellant
and
Commissioner of Police
1st Respondent
The Director of Criminal Investigations Department
2nd Respondent
The Hon. Attorney General
3rd Respondent
Joseph Muthui Kiragu
4th Respondent | [2024] KESC 46 (KLR) | null | A. Introduction
1.
In this Petition dated October 30, 2023, the appellants seek orders setting aside the Judgment and Order of the Court of Appeal (F Ochieng, L Achode & W Korir, JJ.A) delivered on September 22, 2023. The Court of Appeal upheld the High Court’s (Ngetich, J.) Judgment in HCCC No 223 of 2012 delivered on March 30, 2022 where the High Court declared that the respondents’ actions of search and entry of the 1st and 2nd appellants’ premises was illegal and a violation of the appellants’ rights under articles 31 and 40 of the Constitution. The High Court further awarded the appellants’ damages in the sum of Kshs.3,000,000/= together with interest and costs.
B. Background
2.
The 1st appellant, Alex Otuke Ondimu, was engaged in the motor vehicle industry where he would purchase second-hand motor vehicles by first paying a deposit, then reselling the vehicles at a profit and thereafter make the final payment to the vendor. In 2009, the 1st appellant and his father, Julius Barasa Ondimu, incorporated Motor World Limited, the 2nd appellant, which operated in Nakuru. The 1st appellant then transferred his motor vehicle business to the 2nd appellant.
3.
Initially, the appellants acquired the motor vehicles locally from other motor vehicle dealers and would resell at a profit or on commission-basis. Subsequently, the appellants began importing motor vehicles directly. In the course of business, a dispute arose between the appellants and Yuasa International Limited, one of their suppliers based in Mombasa. Through several agreements, the 1st appellant purchased vehicles from Yuasa International and paid a deposit thereon with the balance payable in instalments. However, at some point, the 1st appellant and Yuasa International were unable to agree on the outstanding amount, culminating in Yuasa International instructing auctioneers to repossess the motor vehicles. Consequently, on October 1, 2010 the 1st appellant filed a suit in the High Court at Nakuru being, HCCC No. 249 of 2010 to challenge that action.
4.
In the meantime, in January 2011, a complaint was made by Mr. Owino Wahongo, the Director of Speedbat Freighters Ltd., a clearing and forwarding company, at the Criminal Investigations Department (CID) in Mombasa. The complaint was in respect of an alleged theft of various motor vehicles on transit from the Port of Mombasa to Uganda and Juba via the Port of Malaba. Sgt. Joseph Muthui Kiragu, the 4th respondent, who was then attached to CID Mombasa, was tasked with carrying out the investigations. According to the 4th respondent, the investigations led to the 1st appellant who was suspected to be in possession of the said motor vehicles in Nakuru.
5.
On January 23, 2011, the 4th respondent and police officers from Nakuru went to the 1st appellant’s residence situated at section 58 Nakuru. Upon the 1st appellant being informed of the presence of the said police officers, he jumped over his perimeter fence and ran away. Thereafter, the police officers searched his residence and took a briefcase containing several documents including logbooks, his primary school leaving certificate, passport and personal identification number (PIN) certificate. They also towed two motor vehicles, a VX Toyota Land Cruiser registration number KBL 111S, and a Toyota Prado registration number KBN 181L, from his residence to Nakuru Central Police Station. It is instructive to note that at the material time, the police officers did not have a search warrant, which the 4th respondent urged could not be obtained on the said day being a Sunday. The following day, on January 24, 2011, the police officers searched the 2nd appellant’s premises and towed away a Nissan Caravan registration number KBN 141T, from the showroom to Nakuru Central Police Station.
6.
Moreover, according to the 4th respondent, the investigations had also unearthed other complaints/criminal offences against the 1st appellant unrelated to the complaint made by the Director of Speedbat Freighters Ltd. In that regard, criminal proceedings were instituted in Mombasa., CMCRC. No. 188 of 2011, on January 18, 2011, and warrants for his arrest issued therein. The 1st appellant was arrested, arraigned before the Mombasa Chief Magistrate’s Court and charged with one count of stealing by agent contrary to section 283(c) of the Penal Code. The particulars of the charge were that on or about January 5, 2010, the 1st appellant and Ali Khalid (co-accused) jointly stole Kshs. 3,000,000/= being the purchase price of motor vehicle registration number KBK 865S, a Mitsubishi Rosa, which was received from George L. M. Gichimo for or on account of Yuasa International. They were charged with an alternative count of obtaining property by false pretences contrary to section 313 of the Penal Code. The particulars of the alternative count were that on January 5, 2010, the 1st appellant and his co- accused jointly, with the intention to defraud, obtained the aforementioned motor vehicle from Yuasa International by falsely pretending that they were in a position to pay the purchase price of the vehicle, which they knew was false. The 1st appellant and Ali Khalid (co-accused) were charged with a second count of obtaining money by false pretences contrary to section 313 of the Penal Code. The particulars were that on or about January 9, 2010 at Vineyard Hotel, Nakuru, with the intention to defraud, obtained Kshs. 3,000,000/= from George L.M. Gichimo by falsely pretending that they were the importer and registered owners of motor vehicle registration number KBK 865S and capable of availing the logbook after payment of the purchase price. Lastly, the 1st appellant and his co-accused were charged with a third count of obtaining property by false pretences contrary to section 313 of the Penal Code. The particulars were that on or about February 16, 2010 at Vineyard Hotel Nakuru, with the intention to defraud they obtained Kshs. 4,000,000/= from George L. M. Gichimo by falsely pretending that they were the importers and registered owners of motor vehicle registration number KBH 491Z, a Toyota Land Cruiser, and that they were in a position to avail the logbook thereof after payment of the purchase price which they knew to be false.
7.
It is worth noting that the two vehicles subject of the aforementioned charges in Mombasa CMCRC. No. 188 of 2011, that is, KBK 865S and KBH 491Z, were also subject of HCCC No. 249 of 2010 which had earlier on been instituted by the 1st appellant against Yuasa International. In addition, the 4th respondent lodged Criminal Misc. Appl. 16 of 2011 at the Chief Magistrate’s Court in Mombasa, and on January 28, 2011 obtained orders directing the appellants’ bankers, that is, Oriental Commercial Bank, Nakuru Branch and Eco Bank (K) Ltd., Nakuru Branch, to release to him logbooks of various motor vehicles deposited by the 1st appellant for safekeeping and/or held as security for purposes of aiding the investigations. Further, Kenya Revenue Authority was directed to place a caveat/caution to prevent transfer of the motor vehicles relating to the logbooks surrendered by the banks.
8.
Perturbed by the seizure of the three motor vehicles and institution of Mombasa CMCRC No. 188 of 2011, the 1st appellant lodged H.C.JR No. 7 of 2011 seeking the following orders:
1.
Certiorari to move into the High Court and quash the order issued by the Commissioner of Police (1st respondent herein), the Director of CID (the 2nd respondent herein) and the OCS of Nakuru Police Station authorizing the search of the appellants premises and impounding and detaining of motor vehicles registration number KBL 11S, KBN 141T and KBN 181L.
2.
Prohibition to prohibit or stop the 1st and 2nd respondents as well as the OCS of Nakuru Police Station from continuing to detain motor vehicles registration number KBL 11S, KBN 141T and KBN 181L.
3.
Prohibition to prohibit or stop the 1st and 2nd respondents from prosecuting the 1st appellant, and the Chief Magistrate, Mombasa Law Courts from proceeding with the trial of the 1st appellant in CMCRC. No. 188 of 2011.The High Court issued interim orders on February 4, 2011 to the effect that two of the vehicles that had been seized by the police namely, motor vehicles registration number KBL 111S and KBN 181L, be released to the appellants. However, the court directed that the said vehicles were not to leave Nakuru or be transferred to a third party. Further, that the documents of ownership of the two vehicles were to be surrendered to the investigating officer. | F. Analysis
Whether the superior courts below failed to consider and pronounce themselves on all the reliefs and/or orders sought
45.
The appellants submitted that both superior courts below failed to address themselves to a prayer for declaration that the filing of charges in CMCRC No 188 of 2011 against the 1st appellant was illegal, arbitrary, unlawful, capricious, malicious, an abuse of power/authority and a violation of the 1st appellant’s right to dignity. Further that the institution of that case subjected him to psychological torture.
46.
We have looked at the judgmentsof the two courts below and found that indeed, that despite being raised as a ground of appeal, this prayer was not addressed. In the case of Dhanjal Investments Limited v Kenindia Assurance Company Limited, SC Pet No 7 of 2016; [2018] eKLR, where this Court faced a similar argument, in which the Court of Appeal failed to address the merits of the grounds of affirmation, we had the following to say:
“
(61)
In our assessment of the Court of Appeal’s decision, we have not come across any reference to the notice of the grounds of affirmation or the contents therein. This may be so because the High Court decision related to the legality and procedure of the appointment of the arbitrator whereas the Court of Appeal decision faulted that appointment. It was therefore unnecessary in the Court of Appeal’s view for it to engage in analyzing a consequence founded on an unlawful action.
(62)
While the above position was convenient to the Court of Appeal, it was prudent for it to specifically address the grounds and make a finding on each of them even if to dismiss them later or find that there was no need to consider them in light of its findings ...” [Emphasis ours]
We thus held that failure to consider the notice of grounds of affirmation rendered the issue undetermined and therefore leaving the litigants in a state of uncertainty. It therefore follows that this courtought to consider the grounds that the superior Courts below did not address, and we shall consider the said prayer and make a determination on it.
(ii)Whether the 1st appellant’s right to dignity and not to be subjected to physiological torture under articles 28 and 29(d) of the Constitution was violated by the respondents.
47.
Notably, none of the parties submitted on the peculiar aspects of the trajectory of the criminal proceedings, that is how long it took, the amount of bail imposed, any challenges in raising the bail, or whether the proceedings were stopped on account of the pending JR case. The 1st appellant only stated that he was incarcerated for one day and that he shuttled from Mombasa to Nakuru over a long period of time to attend to the criminal case. That fact notwithstanding, the Prevention of Torture Act, Cap. 88 of the Laws of Kenya was enacted to give effect to articles 25(a) and 29(d) of the Constitution and the principles of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. section 4 of the said Act defines torture as:
“
4.
For the purposes of this Act, “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person-
a.
for the purposes of-
i.
obtaining information or a confession from him or her or any other person;
ii.
punishing him or her for an act he or she or any other person has committed, is suspected of having committed or is planning to commit; or
iii.
intimidating or coercing him or her or any other person to do, or to refrain from doing, anything; or
b.
for any reason based on discrimination of any kind.
when such pain or suffering is inflicted by or at the instigation of, or with the consent of acquiescence of a public officer or a person acting on behalf of a public officer, but does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Clause 2 of the Schedule to the Act lays out instances that may be classified as mental or psychological torture.
48.
The definition above is similar to the one adopted by the Constitutional Court of South Africa in the case of Sonke Gender Justice NPC v President of the Republic of South Africa and Others (CCT307/19) [2020] ZACC 26, 2021 (3) BCLR 269 (CC) (4 December 2020), in the following terms:
“It is increasingly acknowledged that the definition of “torture” does not stop at physical suffering. Psychological torture has been interpreted to include all methods, techniques and circumstances which are intended, foreseen or designed to inflict severe mental suffering, even absent physical pain. This includes, for example, isolation, the induction of anxiety through misinformation and violent threats against the incarcerated person or their family, the manipulation of cultural phobia, the withdrawal of access to privileges such as bedding or reading material, the imposition of contradictory or absurd rules, public humiliation and constant surveillance.”
49.
Similarly, the Inter-American Court of Human Rights in the case of Buenos-Alves v Argentina, in discussing the question of torture, held that the elements of torture are: 1) an intentional act; 2) which causes severe physical or mental suffering; and 3) committed with a given purpose or aim.
50.
In Monica Wangu Wamwere & 5 Others, SC Petition No 26 of 2019 (as Consolidated with Petitions Nos 34 & 35 of 2019), this court went into great detail to discuss the definition of torture, what would constitute psychological torture and the parameters thereof. Notably, we held that:
“[82]
…Therefore, the ‘essential elements’ of what constitutes torture can be identified from article 1 of “CAT” include:
a)
the infliction of severe mental or physical pain or suffering; and
b)
for a specific purpose, such as gaining information, punishment or intimidation.
….
(84)
It is evident that the exact boundaries between ‘torture’ and other forms of ‘inhuman or degrading treatment punishment or other treatment’ are often difficult to identify; and may depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms cover mental and physical ill- treatment that has been intentionally inflicted by or with the consent or acquiescence of state authorities.’
“61.
Every human being has the inherent need for communal trust. Confronted with the overwhelming power of the State, individuals must be able to compensate for their own powerlessness by relying on the community’s ability and willingness to exercise self-restraint, most notably through adherence to the rule of law and the principles of due process. As long as administrative or judicial error, negligence or arbitrariness can be effectively, if at times imperfectly, addressed and corrected through a regular system of institutional complaints and remedies, the resulting inconveniences, injustices and frustrations may have to be tolerated as an inevitable side effect of the constitutional processes that govern democratic societies. [Emphasis ours]
Therefore, where the systems fail to adequately address and check such violations, an individual may indeed suffer severe mental suffering and trauma.
51.
We take judicial notice of the fact that various issues can affect one psychologically, for instance, family matters, divorce, bereavement, work, lawsuits and so forth. It however is upon a litigant pleading psychological torture to establish in exact terms, how and when they suffered such. Consequently, the 1st appellant needed to establish what particular elements caused him psychological torture. It is expected that litigation in itself would invariably affect a party psychologically, the seriousness thereof however, would depend on a myriad of factors. It is not enough to merely state that the 1st appellant shuttled between Nakuru and Mombasa to attend his trial, suffered anguish, despair and economic stress. In the circumstances, we are not convinced that the appellants have met the parameters set out elsewhere herein, and we find that the appellants have not established that the 1st appellant suffered psychological torture.
52.
Further, we note that the prayer that was not considered by the superior Courts below, reads as follows:
“
c)
A declaration that the institution of Criminal Case No. 188 of 2011 against the 1st plaintiff was illegal, arbitrary, unlawful, capricious, malicious, and an abuse of power and/or authority and the 1st plaintiff’s right to dignity and not to be subjected to psychological torture guaranteed and protected under articles 28 and 29(d) of the Constitution have been violated by the respondents.”
53.
As rightly noted by the High Court (Ouko, J (as he then was) in JR No 7 of 2011, the Director of Public Prosecutions is tasked and mandated by the Constitution under article 157 of the Constitution to perform his functions in the following terms:
6.
The Director of Public Prosecutions shall exercise State powers of prosecution and may-
a.
institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
b.
take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
c.
subject to clause [7] and [8] discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph [b].
54.
The Director of Public Prosecutions was and still is not a party to the proceedings before the superior courts below. The court in the JR Case No 7 of 2011 stated that it could not issue orders of prohibition to stop the prosecution because the Director of Public Prosecutions is the only body vested with prosecutorial powers and they were not parties to the suit. We agree with the fact that the Constitution of Kenya, 2010 , birthed the Director of Public Prosecutions which is vested with prosecutorial powers which includes instituting and undertaking criminal proceedings. sections 57(1) and (2)(a) and (b) of the Office of the Director of Public Prosecutions Act, Cap 6B of the Laws of Kenya, provide that all prosecutions, appeals, revisions and other proceedings, service of documents in connection with criminal proceedings shall be deemed to have done in the name of the ODPP. This means that for all intents and purposes, CMCRC. No. 188 of 2011 was instituted by the DPP.
55.
It would have been prudent for the appellants to amend their pleadings and include the DPP as a party to this matter for regularity. In the circumstances, to award the appellants damages for the violation of their rights under articles 28 and 29[d] of the Constitution on account of the institution of CMCRC. No. 188 of 2011, would translate to condemning the Director of Public Prosecutions unheard, which goes against the principles of natural justice. While it is indeed evident that the appellants sued the Attorney General, that was insufficient in view of the separate and distinct constitutional mandate of the Director of Public Prosecutions and the Attorney General. For the foregoing reasons, we are not inclined to make any declaration on the alleged violation of articles 28 and 29(d) of the Constitution.
iii. Whether the appellants established loss of business/income by the 2nd appellant and if so, whether it is attributable to the respondents.
56.
The appellants submitted that they called as a witness, Stanley Invako Mbeche, a Certified Public Accountant of M/s PGN & Partners Certified Public Accountants who produced the 2nd appellant’s audited accounts. According to the evidence produced, the sales dropped from Kshs.54,450,000/= in 2010 to Kshs.12,800,000/= in 2011 hence the claim for Kshs2 8,113,722. The respondents submitted on the other hand that the downward trend in sales in 2011 did not mean that it was on account of the 1st appellant’s arrest and the appellants did not produce any evidence in support of their claim.
57.
The learned judgeof the High Court stated that: “However in my view, other factors affecting businesses cannot be ruled out and losses listed cannot solely be attributed to the defendants (sic) actions.” The Court of Appeal, on its part, held that the claim for Kshs2 8,113,772 was in the nature of special damages which must be strictly proved. The Court of Appeal further held that the evidence adduced by the appellants did not establish that the low sales in 2011 was solely caused by the respondents’ actions. It was also not established that the increased financial costs in the year 2011 were a direct result of the respondents’ actions.
58.
We have considered the record and the evidence of PW2, Stanley Invako Mbeche. It would appear that indeed the sales in 2011 were lower than those in 2010. We are nonetheless inclined to agree with the findings of the superior courts below. Special damages must be strictly proved. The 1st appellant testified that the matter was published in the Nation newspaper and that the 4th respondent damaged his name. In the amended plaint, the appellants averred that there was wide negative publicity that caused the 1st appellant’s business to drastically decline. However, there was no evidence adduced relating to this. We therefore agree with the findings of superior courts’ below that the appellants failed to establish the nexus between the respondents’ actions and the decline in the appellants’ business. Beyond producing the audited accounts, there was nothing that tied the decline in sales to the respondents’ actions.
59.
The appellants further faulted the respondents for failing to adduce evidence that there were other factors that led to the decline in business. It is trite that he who asserts must prove. See sections 107-109 of the Evidence Act, Cap 80 of the Laws of Kenya. Had the appellants’ discharged the burden of proof, then it would have been proper to shift the burden of proof to the respondents and call upon them to prove the existence of other factors that led to the closure of the appellants’ business.
60.
In addition, the appellants submitted that the respondents admitted that their conduct negatively affected their business. In Choitram & another v Nazari, Civil Appeal No. 8 of 1982; [1984] eKLR, the Court of Appeal had this to say with regard to admissions:
“ …. admissions can be express or implied either on the pleadings or otherwise, eg in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract. It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admission by analysis. Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact has been made either on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined not lose himself in the jungle of words even when faced with a plaint such as the one in this case…”
61.
The appellants quoted the following words in the respondents’ submissions in support of the allegation on admission: “… the trial court sufficiently took into account the conduct of the respondents and the implication they had on the appellant’s business while awarding general damages”.
Applying the foregoing to the instant case, it is obvious that what the appellants label as an admission is indeed far from one. We therefore reject this argument.
62.
The appellants also alleged that contrary to this Court’s decision in Gladys Boss Shollei v Judicial Service Commission & Another, SC Pet No 34 of 2014; [2022] KESC 5 (KLR), the Court of Appeal upheld the High Court’s decision on different grounds to those advanced by the High Court. In particular, the appellants submitted that while the High Court did not attribute the business losses to any specific factor, the Court of Appeal went ahead to give possible reasons. We have considered our decision in the Gladys Boss Shollei Case. In that case, we held that the Court of Appeal erred in formulating its own reasons for upholding the Judicial Service Commission’s (JSC) refusal to accord the appellant a public hearing, which reasons were not those given by the JSC. The facts therein are clearly distinguishable from the present matter. The decision of the JSC was ideally the cause of action in the Gladys Boss Shollei Case and by proffering its own reasons, it meant that the Court of Appeal was mutating the cause of action. However, in the present case, the Court of Appeal was exercising its jurisdiction as a first appellate court - that is, to consider the issues by reevaluating the evidence adduced in the trial court and arrive at its own conclusions of fact and law, and it could depart from the trial court’s findings if the same were not based on the evidence on record or where the trial court proceeded on the wrong principles of law. This line of argument by the appellants therefore fails.
iii. Whether the Court should interfere with the quantum of damages for the violation of the appellants’ rights
63.
In awarding Kshs 3,000,000 as damages, the High Court found that the appellants rights were violated when the respondents seized their motor vehicles without calling upon the appellants to prove legal possession. However, it also found that the appellants failed to establish that the respondents’ actions solely caused the decline and subsequent closure of their business.
64.
The Court of Appeal on its part held that an award of general damages is an exercise of judicial discretion and outlined the guidelines to be considered in a request to disturb an award of damages. In restating that compensation for violations of constitutional rights is meant to vindicate the right violated, it held that the award was proportional and rational in the circumstances.
65.
In the case of Parliamentary Service Commission v Martin Nyaga Wambora & 5 Others, SC Application No 8 of 2017; [2018] eKLR, this court affirmed the rationale in the case of Mbogo & Another v Shah; [1968] EA 93 at 96 that “…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been mis- justice.”
66.
We find that the appellants have failed to establish that there was any misdirection in the exercise of the High Court’s discretion to award damages. We therefore decline the invitation to interfere with the damages awarded by the High Court and affirmed by the Court of Appeal.
iii. Whether the court should apportion the general damages between the appellants.
67.
Evidently, the High Court, awarded the appellants Kshs 3,000,000 as damages. The Court of Appeal, on their part, held that whilst the award was ambiguous, the appellants had not pleaded different causes of action, separate and distinct reliefs. In addition, the appellant company had long closed down.
68.
We have perused the record and we agree with the appellants that their claims were easily distinguishable and discernible, from the pleadings right to the prayers. The Court of Appeal therefore fell into error in finding that the appellants failed to plead different causes of action and different reliefs.
69.
However, we note that one of the appellants’ grounds of contention is that there was nothing on record to show that the 2nd appellant was closed down long before the suit at the High Court was concluded. This appears to be the crux of faulting the Court of Appeal’s decision. However, the record clearly reflects that the 1st appellant’s testimony, PW2’s, Stanley Invako Mbeche, and PW3’s testimony, Teresa Njambi who was also the 1st appellant’s wife, spoke to the closure of the 2nd appellant’s business. Further, the 1st appellant testified before the High Court that the 2nd appellant was no longer operational. On the other hand, in their oral submissions before this Court, the appellants stated that the 2nd appellant was still in existence.
70.
It is however evident that the status of the 2nd appellant as advanced earlier by the 1st appellant and his witnesses was that it was no longer operational. Further, it would appear that it closed its business in 2013 or 2014. Having considered the appellants’ counsel’s oral submissions that the 2nd appellant is still in existence, we find that the evidence as relates the 2nd appellant is at best, unclear and uncertain. In the circumstances, we are not inclined to interfere with the High Court’s award. We therefore decline to apportion the damages between the appellants as prayed.
71.
In the circumstances and for the reasons given above, the appeal is partially successful. In line with our decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 thers, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to order that parties bear their own costs.
Orders
72.
Consequently, and for the reasons aforesaid, we make the following Orders:
a.
The Petition dated October 30, 2023is partially successful only to the extent that the Court of Appeal erred in failing to consider all the grounds of appeal advanced by the appellants.
b.
For the avoidance of doubt, all other prayers in the appeal are dismissed.
c.
Each party shall bear its own costs.
d.
We hereby direct that the sum of Kshs.6,000/=, deposited as security for costs upon lodging of this appeal, be refunded to the appellants.
Orders accordingly. | Allowed in Part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/46/eng@2024-08-09 |
Petition E009 of 2024 | Freedom Limited v Mbarak; Attorney General on behalf of Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development & 3 others (Proposed Interested Parties) (Petition E009 of 2024) [2024] KESC 37 (KLR) (2 August 2024) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 2 August 2024 | 2,024 | Nairobi | Civil | Freedom Limited
Appellant
and
Omar Awadh Mbarak
Respondent
and
Hon Attorney General on Behalf of Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development
Proposed Interested Party
Chief Land Registrar
Proposed Interested Party
Director of Survey
Proposed Interested Party
Director, Land Administration
Proposed Interested Party | [2024] KESC 37 (KLR) | null | Representation:
Anjarwalla & Khanna LLP for the Appellant
Muturi Gakuo & Kibara & Co. Advocates for the Respondent
Attorney General for the Proposed Interested Party
1.
Upon perusing the Notice of Motion dated 20th May 2024, and filed on 24th May 2024 by the Proposed Interested Party (the Applicant) pursuant to Section 24 of the Supreme Court Act 2011, Rules 3(1), (2), (4) and (5), 24 and 31 of the Supreme Court Rules 2020, and Direction 55(a) of the Supreme Court (General) Practice Directions 2020; seeking leave for admission as an interested party; thereafter, an opportunity to file a response and submissions to the petition upon service; and costs incidental to the application be provided for; and
2.
Upon considering the grounds on the face of the application, and the supporting affidavit sworn by David Nyandoro Nyambaso, the Chief Land Registrar, on 14th May 2024, to the effect that the property awarded by the Court of Appeal in Omar Awadh Mbarak v Freedom Limited, Mombasa Civil Appeal No E028 of 2022 no longer exists; that the applicant was not a party to the proceedings both in the Environment and Land Court or before the Court of Appeal and only became aware of the dispute recently; that though the Court of Appeal expressed significant doubts over the process leading up to the appellant’s acquisition of the suit property, and found several unresolved questions regarding the authenticity of the ownership documents presented by both parties, it nonetheless failed to invoke Rule 31 of the Court of Appeal Rules 2022 in order to resolve the lacuna by asking for additional evidence; that the Court of Appeal instead invoked the uncodified doctrine of seisin to award 973 acres of Plot No 287/3, Section V, mainland to the Respondent above constitutional and statutory provisions; that as the Chief Land Registrar, the applicant is mandated to safeguard the integrity of the certificates of title issued by his registries; that according to their records, the person whom the Court of Appeal has issued orders in favour of has never been the registered proprietor and it is not clear how his interest accrued; and that had the Chief Land Registrar been a party to the proceedings he would have provided information as to the status of the property, and the court may have reached a different determination; and
3.
Upon further considering the applicant’s supplementary affidavit sworn by Wilfred Muchae Kabue, the Assistant Director of Survey with the Ministry of Public Works, Housing and Urban Development, on 6th June 2024 wherein the applicant reiterates its grounds in support of the application and submits that it has met the criteria for a joinder application of an interested party as enunciated in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, SC Petition No 12 of 2013; [2014] eKLR; and
4.
Bearing in mind that the appellant in his replying affidavit sworn by Harji Govind Ruda on 30th May 2024, has expressed support for the application of joinder of the applicant as an interested party; and
5.
Noting that the respondent, on the other hand by a replying affidavit sworn by Omar Awadh Mbarak on 29th May 2024 and submissions dated 29th May 2024 is opposed to the Motion on the grounds that the affidavit supporting the application is fatally defective and incompetent as the deponent, David Nyandoro who has described himself as the Chief Land Registrar was not the Chief Land Registrar on account of a judgment delivered on 24th May 2024 in Nairobi ELRC No E218 of 2023 consolidated with Petition No E217 of 2023 which revoked his purported appointment; that the applicant was all along aware of the existence of the land dispute between the parties having been a party to Mombasa High Court Constitutional Petition No 42 of 2019 and Mombasa Chief Magistrate Court Criminal Case No 1278 of 2017; that the applicant does not meet the well-settled criteria for joinder as an interested party neither has the applicant demonstrated that its concerns will not be well articulated on the basis of what has been presented to the Court or the prejudice the applicant stands to suffer if the joinder application is not granted; and | Having considered the application, responses, and submissions before us, WE NOW OPINE as follows:
i.
Rule 24 of the Supreme Court Rules, 2020 provides for the joinder of an interested party in the following manner:
“
(1)
A person may, within seven days of filing a response in any proceedings, apply for leave to be joined as an interested party.
2.
An application under sub-rule (1) shall include—
a.
a description of the interested party;
b.
a depiction of such prejudice as the interested party would suffer if the intervention was denied; and
c.
the grounds or submissions to be advanced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties.”
ii.
These provisions have been previously considered by the Court and there is a long line of the Court’s pronouncements on its power to admit an interested party. For instance, in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, SC Petition No 12 of 2013; [2014] eKLR and in Francis Karioki Muruatetu & another v Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016] eKLR, the Court outlined the elements that must be satisfied for a party seeking to be joined in proceedings as an interested party to succeed.
iii.
Those elements may be summarized as follows;
a.
since the joinder of a party to proceedings before this Court is not as of right, but at the discretion of the Court, the applicant must lay sufficient grounds to qualify for the exercise of that discretion;
b.
any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties before the Court. The primary impact is on the parties that first moved the Court;
c.
whether one is joined as an interested party, amicus, or intervener the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court;
d.
one of the principal considerations for admission of an interested party is that such a party must demonstrate that he/she has an identifiable personal stake or legal interest in the matter before the Court. That stake or interest cannot take the form of an introduction to an altogether new issue;
e.
the applicant must demonstrate the nature of prejudice he/she stands to suffer in case of non-joinder; and
f.
lastly, the applicant must demonstrate the relevance of his or her case and show that it is not merely a replication of what the other parties will be presenting before the Court.
iv.
The question this application seeks to answer is, in what way will the applicant be affected or prejudiced by the decision of the Court when it is finally made either way? Or put differently, will the applicant’s legal interest or personal stake suffer if they are not permitted to personally articulate and champion them in the proceedings? Or how different will the applicant’s intended submissions before this Court be from those the appellant will be making?
v.
From inception in 2015 following the institution of Constitutional Petition No 58 of 2015 (Freedom Limited v The Chief Land Registrar & 2 others) the Chief Land Registrar and the County Land Registrar, Mombasa County and the Attorney General were parties. Similarly in Mombasa High Court Constitutional Petition No 42 of 2019 instituted by the appellant, the Director of Survey, the Director of Criminal Investigations Land Fraud Unit, and the Chief Land Registrar were all sued.
vi.
In addition to the two cases above, the respondent was charged in Mombasa Chief Magistrates Court Criminal Case No 1278 of 2017 for alleged forgery of a Transfer and Sale Agreement in which the key witnesses were the Principal Surveyor and the Land Registrar.
vii.
Though the applicant has not been a party to the proceedings giving rise to the present appeal, it is not accurate, in view of the foregoing background to say that the applicant has not been aware of the dispute between the parties herein over the ownership of the suit property.
viii.
It is however important to state that from the record, it is apparent that an oral application by the appellant to call the Director of Surveys was dismissed by the trial Judge and the court proceeded to determine the case based on the evidence before it. It ultimately found that the appellant was a bona fide purchaser; and that the respondent had failed to establish his proprietary interest.
ix.
On appeal, the Court of Appeal in overturning the decision of the trial court concluded that the oral application to call the Director of Surveys was properly rejected but curiously wondered why those who would have testified in answer to some of the gaps were either deliberately or inadvertently excluded from the proceedings either as parties or witnesses.
x.
From the totality of the material before it, the appellate court made the final conclusion that the suit property belonged to the respondent, thereby overturning the trial court.
xi.
In the present application, the applicant seeks leave to join the proceedings to address the Court as to the authenticity and origins of the titles to the suit property, in order to show that Plot No 287/3 granted to the respondent by the trial court is non-existent; and that the original parcel overtime has been subdivided in favour of third parties who were not privy to the suit before the superior courts below.
7.
Upon considering these averments, can it be said that the applicant’s Motion has met the threshold for admission as an interested party? We do not think he has. This is why.
i.
First, he has not established any definable personal interest or legal stake that is proximate enough to occasion any prejudice to him, if not joined in these proceedings.
ii.
The applicant has categorically stated that he only made the instant application after “receiving several queries from the Petitioner (appellant herein ) requesting the Ministry's intervention to confirm the origins of the title that it holds and for any correspondence that may exist at the Ministry's headquarters in Nairobi in respect of the Original Parcel”.
iii.
Pursuant to this invitation, it is apparent from the annextures to the affidavit in support of the application that the applicant, if admitted intends to present what would appear to us to be further evidence in the form of the government records held by various relevant state departments in respect of the suit property. That evidence runs into several pages of documentary evidence.
iv.
Is this not a case of leave to adduce further evidence through a third party camouflaged as an application informed by a genuine desire to be joined to assist the Court in reaching a just outcome? Both the trial court and the first appellate court based their decision on the material presented by the primary parties. A third party who is unlikely to be affected by the ultimate decision of this Court cannot present a new case independent of that of the primary parties. An application for joinder cannot be used as an avenue to attempt to fill gaps in any of the primary party’s cases.
v.
The applicant has not persuaded us that he will suffer personal prejudice if we do not grant this application.
vi.
Looking at the petition of appeal, the response, and the two judgments of the courts below, we entertain little doubt that the applicant’s participation in the proceedings would not be of any additional significance. The dispute between the primary parties, as it is, appears to us plain, and can be resolved without intervention by a third party.
vii.
Inevitably, on the basis of all that we have said, we come to the conclusion that none of the conditions for the grant of leave to be joined as an interested party has been satisfied.
viii.
We therefore find no merit in the application and accordingly dismiss it.
8.
Duly guided by our decision in Jasbir Singh Rai v Tarlochan Singh Rai, SC Petition 4 of 2012; [2014] eKLR, we exercise our discretion against an award of costs against the applicant.
9.
Having so found that this application lacks merit, we make the following orders:
i.
The Notice of Motion dated 2oth May 2024 is hereby dismissed.
ii.
We make no orders as to costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/37/eng@2024-08-02 |
Petition 17 (E021) of 2023 | Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others (Petition 17 (E021) of 2023 & 24 (E027) of 2022 (Consolidated)) [2024] KESC 39 (KLR) (2 August 2024) (Judgment) | Consolidated | Supreme Court of Kenya | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 2 August 2024 | 2,024 | Nairobi | Civil | Zehrabanu Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi)
1st Appellant
Rai Plywood (K) Limited
2nd Appellant
and
District Land Registrar Uasin Gishu
1st Respondent
Nathaniel K. Lagat
2nd Respondent
Susan Cherubet Chelugui & David K. Chelugui (Suing as the Administrators of the Estate of the Late Noah Kipngeny Chelugui)
3rd Respondent
The Registrar of Titles
4th Respondent
The National Land Commission
5th Respondent | [2024] KESC 39 (KLR) | null | A. Introduction
1.
Before this court are two petitions, Petition No 17 (E021) of 2022 dated July 28, 2022 and filed on August 1, 2022, and Petition No 24 (E027) of 2022 dated August 19, 2022 and filed on August 24, 2022. They are brought under article 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act, and rules 3(5), 31, 32 & 39 of the Supreme Court Rules, 2020. The appellants seek to set aside the Judgment of the Court of Appeal (Kiage, M’Inoti & Mumbi Ngugi, JJ.A.) delivered on July 22, 2022, which in effect affirmed the Environment and Land Court (Ombwayo, J.) in Eldoret ELC Petition No 9 of 2014. By a consent order dated February 20, 2023 the two petitions were consolidated.
B. Background
2.
Sometime in 1965, NK Lagat and Partners acquired a parcel of land known as LR No 10492 (Grant IR No 17542 /1) measuring 3236 acres from Jacobus Hendrick Engelbretch. The partnership comprised five partners, including the Late Noah Chelugui, who died on 10th July 2005. The parcel of land was transferred to the partners for a consideration of Kshs 360,000 and a transfer duly registered on June 28, 1965. Thereafter, it was urged that by a consent granted by the Uasin Gishu Land Control Board on October 16, 1976, LR No 10492 was subdivided into six portions. Five portions were distributed among the five partners while the 6th portion was transferred to Huruma Company Limited. From this sub-division, it was argued that Eldoret Municipality/Block 15/10 was assigned to the Late Noah Chelugui. Subsequently, the said Eldoret Municipality/Block 15/10 was further subdivided into a number of parcels, and one such parcel is Eldoret Municipality/Block 15/239 situate in Uasin Gishu District measuring 53 acres (hereinafter the Suit property). | 77.
After considering the parties’ respective cases as consolidated, the rival written and oral submissions in support thereof, and the authorities cited in illumination of the respective arguments, we have identified the following issues, the determination of which should dispose of the appeal herein.
1.
Whether this court has jurisdiction to determine the Appeal;
2.
Whether article 40 of the Constitution applies retrospectively;
3.
Whether the 2nd respondents ought to have moved the Environment and Land Court by way of a Civil Suit as opposed to a constitutional petition;
4.
Whether a constitutional claim of violation of property rights under article 40 of the Constitution, is subject to limitation under article 24 thereof, and section 7 of the Limitation of Actions Act;
5.
Whether the Court of Appeal erred in not considering and re-evaluating the evidence on record;
6.
Whether Noah Chelugui was the title holder of both LR 10492 and the Suit Property herein;
7.
Whether the 1st and 2nd appellants acquired valid title to the suit property;
8.
Whether the Court of Appeal disregarded its own finding relating to the Suit Property; and
9.
Reliefs, if any, available to the parties. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/39/eng@2024-08-02 |
Petition E011 of 2023 | Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment) | Judgement | Supreme Court of Kenya | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 2 August 2024 | 2,024 | Nairobi | Civil | Kenya Airports Authority
Appellant
and
Otieno Ragot and Company Advocates
Respondent | [2024] KESC 44 (KLR) | null | A. Introduction
1.
This is an appeal from the judgment and decree of the Court of Appeal at Nairobi (Ouko (P) (as he then was), Gatembu & Murgor, JJA) dated May 19, 2021. Being dissatisfied with the said judgment, Kenya Airports Authority (the appellant) successfully sought an order before the same court certifying the matter as one that raises matters of general public importance. Pursuant to the leave granted on March 17, 2023, the appellant filed the present appeal before this court on April 25, 2023.
2.
The appeal is predicated on the provisions of article 163(4)(b) of the Constitution. Principally, the issue(s) of general public importance raised in the appeal revolve around the question of assessment or taxation of instruction fees due to an advocate from a client on account of proceedings before the High Court pursuant to Schedule VI of the Advocates Remuneration Order. In particular, it entails a determination of firstly, how instruction fees of an advocate in an Advocate-Client Bill of Costs should be assessed/taxed where the Party-Party Costs relating to the same matter have been assessed, and a certificate of costs issued. Secondly, whether the Taxing Officer has room to exercise judicial discretion in the assessment of costs depending on the circumstances of each case.
B. Background
i. Factual history
3.
Some 54 individuals (original plaintiffs) instituted a suit in the High Court at Kisumu, HCCC No. 56 of 2009 (primary suit), against the appellant. The crux of their claim was that the appellant had compulsorily acquired their parcels of land which bordered the Kisumu International Airport for expansion of the said airport. They alleged that the appellant had failed to either compensate and/or adequately compensate them for the parcels, the developments thereon, the inconvenience caused as well as the current and future loss of profits. As a result, through an amended plaint dated 26th February 2010, the original plaintiffs averred that they were entitled to an average of Kshs 258 million each aggregating to Kshs 13,932,000,000 which they sought as compensation.
4.
In turn, the appellant instructed the firm of Otieno, Ragot & Co Advocates, (the respondent) to act for it in the primary suit. Pursuant to the appellant’s instructions, the respondent filed an Amended Defence dated March 3, 2010 denying all the allegations by the original plaintiffs and challenging the competency of the primary suit. Subsequently, the appellant vide a notice of motion dated March 30, 2010 applied for the primary suit to be struck out on two fronts. Firstly, the appellant claimed that contrary to Section 34 of the Kenya Airports Authority Act (cap 395 Laws of Kenya), the original plaintiffs had not served the appellant’s Managing Director with one month’s written notice of their intention to commence legal proceedings and the particulars of their claim prior to instituting the primary suit. Secondly, that by dint of section 29 of the repealed Land Acquisition Act (cap 295 Laws of Kenya) and section 75(2) of the former Constitution, the Land Acquisition Compensation Tribunal ought to have been the first port of call for the original plaintiffs, and only then could the High Court be rightly seized of an appeal against the Tribunal’s decision.
5.
By a ruling dated June 24, 2010, Karanja, J. agreed with the appellant and struck out the primary suit with costs. Thereafter, with the intention of having the costs of the suit for the appellant assessed by a Taxing Officer, the respondent lodged a Party-Party Bill of Costs dated 28th June, 201o in the primary suit pursuant to Schedule VI Part A of the Advocates Remuneration (Amendment) Order, 2006. However, the appellant alleges that the respondent filed the said bill without its instructions. Be that as it may, the Party-Party Bill of Costs sought cumulative costs of Kshs 151,658,583. Of significance, is that out of the aggregate costs, the bill sought Kshs 130,704,900 as instruction fees on the basis that the respondent was engaged to defend the primary suit.
6.
The instruction fees sought were based on the compensation of Kshs 13,932,000,000 claimed by the original plaintiffs. Eventually, the said bill was taxed by a Taxing Officer on July 15, 2010 at Kshs 151,650,000 and a certificate of costs issued thereto. The respondent did not seek to recover the taxed amount from the original plaintiffs, instead by a letter dated January 1, 2011 it informed the appellant of the option of levying execution against the original plaintiffs for the taxed Party-Party costs. However, in the same breath, the respondent also advised the appellant that due to the impecuniosity of the original plaintiffs, there was a high possibility that the appellant would have to meet the auctioneers’ fees, which would run into millions, even if the execution proved unsuccessful. As at the hearing of this appeal, the taxed Party-Party costs had not been recovered.
7.
It would appear that the respondent by a letter dated July 19, 2010 asked the appellant to settle a fee note of Kshs 227,476,921.38 attached thereto for the services the law firm had rendered. On the appellant’s part, it expressed its dissatisfaction with the amount stated in the fee note which it termed as excessive. This was duly communicated to the respondent and it resulted in a back and forth between the parties without any consensus as evinced by correspondence exchanged from July 19, 2010 to December 29, 2010. Ultimately, the respondent filed an Advocate-Client Bill of Costs dated February 24, 2011 pursuant to Schedule VI Part B of the Advocates Remuneration (Amendment) Order, 2006. | D. Analysis
42.
Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, it is apposite to first address preliminary issues concerning this court’s jurisdiction on whether the appeal raises a matter of general public importance, and the award of interest which was set aside by the Court of Appeal.
43.
The respondent made heavy weather of this court’s jurisdiction or lack thereof, for that matter, to entertain the appeal on two aspects. First, we understood the respondent to contend that the appeal does not raise issues of general public importance. Rather, that it revolves around the interpretation and application of the Constitution, which falls within our appellate jurisdiction under article 163(4)(a) of the Constitution. Second, that in any event, neither the issues of interpretation and application of the Constitution nor the delineated issues of general public importance arose and/or were determined in the superior courts below.
44.
It is common ground that the appeal is anchored on our appellate jurisdiction under article 163(4)(b) of the Constitution. To put it differently, the appeal is before us following the certification by the Court of Appeal that it raises issues of general public importance that warrant our consideration. It is instructive to note that the respondent sought review of the said certification before this court vide SC Applic No E015 of 2023. Equally, it is not lost to us that the respondent raised more or less similar grounds in support of its motion for review.
45.
This court considered the said motion, the arguments advanced thereto and declined to review the certification by the Court of Appeal. By a ruling dated June 16, 2023, this court found the appeal does indeed raise issues of general public importance. Consequently, the respondent cannot at this stage be heard to claim that the appeal does not raise issues of general public importance. See this court’s decision in Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi) & another, SC Petition No 41 of 2018; [2023] KESC 61 (KLR).
46.
The other issue relates to the question of interest on taxed costs. It is clear, right from the appellant’s motion for certification at the Court of Appeal to the respondent’s motion for review of the certification before this court, that the issue of when interest on taxed costs accrues was never raised or delineated as a matter of general public importance. The parameters of this court’s jurisdiction with respect to an appeal under article 163(4)(b) are well settled. As this court appreciated in the aforementioned Muriithi Case, a litigant cannot expand such an appeal or introduce new issues beyond the parameters pursuant to which it was certified or admitted. On that basis, we decline the appellant’s invitation to pronounce ourselves on the said issue.
47.
Turning to the crux of the appeal we will deal with the issues that were certified as being of general public importance; firstly, the interpretation of the provisions of Schedule VI of the Advocates Remuneration Order; secondly, how instruction fees of an advocate in an Advocate-Client Bill of Costs should be assessed/taxed where the Party-Party costs relating to the same matter has been assessed, and certificate of costs issued; thirdly, whether a Taxing Officer has room to exercise judicial discretion in the assessment of costs depending on the circumstances of each case; and lastly what orders should issue. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 |
Petition (Application) E007 of 2024 | Krystalline Salt Limited v Water Resources Management Authority (Petition (Application) E007 of 2024) [2024] KESC 40 (KLR) (2 August 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 2 August 2024 | 2,024 | Nairobi | Civil | Krystalline Salt Limited v Water Resources Management Authority | [2024] KESC 40 (KLR) | null | Upon Perusing the Notice of Motion dated 11th March 2024 and filed on 15th March 2024, pursuant to section 23A of the Supreme Court Act 2011, and rules 31 and 32 of the Supreme Court Rules 2020, seeking inter alia, stay of execution against the Judgment and Orders of the Court of Appeal (Musinga (P), Omondi & Ngenye, JJ.A) delivered on 23rd February 2024, pending the hearing and determination of the appeal, and any consequential orders; and
2.
Upon Reading the grounds on the face of the application and the supporting affidavit sworn by the applicant’s Chief Executive Officer, Hasmita Patel on 11th March 2024, wherein she contends that: the appeal is arguable with high chances of success (she restates 12 grounds set out in the Memorandum of Appeal to support this argument); unless the orders sought are granted, the appeal will be rendered nugatory, should the respondent execute its judgment of Kshs. 185,500,000, thereby forcing it to shut down its operations and sell its assets to meet the exorbitant judgment debt; likewise, depositing the judgment sum in an interest earning account would impede the applicant’s right of access to justice. Conversely, it is urged, there will be no prejudice suffered by the respondent, which can be compensated by way of costs should the appeal be dismissed; and it is in the interest of justice to grant the prayers sought; and
3.
Upon Considering the applicant’s submissions dated 11th March 2024, to the effect that the appeal upon which the application is anchored raises issues of constitutional interpretation and application, hence this Court is clothed with jurisdiction under Article 163(4)(a) of the Constitution and Section 15A of the Supreme Court Act. Further, that the Court’s jurisdiction to issue an order of stay of execution is donated by Section 23A of the Supreme Court Act as enunciated in, Board of Governors, Moi High School Kabarak & Anor v. Malcolm Bell; SC Application Nos. 12 and 13 of 2012; [2013] eKLR. Moreover, it is contended that the applicant has met the principles for grant of stay of execution established in, Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others; SC Application No. 5 of 2014 [2014] eKLR; and
4.
Upon Perusing the respondent’s replying affidavit sworn by the respondent’s Chief Executive Officer, Mohamed M. Shurie, on 25th March 2024, wherein he urges that this Court lacks the requisite jurisdiction to hear the Motion as the same is premised on an incompetent appeal. In particular, it is the respondent’s case that the appeal is improperly lodged under Article 163(4)(a) of the Constitution as it does not raise questions involving the interpretation or application of the Constitution. For emphasis, it is submitted that the applicant’s grievance entails a challenge on the quantum awarded; the application is an attempt to avoid payment of the judgment sum; the applicant has not demonstrated that it is unable to settle the sum awarded; and in any event, the appeal will not be rendered nugatory as the respondent is capable of refunding the judgment sum if the appeal is allowed; and
5.
Upon Considering the respondent’s preliminary objection dated 21st March 2024; submissions in support of the preliminary objection and in opposition to the application both dated 25th March 2024; restating the respondent’s challenge to this Court’s jurisdiction to determine both the application and appeal for failing to meet the jurisdictional threshold established in Lawrence Nduttu & 6000 Others v. Kenya Breweries Limited & Another, SC Petition No. 3 of 2012; [2012] eKLR. Concomitantly, the respondent urges that, there is no arguable appeal before the Court; the applicant intends to defeat the Judgment by winding up its operations while the appeal is pending determination; the applicant makes billions in profits hence the water use charges awarded by the trial court are negligible; and, contrary to its claim that the judgment debt will force it to shut down its operations, the applicant provided security of Kshs. 100,000,000 at the Court of Appeal, as a condition for the grant of stay; and
6.
Upon Reading the applicant’s supplementary affidavit in response sworn by Hasmita Patel on 27th March 2024 and rejoinder of even date, wherein she maintains that, issues of constitutional interpretation were at the center of determination by the superior courts below; it is not factual that the applicant makes billions in profits; the execution of the judgment sum will force the applicant to fold its operations affecting the livelihood of over 2800 employees; the judgment sum of Kshs. 185,500,000 was calculated based on erroneous estimates of the applicant’s production capacity, as opposed to actual production; and, prosecution of the appeal would be rendered impossible if execution is allowed. Furthermore, it is averred that the applicant is willing to give security by way of a bank guarantee to enable it pursue its appeal; and
7.
Upon Considering the applicant’s supplementary submissions dated 27th March 2024, wherein it reiterates its arguments on jurisdiction and further submits that the interpretation of Articles 2, 40, 42, 61, 62, 66, 67, 68, 69, 72, 209 and 260; and Section 7(1) of the Sixth Schedule to the Constitution, was in issue before the superior courts below. It cautions that contrary to the respondent’s argument, a question whether an appeal is arguable does not call upon the Court to interrogate its merits or make definitive findings, but to determine whether issues raised are worthy of ventilation on appeal. To buttress this assertion, it cites the case of George Boniface Mbugua v. Mohammed Jawayd Iqbal (Personal Representative of the Estate of the Late Ghulam Rasool Jammohamed) SC Application No. 7 (E011) of 2021; [2021] eKLR; and
8.
Noting that a preliminary objection has been raised by the respondent on the question whether this Court has jurisdiction under Article 163(4)(a) of the Constitution, it is our considered view that the challenge of our jurisdiction goes to the competency of the application for stay as well as the appeal. It is therefore apposite to deal with this issue in the first instance; and
9.
Considering that in their judgments, both superior courts below confined themselves to the issue whether the respondent had power under the Water Act 2002 and the Water Resource Management Rules to regulate use of sea water; and the applicant’s case was that if the State has the right to regulate sea water under Article 62(l) of the Constitution, it can only be exercised by the National Land Commission as opposed to the respondent; and
10.
Appreciating that this Court settled with finality the question of its jurisdiction to hear and determine appeals as of right under Article 163(4)(a) of the Constitution in the Lawrence Nduttu Case [supra], wherein it was held that;
“
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a).”
11.
Further Appreciating that in the case of Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board, SC Petition No. 5 of 2012; [2012] eKLR, we clarified that:
“
[13A]
In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.” | We Now Determine as follows:
i.
Examining the record and Judgments of the superior courts, it is clear that the gravamen of the case before the Environment and Land Court was the payment of outstanding water use charges by the applicant in its commercial salt production; the questions determined by the court were whether the respondent had the power to regulate usage of sea water, and if so, whether the applicant was liable to pay the charges sought and the quantum thereof; which was a factual examination of the volume of water abstracted from the sea over the period in question;
ii.
Similarly, in its Judgment, the Court of Appeal interrogated the issue, whether the respondent was entitled to recover any amount for use of sea water, consequent upon which it largely affirmed the trial court and applied rules 107 and 114 of the Water Resource Management Rules 2007 to reduce the quantum awarded;
iii.
Flowing from the above, we are convinced that no contentious question of constitutional interpretation or application arose for determination by the superior courts below to warrant the exercise of this Court’s jurisdiction as of right under Article 163 (4)(a) of the Constitution. The mere pronouncement that under Articles 62 and 260 of the Constitution the territorial sea vests in the National Government is a restatement of the provisions of the Constitution, which, does not meet the threshold established in the Lawrence Nduttu Case;
iv.
Consequently, guided by our findings in Lawrence Nduttu and Erad Suppliers [supra], we hold that this Court lacks jurisdiction to entertain the petition of appeal and the attendant application for stay of execution, both dated 11th March 2024 and filed on 15th March 2024; and
v.
Having so found, the other issues from the parties’ rival submissions must fall by the way side.
13.
Consequently, and for the reasons aforesaid, we make the following Orders:
i.
The Notice of Preliminary Objection by the respondent dated 21st March 2024 and filed on 26th March 2024 is hereby upheld;
ii.
The applicant’s Notice of Motion dated 11th March 2024 and filed on 15th March 2024 is hereby dismissed;
iii.
The Petition of Appeal No. E007 of 2024 dated 11th March 2024 and filed on 15th March 2024 is hereby struck out for want of jurisdiction;
iv.
We hereby direct that the sum of Kshs. 6,000.00 deposited as security for costs in the appeal herein be refunded to the applicant; and
v.
There shall be no order as to costs.
It is so Ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/40/eng@2024-08-02 |
Petition E030 of 2023 | Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko | 2 August 2024 | 2,024 | Nairobi | Criminal | Wanga v Republic | [2024] KESC 38 (KLR) | null | A. Introduction
1.
This appeal challenges the decision of the Court of Appeal upholding the conviction and a sentence of 30 years imprisonment of the appellant, Goddrick Simiyu Wanga, on two counts of robbery with violence.
B. Background
2.
The appellant together with 7 others were tried, convicted, and sentenced before the Senior Principal Magistrate Court at Kilifi with two counts of the offence of robbery with violence. The prosecution presented evidence to the effect that on 4th December 2013 at Bofa area in Kilifi County, the appellant and his confederates, while armed with a dangerous weapon, namely a pistol, robbed Yul Wenger (PW1) and his wife, Heike Wenger (PW2) of personal effects valued in total at Kshs. 12,300,000/- and that immediately before the time of such robbery, threatened to use personal violence against their victims.
In this judgment, we shall mainly be concerned with the appellant, as the rest of the persons convicted with him have not appealed to this Court. | F. Analysis and Determination
Jurisdiction of the Supreme Court
31.
We start by observing that the appellant in bringing the petition has not specified under what provision of the Constitution his case is anchored. The Petition is filed pursuant to “Supreme Court Rule 39(1)” (sic) which provides for the Form of Petition of an appeal. It is only at paragraph 14 of the written submissions that the appellant states that, “… this Honourable Court is obligated to exercise its jurisdiction under article 163(4)(a) to correct and remedy these failures by the criminal justice system to apply the Constitution…”. It is from this statement that we guess that the appeal has been brought pursuant to article 163(4)(a) of the Constitution. In a long line of cases, we have repeatedly cautioned advocates and litigants who desire to come to this court that, given the specialized nature of this court’s jurisdiction the correct law under which the jurisdiction is sought must be specifically invoked and stated. Though this should be clear, it however bears restating what we said in the Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone [2013] eKLR, and reiterated in Nasra Ibrahim Ibren vs. Independent Electoral and Boundaries Commission & 2 others [2018] eKLR as follows;
“It is trite law that a court of law has to be moved under the correct provisions of the law.” In this court, this is not an idle requirement but has its rationale anchored in the ‘specialized’ nature of the jurisdiction of the Supreme Court as provided in article 163(3) of the Constitution. Appeals to this court from the Court of Appeal are therefore not as a matter of course as the Supreme Court was not established as another tier of court in the judicial hierarchy. Not every appeal from the Court of Appeal is also appealable to this court.”
32.
Since the two avenues of the appellate jurisdiction of this Court under article 163(4)(a) and (b) of the Constitution are distinct, either as of right” on the constitutional issues; or on “matters of general public importance,” respectively, counsel or a litigant is under strict obligation to categorize his or her case, indicating the constitutional or legal category under which he or she is moving the court. For this reason, it has become a matter of practice, for the court to independently satisfy itself that an appeal is properly lodged and that it has jurisdiction before it can entertain it.
33.
In the instant appeal, the respondent in its replying affidavit contends that the violations of article 50(1) and (2) of the Constitution were not issues before both the first and second appellate courts and therefore cannot be presented before this court for determination for the first time. For his part, the appellant urges that this appeal is premised on article 163(4)(a) of the Constitution and raises issues that revolve around the interpretation and application of articles 49, 50(1) and (2) of the Constitution and specifically regarding the violations of the appellant’s constitutional rights. Moreover, the appellant argues that despite these issues being raised for the first time before this court, by their very nature, being constitutional, nothing stops this court, an apex court from entertaining and determining such questions.
34.
It is necessary to restate that, to admit an appeal under article 163(4)(a) of the Constitution, the following principles apply, in so far as they are relevant to this appeal:
i.
On the issue of jurisdiction, we stated in Aviation & Allied Workers Union Kenya v Kenya Airways & others; SC Application No 50 of 2014; [2015] eKLR that where a court’s jurisdiction is objected to by any party to the proceedings, such an objection must be dealt with in limine as a preliminary issue, before the meritorious determination of any cause, even where the objection has been argued in the appeal itself, we may add.
ii.
In Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 others, SC Application No 2 of 2011; [2012] eKLR, we explained that a court’s jurisdiction flows from either the Constitution or legislation or both; and that a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by the Constitution or law.
iii.
Under article 165(3)(d) of the Constitution, the High Court has original jurisdiction to hear any question respecting the interpretation of the Constitution. The Supreme Court in its appellate jurisdiction under article 163(3), subject to clauses (4) and (5) and article 163(4)(a) is the final Court on matters involving the interpretation and application of the Constitution arising from the decision of the Court of Appeal. See In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application 2 of 2011) [2011] KESC 1 (KLR).
iv.
Article 163(4) of the Constitution is not a thoroughfare for all intended appeals from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution or those that can be said to involve matters of general public importance will be entertained by the Supreme Court. It is not the mere allegation in pleadings by a party that clothes this Court with jurisdiction. See Lawrence Nduttu & 6000 Others vs. Kenya Breweries Ltd & Another, SC Petition No 3 of 2012; [2012] eKLR, Samuel Kamau Macharia and Another vs. Kenya Commercial Bank and 2 Others, SC Application No 2 of 2011; [2012] eKLR, among many other decisions.
v.
The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
vi.
However, in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2 of 2014; [2014] eKLR, it was clarified that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
vii.
In addition, a party must indicate to this Court in specific terms, the issue requiring the interpretation or application of the Constitution and must signal the perceived difficulty or impropriety with the Appellate Court’s decision. See Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 Others [2018] eKLR.
viii.
The Supreme Court retains the discretion to determine what matter is appealable to it under article 163(4)(a), always bearing in mind that such a matter must be founded on cogent issues of constitutional controversy to warrant its input. See Gladys Wanjiru Munyi v Diana Wanjiru Munyi [2015] eKLR.
35.
Now, applying these principles to the instant appeal, it should be noted that the appellant was successfully prosecuted for the offence of robbery with violence and accordingly sentenced to death. His conviction was upheld by the High Court but the death sentence was set aside and substituted with a custodial sentence of 30 years imprisonment. On a second appeal to the Court of Appeal, the appellant’s conviction was upheld and the substituted sentence affirmed. The conviction of the appellant by the trial court as upheld by the High Court and the Court of Appeal was based on identification and on circumstantial evidence premised on the doctrine of recent possession. Given the nature of the pleadings and proceedings before the trial court and on the other hand, the decisions of the two superior courts below, we cannot, in our assessment of the law say that the issues concerned the application or interpretation of the Constitution. Rather, it was an ordinary case of robbery with violence, argued as such on facts. We reiterate, as conceded before us by the appellant, that the allegations of constitutional controversy are being canvassed for the first time before this court.
36.
The appellant having properly identified precisely the relevant Articles of the Constitution which in his view were violated by the respondent, he was, in addition, expected to convince us that the subject of this appeal was the same issues in controversy and around which both the High Court and the Court of Appeal based their respective decisions. The decision being challenged in this appeal had nothing to do with the interpretation or application of articles 49 and 50 of the Constitution. The appellant has not demonstrated that the Court of Appeal’s reasoning, and its conclusions took a trajectory of constitutional interpretation or application. The appellant has attempted to morph his case from an everyday trial for the offence of robbery with violence to one of violation of his constitutional rights. In our considered view, this appeal, is nothing but an effort to take a second bite at the cherry. It presents neither exceptional circumstances nor an opportunity for the Court to provide interpretive guidance on the Constitution.
37.
For the aforementioned reasons, we reach the inescapable conclusion that the appellant has not satisfied the structures enunciated by the cases enumerated above, hence the Court lacks jurisdiction to determine the appeal. It fails and accordingly we down our tools at this stage. This is the same position we held, after hearing similar arguments, in Elvis Opee Ndayara v Republic, SC Criminal Appeal No 11 of 2016 (unreported) where we stated as follows:
“
(19)
Having read the Petition before us, the submissions by parties and having orally heard the appellant and Mr Omirera for the respondent, we have no doubt in our minds that whereas the appellant has clothed his Petition with the constitutional garb and invoked articles 25, 27 and 47 of the Constitution, the Appeal is no more than a further Appeal from the Court of Appeal on matters of fact. Indeed the Appellant, while re-litigating matters already dismissed by the two appellate Courts, has also introduced new matters before us such as the alleged infringement of his article 25 rights by the Court of Appeal.” [Our Emphasis]
38.
But even as we down our tools, we consider it paramount to restate the following for the sake of posterity and the development of jurisprudence, in terms of this court’s past decisions on similar cases. In this appeal, we have observed that the High Court substituted the death sentence with a custodial sentence of 30 years imprisonment ostensibly on the authority of our decision in the Muruatetu Case. This sentence was later affirmed by the Court of Appeal on second appeal, despite the court acknowledging our decision in the Muruatetu Case that the mandatory nature of the death sentence only applied to murder convictions and did not extend to robbery with violence.
39.
In terms of article 163(7) of the Constitution, we expect all Superior and Subordinate Courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu Directions, where we elucidated in the passage below what was intended to be the ratio decidendi in the Muruatetu Case:
“
In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.” [Our Emphasis]
We say no more, save to recapitulate that our decision in the Muruatetu Case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the Muruatetu Case applies only with respect to the mandatory nature of the death sentence under sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/38/eng@2024-08-02 |
Petition (Application) E010 of 2024 | Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024) [2024] KESC 35 (KLR) (26 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 26 July 2024 | 2,024 | Nairobi | Civil | Dock Workers Union & another v Portside Freight Terminals Limited & 10 others | [2024] KESC 35 (KLR) | null | This ruling is intended to dispose of two similar motions for conservatory and injunctive orders dated May 7, 2024 and May 6, 2024 filed by Dock Workers Union (the 1st applicant) and Okiya Omtatah Okoiti (the 2nd applicant), respectively.
2.
Apart from the two applications before us, it is instructive to note also that two appeals being Petition No E010 of 2024 at the instance of the 1st applicant and Petition No E011 of 2024 by the 2nd applicant, have been lodged in this Court’s Registry against the Court of Appeal’s judgment in Civil Appeal No E130 of 2023 dated February 23, 2024. The two appeals were consolidated by a consent order recorded by this court on May 17, 2024, wherein Petition No E010 of 2024 was designated as the lead file.
3.
Upon Reading the two aforesaid Notice of Motions expressed to be brought pursuant to sections 23A and 24 of the Supreme Court Act and rules 3, 31 and 32 of the Supreme Court Rules, 2020 for orders, inter alia that pending the hearing and determination of the consolidated appeal, the Court be pleased to issue:
i.
A conservatory order restraining the 1st, 2nd and 3rd respondents from constructing and or developing a grain handling facility and island berth at G- Section Area, Kenya Port Authority, Port of Mombasa pursuant to the license and wayleave granted by the 4th respondent on August 2, 2021;
ii.
An order of temporary injunction restraining the 1st, 2nd and 3rd respondents, its employees, agents, servants, affiliates and/or subsidiaries from undertaking and/or initiating any work pursuant to the license and wayleave agreement for the development of a grain handling facility and development of an island berth at G- Section Area, Kenya Port Authority, Port of Mombasa issued on August 2, 2021; and
iii.
Costs of this application be borne by the respondents; and
4.
Upon Considering the supporting affidavit sworn on April 24, 2024 by the 1st applicant’s Secretary General, Simon Sang, together with their written submissions dated May 7, 2024 and the supporting affidavit of Okiya Omtatah Okoiti, the 2nd applicant, and his written submissions dated May 9, 2024, whose combined effect is that: the procurement process and award of the license and wayleave to the 1st respondent for the construction and development of a grain handling facility and island berth at G- Section Area Kenya Port Authority, Port of Mombasa was contested; in view of the nature and magnitude of the project in question, it was improper to resort to the “Specially Permitted Procurement Procedure” under section 114A of the Public Procurement and Asset Disposal Act (PPDA) to award the execution thereof to the 1st respondent; the High Court declared the procurement process a nullity for the reason that the process amounted to single sourcing, while the Court of Appeal overturned the declaration, in effect giving the procurement process a clean bill of health; the consolidated appeal as framed raises arguable issues for determination among them, whether the procurement process undertaken by the 4th respondent met the minimum threshold of articles 10, 201 and 227 of the Constitution, which lays down national values and principles of governance, principles of public finance, guidelines on procurement of public goods and services. In particular, the 1st applicant submits that the process adopted by the 4th respondent was not fair, equitable, transparent and competitive. The 2nd applicant, for his part, argued that the procurement process was discriminative of the 6th to 10th respondents; and that the appeal is not frivolous since it raises vital and arguable points of law on the violation of the Constitution and other procurement laws; and
5.
Furthermore,on the nugatory aspect, the applicants are apprehensive that should the conservatory orders sought herein be denied, the 1st respondent shall proceed to construct and complete the grain bulk handling facility; that since funding is already disbursed and spent, demolishing the facility will not be an option and is irreversible; that the Portside Companies (1st to 3rd respondents) both before the Court of Appeal and in opposition to this application have indicated the urgency for the commencement of the project and decried the delay caused by the application; that they have entered into credit and financing arrangements in addition to obtaining the relevant statutory approvals and licenses all of which are time bound; consequently, if the orders sought are not granted, the substratum of the appeal when finally listed and heard will be rendered nugatory, a mere academic exercise; and finally, that there is sufficient public interest element in the consolidated appeal as it touches on the procurement process in a public body. For these reasons, the 1st and 2nd applicants urge that they have met the threshold for issuance of the orders sought, as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Civil Application No 5 of 2014; [2014] eKLR; and
6.
Noting the 1st applicant’s affidavit sworn on May 27, 2024 by Simon Sang, as well as submissions filed on even date in support of the 2nd applicant’s Motion dated May 6, 2024 wherein the 1st applicant reiterates the arguments in its supporting affidavit and submissions in its own Motion; and the 2nd applicant’s replying affidavit sworn on May 28, 2024 by Okiya Omtatah Okoiti as well as submissions filed on even date in support of the 1st applicant’s motion dated May 7, 2024; and
7.
Further Noting the 11th respondent’s affidavit sworn on May 31, 2024 by Emily Kinama, the 11th applicant’s Litigation Manager with its submissions dated June 2, 2024 in support of both motions to the effect that: the appeal is arguable and not frivolous; the court must allow parties to ventilate the public procurement issues raised to their logical conclusion; if the construction proceeds, the appeal will be rendered nugatory and it is in public interest that the court preserves the integrity of the appeal as it concerns public procurement; accordingly, it urges the court to issue the orders; and | Upon reviewing the Portside Companies’ (1st, 2nd and 3rd respondents) replying affidavit sworn on June 5, 2024 by Yusuf Abubakar, the Director of the 3rd respondent, on behalf of the 1st and 2nd respondents, as well as their submissions dated June 5, 2024 in opposition to both Motions to the effect that: the applicants’ consolidated appeal is neither arguable nor will it be rendered nugatory if the reliefs sought are not granted; to the contrary, they submit, the granting of the conservatory orders will further result in delaying the implementation of the project thereby strengthening the present monopoly in the grain handling sectors, resulting in turn to higher food costs not to mention the effect on national food security which is the very premise for the granting of permission by the 4th respondent through the “Specifically Permitted Procurement Procedure” which is recognized in law; that it would be unfair, unjust and irrational for a different set of administrative procedures to be applied in the instant case particularly considering that it is common ground that a second facility is an operational necessity; that the project is actually being undertaken on private land belonging to Portside Companies and the notion that Kenya Ports Authority (KPA), the 4th respondent, awarded Portside Companies a tender to develop and construct a second grain handling terminal as found by the High Court was baseless and without supporting evidence; to the contrary, they submit, this was a private investment made by Portside Companies to be undertaken on its own private property and an island berth off the G-Section area which would be common user by any member of the public unlike the current arrangement for the first entity licensed to handle bulk grain; and that they were equally entitled to the grants of way-leaves and licenses. In any event, it is their position that should the appeal eventually succeed, any overhead conveyor system and the island berth developed by Portside Companies would easily be de-operationalised at no cost to KPA. Whichever way it is considered, they maintain, KPA and by extension the public, stand to gain immensely; and
9.
Further,as regards public interest, Portside Companies posit that from the KPA technical report, KPA stands to earn revenues in excess of Kshs 1 billion annually; that in addition to revenue lost over the last couple of years, further delays will cost KPA close to Kshs 1 billion annually in lost revenue; that no security for any loss sustained by the public through KPA is being offered by the applicants yet they profess to advert public interest; and that should the appeal not succeed, KPA and the public stand to lose substantially which is not in public interest. They admit as alleged by the applicants that Portside Companies have already invested substantial sums, entered into credit and financing arrangements and obtained time-bound statutory approvals. Given the foregoing, they submit that it is in the interest of justice that the conservatory reliefs sought be declined; and
10.
Cognizant that during case management KPA, a key party, though on record, indicated through its counsel that it would not participate in the appeal and instead opted to silently observe from the sidelines; and
11.
Having Consideredthe applications, affidavits and rival arguments summarized in the preceding paragraphs we now opineas follows:
i.
To entertain these applications, we must be satisfied in the first place that the consolidated appeal is itself properly before the court, to clothe it with jurisdiction. From the record, it is apparent that the two petitions lodged in the High Court alleged contravention of fundamental rights and freedoms under Articles 10, 27, 47, 201 and 227 of the Constitution and sought such constitutional reliefs as a declaration that the decision to grant Portside Companies the sole right to implement the second bulk grain facility through Specially Permitted Procurement Procedure under section 114A of the PPDA was in violation of the aforementioned provisions of the Constitution.
ii.
This question remained the predominant theme in the decision of the High Court that triggered the first appeal to the Court of Appeal. The Court of Appeal’s judgment was similar on this very question where that court asked and answered the question whether the trial court erred in holding that the invocation of the Specially Permitted Procurement Procedure under section 144A of the PPDA violated the Constitution.
iii.
Based on the foregoing, we entertain no doubt that both the appeals, brought pursuant to article 163(4)(a) of the Constitution and the present motions are properly before us.
iv.
What is sought in the two motions before us are interim reliefs. Conservatory orders are tools of preservation intended to protect and safeguard the substratum of the petition of appeal, in this case, the construction of a second bulk grain terminal at the Port of Mombasa, so that the consolidated appeal is not rendered nugatory. Conservatory orders therefore serve to offer short-term relief so as not to expose the Constitution or the appellant to preventable perils pending the determination of the dispute.
v.
A conservatory order today is a constitutional relief, specifically provided for under article 23 of the Constitution, grantable as a matter of judicial discretion.
vi.
Conservatory orders have a ‘more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies’ as it is meant to secure the enforcement of the provisions of the Constitution and to also uphold the adjudicatory authority of the court, so that the authority conferred on the courts is not exercised in vain, hence the need to keep the subject matter in dispute in situ. See Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR.
vii.
The nature and principles to be considered before this court can grant a conservatory order or a temporary injunction have been crystallized through a long line of this court’s judicial pronouncements, the leading authority being, Gatirau Peter Munya v Dickson Mwenda Kithinji (supra). Those principles are:
a.
The Appeal is arguable and not frivolous:
b.
Unless the orders sought are granted, the appeal were it to eventually succeed, would be rendered nugatory:
c.
That it is in public interest that the conservatory orders be granted.
viii.
The question of whether an appeal is arguable, does not call for the interrogation of the merit of the appeal, and the court, at this stage must not make any definitive conclusions of either fact or law. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully at the hearing before the court. Even one arguable point is sufficient to meet this test.
ix.
On the nugatory aspect, the concern is whether what is sought to be preserved if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved. See the decision of the Court of Appeal in Stanley Kangethe Kinyanjui v Tony Ketter & 5 others, Civil Application No 31 of 2012; [2013] eKLR.
x.
As a third ground, this court in considering an application for conservatory orders cannot ignore the impact of such orders beyond the parties to the case should the order be granted or denied. Consequently, the court will make a general inquiry as to where the public interest lies, considering the parties’ respective rights. All the three conditions, including the third principle, we stress, must be met for an application for conservatory orders to succeed for the reason that conservatory orders have a public law connotation as earlier noted.
xi.
Applying these principles to the arguments presented in affidavits and written submissions, we have no difficulty in finding that the issue of whether the procurement process undertaken by the 4th respondent met the minimum threshold of a procurement contemplated under the provisions of articles 10, 201 and 227 of the Constitution and various provisions of the PPDA warrants this Court’s consideration. Among other reasons, this single arguable ground suffices.
xii.
On the nugatory aspect, the issue is whether what is sought to be preserved by a conservatory order is reversible. It is common factor that the project in question involves massive capital investment estimated to cost millions of dollars. In their replying affidavit, Portside Companies have estimated their investment to be in the region of USD 45 Million.
xiii.
It has been averred for Portside Companies that they have already invested substantial sums and, entered into credit and financing agreements and obtained statutory approvals and licences that are time bound, pointing to the companies’ readiness to commence the construction of the project, if not stopped.
xiv.
It is the process of awarding that project to Portside Companies that is under challenge in the consolidated appeal presently pending hearing and determination on merit by this court. In an application like the one before us, it is the duty of the court to balance the rights of parties; between the applicants’ right of appeal to this court and that of Portside Companies that have a judgment in their favour, and whose fruits they are presently entitled.
xv.
Bearing these factors in mind, we are of the view that should Portside Companies proceed to implement the project, the appeal will be rendered nugatory. In any event, at this stage, we are of the view that a conservatory order will, not only preserve the status quo but also save Portside Companies themselves from nugatory expenditure should the appeal succeed. The inconvenience and delay that may be occasioned to them can be compensated by an award of costs. The order prayed for being temporary in nature is not anticipated to last for long going by this court’s record of hearing and disposal of appeals, nothing close to nearly three years, the period the project has stalled following the challenge in the High Court of the procurement process and the award of the licence in Mombasa Constitutional Petition E045 of 2021. To obviate any further delay and expense to Portside Companies, and in view of the importance of the project in question to the economy of this country, it is directed that the Registrar shall expeditiously finalize case management procedures for the consolidated appeal to be listed for hearing without delay.
xvi.
From the totality of the material before us strictly in respect of these applications, considering that the dispute revolves around public procurement, we believe that the public interest will be served when competing constitutional rights are preserved.
xvii.
Accordingly, the order which commends itself to us as the appropriate relief in the circumstances is to preserve the subject matter pending the listing, hearing and determination of the consolidated appeal.
xviii.
We are of course alive to the fact that, while the 2nd applicant sought only conservatory orders, the 1st applicant sought both conservatory and temporary injunctive orders. Having reached the conclusion that, the conditions for the grant of conservatory orders have been met, we find no purpose to consider the prayer for temporary injunction.
xix.
On costs, the award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. In the exercise of our discretion, we direct that the costs of the motions shall abide the outcome of the consolidated appeal.
11.
Consequently, and for the reasons aforestated, we make the following Orders:
i.
The 1st applicant’s Notice of Motion dated May 7, 2024 and filed on May 15, 2024; and the 2nd applicant’s Notice of Motion dated May 6, 2024 and filed on May 17, 2024 are hereby allowed in the following terms:
a.
Pending the hearing and determination of the consolidated appeal herein, a Conservatory Order is hereby issued restraining the 1st, 2nd and 3rd respondents from constructing and/or developing a grain handling facility and Island Berth at G- Section, Area belonging to Kenya Ports Authority, Mombasa pursuant to the license granted by the 4th respondent on August 2, 2021.
b.
Costs of the two motions shall abide the outcome of the consolidated appeal.
In view of the public interest in the matter, the delay so far experienced as well as the nature of project in question, we direct that the consolidated appeal, Petition No E010 of 2024 and Petition No E011 of 2024,be expeditiously set down for hearing as soon as the Court diary permits.
It is so ordered | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/35/eng@2024-07-26 |
Application E014 of 2024 | Freedom Limited v Mbarak (Application E014 of 2024) [2024] KESC 36 (KLR) (26 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 26 July 2024 | 2,024 | Nairobi | Civil | Freedom Limited v Mbarak [ | [2024] KESC 36 (KLR) | null | Upon considering the Petition of Appeal No E009 of 2024 dated 20th March 2024 and filed on even date which is brought pursuant to Article 163 (4) (a) of the Constitution, Section 3A of the Supreme Court Act, CAP 9B of 2011, Rules 3 (5), 31 (1) (a) & (2) and 38 of the Supreme Court Rules, 2020 and Paragraph 34 of the Supreme Court (General) Practice Directions, 2020 in which the Applicant challenges the entire Judgment of the Court of Appeal delivered on the 23rd February 2024 and the resultant Order subsequently issued on 5th March 2024 in Civil Appeal No E028 of 2022; and
2.
Upon perusing the Notice of Motion dated 22nd March 2024 and filed on even date which is the subject of this Ruling and brought pursuant to Sections 3A, 23A and 24 of the Supreme Court Act, CAP 9B of 2011 and Rules 3 (5) and 31(6) of the Supreme Court Rules, 2020, wherein the applicant seeks an order of stay of execution of the said Judgment and Order pending the hearing and determination of Supreme Court Petition No E009 of 2024 between the parties herein; and
3.
Upon perusing the supporting affidavit sworn by Harji Govind Ruda, the Director of the applicant on 21st March 2024, considering the grounds in support therein mainly that the applicant has met the threshold for grant of stay of execution and the supplementary affidavits sworn thereto on 9th and 24th April 2024 in response to the respondent's reply; and
4.
Further, upon considering the written submissions by the applicant dated 21st March 2024 and further submissions dated 9th and 24th April 2024 to the effect that the applicant is apprehensive that pursuant to the Order under challenge, the Respondent will, in the absence of an order of stay, forcibly evict it from the suit property in dispute being Plot Number 1948 (Original Number 412/10) Section V Mainland North as delineated on Land Survey Plan Number 223946 measuring 376 Ha (approximately 929.1 acres); and that the structures standing on the suit property will similarly be demolished in compliance with the aforementioned Order to the detriment of the applicant who claims to be the registered owner; that the appeal is arguable and the denial of an order of stay will render the appeal nugatory; and that it is in the public interest to grant the relief sought. It is also urged that the Court’s jurisdiction under Article 163(4)(a) of the Constitution has been properly invoked as the appeal challenges the interpretation and application of Articles 40, 47, and 50(1) of the Constitution by the Court of Appeal; and in any event, the Court of Appeal directly invoked the provisions of the Constitution or its decision took a trajectory of constitutional interpretation and application of Article 40 thereby invalidating the applicant’s title to the suit property; and
5.
Noting that the respondent in his replying affidavit sworn on 28th March 2024, the Notice of Preliminary Objection, the Grounds of Opposition of even date, and the written submissions all dated 2nd April 2024 are opposed to the application on the grounds that this Court lacks jurisdiction to entertain the application under Article 163(4) of the Constitution; that neither the Supreme Court nor the Court of Appeal has certified that a matter of general public importance is involved in the appeal; that no question of constitutional interpretation or application was integrally linked to the dispute before the trial court or in the Court of Appeal; that the reference to Article 40 by the Court of Appeal was peripheral and did not have a substantial bearing on the merits of the case before that court; that the Court of Appeal only cited Article 40 of the Constitution in tandem with this Court’s findings relating to root of title in the recently decided cases of Rutongot Farm Ltd v Kenya Forest Service & 3 others (Petition 2 of 2016) [2018] KESC 27 (KLR) and Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR); and that the appeal clearly only challenges the merits of the judgment of the Court of Appeal relating to ownership of the suit property; and
6.
Further noting that the applicant has filed Petition No E009 of 2024 as is required by Rule 31(2) of the Supreme Court Rules, 2020 and in terms of this Court’s long line of decisions, for example Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others; SC Petition No 27 of 2014; [2014] eKLR, and Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others, Election Petition No 38 of 2018; [2019] eKLR, among others. | It is almost an every day [common] practice of this Court to determine the question whether its jurisdiction has been properly invoked under Article 163(4) of the Constitution. The applicant has come as of right under Article 163(4)(a). This Article has likewise been the subject of numerous judicial pronouncements by the Court. The leading authority being Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another; SC Petition No 3 of 2012; [2012] eKLR, where we explained our jurisdiction under Article 163(4)(a) as follows:
“
This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court.
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.” [Our Emphasis].
8.
Also, we emphasized in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others; SC Petition No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 others; SC Application No 5 of 2014 [2014] eKLR that an appeal lies to this Court under Article 163(4)(a) if the issues placed before it involves the interpretation and application of the Constitution and had formed the basis of arguments for the determinations before the superior Courts below.
9.
We note from the outset that this litigation began in 2015 with the institution of Constitutional Petition No 58 of 2015 (Freedom Limited v The Chief Land Registrar & 2 others) in which the applicant had sought a declaratory order to the effect that failure by the Chief Land Registrar and the County Land Registrar, Mombasa County to supply it with an official certificate of search together with other particulars in respect of the title to the suit property was an infringement of its rights under Article 35 of the Constitution and Section 34 of the Land Registration Act, CAP 300 of 2012. The orders were granted. Upon perusal of the documents in the applicant’s possession, the Land Registrar was satisfied that the applicant was the true proprietor of the suit property and proceeded to construct the land registry records based on the documents and records presented by the applicant.
10.
The dispute was escalated by the filing of Environment and Land Case No 358 of 2016 in the Environment and Land Court by the applicant who sought to preserve its ownership and possession of the suit property from any form of interference by the respondent. The applicant expressly pleaded that its title in respect of the suit property was “indefeasible save for as provided in law and its proprietary and other rights were protected pursuant to the provisions of the Constitution”; and that the continued wrongful and unlawful actions of the respondent with regard to the suit property amounted to interference with the applicant’s “proprietary rights and interest including its rights of possession and occupation”. It asked the trial court to declare that the respondent had “no right or interest in or over” the suit property which it claimed was registered in its name in 2010. It also prayed for a permanent injunction to restrain the respondent from interfering with its “proprietary rights and quiet occupation and possession” of the suit property or dealing with the suit property “under the pretext that he has any right or interest therein”.
11.
The respondent’s claim to the suit property as far as we can gather from his defence and counterclaim was that his late grandfather purchased the suit property as long ago as 1978 from the then-registered owner; that he did not subdivide it; that his grandfather died before it was formally transferred to him (grandfather); that upon realization of this omission, he (the respondent) attempted to register the transfer in vein as he had not obtained a grant of letters of administration to the estate of his deceased grandfather; that had the applicant undertaken due diligence at the time the suit property was allegedly transferred to it, it would have been apparent that the suit property was still registered in the name of the person who sold it to his grandfather.
12.
N. Matheka, J, was persuaded after analyzing the rival positions, that the applicant was registered as proprietor of the suit property on 12th November 2010 following a transfer from the original owners; that it was a bona fide purchaser; that the respondent, on the other hand, had failed to establish his proprietary interest over the suit property. As a consequence, thereof, the learned Judge declared that the respondent had no right or interest in or over the suit property which she declared to belong to the applicant. As a result, the respondent was restrained by an order of permanent injunction from interfering with the applicant’s “proprietary rights and quiet occupation and possession of the property”.
13.
Of the six grounds isolated by the Court of Appeal for its determination, the one upon which its judgment was anchored was, “who, as between the estate of Mbarak Awadh Salim (under which the appellant -Respondent here- claims) and the respondent company-the applicant herein, has an indefeasible proprietary right over the suit property.” The appellate court identified Article 40 of the Constitution as the vehicle for the resolution of the conflicting claims over the suit property and devoted considerable space in the judgment to consider the constitutional principle of the sanctity of title to property under that Article, and relying on a plethora of judicial precedents, many of which were drawn from this Court.
14.
In its determination, the appellate court concluded that the acquisition of the suit property by the applicant was in breach of the respondent’s deceased grandfather’s constitutional right to property; and that the transactions leading to the transfer and registration of the applicant as the owner of the suit property “went against the grain of the doctrine of seisin, and of the deceased’s constitutional right to property”.
15.
In view of the foregoing analysis of the pleadings and the decisions of the two courts below, it is inconceivable to argue, as the respondent has, that the petition as lodged in this Court is bereft of any issues involving the interpretation and application of the Constitution. Gatirau Peter Munya, (supra), Peter Oduor Ngoge v Francis Ole Kaparo & 5 others; SC Petition No 2 of 2012; [2012] eKLR and recently Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) in a long line of other decisions of this Court, we have been clear that the Supreme Court’s jurisdiction under Article 163(4)(a) is discretionary at the instance of the Court. That jurisdiction does not guarantee a blanket route to appeal; and that the appeal must be founded on cogent issues of constitutional controversy. A bare statement that a question of constitutional interpretation or application is involved, without more, cannot bring an appeal within the provisions of Article 163(4)(a) of the Constitution. The citation of constitutional provisions, or raising issues that involve peripheral constitutional issues or have nothing to do with the application or interpretation of the Constitution, will similarly not be sufficient to move this Court.
16.
Secondly, we have emphasized previously that, in answering the question as to what constitutes a matter involving interpretation and application of the Constitution, the Court’s focus should not solely be on the explicit mention of a constitutional provision but, instead, the Court must look at the various facets of the law as pleaded by the parties and the overall context and impact of the reasoning and conclusions of the superior Courts below in relation to the alleged constitutional issue to ascertain if indeed the same can properly be considered to have taken a trajectory of constitutional interpretation or application.
17.
Thirdly, the provisions of the Constitution cited as requiring interpretation or application by this Court, must have been the central theme of constitutional controversy, in the courts below, with the applying party indicating how the Court of Appeal misinterpreted or misapplied the constitutional provision in question.
18.
It is our view therefore that a determination of whether an appeal as of right to this Court lies is not governed by rigid principles, but is a jurisdiction exercised by the Court on a case-by-case basis but within the confines of the Constitution and the law as explained by case law cited above.
19.
We note that, right from the High Court, the central issue around the dispute was the title the applicant holds in respect of the suit property and specifically whether that title was indefeasible under operative principles of Article 40 of the Constitution. Throughout their analysis, assessment of the evidence, and determination, the central theme of the judgments of the two superior courts below remained the rights of the two parties to acquire and own property. It is our firm conclusion on the objection raised by the respondent that the applicant has properly invoked this Court’s appellate jurisdiction under Article 163(4)(a) of the Constitution and therefore pursuant to the principles enunciated in Lawrence Nduttu (supra), we declare that we have jurisdiction to entertain the petition and the objection is consequently overruled.
20.
Turning to the Notice of Motion, we bear in mind that under section 21 (2) of the Supreme Court Act, and rule 3(5) of the Supreme Court Rules, this Court has inherent power to make any ancillary or interlocutory orders that it deems fit to make as may be necessary for the ends of justice or prevent abuse of the process of the court. Pursuant to this power, we reiterate the well-established principles for the grant of an order of stay as enunciated in Gatirau Peter Munya (supra). An applicant must satisfy three conditions, that the appeal is arguable and not frivolous; that the appeal would be rendered nugatory if the stay orders are not granted, and that it would be in the public interest to do so.
21.
What constitutes an arguable appeal? In Kenya Hotel Properties Limited v Attorney General & 5 others; SC Application No 27 of 2020 [2020] eKLR, we gave the following answer:
“
Arguability of an appeal would entail this Court looking at the record and the Petition of Appeal and determine, without finality but at a prima facie level, whether the appeal has substance and/or is not made of straw. It also entails interrogating its foundation and confirming that it is not built on quicksand.”
22.
In considering whether or not the appeal is arguable, the Court is not called upon to interrogate the merits of the appeal but merely to see if at this stage there is a prima facie case to justify the grant of the order. An arguable appeal is therefore not one which must necessarily succeed but one which ought to be argued fully before the court.
23.
In Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party); (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR) (Civ) (3 December 2021) (Ruling) we considered how an appeal will be rendered nugatory if an order of stay is not granted thus:
“
On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.”
24.
This Court in considering an application for stay cannot ignore the impact of such an order beyond the parties to the case should an order of stay be granted or denied. Consequently, the Court will make a general inquiry as to where the public interest lies | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/36/eng@2024-07-26 |
Petition (Application) E008 of 2024 | Likowa v Aluochier & 2 others (Petition (Application) E008 of 2024 & Application E013 of 2024 (Consolidated)) [2024] KESC 41 (KLR) (26 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 26 July 2024 | 2,024 | Nairobi | Civil | Likowa v Aluochier & 2 others | [2024] KESC 41 (KLR) | null | The petitioner was elected as the Speaker of the Migori County Assembly. The High Court nullified his election, citing procedural irregularities. The Court of Appeal upheld the High Court's decision ordering a fresh election. The petitioner filed an appeal to the Supreme Court seeking to stay the execution of the Court of Appeal's judgment and conservatory orders to halt the fresh election process. Concurrently, the 1st respondent sought injunctive relief and admission of additional evidence regarding the nomination process. While the appeal and applications were pending, Likowa was impeached as Speaker on April 23, 2024. The Supreme Court found the motions by both parties had been overtaken by events due to the impeachment. | We are alive to the fact that, under the provisions of section 23A of the Supreme Court Act, this court has jurisdiction to issue an order for stay of execution, an injunction, stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit.
ii.
It is also well established, following our decision in the case of Gatirau Peter Munya v Dickson Mwenda & 2 others, SC Application No 5 of 2014, [2017] eKLR that an applicant must satisfy the court that an appeal is arguable and is not frivolous; that unless the orders of stay are granted, the appeal will be rendered nugatory; and thirdly, it is in the public interest that the order of stay be granted.
iii.
The gist of the appeal herein is the determination of the question whether a serving County Assembly Speaker elected by members of that County Assembly at its first sitting after a general election can be removed from office contrary to the provisions of article 178(3) and legislation enacted pursuant thereto, in this case the provisions of section 21(5) of the Election Act as well as section 11 of the County Government Act. However, before we determine the arguability of the petitioner’s appeal, the 1st respondent has brought to the court’s attention a pertinent fact, through his application dated May 20, 2024; that the petitioner was impeached by Members of the County Assembly of Migori on April 23, 2024 and is no longer the Speaker of the said County Assembly. The resulting effect is that, this Court would be engaging in an academic exercise if it were to determine the petitioner’s Motion and any decision rendered would be no more than an academic statement. As a matter of public policy, this Court, and indeed any other court, should not exercise its jurisdiction or act in vain. We decline the invitation to do so in this case and therefore all the prayers in the petitioner’s Motion, having been overtaken by events, must be dismissed.
iv.
Similarly, the 1st respondent’s Motion aforesaid has been overtaken by events and in any event, the issues raised in it do not relate to the appeal before us but a whole new cause of action arising from the Standard Newspaper advertisement dated May 15, 2024 calling for the election of a new Speaker for the County Assembly of Migori following the impeachment. Any challenge to that issue lies elsewhere.
13.
Consequently, it would not be a useful venture or beneficial for either the court or the parties to sustain the two Motions before us. As regards the Petition of Appeal, in view of the changed circumstances, with the removal of the petitioner as Speaker, directions should be taken before the Deputy Registrar of this court on what issues are left for our determination, if at all. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/41/eng@2024-07-26 |
Petition (Application) E016 of 2024 | Mwangi v Consolidated Bank of Kenya Limited & 3 others (Petition (Application) E016 of 2024) [2024] KESC 42 (KLR) (26 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 26 July 2024 | 2,024 | Nairobi | Civil | Mwangi v Consolidated Bank of Kenya Limited & 3 others | [2024] KESC 42 (KLR) | null | Upon Perusing the Notice of Motion application dated 17th May, 2024 and filed on 20th May, 2024 by the 1st respondent pursuant to Article 163 of the Constitution, Sections 15, 15A and 15B of the Supreme Court Act, Rule 31, 33(1), 33(2), 38(1), 40(1), 65(1) and 65(2) of the Supreme Court Rules, 2020 seeking, inter alia, an order to strike out the Petition and Record of Appeal dated 11th April, 2024;
2.
Upon Reading the grounds on the face of the application, the supporting affidavit sworn on 17th May 2024, and the further affidavit sworn on 7th June, 2024 both by Albert Anjichi, the applicant’s Acting Company Secretary/Head of Legal Department, where he contends that: the petition of appeal is fatally defective as leave to appeal to the Supreme Court was neither sought nor granted pursuant to Article 163(4)(b) as read together with Article 163(5) of the Constitution; the appeal does not lie as a matter of right as it does not involve any interpretation or application of the Constitution pursuant to Article 163(4)(a) of the Constitution; the genesis of the petitioner’s grievance is a commercial suit filed before the High Court, being HCCC No. 162 of 2019, John Mathara Mwangi vs. Consolidated Bank of Kenya Limited & Others instituted vide a Plaint dated 17th December, 2017 where he sought declaratory orders that the sale of the suit property to the 3rd respondent by public auction was null and void;
3.
Upon Further Perusing the applicant’s grounds in support of its application wherein it is averred that: the main issue for determination before the Court of Appeal was whether the High Court (Majanja J.) properly exercised its discretion in dismissing the suit and in declining to set aside the dismissal order under Order 12 rule 3(1) of the Civil Procedure Rules; the Court of Appeal in its judgment of 8th March, 2024 held that it did not perceive any honest mitigating mistake or blunder on the part of the petitioner and his Counsel that would warrant an adjournment, consequently it did not find any merit in the appeal;
4.
Upon Considering the applicant’s submissions dated 17th May, 2024 where it reiterates its arguments and cites this Court’s decisions in Lawrence Nduttu & 6000 others vs. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012 [2012] eKLR, Sum Model Industries Ltd. vs. Industrial & Commercial Development Corporation and Development Corporation SC Application No.1 of 2011 [2011] eKLR and Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 others [Petition No.2 of 2012 [2012] eKLR to urge that the petition of appeal does not meet the Supreme Court’s jurisdictional test; and that it ought to be awarded costs pursuant to this Court’s decision in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others;
5.
Taking into account the petitioner’s replying affidavit sworn on 30th May, 2024 in opposition to the application where he contends that: this Court has jurisdiction pursuant to Article 163(4)(a) of the Constitution to hear and determine the petition of appeal; the basis of the refusal on his plea to be heard by the High Court under Article 50(1) was the foundational basis of his appeal to the Court of Appeal and is the basis of the appeal before this Court; no commercial arguments arose or were canvassed before the Court of Appeal; the scope, application, and interpretation of the import of Article 48 of the Constitution on the circumstances of the court starting at 8.00 am in the face of the Covid 19 pandemic restrictions are an issue for interpretation of this Court; and that all the grounds set out in the Memorandum of Appeal before the Court of Appeal were on the denial of the right to be heard as espoused in Article 25(c) and 50(2)(d) of the Constitution;
6.
Further considering the petitioner’s submissions dated 30th May, 2024 where he cites this Court’s decisions in Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 others Petition 10 of 2013 [2014] eKLR, Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others SC Application No. 5 of 2014 [2014] eKLR and Geoffrey Asanyo & 3 others vs. Attorney General Supreme Court Petition No. 21 of 2015 [2018] to urge that the heart of the petition of appeal is the application and interpretation of Article 50(1) of the Constitution and therefore his appeal is within the jurisdiction of this Court;
7.
Noting the 2nd respondent’s replying affidavit sworn on 28th May, 2024 by its director, Simon Kagiri Kamatu, and submissions of even date in response to and in support of the 1st respondent’s application where he reiterates the averments of the 1st respondent and states that: the petitioner’s suit at the High Court was dismissed for want of prosecution for reason that on the hearing date of 10th February 2021, the petitioner failed to attend the virtual hearing and had failed to attend court on five (5) previous occasions; Counsel holding brief for Mr. Kinyanjui, Counsel on record for the petitioner, sought adjournment informing the court that the petitioner was indisposed; the application for adjournment was declined and the court ordered that the matter proceeds; that later, Mr. Kinyanjui appeared before the court and sought adjournment on the grounds that he was not ready to proceed as his client was not in court, and that he was engaged in other matters in a different court; he again informed the court that he could not proceed as the petitioner would like to proceed physically in court;
8.
Further noting the 2nd respondent’s contention that: the petitioner’s advocate’s request to prosecute the suit physically was an afterthought and in bad faith as at the time, the Chief Justice had published Practice Directions on Electronic Case Management 2020, which were applicable as one of the measures amidst the height of Covid-19 pandemic for virtual hearings; mere citing of provisions of the Constitution alleged to have been violated is not sufficient to invoke this Court’s jurisdiction under Article 163(4)(a) or (b) of the Constitution; and that the petition of appeal is misconceived, incurably defective and an abuse of the court process as it does not meet the constitutional threshold to warrant this Court’s jurisdiction pursuant to Article 163(4)(a) and (b) of the Constitution; | Bearing In Mind the provisions governing this Court’s jurisdiction as set out under the Constitution at Article 163(4) (a) and (b) and Sections 15, 15A and 15B of the Supreme Court Act;
11.
We have considereD the application, affidavit in support, the responses and submissions filed and now opine as follows:
i.
The petitioner’s grievance arises from the Order of Majanja J. in HC (C & TD) C No. 162 of 2019 dated 10th February, 2021 wherein the petitioner’s suit was dismissed with costs for want of prosecution. On appeal to the Court of Appeal, the main issue for determination was thus, whether there was wrongful exercise of discretion on the part of the learned Judge in either denying the application for adjournment or in dismissing the petitioner’s suit pursuant to Order 12 Rule 3(1) of the Civil Procedure Rules. In its Judgment dated 8th March, 2024 the Court of Appeal did not perceive any wrongful exercise of discretion on the part of the learned Judge. The Court found no lacuna in the legal framework for conduct of virtual hearings, and that there was no indication of bias on the part of the Judge in awarding costs.
ii.
Our perusal of the judgment of the Court of Appeal does not reveal any issue of application or interpretation of the Constitution on the right to be heard pursuant to Article 50(1) of the Constitution or on the right to access justice under Article 48 of the Constitution as averred by the petitioner. The gist of the petitioner’s grievance is the dismissal of the suit for want of prosecution. From the record, several attempts were made on behalf of the petitioner to adjourn the suit and it is in that context that the adjournment was declined by the High Court resulting in the dismissal of the suit. The High Court was not obligated to agree with the petitioner’s plea for adjournment and having not been persuaded as such, the learned Judge exercised discretion to dismiss the suit.
iii.
In Teachers Service Commission vs. Kenya National Union of Teachers & 3 Others SC Application No. 16 of 2015 [2015] eKLR, Deynes Muriithi & 4 others vs. Law Society of Kenya & Another SC Application No. 12 of 2015 [2016] eKLR and Kibira vs. Independent Electoral & Boundaries Commission & 2 others Petition 29 of 2018 [2019] KESC 62 (KLR) we set the parameters of the exercise of our jurisdiction to interfere with the exercise of discretion by another court. This can only be where there was a plain and clear misapplication of the law and if based on a whim, was prejudicial or was capricious, which is not the case herein.
iv.
Further, as we held in Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) vs. Attorney-General & 2 others Sup Ct Petition No. 45 of 2018 [2020] eKLR, mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under Article 163(4)(a) of the Constitution, and that only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under Article 163(4)(a) of the Constitution.
v.
The petitioner’s arguments under Articles 48 and 50 of the Constitution were not the subject of contestation before the High Court. They have arisen as a result of the dismissal, albeit at the first instance, before the Court of Appeal. This goes against our settled jurisprudence that once the petitioner approached the Court as of right, under Article 163(4)(a) of the Constitution, it is upon him to satisfy the Court that he meets the requisite threshold. It is now established that the Court is not another appellate layer of court to attract appeals from the Court of Appeal. In matters relating to the interpretation and application of the Constitution, the issue in contestation must have arisen at the first instance before the High Court and followed the court hierarchy culminating in the Supreme Court’s input. The issue of certification or leave to appeal to the Supreme Court does not therefore arise as that is a different jurisdiction, not being invoked in the present matter.
vi.
On costs, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup. Ct. Petition No. 4 of 2012; [2014] eKLR we set out the legal principles that guide the grant of costs. Generally, costs follow the event. It should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. Additionally, the award of costs is discretionary. We also note that this matter did not proceed to hearing of the appeal on the merits. To this end, each party shall bear its costs.
12.
Appreciating that the 2nd respondent filed a Notice of Preliminary Objection dated 16th May, 2024 challenging the jurisdiction of this Court to hear and determine the petition of appeal pursuant to Article 163(4)(a) of the Constitution on similar grounds as argued by the 1st respondent in its application, and having made our findings above, the findings are dispositive of the preliminary objection with the effect that the same is upheld. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/42/eng@2024-07-26 |
Petition (Application) 11 (E008) of 2022 | Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition (Application) 11 (E008) of 2022) [2024] KESC 43 (KLR) (Civ) (26 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 26 July 2024 | 2,024 | Nairobi | Civil | Sonko v Clerk, County Assembly of Nairobi City & 11 others | [2024] KESC 43 (KLR) | null | Brief facts
The applicant, a former Governor of Nairobi County, sought a review of the Supreme Court’s judgment dismissing his impeachment appeal. He argued the High Court's decision was tainted by the presiding Judge's misconduct, as later confirmed by a Judicial Service Commission Tribunal. The applicant also sought to introduce new evidence, including tribunal findings and acquittals in criminal cases related to his impeachment.
Issues
Whether the Supreme Court could review its prior judgment based on new evidence.
What was the criteria that the Supreme Court considered to review its own decision? | Upon deliberations on the motion and the rival submissions, we opine as follows:
i.
It is instructive to note that the applicant did not invoke any legal provisions for adducing additional evidence in his Motion. Be that as it may, the applicant previously filed a Notice of Motion dated July 20, 2022 in this appeal seeking inter alia leave to adduce additional evidence. Some of the evidence he sought to adduce therein included the JSC letter under the hand of the Hon. Chief Justice to the President recommending the appointment of a Tribunal to investigate the conduct of Chitembwe, J (as he then was), and the Gazette Notice appointing the Tribunal. This court vide a ruling dated August 8, 2022 dismissed the said motion and pronounced in part as follows:
“
But of great significance is the fact that the applicant has all along been aware of the material he is now seeking to introduce. At the time he lodged the appeal in the Court of Appeal and even in this court, he was well aware of the gazette notice of May 18, 2022 in which a tribunal was appointed to investigate the conduct of Chitembwe, J. He has so averred himself in his submissions.”
ii.
We also wish to point out that some of the evidence sought to be adduced in the Motion at hand, such as proceedings, Hansard and videos of the impeachment proceedings before the Senate, were available at the time the High Court petitions were being heard. No explanation had been offered by the applicant as to why he did not adduce that evidence at the High Court. Besides, we are not convinced of the relevance of the additional evidence sought to be adduced by the applicant as pertains to the misconduct of Chitembwe, J (as he then was) to this matter which relates to the impeachment of the applicant as a Governor. Likewise, with respect to the rulings in the criminal cases in which the applicant was the accused person, it is important to point out that impeachment proceedings of a Governor are not dependent or tied to criminal convictions. In the end, we find that the applicant has not satisfied all the elements under Section 20(2) of the Supreme Court Act to warrant the leave sought to adduce additional evidence. See Garama v Karisa & 3 others, SC Petition No E020 of 2023; [2024] KESC 1 (KLR)
iii.
The general rule is that once this court delivers a judgment, it becomes functus officio save that, based on exceptional circumstances as delineated under Section 21A the Supreme Court Act and rule 28(5) of the Supreme Court Rules, the Court can review its decision. Equally, the applicant did not invoke any of the said provisions in his Motion save for mentioning them in his submissions. Nonetheless, we will address the issue of whether the motion meets the threshold for the review sought.
iv.
As correctly pointed out by the 1st, 4th, 5th and 6th respondents, the applicant previously filed a Notice of Motion dated July 18, 2022 in this appeal seeking review of this court’s judgment. One of the grounds upon which the applicant sought review was that by then, a Tribunal had been formed to consider the conduct of Chitembwe, J.’s (as he then was) who was the Presiding Judge of the 3-Judge Bench of the High Court which dismissed the High Court petitions. This court by another ruling dated August 8, 2022 dismissed the Motion for review and held in part as herein under-
“
Applying these conditions to this application, we have no hesitation in declaring that as framed, the application falls short of the exceptional circumstances and we decline the invitation to exercise the court’s limited discretion to review the judgment. A review as envisaged by section 21A and rule 28(5) aforesaid, concerns the decision of this Court and not any other court below it. The applicant cannot demonstrate that the judgment of this court of July 15, 2022 was obtained by fraud and or deceit or in what way it is a nullity.
…
But more fundamentally, the court having found as a main reason that its jurisdiction was not properly invoked, a review application cannot confer on it jurisdiction.” [Emphasis added]
We find that the aforementioned pronouncement still holds true for the Motion at hand.
v.
Taking into account the totality of the applicant’s motion, we are convinced that it is an attempt to relitigate issues already conclusively determined by this court. We have on numeral occasions expressed that review was not intended to give a party an opportunity to appeal, or relitigate its case. See Mohamed Fugicha v Methodist Church in Kenya (through its registered trustees) & 3 others, SC Application No 4 of 2019, [2020] eKLR and Parliamentary Service Commission v Martin Nyaga Wambora & others; SC Application No 8 of 2017; [2018] eKLR. Therefore and for the above reasons, the applicant’s omnibus Motion cannot be allowed to stand as it lacks merit.
vi.
Taking into account the foregoing and this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that costs to follow the event, and the applicant meets the 1st, 3, 4th, 5th and 6th respondents’ costs for the Motion. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/43/eng@2024-07-26 |
Petition E018 of 2023 | Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) | JUdgement | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 11 July 2024 | 2,024 | Nairobi | Criminal | Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) | [2024] KESC 34 (KLR) | null | A. Introduction
1.
The appeal before the Court dated August 2, 2023and filed on even date, is premised on articles 159(2)(d)(e) and 163(4)(b) of the Constitution, sections 3A, 15A and 21(1) of the Supreme Court Act, cap 9B Laws of Kenya, and rules 38(1)(a) and 39 of the Supreme Court Rules, 2020. the appellant, through the Office of the Director of Public Prosecutions, challenges the Court of Appeal’s decision in which the court held, inter alia that, the imposition of mandatory minimum sentences under the Sexual Offences Act, cap 63A Laws of Kenya, is unconstitutional
B. Background
2.
On March 11, 2011, the respondent, Joshua Gichuki Mwangi, was arraigned before the Senior Principal Magistrate’s Court at Karatina and charged in Criminal Case No 215 of 2011, with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the charge were that on 8th March 2011, in Mathira West District within the then Central Province, the respondent intentionally caused his penis to penetrate the vagina of JWM, a child aged fifteen (15) years. The respondent was further charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. On October 17, 2011, the trial court found the respondent guilty as charged on the main count and sentenced him to twenty (20) years imprisonment. The conviction and sentence were upheld on first appeal at the High Court but the sentence was later overturned by the Court of Appeal, allowing the respondent’s appeal, setting aside the 20-year sentence and substituting it with a 15-year sentence running from the time that the trial court imposed its sentence. That decision prompted the present appeal at the instance of the Republic (Office of the Director of Public Prosecution). | i. Whether the learned Judges of the Court of Appeal acted ultra vires and without jurisdiction by assuming original jurisdiction on constitutional matters not raised at the High Court.
39.
Before considering the issues as delineated by the Court of Appeal, we are bound to pronounce ourselves, in limine on the question as to whether the Court of Appeal acted ultra vires and without jurisdiction in the first place, since it forms part of the grounds of this appeal. This issue is intricately intertwined with the other three issues delineated above and so we shall determine them together.
40.
the appellant submits in that context that, the Court of Appeal does not enjoy original jurisdiction on questions relating to the interpretation of the Constitution; it can only deal with such questions only by way of appeal from the High Court. the appellant further contends that the issue of minimum mandatory sentences was not raised before the High Court and that the issue was raised for the first time before the Court of Appeal. Therefore, the Court of Appeal had no jurisdiction whatsoever to determine it.
41.
The respondent on the other hand contends that the grounds of appeal he framed gave the Court of Appeal wide latitude to consider the constitutional validity of the sentence meted out against him. He points out that, since his grounds of appeal were mainly based on the unconstitutionality of his mandatory sentence, the Muruatetu case was properly applied by the Court of Appeal, in its finding that the sentence contravened the right to a fair trial under article 25 of the Constitution which is a non-derogable and absolute right.
42.
On our part, we note that the Court of Appeal in its judgment delivered on October 7, 2022pointed out that the respondent’s appeal was based on five grounds, with the main complaint being that the 20-year sentence imposed on the respondent was harsh and unconstitutional. Further that the court was urged to reduce it so as to allow him to go back to his family.
43.
article 164(3) of the Constitution defines the Court of Appeal’s jurisdiction, which is expressly restricted to appeals from the High Court and any other court or tribunal that is designated by an Act of Parliament. Under article 165(3)(d)(i) and (ii), the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution. This includes determining whether any law is inconsistent with or in violation of the Constitution and whether any action taken under the authority of the Constitution or any law is inconsistent with or in violation of the Constitution. This jurisdiction is however subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court.
44.
This clear and uncontested position lends credence to the argument by the appellant that the Court of Appeal heard and determined the present matter without jurisdiction, regarding the unconstitutionality of the sentence meted against the respondent, because the High Court did not in any way address the issue that the appellate court ultimately focused its judgment on.
45.
We have further noted that, from the respondent’s Grounds of Appeal which appear in the Record of Appeal, the respondent specifically complained that the sentence of 20 years was harsh and excessive and that the court ought to reduce the same to a convenient term deemed fit to enable him re-join his family and society while not being a threat to the complainant. The constitutionality of the sentence imposed within the relevant statute was therefore not an issue placed before the Court of Appeal for its determination.
46.
We reproduce the grounds of appeal verbatim and for clarity as follows:
“
1.
That, the 20yrs imprisonment imposed against me is harsh and excessive.
2.
That, I urge this Hon. Court to reduce the same under its own convenient term deemed fit(sic).
3.
That, if the sentence is reduced at the court’s discretion it will enable me join my family and society and not be a threat to the complainant.
4.
That, I am now 34 years old with 3 children being the only bread winner who by now they are under the care of the elderly parents same who are not financially stable(sic).
5.
That, other grounds to be adduced and I kindly urge this court to be present during the hearing of this appeal(sic).”
47.
The record also shows that issue of constitutionality of the sentence was raised for the first time before the Court of Appeal and introduced by way of submissions by counsel representing the respondent. Having combed through the Record of Appeal and proceedings, we note that the constitutionality of the respondent’s sentence was also not raised either before the trial court or the High Court. The respondent having failed to raise the issue of the constitutionality of the mandatory minimum sentence imposed on him in his appeal before the High Court, it is obvious to us that he was precluded from addressing the issue on appeal before the Court of Appeal.
48.
Before further delving into the question of constitutionality or otherwise of the sentence, we must take cognizance of provisions of section 361(1) of the Criminal Procedure Code which, in cases of appeals from subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and the Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court. We produce the same verbatim as follows:
“
361.
Second Appeals
1.
A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—
a.
on a matter of fact, and severity of sentence is a matter of fact; or
b.
against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.”
49.
Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. Consequently, the respondent's appeal on the grounds that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court of Appeal’s jurisdiction.
50.
As we have stated before, this Court recognizes and respects the constitutional competence of courts in the judicial hierarchy to resolve matters before them. We have also settled that for an appeal to lie to the Supreme Court from the Court of Appeal under article 163(4)(a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination. We have stated so in a myriad of cases including Peter Oduor Ngoge vs Francis Ole Kaparo & 5 others, SC Petition No 2 of 2012 [2012] eKLR and Erad Suppliers & General Contractors Limited v National Cereals & Produce Board, SC Petition No 5 of 2012 [2012] eKLR. It was subsequently summed up in Gladys Wanjiru Munyi v Diana Wanjiru Munyi, SC Petition No 31 of 2014 [2015] eKLR thus:
“
In Peter Ngoge v Francis Ole Kaparo & 5 others, Sup Ct Petition No 2 of 2012 [2012] eKLR, we signaled the guiding principle that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, do indeed have the competence to resolve all matters turning on the technical complexities of the law, and that only cardinal issues of law, or of jurisprudential moment, deserve the further input of the Supreme Court.”
We reiterate the above guiding principle and would dissuade courts below from exceeding their mandate under the erroneous view that they have been confronted by a jurisprudential moment.
ii. Whether in departing from the decision in Muruatetu & another v Republic; SC Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (the Muruatetu Directions), the Court of Appeal violated the principle of stare decisis?
51.
In the Muruatetu case, this court was clear that what was in contention before it was the mandatory nature of the sentence of death imposed upon the appellants therein by the High Court and affirmed by the Court of Appeal for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. the appellants had argued that the mandatory sentence of death was inconsistent with the Constitution. This court in its final judgment issued the following declarations and orders:
“
a.
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
b.
This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.
c.
The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this Judgment and Order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this Judgment to give a progress report to this court on the same.
d.
We direct that this Judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment”. (Our emphasis).
52.
In light of the structural and supervisory interdicts issued, the court issued the Muruatetu Directions, wherein it, inter alia, pronounced itself on the application of its decision in the Muruatetu Case to other statutes prescribing mandatory or minimum sentences as follows:
“
10.
It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that:
[48]
section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”.
Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases
11.
The ratio decidendi in the decision was summarized as follows:
“
69.
Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.
We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.”
………
14.
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
15.
To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40(3), robbery with violence under section 296(2), and attempted robbery with violence under section 297(2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.” [Emphasis ours]
53.
We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the Muruatetu directions in this instance.
54.
As we have stated before in several cases, unlike in other jurisdictions, Kenya's stare decisis principle is a constitutional obligation meant to enhance the legal system's predictability and certainty. In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014 [2014] eKLR, we stated that article 163(7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this court are binding on all other courts in the land. It is imperative for all courts bound by decisions to rigorously uphold their authority, ensuring the effective functioning of the administration of justice. Without this steadfast and uniform commitment, the legal system risks ambiguity, eroding public trust, and causing disorder in the administration of justice.
55.
Turning to the specific issue confronting us in this appeal, we are of the view that, in failing to follow the Muruatetu decision and later Directions, the Court of Appeal’s blanket application of the ratio decidendi in the Muruatetu case conflated the concept of mandatory sentences with minimum sentences.
56.
Black’s Law Dictionary, 9th Edition, defines a mandatory sentence as follows:
“
A sentence set by law with no discretion for the judge to individualize punishment.”
While minimum sentence is as defined as follows:
“
The least amount of time that a convicted criminal must serve in prison before becoming eligible for parole.”
57.
Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.
58.
In the Muruatetu case, this court solely considered the mandatory sentence of death under section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.
59.
The amici in that context submitted, and we agree, that sterner sentences ensure that prejudicial myths and stereotypes no longer culminate in lenient sentences that do not reflect the gravity of sexual offences. They cite instances in which the courts have been influenced by myths that; attempted rape is not a serious offence; the absence of separate physical injury renders the crime less serious; and, the alleged relationship between the perpetrator and the victim diminishes the perpetrator’s culpability.
60.
South Africa introduced minimum sentencing in 1997 through the Criminal Law Amendment Act with the intention of reducing serious and violent crime, achieving consistency in sentencing and to address public perceptions that the sentences meted out were not sufficiently severe. The Supreme Court of Appeal in the case of S v Malgas 2001 (1) SACR 469 (SCA) para. 25 explained and declared the purpose of minimum sentences as follows:
“
In short, the legislature aimed at ensuring a severe, standardised and consistent response from the courts to the commission of such [serious] crimes”
61.
In response to a 1992 Special Report to Congress by the United States Sentencing Commission denouncing mandatory minimum sentences, Robert Mueller, a former Assistant Attorney General, defended mandatory minimum sentences on behalf of the Department of Justice in his article ‘Mandatory Minimum Sentencing’ published in the Federal Sentencing Reporter, Vol 4, No 4, Turmoil over Relevant Conduct in the Ninth Circuit (Jan - Feb., 1992), pp 230- 233. He stated that, through mandatory minimum sentence statutes, Congress sends a strong message that society would not tolerate certain forms of criminal behaviour. Further, that mandatory minimum sentences deter criminal activity by maximizing the certainty and predictability of incarceration for crimes that pose serious threats to the nation’s quality of life such as drug trafficking near schools. For him, mandatory minimum sentences assure an absolute sentencing floor, allowing only departure above the stated minimum.
62.
Having so stated, we are aware that mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, USA, Australia, South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed. That is why the Supreme Court of the United States, which has actively challenged mandatory death sentences since the early twentieth century, ruled in Miller v Alabama, 132 S Ct 2455 (2012) that imposing mandatory life imprisonment without parole for juvenile offenders at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments. Similarly, the European Court of Human Rights has on several occasions applied the “grossly disproportionate test,” for instance in the cases of Harkins and Edwards v. United Kingdom, 2012 ECHR 45 and Murray v Netherlands, 2016 ECHR 408 where the court found that mandatory sentences of life imprisonment without the possibility of parole go against article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms on the prohibition from torture and inhuman and degrading punishment. Canada has also actively struck down minimum mandatory sentences and recently a 9 Judge bench of the Supreme Court of Canada in R. v Safarzadeh Markhali, 2016 SCC 14, reiterated its Constitutional commitment for proportionality in sentences. In Australia, in the case of Magaming v. The Queen, (2013) 253 CLR 381 the High Court struck down minimum mandatory sentence in the Migration Act finding that the statute usurped judicial power by granting the prosecution office the discretion to determine the minimum penalty to be imposed by allowing them to elect which offences to charge suspects with.
63.
Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below.
iii. Whether minimum sentences as prescribed in the Sexual Offences Act are unconstitutional and (iv) whether courts have discretion to impose sentences below minimum those prescribed by the Sexual Offences Act.
64.
Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
65.
The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the Constitution before finding it unconstitutional and must also specify the reasons for finding such impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the Sexual Offences Act unconstitutional, failing to refer even to the particular section 8 that would have been relevant to the respondent’s case.
66.
We also note that the Court of Appeal concluded its decision in this present matter by reducing the respondent’s sentence from the minimum of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went into its decision to reduce the sentence. The reasoning behind the court's decision is called into question by this omission as sentencing is a matter of fact unless an Appellate Court is dealing with a blatantly illegal sentence which was not the case in the present matter.
67.
We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
68.
This is why, even in the Muruatetu case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
“
Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. the Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 |
Application E005 of 2024 | Emfil Limited v Attorney General & 14 others (Application E005 of 2024) [2024] KESC 32 (KLR) (5 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 4 July 2024 | 2,024 | Nairobi | Civil | Emfil Limited v Attorney General & 14 others | [2024] KESC 32 (KLR) | null | Upon perusing the Notice of Motion dated February 7, 2024and filed on February 8, 2024, pursuant to article 163(4)(b) of the Constitution, sections 3A, 15, 15B and 21 of the Supreme Court Act and rule 33(2) and (3) of the Supreme Court Rules; seeking review and setting aside of the Ruling of the Court of Appeal (Nyamweya, Lesiit & Odunga, JJ.A) delivered on January 25, 2024 in Mombasa Civil Application No E032 of 2023, declining certification of the intended appeal as one raising matters of general public importance; certification of the intended appeal against the Judgment of the Court of Appeal (Gatembu, Nyamweya & Lesiit, JJ.A) delivered on April 14, 2023 in Mombasa Civil Appeal No 37 of 2020; certification so granted to operate as stay of execution; and costs; and
2.
Upon considering the applicant’s grounds on the face of the application and affidavit sworn by Andrew Mukite Musangi on February 7, 2024, wherein it is contended that, the Court of Appeal erred in law, in; reinstating defences of parties who had waived their right of appeal; allowing the Attorney General to lodge an appeal on behalf of parties with independent representation and who had not filed notices of appeal; failing to consider that the applicant’s ownership of the suit property had been determined and affirmed by the High Court and Court of Appeal in HCCC No 181 of 2007 and CA No 312 of 2012 respectively; failing to take into account that the suit property was not available for allocation to the squatters; and finding that reliance on a replying affidavit filed in a concluded matter to urge a subsequent matter was res judicata, in contravention of order 2 rule 15 of the Civil Procedure Rules; and
3.
Upon further considering the questions of general public importance proffered by the applicant, to wit; whether the striking out of parties pleadings has a bearing on public interest; whether the Court of Appeal erroneously applied the provisions of order 2 rule 15(2) of the Civil Procedure Rules; whether the Attorney General could represent parties who had expressly waived their right of appeal; what is the ambit of the role of the Attorney General in defending public interest; whether ownership rights conferred by a court of competent jurisdiction can be subject to re-litigation; whether a replying affidavit in a former suit can be relied on in subsequent causes to prove that the matter is res judicata; whether an outright misapplication of the law by a court raises an issue of public importance; whether competing titles to property can be issued under different registration regimes; and whether conflicting decision of a court raises an issue of public importance; and
4.
Upon considering the applicant’s submissions dated February 7, 2024and filed on February 9, 2024, restating the grounds set out above and in addition urging that, the application meets the principles for grant of certification established in Hermanus Phillipus v Giovanni Gnecchi -Roscone, SC Application No 4 of 2012 [2013] eKLR (Hermanus Case), and the issues raised therein transcend the litigation interests of the parties in the suit. Moreover, that the issues raised are of repeated occurrence, bearing proper conduct in the administration of justice, and are destined to continually engage the working of judicial organs. To support this assertion, the applicant relies on this court’s decision in Kenya Civil Aviation v African Commuter Services Ltd & another, SC Application No 7 of 2015; [2018] eKLR; and
5.
Having read and considered the 1st respondent’s submissions dated February 22, 2024, wherein the 1st respondent urges that the application fails to meet the yardstick for grant of certification settled in the Hermanus Case, in that it has not concisely identified the elements of general public importance peculiar to the intended appeal. Furthermore, the Attorney General contends that the dispute pending before the trial court pertains to private land ownership between the applicant and the respondents; the only issue determined by the appellate court involved the striking out of parties’ defences by the trial court; and the just determination of the substantive dispute calls for the evaluation and consideration of the contested facts between the parties by the trial court as directed by the Court of Appeal; and
6.
Upon noting the 4th and 7th respondents’ replying affidavit sworn on March 13, 2024 and filed on March 19, 2024, wherein the respondents join issues with the 1st respondent and also aver that the intended appeal discloses no matters of general public importance transcending the circumstances of this matter; and
7.
Upon considering the 4th and 7th respondents’ submissions dated March 13, 2024 and filed on March 19, 2024, restating their grounds of opposition and reiterating that the application fails to meet the principles for certification settled in the Hermanus Case. They emphasize that the Court of Appeal was only called upon to determine whether the trial court had judiciously exercised its discretion in striking out defences by the respondents; and therefore, the applicant cannot invite this court to determine substantive issues pending before the trial court, disguised as matters of public interest; and
8.
Upon further considering the 8th to 13th, 15th and 17th to 20th respondents’ replying affidavit sworn on February 28, 2024 and filed on March 4, 2024 adopting the arguments in opposition by the other respondents as earlier summarized. Further noting the said respondents’ submissions dated February 29, 2024 and filed on March 4, 2024, to the effect that none of the matters raised by the applicant pass the test for certification laid down in the Hermanus Case but are instead mere contests between the parties; and
9.
Upon reading the applicant’s submissions in rejoinder dated March 7, 2024and filed on March 11, 2024, restating its arguments in support and further urging that the 1st respondent’s submissions were not accompanied by a replying affidavit and were therefore defective. The upshot, according to the applicant, being that the application is unopposed by the 1st respondent as well as the 2nd, 3rd, 14th and 16th respondents who had neither filed their responses nor written submissions; and
10.
Cognisant of the fact that this court has already established the guidelines upon which an intended appeal may be certified as one involving a matter of general public importance in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone [supra]; to the effect that:
“
…for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest…” | We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, and guided by the principles established in the Hermanus Case, we find that the Motion lacks merit as the applicant has not concisely and satisfactorily identified any issue, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification;
ii.
Neither has the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest;
iii.
The Court of Appeal only determined the justification for striking out the respondents’ defences by the Environment and Land Court, partially allowed the appeal, and remitted the matter to the trial court for determination on merit; and
iv.
Therefore, the applicant is mistakenly inviting this court to determine facts in a contest between the parties, which by itself, is not a basis for granting certification to appeal to the Supreme Court. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/32/eng@2024-07-05 |
Petition (Application) E032 of 2023 | Kamande v Republic (Petition (Application) E032 of 2023) [2024] KESC 33 (KLR) (Crim) (5 July 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 5 July 2024 | 2,024 | Nairobi | Criminal | Kamande v Republic | [2024] KESC 33 (KLR) | null | Uponperusing the Notice of Motion by the applicant dated 22nd March, 2024 and filed on 25th March, 2024 pursuant to Articles 50 (2) (k), 159 (2) (d) & (e) of the Constitution of Kenya 2010, Rules 3 and 26 of the Supreme Court Rules and all other enabling provisions of law in which the applicant seeks the following orders:
a.
This Honourable Court be pleased to admit as additional evidence an Expert Medical Report on the Battered Woman Syndrome in line with the Draft Medical Report annexed to the Petitioner’s Supporting Affidavit in such a manner and subject to such conditions as the court may find appropriate;
b.
The Petitioner/Applicant be granted fourteen (14) days leave from the date of determination of this Application to adduce the said additional documentary evidence in the instant appeal;
c.
This Honourable Court do issue any other or further order as it may deem necessary to meet the ends of justice;
d.
The order for costs of an incidental to this application abide the result of the said Appeal; and
2.
Uponconsidering the grounds on the face of the application, and the averments contained in the supporting affidavit of Ruth Wanjiku Kamande, deponed on 22nd March, 2024 wherein the applicant contends that: the Court of Appeal certified the appeal on grounds that it raises matters of general public importance regarding the doctrine of the Battered Woman Syndrome (hereinafter BWS) and its applicability to the defence of self-defence in criminal trials in Kenya; for the reason that, this common law doctrine of self-defence, as it is applied fails to curve out a “conscience exemption” for victims of domestic violence thereby continually perpetuating a grave miscarriage of justice; to the extent that it fails to take into consideration the unique psychology and circumstances of battered intimate partners when assessing the proportionality of the victim’s actions, denying such victims a reasonable opportunity for justice;
3.
Therefore,the applicant seeks to adduce the expert medical report of Dr. Frank Njenga, a licensed clinical psychologist who evaluated the applicant on or about 24th January 2023, wherein he expounds on the intersectionality between BWS, Post Traumatic Stress (PTSD) and Premenstrual Dysphoric Disorder (PMDD); by providing invaluable psychological insight on BWS,expounding on its causes and effect as evaluated from the applicant’s perspective, which in turn shall enable the Court to understand the role that the condition played in the events underlying the Petition; noting that the mental evaluation undertaken to determine the applicant’s fitness to stand trial did not take into account or seek to determine whether she was predisposed or potentially afflicted with the syndrome; in consequence, the report now sought to be availed offers additional, compelling and consequential probative evidence and it will be in the interest of justice that the application filed be granted; since, this is an exceptional opportunity for the Court to render itself definitively on BWS not only for the benefit of the applicant but victims of domestic violence in Kenya; and
4.
Uponconsidering the applicant’s written submissions dated 22nd March, 2024 and filed on 25th March, 2024 the applicant affirms that the evidence sought to be adduced, exhibited as a draft expert medical report, meets the statutory and jurisprudential threshold set out by this Court in Mohamed Abdi Mahamud v Ahmed Abdi Abdullahi Mohamad & 3 others [2018] eKLR as the applicant satisfies the eleven elements set out therein on grounds that: it is credible evidence prepared by a practising medical practitioner and a clinical psychologist with over 30 years' experience, after repeated physical interviews with the applicant, and a number of observations; it is directly relevant to BWS, and will influence/impact the verdict by translating theoretical perspectives into practical psychological insights; it is not intended to introduce new facts or issues for determination but will enable the Court to authoritatively and conclusively review the principle of BWS and Intimate Partner Violence, deepening its appreciation of the clinical, medical and psychological underpinnings; giving consideration that at the trial the defence of BWS was unavailable to the applicant because it had no statutory underpinning or common law adoption by judicial initiative; as such, the applicant could neither have procured nor utilized the expert medical report to advance her defence; and
5.
Furthermore, the report, which is not voluminous, will allow for an effective response by the State as it is expected that the final copy to be filed in Court will not exceed 60 pages; by dint of it containing evidence that will remove vagueness or doubt over the case with a bearing on the main issue therefore, it is not an attempt to deceive or otherwise undermine the Court’s ability to impartially, objectively and comprehensively address the substratum of the appeal; neither does the applicant seek to fill up an evidentiary gap or eliminate lacunae in the pleaded case nor to make a fresh case in the appeal or fill up omissions or patch up weak points in her case; instead, due to the current failure or non-recognition of Intimate Partner Violence within the criminal justice system, there is a grave shortcoming in the dispensation of justice; even though Parliament has enacted the Protection Against Domestic Violence Act, there is a yawning deficit in the legal system in terms of failure to perceive what should happen and what judicial protection to offer victims who retaliate against their abusers; to this end, the State will suffer no prejudice from the additional evidence sought to be adduced; and
6.
Uponconsidering the replying affidavit of Fredah Mwanza, Senior Assistant Director of Public Prosecutions, sworn on 16th April, 2024 in opposition to the application and written submissions dated 16th April, 2024 and filed on 17th April, 2024 all to the effect that: the instant application is nothing but an attempt by the applicant to make a fresh case, fill up omissions or patch up her case; taking note that the State owes no responsibility to conduct a psychiatric evaluation for an accused person to determine possible defences, it is squarely the responsibility of the accused to present evidence such as a psychiatric evaluation for purposes of enabling the trial court to determine the existence of possible defences; the applicant did not present any such evidence at trial or before the first appellate court for evaluating and making a finding on the applicability of BWS in this case; moreover, the applicant has not demonstrated any specific challenge(s) that may have made it difficult or impossible to present the psychiatric report;
7.
Additionally, the annexed draft report allegedly prepared upon examination of the applicant’s state of mind more than eight (8) years after the date of commission of the offence, the subject matter of the instant appeal, does not include an actual examination of the applicant around the time of the incident; it neither presents a medical history or a history of violence against the applicant by others or by the deceased victim or a combination of both, nor explain how such violence traumatized her throughout the episode preceding the crime but rather refers to scientific literature, which were matters within the purview of the superior courts below and can still be referred to in arguments by parties in this appeal without being adduced as additional evidence for the disposal of this appeal;
8.
Besides,it is submitted that the applicant has not demonstrated that the personality disorders or syndromes alluded to in the report are novel medical discoveries that she was precluded from raising and advancing at trial in support of the defence of insanity; what’s more, the largely persuasive judicial determinations by courts of other jurisdictions and academic writings contained therein are not within the speciality of the proposed medical expert requiring to be adduced as additional evidence; inevitably, the application falls woefully short of the standard set out in Mohamed Abdi Mahamud Case and as further pointed out by this Court in Wanga v Republic (Application E018 of 2023) [2023] KESC 108 (KLR) the Court’s exercise of this jurisdiction shall not be whimsical and the court would not be in haste in granting the same; alternatively, this being a second appeal against a conviction of murder, the Court’s jurisdiction as a second appeal as enunciated in Chemagong v Republic [1984] KLR 213 confines it to points of law; and
9.
Notingthat the applicant proposes a more nuanced and responsive test to be developed by the Court when evaluating applications of adducing additional evidence in criminal proceedings that recognize the distinctive character of criminal proceedings as distinguishable and separate from civil (or quasi-civil) proceedings; that the test may reflect as follows: (a) additional evidence as being directly relevant to the matter before the court; (b) additional evidence may influence or impact the result of the verdict either by removing vagueness or by conclusively addressing an issue at trial; (c) additional evidence should not have been available at trial; (d) additional evidence ought to assist the court in fair, just and conclusive determination of the issue; and (e) proportionality and prejudice that may arise if the additional evidence is admitted; and | 0.
Having therefore considered the totality of the application, response and submissions, We Now Opine as follows:
i.
Section 20 of the Supreme Court Act as read with Rule 26 of the Supreme Court Rules grants this Court the power to admit additional evidence in an appeal before it. To consider the prayer for leave to admit additional evidence, the applicant is bound to satisfy all governing principles posited in our decision in Mohamed Abdi Mahamud Case which have now been enacted in Section 20 (2) of the Supreme Court Act as follows:
a.
is directly relevant to the matter before the Court;
b.
is capable of influencing or impacting on the decision of the Court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the Court.
ii.
Before applying these principles to the application at hand, we have considered the applicant’s proposal for a more nuanced test in criminal proceedings, such as this case, where the matter has been certified as a matter of general public importance. This is in contradistinction to the test in Mohamed Abdi Mahamud Case, applicable to quasi-civil proceedings that sought to balance the competing rights and interest of private parties.
iii.
Examining the test accentuated by the applicant, it embodies five of the eight guiding principles as now codified into law as encapsulated under Section 20 (2) of the Supreme Court Act, without distinction of applicability in civil, quasi-civil or criminal appeals. We did not understand the applicant to be challenging this statutory provision. At any rate, this is not the appropriate manner or forum to do so. We say no more.
iv.
Turning to the issue at hand and applying the above principles to the present application, our perusal of Para 6 on page 2 of the draft medical report indicates that the report sought to be introduced relates to the issue of BWS, focusing on medical and scientific literature as well as related literature for a comprehensive review of the applicant’s mental condition at the time of commission of the offence; paying particular attention to the intersection between mental health and the law, as well as the mental health of women, because of the defence of BWS which is specific to the female gender. Further, at page 21 of the Report, it is stated:
“
94.
In the preparation of this report, we debated the merits or otherwise of carrying out our own mental status of examination of RWK, so many years after the tragic events, but decided against it. To carry out a medical examination eight years after the event risks it being completely unreliable plus the equally serious risk of the introduction of new evidence not available at the time of trial. Our decision in this regard might be seen as the wrong one but it is our view that new evidence is not likely to be of additional value in this opinion on the BWS.” [Emphasis added].
v.
It is evidently manifest that the draft medical report sought to be adduced, though it relates to the issue of the doctrine of BWS, the primary issue before the Court in this appeal, is not pegged on a medical evaluation conducted on the applicant, and moreover, the evaluation was not conducted at the time of the commission of the offence by the applicant. Instead, it falls within the confines of medical and scientific literature and, to some extent, makes reference to judicial findings and arguments.
vi.
In our view, and without making further inferences that we reserve for the trial itself, this information was and remains readily available both to the litigants and to the Court. We are not persuaded that the same could not be adduced at the trial or before the Court of Appeal, the applicant appreciating that BWS traces its existence from common law.
vii.
Suffice to say, and bearing in mind that this is a second appeal, we agree with the respondent that the matters in the draft medical report are best left to arguments at the trial without having to be introduced in evidence. In any event, the appeal having been founded on certification as involving matters of general public importance, the Court will have to consider factors that transcend the applicant.
viii.
In the premises, we are not persuaded as to the merits of the application and hold that the same is for disallowing.
ix.
On costs, the award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. On this account, it is only prudent that we defer the issue of costs to abide by the outcome of the appeal.
11. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/33/eng@2024-07-05 |
Petition E014 of 2023 | Ashmi Investment Limited v Riakina Limited & another (Petition E014 of 2023) [2024] KESC 30 (KLR) (28 June 2024) (Judgment) | Judgement | Supreme court | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 28 June 2024 | 2,024 | Nairobi | Civil | Ashmi Investment Limited v Riakina Limited & another | [2024] KESC 30 (KLR) | null | A. Introduction
1.
The appellant, Ashmi Investment Limited, vide its Petition of Appeal dated May 4, 2023 and filed on May 19, 2023 challenges the ruling of the Court of Appeal made on April 14, 2023. In the ruling, the Court of Appeal declined to review and set aside its judgment and orders made on November 19, 2021 in Civil Appeal No 384 of 2019, affirming the judgment of the Environment and Land Court (ELC) in Civil Suit ELC No 646 of 2014. The net effect of the impugned decision is that the appellant’s survey deed plan and resultant title to the suit properties - LR Nos 29957 and 29955 were cancelled. The Court of Appeal also agreed with the learned trial Judge of the ELC that the property was not available for allotment to the appellant and that the titles processed in favour of the appellant could not stand, the same having been issued during the pendency of the suit.
2.
The appeal invokes this Court’s jurisdiction under article 163 (4)(a) of the Constitution, section 15 (2) of the Supreme Court Act No 7 of 2011, and rules 3(5), 31 & 32 of the Supreme Court Rules 2020.
3.
The 1st respondent raised a preliminary objection, inter alia, challenging this court’s jurisdiction to hear the appeal as of right under the provisions of section 163(4)(a) of the Constitution. In the Ruling dated August 4, 2023, the court addressing itself on the merits of the preliminary objection, partly allowed the objection and restricted the appeal to the following issues:
i.
Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; and
ii.
Whether the Court of Appeal misapplied the doctrine of lis pendens thereby denying the applicant a right to property.
B. Background
4.
The gist of the dispute is that on July 28, 1998, both the appellant and the 1st respondent were allotted Unsurveyed Industrial Plot ‘D’ off Mombasa Road (hereinafter “the Suit Property”) by the Commissioner of Lands.
5.
According to the appellant, by the Letters of Allotment dated July 28, 1998referenced 51776/XVI/159 and 51776/XVI/158, it was allotted Unsurveyed Industrial Plot ‘C’ and Unsurveyed Industrial Plot ‘D’ respectively for a term of 99 years from August 1, 1998. It proceeded to take up possession, paid the prerequisite fees in respect of ground rent, rates, standard premium, and survey fees on February 20, 2013as evidenced by copies of Department of Land Fee Receipts Nos 3195262 and 3195263, and sought approvals from the pertinent government offices. That thereafter, the Director of Surveys caused Plots ‘C’ and ‘D’ to be surveyed and given LR Nos 29955 (deed plan number 358614) and 29957 (deed plan number 358616) respectively (hereinafter “the Properties”).
6.
The appellant alleged that due to the dispute between the National Land Commission and the Ministry of Land Housing and Urban Development at the time, no land officer had been appointed to sign new titles and as such the titles were pending registration and issuance as at the time of institution of the suit before the ELC. That on May 19, 2014, the 1st respondent invaded the Suit Property in an attempt to forcefully take possession of the same prompting the appellant to institute a suit at the Environment and Land Court together with an application for interim relief. | F. Analysis and Determination
42.
It is this Court’s practice that when an appeal is instituted, under article 163(4)(a) of the Constitution, as of right, in any case involving the interpretation or application of the Constitution, we must of necessity satisfy ourselves of our jurisdiction to hear and determine the matter, whether an objection has been raised or not.
43.
As earlier stated, this court’s Ruling dated and delivered on August 4, 2023, addressed the challenge to its jurisdiction, and framed the following issues:
i.
Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; and
ii.
Whether the Court of Appeal misapplied the doctrine of lis pendens and thereby denying the applicant a right to property.
44.
In arriving at the decision in the said ruling, the court appreciated that the appeal raised several issues. Some of those issues were not found to warrant the court’s exercise of jurisdiction such as inference of fraud and the attendant evidence. The court stated as follows:
“
(14)
… From our careful perusal of the record, we are satisfied that the dispute as to the ownership of land as a bona fide allottee under the circumstances and the court’s application of the doctrine of lis pendens bearing in mind the appellant’s argument surrounding this court’s advisory opinion concerning the dispute between the National Land Commission and the Ministry of Lands are issues that involve the interpretation and application of article 40 of the Constitution. The issues surrounding the inference of fraud and the attendant evidence do not fall for our determination as they were fully ventilated before the superior courts below…”
With that finding, the court proceeded to grant conservatory relief in favour of the appellant in respect of the suit property pending the hearing and determination of the appeal.
45.
We note that since the focus of our ruling was the preservation of the substratum for purposes of the appeal, it remains open for the court, now with the benefit of the arguments in the substantive appeal, to remain satisfied of the jurisdiction. As recently held in Kampala International University v Housing Finance Company Limited, SC Petition No 34 (E035) of 2022; [2024] KESC 11 (KLR) at para 46:
“
… we consider it important to restate the principle that without jurisdiction, a court of law is incapable of rendering any valid Ruling, Order or Judgment. In the Ruling cited by the appellant as authority for its contention that the issue of jurisdiction is now res judicata, all that this Court did, was to preserve the substratum of the appeal by holding that the same was arguable. The said ruling did not foreclose future interrogation of whether, the Court’s jurisdiction has been validly invoked, either by the court suo motu, or by a party to these proceedings” [Emphasis added]
46.
Indeed, in our ruling at paragraph 15, we gave the benefit of doubt to the appellant and thought it was necessary to allow the appellant to ventilate its appeal under the strict confines of article 163(4)(a) of the Constitution. With the benefit of the petition of appeal, submissions and the arguments by counsel for the parties, it emerges that the appeal transmutes from that against the ruling by the Court of Appeal on the appellant’s application for review of the judgment by the same court to an appeal against the judgment of the Court of Appeal. Why do we say so?
47.
The appellant through its Petition of Appeal dated May 4, 2023 challenges the ruling of the Court of Appeal, which dismissed an application for review of the Judgment of the Court of Appeal in Civil Appeal No 384 of 2019. This judgment by the Court of Appeal was made on November 19, 2021. In the ruling of April 14, 2023, the Court of Appeal (Okwengu, Sichale & Laibuta JJ A) held that none of the grounds for review raised disclosed errors of law that had occasioned real injustice or failure or a miscarriage of justice to the appellant’s prejudice, and that the appellant had not made a case for review to promote public interest and enhance public confidence in the rule of law. Consequently, the Court of Appeal found that the application for review lacked merit.
48.
This is the ruling that the appellant indicates in its Notice of Appeal dated April 28, 2023 that it intended to challenge before this court. Specifically, the Notice of Appeal provides as follows:
“
…
Notice of Appeal
(Rule 36 of the Supreme Court Rules, 2020)
Take notice that Ashmi Investment Limited, the appellant/ applicantherein dissatisfied with the Ruling made by the Court of Appeal (Honourable Justices Okwengu, Sichale & Laibuta) sitting at Nairobi delivered on 14th day of April 2023, intends to appeal to the Supreme Court against the whole of the said Ruling. …” [Emphasis ours]
However, in the contents of its Petition of Appeal, despite replicating in the heading of the pleadings that it is an appeal from the ruling aforesaid, the appellant’s focus shifts to the merits of the judgment of the Court of Appeal rendered on November 19, 2021, which was the subject of the review application. It is trite that the filing of a Notice of Appeal is a jurisdictional pre- requisite to any appellate jurisdiction. Under the Rules, there is a procedural timeline within which the Notice of Appeal should be filed. From the facts at hand, no Notice of Appeal indicating an intention to appeal against the said Judgment was ever filed by the appellant. The Notice of Appeal filed in this appeal is therefore limited to the Ruling aforesaid.
49.
The foregoing circumstances point to the ingenuity or otherwise inattentiveness to keeping in line with this court’s limited jurisdiction in instituting and prosecuting the appeal. The court cannot disregard such action. In University of Eldoret & Another v Hosea Sitienei & 3 others, SC Petition No 33 of 2019 [2020] eKLR, the court called out similar attempts in the following terms:
“
(12)
The main question that we interrogate is whether the appeal fits within either of the above principles. A consideration of the petition of appeal reveals that it is an appeal as of right against the ruling on review delivered on July 9, 2019…
13.
… Instead, they couched their appeal on the basis of the Court of Appeal judgment delivered on October 18, 2018. There is no evidence before us to demonstrate that the judgment of October 18, 2018 was being appealed. Indeed, the Notice of Appeal filed by the petitioners is instructive that the appeal is against the entire ruling of July 9, 2019.
14.
Had the appeal been against the judgment, we could perhaps have been persuaded differently. Any attempt by the petitioners to merge the two decisions in their appeal in our view is ingenious but must nevertheless be stifled at the outset.”
50.
Unrelenting, the parties approached the court again, this time seeking to be allowed to now pursue an appeal against the judgment. We asserted the above position in University of Eldoret & Another v Hosea Sitienei & 3 Others, SC Application No 8 of 2020; [2020] eKLR and held as follows:
“
[33]
It is evident that following the decision of the Court of Appeal, the applicants were faced with two options – to, either file for review of the decision to the same court or pursue an appeal before this court within either of the applicable jurisdictional contours. ... We agree with the applicants’ advocates that they could not concurrently pursue both options as that would be an outright abuse of judicial process. However, following from our decision in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 others [2015] eKLR, where a litigant has more than one option to pursue, he/ she must settle on one of them. The decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does not succeed. This means that when choosing, the litigant is expected to choose the best available option since she may not have any further recourse.
[34]
We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the altar of judicial process without the attendant consequences.” [Emphasis added]
51.
The present situation is no different to warrant any departure from our now known position. We are not persuaded that the court is seized of the requisite jurisdiction as the parameters of review of a judgment by the Court of Appeal are well settled. The appellant failed to construe a constitutional argument arising out of such parameters to necessitate the appeal particularly in so far as it relates to the issues framed in our ruling. The appellant went on to submit on the issues as if the appeal was against the substantive judgment, an outright affront to scarce judicial time, resources, process and procedure.
52.
Consequently, the focus of the appeal as presented is incongruent with the expectation accruing from the Notice of Appeal dated April 28, 2023. In the premises, we have no jurisdiction to entertain the same and it should be struck out.
53.
On the issue of costs, this court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR set out the legal principles that guide the grant of costs and enunciated that generally, costs follow the event and costs should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. Taking into consideration all circumstances of the hearings herein in all the three superior courts, and the non-participation of the respondents before us, there shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/30/eng@2024-06-28 |
Petition (Application) E014 of 2024 | Kinyanjui & 4 others v Kalinga & 6 others (Petition (Application) E014 of 2024) [2024] KESC 27 (KLR) (Civ) (28 June 2024) (Ruling) | Ruling | Supreme court | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 28 June 2024 | 2,024 | Nairobi | Civil | Kinyanjui & 4 others v Kalinga & 6 others | [2024] KESC 27 (KLR) | null | Upon reading the notice of motiondated March 28, 2024and filed on April 2, 2024brought pursuant to sections23A and 24 of the Supreme Court Act and rules 31 the Supreme Court Rules,2020 seeking conservatory orders staying execution of the judgment and order of the Court of Appeal delivered on 22nd March, 2024 in Election Petition Appeal No. E002 of 2023 (Mombasa) Josephine Wairimu Kinyanjui & 4 others v Mary Charles Kalinga & others, pending the hearing and determination of the intended appeal; and that costs of the application abide the result of the appeal; and
2.
Upon considering the grounds on the face of the application, supporting affidavit sworn by Rachael Katumbi Mutisya on March 28, 2024 and submissions of even date filed on April 2, 2024, wherein it is contended that the Court of Appeal decision striking out the appeal for want of jurisdiction and declining to determine the substantive questions therein was contrary to article 164(3)(a) of the Constitution; and the application satisfies the test for grant of conservatory orders settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014; [2014] eKLR (Munya 1 Case). Specifically, it is urged that the appeal is arguable with a high likelihood of success as it raises substantial questions of constitutional interpretation, to wit, whether the Court of Appeal, in declining to hear and determine the said questions amounts to a limitation of the applicant’s constitutional right of appeal under article 164(3) of the Constitution; whether the said decision was in deliberate disregard of articles 38(3) and 193(1) of the Constitution as read with section 25 of the Elections Act; whether it erroneously upheld the High Court’s finding thus usurping the 1st respondent’s constitutional mandate under article 88(4)(e); and whether the decision failed to adjudicate on whether a court can grant reliefs not specifically pleaded.
3.
Further, the applicants contend that unless conservatory orders are granted, the appeal will be rendered nugatory to the applicants’ prejudice. They add that, unless the orders sought are granted, the 2nd respondent will declare the seats currently held by nominated Members of the County Assembly of Kwale vacant, to their detriment. To support this assertion, they cite this Court’s decision in George Mike Wanjohi v Stephen Karuiki & 2 others, SC Application No 6 of 2014; [2014] eKLR. The applicants also urge that it is in public interest for this Court to substantially pronounce itself on the Court of Appeal’s jurisdiction to hear appeals from the High Court, emanating from the election of Members of a County Assembly pursuant to article 164(3)(a) as read with section 85A of the Elections Act. In support of that plea, they rely on this court’s decision in the Munya case [supra]; and
4.
Having read and considered the 1st respondent’s replying Affidavit sworn by Mary Charles Kalinga on April 9, 2024 and submissions dated April 15, 2014 and filed on 17th April, 2024, to the effect that that the application has failed to meet the yardstick for grant of conservatory orders, is unmeritorious, and ought to be struck out. To support this assertion, the 1st respondent urges that this Court has pronounced itself on the only issue for determination in the appeal before it, and that there are no new circumstances in law, to warrant the Court to depart from its findings. To buttress that submission, the 1st respondent cites this court’s decision in Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission, SC Petition No 38 of 2018; [2019] eKLR where the issue of appeals from the election of members of County Assemblies was settled and it is therefore urged that by virtue of this pronouncement, both the Court of Appeal and the Supreme Court lack the jurisdiction to hear appeals emanating from the said election; and
5.
Upon reading and considering the applicants’ further affidavit, rejoinder affidavit both sworn by Rachael Katumbi Mutisya on April 22, 2024 and May 15, 2024 respectively, and submissions dated April 22, 2024, wherein they reiterate their grounds in support of the application, and additionally urge that there are exceptional circumstances to warrant this court’s intervention. To this end, the applicants submit that, unlike other appeals before the Court of Appeal where the appellate court had declined to assume jurisdiction, the court in this matter heard the appeal on substantive issues and having done so, ought to have decided all of them. It is also contended that the issue of application of the doctrine of stare decisis to defeat the instant application or appeal cannot be determined at a preliminary stage without interrogating the facts and circumstances in the appeal; and
6.
Considering that before the Court of Appeal, the 1st respondent had raised a preliminary objection, that is, whether the Court of Appeal had jurisdiction to hear the appeal and while upholding the preliminary objection, the appellate court struck out the appeal without delving in the determination of the substantive issue raised therein; and
7.
Cognisant of the provisions of section 23A of the Supreme Court Act, granting this Court jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit; and
8.
Further considering this court’s guiding principles for grant of stay of execution and conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014 [2014] eKLR; and restated in Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR, to the effect that before this court grants an order for stay of execution, an appellant, or intending appellant, must satisfy the court that;
i.
the appeal or intended appeal is arguable and not frivolous;
ii.
unless the order of stay sought is granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
iii.
that it is in the public interest that the order of stay be granted.
9.
Appreciating that in the case of Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission, SC Petition No 38 of 2018; [2019] eKLR, we determined as follows:
‘[33]
The foregoing analysis leads us to the conclusion that, in agreement with the Court of Appeal, that in the absence of an express statutory provision, no second appeals lie to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of the County Assembly. As this determination conclusively disposes of the appeal before us, we shall not consider the second issue.’ | 10.
We Now Opine As follows:
i.
Having considered the pleadings and submissions by the parties herein, it is evident that the 1st respondent’s challenge on the court’s jurisdiction goes to the competency of the motion as well as the appeal before us. It is therefore apposite to deal with this issue before delving into the merit of the motion;
ii.
It is common ground that the Court of Appeal struck out the appeal before it for want to jurisdiction, guided by our pronouncement in Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe [supra], wherein this Court determined that the Court of Appeal lacked jurisdiction to hear an appeal from the High Court, emanating from an election petition concerning the validity of the election of a Member of a County Assembly;
iii.
The present motion and appeal relate to the nomination of members of a County Assembly and it is our categorical finding that, the holding in Hamdia Yaroi Tumaini Kombe applies with equal force to disputes relating to election by nomination to County Assemblies as the process of resolving such disputes start at the magistrates’ court like that of directly elected members.
iv.
Having so pronounced, it goes without saying that this court cannot have the jurisdiction to hear the instant motion or appeal. To sustain the Petition of Appeal having made this finding would also not be a useful venture on the part of the court or parties, and it would be in the interest of justice and expeditious disposal of cases that we do not extend the life of such a petition which is obviously premised on a misapprehension of our jurisdiction. Consequently, we find that this court has no jurisdiction to hear and determine Petition No E014 of 2024 or the instant application;
v.
In any event, even if this court were to determine the merits of the instant application, it is uncontested that the Court of Appeal simply struck out the appeal before it on grounds that it lacked jurisdiction to entertain the matter. Accordingly, the appellate court did not issue a positive order capable of execution, to warrant grant of stay or conservatory orders. The Motion would have therefore failed to satisfy the principles established in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [supra] and was one for dismissal.
11.
On Costs, in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No 4 of 2012; [2013] eKLR, we settled that costs follow the event and that the court may in appropriate cases exercise discretion and decide otherwise. In the circumstances, having found that we have no jurisdiction to address any of the issues raised in both the petition of appeal and the motion before us, we shall exercise discretion and order that there shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/27/eng@2024-06-28 |
Application E022 of 2023 | Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation (Application E022 of 2023) [2024] KESC 28 (KLR) (28 June 2024) (Ruling) | Ruling | Supreme court | Supreme court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 28 June 2024 | 2,024 | Nairobi | Civil | Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation | [2024] KESC 28 (KLR) | null | Upon perusingthe notice of motion dated February 26, 2024 and filed on March 4, 2024, pursuant to articles 10(2)(b), 25(c), 48, 50(1), 159 and 259 of the Constitution, sections 3A and 21(A) of the Supreme Court Act 2011, and rule 28(5) of the Supreme Court Rules 2020, seeking the following orders, that the matter be orally heard by a full bench of the court; the court be pleased to recall, review and/or set aside its ruling delivered on October 6, 2023 in Application No E022 of 2023; certification that the case raises matters of general public importance and leave to appeal to the court against the whole Judgment; and costs; and
2.
Upon reading the grounds on the face of the application, and supporting affidavit sworn by Harry Horn (Junior) on February 26, 2024, wherein he avers that; by its impugned ruling, the court failed to consider the applicant’s grounds for certification, in particular, the uncertainty caused by conflicting judgments on the retrospective application of the in duplum principle; the court erroneously found that the applicants had filed a composite application at the Court of Appeal seeking amendment of the notice of appeal, review of the Judgment of the court dated August 6, 2019 and certification in the alternative, yet certification was an alternative prayer only applicable in the event the prayer for review was disallowed; and the court erroneously held that the applicants forfeited their right of appeal to the Supreme Court when they opted for review of the Court of Appeal’s Judgment; and
3.
Upon considering the applicants’ submissions dated February 26, 2024 and filed on 2 February 9, 2024, wherein they restate their arguments for certification and further argue that the court has inherent jurisdiction to hear the instant application premised on their right to a fair hearing, access to justice, property and the fair determination of contractual rights, which imperatives override the narrow confines of section 21A of the Supreme Court Act and the principles delimiting circumstances for review established in the case of Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No 6 of 2014; [2017] eKLR (the Fredrick Outa case). Additionally, the applicants submit that the court retains residual jurisdiction to depart from its own decision in order to correct a miscarriage of justice. In support of this submission, they cite the cases of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited SC Application No 16 of 2012; [2014] eKLR; Deynes Muriithi & 4 Others v Law Society of Kenya & another SC Application No 12 of 2015; [2016] eKLR; and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2013] eKLR; and,
4.
Upon considering the respondent’s grounds of objection and written submissions both dated March 11, 2024, and filed on March 12, 2024, to the effect that the application, is misconceived in view of the course adopted by the applicants at the Court of Appeal, in effect forfeiting their right to appeal to this court; does not disclose any circumstance under which the court’s jurisdiction to review its decisions as delineated in law would be exercisable in the manner sought; is a disguised appeal against the court’s ruling dated October 6, 2023 and therefore an abuse of court process; and, has been filed after an unexplained, inordinate and inexcusable delay of 6 months after the Ruling was delivered. Ultimately, it is urged that the application has failed to meet the threshold for review of the court’s own decisions under section 21A of the Supreme Court Act, and as established in the Fredrick Outa Case and Senate of Kenya & 3 Others v the Speaker of the National Assembly & 10 others; (Application 7 (E013) of 2022) [2023] KESC 1 (KLR); and
5.
Noting this court’s ruling dated October 6, 2023, on the question whether the issues raised by the applicants, now restated in the instant application amounted to matters of general public importance, wherein we pronounced ourselves thus:
“
(7)
…The motion lacks merit as the applicant has not satisfactorily highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification. Neither has the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest”
6.
Appreciating the provisions of section 21A of the Supreme Court Act, rule 28(5) of the Supreme Court Rules, 2020 as well as the principles established by this court in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [Supra] where the court delineated the following as exceptional circumstances which would warrant the exercise of its limited jurisdiction for review:
“
(92)
… However, in exercise of its inherent powers, this court may, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
i.
the judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
the judgment, ruling, or order, is a nullity, such as, when the court itself was not competent;
iii.
the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.” | We now determine as follows:
i.
Having carefully appraised the application, the responses thereto and submissions by the parties, we find that the applicants have not demonstrated any special and compelling circumstances to warrant an oral hearing of the instant application, in exception to the provisions of rule 31(1) of the Supreme Court Rules, 2020, which require that applications before this court shall be determined by way of written submissions;
ii.
More importantly, guided by the provisions of section 21A of the Supreme Act, rule 28(5) of the Supreme Court Rules and the principles established by this court in the Fredrick Outa case, we find that the application has not met the conditions enunciated therein; and
iii.
The applicants have not demonstrated the exceptional circumstances that would warrant a review of this court’s ruling. Specifically, the applicants have not established that the ruling of this court dated October 6, 2023 was obtained by fraud, deceit or rendered per incuriam;
8.
Consequently and for the aforestated reasons, we make the following orders:
i.
The notice of motion dated February 26, 2024 and lodged on March 4, 2024 is hereby dismissed;
ii.
The applicants shall bear costs of the application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/28/eng@2024-06-28 |
Application E006 of 2024 | Nairobi Bottlers Limited v Ndungu & another (Application E006, E007, E008 & E009 of 2024 (Consolidated)) [2024] KESC 26 (KLR) (28 June 2024) (Ruling) | Ruling | Supreme court | Supreme court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 28 June 2024 | 2,024 | Nairobi | Civil | Nairobi Bottlers Limited v Ndungu & another ( | [2024] KESC 26 (KLR) | null | Before the Court are four Motions all filed by Nairobi Bottlers Limited, the applicant, seeking similar orders arising from the decision of this Court in a Ruling delivered on 10th November 2023. We will therefore dispose of them together in this ruling to save on precious judicial time; and
2.
Upon reading the four Motions dated 19th February, 2024 and filed on 28th February, 2024 under Section 21A of the Supreme Court Act, 2011 seeking the following orders:
1.
A stay of proceedings be hereby ordered on the taxation of the Party and Party Bill of Costs dated 29th November 2023 for Civil Applications No E024, E030, E034 & E038 of 2023 pending the hearing and determination of these applications;
2.
This Court be pleased to review and vacate the order awarding costs against Nairobi Bottlers Limited in the Ruling dated 10th November, 2023;
3.
There be no costs order on these Applications; and
3.
Upon perusing the grounds on the face of the applications, the supporting affidavits of Joe Mutisya, the applicant’s Finance Director and the submissions dated on 27th February, 2024 filed on its behalf contending that this Court in its Ruling delivered on 10th November, 2023 struck out the applicant’s appeal alongside its two applications being E030 of 2023 and E038 of 2023 seeking stay of execution of the decision of the Court of Appeal and extension of time within which the applicant should have filed its appeal, respectively; the impugned Ruling effectively allowed the 1st respondent’s application seeking the striking out of the applicant’s appeal for being filed out of time; the Court awarded the 1st respondent costs of the three applications and the appeal. The applicant in that regard contends that; the 1st respondent instituted proceedings before the High Court in Petition 325 of 2015, the genesis of these proceedings, not on his own behalf but rather on behalf of the public thus rendering the proceedings public interest litigation; the 1st respondent’s locus standi even on appeal remained the same, that of a public interest litigant; notwithstanding the costs follow the event rule provided for in Section 27 of the Civil Procedure Act, Cap 21, this Court has established legal precedent that is now trite law to the effect that courts should not award costs in public interest litigation for instance in the cases of Okoiti & 2 others v Attorney General & 14 others (Petition (Application) 2(E002 of 2021) [2023] KESC, Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR and Director of Public Prosecution v Michael Siste Mwaura Kamau & 4 others [2020] eKLR.
4.
Further, it is argued that when the Court was preparing its impugned Ruling delivered on 10th November 2023, it had not been brought to its attention that it was deciding a public interest litigation matter, due to the issue not having arisen for determination. Citing the decision in Martin Wanderi & 106 others v Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties) (Application 39 of 2019 & Petition 4 of 2016 (Consolidated)) [2020] KESC 44 (KLR), it is contended that the Court has previously ruled that not being aware of material facts is an exceptional circumstance necessitating a review of its decision. Additionally, it is urged that, despite the proceedings being public interest litigation, the 1st respondent is now claiming the sum of Kshs 90,009,290/- in his Bill of Costs dated 29th November, 2023 and yet there is no reason to warrant a departure from the current judicial precedent which the applicant considers to be the correct position in law; and
5.
Upon considering the 2nd respondent’s submissions dated 25th March, 2024 filed in support of the Motions on similar grounds as the applicant; and
6.
Upon perusing the 1st respondent’s replying affidavit sworn by Mark Ndumia Ndungu, on 7th March, 2024 together with written submissions of even date filed in opposition to the Motions and to the effect that the applications are incurably defective on account of the applicant failing to provide the specific provision of law that it alleges the Court relied on in granting costs and which had since been repealed; the applicant instead chose to rely on case law specifically on the decision in Okoiti & 2 others v Attorney General & 14 others(supra); that the applicant conflates past jurisprudence for repealed law; Section 2 of the Interpretation And General Provisions Act does not apply to the construction or interpretation of laws not written down; that Parliament’s intention in enacting regard to Section 21A of the Supreme Court Act was to limit the grounds of review to only those that may render a decision to be tainted with illegality and to bring about finality in litigation; the present review applications were disguised appeals and do not fall within the confines of Section 21A; and
7.
Further, the 1st respondent urges that the present applications were filed late with no explanation offered for the delay; due to the gravity of review proceedings, any party wishing to exercise this right should do so at the earliest opportunity; the instant applications were a pure afterthought triggered by the taxation proceedings; the Court should not exercise its discretion in favour of the applicant for failing to approach the court in good faith and for taking inconsistent positions, as initially, after service of the 1st respondent Bill of Costs, the applicant sought for more time to respond; yet when parties appeared before Court on 22nd January, 2024, the applicant sought for 30 days within which to negotiate with a view to settle the Bill of Cost; but even after being granted the 30 days to do so, it did not make any efforts to engage the 1st respondent and negotiate. Instead, the applicant filed the present applications taking the 1st respondent by surprise; and
8.
Finally, the 1st respondent submits that the granting of costs against the applicant is not an exceptional circumstance considering that the applicant in its Petition of Appeal and two applications had sought for costs to be granted in its favour; conversely the 1st respondent equally sought for costs; therefore if the applicant would have appreciated costs being granted in its favour then it ought to have appreciated that costs could also have been granted against it in the event it was unsuccessful; that in any event in the case of Okoiti & 2 others v Attorney General & 14 others(supra) the Court did not merely declare that costs were not to be awarded in public interest litigation but created an exception to the effect that where a public interest litigant seeks for costs and that party is unsuccessful, then costs may be awarded against such a party; and further, the manner in which the applicant has sought for costs, despite claiming that the proceedings were public interest in nature, was consistent with the general rule that costs follow the event; and the applicant has failed to prove that the applications fall under any of the parameters for review as set out in Section 21A of the Supreme Court Act; and
9.
Upon considering the applicant’s rejoinder in its replying affidavit sworn by Joe Mutisya on 15th March, 2024 and supplementary submissions of even date reiterating the grounds in its applications and further contending that its applications were not delayed as there are no time limits set for filing an application for review under Section 21A of the Supreme Court Act; pursuant to Section 3 of the Judicature Act, the courts, including the Supreme Court are bound by Common Law and once this Court has rendered itself on the issue of costs in the aforestated cases, the non-imposition of costs in public interest litigation became a set principle forming part of Common Law; though not bound by its decisions, adherence to them provides a degree of certainty and the court failed to offer any reasons for deviating from its previous position on the issue and the applicant considered this to be an unexplained, isolated and peculiar occurrence; it denied approaching the court in bad faith urging that it did engage with the 1st respondent in negotiations aimed at convincing the 1st respondent to withdraw its taxation proceedings due to the fact that the matter was by nature a public interest litigation; the issue of the 1st respondent’s locus standi was not determined by this Court and therefore the finding by the Court of Appeal still stands to the effect that the proceedings were public interest litigation and the 1st respondent, a public interest litigant; and having considered the applications, affidavits, rival arguments by the parties, we now opine as follows: | Guided by the provisions of Section 21A of the Supreme Court Act as well as Rule 28(5) of the Supreme Court Rules, 2020, together with the principles enunciated in the cases of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others; SC Petition (Application) No 4 of 2012, [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition 6 of 2014 [2017] eKLR, we restate this court’s power to review its own decisions as follows: as a general rule, the Supreme Court cannot sit on appeal over its own decisions, or to review its decisions, save to correct obvious errors apparent on the face of the decision. However, in the exercise of its inherent powers, the court may review its decision(s) “in exceptional circumstances, so as to meet the ends of justice” in the following instances where:
i.
The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;
ii.
The judgment, ruling or order is a nullity by virtue of having been made by a court which was not competent;
iii.
The court was misled into giving judgment, ruling or order under the belief that the parties have consented thereto; and
iv.
The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.
11.
Having considered the pleadings and submissions by the parties herein, and applying these conditions to the applications before us, we find that the applicant has failed to demonstrate that the Ruling of this Court of 10th November, 2023 was obtained by fraud or deceit, is a nullity, was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision, or that the court was misled into giving its Ruling under review on a mistaken belief that the parties had consented thereto, as per the legal principles settled in the Fredrick Otieno Outa case; and
12.
In our view, the instant applications are appeals disguised as Motions for review, and therefore do not fall within the confines of the parameters prescribed in the foregoing paragraphs. Consequently, we have no hesitation in declaring that, as framed, the applications fall short of the exceptional circumstances, and we decline the invitation to exercise the court’s limited discretion to review the Ruling.
13.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. Since this litigation must come to an end and no party can be faulted for the review proceedings, each party shall bear its own costs.
14.
Accordingly, and for the reasons aforestated we make the following orders:
i.
The Applicant’s four motions being:
a.
Civil Application No E006 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
b.
Civil Application No E007 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
c.
Civil Application No E008 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
d.
Civil Application No E009 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
Be and are hereby dismissed; and
ii.
Each Party shall bear their costs of the present Applications.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/26/eng@2024-06-28 |
Application E053 of 2023 | Odongo v Clerk, Nakuru County Assembly & 5 others (Application E053 of 2023) [2024] KESC 29 (KLR) (Civ) (28 June 2024) (Ruling) | Ruling | Supreme court | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola | 28 June 2024 | 2,024 | Nairobi | Civil | Odongo v Clerk, Nakuru County Assembly & 5 others | [2024] KESC 29 (KLR) | null | Upon perusing the originating motion by the applicant dated December 28, 2023and filed on February 8, 2024 pursuant to articles 159, 163(4) of the Constitution, section 15 (b) of the supreme Court Act, 2011 and rules 33(2) and (3) of the supreme Court Rules, 2020 seeking inter alia; a review of the Court of Appeal decision declining to grant certification of the intended appeal as a matter of general public importance, and leave to appeal to the Supreme Court against the judgement of the Court of Appeal; and.
2.
Upon perusing the proposed issues for consideration, the grounds on the face of the application, supporting affidavit sworn by Kenneth Odongo, the applicant herein dated December 28, 2023 and filed on February 7, 2024 and written submissions dated February 7, 2024 and filed on February 7, 2024 wherein he submits that the intended appeal raises 13 issues of general public importance, which can be summarised as follow;
i.
Whether the Employment and Labour Relations Court (ELRC) lacks jurisdiction to entertain disputes relating to recruitment, selection, nomination and appointment of employees; and whether such acts are of general public importance requiring further input by this Court.
ii.
Whether the list of disputes set out under section 12 of the Employment and Labour Relations Act No 20 of 2011 (ELRC Act) can be said to be limited and restrictive or whether the Act contemplates other employment questions not captured thereunder.
iii.
Whether in light of the provision of articles 23 and 258 of the Constitution of Kenya as well as rule 4 (2) as read together with rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural Rules of Kenya the jurisdiction of the Employment and Labour Relations Court is only limited to parties before it.
iv.
Whether the learned judges erred in law and fact and fell into grave error in their application of sections 77, 85 and 87 of the County Governments Act particularly in so far as it relates to nomination of County Chief Officers by the Governor under section 45 of the County Governments Act.
v.
Whether it is a grave miscarriage of justice and violation of right to access to justice in public litigation to order the applicant to pay costs of the suit particularly where the suit has been shown to raise serious issues of law for determination.
3.
The applicant reiterates that article 162 of the Constitution as read with the preamble and section 12 of the ELRC Act is not exhaustive and anticipates the existence of other labour disputes not necessarily captured under the Act. He has also asserted that, section 12(2) also tends to suggest that a dispute can be brought as against any one of the parties by anybody else and not necessarily amongst the one listed, and in any event, sections 5(1), 5(8) and 9 of the Employment Act recognises that an employee includes a prospective employee or an applicant to employment. Further, that this Court will be called upon to examine the import of sections 45, 77 and 88 of the County Governments Act and more particularly, whether an appointment by a County Governor under section 45 can be interpreted to include the disputes stipulated under section 77 of the Act and which are required to undergo dispute resolution mechanisms prior to instituting the matter in court. He relied on the High Court decisions in United states International University (UsIU) v Attorney General [2012] eKLR, Ali Jarso Wako & Another v Ministry of Interior & Coordination of National Government & 5 Others; Public service Commission & 5 Others (Interested parties) [2020] eKLR and Daniel N Mugendi v Kenyatta University & 3 others (2013) eKLR, Okoiti v Attorney General; Njenga (Interested Party) [2022] eKLR, Evans Ladtema Muswahili v Vihiga county Public service Board & 2 others; Marley Ezekiel Ayiego (Interested Party) [2021] eKLR, Trusted society of Human Rights Alliance v Nakuru Water and sanitation services Company & Another [2013] eKLR being decisions where courts have held that the ELRC is the only valid court to entertain disputes relating to recruitment, selection, nomination and appointment of employees; and
4.
Upon perusing the 1st, 2nd and 3rd respondent’s replying affidavit sworn by Joel Kariuki Mwangi, the 2nd respondent herein, and submissions both dated February 27, 2024 and filed on March 11, 2024 wherein it is submitted that the applicant has not satisfied the threshold for certification of the appeal as being one that a point of law of general public importance is involved as set out in Hermanus Phillips steyn v Giovanni Gneechi- Ruscone [2013] eKLR, Thika Coffee Mills v Rwama Farmers Cooperative society Limited [2020] eKLR, Malcom Bell v Daniel Torotich Arap Moi & Another [2013] eKLR and Goldenlime International Limited vs Blue sea shopping Mall Limited & 3 others (Motion 21 of 2016) [2021] KESC 2 (KLR) (CIV) (8th October 2021) (Ruling). The said respondents further urge that, in the instant appeal, the issues in contest did not concern constitutionality of the said section 12 of the ELRC Act and the Court of Appeal merely gave the provision of the law a literal interpretation. In addition, there is now settled precedence for the ELRC to rely upon on the subject at hand, and as such, there is no need for this Court’s intervention. Lastly, they submit that the dispute has since been overtaken by events since the recruitment process for the county officers has been finalised and the said officers have already been enrolled to the payroll; the Court will thus be engaged in an appeal that has since been rendered moot; and
5.
Upon equally perusing the 4th, 5th and 6th respondent’s replying affidavit sworn by Dr samuel Mwangi Mwaura, acting County secretary of the 5th respondent and their submissions both dated February 27, 2024 and filed on March 1, 2024 wherein it is submitted that the applicant has failed to effectively set out the elements of general public importance that would require our attention; secondly, that the supreme Court has already rendered itself with finality with regard to the jurisdiction of the ELRC which was the only possible element of general public importance that was raised in the application and they relied on the same authorities as the 1st to 3rd respondents to buttress this point; and
6.
Noting that the dispute involved the recruitment of 21 Chief officers of the County Government of Nakuru by the respondents, the ELRC in Pet No E017 OF 2022 (Nderitu J) held that it had jurisdiction to handle the same while the Court of Appeal found that there was no employee/employer relationship between the applicant and the 1st respondent, nor an employment and labour relations dispute as contemplated by article 162(2) of the Constitution or section 12(1) of the ELRC Act. And further noting that the Court of Appeal took the view that the ELRC fell in error when it proceeded to assume and arrogate upon itself, a jurisdiction that it did not have and furthermore that, by extension the 1st respondent did not have the locus standi to file the petition nor was the 1st respondent amongst the persons contemplated by section 12(2) of the ELRC Act who may lodge a complaint or a claim before the Court. Lastly, appellate court held that the Governor did not act in isolation of the County service Board hence the provisions of sections 77 and 87 of the Parliamentary Service Commission Act are couched in mandatory terms ousting the jurisdiction of the Court in the first instance; and
7.
Bearing in mind article 163(5) of the Constitution, section 15B of the supreme Court Act and rule 33(1) and (2) of the supreme Court Rules, 2020 which grants this court jurisdiction to review the Court of Appeal’s decision on an application for Certification, as one of general public importance; and this Court’s guiding principles on certification of a matter as one involving general public importance set out in Hermanus Phillipus steyn vs. Giovanni- Ruscone Sup Application No 4 of 2013 [2013] eKLR and the additional guidelines in Malcom Bell v Daniel Toroitich Arap Moi & Another, SC Application No 1 of 2013; [2013] eKLR; | We have considered the totality of the application, submissions put forth, and We opineas follows:
i.
The Court of Appeal in dismissing the application for certification found that the applicant had not set out why its decision on settled principles required consideration by the supreme Court and how it impacts third parties or other cases. The appellate court also held that the applicant had not set out any contradictory decisions, and further had failed to demonstrate that the court’s reasoning took a trajectory that warrants constitutional interpretation. The court additionally took the view that a matter cannot be reopened before the Supreme Court simply because a litigant is of the view that the decision should have been different or a certain weight ought to have been given to a particular piece of evidence.
ii.
The decisions cited by the applicant and relied upon during the appeal, as a basis to seek certification, now repeated in this application, were decisions emanating from the High Court. The Court of Appeal subsequently, and in light of the High Court decisions, rendered its decisions in Attorney General & 2 others v Okiya Omtata Okoiti & 14 others [2020] eKLR and National Social Security Fund Board of Trustees v Kenya Tea Growers Association and 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) which determined the jurisdiction of the ELRC and the capacity of the parties who might approach it. The applicant has not advanced any cases that are distinguishable from these decisions of the Court of Appeal.
iii.
The Supreme Court has equally rendered decisions in respect to the provisions of article 162 and section 12 of the ELRC Act. In Republic v Karisa Chengo & 2 others SC Petition No 5 of 2015 [2017] eKLR for example, we determined that the ELRC and High Court are different and autonomous courts and exercise different jurisdictions; the jurisdiction of the ELRC being limited to matters provided for in the statute regulating the same; and in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) SC Petition No 3 of 2016 [2019] eKLR the court held that nowhere in the ELRC Act is there jurisdiction conferred on the ELRC to resolve issues between trustees of a pension scheme and members of the scheme (pensioners) nor does a pensioner fall within the listed category of persons and parties that can make an application or institute proceedings before the ELRC.
iv.
Similarly, in Kenya Tea Growers Association & 2 others versus National social security Fund Board of Trustees & 13 others SC Petition No E004 of 2023 as Consolidated with Petition No E002 Of 2023, a case that challenged the validity of the NSSF Act, the court held that the dispute roped in disputants contemplated under section 12(2) of the ELRC Act; and that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters relating to employment and labour. suffice to say, the statute in question must be in focus and at the centre of the dispute in question.
v.
The above cases demonstrate that this ourt has demarcated the jurisdiction of the Employment and Labour Relations Court in line with the provisions of article 162 of the Constitution as read with section 12 of the ELRC Act. The common theme in all the cases is that a dispute falling within the purview of the ELRC should emanate from an employee-employer relationship and/or affect its status. This is different from the High Court, which has unlimited jurisdiction in civil and criminal matters while the specialized courts under Article 162 are limited in terms of their jurisdiction and the persons who might approach it. The Court of Appeal decision therefore correctly interpreted the provisions of section 12 of the ELRC Act and arrived at a proper interpretation of that section in the circumstances of the present case.
vi.
As for the application of sections 77, 85 and 87 of the County Governments Act particularly in so far as it relates to nomination of County Chief Officers by the Governor under section 45 of the same Act, the Court of Appeal gave a literal interpretation to this sections; and the applicant has not distinguished how the same is contradictory or has a significant bearing upon the public interest; the same is equally premised on factual dispositions of which we held in Hermanus that a determination of fact in contests between parties cannot be in itself, a basis for granting certification for an appeal before the Supreme Court.
vii.
The applicant, lastly, decries the Court of Appeal’s order directing him to pay costs of the suit. Again, in Hermanus we held that a mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification. We have equally settled the issue of costs in public interest litigation in Okiya Omtatah Okoiti & 2 others v Attorney General SC Appl No 2 (E002) of 2021 which follows a determination that the public interest in any litigation in the matter must be obvious; and that costs shall follow the event principle is however not disbarred in such proceedings-each case being looked at in its peculiar circumstances.
9.
On costs in the present application, award of the same is discretionary, given the nature of the issues set out and guided by this court’s decision Jasbir singh Rai & 3 others v Tarlochan singh Rai & 4 others SC Petition No 4 of 2014; [2014] eKLR. In the present application, we find that the order that would best apply to the circumstances is that each party bears their costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/29/eng@2024-06-28 |
Petition E005 of 2023 | Stanbic Bank Kenya Limited v Santowels Limited (Petition E005 of 2023) [2024] KESC 31 (KLR) (Civ) (28 June 2024) (Judgment) | Judgement | Supreme court | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 28 June 2024 | 2,024 | Nairobi | Civil | Stanbic Bank Kenya Limited v Santowels Limited ( | [2024] KESC 31 (KLR) | null | A. Introduction
1.
This appeal is premised on article 163(4)(b) of the Constitution. It was filed pursuant to leave issued by the Court of Appeal by its ruling of February 17, 2023. The matters certified as being of general public importance, revolve around the question of whether banks and financial institutions are required to seek approval of the Cabinet Secretary responsible for matters relating to Finance (Cabinet Secretary) envisaged under section 44 of the Banking Act (cap 488 Laws of Kenya) prior to increasing rates of interest on loans and/or facilities advanced to their customers. Concomitantly, whether the issue of interest is simply a contractual matter subject to mutual negotiation by the institutions and their customers.
B. Background
i. Factual History
2.
At one point, Stanbic Kenya Limited (the appellant) and Santowels Limited (the respondent) were in a bank/customer relationship which led to the appellant granting the respondent several facilities between 1993 and 1997. The pertinent terms of the said facilities were that they could be renewed and/or extended; the rate of interest was 3% per annum above the appellant’s base lending rate; and the appellant reserved the right to vary the rate of interest. Periodically, the appellant notified the respondent of interest adjustments whenever they occurred, and the respondent paid the interest as and when it fell due. However, in 2002 the parties’ relationship became difficult as the respondent begun having doubts concerning the interest charged by the appellant. Consequently, the respondent paid the outstanding debt and closed its accounts with the appellant in the same year.
3.
Nonetheless, in 2003 the respondent engaged Interest Research Bureau (K) Ltd to audit and/or verify the accuracy of the interest charged on the facilities. In addition, the respondent notified the appellant of the said engagement vide a letter dated 11th June, 2003 and requested the appellant to accord Interest Research Bureau (K) Ltd the necessary cooperation. Thereafter, correspondence relating to recalculation of interest were exchanged between Interest Research Bureau (K) Ltd and the appellant. Ultimately, according to Interest Research Bureau (K) Ltd’s computation, the appellant had overcharged interest on the facilities granted to the respondent. In turn, the appellant through a letter dated 30th October, 2003 disputed the said computation which it termed as inaccurate. What was more, the appellant denied any liability on its part, and that is what escalated the dispute to a long litigation before the two superior courts below and the present appeal. | Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, it is apposite to first address issues concerning this Court’s jurisdiction to entertain the appeal and cross appeal herein. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/31/eng@2024-06-28 |
Reference E001 of 2022 | Attorney General (On Behalf of the National Government) v Karua (Reference E001 of 2022) [2024] KESC 21 (KLR) (31 May 2024) (Advisory Opinion) | Advisory Opinion | Supreme court | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 31 May 2024 | 2,024 | Nairobi | Civil | Attorney General (On Behalf of the National Government) v Karua | [2024] KESC 21 (KLR) | null | A.introduction
1.
The Attorney General (AG), on behalf of the national government, by a reference dated December 9, 2022, has sought this court’s advisory opinion pursuant to article 163(6) of the Constitution, section 13 of the Supreme Court Act, 2011, and rule 50 of the Supreme Court Rules, 2020. The reference was supported by an affidavit sworn by Kennedy Ogeto, the then Solicitor General of the Republic of Kenya, on December 9, 2023.
2.
The reference seeks the court’s advisory opinion on the following questions:
i.
Whether the decisions by the Supreme Court on Kenyan law may be subject to a merit review by the East African Court of Justice and what would be the legal consequences upon the Government of Kenya and the sovereignty of the people of Kenya, of orders of the East African Court of Justice premised on a differing interpretation of the Kenyan Law from that held by the Supreme Court; and
ii.
The legal effect of a finding by the East African Court of Justice that a national court, including the Supreme Court, did not adhere to legal principles, including natural justice and the rule of law, in a case heard and determined by a national court including the Supreme Court.
3.
Hon Martha Karua, SC (Hon Karua), who was enjoined by the court suo motu as an intervener, raised a preliminary objection dated October 6, 2023 on the grounds that; the court lacks jurisdiction to hear and determine the Reference because it does not concern county government under article 163 (6) of the Constitution; that the issues raised in the reference are either concluded or pending litigation before the East African Court of Justice (EACJ) and are thus either resolved or unripe for the delivery of an advisory opinion; the reference invites the court to usurp a role reserved by the Treaty for the Establishment of the East African Community (EAC Treaty) to the East African Court of Justice contrary to the principle of separation of powers; and that, article 27 of the Vienna Convention forbids a state party, like Kenya, from invoking provisions of its internal law as justification for failure to perform its obligations under a treaty to which it is a signatory.
B. Background
4.
The genesis of the reference can be traced to the gubernatorial elections for Kirinyaga County held on August 8, 2017 where Hon Karua was a contestant. Aggrieved by the declared election result, Hon Karua filed Election Petition No 2 of 2017 at Kerugoya High Court on September 5, 2017. The High Court however struck out the petition on November 15, 2017 resulting in an appeal to the Court of Appeal. Vide a judgment delivered on March 2, 2018, the appellate court set aside the High Court judgment and remitted the case back to the High Court to be heard on merits.
5.
The High Court heard the petition on merits as directed and proceeded to dismiss it. Hon Karua appealed to the Court of Appeal at Nyeri in Election Appeal No 12 of 2018. A cross-appeal was filed in the matter by Hon Anne Waiguru, the winner of the electoral contest. The Court of Appeal found no merit in the appeal including the claim of violation of Hon Karua’s right to fair trial by the High Court but, of importance, is that it upheld the cross-appeal, and set aside the part of the High Court judgment which was to the effect that the High Court had jurisdiction to hear and determine the election petition outside the statutorily prescribed time limits. On appeal to the Supreme Court, the court agreed with the Court of Appeal and held that the determination at the High Court was a nullity having been undertaken outside the statutorily prescribed limits. It declined to consider any other issue on account of want of jurisdiction and dismissed the appeal.
6.
Having exhausted the domestic remedies available in Kenya, Hon Karua filed at the EACJ, Reference No 20 of 2019; Hon. Martha Wangari Karua vs The Attorney General of the Republic of Kenya, faulting the decision of the Supreme Court. EACJ’s First Instance Division agreed with her and found that the Supreme Court’s interpretation of the Constitution was wrong and that the Republic of Kenya had violated Hon. Karua’s right to access to justice through its judicial organ’s (the Supreme Court’s) acts and/or omissions and further held that Kenya violated its commitment to the fundamental and operational principles of the EAC Treaty, specifically the principle of the rule of law guaranteed under articles 6(d) and 7(2) of the Treaty by not properly interpreting and giving effect to the Constitution of Kenya. It consequently awarded Hon. Karua compensation in general damages of USD 25,000 with simple interest of 6% per annum from the date of judgment until payment in full, including costs. Aggrieved, the AG appealed to the appellate division of the EACJ. The appellate dvision dismissed the appeal and upheld the decision of the First Instance Division of that court.
7.
Subsequently, two similar cases have been instituted at the EACJ by Hon Karua and one, Male H Mabirizi, arising from the Presidential Election held in Kenya on August 9, 2022 but unrelated to the Kirinyaga gubernatorial dispute aforesaid. The two references were however filed following the precedent set by the latter decision. The AG in that context challenges the jurisdiction of the EACJ to review the merits of decisions rendered by apex courts of Partner States. That if this trend continues, the AG is apprehensive that the purported exercise of an appellate jurisdiction by the EACJ over decisions by national courts may pose a conflict with Kenya’s commitment to the rule of law by creating an absurd situation where differing holdings on similar questions based on the same facts are made by national courts on one hand and the EACJ on other hand thereby exposing the Government and the people of Kenya to a legal dilemma on whether it should comply with contradictory yet binding decisions from the two courts. | i. Whether this Court has jurisdiction to render the advisory opinion
28.
The crux of Hon Karua’s preliminary objection was that this court does not have jurisdiction to render an advisory opinion because none of the questions raised in the Reference concern a county government. The other limb of her objection is that all the issues framed for our advisory opinion fall squarely within the ambit of the EACJ and no input from this court is required to address them.
29.
In that regard, we note that this court’s jurisdiction to issue an advisory opinion is anchored in article 163(6) of the Constitution which stipulates that:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”. [Emphasis added]
30.
This court has in several decisions interrogated the question of its jurisdiction under article 163(6) of the Constitution. It set the guidelines for the exercise of its advisory-opinion jurisdiction in Re IIEC (supra) as follows:
“
… we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction.
i.
For a reference to qualify for the Supreme Court’s Advisory- Opinion discretion, it must fall within the four corners of article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the court on a case-by-case basis.
ii.
The only parties that can make a request for an advisory opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae.
iii.
The court will be hesitant to exercise its discretion to render an advisory opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower court. However, where the court proceedings in question have been instituted after a request has been made to this court for an advisory opinion, the court may if satisfied that it is in the public interest to do so, proceed and render an advisory opinion.
iv.
Where a reference has been made to the court the subject matter of which is also pending in a lower court, the court may nonetheless render an advisory opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an advisory opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through an adversarial court process…
The foregoing guidelines coincide with our conviction that the plain terms of the Constitution should be read in the broader context of its spirit and philosophy; and on that basis, applications seeking advisory opinion shall be resolved as necessitated by the merits of each case. in view of the practical and legal constraints attendant on advisory opinions, this court will, in principle, exercise that jurisdiction with appropriate restraint.” [Emphasis added]
31.
Similarly, in Matter of the National Gender and Equality Commission Reference No 1 of 2013 [2014] eKLR, we observed as follows:
“
However, there are certain key considerations in applying these essentials. The starting point will always be that the party must have locus standi. The court will always consider whether the party seeking to move it, falls within the categories of parties decreed by the Constitution. The court will then proceed to consider the subject-matter: whether it is one involving County Government. Once it rules in the affirmative, the other considerations come into play.” [Emphasis added]
32.
Flowing from the above, does the reference herein meet the above criteria to enable the court to exercise its advisory opinion jurisdiction? We begin by noting that it is not in dispute that the AG has the locus standi to request an advisory opinion by dint of the provisions of article 156 of the Constitution that creates his office and the powers bestowed to that office. However, Hon Karua contests the court’s jurisdiction to render an advisory opinion in the matter on the ground that it does not concern a county government. From the record and the affidavit of Kennedy Ogeto, filed in support of the Reference, the genesis of this matter can be traced to the gubernatorial election in Kirinyaga County where Hon. Karua challenged the result that was declared against her. Even if the court were to look at the matter through the narrow prism of the dispute that gave rise to the advisory opinion, as it will become more apparent in the analysis here below, it has a bearing on the county government of Kirinyaga.
33.
In the Matter of the Speaker of the Senate & another SC Reference No 2 of 2013 [2013] eKLR this court observed thus:
“
It emerges that a matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other.” [Our Emphasis]
34.
Article 180 of the Constitution contemplates the election of a county governor who is to be directly elected by the voters in the county. In interrogating whether the matter is one concerning a county government, this court is therefore invited to look into the obtaining facts alongside the provisions of the Constitution and statute law or perception of the court. Our reading of article 180 of the Constitution and the decisions of the court cited above directly point to the fact that, the matter involves a county government.
35.
We say so because, Hon Karua participated in the gubernatorial elections by dint of article 180 of the Constitution which expressly provides for election of a county governor. Having lost the election, she approached the High Court challenging the election result as declared. The matter rose through the appropriate appellate mechanism to reach this court where we pronounced ourselves accordingly. It is therefore this court’s judgment, arising out of that gubernatorial election, that Hon Karua sought to challenge, and successfully so, at the EACJ in Reference No 20 of 2019; Hon. Martha Wangari Karua v Attorney General of the Republic of Kenya, which forms the substance of the reference herein. It follows that the real substratum of the dispute remains the gubernatorial contest that was concluded at this court and was then reopened at the EACJ albeit under that court’s mandate and so, the real issue before us is whether the fact that the matter ended up at EACJ removes the county element from it.
36.
In that regard, we have perused the judgments of both the first instance and appellate divisions of the EACJ and note that both comprehensively acknowledged that the genesis of the matter before them was the gubernatorial dispute-see Paras 37 and 38 of the judgment of the first instance division and Paras 5-17 of the judgment of the appellate division. The judgment of this court on the same subject was also the focus of both EACJ judgments. On the other hand, the present Reference is also questioning the EACJ’s mandate over a dispute arising from the Kirinyaga gubernatorial election and any other matter concluded by this court but which has or may then be subjected to a merit review by the EACJ. To argue, as Hon Karua has done, that the said Kirinyaga gubernatorial election dispute is not an issue before us in this Reference is not borne out by the facts in both the EACJ Reference and the one now before us. Her pleadings before the EACJ confirm that fact as well.
37.
As a consequence, it is our considered opinion that the reference was triggered by the disputed gubernatorial election results of Kirinyaga County following the 2017 general election and the main question before us is whether such a dispute, once determined finally by this court, can be subjected to a merit review by the EACJ. In answering that question, we shall not refer to the merit or otherwise of the EACJ decisions nor to the execution thereof but shall limit ourselves to the wider question of merit review triggered by the said dispute. The question before us remains: should all disputes arising from an election to a position in a county government trigger a merit review at the EACJ once determined by the apex court? The other issues raised by the AG are collateral but related in a wider context to that core question and which concerns a county government. It must be answered by this court.
38.
In addition to the above, this court has also been categorical that it will not exercise its discretion to render an advisory opinion where the matter in respect of which the reference has been sought is subject to proceedings in a lower court. We note that the questions raised for our determination by the AG have not been subjected to any litigation or are pending determination in any lower court within Kenya. The pending matters before the EACJ are not of concern to us even if arising from our final decisions. Furthermore, this court exercises its mandate as provided for under the Constitution while EACJ exercises its mandate under the EAC Treaty. The EACJ is not part of the hierarchy of courts in Kenya and therefore, the court cannot fail to issue an advisory opinion regarding matters pending or concluded at the EACJ, because of the difference in jurisdiction and authority. Hon Karua’s argument that this court should not proffer an advisory opinion on matters pending litigation or concluded litigation at the EACJ must therefore fail.
39.
We also note that the issues raised by the AG in the reference constitute matters of great public importance as they concern the question whether the decisions of this court can be subject to merit review by a regional or international court given the finality of the decisions of the court as Kenya’s apex court under the Constitution. The matters in question as demonstrated in the foregoing paragraphs cannot also be settled through ordinary litigation, and therefore, an advisory opinion represents an avenue for clarification of the issues raised by the AG.
40.
Given the above findings, it is our considered opinion that the reference meets the guidelines for the court to exercise its advisory opinion jurisdiction, and the preliminary objection by Hon Karua is overruled.
ii. Whether the advisory opinion is premature for want of the Attorney General’s prior advice
41.
It was Hon Karua’s contention that the application for an advisory opinion was premature without the AG’s prior legal opinion and that there was no evidence that the national government sought or the AG did issue a legal opinion on the issue before invoking this court’s advisory jurisdiction.
42.
Article 156(4)(a) of the Constitution provides that the AG is the principal legal advisor of the Government. This court affirmed this position in Re IIEC, supra where we stated:
“…By article 156(4) … of the Constitution, the Attorney General is designated the principal [legal] advisor of the Government …. It can be said that the Attorney-General bears the mantle of the “chief lawperson” of Government in its diverse dimensions. The various departments [and levels] of the Government have the liberty to seek the Attorney-General’s opinion on any legal question of relevance to their day-to-day operations.” [Emphasis added]
43.
Furthermore, article 156(4)(b) of the Constitution states that the AG shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.
44.
Additionally, rule 53 of the Supreme Court Rules, 2020 provides as follows:
(1)
“The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if –
…
(c)
the matter in respect of which the reference is made can, in the opinion of the court, be resolved by the advice of the Attorney–General, and such advice has not been sought”. [Emphasis added]
45.
Taking the above provisions into consideration, it is our considered view that the AG filed this reference pursuant to the authority granted to his office under article 156(4)(a) and (b) of the Constitution. In line with rule 53 of the Supreme Court, Rules 2020, and our reasoning in Re IIEC (supra) it is absurd to require the office of the AG to seek a legal opinion from itself. If it had the capacity to resolve the matter on its own then it would have advised the national government expressly and not invoked this court’s advisory opinion jurisdiction.
46.
Furthermore, in the Matter of Speaker, County Assembly of Siaya County, Reference No 4 of 2017 [2020] eKLR and Matter of the National Gender and Equality Commission, Reference No 1 of 2013; [2014] eKLR, we stated that it is not a matter of law to seek the AG’s opinion as follows:
“Though there is no mandatory requirement to first seek the Attorney-General’s opinion, this court has held that, as a matter of good practice, such opinion should be sought…
Consequently, as a matter of due process, we would restate that the applicant, same as other government institutions and agents, should adopt the practice of resorting to the office of the Attorney-General first.” [Our Emphasis]
47.
Also, in the Matter of the County Government of Nairobi vs Attorney General, (Reference 1 (E001) of 2021) [2023] KESC 65 (KLR) we held that:
“
(35)
Flowing from the above, we see no reason to derogate from this court’s rules and set procedure, as well as settled legal standards. We, therefore, restate that, as a matter of good practice and anchored on rule 53 aforesaid, such opinion should be sought. We further reaffirm that in line with rule 53(1)(c), we may, after allowing the parties a chance to be heard, reject a reference in whole or in part, if the matter in respect of which the reference is made, can in our opinion be resolved by the advice of the Attorney General if such advice has not been sought.” [Our Emphasis]
48.
Based on the foregoing, we reaffirm that as a matter of good practice, the AG’s opinion should be sought before a dissatisfied party can seek an advisory opinion from this court. However, in this particular case, we reiterate that the office of the AG cannot be expected to seek an opinion from itself. In addition, as the principal government legal advisor, if the AG had the capacity, he would have advised the government without seeking an advisory opinion from the court. Consequently, we find that the reference is not premature for lack of the AG’s report on what advice it should have given the national government.
49.
Having found that the questions raised in the reference meet the guidelines for this court to render an advisory opinion in line with the guidelines set in Re IIEC (supra) and that the Reference is not premature for failure to seek the AG’s report, we hereby find that this court should exercise its jurisdiction and render an advisory opinion as requested. Hon Karua’s preliminary objection on that issue is similarly overruled.
iii. Whether the decisions of the Supreme Court on the interpretation of Kenyan law can be subject to a merit review by the East African Court of Justice and what is the effect of such a decision?
50.
The AG maintained that, while article 33(2) of the EAC Treaty stipulates that the decisions of EACJ in the application of the Treaty will take precedence over decisions of national courts on similar matters, there is no explicit provision within the Treaty granting EACJ jurisdiction to interpret the substance of national laws of partner states so as to reach divergent positions of law from what has been declared by the apex courts of partner states. He further contended that the EACJ, in a number of decisions, has interpreted its jurisdiction to include merit review of the interpretation of partner states’ apex courts on the substance of their Constitutions.
51.
The above issue portends no difficulty for us at all and in that regard, we note that, under article 2(1) of the Constitution, the Constitution is the supreme law of Kenya and that under article 163(7), Supreme Court decisions are binding on all courts in Kenya and there is no dispute that such decisions are final and are not subject to further appeal. However, in exercise of its mandate under the Constitution, the court, like other organs of the State, is alive to the supremacy of the Constitution, and at all times exercises this mandate in accordance with among others, the principle of the rule of law which is a fundamental principle under the said Constitution.
52.
We also note that, article 2(5) of the Constitution provides that the general rules of international law shall form part of the law of Kenya while article 2(6) of the Constitution stipulates that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. The EAC Treaty therefore is part of the Kenyan laws that must be subservient to the Constitution and if there is any conflict regarding the hierarchy of the Kenyan courts and the courts created by the Treaty, the provisions of the Constitution take precedence over those of the Treaty.
53.
In addressing that issue, this court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) stated as follows:
“
Articles 2(5) and (6) is inward looking in that, it requires Kenyan Courts of law, to apply international law (both customary and treaty law) in resolving disputes before them, as long as the same are relevant, and not in conflict with, the Constitution, local statutes, or a final judicial pronouncement”. [Emphasis added]
54.
Therefore, based on the provisions of article 2(6) and the reasoning adopted in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (supra) we emphasize that international law, including treaty law, applies in Kenya and by extension to the organs of the state as long as the same are not in conflict with the Constitution, local statutes, and final judicial pronouncements. This connotes that the Constitution embodies the primacy of domestic laws and the subsidiarity of international laws. The principle of subsidiarity respects national sovereignty by recognizing that each state retains the ultimate authority over matters occurring within its territory, because in the case of Kenya, article 1 of the Constitution declares that “All sovereign power belongs to the people of Kenya” power to be exercised only in accordance with the Constitution.
55.
This was also the position adopted by the European Court of Human Rights in the case of Handyside v United Kingdom, Application No. 5493/72 where, in the context of human rights, it held as follows:
“
The court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no 6, p 35, para 10 in fine)…
Consequently, article 10 para 2 (art 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.” [Emphasis added]
56.
In appreciating the above position, we reiterate that the Constitution of Kenya is the supreme law of the land. International law reigns supreme on the international sphere. The same is to be said of municipal law within the domestic sphere. While we are cognizant of the time hallowed international law doctrine to the effect that a state party shall not invoke its domestic law to abdicate from its international obligations, we see nothing in the Treaty establishing the East African Community, that confers upon the EACJ, appellate jurisdiction over the member state apex courts’ judgments. A state’s electoral laws and procedures fall squarely within the municipal competency of its courts. It is juridically inconceivable that a regional tribunal, established by a regional Treaty, whose objectives are clearly decreed as in the EAC Treaty, can arrogate to itself an appellate jurisdiction, in matters involving the interpretation of a member state’s Constitution by its own courts. Judicial supra-nationality in a regional or international community is a precept that must be categorically provided in a Treaty to which states have signified their consent.
57.
Moreover, the Constitution positions the Supreme Court as the apex court and a court of final judicial authority under article 163 (7). The role and standing of this court as a court of final judicial authority is further elaborated under section 3 of the Supreme Court Act, 2011 which provides that:
“
The object of this Act is to make further provision with respect to the operation of the Supreme Court as a court of final judicial authority to, among other things –
a.
assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
b.
provide authoritative and impartial interpretation of the Constitution.” [Our Emphasis]
58.
This Court in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, SC Petition No 6 of 2015 [2017] eKLR similarly asserted:
“The Supreme Court is the final court in the land. But most importantly, it is a final Court of Justice.” [Emphasis added]
59.
Accordingly, we restate the binding and firm principle that, the Constitution places the Supreme Court as the apex court and a court of final judicial authority with the mandate to assert the supremacy of the Constitution and the sovereignty of the people of Kenya.
60.
Further, as alluded to above, the Constitution also envisions a situation where international law (treaty and customary law) to which Kenya is a party is subject to the Constitution within the domestic sphere. Therefore, if any provision of a treaty conflicts with the Constitution, the provision of the Constitution prevails because the Constitution is the supreme law of the Republic of Kenya and binds all persons and all State organs and;
“
Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”. [Our Emphasis]
61.
In that context and relevant to this Reference, Kenya ratified the EAC Treaty on November 30, 1999 and the Treaty came into force on July 7, 2000. Therefore, by dint of article 2(6), it became part of the laws of Kenya subject to the Constitution.
62.
The EAC Treaty establishes its judicial enforcement mechanism, the EACJ, at article 9. The role of EACJ is elaborated in article 23 of the EAC Treaty as the judicial organ to ensure the adherence to law in the interpretation and application of and compliance with the Treaty.
63.
The jurisdiction of EACJ is further elucidated at article 27 of the Treaty. In particular, article 27(1) provides that:
“
The court shall initially have jurisdiction over the interpretation and application of this Treaty.
Provided that the court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of partner states”.
64.
As evidenced by the above provision, EACJ is specifically mandated to interpret and apply the provisions of the EAC Treaty and is expressly prohibited from interpreting national laws of partners states outside the purview of the Treaty because national laws are beyond its jurisdiction. This is because national courts are mandated by national laws to adjudicate claims according to national law, culture, and customs. National courts are in the same vein not vested with jurisdiction to deal with the interpretation or application of the EAC Treaty.
65.
The question whether international courts should embrace a non-intrusive standard of review has been the subject of judicial pronouncements in other realms. Grappling with this question, the European Court of Human Rights developed the margin of appreciation doctrine to aid it in determining the standard of review in disputes against States. The margin of appreciation means that a member state or its organs are permitted a degree of discretion, subject to the court’s supervision when it takes legislative, administrative, or judicial action in the area of a European Convention of Human Rights.
66.
The margin of appreciation doctrine also permits that court to take into account the fact that, the Convention might be interpreted differently in member states given the differing legal and cultural traditions. It is also premised on the idea that so long as a State’s action does not violate a certain minimum threshold of protection, the court will respect the State’s determination that the action complies with the European Convention on Human Rights even if the court might have come to a different conclusion itself, faced with the issue de novo.
67.
The margin of appreciation doctrine is furthermore predicated on the notion that the European Convention on Human Rights’ protection is secondary or subsidiary to the protection provided by the contracting State. In appreciating the margin of appreciation granted to domestic courts in interpreting the domestic laws and vis-a-vis the Convention, the European Court of Human Rights in Goodwin v UK (2002) 35 EHRR 447 therefore observed as follows:
“
In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation.” [Emphasis added]
68.
The Inter-American Court of Human Rights has also exercised restraint and deference on the issue of the standard of review of domestic court’s decisions. In the case of Genie Lacayo v Nicaragua, 1997 Inter-Am Ct HR (ser C) No 30, 94 (Jan 29, 1997) for example, it expressed itself as follows:
“…in accordance with general international law, the Inter- American Court does not act as an appellate court or a court for judicial review of rulings handed down by the domestic courts. All it is empowered to do in this case is call attention to the procedural violations of the rights enshrined in the Convention which have injured Mr Raymond GeniePeñalba, the interested party in the matter; however, it lacks jurisdiction to remedy those violations in the domestic arena, a task, as has been pointed out before, that falls to the Supreme Court of Justice of Nicaragua when it disposes of the application for judicial review which is yet to be resolved.” [Emphasis added]
69.
Similarly, the ECOWAS court in Moussa Leo Keita v Republic of Mali ECW/CCJ/APP/03/07, held that:
“
Unlike other international courts of justice, such as the European Court of Human Rights, ECOWAS, does not possess, among others, the competence to revise decisions made by the domestic courts of Member States; it is neither a court of appeal nor a court of cassation (cour de cassation) vis-a-vis the national courts”. [Our Emphasis]
70.
As regards the right to a fair hearing resulting from an election dispute, the ECOWAS court in Jerry Ugokwe v Nigeria, ECW/CCJ/JUD/03/05 held as follows:
“Appealing against the decision of the National Court of Member States does not form part of the powers of the Court; the distinctive feature of the Community legal order of ECOWAS is that it sets forth a judicial monism of first and last resort in Community law. And, if the obligation to implement the decision of the Community Court of Justice lies with the national courts of Member States, the kind of relationship existing between the Community Court and these national courts of Member States are not of a vertical nature between the Community and the Member States but demands an integrated Community legal order. The ECOWAS Court of Justice is not a Court of Appeal or a Court of Cassation.” [Our Emphasis]
71.
This position was also adopted by EACJ itself in several of its decisions. In Dr Mpozayo Christophe v The Attorney General of the Republic of Rwanda Reference 10 of 2014 for example, it cited with approval the case of Ida Robinson Smith Putnam (USA) v United Mexican States,1927, UNRIAA, vol IV, p, 151 at 153 where it was held as follows:
“
The Commission, following well-established international precedents, has already asserted the respect that is due to the decisions of the highest courts of a civilized country. A question which has been passed on in courts of different jurisdiction by the local judges, subject to protective proceedings, must be presumed to have been fairly determined.”
72.
Furthermore, in Honourable Sitenda Sebalu vs The Secretary General of the EAC & 3 Others Reference No 1 of 2010 the EACJ itself expressed as follows:
“
In the circumstances, it is this court’s finding that article 27 of the Treaty does not confer appellate jurisdiction on the EACJ over the decision of the Supreme Court of Uganda in Election Petition appeal No 6 of 2009, Hon Sitaenda Sebalu v Hon Sam K Njuba & Electoral Commission of Uganda.”
73.
The EACJ as a regional court is no different from the European Court of Justice, the Inter-American Court of Human Rights, the European Court of Human Rights and the ECOWAS Court and the elucidation of the law as restated above is most persuasive to us as we address the matter at hand. And as evidenced above, regional courts across the world have exercised restraint and deference giving partner states a wide margin of appreciation when reviewing decisions of the latter more so of apex courts like this one. The jurisprudence emerging from the above decisions is also that, the hierarchical relationship between regional/international courts and national courts is not of a vertical nature. This means that EACJ cannot exercise appellate jurisdiction over decisions of national courts of member States, a fact acknowledged by the EACJ in Honourable Sitenda Sebalu vs The Secretary General of the EAC & 3 Others (supra). This was also the position of this Court, in Peter Odiwuor Ngoge t/a OP Ngoge & Associates vs Josephine Akoth Onyango & 5 Others, SC Petition No 18 of 2015 where we observed that:
“
…the jurisdiction of the East African Court of Justice is found in article 27 of the Treaty for the Establishment of the East Africa Community. That jurisdiction does not confer on that court any appellate mandate as regards decisions of this court”. [Our Emphasis]
74.
Furthermore, it is obvious to us that, what international/regional courts are empowered to do, is to conduct procedural reviews on decisions of the national courts and call attention to violations only but in line with the mandate conferred by their parent Treaty or Convention and not national laws. Therefore, in accordance with the EAC Treaty, EACJ’s mandate is the interpretation and application of the EAC Treaty only and, we hold and find that the EACJ does not have appellate jurisdiction or merit review jurisdiction over decisions of the Supreme Court of Kenya in matters concerning the interpretation and application of the Constitution of Kenya or any other matter arising from the latter’s decisions. the Constitution envisages the Supreme Court as the final judicial authority in asserting the supremacy of the Constitution and the sovereignty of the people of Kenya would be undermined if the converse situation were to apply. It should however be noted that mere disagreement with the interpretation that domestic courts have made of pertinent legal provisions does not constitute violations of the EAC Treaty. Interpretation of the Constitution or national laws, and weighing of evidence is the mandate of domestic courts, which cannot be replaced by the EACJ in that regard.
75.
In addition, it should be noted that regional and international courts such as the EACJ are, by Treaty or Convention, granted the mandate to examine how State organs satisfy regional or international obligations of the State to interpret and apply national laws save in the manner expressed above. Such courts should only act as agencies and tools for strengthening of local conditions, including democracy and the rule of law but not as substitutes of State organs.
76.
On the effect of a decision amounting to a merit review by the EACJ of a decision by a final national court such as this one, such a decision would be of no legal consequence. EAC Treaty has acknowledged this position in article 9(4) which provides that the organs of the EAC shall act only and perform such functions as are conferred on them by or under the provisions of the EAC Treaty. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/21/eng@2024-05-31 |
Application E003 of 2024 | Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited (Application E003 of 2024) [2024] KESC 20 (KLR) (31 May 2024) (Ruling) | Ruling | Supreme court | Supreme court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 31 May 2024 | 2,024 | Nairobi | Civil | Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited | [2024] KESC 20 (KLR) | null | Upon reading the notice of motion by the Applicant dated 1st February 2024 and filed on 5th February 2024 pursuant to Articles 25(c), 50(1) and 163(5) of the Constitution, Sections 3(e), 3A, 15A, 23A and 23(2A)(b) of the Supreme Court Act and Rule 15(2) of the Supreme Court Rules 2020 for orders that this Court be pleased to; grant leave for the extension of time to the applicant to apply for review of the Ruling by the Court of Appeal in Civil Application No.E053 of 2023; grant the applicant leave to file and serve the draft Originating Motion; and grant a stay of proceedings in SC Petition No. E001 of 2024 (the appeal herein) pending the hearing and determination of the instant application and the Originating Motion; and
2.
Upon reading the applicant’s supporting affidavit sworn on 1st February 2024 by Maryanne Mwihaki Wanyoike, the Ag. Chief Legal Officer of the applicant; and the applicant’s submissions dated 16th February 2024 to the effect that: the respondent filed an Originating Motion dated 30th June 2023 at the Court of Appeal seeking that its appeal be certified as raising matters of general public importance and for grant of leave to appeal to the Supreme Court; the applicant was never served with any hearing notice; on 9th October 2023, the hearing of the Motion proceeded ex parte; subsequently, on 15th December 2023, the Court of Appeal delivered its ruling allowing the Motion thereby granting the respondent leave to appeal to the Supreme Court; the applicant only became aware of the ruling when it came across it on the court e-filing portal; consequently, the applicant filed an application dated 21st December 2023 in the Court of Appeal seeking a review of the impugned ruling on grounds that the requisite hearing notice informing the applicant of the hearing had been sent to the wrong email address by the Court of Appeal registry at Nakuru, an admitted inadvertent error by the court; while the applicant was waiting for the Court of Appeal to review its decision, on 15th January 2024, the respondent filed SC Petition No. E001 of 2024 before this Court; and
3.
Further, the applicant advances as the reason for the delay the fact that it opted to exhaust all the available remedies before the Court of Appeal by filing the application for review, so as not to abuse the court process; that the applicant has brought this application without undue delay after it realized that the respondent had filed its appeal before this Court; that as a result, the appeal before this Court automatically renders the application for review before the Court of Appeal idle as it has been overtaken by events; that there will be no prejudice suffered by the respondent if an extension of time is granted and if the applicant is allowed to apply for a review of the impugned ruling as the respondent’s appeal is already on record; that conversely, the applicant will suffer prejudice as it would be condemned unheard since it was precluded from presenting and addressing pivotal issues in the Motion for certification; that further, if the proceedings in SC Petition No. E001 of 2024 before this Court are not stayed, this application will be rendered nugatory; finally, that the applicant has satisfied the principles for the grant of an order for extension of time as enunciated in the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR; and
4.
Upon considering the respondent’s replying affidavit sworn by Geoffrey Makana Asanyo, the respondent's Managing Director, on 27th February 2024 and its submissions dated 4th March 2024 to the effect that: upon the respondent filing its Motion before the Court of Appeal for certification, the court issued directions, receipt of which the applicant acknowledged and pursuant thereto filed its replying affidavit which it served upon the respondent on 18th July 2023; thereafter the applicant failed to file its written submissions in respect of the Motion; subsequently on 23rd August 2023, the court served a hearing notice for the Motion on 9th October 2023; on the said hearing date, after being satisfied that the applicant was properly served with the hearing notice, the court proceeded to hear the Motion in the absence of the applicant; being cognizant of the applicant’s replying affidavit on record, the court rendered its ruling on 15th December 2023 allowing the Motion having duly considered the response; and
5.
Noting, the respondent’s argument that if indeed the applicant was not served with a hearing notice as alleged, its recourse would have been to apply for the re-hearing of the Motion in terms of Rule 58(3) of the Court of Appeal Rules by satisfying the court that there were sufficient reasons for his absence when the application was called out for hearing; that the applicant ought to have made its application for review within 14 days of the delivery of the ruling as provided for by Rule 33(2) of the Supreme Court Rules; that the applicant has not explained why it took 19 days to file physical copies of the application contrary to Rule 12 of the Supreme Court Rules; and that the reasons for delay are not satisfactory, hence this application has been brought after unreasonable delay; and
6.
Upon further consideration of the respondent’s submissions that it will be prejudicial to it if this application is granted, considering that the Court of Appeal set aside the award of Kshs. 71,965, 138.70 being rent from 1st February 2021 to 30th April 2022; that an order of stay is not feasible in the circumstances of the case, since the appeal has already been filed and the applicant filed its response; and that the issues which the applicant intends to raise in its intended Originating Motion have been raised in that response; and that it should follow that the prudent course should be to proceed with the hearing of the appeal where all the issues can conclusively be determined to save on judicial time; and
7.
Upon reading the applicant’s further affidavit sworn on 6th March 2024 by Richard Wokabi Kariuki, its Chief Legal Officer, in response to the respondent’s replying affidavit where it is deposed that the applicant was not invited and/or informed of the case management conference and since the applicant was subsequently not aware of the hearing, it did not file its written submissions; and | 8.
Having considered the application, affidavits and rival arguments by both parties we now therefore opine as follows:
i.
This Court by the provisions of Rule 15(5) of the Supreme Court Rules, 2020, has jurisdiction to extend the time limited by the Rules or by an order of this Court.
ii.
The guiding principles for the grant of this relief are enunciated in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR as follows: that extension of time is an equitable remedy available to a deserving party at the court’s discretion on a case to case basis; that a party seeking extension of time has the burden of laying a basis to the satisfaction of the court; that where there is a reason for delay, it must be explained to the satisfaction of the court; that there should be no prejudice suffered by the respondent if the extension is granted; that the application must be brought without undue delay; and that in certain instances, public interest should be a consideration for extending time.
iii.
Before applying these principles to the instant case, we note that the applicant’s application for review dated 21st December 2023 is still pending hearing and determination in the Court of Appeal.
iv.
Contemporaneously, the applicant went ahead and filed the instant application before this Court seeking extension of time and leave to file an Originating Motion for the review of the very same impugned ruling. With this in mind, can the applicant’s submission that it filed the application for review in the Court of Appeal so as not to abuse the process of the court, be taken seriously? What it has done indeed amounts to an abuse of the judicial process; seeking similar reliefs, namely the review of the ruling on certification, simultaneously before two different levels of court. The applicant is trying to have its cake and eat it too. Although the applicant has deposed in the aforesaid further affidavit that it has filed a Notice of Withdrawal dated 26th January 2024, there is no evidence by way of an Order of the Court of Appeal, that the application for review has formally been withdrawn. The result is that, presently there are two applications for review before this Court and the Court of Appeal.
v.
To avoid embarrassment of this Court and the Court of Appeal, good order demands that the application pending before the Court of Appeal is first dispensed with one way or another.
vi.
The procedural missteps above notwithstanding, on the merit too, we are not persuaded that the applicant deserves the relief of extension of time, as the test for the grant enunciated in Nicholas Kiptoo Arap Korir Salat (supra) has not been met. For example, the applicant has not laid a proper basis for the grant of the application; the reason for the delay is not only absurd but also unpersuasive, in addition to the likely prejudice that the respondent may be exposed to if time is extended, in view of the fact that the appeal has been lodged and responded to.
vii.
The applicant’s grievance which it intends to raise in the intended Originating Motion is similar to what it has raised in response to the appeal before this Court, SC Petition No. E001 of 2024.
viii.
For these reasons, we need not address ourselves to the rest of the prayers sought and dismiss this application in its entirety.
ix.
As costs are discretionary and follow the event, the applicant shall bear the costs of this application.
9.
Accordingly, we make the following orders:
i.
The Applicant’s Notice of Motion dated 1st February 2024, be and is hereby dismissed.
ii.
The Applicant shall bear the costs of this application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/20/eng@2024-05-31 |
Application E011 of 2023 | Kaluma v NGO Coordination Board & 5 others (Application E011 of 2023) [2024] KESC 22 (KLR) (31 May 2024) (Ruling) | Ruling | Supreme court | Supreme court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 31 May 2024 | 2,024 | Nairobi | Civil | Kaluma v NGO Coordination Board & 5 others | [2024] KESC 22 (KLR) | null | Upon perusing the Notice of Motion application dated 10th January 2024 and filed on 15th January 2024, brought under Article 159(2) of the Constitution and Rule 15(2) of the Supreme Court Rules, 2020, the Applicant seeks the following orders:
a.
Spent.
b.
The Court be pleased to extend the time for filing a reference against the taxation decision vide the ruling dated 6th November, 2023, in terms of the draft reference annexed hereto.
c.
The draft reference application be deemed as duly filed upon payment of requisite court fees.
d.
Costs of the application be awarded to the Applicant.
2.
Upon perusing the grounds on the face of the application and the affidavit in support sworn by the Applicant on 10th January 2024 and the submissions dated 10th January 2024; to the effect that the Deputy Registrar assessed costs at KShs.200,000/= and condemned the Applicant to pay the 2nd respondent’s costs; the Applicant was not served with a Ruling Notice; he found out about the ruling when the 2nd Respondent’s counsel texted him demanding the sum of Kshs.500,000/=; the statutory 7 days’ timelines for filing a reference lapsed on 14th November 2023; there was need to extend the time limit to allow the applicant challenge the subject ruling; in support of the application, the applicant relied on the cases of Kenya Railways Corporation & 2 Others vs Okiya Omtatah Okoiti & 2 Others, SC Petition No. 13 of 2020 (as consolidated with Petition No. 18 of 2020); William Olotch vs Pan African Insurance Limited, Civil Application No. 14 of 2020; and Muthuuri & 4 Others v Attorney General & 2 Others, SC Petition (Application) No. 15 (E022) of 2021); and
3.
Noting that the application is unopposed; | Having considered the application, we now opine as follows:
i.
This Court, by the provisions of Rule 15(2) of the Supreme Court Rules, 2020, has the discretion to extend the time limited by the rules or by any of its decisions.
ii.
In addition, this Court laid down the principles for extension of time in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014; [2014] eKLR. They are:
a.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.
b.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.
c.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.
d.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court.
e.
Whether there will be any prejudice suffered by the respondents if the extension is granted.
f.
Whether the application has been brought without undue delay.
g.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
(iii)
The Applicant alleges that he was not served with the ruling notice. He alleges that he only became aware of the ruling and the contents thereof when the 2nd respondent’s counsel reached out to him. We have taken the liberty of perusing the record. We note that an email containing the ruling was indeed sent on 6th November 2023 at 1719 hours to xxxx.com through this Court’s email address [email protected] . Furthermore, we note that there have been numerous correspondences from the Court through the email address [email protected] to the applicant and vice versa. Notably, there was correspondence from the Court on 12th September, 2023 and 6th November, 2023 to the applicant via his email address xxxx.com . There has also been communication through this Court’s email address [email protected] to the applicant’s email address xxxx.com on various dates being 25th March, 2023, 27th March, 2023, 4th April, 2023, 6th September, 2023, 29th September 2023, 23rd October, 2023, 25th January, 2024, 12th February, 2024, 16th February, 2024 and 19th February 2024. Notably, the applicant himself sent an email through his email address xxxx.com to the Court’s email address [email protected] on 25th January 2024 at 1.22 p.m. where he acknowledged receipt of the Court’s directions and undertook to serve the other parties. This email was in response to the Court’s email sent on 24th January 2024 at 11.02 a.m. through [email protected] to the applicant through his email address xxxx.com.
iv.
It is also noteworthy that in the applicant’s notice of address of service dated 9th March 2023, he indicated his email address as xxxx.com. From the record, there is no indication that the email address was subsequently changed.
iv.
There is therefore no doubt in our minds that the email address in question belongs to the applicant. We therefore come to the irresistible conclusion that the applicant was indeed aware and was served with the impugned ruling.
v.
It therefore follows that the applicant has not provided a good reason for not challenging the Deputy Registrar’s ruling within the statutory timelines. Further, the applicant has not met any of the conditions to convince this Court to exercise its discretion in his favour.
5.
In the circumstances, the application is for dismissal. In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we make no order as to costs as the application was not challenged by any of the respondents. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/22/eng@2024-05-31 |
Petition E020 of 2023 | Kombe v Karisa & 3 others (Petition E020 of 2023) [2024] KESC 25 (KLR) (31 May 2024) (Judgment) | Judgement | Supreme court | Supreme court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 31 May 2024 | 2,024 | Nairobi | Election Petition | Kombe v Karisa & 3 others | [2024] KESC 25 (KLR) | null | A. Introduction
1.
This appeal arises from the judgment of the Court of Appeal upholding the determination of the High Court that the declaration by the 2nd and 3rd respondents of the appellant as the duly elected Member of National Assembly for Magarini Constituency in the general elections of August 9, 2022 was invalid as the election was not conducted in accordance with the Constitution and the law. The appeal presents three main questions for our determination; whether this court is clothed with jurisdiction to entertain the appeal; whether the Court of Appeal, in affirming the decision of the High Court misinterpreted section 83 of the Elections Act; and whether the Court of Appeal misapplied the standard and burden of proof.
2.
In the course of the court’s consideration of these questions, it will be inevitable to examine, to the extent relevant to this appeal, certain operative principles of electoral law. In that regard, it is a constitutional right of every citizen to participate and freely express their will in a free and fair election based on universal suffrage through secret ballot. Free and fair elections ensure that the outcome reflects the genuine preferences of the electorate, only if the elections are transparent, free from violence, intimidation, improper influence, or corruption; and if they are administered in an impartial, neutral, efficient, accurate, and accountable manner. A transparent election allows the citizens to observe and scrutinize every stage of the electoral process, fosters trust in the integrity of the process, and eliminates fraud or manipulation. At the same time, such a process enhances accountability and engenders public trust.
3.
The 2nd respondent and its officials must in every election ensure that the system they adopt is simple, accurate, verifiable, secure, accountable, and transparent; that the votes cast are counted, tabulated and the results announced promptly at each polling station; and that those results are openly and accurately collated and promptly announced by the returning officer.
B. Background
4.
The appellant, the 1st and 4th respondents, were amongst other candidates who contested for the seat of Member of National Assembly, Magarini Constituency, Kilifi County in the general elections held on August 9, 2022, in which by a narrow margin of only 21 votes, the appellant was declared the duly elected Member of the National Assembly for Magarini Constituency with 11,946 votes ahead of his closest contender, the 1st respondent’s 11,925 votes. As would naturally be expected in such circumstances, the 1st respondent petitioned the High Court challenging the outcome and declaration contending that there were grave errors, flaws, fraud, illegalities, and irregularities committed by the 2nd and 3rd respondents; and that the overall effect of these errors was that the exercise failed to secure a free, fair, and credible election and subdued the will of the people of Magarini Constituency. | F. Analysis and Determination
i. Whether this court has jurisdiction to entertain the appeal
54.
The 1st respondent's argument under this ground is that the appeal does not meet the threshold of article 163(4)(a) of the Constitution. Though we heard arguments on the appeal, as a matter of practice, this court before considering the merits of arguments in any appeal before it, must first ascertain if it has been properly moved. This is because, as Nyarangi, JA famously said in his statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. In Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR, this court added that jurisdiction of a court can only flow from the Constitution and the applicable statutes.
55.
By defining in specific terms the jurisdiction of the Supreme Court in article 163(4), the Constitution itself makes it clear that the court must not treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process. It is equally important to stress that not every grievance from the decision of the Court of Appeal lies to the Supreme Court. An appeal from the decision of the Court of Appeal must therefore meet the test under article 163(4)(a) and (b) of the Constitution, which has been the subject of numerous pronouncements by the court.
56.
Whether or not the jurisdiction under article 163(4) has been properly invoked will depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed, or the decision of the Court of Appeal being appealed against, or in some instances, all four instances. It follows that a party relying on article 163(4)(a), like in the present case, must demonstrate that the grievance he has presented, concerns the application or interpretation of the Constitution. It is not the mere statement in the pleadings or submissions by a party that the appeal involves constitutional interpretation or application that clothes this court with jurisdiction.
57.
Applying these principles to the instant appeal, we must advert to the nature of the issues from which this appeal has arisen. The record of appeal copiously demonstrates that the petition filed in the High Court by the 1st respondent, who interestingly now claims that there are no constitutional questions for us to consider in this appeal, was headed, inter alia in the matter of: articles 81,86,87 and 88 of the Constitution. These provisions deal, respectively with general principles for the electoral system, voting, settlement of electoral disputes and the role of the 2nd respondent in conducting elections. The 1st respondent specifically petitioned the High Court to find that the 2nd respondent did not conduct the election in question in conformity with the Constitution and the law. He went ahead and enumerated the instances where and how he believed the constitutional violations, irregularities, and illegalities were committed.
58.
We also note that the issues isolated for determination by the learned trial judge of the High Court were, inter alia:
i.
Whether the election of the Member of the National Assembly for Magarini Constituency was conducted in accordance with the Constitution and the law.
ii.
Whether there was non-compliance with the Constitution and the law in the conduct of the elections of Magarini Constituency.
iii.
Whether there were election offences committed as alleged.
iv.
Whether the alleged irregularities affected the results of the election of the Member of the National Assembly for Magarini Constituency
v.
What order as to costs to issue.
59.
The High Court, in declaring the election of the appellant as Magarini Constituency Member of Parliament null and void, was persuaded that the 2nd and 3rd respondents failed to comply with the Constitution and the law in the conduct of the election. It held:
“
The general principle of free and fair election under article 81 is given effect by the prescriptive provisions of article 86 of the Constitution. The principle of substantial compliance must be read into the provisions of section 83 of the Election Act so that for an election to be held not to be according to the Constitution and statutory scheme of elections, there must be wanton and widespread non-compliance with such provisions as registration of voters, recruitment of polling officers, voting process, counting and tallying of the votes, among other important steps in an election process.”
60.
Ultimately, the High Court came to the conclusion that the irregularities committed by the 2nd and 3rd respondents affected the validity of the results and allowed the petition.
61.
On appeal, the appellate court identified two issues as being central to the appeal:
i.
Whether there were irregularities; and if so,
ii.
Whether such irregularities affected the results.
The appellate court, in answering the two questions, was in effect seeking to give meaning to articles 81 and 86 of the Constitution. It did so by stating as follows when dismissing the appeal:
“78.
we agree with the Learned Judge that the elections for Magarini Constituency were not conducted in accordance with the Constitution and the law and that the irregularities affected the result….”
62.
The 1st respondent has urged that the appeal is for striking out for the reason that at no stage in the trial or first appeal did the superior courts below apply or interpret articles 81 and 86 of the Constitution; that they merely made reference to them; and that all the two courts did was to interpret and apply Section 83 of the Elections Act which is not the same thing as interpreting or applying the Constitution. While not every election petition decision is appealable to the Supreme Court under article 163 (4) (a) of the Constitution, what we must decide in this judgment is whether this appeal meets the twin test; whether the appeal raises a question of constitutional interpretation and application and secondly, whether the same has been canvassed in the superior courts progressing through the normal appellate mechanisms before reaching this court by way of an appeal as contemplated under article 163(4)(a)of the Constitution.
63.
We must reiterate what we have said previously in the preceding paragraphs, that at the heart of this dispute has always been the question whether political rights guaranteed by article 38 of the Constitution for the citizens to freely express their will through the ballot were upheld in the election in question; whether the general principles for electoral system espoused in article 81 of the Constitution were adhered to; and whether there was compliance with article 86 of the Constitution that commands the 2nd respondent to ensure a simple, accurate, verifiable, secure, accountable and transparent voting system, accurate and open counting, tabulation and prompt announcement of results. Then there was the question whether the courts below properly interpreted and applied those two provisions of the Constitution as well as section 83 of the Elections Act to the facts presented by parties before them. We entertain no doubt that in their respective analysis and assessment of the evidence on record; in determining the integrity of the election, both superior courts below applied the provisions of articles 81 and 86 of the Constitution.
64.
Our position in this regard is fortified by our own earlier decision in Hassan Ali Joho and Another v. Suleiman Said Shahbal & 2 Others, SC Petition No. 10 of 2013; where we observed that:
“
Applying a principle reading of the Constitution, this court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of article 163 (4)
a.
is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court….”
65.
In any case, in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014; [2014] eKLR (Munya 1), we held that the provisions of the Election Act and the Regulations thereunder are normative derivatives of the principles embodied in articles 81 and 86. We expressed ourselves as follows:
“[77]
While we agree with Mr. Muthomi, regarding his contention that section 87 of the Elections Act cannot be equated to a constitutional provision, we must hasten to add that the Elections Act, and the regulations thereunder, are normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and that in interpreting them, a court of law cannot disengage from the Constitution.
(78)
Applying these principles to the matter at hand, we hold that this appeal, indeed, falls within the ambit of article 163(4) (a) of the Constitution.”
66.
Being of a similar view, we have no difficulty in arriving at the determination that this court is seized with jurisdiction to entertain this appeal under the provisions of article 163(4)(a) of the Constitution. We overrule the preliminary objection and declare that the appeal passes the merit test for being heard and determined here. With that determination, we now turn to the second issue which turns on the construction and interpretation of section 83 of the Elections Act in the context of the application of the Constitution to that determination and as explained above and also below.
ii. Whether the Court of Appeal misapplied and misinterpreted Section 83 of the Elections Act
67.
The appellant has faulted both superior courts for misapplying the nullification test under Section 83 of the Elections Act. What this Court must now establish, based on arguments by the parties is whether, in upholding the judgment of the High Court, the Court of Appeal misapplied and misinterpreted section 83. For context, we reproduce below the constitutional provisions under which Section 83 of the Elections Act is anchored.
68.
In the first place, article81 (e) (i) to (v) of the Constitution provides that:
“
The electoral system shall comply with the following principles…..
e.
free and fair elections, which are...
i.
by secret ballot
ii.
free from violence, intimidation, improper influence or corruption;
iii.
conducted by an independent body;
iv.
transparent; and
v.
administered in an impartial, neutral, efficient, accurate, and accountable manner.”
69.
Article 86, on the other hand enjoins the 2nd respondent to ensure that at every election —
“
(a)
whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
b.
the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
c.
the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
d.
appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials”
70.
These constitutional imperatives form the solid bedrock upon which our electoral system is built. There cannot be free and fair elections if the voting method used is not simple, accurate, transparent, or secure, and if the results are not verifiable. This is the irreducible threshold that all elections in this country must match. Any election conducted below this threshold will inevitably lead to nullification of the results.
71.
However, under section 83 of the Election Act, an election will not be nullified “for non-compliance with any written law relating to that election if it appears that—
a.
the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
b.
the non-compliance did not substantially affect the result of the election”.
72.
We have emphasized by underlining the word “and” because of the history of this provision to which we shall shortly revert. Suffice it to state at this stage that the original word in place of and was or, which accorded section 83 a disjunctive construction. The appellant has made a bold argument that both the High Court and the Court of Appeal erred in according to section 83 of the Elections Act a disjunctive and not a conjunctive interpretation; that in interpreting the said section, a petitioner must show substantial irregularities and substantial non•compliance with the law. This is how the appellant expressed his reservations about the interpretation given by superior courts below to Section 83:
“A reading of the section reveals that the drafters of that particular law recognized the possibility of certain errors and issues occurring during elections. To avoid turning elections conducted by human beings into perfection contests, they gave a leeway to the effect that faced with allegations of irregularities in an election, justice demands that the court should assess whether the said irregularities vitiated the voters' choice and resultantly affected the outcome of the election.
33.
This court has severally pronounced itself on the question of how to treat irregularities, and has maintained at all times that prudence requires that courts should assess the magnitude of the irregularities in order to gauge whether the same affected the results. Human errors and administrative lapses occasioned by human imperfection are not sufficient to nullify an election”.
73.
In the appellant’s opinion, therefore, the issues that were labeled and elevated to the level of irregularities were mere human errors that were sufficiently explained. Their minor nature, coupled with the explanation proffered was enough to uphold his victory.
74.
We have said that this argument is bold because we believe this question has traveled a well trodden path. The answer to this argument, though simple must be traced to the following historical legislative context of section 83.
75.
This court substantively considered the question of the construction to be given to section 83 aforesaid in 2017. For the reason that the section was not directly in issue in Raila 2013, the court did not render an authoritative interpretation but made only a tangential reference to it when addressing the applicable twin questions of burden and standard of proof in an election petition.
76.
However, in the 2017 Presidential Election petition (Raila 2017) which led to the nullification of that election for failing to comply with the Constitution and the applicable law pursuant to section 83 of the Elections Act, the court analyzed the operative word in the section as it stood then being “or” and held that the two limbs of section 83 of the Election Act should be applied disjunctively. So that, a petitioner who is able to satisfactorily prove either of the two limbs of the section can void an election. For example, it would suffice to demonstrate either that the conduct of the election substantially violated the principles laid down in the Constitution and the law on elections, or that, although the election was conducted substantially in accordance with the principles laid down in the Constitution and relevant laws, it was fraught with irregularities or illegalities that affected the result of the election. The majority in that case stressed in that context as follows:
“
303.
For the above reasons, we find that the 2017 presidential election was not conducted in accordance with the principles laid down in the Constitution and the written law on elections in that it was, inter alia, neither transparent nor verifiable. On that ground alone, and on the basis of the interpretation we have given to section 83 of the Elections Act, we have no choice but to nullify it.”
77.
The foregoing decision triggered the introduction in Parliament of the Election Laws Amendment Bill 2017. The intention was to amend the Elections Act, 2011, The Independent Electoral and Boundaries Commission Act 2011, and The Election Offences Act, 2016. Despite strong opposition from a section of Kenyans, the amendments sailed through the two Chambers of Parliament. However, when presented, the President neither assented to the Bill nor returned it to parliament as required by article 115(2) of the Constitution. After 14 days, the Bill became law by virtue of article 116 of the Constitution. It was published in the Kenya Gazette on November 2, 2017, effectively becoming the Election Laws Amendment Act No. 34 of 2017. It introduced a raft of very extensive changes in the management of election results, declaration of results, and annulment of election results.
78.
Of significance, the amendments introduced section 9 deleting section 83 of the Elections Act and introducing a new Section 83 whose effect was that an election cannot be voided except for failure to comply with constitutional principles and the law (and) the non-compliance substantially affected the results of the election, a conjunctive test. The word or in the original section was replaced with the word “and”.
79.
Katiba Institute, an organization whose objective was expressed to be the promotion of knowledge and understanding of Kenya’s Constitution and constitutionalism, and to defend and facilitate implementation of the Constitution, petitioned the High Court in Katiba Institute & 3 others v. Attorney General & 2 others [2018] eKLR challenging the amendments. Of relevance to the subject of this appeal, Katiba Institute applied for the declaration that the amendments were constitutionally invalid. The High Court (Mwita, J) agreed.
80.
Guided by the holding in Raila 2017, the learned judge observed as follows:
“
110.
With this holding the Supreme Court underlined one fact; that section 83 was in harmony with the 2010 Constitution and that it was different from the previous election laws. The amendment to section 83 which removed the disjunctive word ‘or’ and introduced the conjunctive word ‘and’ together with the word “substantially”, is a departure from the constitutional requirements for free, fair and transparent election and a draw back in the electoral reforms.
……
115.
The amendment now means that for an election to be annulled there must not only be failure to comply with the constitutional principles and election laws but also the failures must substantially affect the result of the election.…. It is my holding that there was no constitutional compulsion or rational in amending section 83 of the Act to remove the disjunctive word ‘or’ and introduce the conjunctive word ‘and.’’
81.
Following the High Court’s declarations in this respect, that the entire section 83 of the Elections Act 2011 was invalid, a debate raged as to the legal implications of striking down the section. This court in the Senate & 2 Others v. Council of County Governors & 8 Others, SC Petition No. 25 of 2019; [2022] KESC 7 (KLR) answered in the following passage found in paragraph 54 of the judgment:
“
(54)
Subsection (f) above was deleted by the amendment effectively removing the people’s representatives; members of the National Assembly and Senate from the County platforms envisaged by that section. We suppose this was informed by the fact that their participation had been moved to a new platform, the Board. With the deletion of (f) above, the modalities and platforms that were to be established under the section were reserved for citizen participation. Indeed, the entire PART VIII is devoted to citizen participation in counties. The effect of the court declaring the amendment unconstitutional was to restore section 91(f)” [Our emphasis].
82.
In the case before us, the provisions of section 83 ante were restored. This construction was followed and reaffirmed in Raila 2022. Today, the test to be applied in section 83 is a disjunctive one and not a conjunctive one as urged by the appellant. We do not see in what respect the courts below applied the wrong test. The Court of Appeal whose judgment is the subject of this appeal properly found that the 1st respondent needed to prove either of the two limbs. This ground must for those reasons fall.
We turn to the third and last substantive issue, where we have been asked to determine;
ii. Whether the Court of Appeal misconstrued the standard and burden of proof applicable in an election petition
83.
Again, we must observe from the onset that the twin question of the burden and standard of proof in election disputes is now settled in this jurisdiction. For example, on the burden of proof, it is established that the ordinary tenets of the law of evidence that the person who makes the allegation must have proof will apply. The entire Chapter IV (Part 1) of the Evidence Act is dedicated to the question of the burden of proof. Section 107(2) defines what constitutes a burden of proof thus:
“
2)
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
No similar definition of the meaning of the phrase “standard of proof” is provided for in the Evidence Act. However, the standard of proof simply refers to the level of cogency that the evidence should attain before the court can act in favour of the person who bears the burden of proof. It is the quantum of evidence demanded in a specific case for a party to succeed.
84.
Generally, there are two broad standards: proof beyond reasonable doubt in criminal cases and on preponderance of the evidence or balance of probabilities in civil cases. The expression “burden of proof’’ may refer to either the ‘legal burden’ or the ‘evidential burden.’ In between these standards, the courts have developed different levels of proof, depending on the specific type of case and the allegations, as we are due to explain shortly in respect of electoral disputes, which strictly speaking are not ordinary civil proceedings but sui generis. Depending on the evidence presented by the party who has brought a claim and who bears the legal burden, the evidentiary burden may in certain instances shift to the opposing party.
85.
Having established that proof of either of the two limbs under section 83 of the Election Act is sufficient to nullify an election, we must now turn to determine whether the superior courts below, in nullifying the appellant’s election properly construed the standard and burden of proof, as explained above. We reiterate that both the burden and standard of proof in election petitions are settled concepts in this jurisdiction. See Raila 2013, Raila 2017, and Raila 2022, among other judicial authorities. We restate those principles only for emphasis. Section 107 of the Evidence Act casts the burden upon the party who desires the court to give judgment as to any right or liability to provide proof that indeed those facts exist as pleaded. In Raila 2017, this court described the application of the legal and evidential burden of proof in election cases in the following words:
“
…a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged.”
86.
The court went on in the passage below to distinguish between the legal and evidential burden of proof and the circumstances under which the burden may shift to the opposite party;
“
(132)
Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.
(133)
It follows therefore that once the court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law.”
87.
Regarding the standard of proof in an election dispute, it is equally trite that in an allegation of an election offence or quasi-criminal conduct, the proof expected is one that is beyond reasonable doubt. In any other case, the standard has been set at an intermediate level, higher than the balance of probabilities but lower than beyond reasonable doubt. See Raila 2017 and Raila 2022. Applying these principles to the facts and considering the opinion of the Court of Appeal in this regard giving rise to this appeal, we declare that the legal burden rested on the 1st respondent to establish that there were violations, omissions, malpractices, irregularities, and illegalities in the conduct of the election of the Member of the National Assembly for Magarini Constituency or that those infractions affected the outcome of the election. The evidentiary burden would shift to the 2nd and 3rd respondents to show the contrary, only after the 1st respondent has discharged the legal burden.
88.
How did the question of the standard and burden of proof arise in this case? What was the nature of the evidence the burden of which is alleged to have been improperly shifted? The appellant has faulted the appellate court for failing to disturb the High Court’s erroneous shifting of the burden of proof from the 1st respondent to the appellant and the 2nd and 3rd respondents. More specifically, the appellant argued that with regard to Mapimo Youth Polytechnic, both superior courts erred in their determination that the ballot box was re-opened in the absence of all agents without such evidence being led; that instead they wrongly shifted the burden to the 2nd and 3rd respondents to demonstrate that all agents were present and witnessed the re-opening of the boxes and retrieval of Form 35A.
89.
While it is conceded that a ballot box was opened at Mapimo Youth Polytechnic Polling Station 1 of 6 at the tallying centre to retrieve Form 35A, followed by a recount and alteration of some forms, the 2nd and 3rd respondents argued before the trial court that the exercise was witnessed by all the agents. To establish that indeed all the agents were present during the exercise, the two courts below insisted that the onus remained with the 2nd and 3rd respondents to prove this fact on a preponderance of evidence; that it was not sufficient to merely state that all agents were present. The proof required of the 2nd and 3rd respondents to meet the standard of proof entailed the provision of the particulars of the agents who were present. Did they, for example, sign any form to signify their presence or did they counter-sign the alterations on Form 35A to authenticate it? Guided by the decisions in Maina Kiai and Ahmed Abdullahi Mohamed &Anor v. Hon Mohamed Abdi Mohamed & 2 others Election Petition No. 14 of 2017, the learned Judge of the High Court expressed himself as follows;
“
36.
R1W2 admitted the testimony of PW3. She stated that upon realizing the mistake, she called all the agents and the PO of the polling station and broke the seals on the ballot boxes in their presence to retrieve the original Form 35A which had been locked in the ballot box. That the PO then corrected the anomaly.
37.
A reading of regulations 81, 83, 86, and 93 of the regulations will show that, once ballot boxes are sealed at the polling station, there is no authority whatsoever to break open those ballot boxes without an order of the court.
39.
The voting process is an expression of the will of the people and once finalized, no one is allowed to tamper with the material used to express that sovereign will unless authorized by court or by law.
41.
…… This court notes that R1W7 did not enter any comments on the alterations made on Form 35A though he testified that it was his duty to comment on any alterations in the Form. He also testified that only some of the polling agents witnessed the recount and cancellation. However, there was no evidence to show which agents witnessed the recount and cancellation.
43.
It is this court’s finding that the opening of the ballot box was a serious irregularity. This was coupled with the established error of transferring the results of the petitioner to the 3rd respondent.
44.
PW5 testified that in Kinyaule polling station, the votes for Chad Karisa Hamadi were increased by 7 votes and Form 35A indicated a total of 81 votes while Form 35B showed 88 votes. This court has seen both forms and finds that the results therein are different and are as stated by PW5. There were discrepancies and inaccurate results in those statutory forms”. [Our emphasis].
90.
Satisfied with the veracity of the testimony of some of the witnesses, the learned judgeidentified several anomalies and irregularities that in his view compromised the integrity of the results announced at the end of the election. Some of those anomalies included instances where the 1st respondent’s votes were reduced, altered, or interchanged, failure by the presiding officer to sign some Forms 35A without recording that fact in the form itself, discrepancies between Forms 35A and 35B in several identified stations, agents barred from recording their objections in Form 35A regarding specified anomalies in particular stations, as well as the interchange of results during the transfer of results from Form 35A to 35B in two identified polling stations: in Vuga polling station, no single agent signed Form 35A and the only proffered explanation by the Presiding Officer was that the agents left for fear of attacks by elephants; there were statutory documents from specified stations that had alterations which were not countersigned and this fact, according to the learned judge was admitted by the Returning Officer.
91.
Ultimately, the court concluded on this ground, that the 1st respondent had established to the required standard that the documents relied upon in declaring the appellant the successful candidate were flawed and that;
“
63.
In many instances, it was the petitioner’s (1st respondent’s) votes that were either interchanged or altered without countersigning”.
92.
In agreeing with these conclusions, the Court of Appeal for its part stated that;
“
In our view the act of not only opening the ballot box but also proceeding to conduct a recount at the tallying centre was clearly against the decision in Maina Kiai case that the votes counted at the polling station are final. The finality of vote counting at the polling station would make no sense if a window for recounting is left open under some circumstances at the tallying centre. The issue was compounded by the evidence of Presiding Officer (R1W7), who admittedly failed in his duty to enter any comments on the alterations made. He further admitted that only some of the polling agents witnessed the recount and cancellation without indicating which agents did so.
93.
The court went on to fault the 3rd respondent saying;
“By opening the ballot box and carrying out a recount at the polling centre before ensuring that all the agents of the candidates were present, the election officials failed to meet the test of transparency”.
Specific to the issue of the agents who were present when the seals to the ballot box were broken, the recount of votes done, and alterations to the form made, the two courts were persuaded that only some and not all the agents were present. Further, even those present could not be ascertained.
94.
These are concurrent factual conclusions by the two superior courts. What is before us is a second appeal and as we emphasized in Sonko v. County Assembly of Nairobi City & 11 others; (Petition 11 (E008) of 2022); [2022] KESC 76 (KLR), the duty to re-evaluate evidence is the function of a first appellate court, in this case, the Court of Appeal. And even then, a first appellate court must accord deference to the trial court’s conclusions of fact and only interfere with those conclusions if it appeared to it, either that the trial court failed to take into account any relevant facts or circumstances or based on the conclusions of no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions.
95.
As a second appellate court in this dispute, we similarly must treat with due deference the conclusions of fact reached by the trial court which had the initial opportunity to assess the evidence first hand and those of the first appellate court that independently analyzed and re-evaluated the evidence afresh by way of a re- trial before reaching its own conclusion. In other words, an appellate court has loyalty to accept the findings of fact of the lower courts and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, unless it is apparent that, on the evidence, no reasonable court could have reached the conclusions under challenge. Only cardinal issues of law or of jurisprudential moment, based, for example on the application and interpretation of the Constitution would deserve the further input of this court.
96.
We can do no better than to reinforce the pronouncement of this court in Munya 2, that;
“
[82]
…a petition which requires the appellate courtto re- examine the probative value of the evidence tendered at the trial Court, or invites the courtto calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. We believe that these principles strike a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.”
97.
The courtwill entertain a question of fact as though it is an issue of law only if it is satisfied that the conclusions arrived at by the trial Judge in an election petition in the High Court were based on ‘no evidence’, or that the conclusions were not supported by the facts or evidence on record, or that the conclusions were ‘so perverse’, or so illegal, that no reasonable tribunal would arrive at the same conclusion.
98.
The submissions by the appellant and the 2nd and 3rd respondents appear to be inviting us to substitute ourselves into the two courts below and take up their roles of re-analyzing the evidence afresh for the third time. This will amount to parties re-arguing the factual aspects of this case under the guise of constitutional interpretation and application. We cannot find anywhere in the impugned judgment any erroneous or confused treatment of issues of law and fact. Instead, we find at paragraphs 52, 53, and 54 of the judgment a concise rendition of the court’s jurisdiction when hearing an appeal from the High Court sitting as an election court based on the provisions of section 85A of the Elections Act. It said;
“52.
Before embarking on a consideration of the matters raised, it is important to set out from the outset the jurisdiction of this courtwhen dealing with appeals from the High Court sitting as an election court.
53.
The Supreme Court clarified what constitutes “matters of law” in Gatirau Peter Munya v Dickson Mwenda Kithinji and 3 others [2014] eKLR where the three elements of the phrase “matters of law” were identified………
54.
Our determination of this appeal must therefore be based on the above principles and we shall, where necessary, revisit the facts of the case purely as regards the evidentiary element in order to satisfy us whether or not the conclusions of the High Court were based on the evidence on record”. [Our emphasis].
99.
To this clear and correct statement of the law, we wish to add from our reading of the judgment that the court did not misdirect itself as to the burden of proof. All it was concerned about was the standard of proof. It found that without the particulars of the agents who were allegedly present at the tallying centre and witnessed the breaking of the seals to the box, retrieval of the envelope, the recounting and retallying of votes at Mapimo Youth Polytechnic Polling Station 1 of 6, the 2nd and 3rd respondents fell short of meeting the threshold of proof expected of them. The breaking of the seals of the ballot box at the tallying centre after the conclusion of voting, the recount and the correction of Form 35A, in our considered view, was not only contrary to the law and settled judicial pronouncements but was also unwarranted. In considering this ground we have deliberately endeavored to avoid any engaging with the factual aspects of this case, except to the extent limited to satisfying ourselves whether the conclusions of the superior courts were based on the evidence on record or whether the conclusions were so perverse that no reasonable court would have arrived at them.
100.
On our assessment of all the factors, we arrive at the conclusion on this ground that the election officials did not meet the test of transparency and contravened the tenor and ratio decidendi in the Maina Kiai case, that decrees that results declared at the polling station are final because that is the true locus of the vote where verification exercise is done.
101.
The two superior courts made reference to the narrow margin of victory enjoyed by the appellant, which we wish to turn to only for the sole purpose of restating the dictum of this court expressed in its previous opinions. According to the learned Judge of the High Court, the irregularities, coupled with the opening of the ballot box, and undertaking a recount “as well as the small margin between the appellant and the 1st respondent affected the results of the election”.
102.
For the Court of Appeal, where there are several irregularities, though minor on their own, coupled with a major one such as the unlawful reopening of ballot boxes and conducting a recount in the absence of all the agents and without countersigning the alterations arising therefrom, “that may, where the margin is negligible, be, in our respectful view, a basis for nullifying the results”. The court qualified this statement by explaining that;
“
It is not in every case that the margin is small that the results of an otherwise properly conducted election must be nullified. A win is a win even if by only one ballot and absence any irregularities and illegalities in the conduct of the election, a court will not nullify the results of an election simply because the petitioner lost by a small margin. The conduct of the elections must be considered in its totality and all factors taken into account”.
103.
Indeed as Raila 2017 stressed, a win is a win and numbers are only one of its ingredients. The mere fact of a slim margin of votes cannot per se lead to the necessary inference that the result of the winning candidate has been materially affected. That is why we said in the judgment in that case that;
“
…whether it be about numbers, whether it be about laws, whether it be about processes, an election must at the end of the day, be a true reflection of the will of the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility, verifiability, accountability, accuracy and efficiency.”
104.
Prior to this decision, the court in the Munya 2 had expressed the view that the issue of margins in an election other than a Presidential election, can bear only transient relevance and only where it is alleged that there were irregularities that affected the final result; that a narrow margin between the declared winner and the runner-up beckons as a red flag where the results are contested on allegations of counting and tallying errors at specified polling stations; and that where a re-count, re-tally or scrutiny does not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow, is immaterial as a factor in the proper election-outcome.
105.
How did the two courts deal with the question of scrutiny? Did the scrutiny report absolve the 2nd and 3rd respondents from any wrongdoing in the conduct of the Magarini Member of National Assembly election? In the amended petition, the 1st respondent sought an order of scrutiny of 19 polling stations. The prayer was granted on 18th January 2023. The Deputy Registrar prepared a scrutiny report dated January 23, 2023 after the exercise. Challenging the decision of the High Court in the Court of Appeal, the appellant stated in the grounds of appeal that the learned judge erred in law when he allowed scrutiny and recount of votes even when no basis had been laid for doing so; and that the learned judge misdirected himself in law by selectively relying on the scrutiny report in order to find for the 1st respondent. A similar challenge was contained in the Notice of Cross-Appeal filed on behalf of the 2nd and 3rd respondents dated April 14, 2023.
106.
Before this court it is the appellant’s contention that after the 1st respondent failed to adduce evidence in support of his claims, the two superior courts ended up making determinations that were at variance with the evidence and documents on record; that the two courts failed to rely on the scrutiny report which dispelled all the allegations made by the 1st respondent.
107.
From the record, it is plain to us that the learned judgeof the High Court devoted considerable space to analyze the scrutiny report, though he was overturned by the Court of Appeal on certain aspects. For example, on the effect of unstamped counterfoils, the mixup of the names of two polling stations, Majenjeni instead of Mjanaheri, among others. The Court of Appeal relied on the decision of the Supreme Court in Munya 2 and Gideon Mwangangi Wambua & Another v. IEBC & 2 Others, Mombasa Election Petition No. 4 of 2013 on the object of scrutiny and explained how scrutiny is a vehicle to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings; that it was never intended to enable the court to unearth new evidence on the basis of which the petition could be sustained. In Walter Enock Nyambati Osebe v. The Independent Electoral and Boundaries Commission & 2 others; SC Petition No.28 of 2018, the Supreme Court considered the effect to be accorded of new evidence that emerges out of a scrutiny exercise, which evidence was not part of the pleadings. The court stated:
“[38]
In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [supra], this court was categorical that a scrutiny exercise, is not a fishing expedition. It was never meant to aid a petitioner in finding evidence to support his/her case. Before a scrutiny is ordered by the election court, a basis must be laid by a party seeking it. The basis is to be laid in the pleadings or affidavit evidence. Even where a court orders a scrutiny suo motu, it must give reasons for such an order. Parties are bound by their pleadings and as such, are not allowed to latch onto whatever evidence to make a case they had not made in their initial pleadings. These principles have repeatedly guided the courts in election disputes, and we see no reason to vary them…”
108.
It would appear therefore that the report of the scrutiny did not yield the outcome expected by the 1st respondent when he sought it. That did not preclude him from presenting and relying on other pieces of evidence to illustrate that the election in question did not conform with the constitutional and legal imperatives. Indeed, the petition before the High Court raised several grounds. The prayer for scrutiny and reliance on the resultant report was but only one of them.
109.
From what we have stated in the previous paragraphs, it should be apparent the 1st respondent was able to prove on a balance of probabilities, non-compliance with the Constitution and electoral law in the manner the 2nd and 3rd respondents conducted the election, especially from the events at Mapimo Youth Polytechnic polling station 1 of 6, where there was unlawful reopening of the ballot box, alteration of forms without countersigning and a recount of votes in the absence of all the agents. There was an interchange of results at Mapimo Youth Polytechnic Polling Station 1 of 6; alterations of votes or wrong entries for Kayadagamra, Adimaye, Kinyaule Nursery School, Kibaoni Primary School Polling Station, Mekatili polling station, St. Peters Nursery School polling station and Chakama polling station.
110.
Finally, on the rejected ballot papers, three sentences will suffice to answer the appellant’s argument that rejected votes do not count in determining the winner. The trial court found that despite the numerous discrepancies in the rejected votes, the scrutiny exercise revealed that Form 42A for rejected votes was missing in about 15 out of the 24 polling stations. The Court of Appeal was silent on the matter. One: Regulation 81 of the Elections (General) Regulations 2012 enjoins the Presiding Officer upon completion of a count, including a recount, to seal in each respective ballot box, among other documents, rejected ballots sealed in a tamperproof envelope. Two: This court in Raila 2013 categorically stated that rejected ballot papers do not constitute a vote cast. Three: The requirements of regulation 81 (1)(b) were breached by the 2nd and 3rd respondents by their admitted failure to include Form 42A in the ballot boxes. Consequently, on this score, we respectfully agree with the appellant’s argument that rejected ballot papers should not be counted as valid votes, because they are to be rejected.
111.
In conclusion, we find no error in the determination of the Court of Appeal that the 1st respondent met the standard of proof thereby discharging the burden of proof and establishing that indeed there was non-compliance with the Constitution and the law or that the noted irregularities and illegalities did affect the final result, based on both limbs of section 83 of the Elections Act.
112.
For this reason, we find no merit in the appeal. It is hereby dismissed and for the avoidance of doubt, we affirm the judgment of the Court of Appeal, together with the directions on the declaration of the seat of the Member of the National Assembly for Magarini Constituency vacant and the direction to the 2nd respondent to conduct a by-election for Member of the National Assembly for Magarini Constituency in accordance with the law.
E. Costs
113.
Costs follow the event but are at the discretion of the court. We are guided by the principles on the award of costs enunciated in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR. The 1st respondent having been successful in the superior courts below and was awarded costs, we equally award him costs capped at Kshs. 2,000,000. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/25/eng@2024-05-31 |
Petition (Application) 32 (E036) of 2022 | Sirikwa Squatters Group v Fanikiwa Limited & 20 others (Petition (Application) 32 (E036) of 2022 & Petition 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2024] KESC 23 (KLR) (31 May 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 31 May 2024 | 2,024 | Nairobi | Civil | Sirikwa Squatters Group
Applicant
and
Fanikiwa Limited
1st Respondent
Mary Jepkemboi Too And Sophia Jelimo Too (Suing as joint Administrators’ ad litem of the Estate of Mark Kiptarbei Too)
2nd Respondent
Lonrho Agribusiness (EA) Limited
3rd Respondent
David Korir
4th Respondent
The Commissioner Of Lands
5th Respondent
The Chief Registrar Of Titles
6th Respondent
Director Of Land Adjudication And Settlement
7th Respondent
Director Of Survey
8th Respondent
District Land Officer, Uasin Gishu District
9th Respondent
Highland Surveyors
10th Respondent
Kennedy Kubasu
11th Respondent
Ahmed Ferej & 60 Others
12th Respondent
Richard Kirui & 15 Others
13th Respondent
Stanbic Limited
14th Respondent
Kenya Commercial Bank Limited
15th Respondent
Eco Bank Limited
16th Respondent
Milly Chebet
17th Respondent
National Bank Of Kenya Limited
18th Respondent
Kenya Women Micro-Finance Bank
19th Respondent
Commercial Bank Of Africa
20th Respondent
Co-Operative Bank of Kenya
21st Respondent | [2024] KESC 23 (KLR) | null | A. Introduction
1.
The applicant, Sirikwa Squatters Group, filed a Notice of Motion dated 20th December 2023, seeking the review of this Court’s judgment delivered on 15th December 2023. In particular, the applicant seeks the following orders:
a.
Spent.
b.
That this Court sets aside or reviews its Judgment delivered on the 15th December, 2023 and make orders vacating the above Judgment in its entirety on account that the Judgment is a nullity as the court itself was not competent and further that the Judgment was obtained by fraud or deceit and misrepresentation of facts and therefore for vacation and it is vacated and/or set aside in its entirety.(sic)
c.
That the Judgment of the Environment and Land Court Eldoret of the 9th February, 2017 and the Court of Appeal of the 18th November, 2022 be reinstated in full.
d.
That the orders of permanent injunction issued against Sirikwa Squatters Group from entering, taking possession of and in any other manner interfering with Fanikiwa’s (the 1st appellant) quiet possession of the suit properties described as LR No. Pioneer/Ngeria Block 1(EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487,5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471,1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85,5495 and 5902 is hereby set aside, vacated and/or discharged in its entirety.
e.
And an order that the cost of and incidental to this application abide the result of the said proceeding.
f.
Such other or further orders as the Honourable Court may deem fit, just and appropriate in the circumstances.
2.
The application is premised on Section 21A of the Supreme Court Act, Cap 9B of the Laws of Kenya and the following summarized grounds:
a.
The Court was not competent to hear and determine the appeal as it should have restricted itself to constitutional grounds.
b.
The Court considered matters that went beyond Article 163(4)(a) of the Constitution and tried facts and evidence of the case. In particular, the Court interrogated whether the applicant was a squatter, the intent of surrender of the titles to the suit properties, and whether fraud was adequately proved against the Estate of Mark Too.
c.
The Court ignored and/or failed to mention or take cognizance of the letter dated 17th July 2007 contained at Vol.55 of the record of appeal from the Commissioner of Lands, M. Okungu, to the Hon. Attorney General. The letter confirmed that the said office had no objection to the allocation of the suit properties by the Late Daniel Moi, to the applicant.
d.
The Court held that the dispute ought to have been resolved through viva voce evidence and not purely affidavit evidence thereby overstepping its mandate.
e.
On fraud, the Court erroneously relied on the affidavit of R. J. Simiyu on the purpose of surrender. The said affidavit contained an annexture titled ‘surrenders of land dated the 1st November 2000’ which annextures were alleged to be new and additional evidence that were produced for the first time before the Supreme Court. They were allegedly not interrogated or considered by the Superior Courts below.
f.
The Court condemned the Late President Daniel Toroitich Arap Moi unheard.
g.
The Judgment was obtained through misrepresentation of facts. The appellants misrepresented that the land was allocated by the Late President Daniel Moi whilst the same was done by the Commissioner of Lands.
B. Background
3.
On 15th December, 2023, this Court made a number of findings including on its jurisdiction, where it determined that the consolidated appeal met the threshold set out in Article 163(4) (a) of the Constitution. It further found that the appellant’s right to a fair hearing was violated by the Superior Courts below and the trial Court ought to, in the specific circumstances of this case, have conducted the trial by taking viva voce evidence.
In addition, the Court stated that the applicant did not have a legitimate expectation of acquiring the suit properties as its members were not bona fide squatters thereon, and neither were the suit properties available for allocation as they had only been surrendered by the registered proprietor, Lonrho Agribusiness, the 3rd appellant, for purpose of conversion from leasehold interest under the RTA to freehold interest under the RLA.
4.
This Court subsequently made the following orders:
i.
The consolidated appeal is hereby allowed.
ii.
The judgment and orders of the trial and appellate courts are hereby set aside in their entirety.
iii.
The 1st respondent herein, to wit, Sirikwa Squatters Group, its agents, members, servants, employees and/or representatives are hereby permanently restrained from entering, taking possession of and in any other manner interfering with Fanikiwa’s (the 1st appellant) quiet possession of the suit properties described as LR No. Pioneer/Ngeria Block 1 (EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487, 5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471, 1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85, 5495 and 5902;
iv.
We declare that the finding by the superior courts below to the effect that the retired President’s approval of allocation of the suit parcels and the subsequent surrender of the titles was for purposes of settling Sirikwa’s members, violated and arbitrarily deprived the 3rd appellant herein, Lonrho Agribusiness, of its rights over and interests in the suit parcels as guaranteed under Article 40 of the Constitution.
v.
All parties shall bear their own costs.
5.
It is this decision that the applicant urges the Court to review. It should be noted at this stage, that there appears to have been some confusion during filing of pleadings, with reference to the naming and allocation of numbering of the respondents by counsel in this application (as opposed to the reference naming and numbering in the appeal which was heard before). The Court has therefore taken the liberty of renaming and renumbering of the same for clarity, elegance and a concise reading of this ruling. | D. Preliminary Issue For Determination
13.
We note that on 31st January 2024, whilst before the Deputy Registrar of this Court, the applicant’s counsel made an oral submission in which he objected to the responses filed by the 2nd respondent/ appellant, 5th - 9th respondents, 13th and 21st respondents on the ground that time started running on 28th December 2023 and the responses ought to have been filed by 10th January 2024 or thereabouts. He urged the Court to either expunge all the documents filed after 30th January 2024 or grant the applicant leave to respond.
14.
In response, the 2nd respondent’s/appellant counsel similarly made oral submissions before the Deputy Registrar to the effect that they filed their replying affidavit on 15th January 2024, submissions and a list of authorities on 30th January 2024. Relying on Order 50 Rules 4 of the Civil Procedure Rules, he submitted that the time between 21st December 2023 and 13th January 2024 is excluded from computation of time. He urged that time began to run on 13th January 2024 and so, their documents were filed within the timelines given by the Court. He further urged that upon service of the supplementary affidavit on 22nd January 2024, time started running pursuant to which they filed their submission and list of authorities on 30th January 2024. The Deputy Registrar referred the resolution of this issue to the Court.
15.
The Supreme Court Act and the Supreme Court Rules, 2020 provide the substantive and procedural law for this Court. There is no basis therefore to rely on other laws unless expressly provided for, and unless there is a lacuna. See Daniel Kimani Njihia v Francis Mwangi Kimani & another, [2015] eKLR, and Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling) where it was reiterated that the only regime of law that govern proceedings before the Court are, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions. Further, it was held that the Appellate Jurisdiction Act and the Civil Procedure Rules are not applicable when moving this court; and that the court has to be moved under the correct provisions of the law. Rule 15 of the Supreme Court Rules, 2020 provides that time computation shall be in accordance with the Constitution, Section 57 of the Interpretations and General Provisions Act [Cap 2] and any directions of the Court. Subsection 2 provides that the Court may extend any time limited by the Rules or by any decision of the Court. These provisions are the ones that constitute the applicable law and not Order 50 Rule 4 of the Civil Procedure Rules, which clearly do not apply to this Court in the circumstances.
16.
Applying the provisions of Section 57 of the Interpretation and General Provisions Act to the instant case, 14 days from 28th December 2023 would take us to 18th January 2024 or thereabouts. Therefore, all the respondents were required to have filed and served their responses and submissions by 18th January 2024. Going by that, it follows that indeed the 2nd respondent/2nd appellant, 5th- 9th respondents, 13th and 21st respondents filed their responses out of time. We reject the 2nd respondent’s/2nd appellant’s argument that time re-opened after the applicant filed a supplementary affidavit on 22nd January 2024.
17.
That said, this Court has in the past underscored the importance of complying with timelines issued. For instance, in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others, SC Petition No. 5 of 2016; [2018] eKLR, we held as follows:
“
[24]
We however acknowledge that the petitioner’s submissions were filed out of time…. We underscore the importance of complying with Court Orders and directions given especially with regard to filing and service of documents within the requisite time. That notwithstanding, we take cognizance of Rule 53 of the Supreme Court Rules, 2012 which gives us power to extend the time limited by the Rules, or by any decision of the Court. To this extent therefore, the late filing of submissions is not patently incurable.”
18.
In the Jane Cheperenger Case, we allowed the submissions that had been filed 30 days out of time and found that the same was not patently incurable. In the case of Kenya Railways Corporation & 2 Others v Okoiti & 3 Others, Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated); [2022] KESC 68 (KLR), we cited the decision in Jane Cheperenger Case. We, however, expunged the 1st respondent’s replying affidavit as it was filed almost 2 years after the petition was filed.
19.
Considering the circumstances of the present case, we note that despite the late filing, the applicant still exercised his right of rejoinder to all but one respondent, the 13th respondent. The 13th respondents’ grounds of opposition and submissions relay a similar argument to that of the other respondents. Further, the applicant has essentially responded to these submissions elsewhere. We are, therefore, of the considered opinion that it would be in the interests of justice to consider the averments by the 2nd respondent/2nd appellant, 13th and 21st respondents, late filing notwithstanding.
E. Issues for Determination
20.
Taking into account the submissions of all parties, one singular issue emerges for determination: Whether the applicant has established a basis for the review of this Court’s decision.
21.
The applicant is asking this Court to review its judgment delivered on 15th December 2023. It is a well-established principle that this Court cannot sit on appeal or review its decision(s) save for the manner prescribed under Section 21A of the Supreme Court Act, which provides as follows:
“
The Supreme Court may review its own decisions, either on its own motion, or upon application by a party in any of the following circumstances-
a.
where the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
b.
where the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
c.
where the court was misled into giving a judgment, ruling or order under the belief that the parties have consented; or
d.
where the judgment, ruling or order was rendered on the basis of repealed law; or as a result of a deliberate concealment of a statutory provision.”
22.
Rule 28(5) of the Supreme Court Rules, 2020 provides as follows:
“
(5)
The Court may review any of its decisions in any circumstance which the Court considers meritorious, exceptional, and in the public interest, either on the Court’s own motion, or upon application by a party.”
23.
The applicant argued that this Court considered matters that went beyond its constitutional and statutory jurisdictional mandate as it had no jurisdiction to hear the appeal in the first place. It further argues that the Court went beyond its constitutional mandate as set out in Article 163(4) (a). Secondly, it argues that the Court had no competence to try facts and evidence of the case, in particular, interrogating the applicant’s squatter status; considering whether fraud was adequately proved against the Estate of Mark Too; considering the allegation that Retired President Daniel Moi allocated the suit properties to the applicant and assessing the intent of the surrender of the titles to the suit properties.
24.
On the question of this Court’s jurisdiction to hear the appeal, we are in agreement with the 1st respondent’s/ appellant submissions that this Court rendered itself on the same in the judgment.
25.
As to the question of the alleged allotment of the suit properties to the applicant, the propriety thereof and to the finding that the applicants’ members were not squatters; we find that in order to resolve the dispute, it invariably followed that the Court could and would descend into the factual contestations. This was our holding in the case of Dina Management Limited v County Government of Mombasa & 5 Others, SC Petition 8 (E010) of 2021; [2023] KESC 30 (KLR) on the question of considering facts of a case. See Pars. 49 and 50.
26.
On the question of fraud, the applicant alleged that considering the affidavit of R.J. Simiyu was fraudulent since it contained an annexure titled “Surrenders" dated 1st November 2000 that was not produced before the superior courts below. A perusal of the Court record will show that the affidavit of R.J. Simiyu was indeed presented before the Environment and Land Court and the Court of Appeal but it would appear that the depositions therein were not considered by the superior courts below. We find that the applicant has therefore failed to establish that the judgment was obtained through fraud, deceit or misrepresentation of facts.
27.
The applicant also raised other grounds to support his case for review for instance that the Late Retired President Daniel Moi was condemned unheard and the Court’s finding that the dispute ought to have been resolved through viva voce evidence. It is patently obvious that these are purely grounds for appeal, and not review.
28.
Looking at the issues raised by the applicant, we are unable to see how any of the grounds and allegations fall within the parameters of our jurisdiction of review. At best, the notice of motion is an appeal, disguised as an application for review. The applicant is clearly looking to have the Court reconsider and relook the entire judgment and overturn it, which this Court has no jurisdiction to do. In Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others, SC Petition No. 6 of 2014; [2017] eKLR, this Court held that it does not have the jurisdiction to sit on appeal over its own decisions. Further, that an application for review is not an appeal and it is not meant to give a litigant another bite at the cherry.
29.
In the circumstances, we find this application is for dismissal. The applicant having failed in the prayer for review, it does not suffice to consider the other prayers for reinstatement of the judgment of the Environment and Land Court and for injunctive reliefs as sought. In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to award costs to the 1st - 4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents. Having expunged the 5th - 9th respondents documents, we shall not award them costs.
Orders
30.
Consequently, and for the reasons aforesaid, we make the following Orders:
i.
The application dated 20th December 2023 is hereby dismissed.
ii.
The applicant shall bear the costs of the application which shall be payable to the 1st-4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/23/eng@2024-05-31 |
Petition (Application) 19 of 2015 | Wanderi & 106 others v Engineers Registration Board & 6 others; Egerton University & another (Interested Parties) (Petition (Application) 19 of 2015 & Petition 4 of 2016 (Consolidated)) [2024] KESC 24 (KLR) (31 May 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 31 May 2024 | 2,024 | Nairobi | Civil | Wanderi & 106 others v Engineers Registration Board & 6 others; Egerton University & another (Interested Parties) | [2024] KESC 24 (KLR) | null | 1.
Upon perusing the Notice of Motion application dated 6th February, 2024 and filed on 12th February, 2024 pursuant to Articles 159 and 163(8) of the Constitution, Section 3A of the Supreme Court Act, and Rules 3(2), (4) and (5) of the Supreme Court Rules 2020, seeking, inter alia, to have this Court clarify that the applicant, who is the petitioner in Petition No. 4 of 2016, was awarded costs of the petition in this Court, the Court of Appeal and in the High Court pursuant to paragraph 259(c) of the Judgment of this Court delivered on 17th July, 2018; and
2.
Upon perusing the grounds on the face of the application and the supporting affidavit sworn on 6th February, 2024 by Edmond Wesonga, the Advocate on record for the applicant, where he contends that: the applicant filed Petition No. 4 of 2016 seeking to set aside the decision of the Court of Appeal in Civil Appeal No. 240 of 2013; the petition was subsequently consolidated with Petition No. 19 of 2015 filed by Martin Wanderi and 105 others, which became the lead file; that the Supreme Court allowed the consolidated petition and awarded costs to the petitioners as stated at paragraph 259 of the Judgment; and
3.
Upon perusing the applicant’s further grounds that: the applicant subsequently filed a Bill of Costs dated 16th July, 2019 seeking costs; when the parties appeared before the Registrar of this Court on 5th August, 2019 for taxation of the applicant’s Bill of Costs, the Registrar, at the 1st respondent’s urging, declined, failed and/or neglected to tax the Bill of Costs on the ground that the applicant was not awarded costs by the Court; and the parties were directed to seek clarification from the Court, which position was reiterated by the Deputy Registrar on 27th November, 2023 when the matter came up for mention; and
4.
Considering the applicant’s further contention that the Registrar taxed the Bill of Costs filed by the petitioners in Petition No.19 of 2015 except the applicant’s Bill of Costs; the Registrar has misinterpreted, misunderstood and misapprehended the order of the Court and is imposing illegal strictures into the Judgment of the Court; the refusal to tax the applicant’s Bill of Costs violates the Judgment of this Court and the elementary principle that costs follow the event; and that it is in the interest of justice that the applicant’s Bill of Costs be taxed this Court having awarded costs to the petitioners, who included the applicant in Petition No.4 of 2016;
5.
Taking into account the applicant’s submissions dated 7th February, 2024 and filed on 12th February 2024, the applicant urges that: this Court has inherent jurisdiction to clarify its judgment so as to give effect to its meaning, scope or intention pursuant to Section 3A of the Supreme Court Act and Rules 3(2), (4) and (5) of the Supreme Court Rules 2020; that this Court has in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus)(Petition 15 & 16 of 2015)[2021] KESC 31 (KLR)(6 July 2021) (Direction) clarified the extent of the application of its judgment; and further relies on this Court’s decisions in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another Election Petition No. 1 of 2017 [2017] eKLR and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition 4 of 2012 [2014] eKLR;
6.
Noting that the respondents, despite service of the application, neither filed responses, submissions nor participated in these proceedings. However, from the Court’s proceedings of 5th August, 2019 when the matter was mentioned before the Deputy Registrar, we note that Counsel for the 1st respondent objected to the applicant’s Bill of Costs being taxed on the ground that this Court did not grant the applicant costs;
7.
Bearing in mind the provisions governing this Court’s jurisdiction under the Constitution and the Supreme Court Act; the general principle is that once a Court has duly pronounced a final order, it becomes functus officio and has no power to alter the Order; and this Court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014 [2017] eKLR where we stated that, “The stamp of finality with which this Court is clothed should not be degraded except in exceptional circumstances as determined by the Court itself.” | We have considered the application, affidavit in support and the submissions filed and now opine as follows:
i.
In John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others SC Petition No. 2 and 4 of 2017 [2017] eKLR this Court found it necessary to clarify certain aspects of the Court’s Judgment. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another Election Petition No. 1 of 2017 [2017] eKLR, a Ruling delivered on 17th October, 2017 on an application seeking a clarification of the Court’s Judgment, we stated as follows:
“
(56)
… This Court has no jurisdiction to interpret its decisions or those of other courts. On the face of it therefore, in ordinary circumstances, an application, which is based on tenuous jurisdictional foundations, such as the one before us ought …to be dismissed.”
ii.
In the same decision, however, while noting the public interest generated in the matter, in the exercise of the Court’s inherent powers, we proceeded to determine whether there was a matter to be clarified, stating that:
“
(58)
…To that limited extent of great public interest, we think that the submissions by the two counsel are not without merit. In exercise of the inherent powers of this Court, we shall therefore proceed to determine whether there is any matter to be clarified, and if so, to what extent. This assumption of jurisdiction, is all the more necessary, so as to avert the danger of an impression being created in the mind of the public, that there exists an ambiguity, in the Court’s Judgment, even where there might be none. If indeed there is an ambiguity, the assumption of jurisdiction will help eliminate the same. Having so decided, we now turn to the two questions as framed in the Notice of Motion.”
iii.
Similarly, in Cogno Ventures Limited v Bia Tosha Distributors Limited & 6 Others as consolidated with Andrew Kilonzo & 2 others v Bia Tosha Ditributors Limited; Kenya Breweries & Limited & 6 others (Interested parties) & Bia Tosha Ditributors Limited v Kenya Breweries Limited & 11 others; Javier Feran & 24 others (Contemnors); Kamahuha Limited & Another (Interested Parties) SC Application Nos. E005; E006 & E012 of 2023 (as consolidated) (unreported) we stated as follows:
“(38)
It emerges that the parties either misunderstood our judgment rendered on 17th February 2023 or are outrightly mischievous. Having authoritatively made our decision on the issues before us in Petition No. 15 of 2020, it was this Court’s expectation that all parties thereto, would act in accordance with what the Court meant. It is not for this Court to interpret its decisions or those of other courts to the different litigants. With the issuance of the judgment, the Court became functus officio. The only narrow opportunity for the court’s jurisdiction is by way of review vide an application as permitted by the Supreme Court Act and Rules.
(39)
However, to the extent that there is need to avert protracted legal battles, more so when the substantive dispute is pending at the High Court, we shall invoke the inherent powers of this Court to determine whether there is any matter for clarification and if so, to what extent we can exercise the power of review as sought in the two applications or deal with contempt as raised in the third application…”
iv.
In the exercise of this Court’s inherent powers pursuant to Section 3A of the Supreme Court Act Cap 9B, we proceed to determine whether indeed there is ambiguity in the Court’s Judgment delivered on 17th July, 2018, in respect to the award of costs to the applicant, to warrant clarification. The relevant portion of the paragraph to be clarified as sought by the applicant states as follows:
“(259)
In the premises, Petition No.4 of 2016 dated 22nd April, 2016 and Petition No. 19 of 2015 dated 30th November, 2015 are hereby allowed and the High Court Judgment reinstated to the extent of our orders below:
……
c.
The Engineers Registration Board, shall bear the costs of the Petitioners and 2nd Interested Parties in Petition No. 19 of 2015, in the High Court, Court of Appeal and in this Court. The said costs shall carry interest at a rate of 12% per annum respectively from the date of judgment in each respective judgment in each respective judgment until payment in full.
d.
All other parties shall bear their own costs.”
v.
According to the applicant, it was awarded costs as entitled, having succeeded in the appeal. A plain reading of this order does not infer any ambiguity as alleged by the applicant, requiring this Court’s clarification, or at all. At paragraph 259 of the said Judgment, we did allow the consolidated petition, that is, Petition No. 4 of 2016 and Petition 19 of 2015. The Court was, however, categorical on which party was entitled to costs in the consolidated petition by specifically making reference to the petitioners and 2nd Interested Parties in Petition No.19 of 2015. These were the affected students who had resorted to court action. This can be drawn from the Court’s reasoning in the judgment as follows:
“
(170)
Lastly, as the students have been successful in their appeal as against the Board; we allude to the general principle on award of costs: that costs follow the event and find that the Board shall bear the costs of the students.” (Emphasis ours)
Further, paragraph 259(d) was to the effect that all the other parties (including the applicant) would bear their own costs.
(v)
To avoid any further misapprehension, misinterpretation or misunderstanding of the Court’s Judgment, and in order to settle any doubts on the part of the applicant, including apprehension on the taxation of its Bill of Costs dated 16th July 2019, no order was made by this Court granting the applicant costs. At any rate, the applicant is not a student. We find the application to be wrought in mischief and reiterate, as we held in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition 4 of 2012 [2014] eKLR, that costs are granted at the discretion of the Court. We stated:
“
(22)
Although there is eminent good sense in the basic rule of costs
– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”
(v)
Taking into account the age of the dispute, we are mindful not to protract the same any further on account of costs. We find it appropriate to make no order as to costs as regards the present application.
9.
Consequently, for reasons aforesaid, we make the following orders:
i.
The Notice of Motion dated 6th February, 2024 and filed on 12th February, 2024 be and is hereby dismissed; and
ii.
There shall be no orders as to costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/24/eng@2024-05-31 |
Application E033 of 2023 | Ithongo (Suing as Legal Representative of the Estate of Geoffrey Ithongo Thindiu- Deceased) v Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo - Deceased) (Application E033 of 2023) [2024] KESC 17 (KLR) (10 May 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 10 May 2024 | 2,024 | Nairobi | Civil | Kennedy Thindiu Ithongo (Suing as Legal Representative of the Estate of Geoffrey Ithongo Thindiu- Deceased)
Applicant
and
Harry Kinuthia Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo - Deceased)
Respondent | [2024] KESC 17 (KLR) | null | 1.
Upon perusing the Notice of Motion dated 8th September, 2023 and filed on 30th October, 2023 by the applicant, Kennedy Thindiu Ithongo, acting in person, pursuant to Order 42 rule 6 and 51 of the Civil Procedure Rules, Articles 50(2) and 159 of the Constitution and any other enabling law seeking the following order:
“That this court be pleased to grant the applicant leave to appeal out of time against the judgment of the Honourable Justice Musinga, Hon. Lady Justice Sichale and Hon. Justice Omondi in Court of Appeal at Nairobi in Civil Appeal Case No. 16 of 1981 delivered at Nairobi on 23rd September 2022.”
2.
Upon perusing the affidavit sworn by the applicant, on 8th September 2023 in support of the Motion and written submissions dated 23rd October 2023 contending that; the origin of the dispute concerned an adverse possession claim instituted by way of Originating Summons in suit HCCC No. 1031 of 1977 by Ishmael Ithongo against his kinsman Geoffrey Ithongo Thindiu (both deceased and substituted by their respective legal representatives) concerning a parcel of land known as Kabete/Kibichiko/190; the High Court (Scriven J.) in its judgment delivered on 31st July 1979 dismissed the claim by Ishmael Ithongo with costs; Ishmael Ithongo aggrieved, appealed to the Court of Appeal in Civil Appeal No. 16 of 1981; the Court of Appeal (Law, Miller JJ.A & Simpson Ag. J.A) in its judgment delivered on 10th July, 1981 allowed the appeal ordering that Ishmael Ithongo be registered as the proprietor of the suit land and Geoffrey Ithongo Thindiu vacate it and remove his personal property within three(3) months; the applicant vide his application dated 15th March, 2018 sought review of the decision citing among other grounds, that the Court lacked proper jurisdiction having proceeded without substituting Ishmael Ithongo after his demise and further failing to pronounce itself on the existence of the traditional trust known as ‘muramati’ where upon the demise of the father, the eldest son in the family becomes trustee of all lands on behalf of all his brothers; the Court of Appeal (Musinga, Sichale & Omondi JJ.A) in its ruling delivered on 23rd September 2022 dismissed the application finding that substitution was properly done and the traditional trust extensively addressed; and
3.
Upon noting that the Applicant in the present application contends that he is aggrieved by the Ruling delivered on 23rd September, 2022 for the reason that he was never served with the notice of delivery of the ruling; further, that he is aggrieved by the decision in the initial appeal which denied him and his family their right to be heard as the appeal was determined with impunity since it was heard ex parte and the appeal decided in favour of the respondent who was a member of staff of the Judiciary; additionally that had he and his family been given a chance to be heard, as noted by the High Court (Scriven J.), the respondent being a family member would not have been granted the orders of adverse possession considering that the applicant’s father, by virtue of being the eldest son, was the registered trustee and thus the respondent would have received a share by way of subdivision and not an absolute share of the land leaving the applicant and his family destitute and landless; and he therefore seeks an overhaul of the entire decision made in Civil Appeal No. 16 of 1981 for the sake of natural justice and for this Court to uphold the decision by the High Court (Scriven J.) dated 31st July 1979; and
4.
Upon further noting that the respondent in his replying affidavit sworn on 8th December 2023 and written submissions dated 11th December 2023 is opposed to the application on grounds that: there has been inordinate delay of about one year in filing the intended appeal and the applicant has failed to proffer a plausible or sufficient explanation for the delay after the ruling delivered on 23rd September, 2022; the applicant is guilty of attempting to mislead the Court by stating that he was not notified of the ruling despite being present in court on 30th May, 2022 when the Court of Appeal issued the ruling date and delivered the ruling on schedule; the application is an afterthought, the applicant having been jolted to action following the settlement of terms on 9th October 2023 before the Deputy Registrar of the Court of Appeal; the intended appeal is not arguable as the applicant has failed to cite any of the grounds of review of a ruling under Order 45 of the Civil Procedure Rules as well as failing to annex a draft memorandum of appeal to allow the Court gauge the arguability of the applicant’s intended appeal; the present application is misconceived as the applicant has already exercised his option to seek review of the judgment of the Court of Appeal and is therefore precluded from seeking an appeal from the ruling on the review application; the respondent and his family would suffer great prejudice if the application were to be allowed as the appeal has already been determined on its merits; and
5.
Furthermore, noting the response by the applicant through his affidavit sworn on 22nd December 2023 wherein he contends that: despite his application for review before the Court of Appeal coming up for hearing on 30th May, 2022, he was never served with notice of the ruling date and hence was unaware of the ruling given; the lack of notice is a sufficient and plausible explanation for the delay in filing of an appeal against the Ruling; the application is well founded in law and follows the procedure required under the Civil Procedure Rules as well as the rules which require him to seek the leave of Court to be allowed to appeal out of time; he urges that members of his family have been buried in public cemeteries and due to the continuous dispute between the two families, there is division in the family; finally that litigation can only come to an end upon crystallization of every opportunity in law, hence the instant the application; and
6.
Noting that the applicant is presenting the instant Motion has relied largely on the provision of the Civil Procedure Code: and
7.
Appreciating that the Court, under Rule 15(2) of the Supreme Court Rules, 2020 has discretionary powers to extend the time limited by the Rules or by any of its decisions and that an applicant seeking extension of time must satisfy the guiding principles set out in Nicholas Kiptoo Arap Korir Salat
v.
Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; [2014] eKLR among other authorities on what a Court should consider in exercise of such discretion on extension of time and which we restate hereinunder as follows:
i.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
iv.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi.
Whether the application has been brought without undue delay; and
vii.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
8.
Further appreciating that under Rule 36 (1) of the Supreme Court Rules, 2020, a person intending to appeal to the Court ought to file a Notice of Appeal within fourteen days from the date of judgment or ruling which is subject of the appeal; and
9.
Additionally bearing in mind that this Court has settled that the only regime of law that governs proceedings before it is, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the Court or the Chief Justice. And noting that in Daniel Kimani Njihia v Francis Mwangi Kimani & Another, Civil Appl No. 3 of 2014; [2015] eKLR, it was stated thus:
“
(14)
This Court’s jurisdiction is exercisable only on the basis of express provisions of the Constitution and the law. The operational rules for this Court (Supreme Court Rules, 2012) are made pursuant to the Constitution, Article 163(8) of which provides:
“The Supreme Court shall make rules for the exercise of its jurisdiction”.
(15)
Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code. In the Hermanus case, this Court had indicated how it should be moved, thus [paragraph 23]:
“
… It is trite law that a Court of law has to be moved under the correct provisions of the law.”
Hence, without thus identifying the proper legal framework for the motion, an application is liable to be struck out.”
10.
Further, in the County Executive of Kisumu vs County Government of Kisumu & 8 others, SC Civil Appl. No 3 of 2016; [2017] eKLR, it was held that an applicant seeking extension of time, cannot rely on the provisions of the Civil Procedure Code nor can they import the Court of Appeal Rules for matters before the Supreme Court. Reference has to be made to the Supreme Court Rules, 2020 and not any other rules of procedure. | Having therefore considered the application, responses and submissions before us, We now opine as follows:
i.
Taking into account that the applicant, though a layman acting on his behalf, has conflated issues in appealing against the Ruling by the Court of Appeal issued on 23rd September, 2022 as opposed to appealing against the Judgment of the Court of Appeal rendered in 1981. However, from his assertions, it is evident that the applicant’s intention is to overturn the Judgment delivered on 10th July, 1981, decades before the establishment of this Court.
ii.
The applicant has erroneously relied upon the provisions of the Civil Procedure Rules which are not applicable in proceedings before this Court. He has also failed to explicitly state the relevant provisions of the Constitution, the Supreme Court Act and Rules rendering his application liable for striking out.
iii.
Those errors notwithstanding, the applicant failed to file a Notice of Appeal within the requisite period in order to properly invoke the jurisdiction of this Court as against the Ruling delivered on 23rd September, 2022.
iv.
Additionally, the applicant has failed to annex his intended Petition of Appeal or grounds of appeal which he would wish the court to consider in his intended Petition of Appeal.
v.
Further, the applicant has failed to give sufficient reasons for the delay of one year from the date of delivery of the Ruling of the Court of Appeal.
vi.
Finally, it would greatly prejudice the respondent to reopen the matter settled almost forty-three (43) years ago in the Judgment of the Court of Appeal delivered on 10th July, 1981.
12.
As regards costs, in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No. 4 of 2012; [2013] eKLR it was settled that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. In the circumstances, it is our considered opinion that it would not serve justice to condemn the applicant to pay costs as he was endeavoring to exhaust every remedy available to him to ventilate his case.
13.
Consequently, and for the reasons aforestated we are NOT inclined to exercise our discretion in favour of the applicant and we make the following orders:
i.
The Notice of Motion dated 8th September, 2023 and filed on 30th October, 2023 be and is hereby dismissed.
ii.
There shall be no order as to costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/17/eng@2024-05-10 |
Petition (Application) E004 of 2024 | Kiamba & 3 others v Ethics & Anti-Corruption Commission & another (Petition (Application) E004 of 2024) [2024] KESC 19 (KLR) (Crim) (10 May 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | SC Wanjala, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 05 June 2024 | 2,024 | Nairobi | Criminal | Jimmy Mutuku Kiamba
1st Applicant
Tracy Mbinya Musau
2nd Applicant
Jimbise Limited
3rd Applicant
Muthaiga Green Acres Limited
4th Applicant
and
Ethics & Anti-Corruption Commission
1st Respondent
Equity Bank Limited
2nd Respondent | [2024] KESC 19 (KLR) | null | Brief facts
The instant application sought for among other orders; conservatory and/or interim orders staying the execution of the judgment of the Court of Appeal pending the hearing and determination of the application. The applicants claimed that their appeal was arguable with a high probability of success as it raised complex issues of constitutional interpretation that could not be properly determined at an interlocutory stage. The applicants further claimed that their appeal was premised on several grounds including that their constitutional rights to property, fair hearing, fair administrative action and freedom from discrimination were infringed upon by the 1st respondent when it instituted proceedings at the High Court for forfeiture of unexplained assets under section 55(5) and (6) of the Anti-Corruption and Economic Crimes Act despite the High Court having made a finding that the assets were not acquired as a result of corrupt conduct. The applicants contended that, unless the application was allowed, the appeal would be rendered nugatory and an academic exercise; and that the applicants would suffer prejudice. The 1st respondent on the other hand argued that the appeal did not involve the interpretation or application of the Constitution nor did it relate to any recurrent issue of cogent constitutional controversy and therefore no right of appeal under article 163(4)(a) of the Constitution lay to the court.
Issues
What were the requirements to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution.
Whether mere reference of constitutional principles by the Court of Appeal was sufficient to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution. What were the guiding principles in granting an order of stay of execution? Held
Before the court granted an order for stay of execution, an appellant, or intending appellant, must satisfy the court that; the appeal or intended appeal was arguable and not frivolous;
unless the order of stay sought was granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
that it was in the public interest that the order of stay be granted. An appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. Where the interpretation or application of the Constitution had only but a limited bearing on the merits of the main cause, then the jurisdiction of the court could not be properly invoked. The mere reference to the rich generality of constitutional principle as the Court of Appeal did in the instant case, was therefore not a sufficient ground to invoke article 163(4)(a) of the Constitution. The application of section 26 of the Anti-Corruption and Economic Crimes Act to the effect that the provision was permissive rather than mandatory in informing persons of interest of the intention to investigate bank accounts or search premises and it was left to the discretion of the 1st respondent to do so, such a matter could not attract any interpretation or application of the Constitution and to attract the court’s attention under article 163(4)(a) of the Constitution. The gist of the applicants’ appeal involved a determination of the proper interpretation or application of the provisions of sections 55 and 56 of the Anti-Corruption and Economic Crimes Act and whether or not the threshold of forfeiture had been met to warrant the orders of forfeiture of assets granted, neither the High Court nor the Court of Appeal attempted to interpret or apply sections 26, 55 or 56 of the Anti-Corruption and Economic Crimes Act in the context of their constitutionality or otherwise. The issues raised by the applicants were not sufficient to trigger the court’s jurisdiction under article 163(4)(a) of the Constitution and neither the petition of appeal nor the instant motion were properly before the court. Consequently, the court had no jurisdiction to hear and determine Petition No. E004 of 2024 or the instant application for conservatory or stay orders. Petition of appeal and application struck out.
Orders
Kshs. 6,000 to be deposited as security for costs in the appeal be refunded to the appellant; no order as to costs. Citations
Cases
Board Of Governors, Moi High School, Kabarak & Daniel Toroitich Arap Moi v Malcolm Bell (Civil Application 12 & 13 of 2012; [2013] KECA 13 (KLR)) — Followed
Ethics and Anti-Corruption Commission & another v Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates Advocates & 2 others (Petition 30 & 31 of 2019 (Consolidated); [2022] KESC 59 (KLR)) — Followed
Ethics & Anti Corruption Commission v Joseph Chege Gikonyo, Lucy Kangai Stephen & Giche Limited; Francis Irungu Thuita (Interested Party) (Anti-Corruption and Economic Crimes Case 14 of 2018; [2018] KEHC 1757 (KLR)) — Followed
Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, (Petition 2 of 2014; [2014] KESC 49 (KLR))
Hassan Ali Joho & Hazel Ezabel Nyamoki Ogunde v . Suleiman Said Shahbal, Independent Electoral & Boundaries Commission & Mwadime Mwashigadi (Civil Appeal 12 of 2013; [2013] KECA 435 (KLR)) — Followed
Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Another (SC Petition No. 3 of 2012 [2012] eKLR) — Followed
Stanley Mombo Amuti v Kenya Anti-Corruption Commission (Petition 21 of 2019; [2020] KESC 45 (KLR)) — Followed
Statutes
Anti-Corruption And Economic Crimes Act (cap 65) — section 26 ; 55(5) ; 55(6) — Interpreted
Constitution of Kenya — article 25(c) ; 27 ; 40 ; 47; 50(2)(o) — Cited
Supreme Court Act (cap 9B) — section 21 ; 25 — Interpreted
Supreme Court Rules (cap 9B sub leg) — rule 31 ; 32 — Interpreted
Advocates
1. Mr Makokha for the applicants (Prof Tom Ojienda & Associates
2. Ms Faith Ng’ethe for the 1st respondent (Ethics & Anti-Corruption Commission)
3. Ms Nazi for the 2nd respondent (Kithi & Company Advocates)
Ruling
1.
Upon reading the Notice of Motion dated February 22, 2024and filed on March 4, 2024 expressed to be brought under sections 21 and 25 of the Supreme Court Act, 2011 and Rules 31 and 32 of the Supreme Court Rules, 2020 seeking orders;
1.
Spent
2.
That the Honourable Court be pleased to issue conservatory and/or interim orders staying the execution of the judgment dated February 9, 2024 in Nairobi Court of Appeal Civil Appeal No 464 of 2019 pending the hearing and determination of this Application;
3.
That this Honourable Court be pleased to issue conservatory and/or interim orders staying the execution of the judgment dated February 9, 2024in Nairobi Court of Appeal Civil Appeal No 464 of 2019 pending the hearing and determination of this Appeal;
4.
That the costs of this Application be provided for.
2.
Upon perusing the grounds on the face of the application, the supporting affidavit of Jimmy Mutuku Kiamba, the 1st applicant, and the submissions dated on February 22, 2024 filed on behalf of the applicants to the effect that their appeal is arguable with a high probability of success as it raises complex issues of constitutional interpretation that cannot be properly determined at an interlocutory stage; that their appeal is premised on several grounds including the applicants’ claim that their constitutional rights to property, fair hearing, fair administrative action and freedom from discrimination were infringed Upon by the 1st respondent when it instituted proceedings in Nairobi High Court ACEC No 1 of 2016 for forfeiture of unexplained assets under section 55(5) and (6) of the Anti-Corruption and Economic Crimes Act (ACECA) despite the High Court in Misc Civil Application No 804 of 2014 having made a finding that the assets were not acquired as a result of corrupt conduct. Further, the applicants fault the court of Appeal for having erred; in failing to hold that there was no finding of corrupt conduct on acquisition of the subject assets on the part of the applicants hence the order of forfeiture was unlawful and infringed on their right to property guaranteed under article 40 of the Constitution; in failing to consider the applicants’ contention that the conduct of the 1st respondent, in commencing investigations against the 2nd and 3rd applicants and continuing with Further investigations against the 1st applicant, was tantamount to trial for an offence that they had been previously tried and acquitted of and this was in violation of article 50(2)(o) and article 25(c) of the Constitution; in failing to find that the High Court Judge was biased and discriminated against the applicants by arriving at a different conclusion from a similar one in a past ruling, in violating the applicants’ freedom from discrimination guaranteed under article 27 of the Constitution; failing to independently and impartially consider the evidence before it and instead relying solely on the misrepresentation by the 1st respondent thereby infringing on the applicants’ right to fair hearing; and relying on the presumption by the 1st respondent that the 2nd applicant was incapable of owning property by herself, other than through her husband, which was discriminatory of the latter on the basis of gender and in violation of article 27 of the Constitution.
3.
Further, the applicants contend that, unless the application is allowed, the appeal will be rendered nugatory and an academic exercise for several reasons including that; there is a real danger that the applicants will be evicted from their matrimonial home which forms part of the properties to be forfeited to the government and their children rendered destitute; the applicants will suffer prejudice, denied rights to fair administrative action and fair hearing under articles 47 and 50 of the Constitution as well as lose their right to property under article 40 of the Constitution as the substratum of the appeal would have been defeated with the 1st respondent taking possession of the properties subject of these proceedings. Finally, it is contended that the 1st respondent will not suffer any prejudice if the applicants were granted the opportunity to exhaust their remedies of appeal and the public interest tilts towards staying execution of the judgment of the court of Appeal delivered on 9th February, 2024; and
4.
Upon considering the 1st respondent’s Notice of Grounds Affirming the Decision dated March 12, 2024, the Replying Affidavit sworn on March 12, 2024 by Catherine Ngari, the 1st respondent’s Forensic Investigator, and submissions dated March 12, 2024 in opposition to the application, to the effect that the application has been filed for the sole purpose of delaying the inevitable forfeiture of assets to the State which the court found to be unexplained; there is no arguable appeal and the appeal is frivolous; citing this court’s decision in Lawrence Nduttu & 6000 v Kenya Breweries Ltd & another; SC Petition No 3 of 2012 [2012] e KLR, it is argued that the appeal does not involve the interpretation or application of the Constitution nor does it relate to any recurrent issue of cogent constitutional controversy and therefore no right of appeal under article 163(4)(a) of the Constitution lies to this court; the 1st respondent had conducted investigations and the applicants were afforded a reasonable opportunity to explain the disproportion between the assets concerned and their legitimate sources of income which explanation was deemed unsatisfactory; that in Stanley Mombo Amuti v Kenya Anti-Corruption Commission; SC Petition No 21 of 2019 [2020] eKLR this court found that in cases of unexplained wealth proceedings, no appeal would lie to this court as of right as such cases are concerned with the application of sections 26 and 55 of the ACECA and not the interpretation of the Constitution, therefore any application or interpretation of the Constitution would be peripheral or have a very limited bearing on the main case; the intended appeal would not be rendered nugatory as the State has the means to make restitution to the applicants in the event that they are successful; and public interest does not lie in favour of permitting the applicants to retain that which has lawfully been found to be unexplained and acquired through corruption; and
5.
Upon considering the applicants’ supplementary submissions addressing the question of jurisdiction of the court to determine the appeal and instant application wherein it is contended that section 55 of ACECA is a normative derivative of the principles embodied in article 40(6) of the Constitution and therefore the superior courts, in determining forfeiture of unexplained assets, were applying the provisions of article 40 of the Constitution; in seeking to distinguish their case from Stanley Mombo Amuti v Kenya Anti-Corruption Commission(supra), they argue that forfeiture of unexplained assets proceedings is a substantive issue touching on article 40 depending on the circumstances of the case but not every case may necessitate the need for application and interpretation of the Constitution; they therefore urge that, their case is different as there was already a determination by a competent court in a Ruling in Miscellaneous Civil Application No 804 of 2014 delivered on June 25, 2015 that the subject properties were not acquired as a result of corrupt conduct; this aforestated Ruling should have rested the matter unless the 1st respondent had appealed against it, which it did not, but instead instituted High Court ACEC No. 1 of 2016; that despite raising this issue before the High Court, the court found that the proceedings in Miscellaneous Civil Application No 804 of 2014 were in regard to preservation orders under section 56 of ACECA; that in arriving at this finding, the High Court departed from its previous position in EACC v Joseph Chege Gikonyo & 2 Others; Francis Irungu Thuita (Interested Party) [2018] eKLR; that because of this departure, the applicants have properly imputed inconsistency, bias and discrimination against them on the part of the High Court Judge.
6.
Further, the applicants have submitted that, despite raising the aforestated issue for determination before the court of Appeal, the court only acknowledged but failed to determine the same leaving the issue unsettled and uncertain and therefore this court ought to determine the question whether the High Court was biased and discriminated against them and Further, whether the court of Appeal, by failing to determine the issue, violated their constitutional right to fair hearing guaranteed in article 25(c) of the Constitution; relying on the decision in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others; SC Petition No 10 of 2013 [2014] eKLR, it is urged that a question of interpretation and application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law; Further relying on the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others it is argued that, where specific constitutional provisions cannot be identified as having formed the gist of the case at the court of Appeal, the very least an applicant should demonstrate is that the court’s reasoning and conclusions leading to the determination of the issues, put in context, can be properly said to have taken the trajectory of constitutional interpretation and application; that in addition to the question of violation of the applicants’ right to property enshrined in article 40 of the Constitution, the applicants have also raised fundamental questions of their constitutional rights and freedoms under articles 25(c), 47 and 50 of the Constitution, whose violation rendered the hearing unfair; that these substantive questions were in issue in all the superior courts below unlike in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission(supra); and
Having considered the application, affidavits, rival arguments by the parties,
We Now Opine as follows:
7.
Guided by the provisions of section 23A of the Supreme Court Act, this court has jurisdiction to issue an order for stay of execution, an injunction, a stay of Further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit; and
8.
Considering this court’s finding on its jurisdiction to grant orders of stay of execution of decrees issued by superior courts in the case of Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR and restating this court’s guiding principles on grant of stay of execution orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014 [2014] eKLR, to the effect that before this court grants an order for stay of execution, an appellant, or intending appellant, must satisfy the court that;
i.
the appeal or intended appeal is arguable and not frivolous;
ii.
unless the order of stay sought is granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
iii.
that it is in the public interest that the order of stay be granted.
9.
Taking Note of this court’s jurisdiction as delineated in article 163(4)(a) of the Constitution and our decision in Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Another; SC Petition No. 3 of 2012 [2012] eKLR where we stated that an appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution and added as follows:
“In other words, an appellant must be challenging the interpretation or application of the Constitution which the court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a Further appeal to the Supreme Court under the provisions of article 163(4)(a) of the Constitution”.
10.
Appreciating that in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission, SC Petition No 21 of 2019 [2020] eKLR we found that, where the interpretation or application of the Constitution had only but a limited bearing on the merits of the main cause, then the jurisdiction of the court could not be properly invoked. In the same case we added that the mere reference to the rich generality of constitutional principle as the court of Appeal did in the instant case, was therefore not a sufficient ground to invoke article 163(4)(a) of the Constitution. More specifically, and relevant to the application before this court, we Further held that proceedings regarding unexplained wealth and its forfeiture concern the application of sections 26 and 55 of ACECA and the threshold of forfeiture of property rather than the specific constitutional questions revolving around interpretation or application of articles 40 and 50;
11.
Further, Appreciating that in the case of Ethics and Anti- Corruption Commission & Another v Tom Ojienda, SC T/a Prof Tom Ojienda & Associates Advocates & 2 Others (Petition 30 & 31 Of [2019] (Consolidated)) [2022] KESC 59 (KLR) this court determined the application of section 26 of ACECA to the effect that the provision was permissive rather than mandatory in informing persons of interest of the intention to investigate bank accounts or search premises and it was left to the discretion of the 1st respondent to do so and we now add that, such a matter cannot attract any interpretation or application of the Constitution and to attract our attention under article 163(4)(a).
12.
And Noting that the gist of the applicants’ appeal involves a determination of the proper interpretation or application of the provisions of sections 55 and 56 of ACECA and whether or not the threshold of forfeiture had been met to warrant the orders of forfeiture of assets granted, we find no difficulty in concluding that neither the High Court nor the court of Appeal attempted to interpret or apply sections 26, 55 or 56 of ACECA in the context of their constitutionality or otherwise;
13.
Applying the principles in Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Another (supra), it is our considered view that the issues raised by the applicants are not sufficient to trigger this court’s jurisdiction under article 163(4)(a) of the Constitution and neither the Petition of Appeal nor the present Motion are properly before us and we uphold the 1st respondent’s submissions on the issue of jurisdiction. To sustain the Petition of Appeal having made that firm finding would not be a useful venture on the part of the court or parties and it would be in the interest of justice and expeditious disposal of cases that we do not extend the life of such a petition.
14.
Consequently, we find that this court has no jurisdiction to hear and determine Petition No E004 of 2024 or the instant application for conservatory or stay orders.
15.
On costs, having found that we have no jurisdiction to address any of the issues raised in both the Petition of Appeal and the Motion before us, we shall exercise discretion and order that there shall be no order as to costs.
16.
Accordingly, and for the reasons aforestated we make the following orders:
i.
The Petition of Appeal No. E004 of 2024 dated 19th February, 2024 and filed on 4th March, 2024, be and is hereby struck out for want of jurisdiction;
ii.
The Notice of Motion dated 22nd February, 2024 and filed on 4th March 2024, be and is hereby struck out;
iii.
We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the appeal herein be refunded to the appellant; and
iv.
There shall be no order as to costs.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MAY, 2024.
..............................................
M.K. IBRAHIM
JUSTICE OF THE SUPREME COURT
..............................................
S. C. WANJALA
JUSTICE OF THE SUPREME COURT
..............................................
NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT
..............................................
I. LENAOLA
JUSTICE OF THE SUPREME COURT
..............................................
W. OUKO
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original
REGISTRAR
SUPREME COURT OF KENYA | Accordingly, and for the reasons aforestated we make the following orders:
i.
The Petition of Appeal No. E004 of 2024 dated 19th February, 2024 and filed on 4th March, 2024, be and is hereby struck out for want of jurisdiction;
ii.
The Notice of Motion dated 22nd February, 2024 and filed on 4th March 2024, be and is hereby struck out;
iii.
We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the appeal herein be refunded to the appellant; and
iv.
There shall be no order as to costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/19/eng@2024-05-10 |
Petition (Application) E008 of 2024 | Aluochier v Likowa & 2 others (Petition (Application) E008 of 2024) [2024] KESC 12 (KLR) (26 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 26 April 2024 | 2,024 | Nairobi | Civil | Isaac Aluoch Polo Aluochier
Applicant
and
Charles Owino Likowa
1st Respondent
Vincencia Awino Kionge
2nd Respondent
County Assembly of Migori
3rd Respondent | [2024] KESC 12 (KLR) | null | 1.
Before the Court is another in a series of applications in this matter that have failed to resolve the dispute before us. Perhaps that is what drove Mr. Okong’o for the 1st Respondent to exclaim before the Deputy Registrar of the Court (Hon. B. Kasavuli) on 12th April 2024; “Given the history [of this matter]…we are not even sure whether we are doing the right or wrong thing because we have been following the rules and nothing seems to be working for the parties.’’ These words are poignant for reasons to be made apparent shortly.
2.
The Notice of Motion dated 26th March 2024 and filed on even date is NOT premised on any provision of the Constitution, Section of the Supreme Court Act, 2011 nor the Supreme Court Rules, 2020 but it seeks an order that this Court does adopt a consent filed by the parties on 14th February 2024 at the High Court in Migori within proceedings in Constitutional Petition No. E006 of 2022; in the alternative, it seeks an order that the said consent be remitted to the High Court at Migori for adoption as an order of that court; and
3.
Upon Perusing that consent, we note that the gist of it is that all the parties herein consented to the judgment dated 21st February 2023 in Constitutional Petition No.E006 of 2002 and the resultant decree issued therein being reviewed, set aside and/or otherwise vacated alongside all consequential orders issued therein; and
4.
Noting that there is no response to the Motion with all Counsel for the Respondents “leaving the matter to Court,” We Now Opine as follows:
i.
The Motion before us is bare of any jurisdictional foundation upon which we can act and adopt a consent that has not been filed in this Court but has been received, filed and stamped by the High Court at Migori within its proceedings and which are distinct and separate from the matter before us.
ii.
It has not escaped our attention that there is in fact no consent filed before this court to determine the proceedings before us and as correctly stated by Mr. Okong’o, Advocate, all parties herein have been groping in the dark as to how they can progress the resolution of the issues they have placed before us. The Applicant’s grounds in support of the Motion, while very well written, do not help matters at all in that regard and we do not know how we can remit a consent that is not filed before us to another court even if that course of action were feasible.
iii.
Counsel and parties appearing before this Apex Court ought to know how they should properly approach us and not by gambling and living in the hope that whatever they file may attract our sympathetic ear. We can only act under known procedures and not by whim or an attempt at resolving every issue placed before us for the sake of doing so.
iv.
The Motion is frivolous, utterly vexatious and while the Applicant is a layman, he is a regular litigant in Kenyan courts and ought to have known better. The less said about the conduct of Counsel for the Respondents in “leaving” such a simple matter “to the Court,” the better.
v.
While dismissing the Motion before us, noting that no Respondent has opposed it, we shall order that each party should bear its costs. | Accordingly, we make the following Orders:
a.
The Notice of Motion dated 26th March 2024 is hereby dismissed.
b.
Each party shall bear its costs.
6.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/12/eng@2024-04-26 |
Petition (Application) E012 of 2023 | Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 18 (KLR) (Civ) (26 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 21 May 2024 | 2,024 | Nairobi | Civil | Dari Limited
1st Petitioner
Raphael Tuju
2nd Petitioner
Mano Tuju
3rd Petitioner
Alma Tuju
4th Petitioner
Yma Tuju
5th Petitioner
SAM Company Limited
6th Petitioner
and
East African Development Bank
Respondent | [2024] KESC 18 (KLR) | null | Brief facts
Before the Supreme Court were two notices of motion applications filed by the petitioners. The first application sought leave to adduce additional evidence while the second one sought to strike out the respondent’s replying affidavit sworn by Carol Luwaga on January 31, 2024 in response to the petitioners’ first application. On the first application, the petitioners affirm that the further witness statement adduced by the respondents was not within their knowledge and allowing additional evidence from the petitioner would remove the vagueness of the slanted historical narrative contained in the respondent’s response. On the second application, the petitioners contended that they effected service of their application to adduce additional evidence upon counsel on record for the respondent on January 30, 2024 at 8. 30AM in compliance with the Court’s directions issued on January 29, 2024. That the respondent without any justifiable cause and in total disregard of the Court’s directions purported to effect service of its unfiled response upon the petitioners electronically on February 1, 2024 at 11. 43AM; then proceeded to attempt to serve their duly filed response together with their submissions upon the petitioners on the same day at 1:40PM, which was 4 hours and 40 minutes after the Court’s stipulated time of compliance, that was 9.00AM on even date. Pursuant to rule 12 as read with rule 16 of the Supreme Court Rules, filing was only deemed to be completed upon the actual filing of documents and / or pleadings both physically and electronically. The respondent neither provided viable reasons as to the non – compliance nor was leave sought to file its response out of time; therefore, the only redress to maintain the sanctity of the Supreme Courts’ records was striking out the response. | Consequently, and for the reasons aforesaid we make the following orders:
i.
The notice of motion dated and filed on January 26, 2024 is hereby dismissed.
ii.
The notice of motion dated and filed on February 2, 2024 is hereby dismissed.
iii.
Costs of the applications shall abide the outcome of the appeal.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/18/eng@2024-04-26 |
Application E051 of 2023 | National Land Commission v Tom Ojienda & Associates & 2 others (Application E051 of 2023) [2024] KESC 16 (KLR) (26 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, I Lenaola, W Ouko | 26 April 2024 | 2,024 | Nairobi | Civil | Dari Limited
1st Petitioner
Raphael Tuju
2nd Petitioner
Mano Tuju
3rd Petitioner
Alma Tuju
4th Petitioner
Yma Tuju
5th Petitioner
SAM Company Limited
6th Petitioner
and
East African Development Bank
Respondent | [2024] KESC 16 (KLR) | null | null | Consequently, and for the reasons aforesaid we make the following orders:
i.
The notice of motion dated and filed on January 26, 2024 is hereby dismissed.
ii.
The notice of motion dated and filed on February 2, 2024 is hereby dismissed.
iii.
Costs of the applications shall abide the outcome of the appeal.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/18/eng@2024-04-26 |
Petition 34 (E035) of 2022 | Kampala International University v Housing Finance Company Limited (Petition 34 (E035) of 2022) [2024] KESC 11 (KLR) (12 April 2024) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 12 April 2024 | 2,024 | Nairobi | Civil | Kampala International University
Appellant
and
Housing Finance Company Limited | [2024] KESC 11 (KLR) | null | A. Introduction
1.
Before this court is an amended petition dated August 18, 2023 and lodged on August 22, 2023. It is brought pursuant to article 163(4)(a) of the Constitution, sections 15(2), 20, 21 and 22 of the Supreme Court Act, 2011 and the enabling provisions of the Supreme Court Rules, 2020. The appeal challenges the ruling of the Court of Appeal (Musinga (P), Murgor & Sichale, JJA) delivered in Civil Application No.E343 of 2021 on October 21, 2022, wherein the appellate court declined to grant the appellant leave to appeal against the High Court Decision emanating from sections 35 and 39 of the Arbitration Act.
B. Background
2.
Following the success of its existing campuses, the appellant (Kampala International University) was desirous of expanding into the Kenyan market. It acquired land in Kitengela with an intention to construct its Kitengela Campus at an estimated cost of USD 15,000,000.00. Similarly, sometime in 2010, the appellant approached the respondent, (Housing Finance Company Limited), and the respondent accepted to advance to the appellant a loan facility of USD 15,000,000.00 on terms and conditions set out in the parties’ correspondence and contract documents, including various Term Sheets.
3.
In January 2014, the respondent disbursed a sum of USD 10,000,000.00. As for the balance of USD 5,000,000.00, it was contended by the appellant that there was inordinate delay in the release of the same, and that the respondent thereafter only disbursed USD 1,300,000.00, but failed to disburse the balance of USD 3,700,000.00. Various reasons for the delay in disbursement, non-payment of the balance or otherwise were advanced by the parties. | E. Issues for Determination
42.
From our consideration of the pleadings, the findings of the superior courts below, and the submissions by counsel, we consider the following two issues, the determination of which should dispose of this Appeal.
i.
Whether this court has jurisdiction to hear and determine the appeal; and
ii.
Whether the appellant has met the threshold for grant of leave to appeal to the Court of Appeal.
F. Analysis
On Jurisdiction
43.
It is the respondent’s contention that this court lacks jurisdiction to determine the appeal herein. The reasons for this view are well illuminated in the foregoing paragraphs 36, 37 and 38 of this judgment. The crux of the respondent’s argument in this regard, is that on the basis of the long line of authorities cited in support, there having been no contestation regarding an issue of the interpretation or application of the Constitution, at both the High Court and Court of Appeal, no further appeal can lie before this court under article 163(4)(a) of the Constitution.
44.
The only issue before the superior courts, submits the respondent, was whether the arbitral tribunal had jurisdiction to determine the dispute, given his alleged failure to disclose his relationship with the respondent’s counsel. At the end of the day, what was at stake was whether the High Court rightly declined to set aside the arbitrator’s Award within the meaning and scope of section 35 of the Arbitration Act. As such, argues the respondent, no question turned on the interpretation and application of the Constitution.
45.
The appellant on the other hand, submits that this court has jurisdiction to determine the appeal herein, on grounds stated in the foregoing paragraphs 26 to 28 of this Judgment. It is the appellant’s submission that at the Court of Appeal, the main issue revolved around the interpretation of inter alia articles 25 and 50 of the Constitution. At any rate, argues the appellant, the question of jurisdiction is res judicata, the same having been determined in an earlier ruling by this court in Kampala International University v Housing Finance [Supra] (see paragraph 29).
46.
Before addressing ourselves regarding the question whether this court has jurisdiction to determine the appeal herein, we consider it important to restate the principle that without jurisdiction, a court of law is incapable of rendering any valid ruling, order or judgment. In the ruling cited by the appellant as authority for its contention that the issue of jurisdiction is now res judicata, all that this court did, was to preserve the substratum of the appeal by holding that the same was arguable. The said ruling did not foreclose future interrogation of whether, the court’s jurisdiction has been validly invoked, either by the court suo motu, or by a party to these proceedings.
47.
Having so stated, what then are we faced here with? What is before us is an appeal against a ruling of the Court of Appeal declining to grant leave to appeal against a High Court Judgment affirming an arbitral award under section 35 of the Arbitration Act. In Teachers Service Commission v Kenya National Union of Teachers and 3 others, SC Application No 16 of 2015; [2015] eKLR; the court observed thus:
“
In almost all cases where the Supreme Court has been called upon to invoke its jurisdiction under article 163(4)(a) of the Constitution, the court has almost invariably proceeded on the assumption that there exists a substantive determination of a legal/constitutional question by the Court of Appeal which the intending appellant seeks to impugn.
Indeed, in general, this is the rational meaning to be ascribed to the word ‘appeal’, in an adversarial system where jurisdiction is assigned by the legal norms to a hierarchy of courts.”
48.
In this case, the issue was whether article 163(4)(a) of the Constitution, confers upon the Supreme Court jurisdiction to entertain an interlocutory application, challenging the Court of Appeal’s orders issued by the latter in exercise of its discretionary authority under rule 5(2) (b) of that court’s rules. In declining to assume jurisdiction, the court held:
“
In these circumstances, we find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of that court’s rules, there being neither an appeal nor an intended appeal pending before the Supreme Court.”
49.
In Basil Criticos v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 22 of 2014; [2015] eKLR; presented with an almost similar scenario, the court stated:
“
The application before us contests the exercise of discretion by the appellate court, where there is neither an appeal, nor an intended appeal pending before this court. Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of article 163(4)(a) of the Constitution. Any square involvement of this court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, … Such an early involvement of this court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.
…
It is clear to us that an appeal against a Court of Appeal decision declining to extend time is not a matter falling under the purview of article 163(4)(a) of the Constitution. In the absence of a Judgment by the Court of Appeal, in which constitutional issues have been canvassed, what would this court be sitting on appeal over?”
50.
The Supreme Court in latter decisions, tempered the foregoing principle with some exceptions, where it could assume jurisdiction notwithstanding the fact that, an appeal before it was against an interlocutory decision by the Court of Appeal. Thus, where the Court of Appeal had made an interlocutory decision which in essence amounted to a substantive determination of a constitutional question that had been canvassed right from the High Court, the Supreme Court could rightly assume jurisdiction in an appeal arising therefrom. Indeed, such had been the case in the Hassan Ali Joho case.
51.
This principle has been variously restated in later decisions by the court. For example, in Ananias N Kiragu v Eric Mugambi & 2 others SC Application No 10 of 2019 [2020] eKLR, the court stated:
“
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question, but also on an issue that has been canvassed right from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court…”
52.
Similarly, in Paul Mungai Kimani & 2 others v Kenya Airports Authority & 3 others SC. Petition No 11 of 2019 [2021] eKLR; the Court reaffirmed this position as it stated:
“We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.”
53.
Another exception where the Supreme Court may assume jurisdiction notwithstanding the fact that the decision against which an appeal has been preferred is one which was delivered by the Court of Appeal in exercise of its powers under rule 5 (2)(b), arises if the appellate court goes beyond the preservation of the substratum of the appeal, and issues orders that are likely to occasion an injustice to one of the parties. Such was the case in Deynes Muriithi & 32 others v Law Society of Kenya & anor; SC. Application No 12 of 2015 [2015] eKLR wherein, in issuing a Stay under rule (5) (2)(b), the appellate court went further to issue an ancillary order in the following terms:
“
That the monies due from the respondents towards the intended construction of the Law Society of Kenya International Arbitration Centre be deposited in an interest earning account in the joint names of learned counsel for all the parties herein to be opened in any sound financial institution to be mutually agreed upon by learned counsel for all the parties herein within thirty (30) days of the date of the reading of this ruling.”
54.
In setting aside, the above order, the Supreme Court observed thus:
“We are concerned about the justice of the case. With the appellate court ordering that ‘the monies due from the respondents (applicants herein) be deposited in an interest earning account.” The effect of this order is to require the applicants to pay up the sums which are in contention and which form the subject-matter of the petitions before the High Court. It cannot be gainsaid, that the order of the Court of Appeal has a pre-emptive effect on the petitions pending before the High Court where the applicants hope to be accorded a fair hearing.”
55.
We now turn to the question before us, i.e. whether we have jurisdiction to determine this appeal. The arguments by both parties regarding this issue have already been elaborately set out in the foregoing paragraphs of the judgment. It is instructive to note that the impugned judgment by the Court of Appeal, is interlocutory in nature, and as such must be weighed against the established principles in the decisions by this court as discussed above. It is also important to restate the fact that, the appeal herein is against a decision by the Court of Appeal, declining to grant leave to appeal, not to this court, but to the appellate court itself. The intended appeal is against a judgment of the High Court affirming an Arbitral Award. On the face of it, and weighed against our decision in the Teachers Service Commission case, [supra], this court would ordinarily have no jurisdiction to determine the appeal, there being no pending appeal or an intended appeal before us.
56.
However, the appellant has strongly submitted that what was before the High Court and Court of Appeal was a question of constitutional interpretation, the determination of which is being appealed to this court. Such a scenario would bring the intended appeal within the exception to the general rule as enunciated in the Hassan Ali Joho, Ananias Kiragu, and Paul Mungai Kimani decisions (Supra). The respondent on the other hand, in its preliminary objection is categorical that the only issue before the Court of Appeal was whether in its application for leave to appeal, the applicant had met the threshold set out by this court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited & another [2019] eKLR and Synergy Industrial Credit v Cape Holdings Ltd [2019] eKLR.
57.
The question as to whether an appeal lies as of right to the Court of Appeal against a decision of the High Court decision under section 35 of the Arbitration Act was settled with finality by this court in the Nyutu Agrovet case (supra). The court stated;
“
In concluding on this issue, we agree with the interested party to the extent that the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under section 35 is where the High Court, in setting aside an arbitral award, has stepped outside the grounds set out in the said section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties. This circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.”
58.
The court went on to state that leave would have to be sought from and granted by the Court of Appeal before an intending appellant files the appeal. This mechanism would in the words of the court:
“
be the answer to the process by which frivolous, time wasting and opportunistic appeals may be nipped in the bud and thence bring arbitration proceedings to a swift end.”
59.
This principle was restated in the Synergy case wherein the court stated:
“For the avoidance of doubt, we hereby restate the principle that not every decision of the High Court under section 35 is appealable to the Court of Appeal. It also follows therefore that an intended appeal, which is not anchored upon the four corners of section 35 of the Arbitration Act, should not be admitted. In this regard, an intended appellant must demonstrate (or must be contending that) in arriving at its decision, the High Court went out of section 35 of the Act for interfering with an arbitration award.”
60.
In determining whether to grant leave to appeal, the Court of Appeal framed one issue for determination, ie, whether the applicant had met the threshold for grant of such leave as set out by this courtin the Nyutu Agrovet case. The appellate court answered the question in the negative, having held that the applicant sought to challenge the jurisdiction of the Arbitral Tribunal notwithstanding the fact that, the arbitrator had been appointed by consent of the parties. At any rate, the court held, any challenge to the arbitrator’s tribunal on grounds of bias, ought to have been made during the arbitral proceedings in accordance with sections 13, 14 and 17 of the Arbitration Act.
61.
We are, in agreement with the respondent to the effect that indeed, the only issue that was before the Court of Appeal was whether the applicant had met the threshold for grant of leave as established by this court in the Nyutu and Synergy cases [Supra]. We see no constitutional issue that had been canvassed at the High Court, the determination of which, was substantively decided by the Court of Appeal.
62.
The appellant submits that by being denied the opportunity to make oral submissions in support of its argument challenging the jurisdiction of the Arbitrator, the High Court violated its right to a fair hearing under article 50 of the Constitution. This submission did not find favour, and rightly so in our view, with the Court of Appeal. It is this same argument that the appellant has advanced before us in a bid to bring the appeal within the ambit of article 163(4)(a) of the Constitution. This court has consistently held that the mere claim by a party to the effect that its rights were violated by a superior court for whatever reason, does not bring the intended appeal within the purview of article 163(4)(a) of the Constitution. The appeal herein does not fall within any of the exceptions which would justify this court’s assumption of jurisdiction over a ruling by the Court of Appeal, there being no pending or intended substantive appeal therefrom. The Court of Appeal has jurisdiction when leave is sought to appeal the decision of the High Court on the setting aside an arbitral award under section 35, to interrogate the substance of the intended appeal. Thus, in Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR we elucidated the issue as follows:
“After our pronouncements in Nyutu and Synergy, it is not possible that the Court of Appeal can grant leave to appeal from a section 35 Judgment of the High Court without interrogating the substance of the intended appeal, to determine whether, on the basis of our pronouncement, such an appeal lies"
In fact, we are satisfied that, by declining to grant leave to appeal in the circumstances of this case, the Court of Appeal was correctly guided by our decisions in Nyutu Agrovet and Synergy [supra].
63.
Consequently, there is no basis upon which this court can assume jurisdiction to overturn or otherwise deal with the Court of Appeal’s decision declining to grant leave to appeal to the appellant herein. This conclusion also disposes of the second issue that we had framed for determination.
64.
The following orders shall issue:
G. Orders
65.
i.
The amended petition of appeal dated August 18, 2023is hereby dismissed;
ii.
The costs of this appeal shall be borne by the appellant. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/11/eng@2024-04-12 |
Advisory Opinion Reference E001 of 2023 | Legal Advice Centre t/a Kituo Cha Sheria v Attorney General (Advisory Opinion Reference E001 of 2023) [2024] KESC 15 (KLR) (12 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 12 April 2024 | 2,024 | Nairobi | Civil | Legal Advice Centre t/a Kituo Cha Sheria v Attorney General | [2024] KESC 15 (KLR) | null | A. Introduction
1.
The applicant, by way of Reference No. E001 of 2023 and dated May 31, 2023, seeks to invoke the Supreme Court’s Advisory Opinion Jurisdiction pursuant to the provisions of article 163(6) of the Constitution.
2.
The applicant seeks an advisory opinion from this court on the following questions:
a.
Whether there is a limitation to exercise the rights under article 37 of the Constitution;
b.
Under what circumstances can this right provided for under article 37 of the Constitution be invoked;
c.
Whether states can interfere with the right to freedom of assembly;
d.
In the event of executing the right under article 37 of the Constitution, who should be held liable for losses and damages to property;
e.
Whether the police play any role regarding article 37 in case the demonstrations lead to destruction of property, injuries and death;
f.
Whether the Bill of Rights under Chapter 4 of the Constitution (in particular freedom to demonstrate) should be enjoyed by some citizens at the expense of others;
g.
Whether there is need for reasonable restrictions to protect public safety, national security, public order or the rights and freedoms of others;
h.
Whether there is need to balance the interest of protestors and the interest of the public;
i.
Whether courts and legal authorities can engage in a balancing exercise to weigh the rights of assembly, demonstration, picketing and petition against competing interests;
j.
Whether violence, destruction of property and disruption of public order can lead to legal consequences;
k.
Whether there is legal recourse for violations of the rights to assembly, demonstration, picketing and petition.
3.
The respondent filed a Notice of Preliminary Objection dated July 21, 2023 arguing that the applicant, being a Non-Governmental Organization, is not the National Government, a State organ, or County Government as provided for under the provisions of article 163(6) of the Constitution and, therefore, lacks locus standi to initiate the reference or be heard on the same as a party.
4.
That question raised in regard to locus standi of a party goes directly to the issue of whether the Court has jurisdiction to hear this matter. It is therefore imperative that this court should settle this question at the onset before moving forward with the hearing of the reference itself. | C. Analysis
18.
The court’s jurisdiction to give an advisory opinion is provided for in article 163(6) of the Constitution, which states:
“
(6)
The Supreme Court may give an advisory opinion at the request of the national government, any State organ or any county government with respect to any matter concerning county government.”
Similarly, section 13 of the Supreme Court Act, No. 7 of 2011 reads as follows:
(1)
The Court may give an advisory opinion under article 163(6) of the Constitution at the request of
a.
the national government;
b.
a State Organ; or
c.
a county government with respect to a matter concerning the county government.
Therefore, the only parties who may apply for an advisory opinion are, the National Government; a State organ; or any County Government with respect to any matter concerning county government.
19.
As submitted by the respondent’s counsel, the court has previously pronounced itself on this question in many cases. For instance, In the Matter of Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011; [2011] eKLR pars.35, 36 & 83: In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2 of 2012; [2012] eKLR, pars. 7: Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) Advisory Opinion Reference No. 1 of 2017; [2020] eKLR, pars. 41 & 42: and In the Matter of the National Gender and Equality Commission Reference No. 1 of 2013; [2014] eKLR.
20.
In the case of In the Matter of Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011; [2011] eKLR, this court set out the guidelines for the exercise of the its advisory-opinion jurisdiction. They are:
“
(83)
With the benefit of the submissions of learned counsel, and of the comparative assessments recorded herein, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction.
i.
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of article 163(6): it must be ‘a matter concerning county government.’ The question as to whether a matter is one ‘concerning county government’, will be determined by the court on a case-by-case basis.
ii.
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae.
iii.
The court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
iv.
Where a reference has been made to the court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through an adversarial court process.
21.
It is noteworthy to point out that since the issuance of the above Judgment in 2011, the Rules of this court have since been changed and now disallow even interested parties as interveners or parties in a reference matter for advisory opinion. Rules 50(1) and 51(1), (2) and (5) of Supreme Court Rules 2020 now read and state as follows:
“
50
(1)
The national government, state organ or a county government may make a request for an advisory opinion and briefly state the question upon which advice is sought.
…..
51.
(1)
A person filing a reference may propose that the courtmay consider admitting any other person to participate in the reference.
2.
Despite sub-rule (1) the courtmay on its own motion identify any other person to participate in the reference.
…..
(5)
Any application for joinder as interested party in a reference shall not be allowed.”
22.
Article 260 of the Constitution defines what a State organ is. A State organ is defined as “a commission, office, agency or other body established under the Constitution.” Suffice it to say, the applicant does not fall within any of the bodies that may approach the court for an advisory opinion. Neither has the applicant been proposed by a person who has filed a reference in accordance with rule 50 nor has the court admitted them to enjoin a filed reference. They cannot also be allowed to join as an interested party.
23.
On adopting a broader interpretation of this court’s jurisdiction, Dr. Khaminwa urged the courtnot to confine itself to the provisions of the law. He also argued that the applicant was a person therefore falling under the umbrella of the national government, State organ and/or county government since they are also made of people.
24.
In answer to this, we refer to the guidelines of constitutional interpretation as postulated under article 259(1) of the Constitution. It provides as follows:
This Constitution shall be interpreted in a manner that-
a.
promotes its purposes, values and principles;
b.
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c.
permits the development of the law; and
d.
contributes to good governance.
25.
This court has on a number of occasions rendered itself on what ought to be considered when interpreting the Constitution. In essence, the Constitution ought to be construed holistically and in a manner that does not destroy any other constitutional provision, that is to say, in a complementary manner. It, however, goes without saying that it would create a total state of anarchy in the judicial system if any person could approach this court for an advisory opinion based purely on the fact that they are ‘the people’ and in so doing, disregard the provisions, procedures and safeguards contained both in statute and the Constitution.
26.
Learned counsel further invited us to declare that jurisdiction can be conferred out of necessity. There is a plethora of authorities on jurisdiction. Jurisdiction flows from the Constitution, statute law or by principles laid out in judicial precedent. See In the Matter of Interim Independent Electoral Commission, (supra). In an application by the Council of Governors for an Advisory Opinion, Council of Governors v Attorney General& 7 Others, SC Reference No 2 of 2017; [2019] eKLR we were called upon to answer whether the applicant, Council of Governors, is a State Organ within the provisions of article 260 of the Constitution so as to be clothed with the locus standi to seek an advisory opinion before this court. In declining to do so, despite concerted argument by COG and Katiba Institute to liberally interpret the Constitution and exercise our discretion to render an Advisory opinion, we held as follows:
“
(55)
Hence we find that the definition of a State Organ under article 260 to include agency or other body established under this Constitution, does not cover the applicant. It is thus clear that the applicant is not a commission, office, agency or body established under the Constitution. The constituting statute is the IRA which by any definition cannot grant the applicant constitutional credentials.”
27.
In the same manner, we are not persuaded that the applicant herein has the requisite locus standi. While the High Court has unlimited original jurisdiction in criminal and civil proceedings as per article 165(3)(a) of the Constitution, the parameters of the jurisdiction of the Supreme Court, are not as unlimited and are clearly set out in article 163 of the Constitution and sections 12, 13 and 13A of the Supreme Court Act, Cap 9B of the Laws of Kenya. We cannot arrogate jurisdiction to ourselves where the same is not expressly conferred. We therefore find the applicant has no locus before this court and the reference as filed must be dismissed. As for costs, the settled principle is that they should follow the event.
D. Orders
28.
Consequently, we make the following orders:
i.
The respondent’s Notice of Preliminary Objection dated July 21, 2023 is hereby allowed.
ii.
The applicant’s Reference dated May 31, 2023 is hereby struck out and dismissed.
iii.
The applicant shall bear the costs of this reference.
Orders accordingly. | Allowed in Part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/15/eng@2024-04-12 |
Application E052 of 2023 | Mabavu & 6 others v Bahati Properties Limited (Application E052 of 2023) [2024] KESC 8 (KLR) (12 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 12 April 2024 | 2,024 | Nairobi | Civil | Said M. Mabavu
1st Applicant
Anna W. Dereva
2nd Applicant
Abdalla Mwachibulo
3rd Applicant
Fatuma Nchizumo
4th Applicant
Omar Mashaka
5th Applicant
Mahfudhi Mohamed Mwamtuku
6th Applicant
Rama Matano Mwarinda
7th Applicant
and
Bahati Properties Limited
Respondent | [2024] KESC 8 (KLR) | null | 1.
Upon reading the Originating Motion taken out by the Applicants dated 21st December 2023 and filed on 6th February 2024 pursuant to Articles 159(2)(a), (d) & (e), 163(4)(b) & (5) and 259(1) of the Constitution, Section 15B of the Supreme Court Act 2011 and Rule 33 of the Supreme Court Rules 2020 for orders that this Court; be pleased to review the Ruling of the Court of Appeal (Murgor, Laibuta & Odunga, JJ.A) delivered on 8th December 2023 declining to certify the intended appeal by the applicants to this Court from the judgment of the Court of Appeal in Civil Appeal No. 141 of 2019 as constituting a matter of general public importance; to certify the intended appeal as constituting a matter of general public importance and grant leave to the applicants to file a petition of appeal against the judgment of the Court of Appeal; and that costs of the application be provided for; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit sworn by Said M. Mabavu, on his own behalf and on behalf of the 2nd to 7th applicants, as well as their submissions filed on 6th February 2024, in which the following twelve issues arising from the decision of the Court of Appeal are raised as involving matters of general public importance:
i.
The perennial topic or irregular registration of proprietary interest at the coastal strip which has left many indigenous communities as squatters in their ancestral land resulting in historical injustices is yet to be addressed since the promulgation of the Constitution of Kenya, 2010;
ii.
Whether the applicants’ constitutional right to property in the suit property arose before the registration of the same and issuance of a lease by the colonial Government in 1914 was to the disenfranchisement of the applicants’ ancestors.
iii.
The issue of historical land injustice visited upon, not only the applicants but a majority of residents of the coastal region of Kenya by disenfranchisement of their ancestral property as indigenous people by the colonial Government;
iv.
Whether a person has a legitimate expectation that once allotted and issued with a title deed over a parcel of land, the State had powers to do so, and the person acquires property rights in the same (sic);
v.
Whether the State’s negligence in the issuance of multiple title deeds over the suit property should be visited on either of the parties, especially where none of the parties has engaged in fraudulent conduct;
vi.
Whether the State’s negligence in the issuance of multiple title deeds over the suit property should be borne by the State and if the applicants are to be compensated if the Court were to come to the conclusion that the suit property belonged to the respondent;
vii.
Whether land that was previously compulsorily acquired by the government for a particular purpose or a portion of it can be subsequently put to a different use or even allotted to private individuals for their use;
viii.
Whether private property that is acquired through compulsory acquisition and only a portion of it is put to public use, it can be found that only the portion put to public use was properly acquired;
ix.
Whether a title to land that has been acquired by the government through compulsory acquisition in public interest can still be available for renewal of lease and sale to a third party and the process to be followed when such a title is challenged;
x.
The value that members of the public should place on documents that originate from public offices and particularly how to deal with a situation where two title deeds both of which are genuinely processed and obtained from the land registry in relation to the same property;
xi.
Whether it is proper to render a community as squatters on their own property despite the fact that they are holding a title deed to the property; and
xii.
Whether or not the suit property was properly acquired by the Government, whether or not it was public land at the time of allocation to the applicants, and whether or not it was available for allocation; and
1.
Bearing in mind the following facts which precipitated this land dispute wherein the parties have competing interests over land that was previously registered as Kwale/Diani Beach Block/59 but is now known as Kwale/Diani Beach Block/149 (the suit property). On the one hand, the applicants contend that they are the rightful owners of the suit property on the basis that prior to the first registration by the British Colonial Authorities in 1914, the suit property belonged to their forefather, one Mwachimwindi Diya, who was forcefully evicted from it by the colonial government without any compensation. Given the historical injustice, they petitioned the late President Daniel Arap Moi who directed the Commissioner of Lands to allot to them the suit property which was vacant and undeveloped in 2001. On the other hand, the respondent contends that it is the rightful registered proprietor of the leasehold interest in the suit property, having bought it in 1992 from Prince Sadruddin Aga Khan, a 99-year lessee of the Government of Kenya from 1st January 1914. It was the respondent’s case that it purchased the suit property at a consideration of Kshs.11,000,000 and the lease dated 18th September 1992 was subsequently transferred to it by Prince Sadruddin Aga Khan. In the circumstances therefore, the land was not available for allocation to the applicants as claimed; and
2.
Given the competing claim over the ownership of the suit property by the applicants, the respondent filed a suit in the Environment and Land Court (ELC) at Mombasa, ELC No. 31 of 2015, against the Attorney General, the Land Registrar, Kwale, and the applicants challenging the purported allotment and subsequent
issuance of title over the suit property to the latter as illegal, fraudulent, and null and void; and
5.
Upon evaluating the two competing claims, the ELC (Omollo, J.), found in favour of the respondent and granted all the prayers sought, finding, inter alia, that Kwale/Diani Beach Block/ 59 and Kwale/Diani Beach Block/149 refer to one and the same parcel of land; that since the suit property had been leased to the respondent and there was in existence a valid lease at the time the applicants sought allotment of the suit property under the provisions of the repealed Government Lands Act, the property was not available; and therefore, the allotment to the applicants was illegal, null and void; and
6.
Dissatisfied, the applicants challenged this outcome in the Court of Appeal contending that parcel Kwale/Diani Beach Block/ 59 was compulsorily acquired by the Government in 1975 and therefore in 1992 it was not available for sale by Prince Sadruddin Aga Khan to the respondent. The appellate court (Warsame, Musinga & Murgor JJ.A), found that there was only partial acquisition of parcel Kwale/Diani Beach Block/ 59, which reduced its size from 25 acres to 23.25; and that it is the remaining portion that was given parcel No. Kwale/Diani Beach Block/149, the suit property. Moreover, they observed that ideally, the title for Kwale/Diani Beach Block /59 ought to have been cancelled, but somehow was not. Consequently, Prince Sadruddin Aga Khan remained in actual possession of the land, until he sold and transferred his leasehold interest thereto to the respondent, albeit as Kwale/Diani Beach Block/ 59. Ultimately, in dismissing the appeal, the appellate court found that neither the President of Kenya nor the Commissioner of Lands had the power to allot the suit property to the applicants; and
7.
Aggrieved once again by this determination, the applicants sought before the Court of Appeal an order for stay of execution and a certification that its intended appeal to the Supreme Court raised a matter of general public importance in terms of Article 163(4)(b) of the Constitution. The Court of Appeal in the impugned ruling rejected that argument and found instead that the questions of allocation of alienable and unalienable land together with the powers of the President of Kenya and Commissioner of Lands to allot land are not novel issues to place before the Supreme Court for determination. What was more, it found that the applicants had neither specified the elements of law that remained unsettled nor had they specified how the conclusions would impact third parties. In the end, the appellate court dismissed the application for failure to meet the threshold for certification; and
8.
Upon considering the applicants’ submissions dated 6th February 2024 where they reiterate that the issues which they intend to raise before the Supreme Court, and which we have set out in paragraph 2 above; that they, transcend the circumstances of this matter; will affect a considerable section of the populace; touch on the subject of land rights; the powers of public bodies to alienate and allocate public land; have a significant bearing on the public interest; and that the question of proof and validity of compulsory acquisition, has been the subject of conflicting decisions of the Court of Appeal. They have cited, in this regard, the decisions in Commissioner of Lands & another v. Coastal Aquaculture [1997] eKLR, and Kenya National Highway Authority v. Shalien Masood Mughal & 5 others [2017] eKLR. They urge in that context that, on the facts of this case, both superior courts below erred in finding that the government had not compulsorily acquired the suit property, hence the need for this Court to settle the opposing views expressed by the Court of Appeal on the test for compulsory acquisition. In their view, therefore, the test enunciated in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, SC App. No. 4 of 2012; [2013] eKLR has been met; and
9.
Noting the respondent’s grounds of opposition, replying affidavit of Sheba Mohamed, the respondent’s Company Secretary, and the submissions filed on its behalf, all dated 12th February 2024, to the effect that the Motion: raises new issues that were not raised, canvassed and determined before both superior courts below; does not set out the specific elements of general public importance; does not disclose any uncertainty on points of law that need clarification by this Court for the common good; and does not identify the lacuna in law to be filled, since the law on the questions intended to be raised is settled and clear. In any case, that the issue of partial compulsory acquisition of private property was conclusively determined by this Court in Town Council of Awendo v. Nelson Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties) [2019] eKLR. Similarly, the test for proving the validity of compulsory acquisition was the subject of this Court’s judgment in Attorney General v. Zinj Limited, [2021] KESC 23 (KLR); and
10.
Guided by principles enunciated by this Court in Hermanus Phillipus Steyn (supra) and Malcolm Bell v. Daniel Toroitich Arap Moi & Another,SC Appl. No. 1 of 2013 [2013] eKLR; and | Having considered the totality of the application, affidavits, and rival arguments by the parties on both sides, we opine as follows:
i.
The issues proposed to be certified as constituting matters of general public importance revolve around the perennial subject of irregular registration of proprietary interests at the coastal strip, allocation of alienable and inalienable land, compulsory acquisition, issuance of multiple title deeds by the government over the same property and the claim by local residents of disenfranchisement of ancestral land. According to the applicants, there are conflicting decisions by the Court of Appeal on the question of the test of compulsory acquisition, which requires from this Court a final pronouncement. To begin with, this question was never raised, argued and determined by the Court of Appeal in both the appeal and the application for certification.
ii.
On the peculiar facts in the Commissioner of Lands & another v. Coastal Aquaculture (supra) and the Kenya National Highway Authority v. Shalien Masood Mughal & 5 others (supra) the Court of Appeal, respectively, merely emphasized the importance of ensuring that the procedure for compulsory acquisition is strictly complied with and declared that parties cannot challenge a process of compulsory acquisition that preceded their alleged acquisition of land. The dispute and the determination in the two decisions are distinguishable and we are unable to see the apparent conflict between them.
iii.
Moreover, the question of reversionary interests in or pre-emptive rights over compulsorily acquired land have long been settled by this Court in Town Council of Awendo v. Nelson O Onyango (supra), just as has been the question of the process of compulsory acquisition as affirmed by this Court in Attorney General v. Zinj Limited (supra).
iv.
Consequently, we find that the applicants have not satisfied the now firmly established test for certification under Article 163(4)(b) of the Constitution. We are also not persuaded that there are conflicting decisions that deserve the Supreme Court’s further or final pronouncement.
v.
Like the appellate court, we find that this is a spirited and ingenious attempt by the applicants to have a second bite at the cherry by seeking to revisit factual findings and conclusions already resolved by the superior courts below. Mere apprehension of miscarriage of justice and determinations of fact in contests between parties are not, by themselves, a basis for granting certification to appeal to the Supreme Court.
vi.
Ultimately, we find no fault in the Court of Appeal’s conclusion that the proposed issues do not meet the threshold set out in Hermanus Phillipus Steyn (supra) and Malcolm Bell (supra).
vii.
As costs are discretionary and follow the event, the applicants shall bear the costs of this application.
12.
Accordingly, we make the following orders:
i. The Originating Motion dated 21st December 2023 and filed on 6th February 2024 is hereby dismissed.
ii.
The Ruling of the Court of Appeal delivered on 8th December 2023 denying leave to appeal to this Court is hereby upheld.
iii.
The costs of this application shall be borne by the applicants.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/8/eng@2024-04-12 |
Petition (Application) E033 of 2023 | Sehmi & another v Tarabana Company Limited & 5 others; Law Society of Kenya (Proposed Interested Party) (Petition (Application) E033 of 2023) [2024] KESC 13 (KLR) (12 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, I Lenaola, W Ouko | 12 April 2024 | 2,024 | Nairobi | Civil | Sehmi & another v Tarabana Company Limited & 5 others; Law Society of Kenya | [2024] KESC 13 (KLR) | null | Upon perusing the notice of motion dated January 22, 2024, and filed on January 23, 2024, by the applicant pursuant to articles 50(1), 159 and 163 of the Constitution, sections 3, 3A, 11A and 23(2B) of the Supreme Court Act 2011, rules 2, 3, 12, 13, 18, 22, 24, 31 and 64 of the Supreme Court Rules 2020, and the Supreme Court (General) Practice Directions 2020; seeking leave for admission as an interested party; thereafter, an opportunity to file a response and submissions to the petition; and no order as to costs; and
2.
Upon reading the grounds on the face of the application, and supporting affidavit sworn by Florence W. Muturi, the Chief Executive Officer of the Law Society of Kenya, on January 16, 2024, wherein she avers that, the applicant’s prayers are in line with its statutory mandate, being a representative of advocates tasked with overseeing due diligence in the transfer of property; the applicant intends to assist the court in clarifying the uncertainty in case law, regarding inter-alia applicability of the mirror principle, curtain principle, indemnity principle, the principle of indefeasibility of title under the Land Registration Act 2012, and its predecessor, the Registered Land Act, and the common law principle of Nemo dat quod non habet; and
3.
Upon further considering the applicant’s additional grounds to the effect that, in line with its objectives under section 4 of the Law Society of Kenya Act, it seeks to assist the court in settling the issues in question, and in so doing, provide guidance to the courts, practitioners, and the general public; protect the Constitution, advance the rule of law and the administration of justice. In addition, the applicant avers that it has met the principles for admission as an interested party established by this court in Francis Karioki Muruatetu & another v Republic & 5 Others, SC Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015 [2016] eKLR (the Muruatetu Case); and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, SC Petition No. 12 of 2013; [2015] eKLR; and
4.
Upon considering the applicant’s submissions dated January 22, 2024and filed on January 23, 2024, wherein the applicant reiterates its grounds in support; and further submits that it has a non-partisan role in the proceedings, and is apprehensive that the parties herein will inadequately articulate and canvass the delineated issues affecting its members’ practice, within the limited confines of their respective interests; and
5.
Upon considering the 1st and 2nd appellants’ grounds of opposition and written submissions both dated January 31, 2024, and filed on February 1, 2024, to the effect that the applicant has failed to file a response to the appeal before seeking leave to be joined as an interested party in contravention of rule 24(1) of the Supreme Court Rules; disclose its case, grounds, or file draft submissions it intends to advance before the court in contravention of rule 24(2), indicate the specific relevance it would add to the proceedings, and substantial departure (if any) from arguments advanced by the parties; and, demonstrate any personal interest or proximate stake in the appeal as well as the prejudice it would suffer if the application is denied. Ultimately, it is urged that the applicant has failed to meet the threshold for admission as an interested party established in Attorney General v David Ndii & 73 Others (Petition 12 (E016) of 2020) [2021] KESC 17 (KLR); and
6.
Further noting that the 3rd, 5th and 6th respondents vide their grounds of opposition and written submissions, both dated 31st January 2024, and filed on 1st February 2024, opposed the Motion on similar grounds as the appellants, and further submit that the mere claim that one seeks to protect the public interest, is an insufficient ground for joinder of an interested party; and
7.
Upon reading the applicant’s further affidavit sworn by Florence W. Muturi on February 5, 2024 in response to the appellants’ and respondents’ arguments, in which it contends that, its factual depositions have not been controverted by the objectors; the assertion that filing a response is a prerequisite to an application for joinder as an interested party is a gross misinterpretation of the Supreme Court Rules; filing a response only accrues as of right to the respondents, therefore any other party must seek leave of the court before lodging any pleading; it has clearly identified its stake in the proceedings, and at this juncture, it cannot adequately elaborate its departure from the parties’ submissions to the appeal as the same are yet to be filed; and
8.
Having read and considered the applicant’s supplementary submissions dated February 7, 2024 and filed on even date, wherein the applicant restates its averments and further urges that; it should be allowed to prosecute its cause taking into account its role as an interested party that was not involved in the proceedings before the superior courts below; and the claim that it seeks to establish a new case is unsubstantiated; and
9.
Bearing in mind that the Court of Appeal in its ruling dated November 10, 2023, certifying the appeal as one involving a matter of general public importance, identified three issues, viz: legitimate expectation in the renewal of leases; whether an irregular allocation can create a genuine title; and whether anV*innocent purchaser’s title can be challenged; and | We now determine as follows:
i.
Having carefully appraised the application, the responses thereto and submissions by the parties, and guided by the provisions of rule 24 of the Supreme Court Rules 2020, and the principles established by this court in the Muruatetu case, we find that the issues highlighted by the applicant have been largely addressed by the parties to the appeal;
ii.
Specifically, the applicant has neither identified any personal interest or stake that is clearly identifiable and proximate, nor the prejudice it is likely to suffer in case of non-joinder;
iii.
Furthermore, the applicant has not demonstrated the relevance of its submissions to the issues of general public importance identified by the Court of Appeal;
iv.
In any event, the applicant’s submissions go beyond the delineated questions. As such, we do not see any basis upon which the applicant can be admitted as an interested party; and
v.
While costs should generally follow the event in view of this court’s decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 Others, SC Petition No. 4 of 2012; [2013] eKLR, we find that in these circumstances, the appropriate order is for each party to bear their own costs. We recognize that the applicant was motivated by its statutory mandate, save that the issues delineated by the Court of Appeal are well covered by the primary parties.
12.
Consequently and for the aforestated reasons, we make the following orders:
a.
The notice of motion dated January 22, 2024 and lodged on January 23, 2024, is hereby dismissed;
b.
Each party shall bear its own costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/13/eng@2024-04-12 |
Petition (Application) E033 of 2023 | Sehmi & another v Tarabana Company Limited & 5 others; Mbugua Ng’ang’a & Co. Advocates (Applicant) (Petition (Application) E033 of 2023) [2024] KESC 9 (KLR) (12 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | SC Wanjala | 12 April 2024 | 2,024 | Nairobi | Civil | Sehmi & another v Tarabana Company Limited & 5 others; Mbugua Ng’ang’a & Co. Advocates | [2024] KESC 9 (KLR) | null | Uponperusing the Motion dated 31st January 2024 and lodged on 8th February 2024 brought pursuant to Rule 18 (6) and (7) of the Supreme Court Rules, 2020 seeking the following orders, that: the firm of Mbugua Ng’ang’a & Company Advocates (hereinafter, ‘the firm’) be granted leave to cease from acting for Rospatech Limited; and costs of this application be provided; and
2.
Uponreading the affidavit in support of the Motion sworn by George Ng’ang’a Mbugua, Advocate on 31st January 2024, wherein, he depones that his client, the 2nd respondent herein, has ceased contact and that despite several reminders, has failed to give him proper instructions and is therefore unable to proceed with the Petition; and
3.
Uponconsidering the applicant’s written submissions dated 7th February 2024, and filed on 8th February 2024, as well as the Affidavit of Service sworn on 13th February 2024, in which Counsel submits that the 2nd respondent was served with the present application and its attendant directions electronically on 12th February 2024, through its Director Martin Njuguna on WhatsApp via his last known telephone number and email address, pursuant to Section 16 of the Supreme Court Rules 2020; and
4.
Bearing in mindthat the application was served upon all other parties and is uncontested, and further considering that Section 23(2)(g) of the Supreme Court Act, 2011 grants a single Judge jurisdiction to determine the application in the following terms:
23.
Exercise of powers of the Court
(2)
A single judge may hear and determine an application for the following preliminary procedures—
(g)
withdrawal of an advocate to cease acting for a party; | I opinethat, a court of law cannot compel counsel to continue acting for a party, who has lost touch or interest in the matter for whatever reason.
6.
Accordingly, I now make the following Orders:
a.
The Notice of Motion dated 31st January 2024, and lodged on 8th February 2024, is hereby allowed.
b.
Consequently, the Firm of M/s Mbugua Ng’ang’a & Co. Advocates, is hereby granted leave to cease acting for the 2nd respondent;
c.
The costs of this application shall be borne by the 2nd respondent.
It is so Ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/9/eng@2024-04-12 |
Application E048 of 2023 | Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others (Application E048 of 2023) [2024] KESC 14 (KLR) (Civ) (12 April 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko | 12 April 2024 | 2,024 | Nairobi | Civil | Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others ( | [2024] KESC 14 (KLR) | null | Upon perusing the Originating Motion by the applicant dated 1st December, 2023 and filed on 8th December, 2023 pursuant to Articles 159, 163(4)(b) and (5) of the Constitution, Sections 3A, 15, 15B and 21 of the Supreme Court Act, 2011 and Rules 33 (2) and (3) of the Supreme Court Rules, 2020 seeking inter alia: a review of the Court of Appeal decision declining to grant certification of the intended appeal as a matter of general public importance, and leave to appeal to the Supreme Court against the judgement of the Court of Appeal.
2.
Upon perusing the proposed issues for consideration, the grounds on the face of the application, supporting affidavit sworn by Maina Njanga, counsel for the applicants, and written submissions all dated 1st December 2023 and filed on 8th December 2023 wherein he submits that the intended appeal raises issues of general public importance and in particular;
a.
Whether the setting apart of the suit property, formerly a trust land under the repealed Constitution vested in the 3rd respondent to hold in trust for the communities ordinarily residing in the area, was done in accordance with section 118 of the repealed Constitution and whether, a community land under the said Constitution would be set apart without concurrence of the community and the local county council as trustee of the said land.
b.
Whether a public interest suit such as the instant one where the applicants have been found by the superior court below to have locus standi should be dismissed on the account that the applicants did not seek written authority of all the community members represented pursuant to Order 1 Rule 13 of the Civil Procedure Rules and whether such requirement runs against Article 159 of the Constitution as read with Article 258 thereby depriving a community its proprietary rights in community land in the face of injustice.
c.
Whether trust land may be set apart in favour of a private company for private use and whether the private company is “which shares are held by on behalf of the Government of Kenya” under Section 118 (2) of the repealed Constitution and the information on the beneficial ownership of the shares is solely within the knowledge of the government officer (s), are the applicants still duty bound bear the burden of proof under Section 107 of the Evidence Act as opposed to shifting the burden to the Respondents under Section 112 of the Evidence Act?
d.
Whether decision of the Court of Appeal in the instant case contradicts another decision of the same Court of Appeal, Funzi Development Limited v. County Council of Kwale [2014] eKLR on the import of Section 2 (d) of the Registered Land Act (repealed) which provided that the Act is applicable to “all land from which time to time is set apart under Section 117 and 118 of the Constitution” and there is need for the Supreme Court to provide guide for the courts to avoid inconsistencies, uncertainty and conflicting decisions in the superior courts below on the issue.
3.
The applicant reiterates that there is contradiction as to whether a litigant can have locus standi to bring a suit in public interest and at the same time not have the same on account of lack of authority of the public or the group he or she is representing; the process of setting apart contemplated in Section 118 of the repealed constitution allowed setting apart to be made to a private company registered in Kenya and ‘in which shares are held on behalf of the Government of Kenya’, the burden of proof therefore shifted to the Respondents to prove that their shareholding of 1st Respondent is solely with the government of Kenya. Further, that under Section 2 of the Registered Land Act (RLA) the title to the 1st Respondent ought to have been issued under RLA but was issued under RTA, the Court of appeal in upholding the indefeasibility of the title took a different approach from that taken by the same court (differently constituted) in Funzi Development Limited vs. County Council of Kwale Civ. Appeal No. 252 of 2005 [2014] eKLR. Lastly, that the Supreme Court ought to be given an opportunity to determine what ‘consultation’ means in setting apart of vast community land.
4.
Upon perusing the 2nd Respondent’s submissions dated 1st February 2024 and filed on 5th February 2024 wherein it is submitted that the issues herein are private and do not extend into the arena of general public importance; the applicants have failed to show that the issues they intend to raise relate to an uncertain area of law emanating from contradictory precedents thus requiring the Supreme Court to resolve the established uncertainty; the grounds and facts cited in the application were not pleaded before the trial court and the Court of Appeal. The issue before the Court of Appeal neither concerned the application nor the interpretation of the Constitution. The application is therefore without merit as it purports to, for the first time, mutate into a constitutional petition.
5.
The 2nd Respondent further submits that the applicants’ failure to file the application for certification in the Court of Appeal within the time prescribed by Rule 42 of the Court of Appeal Rules and having not sought extension as prescribed under Rule 4 of the Court of Appeal Rules, cannot now seek review of the Court of Appeal decision. Lastly, that the advocate for the applicant had sworn an affidavit on contested matters on behalf of the applicants and as such the affidavit is of no probative value. The 2nd Respondent cites this Court’s decisions in Kenya Commercial Bank Limited vs. Muiri Coffee Estate Limited & Another SC Appl. No. 42 of 2014 as consolidated with SC Appl. No. 43 of 2014 [2016] eKLR and National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & Another vs. Basil Criticos (Application 14 (E023) of 2022) [2023] KESC 60 (KLR) for the view that it is not sufficient for the applicant to state that the Court of Appeal misapplied the law, the applicant has to demonstrate the different determinations by different courts; Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 Others [2012] eKLR to urge that a party ought to be bound by its own pleadings.
6.
Upon perusing the 6th respondent’s grounds of opposition dated 15th January 2024 and filed of 12th February 2023, and written submissions dated 30th January 2024 and filed on 12th February 2024 raising similar submissions as that of the 2nd Respondent and further submitting that the intended appeal focuses narrowly on the interests of the applicants as a specific group namely the Amwezi and Mrima clans and fails to exhibit any public element with significant public implication. The applicants have violated the procedural requirements for representative suits by failing to demonstrate their lawful authority to institute and prosecute the suit and the present motion on behalf of the purported 15,000 individual members of the Amwezi and Mrima Clans. A party is bound by its pleadings and no party ought to be allowed to introduce a new element to the dispute especially at an appellate stage. In this regard the 6th Respondent urged the court to be guided by the case in Raila Amolo Odinga & Another vs. Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, and Peter Oduor Ngoge vs. Hon. Francis Ole Kaparo [2012] eKLR. The 6th Respondent lastly urged the court to find the applicants accountable for the costs incurred during these proceedings citing the High Court’s determination in Republic vs. Rosemary Wairimu Munene, Ex-parte Applicant Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review Appl. No. 6 of 2014
7.
Bearing in mind Article 163 (5) of the Constitution, Section 15B of the Supreme Court Act and Rule 33 (1) and (2) of the Supreme Court Rules, 2020 which grants this Court jurisdiction to review the Court of Appeal’s Certification, and lack thereof, as one of general public importance; and this Court’s guiding principles on certification of a matter as one involving general public importance set out in Hermanus Phillipus Steyn vs. Giovanni- Ruscone Sup. Application No. 4 of 2013 [2013] eKLR and the additional guidelines in Malcom Bell vs. Daniel Toroitich Arap Moi & Another, SC Application No. 1 of 2013; [2013] eKLR | We have considered the totality of the application, and submissions put forth, we opine as follows:
i.
The Court of Appeal dismissed the application for certification Upon the finding that the same was filed out of time. In its determination the Court held as follows;
“The Decision sought to be appealed was delivered by this Court on the 14th April 2023. The application is dated 23rd May 2023, which was way beyond the prescribed period to formally seek certification. The application is therefore incompetent having being filed out of time, and the applicants having failed to apply for extension of time under Rule 4 of this Court’s Rules.”
With this finding by the Court of Appeal, this Court cannot move to review an application determined incompetent for want of procedure. We have held in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC. Appl. No. 3 of 2014 [2015] eKLR that not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this Court, is the discretionary pronouncements appurtenant to the appellate court’s mandate
ii.
Should the Court however have sought to review the application it would have arrived at the finding that the claim by the applicants in the trial Court was presented as a representative suit as opposed to public interest litigation. The Court of Appeal admonished the applicant for seeking to sneak in the representation at the appellate stage; one of the witnesses in the High Court denied being represented by the applicants. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others SC. Appl. No. 29 of 2014 [2014] eKLR Njoki SCJ in her concurring opinion held that evaluation of locus (of a party acting in public interest) ought to be based Upon the constitutional considerations of capacity (Articles 3, 22 and 258), the nature of the suit and the enforceability of the Orders sought. The distinction of who has locus to bring a suit in public interest has therefore been ascertained.
iii.
The suit in the High Court relates to the procedure in setting apart of Trust land which has clear provisions in Sections 117 and 118 of the repealed Constitution and the Trust Land Act. The applicant has not highlighted instances of inconsistencies in the interpretation of the procedure by the Superior Courts. The case in Funzi Limited relied Upon by the applicant is distinguishable in various respects; first the Court of Appeal and the Supreme Court in the case arrived at a finding that the suit land therein was not Trust land. The mode of setting apart relied Upon was within the provisions of Section 117 of the repealed Constitution; which is not the case herein; the provisions relied Upon in setting apart fell within Section 118 of the repealed Constitution.
iv.
As pertains application of Section 107 and 112 of the Evidence Act. The Court of Appeal considered this submission and concluded that the applicant was bound by its pleadings. The application of Section 112 of the Evidence Act is not a novel issue and has been adequately explained by this Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No. 2B of 2014 [2014] eKLR.
9.
On costs, award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v. Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. Given the nature of the dispute and the industry afforded by the parties we find this a proper case to issue costs of the application in favour of the 2nd and 6th Respondents, as the only ones who responded to the application.
10.
For the aforestated reasons we make the following orders:
i.
The Originating motion dated 1st December 2023 is hereby dismissed.
ii.
Costs of the application awarded to the 2nd and 6th Respondents.
11.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/14/eng@2024-04-12 |
Petition (Application) E015 of 2023 | County Assembly of Migori v Aluochier & 2 others (Petition (Application) E015 of 2023) [2024] KESC 7 (KLR) (Civ) (15 March 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 15 March 2024 | 2,024 | Nairobi | Civil | County Assembly of Migori v Aluochier & 2 others | [2024] KESC 7 (KLR) | null | Before the Court are two distinct yet interconnected Motions brought by the parties for determination. The first is by the appellant, County Assembly of Migori, seeking review and setting aside of the ruling and order of the Supreme Court (Koome, CJ & P, Ibrahim, Wanjala, Lenaola & Ouko, SCJ) dated 27th October 2023. The second is by the 3rd respondent, Charles Owino Likowa, seeking orders to keep in abeyance the hearing and determination of the Motion dated 1st November 2023; and
2.
Upon perusing the Motion dated 1st November 2023 premised on Articles 163 (4) (a) and 159 (2)(d) of the Constitution, Sections 3, 3A, 15A, 21 (4), 21A, and 23 (2B) (d) of the Supreme Court Act, 2011, Rules 3(1), (2) (3) (5), 28 (5) and 31 of the Supreme Court Rules, 2020 seeking review and setting aside of this Court’s ruling and order striking out the petition as alluded to herein above; and
3.
Upon considering the grounds in support of the Motion and the averments contained in the supporting affidavit sworn by Hon. Edward Ouma Ooro, a member of the County Assembly of Migori and the Leader of the Majority Party, Orange Democratic Party, wherein he inter alia contends that; there exists an error apparent on the face of the record of proceedings to warrant review, variation and setting aside the order striking out the petition dated 12th June 2023; the appellant was never heard by the Court as required under Section 23(2B) (d) of the Supreme Court Act; the Court struck out the petition suo moto without any challenge as to the competence of the petition from any party; the ruling and order striking out the petition was as a result of misrepresentation of facts on the part of the Court that the petition was premature; the petition, the notice of appeal were properly lodged without the reasons of the Court of Appeal judgment as the same had not yet been given; the omission to include reasons of the Court of Appeal judgment was not to be blamed on the appellant to warrant striking out its petition; the Court has jurisdiction to review any of its judgments, ruling or orders in exceptional circumstance to meet the ends of justice; and
4.
Noting the appellant’s submissions dated 1st November 2023 and rejoinder submissions dated 22nd November 2023 where it reiterates the contents of its supporting affidavit and further submits that; the petition was competent as it was lodged as per the rules; there exists exceptional circumstances and an error apparent on the face of the record to warrant review, variation and setting aside the order striking out of the appeal dated 12th June 2023; in formulating the appeal, the appeal was filed on a provisional basis pending the issuances of reasons by the Court of Appeal; striking out of the appeal and leaving the notice of appeal, record of appeal, the appellant’s submissions and responses by the respondents creates confusion whether the same was summarily rejected; and
5.
Further Noting the 1st respondent’s response dated 2nd November 2o23 in support of the Motion wherein he urges that; the petition and the cross-appeal ought not to have been struck out; the Court should be consistent in its determinations; every person has a right to a fair and public hearing and conversely the Court has a duty to guarantee the right to a fair hearing; if the Court is unwilling to grant parties fair hearing, the parties can opt out of the system and refer the matter to an arbitral tribunal and the Court should promote ADR; and
6.
Also Noting the 2nd respondent’s replying affidavit sworn by Vincencia Awino Kionge, the Clerk County Assembly of Migori, in support of the Motion, wherein she faults the Court for striking out the petition suo moto; challenges the cross-appeal and the supplementary record of appeal for introducing new evidence before this Court without an application or order allowing such an action; avers that the petition was struck out without breach of any substantive or procedural laws by the appellant; that no law imposes on any person who wishes to appeal against a decision of the Court of Appeal to wait for and include reasons for the judgment in the record of appeal; the appellant waited for reasons for the Judgment of the Court of Appeal for 4 months before instituting the appeal; the rules and practice directions impose stringent timelines which if not complied with, a prospective appellant stands a risk of being locked out of his appeal; and
7.
Further Noting the 2nd respondent’s submissions dated 14th November 2023 wherein he reiterates the contents of the replying affidavit and further submits that; the Court has jurisdiction to review and/or set aside its own decisions in exceptional circumstances as per Rule 28 (5) of the Supreme Court Rules, 2020; even in the absence of reasons for the judgment of the Court of Appeal, it was still possible for the appellant to identify constitutional questions to be put to the Court for determination as was held by this Court in Richard Nyagaka Tongi v Chris Munga N Bichage & 2 others SC, Petition No 17 of 2014, [2015] eKLR; in its ruling of 27th October 2023, the Court departed from the precedent set in Richard Nyagaka Tongi v Chris Munga N Bichage & 2 others ( supra); striking out the petition and any other pleading should only be resorted to in the clearest of cases; the appellant has been deprived of the right to appeal as well as the right to a fair hearing; and
8.
Also Noting the 3rd respondent’s replying affidavit in support of the Motion sworn by Charles Owino Likowa, the Speaker of Migori County wherein he avers that; in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others, SC Civil Application No. 35 of 2014[2015] eKLR this Court held that reasons are not mandatory for lodging a further appeal to the Court; the decision the appellant seeks to review has sent the signal that filing an appeal without full text of the appellate court judgment is fatal to such as an appeal; the inconsistency in the decisions of the Court does not promote the principle under Article 163 (7) of the Constitution; striking out of the petition is likely to lead to unnecessary delay in determining the real dispute between the parties; and
9.
Furthermore Noting the 3rd respondent’s submissions dated 14th November 2023 wherein herein he reiterates the contents of his replying affidavit and further submits that; vide a ruling on 27th October 2023, this Court struck out the appellant’s petition in violation of the right of access to justice under Article 48 of the Constitution and Section 3 (e) of the Supreme Court Act; the Court’s suo moto striking out the petition was an oversight and a manifest error apparent on the record; in line with the reasoning adopted by this Court in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others( supra) the petition was properly lodged, therefore the Court ought to consider the appeal and render itself on all the substantive issues raised; it is in the interest of justice that the parties to a dispute are accorded a fair hearing; and
10.
Taking Into Account the 3rd respondent’s Motion dated 24th November 2023 brought under Articles 163 (4) (a), 25 (c), 50 (1), 159 (2) (d) of the Constitution, Sections 3, 3A, and 21 (2) of the Supreme Court Act, 2011 and Rules 3(1), (2), (4) (5), 31 and 32 of the Supreme Court Rules, 2020 seeking orders that the Court ought to keep in abeyance and withhold the hearing and determination of the Motion dated 1st November 2023 and leave to file its supplementary record to include reasons for the judgment of the Court of Appeal when given; and
11.
Considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Charles Owino Likowa, the Speaker County Assembly of Migori wherein he contends that; the Court of Appeal was yet to give reasons for its judgment dated 26th May 2023; the time to lodge the appeal started running immediately after the judgment; it is not a mandatory requirement to include reasons for the judgment when lodging an appeal; there is need for the Court to settle the issue of validity of such an appeal; being the apex court, the Court ought to frown from deciding disputes on technicalities without hearing parties on merit; and
12.
Also Considering the 3rd respondent’s submissions dated 24th November 2023 and rejoinder submissions dated 3rd January 2023 wherein he reiterates the contents of his grounds in support of his Motion and supporting affidavit and further submits that; the jurisdiction of the Court is invoked and proceedings commenced, first under Rule 36 of the Supreme Court Rules, by filing a notice of appeal within fourteen days from the date of the judgment or ruling; a notice of appeal is a primary document to be filed whether or not the subject matter under appeal is that which requires leave; notice of appeal is a jurisdictional pre- requisite as was held by this Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Appl. No. 16 of 2014 [2014] eKLR; and
13.
Further Noting the 1st respondent’s response dated 26th November 2023 where he states that; in striking out the petition, the Court acted outside the law and without legal foundation denying the appellant the right to fair hearing under Article 50 (1) of the Constitution; he is apprehensive that the Court may decline to hear the Motion dated 1st November 2023 due to the absence of reasons for the judgment of the Court of Appeal; the Motion dated 1st November 2023 should be held in abeyance; parties be given leave to file as part of the supplementary record, the reasons for the judgment of the Court of Appeal; the Court contravened Article 27 (1) of the Constitution by striking out the appeal in this instance while in the past it upheld such appeals; and
14.
Also Noting the appellant’s replying affidavit sworn by Edward Ouma Ooro, the Majority Party Leader Of the County Assembly of Migori, and submissions dated 4th December 2024 wherein it reiterates its averments above and further add that the Court placed a heavy premium on the yet-to-be-delivered reasons for the judgment of the Court Appeal in striking out the appeal; it is important to stay in abeyance the Motion dated 1st November 2023 pending the reasons for judgment of the Court of Appeal; and | Having considered the applications, responses, and submissions before us, we now opine as follows:
i.
This Court’s power to review its own decision is well settled in the cases of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (App) No 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition No 6 of 2014, [2017] eKLR wherein we found that, as a general rule, the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(A) of the Supreme Court Act, that is;
a.
the judgment, ruling, or order, is obtained, by fraud or deceit;
b.
the judgment, ruling, or order, is a nullity, such as, when the Court itself was not competent;
c.
the Court was misled into giving judgment, ruling, or order, under a mistaken belief that the parties had consented thereto;
d.
the judgment or ruling was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
ii.
Applying the above principles to the instant case, it is our view that the appellant has not attempted to demonstrate that the impugned ruling was obtained by fraud or deceit. The appellant has also failed to demonstrate that the ruling was a nullity as it was rendered on the basis of a repealed law, or that the Court itself was not competent. It is in addition clear from the appellant’s case before us that it did not prove that the Court was misled into giving the ruling under the mistaken belief that the parties had consented to such an order/ruling.
iii.
Consequently, it is our considered view that the Motion dated 1st November 2023 does not fall within the parameters enunciated in Fredrick Otieno Outa's case (supra) and therefore the Motion is one for dismissal for those reasons alone subject to what we shall state below.
iv.
What then should we find on the contention that this Court has ignored its previous decisions on the question whether reasons for the decision being challenged ought to be provided before an appeal can be properly lodged before the Court and that in striking out the appeal, parties were denied the right to fair hearing and access to justice? Specifically, do the Fahim Yasin Twaha case (supra) and Richard Nyagaka Tong’i case (supra) decisions bind us and should we apply them as submitted by the parties? It must be understood from the outset that this Court is not bound by its previous decisions as is the law under Article 163(7) of the Constitution. Nevertheless, we recognize that the maintaining of consistent decisions is the cornerstone of any judicial system.
v.
It should also be noted that the law/rules applicable at the time of rendering the decisions in Fahim Yasin Twaha case (supra) and Richard Nyagaka Tong’i case (supra) was the Supreme Court Rules, 2012 which provided as follows:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order”.
vi.
Given the provisions of the law/rules at that time, the decisions in Fahim Yasin Twaha case (supra) and Richard Nyagaka Tong’i case (supra) were correct that it was not mandatory to include reasons for judgment in the record of appeal.
vii.
However, the Supreme Court Rules, 2020, which amended the 2012 Rules, made it mandatory for the judgment/ruling of the Court of Appeal to be included in the record of appeal. Rule 40 (1) of the Supreme Court Rules, 2020 provides as follows:
“
(1)
For the purpose of instituting an appeal from a Court of Appeal decision, the record of appeal shall entail—
a.
a certificate, if any, certifying the matter as of general public importance;
b.
the judgment or ruling of the Court of Appeal being appealed from;
c.
a judgment or ruling of the High Court or a court of equal status; and
d.
the relevant pleadings required to determine the appeal.”
viii.
Therefore, in accordance with the provisions of Rule 40 (1) of the Supreme Court Rules, 2020 this Court in Jimi Wanjigi v Chebukati & 2 others (SC, Application 6 (E012) of 2022) [2022] KESC 40 (KLR) and in our Ruling in the instant matter delivered on 27th October 2023, found it mandatory to include reasons for the judgment of the Court of Appeal for an appeal to be deemed to be properly lodged.
ix.
Consequently, we emphasize that, only by looking to the reasons given by the appellate court can this Court properly interrogate its jurisdiction to hear and determine any appeal before it. Without such reasons, the court would be blindly acting on interlocutory applications such as the ones filed by parties in the present case. In the circumstances, and bearing in mind that no reasons for the judgment of the Court of Appeal have been availed to us, we are constrained to dismiss the Motion dated 1st November 2023.
x.
From the foregoing, it is important for any party approaching the Court to do so accordance with Rule 40 (1) of the Supreme Court Rules, 2020 and to be conversant with jurisprudential developments in the Court. In any case, a party is not barred from approaching the Court once the Court of Appeal has availed the reasons for the judgment the party seeks to appeal against.
xi.
In any event, once the petition of appeal and the cross-appeal in the instant matter were struck out, all subsequent pleadings lack a basis to stand on.
xii.
From the foregoing and having dismissed the Motion dated 1st November 2023, it, therefore, follows that the Motion dated 24th November 2023 seeking a stay or abeyance of the latter and leave to file a supplementary record of appeal cannot stand and, is also dismissed.
xiii.
On costs, this Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 others, SC. Petition No. 4 of 2012; [2013] eKLR settled that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. Given that the Court has dismissed both applications before it, we find it judicious for each party to bear its costs.
16.
Accordingly, we make the following Orders:
a.
The Notice of Motion dated 1st November 2023 is hereby dismissed.
b.
The Notice of Motion dated 24th November 2023 is hereby dismissed.
c.
Each party shall bear its costs.
17. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/7/eng@2024-03-15 |
Petition (Application) 12 (E014) of 2022 | Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties) (Petition (Application) 12 (E014) of 2022) [2024] KESC 6 (KLR) (1 March 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 1 March 2024 | 2,024 | Nairobi | Civil | Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties) | [2024] KESC 6 (KLR) | null | Upon perusing the 2nd Interested Party’s (the applicant) Motion dated 19th October 2023 and filed on 23rd October 2023, brought pursuant to Section 3A of the Supreme Court Act and Rules 3 (5) and 17 (1) of the Supreme Court Rules, 2020 seeking leave to file a supplementary affidavit in response to the respondent’s replying affidavit sworn by Phillip Munyao on 9th November 2022; in the alternative, to expunge paragraphs 26 to 33 and 47 of the respondent’s said affidavit; and costs; and
2.
Upon considering the applicant’s grounds on the face of the application and supporting affidavit sworn by Shafi Shaikh on 19th October 2023, wherein the applicant contends that; upon its joinder as an interested party, it filed a replying affidavit sworn by Shafi Shaikh on 19th October 2022 in response to the petition (the applicant’s affidavit); in response to this affidavit, the respondent filed its replying affidavit sworn by Philip Munyao on 9th November 2022 (the respondent’s affidavit); the respondent’s affidavit, particularly at paragraphs 26 to 33 and 47, pleads new, factually incorrect and prejudicial allegations not deponed in the applicant’s affidavit or by any party before this Court or the superior courts below; and
3.
Upon further considering the applicant’s additional grounds to the effect that, the new and factually incorrect statements include, the alleged use and sub- license of the applicant’s proprietary software by the petitioner or other banks in Kenya, and tax evasion on the part of the applicant; grant of leave will uphold the applicant’s rights under Article 50(1) of the Constitution; the Court has the discretion and jurisdiction to grant the orders sought; and no prejudice will be suffered by the respondent; the applicant is not guilty of laches because though desirous of moving the Court for leave in 2022, on 28th November 2022, it was directed by the Deputy Registrar of the Court that the Court would first deal with the respondent’s application dated 25th November 2022; and subsequently, applications raising the same subject matter were filed by the parties herein; and
4.
Further considering the applicant’s submissions dated 19th October 2023, and supplementary submissions dated 5th November 2023, to the effect that, this Court has inherent and express jurisdiction to grant leave to file further pleadings including a supplementary affidavit under Section 3A of the Supreme Court Act and Rules 3(5) and 17(1) of the Court’s Rules respectively; this jurisdiction was upheld by this Court in Fredrick Otieno Outa v. Jared Odoyo Okello & 3 Others [2017] eKLR; Stephen Maina Githiga & 5 Others v. Kiru Tea Factory Company Limited [2020] eKLR and Katiba Institute v. AG, PSC & Others [2020] eKLR; the applicant having been enjoined in the appeal has an identifiable stake and duty to provide the Court with an understanding of the intricate terms delineated in the agreement between itself and the petitioner;
5.
Having read and considered the respondent’s replying affidavit sworn by Philip Munyao on 30th October 2023, wherein it avers that the impugned paragraphs of the respondent’s affidavit do not raise any new issues or incorrect allegations; the applicant has failed to identify precisely the new issues that have been raised; the alleged ‘new’ issues were before the superior courts below as evidenced in the Record of Appeal (at pages 145 to 146, 246, 313, 416 to 686, 506, 559, 630-683, 971 to 1023); therefore, these issues ought to have been addressed in the applicant’s affidavit in response to the appeal; in any event, the appeal before the Court is a second appeal and therefore the applicant is limited to points of law only; the applicant is an interested party who is peripheral to the appeal, and therefore cannot raise new issues; and that the application is brought in bad faith and is an abuse of court process; and
6.
Upon considering the respondent’s submissions dated 30th October 2023, wherein the respondent restates its grounds in opposition and further urges that the applicant’s application is not deserving of this Court’s exercise of discretion under Rule 17 as the applicant’s intention is to convolute the issues before the Court; to support this assertion it relies on this Court’s decision in Nicholas Korir Arap Salat v. The IEBC & 8 Others, SC Application No. 16 of 2015; [2014] eKLR and urges that discretion is to be used judiciously and not whimsically; it also submits that the Court’s jurisdiction in a second appeal such as the instant appeal, is limited to matters of law; and therefore, the applicant cannot introduce new issues, it cites Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others, SC Petition No. 2B of 2014; [2014] eKLR, in support of its argument thereof; and
7.
Taking into account the consents between the petitioner and the applicant dated 9th November 2023; and the 1st interested party and the applicant dated 8th November 2023, both filed on 9th November 2023, wherein the said parties do not oppose the motion for leave to file a supplementary affidavit;
8.
Bearing in mind that the legal question whether this Court can grant leave to file a supplementary affidavit is well settled by Rule 17(1) of the Supreme Court Rules 2020, which gives this Court the discretion to grant a party, with the consent of the other party, leave to file further pleadings or affidavit. Further considering that Section 21(2) of the Supreme Court Act, 2011, and Rule 3(5) of the Supreme Court Rules 2020, grant this Court inherent power to make any ancillary and interlocutory orders as may be necessary for the ends of justice; as further affirmed by the Court in Stephen Maina Githiga & 5 Others v. Kiru Tea Factory Company Limited, SC Petition No. 12 of 2019; [2019] eKLR; | We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, we find that the applicant has demonstrated to our satisfaction that the supplementary affidavit it seeks to file will help the Court further define the real questions in controversy, and specifically the 2nd interested party’s stake in the appeal;
ii.
No prejudice will be suffered as the respondent will have an opportunity to respond to the averments by the applicant in the course of the hearing of the main appeal;
iii.
As to whether either of the parties’ pleadings introduce new issues, we restate our finding in the earlier Ruling delivered on 16th June 2023, to the effect that this is a substantive question that will be properly determined in the main appeal;
iv.
Since the main appeal is still pending, it is only prudent that the issue of costs be deferred to the determination of the main appeal; and
10.
Consequently and for reasons aforesaid, we make the following Orders:
i.
The Notice of Motion dated 19th October 2023 and filed on 23rd October 2023 is hereby allowed;
ii.
The applicant shall file and serve the Supplementary Affidavit within seven (7) days from the date of this Ruling; and
iii.
Costs shall be in the Cause.
It is so Ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/6/eng@2024-03-01 |
Application E041 of 2023 | Director of Public Prosecutions v Manyeso (Application E041 of 2023) [2024] KESC 5 (KLR) (Civ) (1 March 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko | 1 March 2024 | 2,024 | Nairobi | Civil | Director of Public Prosecutions v Manyeso | [2024] KESC 5 (KLR) | null | 1.
Cognisant that Julius Kitsao Manyeso, the respondent, was convicted of the offence of defilement under section 8(1) of the Sexual Offences Act, and sentenced to life imprisonment pursuant to section 8(3) thereof in the Chief Magistrate’s Court at Malindi; that his appeal to the High Court, Criminal Appeal No 60 of 2018, challenging the said conviction and sentence was dismissed by a judgment dated May 14, 2022; and his second appeal to the Court of Appeal, Criminal Appeal No 12 of 2021, was allowed by a judgment dated July 7, 2023 to the extent that the sentence of life imprisonment was declared unconstitutional and substituted with a sentence of 40 years imprisonment; and
2.
Upon perusing the notice of motion before this court dated October 6, 2023 and lodged on October 11, 2023 by the applicant under article 163(4)(a) of the Constitution and rules 15(2) & 33 of the Supreme Court Rules, 2020 seeking the following orders:
“
1.
That the applicant be granted leave to file the petition/appeal out of time.
2.
That this honourable court be pleased to admit and deem the applicant’s attached intended petition to have been duly filed.
3.
That this court grants such other orders as it may deem fit and just.”
3.
Further considering the affidavit in support of the motion sworn by Henry Achochi, a prosecution counsel, on October 4, 2023 and the applicant’s submissions dated October 9, 2023, all of which are to the effect that; following the delivery of the Court of Appeal judgment, the applicant filed a notice of appeal on July 21, 2023 intimating its intention to challenge the impugned judgment; that a team of prosecution counsel drawn from various counties was constituted on July 27, 2023 to review the impugned judgment and give recommendations on a possible appeal to this court; that by the time the team completed its mandate, there was no substantive holder of the office of the Director of Public Prosecution (DPP) to review the recommendations and give directions on the way forward; that it was not until September 25, 2023 that the current holder of the office of the DPP was sworn in office and he thereafter gave directions on filing of the intended appeal; and
4.
Additionally, the applicant deposed in the said affidavit that the delay was not intentional; that the intended appeal raises salient constitutional issues that are of public importance; that this court has jurisdiction to deal with the intended appeal and settle jurisprudential questions/issues that have been raised by the superior courts’ decisions on matters relating to section 8(1) & (2) of the Sexual Offences Act; and that the applicant has met the principles for extension of time as delineated by this court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Applic No 16 of 2014; [2014] eKLR; and
5.
Taking Into Account the respondent’s submissions dated January 25, 2024 and filed on January 26, 2024 to the effect that the office of the Director of Public Prosecutions created under article 157(1) of the Constitution is a constitutional office and ought to run smoothly in the absence of a substantive holder of the office of the DPP; that section 12(1) of the Office of the Director of Public Prosecutions (ODPP) Act provides for the appointment of Deputy Directors to assist the DPP in execution of his/her duties and/or functions under the Constitution; that at the material time there were Deputy Directors in office and as such, there was no void in leadership; that the applicant has not offered a satisfactory explanation for the delay; that the applicant should also seek certification with respect to the issues it claims are of public importance; that the intended appeal is an affront to the respondent’s right to certainty in the criminal process and finality of the judicial process; and that the applicant has not sufficiently made out a prima facie case to warrant the orders sought; and | Bearing in mind that this court is clothed with unfettered discretion under rule 15(2) of the Supreme Court Rules to extend the time for filing an appeal; and that the principles that govern the exercise of such discretion as delineated in the Nick Salat case are as follows:
“
…
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
6.
Whether the application has been brought without undue delay; and
7.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”; and
7.
Upon deliberations on the motion and the rival submissions, we opine as follows:
i.
It is common ground that the applicant filed a notice of appeal on July 21, 2023 evincing its intention to challenge the impugned judgment delivered on the same day.
ii.
From the motion and the affidavit in support thereof it is clear that the applicant intends to file an appeal to this court as of right pursuant to article 163(4)(a) of the Constitution. In point of fact, the petition sought to be filed, a copy of which is annexed to the motion, indicates as much. What is more, the applicant urged that the intended appeal raises constitutional issues that are of public importance, which the respondent has unfortunately erroneously misconstrued to mean that the applicant should seek certification under article 163(4)(b) of the Constitution with regard to the issues of public importance.
iii.
It follows therefore that by dint of rule 38(1)(a) of the Supreme Court Rules, the applicant should have filed the petition/appeal within thirty (30) days of filing the notice of appeal, that is, on or before September 4, 2023. (See rule 15(1)(b) of the Supreme Court Rules and section 57(d) of the Interpretation and General Provisions Act. Taking into account the fact that the motion at hand was filed on October 11, 2023, the delay translates to 36 days which the applicant attributed to the absence of a substantive holder of the office of the DPP.
iv.
It is not in dispute that from June, 2023 to September 25, 2023 there was no substantive holder of the office of DPP until the current DPP was sworn in office. We appreciate that section 12 (1) of the ODDP Act provides for appointment of Deputy Directors to assist the DPP in the execution of his/her duties under the Constitution and/or in any other written law. Likewise, we cannot help but note that section 12(2) thereof stipulates that, ‘The Deputy Directors shall exercise the powers and functions subject to superintendence, directions and control of the Director’. In the circumstances, the respondent’s argument that the Deputy Directors could have discharged the DPP’s powers/duties in the absence of a substantive holder of the said office cannot dent the applicant’s case.
v.
We find that the applicant has adduced a plausible explanation for the delay in filing the petition/appeal up to when the current DPP was sworn in office. Equally, we find that the explanation is satisfactory for the delay between the assumption of office by the DPP on September 25, 2023 and filing of the Motion at hand on October 11, 2023. The delay of 17 days, in our view, was reasonable in order to allow the DPP to appraise himself with the matter and issue directions thereof.
vi.
Moreover, without pronouncing ourselves on the merits of the intended petition/appeal, we find that grounds of appeal raised therein warrant this court’s consideration. In particular, whether the Court of Appeal erred in entertaining a constitutional issue that had not been raised at the trial court and the High Court; whether the Court of Appeal had misapplied this court’s decision and subsequent directions in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae), SC Petition No 15 & 16 of 2015; [2021] KESC 31 (KLR) in finding the sentence of life imprisonment unconstitutional; and whether the Court of Appeal usurped the legislative powers of parliament in substituting the sentence of life imprisonment prescribed under section 8(2) of the Sexual Offences Act with 40 years imprisonment.
vii.
Based on the foregoing, the applicant has satisfied the requisite principles to warrant this court to exercise its discretion by extending time within which it can file its petition/appeal. However, the applicant’s prayer urging us to deem the petition annexed to the motion as duly filed is untenable since the filing fees for the same have not been paid.
viii.
Taking into account the foregoing and this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that costs of the Motion shall abide the outcome of the intended appeal.
8.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The notice of motion dated October 6, 2023 and filed on October 11, 2023 is hereby allowed only to the extent that leave is hereby granted to the applicant to file and serve the intended petition/appeal within 30 days of the date of this ruling.
ii.
Costs of the motion shall abide the outcome of the intended appeal.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/5/eng@2024-03-01 |
Petition (Application) E019 of 2023 | Export Processing Zones Authority v KM (Minor suing through mother and best friend SKS) & 16 others (Petition (Application) E019 of 2023) [2024] KESC 4 (KLR) (1 March 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 1 March 2024 | 2,024 | Nairobi | Civil | Export Processing Zones Authority v KM (Minor suing through mother and best friend SKS) & 16 others | [2024] KESC 4 (KLR) | null | 1.
Upon perusing the Notice of Motion dated 26th January, 2024 by the 14th respondent, filed pursuant to articles 48 and 50(1) of the Constitution and rule 15(2) of the Supreme Court Rules, 2020 seeking leave of the court to extend time within which to file and serve a cross appeal to enable the 14th respondent to cross appeal against Civil Appeal No. E019 of 2023 as consolidated with Civil Appeal No. E021 of 2023; and
2.
Upon perusing the affidavit sworn by Erastus K. Gitonga, the acting Director Legal Services of the 14th respondent on 26th January, 2024 in support of the motion and written submissions of even date that; the time to file and serve the record of cross appeal has lapsed, necessitating seeking and obtaining leave of court before filing the record of appeal; the delay was occasioned by intervening circumstances beyond the 14th respondent’s control, being the strict and rigorous public procurement process; the 14th respondent, being a public entity established under article 260 of the Constitution and section 7 of the Environmental Management and Co-ordination Act, 1999, is strictly bound by the provisions of the Public Procurement and Asset Disposal Act, 2015 and was required to hire legal counsel to act for it in the instant appeals; the 14th respondent begun the procurement process for legal services vide tender No. NEMA/T/12/2023-2024 advertised on 29th November, 2023, which process ended in January, 2024 with the successful bidders being the firm of Messrs Murugu Rigoro & Co. Advocates; after notification of their successful bid vide letter dated 11th January, 2024, the said firm duly accepted vide letter dated 15th January, 2024, with execution of the formal contract for provision of legal services taking place on 25th January, 2024; upon receiving proper instruction on 25th January, 2024 the firm moved with alacrity, came on and filed responses to the two petitions along with the present application. The 14th respondent further contends that it has satisfactorily explained the reason for the delay, which delay, was not deliberate, and it considers not to be inordinate in the circumstances of the case; the parties will not be prejudiced if the application is allowed as the instant appeals are yet to be set down for hearing; and that the intended cross appeal is not frivolous as it raises weighty issues for the determination of this Court
3.
Upon noting that the 1st to 10th respondents in their replying affidavit sworn by Phyllis Issa Indiatsi Omido, the 10th respondent’s Executive Director on 31st January, 2024 and written submissions of even date are opposed to the application on grounds that: the application is an afterthought intended to delay the expeditious disposal of the consolidated appeals; the reason provided for the delay is an excuse noting that while before both the Environment and Land Court as well as the Court of Appeal, the 14th respondent was ably represented by Erastus K. Gitonga Advocate, the 14th respondent’s acting Director of Legal Services; there is no explanation proffered why counsel Erastus K. Gitonga, failed to file an appeal to comply with the strict timelines under the rules of this Court, even if he would eventually hand the matter over to outside counsel;judgment by the Court of Appeal was delivered on 23rd June, 2023, Petition E021 of 2023 was filed on 7th August, 2023 and Petition E019 of 2023 was filed a few days earlier, while the tender by the 14th respondent for the provision of legal services for the two petitions was floated on 29th November, 2023, five(5) months after the judgment was delivered and three (3) months after the petitions were filed; the 14th respondent has failed to explain the apparent indolence and in the absence of such, there is no basis for the delay and lapse cannot be excused; further the 14th respondent’s application and attempt to file a cross appeal will cause serious delay in the disposal of the matter, which delay is extremely prejudicial to the 1st to 10th respondents, who the High Court and Court of Appeal found to be victims of horrendous pollution and poisoning, hence were in need of medical intervention to alleviate some of their suffering; the interests of the 14th respondent must be balances against those of the 1st to 10th respondents; the 14th respondent will not be condemned unheard as it still has the opportunity to file responses to the petitions. | Having considered the application, responses and submissions before us, We Now Opine as follows:
4.
Appreciating that the court, under rule 15(2) of the Supreme Court Rules, 2020 has discretionary powers to extend the time limited by the rules or by any of its decisions; that any person intending to cross appeal is required by rule 47(2)(b) of the Supreme Court Rules, 2020 to file lodge their memorandum of appeal and record of appeal within thirty days of service, or not less than thirty days before the hearing of the appeal, whichever is the later. Rule 47 provides as follows;
“
(1)
A respondent who intends to cross-appeal shall specify the grounds of contention, and the nature of the relief that the respondent seeks from the Court.
(2)
The respondent shall—
(a)
provide contact details including the names, postal address, telephone number and email address of any persons intended to be served with the notice; and
(b)
lodge eight copies of the memorandum of appeal and record of appeal in the registry within thirty days of service upon the respondent, or not less than thirty days before the hearing of the appeal, whichever is the later.
(3)
An application or notice to cross-appeal shall be as set out in Form I of the First Schedule.” (Emphasis added)
5.
Considering that the 14th respondent lodged their Notice of Appeal dated 26th January, 2024 in the Court’s registry on 5th February, 2024 wherein it specifies the grounds of contention, and the nature of the reliefs it intends to seek;
6.
Bearing in mind that this matter, being the consolidated appeals Petition E021 of 2023 and Petition E019 of 2023, is still undergoing the compliance process before the Deputy Registrar in preparation for being set down for hearing, which process has been held up by the instant application;
7.
Further considering that due to this, the 14th respondent is still within time to file its cross appeal, in any case, not later than thirty (30) days before the hearing of the appeal, once a date is set down;
8.
For the aforestated reasons, we find that the 14th respondent was not required to obtain leave of the court, rendering the instant application entirely unnecessary. Be that as it may, in the circumstances we are minded to allow the application and to further direct that, for good order, the 14th respondent should proceed to file its memorandum of appeal and record of appeal within fourteen (14) days of this ruling;
9.
As regards costs, in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No. 4 of 2012; [2013] eKLR it was settled that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. Given that the instant application was entirely superfluous and could have been avoided had counsel for the 14th respondent perused the Rules of this Court, we find it judicious for the applicant, the 14th respondent to bear the costs of this application.
10.
Accordingly, we are persuaded in the circumstances, to make the following orders:
a.
The notice of motion dated 26th January, 2024 be and is hereby allowed;
b.
The applicant to file and serve its memorandum of appeal and record of appeal within fourteen (14) days of delivery of this ruling;
c.
The applicant to bears the costs of the application
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/4/eng@2024-03-01 |
Petition E004 of 2023 | Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR) (21 February 2024) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 February 2024 | 2,024 | Nairobi | Civil | Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others | [2024] KESC 3 (KLR) | null | A. Introduction
1.
Two petitions were filed before the Court, namely, Petition No E002 of 2023 dated February 16, 2023 and filed on February 17, 2023; and Petition No E004 of 2023 dated February 4, 2023 and filed on February 28, 2023. By a consent order of this court issued on March 31, 2023, Petition No E002 of 2023 was consolidated with Petition No E004 of 2023 for determination. It was further agreed that Petition No E004 of 2023 be the lead file.
2.
The consolidated appeal is against the Judgment of the Court of Appeal at Nairobi in Civil Appeal No 656 of 2022 (Okwengu, Warsame & Mativo, JJA) which overturned the Judgment of the Employment and Labour Relations Court (the ELRC) (Nduma, Wasilwa, and Mbaru, JJ). Petition No E004 of 2023 is filed pursuant to inter alia article 163(4)(a) of the Constitution and Rules 38 and 39 of the Supreme Court Rules, 2020 while Petition No E002 of 2023 is filed pursuant to rule 39 of the Supreme Court Rules, 2020.
B. Background
3.
This litigation arises from the enactment of the National Social Security Fund Act, 2013, (hereinafter the NSSF Act, 2013) which was assented to by the President on December 24, 2013 and came into operation on January 10, 2014. The enactment of the Act triggered the institution of five constitutional petitions before the Constitutional and Human Rights Division of the High Court at Nairobi, and in various stations of the ELRC. The petitions, all of which challenged the constitutionality of the NSSF Act, 2013 included:
a.
High Court (Nairobi) Constitutional Petition No 249 of 2014: Kenya County Government Workers Union v The National Social Security Fund Board of Trustees & 3 others;
b.
High Court (Nairobi) Constitutional Petition No 270 of 2014: Kenya Tea Growers Association & Agricultural Employers’ Association v The Attorney General & The National Security Fund Board of Trustees;
c.
Industrial Court (Nakuru) Petition No 9 of 2014 Nkauraki Edwin Lesidai & 89 others v Attorney General & 3 others;
d.
Employment and Labour Relations Court (Nairobi) Petition No 34 of 2014: Kenya Quarry and Mine Workers Union & 4 others v Attorney General & others; and
e.
Industrial Court (Nakuru) Petition No 11 of 2014; Kenya Plantation and Agricultural Workers Union v Board of Trustees, National Social Security Fund & another. | E. Analysis
i. On the 3rd appellant’s locus standi before the court
59.
In its preliminary objection dated March 7, 2023, the 1st respondent has made heavy weather of the 3rd appellant’s capacity to institute its appeal as of right before the court, it having been “simply” an interested party before the trial court and not having participated in the proceedings before the Court of Appeal. The 2nd, 3rd, 4th and 5th respondents associate themselves with the 1st respondent’s argument. Collectively, the respondents take issue with the 3rd appellant mutating from an interested party and purporting to take over the role of primary parties, yet it did not have independent claims and remedies before the trial court.
60.
Moreover, the respondents urge that the 3rd appellant’s claim that it was not served is immaterial, as it was fully aware of the pendency of the appeal. They assert that the 3rd appellant attended a meeting held on October 19, 2022, and fully participated in discussions on the appeal filed by the 1st respondent, proposing that the appeal be withdrawn. It is also urged that in any event, the 3rd appellant’s membership consists of former employees of local authorities who were contributors of a closed scheme, to wit, Laptrust, a Fund being run as a going concern, which will be wound up upon payment of the last contributor. Consequently, it is urged, the impugned Act does not apply to its members, thereby divesting the 3rd appellant of any identifiable stake in the present proceedings.
61.
On the other hand, the 3rd appellant denies that it was served with the notice and record of appeal, or that it was aware of the proceedings before the Court of Appeal. To buttress its denial, the 3rd appellant challenged the respondents, specifically the Attorney General, to prove service by way of an affidavit of service.
The 3rd appellant avers that no such evidence has been placed before the court and it must follow therefore, that this ground of appeal is not contested. On the allegation that counsel for the 3rd appellant attended the meeting of 19th October 2022 alluded to by the respondents, the 3rd appellant responded that the informal meeting was held long after the expiry of the 7-day deadline prescribed by rule 79(1) of the Court of Appeal Rules 2022, and could not be a substitute for service. Furthermore, the 3rd appellant urges that contrary to their argument, the respondents signed a consent before the ELRC acknowledging that the 3rd appellant had an interest in the matter. Accordingly, they are now estopped from alleging otherwise. To this end, it is submitted, the court would be setting a dangerous precedent if it were to indulge a party who refuses, fails or omits to serve another, so as to deny it audience.
62.
Having set out the parties’ case, we now proceed to give our determination. It is common ground that the 3rd appellant participated in the proceedings before the trial court as an interested party, and did not participate in the proceedings before the Court of Appeal. However, it is instructive to note that this court rendered itself on the 3rd appellant’s standing in its ruling dated June 16, 2003 by stating:
“[22]
…. Perusal of the prayers/reliefs and the case advanced by the 3rd applicant in its appeal as well as its motion reveals that they are more or less in tandem with the 1st and 2nd applicants’ case and reliefs sought in their appeal and motion. As such, it cannot be said that the 3rd applicant’s interests have gone over and above that of the primary parties. What is more, we find that the 3rd applicant has not introduced a new issue that was either not canvassed before the superior courts below or did not arise from the impugned judgment. As to whether the 3rd applicant should have filed a review before the Court of Appeal as opposed to an appeal before this court, we find that issue would go to the merit of its appeal and ought to be addressed in the consolidated appeal.”
63.
Be that as it may, despite the 5th respondent’s insistence that the 3rd appellant was served with both the notice and record of appeal, the state counsel could hardly prove service from the Record. They identified their notice of cross appeal at Volume 7, page 1028 of the 3rd appellant’s record of appeal, in support of their assertion that they served the 3rd appellant by email. A perusal of the same reveals that the 3rd appellant’s advocates on record are listed under “parties upon whom the Attorney General intended to effect service”. However, this falls woefully short of conclusive proof of service.
64.
Having concluded that there is no proof that the 3rd appellant was served, what remedy was available to it? The 3rd respondent suggests that in the circumstances, the only avenue for redress available to it was to apply for review of the Court of Appeal’s judgment. However, we are differently minded. The argument that the 3rd appellant was only an interested party before the trial court with limited participation and is therefore precluded from filing an appeal before this court does not hold. Notably, it had a demonstrable interest and was active before the trial court. Further, the lapse in service leading to its non-involvement at the Court of Appeal lay squarely with the Attorney General and perhaps, to some extent with the Court of Appeal itself.
65.
We agree with the 5th respondent that the overriding interest is that of a primary party, in accordance with the principles set out in the case of Francis Karioki Muruatetu & another v Republic & 5 others Petition No 6 of 2016; [2016] eKLR thus:
“
Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court…
…. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties.” [Emphasis ours]
66.
However, we reiterate that in this case, the 3rd appellant’s case and prayers are identical to those of the 1st and 2nd appellants, whose petition is the lead file. The respondents’ argument as to the standing of the 3rd appellant is therefore unmerited.
67.
This case is clearly distinguishable from our decision in Law Society of Kenya v Communications Authority of Kenya & 10 others (Petition 8 of 2020) [2023] KESC 27 (KLR), wherein the court declined to admit an appeal by the intending appellant who had never been a party to the case at both the High Court and Court of Appeal. The court found difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts.
ii. Whether the Employment and Labour Relations Court lacked jurisdiction to determine the constitutional validity of the NSSF Act 2013
68.
It is the appellants’ argument that the ELRC had jurisdiction to declare the NSSF Act unconstitutional. They base their argument on article 162(2)(a) of the Constitution and the opening paragraph of section 12(1) of the ELRC Act, to urge that the expression ‘relating to employment and labour relations’ cannot be construed to mean only disputes between ‘employers and employees.’ Similarly, it is urged, the expression ‘connected purposes’ in the preamble should be construed to mean any dispute connected with employment and labour relations. As regards the list of scenarios enumerated in section 12(1) of the ELRC Act, the appellants assert that the expression ‘including’ means “includes but is not limited to” in accordance with the interpretation in article 259(4)(b) of the Constitution. They cite the case of EG v Non-Governmental Organization Coordination Board & others HC Petition No 440 of 2013; [2015] eKLR, on an inclusive construction of the word ‘including’.
69.
Additionally, it is the appellants’ case that provision of social security benefits including pensions is an integral component of employment and labour relations both domestically and internationally. The NSSF Act 2013, they submit, falls within that sphere. They urge that pension rights cannot exist outside of employment; and that the drafters of the Constitution intended that the ELRC should have jurisdiction on all matters relating to employment and labour relations.
70.
In this regard, they posit that the interpretation of constitutional provisions is not the preserve of the High Court more so where employment and labour relations are involved. In their estimation, by necessary inference and deduction, a dispute relating to the constitutionality of an Act of Parliament that applies only to employers and employees and deals entirely with pension must be a dispute within the four corners of the jurisdiction of the ELRC. Furthermore, the appellants implore the court to adopt the practice in the South African and Nigerian Labour Courts which are empowered to nullify laws within their purview.
71.
Conversely, the respondents contend that the first issue as framed by the trial court itself, was that the gravamen of the petition was for the court to find the enactment of the NSSF Act No 45 of 2013 in violation of the Constitution. They therefore surmise that the trial court assumed jurisdiction over the enactment process of the Act, which was not an issue incidental to the employer-employee relationship. According to the respondents, the ELRC assumed the jurisdiction of the High Court under article 165(3)(d).
72.
This appeal turns on the ELRC’s jurisdiction as a court of the status of the High Court to determine the constitutional validity of an Act of Parliament. In this regard, this court in the Karisa Chengo Case adopted the definition of jurisdiction in the following terms:
“
(35)
In the above regard, we note that in almost all the legal systems of the world, the term “jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed) Vol 9 at page 350 thus defines “jurisdiction” as “…the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol 3, at page 113 reiterates the latter definition of the term ‘jurisdiction’ as follows: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” [Emphasis added]
73.
For us to dispose of this issue in the face of the two contrasting positions of the parties, it is important to briefly revisit the constitutional reform process that preceded the establishment of the ELRC. In the Karisa Chengo case, the court recounted the history and context in which the Committee of Experts (CoE) conceived of specialised courts. Specifically, that the drafters of the Constitution intended to delineate the roles of specialised courts, for the purpose of achieving specialization while conferring equality of the status of the High Court to the new category of courts. The court clearly stated thus:
“
(51)
Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this court has reaffirmed its position that the jurisdiction of courts is derived from the Constitution, or legislation (see In Re the Matter of the Interim Independent Electoral Commission, at paras 29 and 30; and Samuel Kamau Macharia and another v Kenya Commercial Bank and two others, SupCt Civil Application No 2 of 2011 [para 68]). In this instance, the jurisdiction of the specialized Courts is prescribed by Parliament, through the said enactment of legislation relating, respectively, to the ELC and the ELRC.” [Emphasis added]
74.
Pursuant to article 162(2)(a) of the Constitution, the ELRC was operationalized by the Employment and Labour Relations Court Act No 20 of 2011, whose purpose is to “establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations”. By dint of section 12(1) of the Act, the jurisdiction of the court is delineated as follows:
12.
Jurisdiction of the court
1.
The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including —
a.
disputes relating to or arising out of employment between an employer and an employee;
b.
disputes between an employer and a trade union;
c.
disputes between an employers' organisation and a trade unions organisation;
d.
disputes between trade unions;
e.
disputes between employer organizations;
f.
disputes between an employers' organisation and a trade union;
g.
disputes between a trade union and a member thereof;
h.
disputes between an employer's organisation or a federation and a member thereof;
i.
disputes concerning the registration and election of trade union officials; and
j.
disputes relating to the registration and enforcement of collective agreements.
75.
Section 12(2) of the Act provides that:
“An application, claim, or complaint may be lodged with the court by or against an employee, an employer, a trade union, an employers’ organization, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.”
From the above provisions of the Constitution and the Act, it is clear that the jurisdiction of the ELRC is limited in terms of the types of disputes and the parties.
76.
On the other hand, the jurisdiction of the High Court to determine the constitutional validity of a statute is clearly stipulated in article 165(3)(d)(i) of the Constitution in the following terms:
165.
...
(3)
Subject to clause (5) the High Court shall have:
d.
jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of:
i.
the question whether any law is inconsistent with or in contravention of this Constitution...
77.
The question before us is whether, within the scheme of the jurisdictional virements effected by the Constitution between the High Court and the two specialized courts, the latter can determine the constitutional validity of a statute. In order to answer this question, we have to revisit the relevant provisions of the Constitution as above quoted.
Clause 5 to which article 165(3) is subject provides as follows:
“
The High Court shall not have jurisdiction in respect of matters-
a.
reserved for the exclusive jurisdiction of the Supreme Court under this Constitution, or
b.
falling within the jurisdiction of the courts contemplated in article 162(2).
78.
Once again, we are guided by this court’s finding in the Karisa Chengo Case wherein the court held as follows:
“
(52)
In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of courts, with sui generiss jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous courts and exercise different and distinct jurisdictions. As article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.” [Emphasis added]
79.
In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute. This is especially so if the statute in question lies at the centre of the dispute. What it cannot do, is to sit as if it were the High Court under article 165 of the Constitution, and declare a statute unconstitutional in circumstances where the dispute in question has nothing or little to do with employment and labour relations within the context of the ELRC Act. But, if at the commencement or during the determination of a dispute falling within its jurisdiction, as reserved to it by article 162(2)(a) of the Constitution, a question arises regarding the constitutional validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue. Otherwise, how else would it comprehensively and with finality determine such a dispute? Stripping the court of such authority would leave it jurisdictionally hum-strung; a consequence that could hardly have been envisaged by the framers of the Constitution, even as they precluded the High Court from exercising jurisdiction over matters employment and labour pursuant to article 165(5)(b). We are therefore in agreement with the appellants’ submissions regarding this issue as encapsulated in paragraph 69 of this Judgment.
80.
Having said so, we have to emphasize that the High Court retains the residual jurisdiction to determine whether any law is inconsistent with the Constitution within the meaning of article 165, bearing in mind the provisions of article 165(5)(b). It must also be restated that the High Court (as between it and courts established under article 162 of the Constitution), has the original and exclusive jurisdiction (without exception) to hear and determine applications for redress of denial, violation, or infringement of rights and fundamental freedoms in the Bill of Rights pursuant to articles 22 and 23 of the Constitution (See Supreme Court Judgment in the County Assemblies Forum v Attorney General & others; Pet No 22 of 2017, at Paragraph 56).
81.
We now come to the specific question whether the ELRC correctly assumed jurisdiction to determine the constitutional validity of the NSSF Act 2013. Towards this end, we are persuaded by the appellants’ argument to the effect that the Court of Appeal adopted a rather restrictive view of the reach of the NSSF Act 2013, in holding that the matter before the ELRC did not emanate from an “employer-employee” dispute. The extensive provisions of the Act, requiring employers and employees to contribute specific amounts of money to a Social Security Fund cannot be said to have nothing to do with an employer-employee relationship. Even if the matter did not emanate from an employer-employee dispute within the confines of the ELRC Act, to the extent that it introduces enhanced and mandatory contributory amounts of employee earnings, the Act has potential to ignite justiciable grievances from certain cadres of employees. No doubt these grievances would end up at the ELRC which would likely be called upon, as it was in this case, to determine the constitutional validity of the same. But even beyond the employer-employee dispute resolution regime, the NSSF Act 2013, seeks to expansively regulate a wide array of labour relations especially the social security of the employed cadre when they finally exit formal employment. Should it then be surprising that an employee should be concerned about what his/her future would look like after salaried employment?
82.
We must ask, who were the parties to this dispute? From the pleadings on record, before and after the consolidation of the various petitions, it is clear that the dispute pitted trade unions, workers associations, employers’ associations and certain employees, against the Cabinet Secretary for Labour, the NSSF Board of Trustees, and the Attorney General. The dispute roped in organizations and authorities as diverse as the Central Organization of Trade Unions (COTU), Federation of Kenya Employers (FKE), the Retirement Benefits Authority (RBA), and the Competition Authority. What were the appellants complaining about? From the proceedings as re-enacted in this Judgment, whether rightly or wrongly, they complained among others, about the burdensome nature of the new contributions to the scheme that had been introduced by the NSSF Act 2013. They complained about the enhanced powers of the Cabinet Secretary for Labour over the management of their Scheme. They complained about the legality of a Fund premised on an employer and employee relationship. They complained about the negative effect the new law would have on the existing Collective Bargaining Agreements (CBAs).
83.
Can it be said that the parties herein are not among the disputants contemplated under section 12(2) of the ELRC Act? Even where the Act stipulates that a complaint, application or suit may be lodged against the Cabinet Secretary for Labour or any office established by law for that purpose? Or that the nature of the dispute is not one that falls within the jurisdiction of the ELRC, even where, as in this case, both employers and employees, trade unions, and workers associations are decrying what they consider to be the adverse effect of a new law on their working conditions? We are in agreement with the Court of Appeal to the effect that this dispute did not arise strictly from an employer-employee relationship. But what about the other aspects of the dispute? What meaning is to be ascribed to the phrase “labour relations”?
84.
It has been submitted by the respondents herein, that by dint of our decision in the Albert Chaurembo case, the ELRC has no jurisdiction over disputes arising from the implementation of the NSSF Act 2013, as the same deals with “Pensions”. But what was the decision in Chaurembo? At Paragraph 145, the court pronounced itself as follows:
“
On the other hand, section 2 of the Employment and Labour Relations Court Act defines the term an “an employee” to mean a person employed for wages or salary and includes an apprentice and indentured learner. The provision further defines “employer” to mean any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation, or company. Thus, whereas a dispute may well fall within an employment dispute, the meaning of a pensioner is nowhere near the meaning of an employee, neither can the scheme of organisation fit in the meaning of an employer.” [Emphasis added]
85.
Again, at paragraph 146, the court stated:
“In our view, once a member leaves the employment of a Sponsor, by becoming a pensioner, there is no longer a relationship of employer-employee that exists between such a pensioner and the sponsor. The relationship that exists in that case becomes that of trustee and beneficiaries (members) of a trust and that relationship is governed by the Retirement Benefits Act, Trustees Act, cap 167 of the Laws of Kenya and the general common law on trusts. It is important to note that nowhere in the Employment and Labour Relations Court Act is there jurisdiction conferred on the Employment and Labour Relations Court to resolve issues between trustees of a pension scheme and members of the scheme (pensioners).”
86.
It is clear that our decision in Chaurembo, does not oust the jurisdiction of the ELRC to determine disputes, arising out of the application of the provisions of the NSSF Act 2013, to employees who are yet to become pensioners. What the ELRC lacks, is jurisdiction over disputes between pensioners and trustees of a specific pension scheme as the latter is governed by dedicated statutes and applicable common law. A pensioner is a person who is no longer in employment. He cannot therefore seek any redress arising from a dispute between him and the trustees of a Scheme to which he is a member from the ELRC. The appellants herein are not pensioners but organizations representing employees who are still in active employment. Although the NSSF Board of Trustees is a main protagonist in the dispute, it has been enjoined due to the fact that it is the one which will administer the Scheme of which the appellants are dissatisfied with.
87.
For the avoidance of doubt, and so as to stop the pendulum of jurisdictional re-jigging that has characterised this case from the beginning, we hereby restate that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters employment and labour. Suffice it to say that the statute in question must be in focus and at the centre of the dispute in question. Having so declared, there remains the question as to whether the ELRC rightly and judiciously, exercised its jurisdiction in declaring the NSSF Act 2013, unconstitutional. It is no longer a question whether the Court had or lacked jurisdiction to so do, but whether it correctly exercised its jurisdiction in declaring the Act unconstitutional. Had the Court of Appeal not found to the contrary, it would have answered this question comprehensively when the appeal came up for hearing before it. But having found that in declaring the NSSF Act 2013, unconstitutional, the ELRC had acted without jurisdiction, the appellate court could not pronounce itself on the merits of the trial court’s findings. It had to down its tools and remit the matter to the court that had jurisdiction, in this case, the High Court. However, instead of remitting the matter as aforesaid, the appellate court went on to determine the merits of one issue, while leaving the others in abeyance. It is this scenario that brings us to the next issue for determination.
iii. Whether the Court of Appeal exercised original jurisdiction in partially determining the constitutionality of the NSSF Act, 2013
88.
On the one hand, the appellants contend that by pronouncing itself on the substantive merits of the case, (the Senate’s concurrence in the enactment of the NSSF Act), the Court of Appeal assumed original jurisdiction, in effect pre-empting trial court level determination. They urge that the court committed a fundamental error. In their opinion, having declared the ELRC proceedings a nullity, there was no Judgment from the trial court upon which the Court of Appeal could make a determination.
89.
In this regard, they argue that the Court of Appeal ran afoul of the limits of its appellate jurisdiction under article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act. In effect, the appellants conclude that the Court of Appeal’s determination that the enactment of the impugned Act did not require the Senate’s concurrence is null and void.
90.
On the other hand, the respondents argue that the Court of Appeal correctly determined that the NSSF Act 2013, being a legislation on social security and professional pension plans, is a National Government function under Part 1 of the fourth schedule to the Constitution and consequently, it was not a Bill amenable to concurrent legislation by the National Assembly and the Senate under article 110.
91.
The respondents also faulted the trial court for misapplying this court’s advisory in, In the Matter of the Speaker of the Senate; Advisory Opinion Reference No 2 of 2013; [2013] eKLR which was clearly distinguishable as it dealt with a Money Bill. Furthermore, they faulted the trial court for failing to apply the correct test to ascertain whether the NSSF Act 2013, dealt with functions, powers and finances of the County Government.
92.
We note that while citing the case of Desai v Warsaw (1967) EA 351, the Court of Appeal held that proceedings conducted by a court without jurisdiction, as well as any award, judgment or orders arising therefrom are a nullity. Notwithstanding its finding, the appellate court proceeded to decide on the concurrence issue. It is instructive to note that in doing so, the Court of Appeal termed it as a threshold issue. The effect of this determination which went to the merits of the claim, to the exclusion of the grounds challenging the validity of the NSSF Act 2013, leaves other factual and constitutional questions of live controversy that are yet to be determined through the requisite appellate process. In the case of The Kenya Section of the International Commission of Jurists v. Attorney General, Crim Appeal 1 of 2012, [at p 4, paras.24-26] this court stated:
“We recognize that generally, the entry into the sphere of emerging jurisprudence is located at the High Court which bears original jurisdiction to interpret the Constitution and which has an appellate jurisdiction from lower courts that address the basic scenarios of fact that spawn issues of jural character.
The Supreme Court all by itself and without the benefit of such other courts would be insufficiently resourced and empowered to develop rich jurisprudence as provided for. The law-making chain indeed goes back to the subordinate courts, which constitute the “grassroots” entry-point into the varied intellectual dimensions of law that will guide the process of construction of legal ideas.
It follows that the Supreme Court, to best situate itself so as to address the complexity of the construction of law, must safeguard the proper jurisdiction of the courts below it.”
93.
In view of our opinion as expressed in the paragraph above, it is our holding that where the Court of Appeal determines that a trial court has acted without jurisdiction in determining a matter, it cannot assume original jurisdiction over the same. Having so found, the appellate court has to remit the case to the court that is clothed with jurisdiction to dispose of the same without going into the merits of the dispute, for doing so may prejudice the fair determination of the case by the court with jurisdiction.
iv. Whether the case should be remitted to the High Court for determination
94.
The appellants urge that in the event that the court upholds the Court of Appeal, the case ought to be remitted to the High Court for determination on its merits. On the other hand, the respondents’ position is that remanding the case back to the High Court was not an avenue available to the Court of Appeal. They relied on section 75 of the Civil Procedure Act to argue that a case can only be remanded to a court from which it came, that had jurisdiction to determine it in the first place.
95.
In order to make an informed determination on this issue, it behoves us to revisit the procedural environment in which this matter was filed, as well as the chronology of events through the various superior courts. It is common ground that two of the five petitions were initially filed at the Constitutional and Human Rights Division of the High Court. When placed before Mumbi Ngugi J (as she then was), the learned judge directed that the matter be placed before the Employment and Labour Relations Court, as its subject matter involved social security, a matter within the ELRC’s jurisdiction. Thereafter, the question of jurisdiction arose at the outset, with the Chief Justice empanelling a mixed bench before the same was declared unconstitutional pursuant to the Karisa Chengo case. Subsequently, the Court of Appeal set aside the ELRC Judgment and all consequential orders.
96.
We have already held that, contrary to the Court of Appeal’s finding, the ELRC had jurisdiction to determine the constitutional validity of the NSSF Act 2013 2013. It is therefore no longer a live issue as to whether this matter should be remitted to the High Court. In the unique circumstances of this case, the relief that lends itself to us is section 22 of the Supreme Court Act 2011, which empowers the court to remit proceedings in the following terms:
22.
Power to remit proceedings
The Supreme Court may remit proceedings that began in a court or tribunal to any court that has jurisdiction to deal with the matter.
97.
In the circumstances, this case is to be remitted to the Court of Appeal to determine the substantive merits of the Judgment of the ELRC. Due to the nature of the matter, the surrounding public interest and the time taken by the case in the corridors of justice, it is prudent that the matter be heard on a priority basis.
v. Costs
98.
The respondents made submissions on their entitlement to costs. Guided by this court’s holding in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2014; [2014] eKLR, the general rule is that costs follow the event. However, the court may in appropriate cases exercise discretion and decide otherwise, to ensure that the ends of justice are met. In this instance, we do not think that there is justification to direct the respondents to bear the costs of this litigation. As it is, this case is yet to be substantively determined by the Court of Appeal, with the possibility that a further appeal may still lie to this court. Consequently, the order that commends itself to us is to direct each party to bear its own costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/3/eng@2024-02-21 |
Petition E020 of 2023 | Garama v Karisa & 3 others (Petition E020 of 2023) [2024] KESC 1 (KLR) (16 February 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 16 February2024 | 2,024 | Nairobi | Civil | Garama v Karisa & 3 others | [2024] KESC 1 (KLR) | null | Before the court are two separate applications brought by the parties for determination. While not directly related, to ensure judicious use of time, this ruling will dispose of both. The first application is by the 2nd and 3rd respondents seeking leave to adduce new and additional evidence while the second application is by the appellant seeking orders to strike out the 1st respondent’s submissions for non-compliance with the directions of the Deputy Registrar of this court issued on September 18, 2023 as well as Supreme Court (General) Practice Directions,2020; and
2.
Upon perusing the 2nd and 3rd respondents’ application dated October 13, 2023 brought pursuant to section 20 of the Supreme Court Act, 2011 and rule 26 of the Supreme Court Rules, 2020 seeking leave to adduce new and additional evidence; and
3.
Upon considering the grounds in support of the application and the averments contained in the supporting and supplementary affidavits sworn by Chrispine Owiye, the Director, Legal, and Public Affairs of the 2nd respondent, wherein he inter alia contends that; on March 3, 2023, the High Court rendered its decision in Malindi Election Petition No E001 of 2022 where it among others, determined that there was no evidence to identify the persons who had witnessed the re-opening of the ballot boxes at Mapimo Youth Polytechnic polling station 1 of 6 hence depriving the process of any transparency; the appellant appealed the decision vide Election Appeal No E001 of 2023 and on the July 28, 2023, the Court of Appeal rendered its decision where it found inter alia that, the act of taking a vote recount in the absence of all the agents of the parties failed to meet the constitutional test of transparency and accountability in light of article 81 of the Constitution; the said decision was taken by the Court of Appeal despite the 2nd and 3rd respondents’ testimony that over 14 agents witnessed the process of opening the ballot boxes to retrieve the original Form 35A accidentally locked in the wrong ballot box; the High Court at all material times had full access to the polling station diary which was by order deposited with the court; the two judgments of the superior courts question the transparency of the process of re- opening the ballot boxes to retrieve the original Form 35A and the incidental recount of the votes which was at the core of the courts’ decision to invalidate the election result of Mapimo Youth Polytechnic polling station 1 of 6; it is therefore necessary for this court to have the benefit of perusing the polling station dairy for Mapimo Youth Polytechnic polling station 1 of 6 to test the correctness of the superior court’s decision; the additional evidence is not for the purpose of removing lacunae and filling gaps in evidence but is needful to assist the court in making its determination in the interest of justice; and
4.
Noting the 2nd and 3rd respondents’ submissions dated October 26, 2023 where they reiterate the contents of their supporting affidavit and further submit that; the court has jurisdiction to call or admit additional evidence in any proceedings where it considers necessary; the relevance of the additional evidence they seek to produce is that it is directly relevant to the issue regarding the election result for Mapimo Youth Polytechnic polling station 1 of 6; it is likely to influence the court’s determination of whether the process of opening the ballot boxes to retrieve the original Form 35A and consequential recount met the tests of transparency; and
5.
Further noting the 1st respondent’s submissions opposing the 2nd and 3rd respondents’ application where he submits that; he filed a preliminary objection on August 25, 2023 on the ground that this court lacks jurisdiction to hear and determine the petition; parties have filed their respective responses to the preliminary objection; that the preliminary objection ought to be disposed of first; the applicants have failed to meet the conditions as provided for by law and in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No 7 & 9 of 2018 [2018] eKLR and Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others, SC Petition (Application) No 38 of 2020 [2020] eKLR for the court to exercise its discretion in their favour; the principles set by the court in the above-quoted cases for admission of new and additional evidence are not disjunctive and must be complied with in totality; and
6.
Taking into account the appellant’s application dated October 25, 2023 brought pursuant to sections 21 and 23(2B) of the Supreme Court Act, 2011 and rule 31 of the Supreme Court Rules, 2020 Direction 17 and Part D of the Supreme Court (General) Practice Directions, 2020 seeking an order that the submissions by the 1st respondent be struck out for non-compliance with the directions of the Deputy Registrar of the Supreme Court issued on September 18, 2023 as well as Supreme Court (General) Practice Directions, 2020; and
7.
Considering the grounds in support of the application and the averments contained in the supporting and supplementary affidavits sworn by Kevin Wakwaya, an Advocate practicing with the firm of Rachier & Amollo LLP wherein he contends that: he has had the conduct of the matter on behalf of the appellant and has instructions to swear the affidavit; on September 18, 2023, the Deputy Registrar of this court issued directions that all parties present do file their submissions within the stipulated timelines; on September 28, 2023, the appellant filed his submissions in total compliance with the court’s directions; the 1st respondent in total disobedience of the court’s directions filed two sets of submissions, one for his preliminary objection and the other for the main petition; the 1st respondent disregarded direction 17 of the Supreme Court (General) Practice Directions, 2020 by exceeding the limit of 15 pages and the font size requirement of Times New Roman and font size 12; the disregard of the Supreme Court (General) Practice Directions, 2020 was deliberately made to unduly benefit the 1st respondent to the detriment of the appellant who was limited to addressing both the preliminary objection and petition of appeal in 15 pages; and
8.
Also considering the appellant’s submissions dated October 25, 2023 wherein he reiterates the contents in support of the application and submits that; the Deputy Registrar directed that all parties should file one set of submissions to address both the 1st respondent’s preliminary objection and the petition of appeal; the appellant, 2nd and 3rd respondents and 4th respondent complied with the Deputy Registrar’s direction on the page limit; but the 1st respondent not only filed two sets of submissions but also exceeded the page limit of 15 pages; the submissions also did not follow the set font type, font size or the spacing required; this court in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others, SC Application E029 of 2023) [2023] KESC 69 (KLR) struck out the applicants’ submissions for non-compliance with the rules and directions and cautioned against exceeding the permissible lengths of submissions; and
9.
Further noting the 1st respondent’s replying affidavit sworn by Wesley Robinson Gichaba, an advocate practicing at Gichaba and Company Advocates wherein he contends that; he was present in court together with Mr Bwire,Advocate, when the Deputy Registrar issued directions on filing documents including submissions; he does not recall the Deputy Registrar issuing a direction that parties should file a single set of submissions to both the preliminary objection and the petition; the preliminary objection and the petition are independent and special pleadings/documents diametrically opposed to each other and had not been consolidated and the assertion of one the filing of one set of submissions would prejudice the 1st respondent; the appellant chose to file a single set of submissions to his petition and preliminary objection and cannot blame the 1st respondent for not doing so; the appellant was not prejudiced as he had a right to file further submissions in rejoinder; the submissions in support of the preliminary objection and petition did not each exceed 15 pages; the application is an abuse of the court process and the submissions are properly on record; and
10.
Also noting the 1st respondent’s submissions dated November 6, 2023 wherein he reiterates the contents in support of the application and submits that; the preliminary objection is an independent and stand-alone document and not inferior to the petition, and therefore attracts its own responses and submissions; the submissions in regard to the petition were 14 pages and therefore did not exceed the limit of 15 pages; the circumstances in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others(supra) are different and distinguishable because therein, the court found it irregular to file joint and separate submissions at the same time and therefore the decision cannot apply to this matter; and | 11.
Having considered the applications, responses, and submissions before us,
We now opine as follows:
i.
Section 20(1) of the Supreme Court Act, 2011 grants the court the authority to admit further evidence in determining an appeal, where it considers necessary and appropriate. Section 20(2) provides as follows:
“
The court, in admitting additional evidence, shall consider whether the additional evidence —
a.
is directly relevant to the matter before the court;
b.
is capable of influencing or impacting on the decision of the court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the court.”
ii.
This court set the governing principles on allowing the filing of additional or new evidence in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No 7 & 9 of 2018 [2018] eKLR as follows:
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.
Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.
the evidence must be credible in the sense that it is capable of belief;
f.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
i.
The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful.
j.
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
k.
The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
iii.
Applying the above set principles, it is evidently manifest that the 2nd and 3rd respondents at all material times had knowledge of the existence of and were in actual custody of the additional or the so-called new evidence during the trial of the matter herein in the superior courts below. They admit that the additional or the so-called new evidence was in their custody and have not reasonably explained to this court why the said evidence was not produced before the trial court or is not part of the record despite the trial court having custody of the same. In any event, if it is true that, the polling station diary for Mapimo Youth polling station was in the custody of the trial court as alleged by Chrispine Owiye in his supporting affidavit, then why seek to adduce it as new and additional evidence at this point? Furthermore, it was upon them to adduce and point out the evidence and its relevance to the trial court- whether or not it was part of the record-and not wait until this second appeal to do so.
iv.
Having found that the 2nd and 3rd respondents not only had prior knowledge of, but were in actual possession of the additional or the so- called new evidence, it is our considered view that their attempt to adduce additional or new evidence before this court is intended to fill up omissions or patch up the weak points in their case which action, we refuse to countenance. Consequently, the application seeking to adduce additional evidence fails and is dismissed.
v.
We now turn to the 2nd application which sought striking out of the 1st respondent’s submissions. A perusal of the impugned submissions reveal that the 1st respondent filed two separate submissions, the submissions in respect of the appeal are 14 pages while the submissions in support of the preliminary objection are 12 pages.
vi.
We note that the Deputy Registrar’s directions issued on September 18, 2023 were clear that the 1st respondent ought to file composite submissions in respect of the appeal and the preliminary objection. The 1st respondent failed to comply with those directions but instead filed separate submissions for the preliminary objection and the appeal. The two add up to 26 pages and the explanation for doing so given is, with respect, escapist. Directions are given to ensure orderly conduct of proceedings and it is not for parties to choose which ones to comply with and which ones to disregard.
vii.
Consequently, as the submissions on the appeal go to the root of the dispute before us, we shall admit them but the 1st respondent’s submission in regard to the preliminary objection, filed outside the directions of the court, are hereby struck out.
viii.
As this ruling is limited to the application seeking leave to adduce additional and new evidence and the striking out of the 1st respondent’s submissions, the court will give directions on the 1st respondent’s preliminary objection at the hearing of the appeal and being on points of law only, the 1st respondent can still submit on the issues raised orally.
ix.
As regard costs, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No 4 of 2012; [2013] eKLR it is settled that costs follow the event and that the court may in appropriate cases exercise discretion and decide otherwise. Given that the court has dismissed and partially allowed the applications, we find it judicious for each party to bear its own costs.
12.
Accordingly, we make the following orders:
a.
The notice of motion dated October 13, 2023 is hereby dismissed.
b.
The notice of motion dated October 25, 2023 is hereby partially allowed.
c.
The 1st respondent’s submissions dated October 12, 2023 in respect of the preliminary objection are hereby struck out.
d.
Each party shall bear its own costs.
13. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/1/eng@2024-02-16 |
Petition (Application) 6 of 2014 | Outa v Okello & 3 others (Petition (Application) 6 of 2014) [2024] KESC 2 (KLR) (16 February 2024) (Ruling) | Ruling | Supreme Court | Supreme Court | W Ouko | 16 February 2024 | 2,024 | Nairobi | Civil | Outa v Okello & 3 others | [2024] KESC 2 (KLR) | null | Upon perusing this motion brought pursuant to the provisions of sections 3A, 10(2), 21(2) & (4), 21A(a) and 23(2)(e) & (i) of the Supreme Court Act and rule 62(2) of the Supreme Court Rules, 2020 and the third schedule on Taxation of Costs, seeking that the certificate of costs signed and issued by the Deputy Registrar on October 9, 2023 be revoked; that the said certificate be corrected on the name of the 1st respondent to read Jared Otieno Odoto; and costs of this application; and
2.
Upon perusing the affidavit sworn by the 1st respondent on November 24, 2023, in support of the motion as well as the submissions by the 1st respondent dated November 24, 2023, to the effect that the appellant in its Bill of Costs named the 1st respondent as Jared Otieno Odoto who is a stranger to the proceedings; that the Bill of Costs was served upon the 1st respondent more than 8 years after it was lodged; that the appellant did not move the court in any way to have the name amended or altered; that subsequently, the Deputy Registrar delivered his ruling on taxation on June 9, 2023 having the appellant’s Bill of Costs taxed against Jared Otieno Odoto; that thereafter, the matter proceeded on a reference on taxation before Ouko, SCJ, who in his ruling of September 22, 2023, maintained the names in the appellant’s Bill of Costs; that on October 9, 2023, the Deputy Registrar issued a Certificate of Costs pursuant to the ruling of the single Judge with the 1st respondent’s name in the taxation proceedings changed to Jared Odoyo Okello; that this action was without a formal order and without notice and participation of the 1st respondent; and that the change of name was unprocedural and not aligned with the ruling of the Judge and is an attempt to review the decision of the Judge; and
3.
Noting that the appellant in his submissions and replying affidavit both filed on January 10, 2024, is opposed to the application on the grounds that: by the provisions of rule 62(2) of the Court’s rules the decision of a single Judge on a reference on taxation is final, therefore, the court lacks jurisdiction to entertain any further applications; further, that the 1st respondent as named in the petition of appeal is Jared Odoyo Okello who has participated in the proceedings all along; that even though the name in the Bill of Costs was erroneous, it does not change the identity of the 1st respondent; and that this application has no basis, is unknown in law and the same ought to be dismissed with costs; and | In view of the foregoing, I, now opine as follows:
4.
Bearing in mind that the taxation in dispute arose from an election petition in which Fredrick Otieno Outa, the appellant, was found to have been properly elected Member of Parliament for Nyando Constituency in the 2013 General Elections, and that his costs in the High Court, Court of Appeal and in this court were to be borne by Jared Odoyo Okello, the 1st respondent. There is no contest that the two main candidates in the elections of the year in question were Jared Odoyo Okello and Fredrick Otieno Outa, who ended up in the High Court and thereafter, moved their grievance to the Court of Appeal and finally to this court. The judgment of this court rendered on July 3, 2014 was in respect of the 1st respondent, named specifically as Jared Odoyo Okello and the appellant, Fredrick Otieno Outa. Those ought to have been the names in the subsequent taxation proceedings. Clearly, from this obvious background, the appellant in taking out the Bill of Costs, inadvertently mixed up the names, by calling the 1st respondent “Jared Otieno Odoto”. However, the final Certificate of Costs, which is the formal conclusive expression of the Court’s decision issued on October 9, 2023, correctly named the 1st respondent as Jared Odoyo Okello representing the true reflection of the judgment of this court rendered on July 3, 2014.
5.
Consequently, and for all the reasons explained, this application lacks substance and is, in my view, frivolous, vexatious and made in bad faith. This was clearly a case under the slip rule that did not have to take the course herein employed by the 1st respondent.
6.
The application, for these reasons, must fail and is hereby dismissed with an order that the 1st respondent shall bear its costs as costs are awarded at the discretion of the court.
7.
Accordingly, I order that:
i.
The motion dated November 24, 2023 be and is hereby dismissed; and
ii.
The 1st respondent shall bear the costs of this motion. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/2/eng@2024-02-16 |
Petition E001 of 2023 | Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (Petition E001 of 2023) [2023] KESC 114 (KLR) (28 December 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 28 December 2023 | 2,023 | Nairobi | Civil | Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court | [2023] KESC 114 (KLR) | null | A. Introduction
1.
Judges are entrusted with a significant responsibility to uphold the principles of justice and maintain the integrity of the judicial and legal system. In their everyday lives, public or private, judges are expected to exhibit the highest standards of impartiality, fairness, and ethical behavior. They must remain unbiased and refrain from any actions or expressions that may compromise their objectivity. They must display a demeanor that commands respect and instills public confidence in the office of a judge. Maintaining independence from external influences is crucial to ensuring the credibility of the judiciary, and judges are obligated to resist any attempts at undue influence or interference. Transparency, diligence, and a commitment to upholding the rule of law are paramount in guiding judges in the proper conduct of their duties and fostering public trust in the legal system they represent.
2.
Although judges have guaranteed tenure until mandatory or early retirement age, they can be removed only for reasons and through the process outlined in the Constitution and the law. These principles are espoused not only in the oath of office of a judge but also in some of the international and regional human rights instruments which in turn are replicated in the Constitution and relevant statutes. Those international and regional instruments include the International Covenant on Civil and Political Rights (1966), the United Nations Basic Principles on the Independence of the Judiciary, 1985 Commonwealth Principles (Latimer House), 1988, African Charter on People and Human Rights, 1981.
3.
A judge can be removed from office only on specific grounds, namely the inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence; or gross misconduct or misbehaviour. Where any or some of these grounds are alleged, the concerned Judge is entitled to due process before an independent tribunal is appointed to inquire into the alleged grounds. Similarly, should the tribunal recommend removal, the Judge has the right to challenge the decision of the tribunal through an appeal process to this court.
4.
The petition before us has been lodged pursuant to article 168(8) of the Constitution by the hon Mr Justice Said Juma Chitembwe, (the petitioner), a Judge of the High Court, who is challenging the decision of the tribunal that has recommended to the President his removal from office for gross misconduct.
B. Background
5.
The petitioner was appointed to the High Court as a Judge on April 2, 2009 and has an aggregate experience of 32 years in the legal profession, having been admitted to the Bar in 1991. He has served the nation in different court stations around the country.
6.
When the events giving rise to these proceedings came up, the petitioner was serving at the High Court Civil Division in Nairobi. In the month of November 2021, the attention of the Judicial Service Commission (the JSC) was drawn to several video recordings, social media posts, and audio cell phone recordings attributed to Hon Mike Mbuvi Sonko (Hon Sonko), the former Governor of Nairobi City County, in which the conduct of the petitioner was brought into question, because in the recordings he was exposed discussing with persons, including, Hon Sonko, the sale of property number Kwale/Galu/Kinondo/779 (parcel no 779) which had been the subject of a succession cause HC Succ Cause Malindi No 97 of 2015, In the matter of the Estate of Peter Werner (Deceased) over which the petitioner had presided as a Judge. Among the things discussed was the possible withdrawal of an appeal, Malindi Civil Appeal No 32 of 2018, Pacific Frontiers Seas Limited v Jane Mutulu Kyengo & another, that had been lodged against his decision in the said succession cause.
7.
In other video and audio recordings, the petitioner is presented discussing yet another matter with Hon Sonko, Mike Sonko Mbuvi Gideon Kioko & another v Clerk, Nairobi City County Assembly & 9 others Constitutional Petition No E425 of 2020 (consolidated with Petition No E014 of 2021) [2021] eKLR and Okiya Omtatah Okoiti & 9 others v Anne Kananu Mwenda (1st respondent/Cross-petitioner) & 6 others; Mike Mbuvi Sonko Kioko Gideon & 9 others (interested parties) Nairobi High Court Constitutional Petition No E005 of 2021 (consolidated with Petition No E433 of 2020, E007 of 2020, E009 of 2020, E011 of 2021, E012 of 2021, E013 of 2021, E015 of 2021, E019 of 2021 and E021 of 2021) (the consolidated petitions) in which Hon Sonko was the petitioner. The consolidated petitions were determined against hon Sonko by a three-judge bench presided over by the petitioner in a judgment rendered on June 24, 2021. The discussion in the recordings revolved around possible grounds of appeal against this judgment.
8.
Thereafter, on November 18, 2021, the petitioner appeared on a live television interview with Kenya Television Network (KTN) News, hosted by Ms Sophia Wanuna, in which the petitioner made various concessions and admissions. For example, he disclosed that both Mr Amana Saidi Jirani (Mr Jirani) and Hon Sonko, were his relatives or were personally known to him. Mr Jirani had been alleged in the video clips to be holding parcel no 779 as the petitioner’s proxy.
9.
Based on these episodes, JSC received the following complaints against the petitioner:
a.
Petition No 69 of 2021 by Imgard Biege and David Leboo Olekilusu
b.
Petition No 80 of 2021 by Stephen Owoko and John Wangai
c.
Petition No 91 of 2021 by Peter Agoro and Jacob Omondi
d.
Petition No 92 of 2021 by Francis Wambua.
All these petitions were subsequently withdrawn or terminated by those who had brought them under unclear circumstances.
10.
Following the withdrawal or termination of these petitions, and given the public interest generated by the social media posts, JSC resolved on November 22, 2021 to initiate, on its own motion, proceedings for the removal of the petitioner under the provisions of article 168(2) of the Constitution. | F. Analysis and Determination
80.
We start by restating the broad principles to be borne in mind when dealing with the question of removal of a judge. Those principles were outlined by this court in its maiden determination under article 168(8) in the case of Joseph Mbalu Mutava v Tribunal appointed to Investigate the conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya, SC Petition 15 B of 2016; [2019] eKLR (Mutava case), and further summarized in the case of Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya, SC Petition 4 of 2020; [2022] KESC 16 (KLR) (Muya Case) as follows:
“
i.
Unlike its jurisdiction under article 163(4), the Supreme Court, as the first and only appellate court in such matters, has a more expansive jurisdiction since, it is required to re-evaluate and re-assess the evidence on record in order to establish whether the Tribunal misdirected itself leading to a wrong conclusion.
ii.
Judges are presumed to be independent and to act without the control of anyone in deciding cases before them.
iii.
Judges should always ensure that their conduct is beyond reproach in the eyes of a reasonable observer. They must always uphold the principle that justice must not only be done but be seen to be done.
iv.
Once the President has received a petition from the Commission, he is constitutionally bound to appoint a Tribunal.
v.
The standard of proof, whether in direct or circumstantial evidence, is one which is neither beyond reasonable doubt nor on a balance of probabilities.”
81.
Consequently, an appeal to the Supreme Court under article 168(8), can be likened to a primary appeal, affording the court broader authority to scrutinize and reassess the evidence presented. This process aims to validate the accuracy of the Tribunal’s findings regarding the application of factual matters to the law, even as the court acknowledges the Tribunal’s firsthand assessments of witnesses’ credibility. The court will exercise this authority to overturn factual conclusions with caution and will only do so if it is demonstrated that the Tribunal’s conclusions were not supported by evidence or if it is evident that the Tribunal failed to appreciate the weight or bearing of circumstances admitted or proved, or if the Tribunal was plainly wrong in its conclusion.
82.
We observe at the outset that the petitioner sought to persuade us to overturn the decision of the Tribunal on twelve (12) grounds, which were condensed into eight (8) in the written submissions but argued before us in two broad clusters. For our part, we think that, given the importance of the arguments in this petition, it is necessary and only appropriate to consider all the grounds as framed.
i. Whether the Tribunal had jurisdiction to review the proceedings before the JSC
83.
The petitioner has challenged the proceedings before the JSC on the basis that his constitutional right to fair administrative action under article 47 of the Constitution was not observed and to that extent, the Tribunal was duty-bound to make an inquiry and a determination as to the integrity of the proceedings before the JSC. The respondent opposes these arguments and instead affirms that the proceedings before the JSC were lawfully conducted in strict compliance with the tenets of fair administrative action under article 47 of the Constitution.
84.
According to article 168(2) of the Constitution, there are only two routes to initiate the removal of a judge.
“
The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission”. [our Emphasis].
85.
As a constitutional requirement, a petition to the JSC must be in writing, setting out the alleged facts constituting the grounds for the judge's removal. Upon receipt of the petition or upon considering the question of removal of a judge on its own motion, the JSC,
“
(4)
shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President”. [our Emphasis]
86.
The standard to be attained before the petition is sent to the President is entirely subjective, depending on the material placed before the JSC. Whether the petition is filed by a person or where the JSC is in possession of some information, regardless of the source, pointing to a questionable conduct of a judge, it must consider the petition or the information and satisfy itself that the complaint discloses facts constituting grounds for the judge’s removal. The JSC is expected to evaluate the facts and only “if it is satisfied” that a ground or grounds for removal has/have been disclosed will it recommend to the President to constitute a Tribunal. The JSC is not simply a conduit pipe by which complaints are channeled to the President. It must be convinced that the complaint discloses prima facie evidence against the judge and that the complaint is serious enough to warrant a representation to the President. This is the threshold described by the Court of Appeal in Judicial Service Commission Mbalu Mutava & another (supra) as:
“
a preliminary inquiry to satisfy itself that the complaint is not frivolous, lacking in substance, unfounded or hypothetical. The inquiry is not intended to lead to a final decision but is only designed for receiving information for purposes of a recommendation on which a subsequent and final decision may be founded. As such, JSC does not conduct a formal hearing where witnesses are called and examined”. (per Ouko, JA as he then was, concurring)
87.
In considering whether a ground for removal has been disclosed, and being concerned only with prima facie evidence, the JSC is not required or expected to make definitive conclusions whether the allegations against the judge have been proved. It is expected to act in good faith, to accord the judge an opportunity to understand the accusations and to be guided by the provision of article 47 of the Constitution on the fair administrative action. It cannot be the JSC’s mandate to conduct a full-fledged inquiry, with witnesses being cross-examined. That is a preserve of the Tribunal where the actual hearing takes place.
88.
In November 2021, JSC’s attention was drawn to several video clips, social media posts, and cell phone recordings that were in the public domain. The recordings were attributed to hon Sonko and appeared to question the integrity of the petitioner. From the record, it is apparent that four complaints were filed against the petitioner with the JSC and later withdrawn. Due to the persistence of the allegations and because of the intense public interest elicited by recordings and social media postings, JSC resolved to initiate, on its own motion, proceedings for the removal of the petitioner from office. That course was perfectly permitted by the force of article 168(2) of the Constitution, which we have set out in the previous paragraph. Satisfied that the material and evidence placed before it disclosed prima facie grounds for the removal of the petitioner, JSC unanimously resolved to petition the President to appoint a Tribunal pursuant to article 168(4) and (5) of the Constitution. It is this process that the petitioner challenged, first before the Tribunal and now before this court.
89.
Following the petition by JSC and in exercise of the powers conferred by article 168(5)(b) of the Constitution as read with section 31 of the JS Act, HE Uhuru Kenyatta, the former President, suspended the petitioner from office and appointed a Tribunal to inquire into the allegations by Gazette Notice No 5540 of May 17, 2022, which read in the pertinent parts as hereunder:
“
Whereas the Judicial Service Commission has submitted to the President a Petition for the removal from office of the hon Justice Said Juma Chitembwe, Judge of the High Court of Kenya, under the provisions of article 168 of the Constitution.
…………
Now Therefore, having received and considered the Petition of the Judicial Service Commission and in exercise of the powers conferred by article 168(5)(b) of the Constitution of Kenya, as read together with section 31 of the Judicial Service Act, 2011, I, Uhuru Kenyatta, President and Commander in Chief of the Kenya Defence Forces, do hereby direct as follows:
1.
The hon Justice Said Juma Chitembwe, Judge of the High Court of Kenya, be and is hereby suspended from office with immediate effect; and
2.
A Tribunal to inquire into the matter be and is hereby appointed, constituted as follows …
3.
The mandate of the Tribunal shall be to consider the Petition for the removal of the hon Justice Said Juma Chitembwe from office that was submitted by the Judicial Service Commission and to inquire into the allegations therein”. [our Emphasis].
90.
The Tribunal’s jurisdiction is founded on article 168(7)(b) of the Constitution, as read with section 31 of the JS Act and the Second Schedule thereto. In appreciation of its mandate the Tribunal made the following observations:
“
818.
Article 168(7)(b) of the Constitution, as read with section 31 of the Judicial Service Act and the Second Schedule thereto, and in light of the said Gazette Notice, it is the Tribunal’s view that it was thereby mandated to a clear, specific constitutional jurisdiction restricted to inquiring into the matter and reporting on the facts in connection with the allegations made by the JSC. As the Gazette Notice reads, the Tribunal came into being after the appointing authority having received and considered the Petition of the Judicial Service Commission. Consequently, the President appointed the Tribunal ‘to inquire into the matter’. He mandated the Tribunal ‘to consider the Petition’ for the removal of the Judge the subject of the inquiry ‘that was submitted by the Judicial Service Commission and to inquire into the allegations therein’.
819.
That jurisdiction was pointed and specific. It did not and does not include an inquiry into the activities of or proceedings before the JSC. It was informed solely by the request made by the JSC.”
91.
We are in agreement with the above pronouncement and conclusion, save to only add that, just like jurisdiction is everything for a court of law, it is equally critical for a tribunal or any administrative body exercising quasi-judicial authority. Similarly, like a court of law, a tribunal can only exercise jurisdiction donated by statute or the Constitution. Since the Tribunal in these proceedings was a direct creation of a petition presented to the President, it would be an act of overreach for it to interrogate events that took place before its appointment. It had no such powers and therefore we agree with the conclusion reached by the Tribunal in that regard.
92.
But since heavy weather was made of article 47 of the Constitution, that the JSC did not accord the petitioner the right to an administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair, it is important to understand the evolution of administrative justice in Kenya. In Judicial Service Commission v Mbalu Mutava & another (supra), the Court of Appeal traced this development thus:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
93.
The Fair Administrative Action Act was eventually enacted to illuminate and expand the values espoused in article 47 aforesaid. It provides in section 4(3) the broad parameters to which bodies undertaking administrative action must conform to as follows:
“
(3)
Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a.
prior and adequate notice of the nature and reasons for the proposed administrative action;
b.
an opportunity to be heard and to make representations in that regard;
c.
notice of a right to a review or internal appeal against an administrative decision, where applicable;
d.
a statement of reasons pursuant to section 6;
e.
notice of the right to legal representation, where applicable;
f.
notice of the right to cross-examine where applicable; or
g.
information, materials and evidence to be relied upon in making the decision or taking the administrative action.”
94.
The proceedings before the JSC took the following form, from what is obvious to us on the face of the record:
a.
JSC initiated removal proceedings on its own motion based on the allegations regarding the conduct of the petitioner.
b.
Thereafter, JSC set up a committee of its members to consider its own motion alleged transgressions of the petitioner.
c.
The petitioner was informed of the allegations against him and furnished with the petition, witness statements, and evidence supporting the proceedings.
d.
The petitioner was represented by an advocate of his own choice.
e.
The Committee conducted its investigations and recorded witness statements.
f.
The petitioner was given ample time to prepare his defence and to respond to the allegations in the petition.
g.
The petitioner’s response to the petition being a preliminary objection was considered and determined.
h.
The Committee reported its findings to JSC who in turn submitted a petition to the President.
95.
To our mind, in conducting these proceedings, JSC was performing a quasi- judicial function. If the petitioner felt aggrieved by the conduct of the proceedings before JSC, which in his view amounted to a violation of his rights and fundamental freedoms, his recourse was not to the Tribunal that would be formed many months later but to the High Court, which has jurisdiction to determine questions of whether a right or fundamental right has been denied, violated, infringed, or threatened under article 165(3)(b) of the Constitution.
96.
The principles laid down by the court in Gladys Boss Shollei v Judicial Service Commission (supra) involving disciplinary proceedings against the former Chief Registrar of the Judiciary, cannot be applied in the proceedings involving a judge. While the principles enunciated in Gladys Boss Shollei v Judicial Service Commission (supra) were based on the provisions of section 32 of the JS Act, as read with regulation 25 of the third schedule to the Act (Provisions relating to the Appointment, Discipline and Removal of Judicial Officers and Staff), the instant proceedings were initiated under article 168(2) of the Constitution as read with section 31 of the JS Act. The two processes have very distinct considerations, one unique to a Judge and the other to a judicial officer.
97.
True to its constitutional mandate, the JSC ensured that the proceedings before it were conducted in consonance with the Constitution and the law, upholding the rules of natural justice and respecting the petitioner’s constitutional rights. In view of the foregoing, we find no basis upon which to conclude that the JSC violated the petitioner’s right to fair administrative action, nor can we fault the Tribunal for rejecting the invitation to interrogate the proceedings before the JSC.
Whether the Tribunal failed to uphold the doctrine of Judicial independence and immunity
98.
The petitioner contends that the totality of the examination of witnesses concerning the Malindi Succession Cause by both the Tribunal members and the lead counsel was tantamount to interrogating the merits of the decisions made by the petitioner as a result of which the Tribunal overstepped its mandate and assumed the role of an appellate court. What was more, according to the petitioner was the Tribunal’s erroneous finding that there was a reasonable apprehension that the petitioner would be biased against hon Sonko who was facing impeachment proceedings in the consolidated petitions; and that in those circumstances the petitioner ought to have disclosed this relationship to the hon Chief Justice, the other judges on the bench and the parties.
99.
The petitioner also took issue with the Tribunal’s finding, without proof, that he had acquired an interest in parcel no 779 through a proxy when Malindi Succession Cause, over which he was presiding was awaiting determination. Lastly, the petitioner faulted the Tribunal for finding, again without any proof, that he had engaged in subversion of justice by advising litigants on matters before the courts. The truth, according to the petitioner was that he handled the matters in question in good faith and in the lawful performance of his judicial function. Citing the proposition in the Supreme Court case of Bellevue Development Company v Francis Gikonyo & 3 others, SC Pt No 42 of 2018; [2020] eKLR that judicial immunity is a public policy that enables judges to freely express themselves in matters brought before them, without fear of reprisal or of being disciplined, prosecuted or harassed. In other words, a judge or a judicial officer, in exercising the authority vested in him or her, should be free to act upon his own convictions, without apprehension of personal consequences to himself.
100.
The import of article 160(5) of the Constitution is that a member of the judiciary is accorded judicial immunity for anything done or omitted to be done in good faith and in the lawful performance of a judicial function. The Constitution uses two key phrases: anything done or omitted to be done in good faith and in the lawful performance of a judicial function. The use of the two phrases was not idle but deliberate. Only things done by a judge in good faith and in the lawful discharge of the function of judicial office will merit protection. The antithesis to acting in good faith would be to act in bad faith, where a person acts dishonestly in the discharge of the functions of a judicial office. In other words, bad faith will be implied when the office-bearer has acted with a clear intent to deceive. This privilege will also be extended only when the action was done lawfully and in the performance of judicial duties. It is not available for acts done by a judge, or a judicial officer who are out on frolics of their own, going beyond the confines of what would normally be regarded as their judicial function. From a plain and textual reading of article 160(5) of the Constitution, and section 6 of the Judicature Act, judicial immunity is not absolute nor does it cover improper conduct aimed at furthering personal interests.
101.
The basic principles of judicial independence under the Constitution require, among other safeguards, that judges ought to enjoy absolute freedom from liability in respect of decisions taken in their judicial function, just as their security, remuneration, conditions of service, pensions, and the age of retirement are secured by the Constitution and the law. To that extent, judges are guaranteed tenure of office until attainment of retirement age; and, barring this, they can be removed only for specified reasons; incapacity or behaviour and other grounds that render them unfit to discharge their duties.
102.
Section 45 of the JS Act protects judicial officers from any personal culpability. They are not liable for any civil action or suit arising from anything done or omitted to be done in good faith. In the Penal Code too, in section 15, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions. Section 6 of the Judicature Act makes a similar provision to insulate a judge and judicial officer, so long as they act in good faith and within the confines of the law.
103.
In Bellevue Development Company v. Francis Gikonyo & 3 others (supra) we explained the rationale for judicial immunity and stated that:
“
(53)
The concept of judicial immunity is not without foundation. Judicial immunity is an important tenet in the delivery of justice and the maintenance of the rule of law.
……
(59)
The rationale for this judicial immunity is the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts is thus necessary so that judicial officers can make the sometimes controversial decisions that are their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability.”
104.
In determining this issue, the sole consideration is whether the petitioner should be accorded protection under article 160(5) aforesaid to extend to him the principles of judicial immunity. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/114/eng@2023-12-28 |
Petition E008 of 2023 | Kenya Ports Authority v Munyao & 4 others (Petition E008 of 2023) [2023] KESC 112 (KLR) (28 December 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 28 December 2023 | 2,023 | Nairobi | Civil | Kenya Ports Authority v Munyao & 4 others | [2023] KESC 112 (KLR) | null | a. Introduction
1.
The petition of appeal dated March 27, 2023 and lodged on March 31, 2023 was filed pursuant to certification by the Court of Appeal (Nyamweya, Lesitt & Odunga JJA) in its ruling dated March 3, 2023 as one involving a matter of general public importance under article 163(4)(b) of the Constitution. The appellant is challenging the entire judgement and orders of the Court of Appeal (Visram, Karanja & Koome (as she then was) JJA) in Civil Appeal No 134 of 2018 delivered on July 11, 2019.
2.
The petition raises the following substantive issue; the parameters of section 49 of the Employment Act and in particular the question of the nature and categories of wrongful dismissal and unfair termination the section applies to.
b. Background
3.
The appellant is a state corporation established under statute, Kenya Ports Authority Act, cap 391 and mandated to inter alia manage and operate the port of Mombasa and all scheduled seaports along Kenya’s coastline. The respondents were at the material time gantry operators employed by the appellant and were part of a larger group of approximately 94 gantry operators who had worked for the appellant for a period of between 14 and 30 years. For context, gantry is a large crane used to load and offload containerized cargo from ships.
4.
Prior to March, 2011, the gantry operators had demanded an increase in remuneration and a committee was formed comprising gantry operators' representatives and management to embark on a fact-finding mission by touring the various ports around the world to consider and make recommendations on the terms and conditions of the gantry operators. After its fact-finding mission, the committee proposed an increment of the gantry operators’ dues by Ksh 21,000/- which the gantry operators considered insufficient.
5.
According to the appellant, the respondents were part of a team of approximately 94 gantry operators who, on 29th and March 30, 2011, commenced a go-slow following their unsuccessful demands. The appellant alleged that in its daily report of moves each gantry crane made for the two days reflected a huge variation from other days; that as a result of the go slow, it failed to meet its delivery targets resulting in a crisis at the port which involved backlog and delays. The gantry operators were issued with warning letters and immediately thereafter interdicted. The interdiction letters relayed the appellant’s decision to suspend the operators pending investigations and also called on the gantry operators to show cause why they should not be dismissed on account of their conduct.
6.
Thereafter, the appellant carried out investigations to determine the gantry operators who were involved in the go slow and their level of involvement. Those found to have participated in the go slow either by actual participation or incitement were invited to attend a personal hearing on July 8, 2011. Following the hearings, the interdictions of 48 employees including the respondents were lifted. They were however issued with a warning for participating in the go slow; surcharged an amount equivalent to between two and half to three months basic salary; and further placed on a 24-month (2 year) probation. | d. Analysis and Determination
i. The nature and categories of wrongful dismissal and unfair termination that section 49 of the Employment Act applies to, and in particular; whether section 49 applies where an employee has not been dismissed or the contract of employment terminated.
43.
While analyzing how to determine the intention of a statute, the Court of Appeal in County Government of Nyeri & anor v Cecilia Wangechi Ndungu [2015] eKLR held that:
“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”
44.
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Pet No 26 of 2014; [2014] eKLR, this court opined that a purposive interpretation should be given to statutes so as to reveal the intention of the statute. The court observed as follows:
“
In Pepper v Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the court is not to be held captive to such phraseology. Where the court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:
“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
45.
Section 49 of the Employment Act provides for remedies for wrongful dismissal and unfair termination when it provides as follows;
1.
Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following —
a.
the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;
b.
where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or
c.
the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
2.
Any payments made by the employer under this section shall be subject to statutory deductions.
3.
Where in the opinion of a labour officer an employee's summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to —
a.
reinstate the employee and treat the employee in all respects as if the employees employment had not been terminated; or
b.
re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage
46.
With regard to awards under section 49, the legislature found it necessary to catalogue the factors to be considered in making an award as follows;
4.
A labour officer shall, in deciding whether to recommend the remedies specified in subsections (1) and (3), take into account any or all of the following—
a.
the wishes of the employee;
b.
the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and
c.
the practicability of recommending reinstatement or re- engagement;
d.
the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
e.
the employee’s length of service with the employer;
f.
the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;
g.
the opportunities available to the employee for securing comparable or suitable employment with another employer;
h.
the value of any severance payable by law;
i.
the right to press claims or any unpaid wages, expenses or other claims owing to the employee;
j.
any expenses reasonably incurred by the employee as a consequence of the termination;
k.
any conduct of the employee which to any extent caused or contributed to the termination;
l.
any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.
m.
any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.
47.
Section 50 of the Employment Act also provides that in determining a complaint or suit under the Act involving wrongful dismissal or unfair termination of the employment of an employee, the industrial court shall be guided by the provisions of section 49.
48.
Part VI of the Employment Act makes a distinction between wrongful dismissal and unfair termination. A termination of employment by an employer is unfair in terms of section 45, if the employer fails to prove;
a.
that the reason for the termination is valid;
b.
that the reason for the termination is a fair reason—
i.
related to the employee’s conduct, capacity or compatibility; or
ii.
based on the operational requirements of the employer; and
a. that the employment was terminated in accordance with fair procedure.
49.
Section 46 of the Employment Act provides occurrences that do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty. Specifically, it will be unfair if it relates to; (i) a female employee’s pregnancy, (ii) the going on leave of an employee, (iii) an employee’s membership of a trade union, (iii) the participation of an employee in the activities of a trade union, (iv) the employee’s seeking office in a trade union, or his refusal to join or withdraw from a trade union, (v) an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability, (vi) an employee’s initiation of a complaint or legal proceedings against the employer unless done irresponsibly, or (vii) an employee’s participation in a lawful strike.
50.
Wrongful dismissal therefore occurs when the employee is dismissed without notice or with inadequate notice. The rationale of giving notice is to offer the affected parties’ time, either to search for alternative employment or for the replacement of an employee, respectively. The parties, when entering into the contract of employment, may have agreed on the requirement of notice of termination of the contract.
51.
In Ken freight (EA) Limited v Benson K Nguti SC Pet No 37 of 2018 [2019] eKLR this court explained the applicability of the provisions of section 49 as hereunder;
“
…..What then should be the correct award on damages be based on? Having keenly perused the provisions of section 49 of the Employment Act, we have no doubt that once a trial court finds that a termination of employment as wrongful or unfair, it is only left with one question to determine, namely, what is the appropriate remedy? The Act does provide for a number of remedies for unlawful or wrongful termination under Section 49 and it is up to the judge to exercise his discretion to determine whether to allow any or all of the remedies provided thereunder. To us, it does not matter how the termination was done, provided the same was challenged in a court of law, and where a court found the same to be unfair or wrongful, section 49 applies….”
52.
The Constitution of Kenya equally provides for labour relations under article 41;
41.
Labour relations
1.
Every person has the right to fair labour practices.
2.
Every worker has the right—
a.
to fair remuneration;
b.
to reasonable working conditions;
c.
to form, join or participate in the activities and programmes of a trade union; and
d.
to go on strike.
3.
Every employer has the right—
a.
to form and join an employers organisation; and
b.
to participate in the activities and programmes of an employers organisation.
4.
Every trade union and every employers’ organisation has the right—
a.
to determine its own administration, programmes and activities;
b.
to organise; and
c.
to form and join a federation.
5.
Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.
53.
Black’s Law Dictionary 9th edition defines unfair labour practice as follows;
“Any conduct prohibited by state or federal law governing the relations among employers, employees, and labour organisations. Examples of unfair labour practices by an employer include (1) interfering with protected employee rights, such as the right to self-organization, (2) discriminating against employees for union related activities, (3) retaliating against employees who have invoked their rights, and (4) refusing to engage in collective bargaining. Examples of unfair labour practices by a labour organization include causing an employer to discriminate against an employee, engaging in an illegal strike or boycott, causing an employer to pay for work not to be performed (ie featherbedding), and refusing to engage in collective bargaining….”
54.
In Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute [2013] eKLR the court explained the concept of unfair labour practice and its application under article 41 thus;
“
What is this right to fair labour practices? First, it is the opinion of the court that the bundle of elements of “fair labour practices” is elaborated in article 41(2), (3), (4) and (5) of the Constitution……..These constitutional provisions constitute the foundational contents of the right to fair labour practices…………
Secondly, it is the opinion of the court that the right to “fair labour practices” encompasses the constitutional and statutory provisions and the established work place conventions or usages that give effect to the elaborations set out in article 41 or promote and protect fairness at work. These include provisions for basic fair treatment of employees, procedures for collective representation at work, and of late, policies that enhance family life while making it easier for men, women and persons with disabilities to go to work.”
55.
From the above definition unfair labour practice encompasses all conduct prior to, in the course of employment, during and after termination of employment. The provisions of article 41 therefore encompass the full spectrum of labour practices. The provisions of article 41 are borne from the realization that employment and/or right to work is a human right. The right is also linked to other rights in the bill of rights more so the protection of life and the dignity of a person. The right is therefore a principle with legal obligations.
56.
Whereas the Employment Act is expressive of the rights under Article 41, we find that damages under the head of article 41, as a constitutional provision, ought to be specifically pleaded and proved. Any other constitutional provisions that would have been infringed can equally be canvassed, alongside, and, under this head. This is different and distinguishable from the provisions under section 49 as read with section 50 of the Employment Act which are limited to the provisions under the Employment Act. The wording of the Employment Act under section 49 only relate to an instance where an employee has been terminated. This court determined in Ken freight (E.A) Limited v Benson K. Nguti (supra) that section 49 of the Employment Act is applicable upon the finding that a person has been unlawfully terminated.
57.
As to the nature and categories of wrongful dismissal and unfair termination that section 49 of the Employment Act applies to, the provisions of part V of the Employment Act refer to almost all instances of employment and circumstances that lead to termination of employment. What about instances that necessarily don’t lead to termination of employment? Some provisions of the Employment Act refer to such circumstance providing penalties and sanctions therein. One such instance is set out in part VII of the Employment Act; this is a distinct section of the Act that focuses on protection of children. The Labour Relations Act, 2007 at Part X deals with lock- out and strikes. The Labour Relations Act also provides for conciliation as a method of dispute resolution. The Work Injury Benefits Act 2007 provides for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes with the ELRC in the instance of the Labour Relation Act and the Work Injury Benefits Act acting as an appellate court and an enforcer.
58.
Does it therefore limit a judicial officer from relying on the principles outlined in section 49 in deciding a matter not set out in the Employment Act and which necessarily don’t lead to termination of employment. It all reverts back to the powers granted to the court under section 12 of the Employment and Labour Relations Act. Section 12 (3) of the Act grants the ELRC powers to make any of the following orders—
i.
interim preservation orders including injunctions in cases of urgency;
ii.
a prohibitory order;
iii.
an order for specific performance;
iv.
a declaratory order;
v.
an award of compensation in any circumstances contemplated under this Act or any written law;
vi.
an award of damages in any circumstances contemplated under this Act or any written law;
vii.
an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written law; or
viii.
any other appropriate relief as the court may deem fit to grant.
59.
The wording of section 12 grants the employment and labour relations court power to issue such orders as contemplated under the Act and any other written law, it also grants the court jurisdiction to issue any appropriate relief as it may deem fit. The Black’s Law Dictionary 9th edition at page 534 defines judicial discretion as follows:
“
the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right”
60.
From the above analysis and the wording of section 49, it is clear to us that section 49 applies to only instances as have been set out under the Act; section 49 only applies where an employee is terminated; in any other instance the court is expected to exercise its discretion as granted by the Constitution, the Employment and Labour Relations Act and any other statutory provisions. In exercising such judicial discretion, a judge or magistrate bears the burden of accounting for their decision and in order to discharge this burden, the judge or magistrate ought to explain the basis of their decision.
61.
How then do we relate the above analysis to the appeal before us, the appellant contends that the Court of Appeal was wrong in their reliance on the provisions of section 49 of the Employment while clearly in this case the respondents were not dismissed from their employment. The genesis of the dispute between the parties was that the respondents were alledged to have been in a go-slow between March 29, 2011 to March 31, 2011. A go-slow is a form of industrial action in which work or progress is deliberately delayed or slowed down. Both superior courts found that there was no indication that the 1st and 5th respondent participated in the go-slow. The courts equally found that due procedure was not adhered to and that the disciplinary measures taken by the appellant were not anchored in law nor in the disciplinary handbook. The Employment court issued a sum of Kes 800,000/= on account of general damages for unfair labour practices. The Court of appeal on the other hand relied on the provision of section 49 of the Employment Act and reversed the award of general damages to 4 months gross salary in favour of the 1st and 5th respondent and 1 month’s gross salary in favour of the 2nd, 3rd & 4th respondent.
62.
Despite the internal dispute mechanisms between the parties, the Human Resource manual at clause 1.6. (v) allowed an employee to invoke the provisions of the Labour Relations Act, 2007. Section 2 of the Labour Relations Act defines a trade dispute to mean a dispute or difference, or an apprehended dispute or difference, between employers and employees, between employers and trade unions, or between an employers’ organisation and employees or trade unions, concerning any employment matter, and includes disputes regarding the dismissal, suspension or redundancy of employees, allocation of work or the recognition of a trade union. Section 62 of the Labour Relations Act mandates the reporting of a trade dispute to the minister who thereafter appoints a conciliator. If the parties fail to reach a consensus section 73 allows an aggrieved party to file a claim at the Employment and Labour Relations Court. Section 76 also allows an aggrieved party to take part in a protected strike after issuing a seven-day notice.
63.
The parties herein only refer to a private conciliation whereby they undertook a case study of other jurisdictions and an increment of wages was made. This, as alleged by the appellant, did not auger well with the respondent and they resolved to participate in a go-slow. From the reading of the Labour Relations Act, the immediate recourse was to report the aforesaid go-slow to the minister who would then have appointed a conciliator. Had the conciliation fell through then the matter would have been referred to the Employment and Labour Relations Court.
64.
Looking at the Disciplinary Handbook the same provides for various forms of punishment listed as follows; (a) verbal caution or warning, (b) suspension from duty for a period not exceeding three (3) days, (c) stoppage of annual increments (d) surcharge (e) termination of contract (f) forfeiture of appointment (g) retirement/termination on public interest (h) dismissal. We therefore, agree with the superior courts that redeployment was not one of the punishments envisaged in the disciplinary handbook; we also agree that the appellant did not equate the loss incurred, and the surcharge was arbitrary and not in conformity with the disciplinary handbook which provided for a maximum of three-months surcharge.
65.
Were the superior courts then justified to issue general damages in favour of the respondents and if so, what criteria should the courts have adhered to. While the action in the trial court started its life as a constitutional petition the same changed character to an ordinary cause. The trial court did not particularise the various rights allegedly violated but dealt with the same under the respective reliefs sought ultimately awarding general damages of Kes 800,000/= in favour of the appellant. The Court of Appeal on the other hand found that the trial judge did not ascertain how he came to the award issued on account of general damages. In reversing the decision, the court relied on the provisions of Section 49 to justify its award.
66.
The petition and amended plaint were clearly anchored on article 41 of the Constitution; the predominant claim was a claim for unfair labour practice. The respondent urges the court to rely on the claim for breach of contract; however, in the amended plaint the particulars of breach were not set out. The immediate recourse under article 41 is to rely on section 12 of the Employment and Labour Relations Act which grants the court power to issue an award of compensation in any circumstance contemplated under the Act or any other written law.
67.
As we have found above the activities are linked to an alleged go-slow. We have already set out the procedure that the parties ought to have undertaken before commencing the claim. We have arrived to the same finding that due procedure was not adhered to by the appellant; this justified a claim for unfair labour practice. We note that the appellant suffered loss as a result of the go- slow, the same was however not quantified. Contributing of the loss was only apportioned to the 2nd, 3rd and 4th respondent.
68.
It is our view that, where the court finds that the matters complained of was to any extent caused or contributed to by an action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. Intentional conduct is regarded as a necessary prerequisite for reduction of compensation. Variation of an amount of compensation, therefore largely depends on the extent of contributory circumstances but does not bar recovery. In any industrial action the conduct of an employee in causing such industrial action to take place can be regarded as contributory fault.
69.
We have considered the parameters the Court of Appeal applied in the exercise of its discretion. Despite the Court of Appeal’s reliance on the provisions of section 49, in assessing the damages; their determination was pegged on the contribution of the respondents to the industrial action, the same applied in the Court of Appeal’s award on costs, the court reversed the decision upon a finding that both parties partly succeeded in their claims, we therefore find no fault in the award issued and we shall therefore not disturb the same. We arrive at the finding that the appeal therefore succeeds only to the extent that the Court of Appeal erred in its application of section 49 of the Employment Act.
ii. Whether the respondents’ cross appeal is valid.
70.
The grounds raised by the appellant contesting the validity of the cross- appeal are three- fold; the cross appeal does not fall under article 163(4)(a) of the Constitution; the cross appeal had not been certified by either the Court of Appeal of Supreme Court pursuant to article 163(4)(b) of the Constitution and section 15B of the Supreme Court; and, rule 47 of the Supreme Court Rules does not confer jurisdiction on the Supreme Court as a second appellate court as this would be inconsistent with articles 163(4)(a) and (b) of the Constitution and sections 15A and 15B of the Supreme Court Act.
71.
The respondents align to the submission that the provisions of rule 47 of the Supreme Court Rules are not limited to appeals filed as of right; the rule equally applies to appeals filed upon certification that a matter is of general public importance.
72.
Rule 47 of the Supreme Court Rules provide as follows;
47.
Notice of cross-appeal
1.
A respondent who intends to cross-appeal shall specify the grounds of contention, and the nature of the relief that the respondent seeks from the court.
2.
The respondent shall—
a.
provide contact details including the names, postal address, telephone number and email address of any persons intended to be served with the notice; and
b.
lodge eight copies of the memorandum of appeal and record of appeal in the registry within thirty days of service upon the respondent, or not less than thirty days before the hearing of the appeal, whichever is the later.
3.
An application or notice to cross-appeal shall be as set out in Form I of the First Schedule.
4.
In a criminal appeal, the Registrar of the court or tribunal from which an appeal originates shall prepare the record of appeal, and cause copies to be served upon the parties and to the Registrar.
73.
This court in the case of Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others, SC Petition No 14 of 2014; [2014] eKLR and more recently in IEBC v Sabina Chege SC Pet No 23 (E026) of 2022 (delivered on September 12, 2023) (unreported) determined that a cross appeal is an action by a respondent, who intends to counter an appellant’s cause in an appeal, with the view of obtaining certain relief(s) from the court and the same is filed pursuant to rule 47 of the Supreme Court Rules, 2020. Further this court in the case of Senate & 3 others v Speaker of the National Assembly & 10 others, (Petition 19 (E027) of 2021); [2023] KESC 7 (KLR) and again in the case of IEBC v Sabina Chege (supra) the court held that pursuant to rule 47(2)(b) a respondent who intends to cross appeal is expected to lodge eight copies of the memorandum and record of appeal and not rely on other parties’ pleadings as they have prayed. Failure to comply with rule 47 renders a cross appeal incurably defective.
74.
The Black’s Law Dictionary, 9th ed (at page 133) defines “cross- appeal” as follows:
“
to seek review (from a lower court’s decision) by a higher court” And “cross-petition” (p 433) as follows:
“i.
a claim asserted by a defendant against another party to the action;
iii.
claim asserted by a defendant against a person not a party to the action for a matter relating to the subject of the action.”
75.
In Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others, SC Petition No 14 of 2014; [2014] eKLR we had this to say regarding filing cross-appeals and cross-petitions;
“
…From the above definitions, there is a difference between a cross-appeal and a cross-petition. A cross-appeal is an action by a respondent, who intends to counter an appellant’s cause in an appeal, with the view of obtaining certain relief(s) from the court. A cross-petition on the other hand, is an action by a defendant in first-instance claims, intending to counter the claim of a petitioner with the view of obtaining certain remedies. The applicant, therefore, does not bear the right to file a cross-petition or even a cross-appeal, as this is a preserve of a respondent who has a claim against another party already in the appeal (cross-appeal), or another party to the suit (cross-petition)……”
76.
In Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others (supra) held that a cross appeal must at the onset fall within the jurisdictional sphere of the court as set out in the constitutionand must be limited to issues not already addressed by the appeal or those that cannot be argued during the appeal as a response. The court went on further to distinguish an appeal filed under article 163(4)(b) when it held as follows;
(181)
Where the appeal requires certification as being a matter of great public importance under the provisions of article 163(4)(b) of the Constitution, it is our position that during such certification, the respondent is at liberty to raise the cross appeal and the grounds applicable for such. In that instance, should the Court of Appeal or Supreme Court dealing with the certification find that the ground raised either in the application for certification and/or cross appeal qualifies as raising great public importance, then the issues and grounds will be framed as such to form the basis of certification of the appeal to the Supreme Court. With such certification, as may be reviewed by the Supreme Court where necessary, the respondent will be at liberty to file the cross appeal in accordance with the Supreme Court directions.……”
77.
Probing the cross-appeal before us, the respondent lodged the appeal together with eight copies of memorandum of appeal and record of appeal; certification was not sought for grounds raised in the cross-appeal. Nevertheless, the grounds raised in the cross-appeal urged the court to re-assess the factual dispositions and make a finding that the respondents are entitled to special damages; the grounds clearly do not relate to the issue for consideration before us, being the parameters of the application of section 49 of the Employment Act. The grounds of the cross-appeal do not raise any constitutional questions for determination or interpretation of the Constitution.
Further, even if we were to make a finding that the same fits within the parameters of the question certified, we have already decided on the appeal and made findings with regard to the issues raised in the cross-appeal.
78.
On costs, we are guided by the decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Pet No 4 of 2012 [2014] eKLR which held that an order on cost is a judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice considering the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. Accordingly, we order that each party bears their own costs. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/112/eng@2023-12-28 |
Petition E007 of 2023 | Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 28 December 2023 | 2,023 | Nairobi | Civil | Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) | [2023] KESC 113 (KLR) | null | A. Introduction
1.
The Petition of Appeal dated March 16, 2023and lodged on March 20, 2023is brought pursuant to the provisions of article 163(4)(a) of the Constitution. The appellant seeks orders to set aside the Judgment of the Court of Appeal at Kisumu (Kiage, Mumbi Ngugi & Tuiyott, JJ A) in Civil Appeal No E042 of 2021 delivered on February 7, 2023, which affirmed the decision - a Ruling-by the Environment and Land Court (ELC) at Kisumu (Ombwayo, J) - in ELC Petition No 7 of 2020 delivered on 2nd February 2021.
B. Background
2.
Abidha Nicholus, the appellant, is the registered proprietor of LR No Siaya/Ramba/788 and also has interest in the lower parts of LR No Siaya/Ramba/719 and 720, both bordering River Odundu, Ramba in Rarieda Sub-County within Siaya County. The appellant claims that in 2018, the 2nd and 3rd respondents proceeded to survey LR No Siaya/Ramba/716, which contained a shaft left by entities that had previously engaged in mining activities between 1988 and 2008 in the Ramba area. After the survey, in 2019, the 2nd and 3rd respondents commenced mining operations in the area including on LR No Siaya/Ramba/716.
3.
The appellant further claims that, he and other concerned parties questioned Joseph Andeere Nyaanga and Owang Isaak Ogweyo, the 2nd and 3rd respondents’, respectively, on the licenses/permits or authorizations issued for the mining activities. Their concerns were allegedly ignored by the 2nd and 3rd respondents.
4.
Appalled by the non-response to their concerns, on April 9, 2019, the appellant on his behalf and also on behalf of members of Ramba Community, while invoking the provisions of article 35(1) of the Constitution, and with the intention to conserve the environment, wrote to officers of the Ministry of Petroleum and Mining, Ministry of Environment and Forestry and National Environmental Management Authority(NEMA), the 4th, 5th and 6th respondents, requesting information about the mining activities that were being carried out in the Ramba area. The 4th and 5th respondents did not respond to the letter and also failed to give any explanation as to why they so declined.
5.
Undeterred, on July 23, 2019, the appellant wrote to the Ombudsman/Commission on Administrative Justice (CAJ), the 2nd interested party, seeking its intervention in highlighting the appellant’s grievance by reporting the 4th, 5th and 6th respondents’ failure to respond to his letter, or even giving explanation for such failure. The appellant’s letter prompted CAJ to write to the 4th, 5th, and 6th respondents demanding an explanation on the issues raised in the letter dated July 23, 2019.
6.
The action by CAJ provoked NEMA to respond through a letter dated 26th August 2019 whereby it confirmed that the 2nd and 3rd respondents were indeed conducting mining activities in Ramba and had submitted an Environmental Impact Assessment (EIA) Report for an existing small-scale artisanal gold mine at San-Martin, Ramba, specifically on LR No Siaya/Ramba/711, which activity was illegal for want of authorization from NEMA and that of the 4th respondent, the Ministry of Mining and Petroleum. NEMA further confirmed that Environmental Impact Assessment (EIA) Report No NEMA/PR/5/2/22027 had not been approved and proceeded to issue a stop order halting the operations of the 2nd and 3rd respondents effective July 31, 2019.
7.
The stop orders notwithstanding, according to the appellant, the 2nd and 3rd respondents continued with their mining operations. In or around June 2020, the appellant claims that he received information that the 4th respondent had renewed prospecting license No PL/2019/0226 covering Ramba Area for an entity known as AfriOre International (Barbados) Ltd, which license was later transferred to Acacia Exploration Kenya Limited. NEMA then issued Environmental Impact License No NEMA/EIA/PSL/9290 over the same area, to another entity not related to the 2nd and 3rd respondents. The appellant proceeded to inquire from Acacia Exploration Kenya Limited on whether the activities it was carrying out were connected to the 2nd and 3rd respondents. Acacia Exploration Kenya Ltd denied any connection with the 2nd and 3rd respondents.
8.
Consequently, on July 2, 2020, the appellant again wrote to the 1st, 5th, 6th, and 7th respondents informing them about the irregular mining activities by the 2nd and 3rd respondents and also raised other issues, namely; the need to identify the investors in the mining activities; public participation prior thereto, if any; lack of licenses/permits or approvals from the 4th and 5th respondents; insecurity and health issues; child labour and non-compliance with labour laws; demarcation of public utilities; environmental impact assessment; environmental degradation/pollution to land, air, water, and associated flora and fauna-as well as the human environment; individual health and safety, local community lifestyles, cultural survival, social order and economic wellbeing; disposal of wastes and effluent in the nearby river; the benefits from the royalty which the local community is entitled to under the Mining Act; and post mining rehabilitation planning. Even after raising all these issues, the appellant’s letter was not responded to.
9.
The appellant furthermore claims that the 1st, 4th, 5th and 6th respondents have continued to issue licenses since 1988 for mineral rights in Ramba area thereby causing harm and loss to residents of the area.
10.
The appellant also claims that the 2nd and 3rd respondents invaded his property, LR No Siaya/Ramba/788 and have since proceeded to excavate and mold concretes therein. Additionally, the 2nd and 3rd respondents together with the 8th respondent have trespassed onto the land, dug holes and erected electricity poles thereon, without the appellant’s consent.
11.
The appellant adds that the 2nd and 3rd respondents have continued to damp waste and/or effluent from their mining shaft on LR No Siaya/Ramba/788 as well as LR Nos Siaya/Ramba/719 and 720 posing health risks. Further, that the 2nd and 3rd respondents positioned their agents and workers to process ore/ and or gold into the nearby parcels of land which overflow into the subject land and also drain into the river without taking any safety precautions or measures. And that the excavation, molding of concretes, installation of structures by the 2nd and 3rd respondents and erection of electricity poles by the 8th respondent are acts of trespass.
12.
The appellant lastly avers that the 1st, 4th, 5th, 6th, 7th respondents and 8th respondents, by their acts, deprived him and other members of Ramba area of equal enjoyment and protection of the law by allowing unlicensed/unpermitted mining activities and wanton destruction of the environment. | F. Analysis
i. Whether the appellant has properly invoked this court's jurisdiction under article 163(4)(a) of the Constitution.
65.
The respondents have questioned the jurisdiction of this court to hear and determine this matter. They urge that there is nothing of constitutional interpretation and/or application in the appeal invoking this Court’s jurisdiction under article 163(4)(a) of the Constitution. Specifically, the 1st, 4th, 5th & 7th respondents assert that the appellant cannot invoke this Court’s jurisdiction under article 163(4)(a) when both the ELC and the Court of Appeal lacked the mandate to examine the merits of the dispute. The 3rd respondent further adds that there is no constitutional provision that was misinterpreted by the superior courts, while the 8th respondent contends that this appeal relies on an interlocutory decision of the superior courts that did not address substantive constitutional issues.
66.
On our part, we are alive to the fact that the appellate jurisdiction of this court is as set out in article 163(4) of the Constitution, which provides that:
“
Appeals shall lie from the Court of Appeal to the Supreme Court;
(a)
as of right in any case involving the interpretation or application of this Constitution; and
(b)
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)."
67.
As to what constitutes a matter involving interpretation and application of the Constitution, our approach has always been that a specific provision(s) of the Constitution must have been an issue for interpretation and/or application by both the High Court and courts of equal status as well as the Court of Appeal. In the Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Anor SC Petition No 3 of 2012 [2012] eKLR, we thus delineated our jurisdiction under article 163(4)(a) of the Constitution as follows:
“
... This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court ...
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation ..."
68.
Similarly, our decisions in Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No. 5 of 2012 [2012] eKLR, Hassan Ali Joho & Another v. Suleiman Said & Others SC Petition No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson M Kithinji & Others SC Application No 5 of 2014, [2014] eKLR (The Munya 1 case) settled the issue as we held that appeals are admissible before this Court if it can be demonstrated that the matter involved the interpretation or application of the Constitution and had been the subject of litigation before the High Court and the Court of Appeal and then risen through the judicial hierarchy on appeal.
69.
In John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others; SC Petition No. 17 of 2015; [2019] eKLR (John Florence Maritime Services), we specifically held as follows:
“
... As to what constitutes a matter involving interpretation and application of the Constitution, the conventional approach is that a particular provision of the Constitution must have been in issue for an interpretation and/or application from the High Court and the Court of Appeal ..."
70.
However, there is a broader approach as to what would constitutes a matter involving constitutional interpretation or application, where, even if a specific constitutional provision is not directly in question, the appellant must demonstrate that the court’s reasoning and conclusions led to a determination that can be considered a trajectory of constitutional interpretation or application. In the Munya 1 case, supra this court thus expounded on this broader approach while relying on its earlier decision in Peter Oduor Ngoge v Francis Ole Kaparo & 5 Others, SC Petition No 2 of 2012 [2012] eKLR case, where the court stated at [paragraph] 69:
“
The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application." [Emphasis own]
71.
From our finding in the Munya 1 case the focus should not therefore solely be on the explicit mention of a constitutional provision but also the overall context and impact of the court’s reasoning in relation to constitutional matters. In John Florence Maritime Service, supra, we added that the court should not have a narrow mind when evaluating whether a matter raises a constitutional issue, and that the search for constitutional issues should extend beyond specific constitutional provisions. It was our determination in that regard that:
“
[34]
It therefore emerges that in evaluating whether a matter raises a constitutional issue of interpretation and/or application, this court should not be narrow-minded in its inquiry. The quest for discovery should not start and stop with a determination of whether or not there is a specific provision of the Constitution that was at issue before the Superior courts. Instead, there is need for a holistic inquiry of all the various facets of the law as pleaded by the parties if they do indeed raise a constitutional question. This is the constitutional trajectory that requires a look at a court(s)’ reasoning and even the processes and procedures adopted by a court in its proceedings.”
72.
Consequently, it is our view that a determination of whether an appeal before us satisfies the criteria for invoking the Court’s appellate jurisdiction is not governed by rigid principles. Instead, it is a power exercised by the court on a case-by-case basis but within the confines of the Constitution and statute. In that regard, this was our finding in John Florence Maritime Services, supra:
“
[39]
It again follows that a determination of whether a matter has met the appellate jurisdictional threshold embodied in article 163(4)(a) of the Constitution is not based on principles cast in stone. This is a discretionary mandate and power that the Supreme Court exercises judiciously on a case to case basis. Therefore, where a litigant before this court alleges that in exercise of their constitutional mandates, the Superior Courts contravened the Constitution in the conduct of their proceedings, in protecting the Constitution that is the embodiment of the aspirations of the People of Kenya, this Court may assume jurisdiction to correct such an anomaly.
[40]
It should be noted that it does not follow as a matter of cause that where a litigant, like the appellants before us, files a Petition of appeal, which appeal prima facie triggers the discretion of this Court and the court assumes jurisdiction, that that appeal must succeed. Assumption of jurisdiction is a legal question at the discretion of this court. On the contrary, succession or otherwise of an appeal is a factual issue determined on merit on the basis of the peculiarity of each case and how those facts are applied to the law.”
73.
To put the above findings in context, in John Florence Maritime Services, supra, the respondents had urged the court to strike out the appellant’s case for want of jurisdiction, since its case before the High Court had also been struck out for being res judicata. The appellant however urged this court to find that, as a consequence of the res judicata finding, his right to a fair hearing under article 50(1) of the Constitution was denied. It was our finding that, should the appellant prove that the determination of its claim by the High Court took a constitutional trajectory then we would seize jurisdiction and interrogate the merits of his appeal and specifically stated thus:
“
[35]
Consequently, to para-phrase what we laid out in the Joho case, a question regarding the interpretation and application of the Constitution may arise from a multiplicity of factors and not necessarily an interpretation and application of a specific provision of the Constitution. Upon consideration, we are inclined to find that the Appellants’ case fits this bill. While the High Court and Court of Appeal were only charged with a common law doctrine of res judicata, it is alleged that the manner in which the High Court applied the doctrine in its proceedings infringed upon article 50(1) of the Constitution, by denying the Petitioners a right to be heard.
[36]
Such a contention by a litigant before this court draws the court’s attention particularly given the fact that the right to Fair hearing provided for by article 50(1) of the Constitution is a non- derogable right under article 25 of Constitution. If the petitioners’ contentions were to be found to have merit, then it cannot be otiose to conclude that, the determination of the High Court took a constitutional trajectory by infringing on a fundamental right. The appellants’ allegations, if affirmed, would suffice to conclude that while the court was considering the application of a common law doctrine of res judicata; its determination took a trajectory that infringed on article 50(1) of the Constitution.”
74.
Returning to the matter at hand, a perusal of the appellant’s case reveals that the appellant has questioned the manner in which the ELC and the Court of Appeal interpreted the constitutional provision conferring jurisdiction on the ELC to determine the petition, and implores this Court to find that the issues raised before the ELC were proper and ought to have been determined in light of article 70 and 162(2) of the Constitution. This is also in addition to the appellant’s argument where he raises concerns on NET’S and EPT’s capacity to enforce articles 35 and 47 of the Constitution, given NEMA's administrative silence and failure to enforce its stop order, impacting the appellant and Ramba area residents as well as the jurisdictional limitations imposed by law on EPRA and EPT. Further, he has questioned the superior Courts’ determination that, claims involving article 42 violations fall under the NET’S jurisdiction and not ELC’s and that complaints directed at KPLC should be determined by EPRA and later EPT.
75.
Having considered the matter, it is our firm finding that the above issues fall squarely within this court’s appellate jurisdiction in article 163(4)(a) of the Constitution and call for us to determine them as a matter of constitutional interpretation and application. This is also because the question of ELC’s jurisdiction requires interpretation of articles 162(2) as read with articles 40, 42 and 70 of the Constitution and whether the superior courts properly applied their mind to the petition that had invoked those articles. It is also necessary for us to consider the context in which the appellant claims that various rights enshrined in the Constitution were violated, and whether the trial court ought to have heard his plea and interrogated those violations.
76.
The upshot is that the appeal correctly invokes this court’s jurisdiction to the extent of determining these questions and the objections raised by the respondents are consequently overruled. In addressing subsequent issues below, this finding will further be fortified.
ii. Whether the appellant was required to exhaust the alternative dispute resolution mechanisms under EMCA and the Energy Act before filing his constitutional petition at the Environment and Land Court
77.
The appellant faults the determination by the Court of Appeal that his complaint against KPLC relating to a way leave for its transmission lines was to be first resolved by EPRA, and an appeal on such a decision would be handled by the EPT before escalation to the ELC, hence limiting the enjoyment of his right to property under article 40 of the Constitution. The appellant also contends that the administrative silence/and or inaction by NEMA in failing to act on the non-compliance of the stop order issued against the 2nd and 3rd respondents violated his right to equal protection before the law under article 27(1) and the right to fair administrative action under article 47 of the Constitution.
78.
Both superior courts found that the disputes against KPLC and NEMA were to be determined elsewhere, and not before the ELC and the trial court, while upholding KPLC’s objection on jurisdiction, and held that the appellant's complaint against the 8th respondent was to be determined, initially by EPRA. In that regard, it stated thus (per Tuiyott JA):
“
I do find that the Petitioner’s complaint against the 8th respondent is in respect of way leaves, easements, or rights of way in relation to the distribution and supply of electrical energy. The petitioner alleges that the 8th Respondent has allowed electrical posts to be placed in his parcel of land and that the Authority has the power to entertain the dispute. If dissatisfied, the petitioner can move to the Tribunal. This court further finds that Section 9 (2) and 3 of the Fair Administration Act 2015 removes this kind of disputes from this court and places jurisdiction to the Energy Authority.”
79.
The learned judge in finding as above, then proceeded to state:
“
36.
At the very heart of the appellant’s grievance is that KPLC trespassed on his property and unlawfully dug holes and erected electricity power lines on it. As submitted correctly by counsel for KPLC, KPLC is listed as one of the energy sector entities within the country under the third schedule of the Energy Act.
37.
The dispute resolution mechanism envisaged by the Energy Act is three tiered. The first is to raise a complaint with the Energy and Petroleum Regulatory Authority (EPRA), the successor of the Energy Regulatory Commission (ERC) ...
38.
One of the subsidiary legislations saved by these provisions is the Energy (Complaints and Dispute Resolution) Regulations 2012 which are the regulations still used by EPRA as the successor of ERC ...
40.
Given that the complaint by the appellant as against KPLC relates to a way leave for transmission, then the first forum for resolution of that dispute would be before the EPRA. A party dissatisfied with the decision of the authority can invoke the second tier which is a right of appeal to the Energy and Petroleum Tribunal whose jurisdiction is provided by section 36 of the Energy Act."
80.
Again, addressing the dispute resolution system under EMCA, the trial court, in finding that the appellant’s dispute against the 2nd and 3rd respondent was to be determined by NEMA held:
“
The dispute before me revolves on the mining activities of the 2nd and 3rd respondents at the Ramba area including the processing of gold, and the pollution that is resultant from the processing of the gold. This issue falls within the powers of the NEMA as it revolves on issuance of a licence and pollution. Section 7 of Environment and Co-ordination Act (EMCA) (cap 387) Laws of Kenya establishes NEMA and section 9 sets out its objects that include co-ordination of the various environmental management activities being undertaken by the lead agencies and promotion of the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya.
Section 58 provides for an Environmental Impact Assessment Licence which the authority has the power to issue.
This is followed by section 63 that provides that The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management. The authority has the power to cancel or revoke a licence or suspend such licence for such time not more than 24 months where the licensee contravenes the provisions of the licence.
The Environment and Co-ordination Act (EMCA) (cap 387) Laws of Kenya provides for the National Environmental Tribunal with the powers to hear appeals from the decisions of NEMA. Any person dissatisfied by the decision of the tribunal can appeal to the ELC. Under section 130 of the Environment and Co-ordination Act (EMCA) (cap 387) Laws of Kenya.”
81.
The Court of Appeal (Tuiyott, JA) on its part found as follows:
“
As I understand it, the complaint of the appellant against NEMA is that NEMA failed to enforce the stop order it had issued. I think it would have been available to NEMA, through an environmental inspector, to institute and undertake criminal proceedings against the 2nd and 3rd respondents if the two failed to comply with the stop order. Having failed to make the decision to do so, NEMA would be failing in its duty and its inaction and dereliction of duty could, in my view, be a proper subject of proceedings by the appellant against NEMA. The definition of a decision in section 2 of The Fair Administrative Action Act includes an administrative or quasi-judicial decision that is required to be made. A decision not to enforce the stop order is a decision that would fall within the contemplation of section 129 (2) of the Act.”
82.
In making the above findings, the superior courts both applied the doctrine of exhaustion and the question as to whether a party is required to exhaust any dispute resolution mechanism provided by a statute and/or any other law before resorting to the courts. More specifically, whether exhausting the appeal process set out under sections 129 and 130 of EMCA as well as the dispute resolution system as set out under Sections 10 and 36 of the Energy Act, for the claim against KPLC, is an issue that must be resolved by this judgment.
83.
This is because the resolution of environmental issues before NEMA has been the subject of prior decisions by our superior courts and two schools of thought have emerged in that regard. On one hand, there is a series of decisions that have taken the position that, even though the ELC has original and appellate jurisdiction on environment and land matters, parties should exhaust the mechanisms provided for under EMCA, by first referring a matter to NET before an appeal can lie to the ELC.
84.
This was the position taken in Orata International Limited v National Environment Management Authority [2019] eKLR, where the ELC (Christine Ochieng, J), while upholding a preliminary objection raised as to its jurisdiction to grant judicial review orders held:
“
In relying on the facts above and the three authorities, I find that in so far as the Environment & Land Court Act gives original and appellate jurisdiction on environment and land matters to the Environment & Land Court, the prayers sought in the instant application cannot hold at this juncture as the Applicant has a remedy to refer the complaint to the National Environment Tribunal first before an appeal can lie to the Environment and Land Court (ELC). Since there is already an established avenue under Environmental Management and Coordination Act (EMCA) to deal with the Applicant’s complaint. I am unable to grant him leave but direct him to lodge an Appeal with NET. Since I have already made my findings above, I will not deal with the second issue.”
85.
Similarly, Angote J, in Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling) applied the doctrine of exhaustion in finding that an applicant who is aggrieved or seeks to challenge the acts of NEMA ought to first move NET pursuant to Section 129(2) of the EMCA and not the Court.
86.
The learned judge in so saying was guided by the pronouncements by the Court of Appeal in National Environmental Tribunal v Overlook Management Limited & 5 Others [2019] eKLR. The Court of Appeal in that case and with a view to reconciling the conflicting decisions on the question of NEMA’s jurisdiction held:
“
... where a party considers itself aggrieved by the events stipulated in section 129 (1) (a)-(e) of the Act, such a party may as of right appeal…. Where an aggrieved party does not qualify under the provision but is aggrieved by a decision made by the 3rd respondent, its Director-General or its committees, then such a party lodge an appeal pursuant to sub-section 2 of that provision.”
87.
Furthermore, the Court of Appeal in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR, (Asike- Makhandia JA with Kiage JA as Odek JA had passed on before delivery of judgment), while faulting the ELC for assuming jurisdiction before the parties had exhausted other mechanisms in resolving their dispute held (per Asike- Makhandia JA) held:
“
... I observe that the jurisdiction of the ELC is appellate under Section 130 of EMCA. The ELC also has appellate jurisdiction under sections 15, 19 and 38 of the Physical Planning Act. An original jurisdiction is not an appellate jurisdiction. A court with original jurisdiction in some matters and appellate jurisdiction in others cannot by virtue of its appellate jurisdiction usurp original jurisdiction of other competent organs. I note that original jurisdiction is not the same thing as unlimited jurisdiction.
A court cannot arrogate itself an original jurisdiction simply because claims and prayers in a petition are multifaceted. The concept of multifaceted claim is not a legally recognized mode for conferment of jurisdiction to any court or statutory body.
In addition, section 129(3) of EMCA confers power upon the NET to inter alia exercise any power which could have been exercised by NEMA or make such other order as it may deem fit. The provisions of section 129(3) of EMCA is an all- encompassing provision that confers at first instance jurisdiction upon the Tribunal… It was never the intention of the Constitution makers or legislature that simply because a party has alleged violation of a constitutional right, the jurisdiction of any and all Tribunals must be ousted thereby conferring jurisdiction at first instance to the ELC or High Court.” | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/113/eng@2023-12-28 |
Petition 18 (E020) of 2022 | Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) (28 December 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 28 December 2023 | 2,023 | Nairobi | Civil | Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others | [2023] KESC 106 (KLR) | null | A. Introduction
1.
This petition of appeal dated July 28, 2022 challenges the decision of the Court of Appeal in Civil Appeal No 117 of 2018 delivered on April 4, 2019. It is filed pursuant to the court’s Ruling dated July 8, 2022. In the said ruling, we granted the appellants leave to appeal to the Supreme Court, limited to the following issues certified as being of general public importance:
i.
Whether a constructive trust can be imported into a land sale agreement to defeat a registered title therefrom; and
ii.
Whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.
B. Background
2.
Sometime in May, 2005, the respondents experienced financial challenges as a result of debts incurred by the 1st respondent, and secured by Plot No 500/VI/Mainland North (Title No CR 4xxx) (suit property) registered in the name of the 1st respondent. The suit property housed a brick factory, a maize mill factory, a coconut extracting factory, a go-down, office blocks, a workshop, a residential house, ancillary buildings and included various machines and equipment. The brick making machinery and equipment, other movable and immovable assets were not part of the security but were attached to the suit property. The suit property was however threatened with sale by the financier, Standard Chartered Bank Ltd, to recover the monies secured by it.
3.
In an effort to save the suit property, Dinesh and Ateet Jetha, the 2nd and 3rd respondents, at the time tasked with the running of the 1st respondent, sought the assistance of the 1st appellant, Arvind Shah, a close and trusted friend perceived to be an experienced and successful businessman running numerous profitable companies. The 1st appellant recommended the restructuring of the 1st respondent. This involved the incorporation of two holding companies, Zaverchand Sojpal Jetha Holdings Ltd, the 6th respondent, to be owned 100% by the respondents and Goshrani Holdings Ltd, the 3rd appellant, to be owned by the 1st appellant or his agents. These two companies would then incorporate four other companies to hold various assets of the 1st respondent. The four incorporated companies are: Coast Properties Ltd; Coast Maize Millers Ltd; Coast Clay Works Ltd; and Spa Millers Nairobi Ltd, which are the 4th, 5th, 6th and 7th appellants, respectively. At incorporation, the companies did not own any assets. The companies were to hold the 1st respondents’ assets for the sole benefit of the respondents during the process of repayment of the facility and redeeming the assets from the charge held by Standard Chartered Bank Kenya Ltd.
4.
The respondents acted upon the 1st appellant’s recommendations. Before the incorporation of the companies was complete, the 1st respondent passed a resolution dated June 2, 2005 to sell the suit property. Subsequently, a sale agreement between the 1st respondent and the 8th appellant was entered into for the sale of the suit property for the sum of Kshs 27,000,000/- equivalent to the outstanding loan amount owed to Standard Chartered Bank Kenya Ltd.
5.
To forestall the looming auction, the 1st appellant approached Standard Chartered Bank Kenya Ltd with the resolution, the sale agreement and a proposed settlement of the outstanding debt upon registration of title to the suit property in favour of the 8th appellant or its nominee. Standard Chartered Bank accepted the proposal on condition that 10% of the purchase price, being Kshs 2,700,000/-, be paid upfront as a non-refundable deposit and a guarantee for payment of the balance thereof be given by a reputable bank. Concurrently, the 1st appellant sought financing from Giro Commercial Bank Limited who had agreed to offer a loan facility secured by the suit property.
6.
As a consequence, the 10% deposit and a bank guarantee by Giro Commercial Bank were released to Standard Chartered Bank who in turn released the title of the suit property to the Advocates acting for both the 8th appellant and Giro Commercial Bank. A discharge of the charge in favour of Standard Chartered Bank was subsequently registered.
7.
In the meantime, the incorporations of the 4th to the 7th appellants were concluded with the shareholding comprising the 1st appellant, 4th respondent and the 3rd appellant each holding 20, 490 and 490 shares, respectively. The directors of the 4th to the 7th appellants were the 3rd respondent and 1st appellant. Subsequently, the 8th appellant nominated the 4th appellant to be registered as proprietor of the suit property. The brick making plant and maize milling factory on the suit property were assigned to the 5th, 6th and 7th appellants.
8.
Thereafter, the 4th appellant applied for a loan and an overdraft facility of Kshs 50,000,000/- from Giro Commercial Bank to finance the purchase of the suit property and its working capital. The financing was approved on August 11, 2005. A fresh charge over the suit property was registered in favour of Giro Commercial Bank and the balance of the outstanding loan released to offset the loan at Standard Chartered Bank.
9.
Seemingly, underlying issues concerning the shareholding and controlling interest of the companies therein surfaced in the year 2009 resulting in the institution of numerous suits by the parties. | C. Analysis and Determination
i. Whether the petition satisfies the jurisdictional threshold under article 163(4)(b) as read with section 15 of the Supreme Court Act
51.
There is a two-fold challenge on the court’s jurisdiction. The first angle of the challenge is on non-conformity of the petition with the rules and the second angle is on the contents of the petition.
52.
The 3rd and 4th respondents’ preliminary objection is premised on the grounds that the notice of appeal; is not in compliance with Rule 10 of the Court of Appeal Rules as the same is not signed and endorsed with the stamp of the Deputy Registrar; it does not relate to the judgment delivered on April 4, 2019 but is filed in the application for certification and leave to appeal to the Supreme Court; is contrary to rule 39(1)(b), (c) and Form G of the Supreme Court Rules and does not set out the concise presentation of arguments supporting each of the grounds of the petition of appeal, thus it occasions prejudice to the respondents’ rights to a fair trial. The 3rd and 4th respondents further posit that the Record of Appeal does not comply with rule 40(1)(d) of the Supreme Court Rules as it has not included the relevant pleadings and documents required to determine the appeal, in omitting some documents from the Record; and it does not comply with rule 11 of the Supreme Court (General) Practice Directions, 2020 of November 16, 2020 as the 10th line of each document is not numbered.
53.
We note that in the 3rd and 4th respondents’ notice of motion Application dated December 2, 2022 is raised similar grounds in urging this court to strike out the record of appeal. In our ruling of April 21, 2023 we addressed these grounds conclusively and we were satisfied, as we still are, that the notice of appeal was properly filed before the Court of Appeal. Our perusal of the said notice of appeal reveals that whereas the heading of the notice of appeal indicates that it is filed in regard to an application for grant of certification and leave to appeal to the Supreme Court, its contents specify the intent to appeal against the decision of the Court of Appeal rendered on April 4, 2019. The parties having engaged in the certification and leave to appeal proceedings both at the Court of Appeal and before us, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal.
54.
In addressing the 3rd and 4th respondents’ argument on non-compliance with rule 10 of the Court of Appeal Rules, we reiterate, as we stated in our ruling, that it is not for this Court to entangle itself in the filing and administrative processes of the Court of Appeal. We affirmed that the failure to have it stamped or endorsed by the Court of Appeal was not fatal, as the Notice of Appeal was duly lodged in the Court of Appeal.
55.
On the lack of compliance with rule 40(1)(d) of the Supreme Court Rules, this being a matter of determination of specific framed questions of general public importance, the documents stated as missing from the record would be useful for the interrogation of findings of facts which falls outside the purview of this court.
56.
Concerning the failure by the appellants to mark every tenth line of the document, we find, without condoning the same, that this is also not fatal. Article 159 (2) (d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. We therefore find that the 3rd and 4th respondents’ preliminary objection dated November 24, 2022 has no merit and is dismissed.
57.
The second limb of the respondents’ objection is that the petition of appeal as framed goes beyond the scope of the questions certified as matters of general public importance. The 1st and 2nd respondents urge that the court’s jurisdiction can only be exercised with regard to the two framed issues. They submit that, while the appellants raise seven grounds of appeal, five of them raise matters of fact contrary to the jurisdiction of the court. Similarly, the 3rd and 4th respondents urge the court to decline the invitation to consider and find alleged errors of fact by the Court of Appeal, as that falls outside the scope of the two framed questions. The 5th and 6th respondents also urge that by virtue of this court having a limited scope and jurisdiction as set out in the ruling of July 8, 2022, it cannot grant reliefs (b), (c), (d), and (e) of the petition of appeal as they are ultra vires.
58.
In response, the appellants underscore that the court can choose which set of facts to address, where the facts as summarized by the High Court differ from those of the Court of Appeal. Moreover, that section 20 of the Supreme Court Act and rule 26(3) of the Supreme Court Rules, 2020 empower the court to consider facts including taking new evidence not previously available, re-appraise evidence and draw inferences of facts. They also cite section 3A of the Supreme Court Act to urge that the Court has wide powers to make such orders as may be necessary for the administration of justice.
59.
In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others SC Appl. No 2 of 2011 [2012] eKLR we held that an appeal is granted in specific terms by the Constitution or statute. An appeal thus typically lies to a higher court and entails a reconsideration of a decision by the higher court with a view to reversing it either in part or in toto.
60.
The appellate jurisdiction of this court derives from article 163(4) of the Constitution. This involves an appeal as of right or an appeal on certification. As held in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others SC Civil Appl No 35 of 2014 [2015] eKLR, the court cannot exercise both jurisdictions concurrently. The litigant chooses the best path upon which the matter is considered within the established threshold. Unlike an appeal as of right where the court exercises its appellate jurisdiction on the application and interpretation of the Constitution by the superior courts below, the jurisdiction on certification is narrower as the court is only called upon to express its position on matters that transcend the litigants before court among other parameters set out in Phillipus Hermanus Steyn v Giovanni Gnecchi-Ruscone SC Application No 4 of 2012 [2103] eKLR without necessarily sitting on appeal between the parties before it. This stems from the holding in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Appl No 3 of 2014 [2015] eKLR that the Supreme Court is not just another appellate layer of courts to offer remedy to parties dissatisfied with the decisions of the Court of Appeal.
61.
Further, in Dhanjal Investments Limited v Kenindia Assurance Company Limited Sup Ct. Petition No.7 of 2016 [2018] eKLR, we appreciated that the court may allow parties to submit on an issue not previously framed as one for determination but which, even if unconnected to any of the framed issue, is nonetheless important in resolving a dispute before it. The ‘public importance’ criteria should in any event never be lost. We stated as follows in that regard:
“
(67)
Having so stated, we must at this point remind parties that it is only the issues that are certified as being of great public importance that must form the basis for submissions and ultimately the decision of this court. To frame certain issues as being of great public importance at the point of certification under article 163(4)(b) of the Constitution and then submit on issues that are specific to the parties at hand with no public element exhibited is an abuse of court process and may lead to the dismissal of an appeal.”
62.
As noted in the above cited case, it will always be a matter for the exercise of discretion whether to allow a point in no way connected with the certified point of law to be argued on the appeal, and it is not to be assumed that an appellant can as a matter of right raise any such point. In framing the two questions that we certified as being of great public importance, we observed as follows:
“13.
… We think that the dispute did not end with the vitiation of contracts or the law on the circumstances of resulting or constructive trusts and the lifting of the corporate veil which we agree are settled issues. The crux of the applicants’ case in their fifteen grounds, as we understand it, is the ultimate recourse granted by the courts under such instances in view of the existing constitutional and statutory provisions ” (Emphasis ours)
We are therefore mindful of our exercise of discretion and find no merit in the objection to our jurisdiction as sought in the objection and the application to strike out the appeal. None of the issues raised to challenge our jurisdiction suffices. We disallow the preliminary objection and the application by the respondents and now turn to determine the issues as framed.
ii. Whether a constructive trust can be imported into a land sale agreement to defeat a registered title therefrom
63.
The appellant faults the Court of Appeal for holding that the agreement for sale dated August 31, 2005 between the 8th appellant and the 1st respondent did not represent the will of the parties. They state that this overrode the established principles of section 3 of the Law of Contract Act; section 97(1) of the Evidence Act; and sections 36, 41, 43 and 44 of the Land Registration Act as a written contract for disposing interest in land or a written contract cannot be unilaterally amended by parole evidence. They dispute the importation of constructive trust and maintain that parties had a common intention, which was not to establish the 1st appellant or any of the appellants as a fiduciary. We however note that the appellants failed to address us on the specific issue framed for determination, save to regurgitate the factual background and litigation history before the superior courts.
64.
On the other hand, the respondents submit that a constructive trust overrides the registered title where a party has exerted undue influence when obtaining and retaining the property transferred to him, as was in the instant case. Furthermore, section 25 (2) of the Land Registration Act provides for overriding interests, which include trusts, which can be imposed to defeat the title of a registered proprietor. The respondents further urge that, equity will impose a constructive trust in an agreement for the sale of land and the resultant registration whenever it is shown that the claimant obtained the agreement and title while standing as a fiduciary, irrespective of whether he breached the fiduciary duties. They add that the petition neither discloses nor establishes any special circumstances or basis to justify a departure from the established principles of constructive trust.
65.
The Court of Appeal having considered the pleadings, and appraised itself of the evidence within the confines of its jurisdiction, established that the respondents had placed their trust in the 1st appellant to salvage the suit properties. In examining the transactions, it found that the circumstances gave rise to a presumption of undue influence on the part of the 1st respondent and met the criteria of being regarded as unconscionable bargains. It therefore found that the 1st and 3rd appellants hold the shareholding of the 4th -7th appellant companies in trust for the 1st respondent, and the 4th appellant holds the suit land in trust for the 1st respondent.
66.
The Trustee Act, cap 167 Laws of Kenya defines a “trust” and “trustee” as extending to implied and constructive trusts. The Black’s Law Dictionary, 9th edition defines a trust as:
“
The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”
67.
It further defines a constructive trust at pg 1649 as:
“
An equitable remedy that a court imposes against one who has obtained property by wrong doing.
68.
Halsbury’s Laws of England, 4th edition, volume 48 at paragraph 690 states as follows on constructive trusts:
“A constructive trust will arise in connection with the legal title to property whenever one party has so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This will be so where: (1) there was a common intention that both parties should have a beneficial interest; and (2) the claimant has acted to his detriment in the belief that by so acting he was acquiring a beneficial interest. The relevant intention of each party is the intention reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention or even acted with some different intention which he did not communicate.
The first question is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the property, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. Such an agreement will be conclusive.
Where the evidence is that the matter was not discussed at all, the court may infer a common intention that the property was to be shared beneficially from the conduct of the parties. In this situation direct contributions to the purchase price by the party who is not the legal owner, whether initially, or by way of mortgage instalment, will readily justify the inference necessary to the creation of a constructive trust.
Exceptionally the agreement, arrangement or understanding may be arrived at after the date of the original acquisition. Once common intention has been established, whether by direct evidence of common agreement or by inference from conduct, the claimant must show that he acted to his detriment in reliance on the agreement.
The final question to determine is the extent of the respective beneficial interests. If the parties have reached agreement, this is conclusive. Where there is no agreement as to the extent of the interest, each is entitled to the share the court considers fair having regard to the whole course of dealing between the parties in relation to the property.”
69.
A constructive trust is thus an equitable instrument which serves the purpose of preventing unjust enrichment. The Canadian Supreme Court in Soulos v Korkontzilas, [1997] 2 SCR 217, a case which involved a land dispute stated as follows, as to the purpose of constructive trust:
“
The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain. While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized. Under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, and to remedy unjust enrichment and corresponding deprivation. While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.”
70.
Similarly, although in a matrimonial property dispute, the Canadian Supreme Court in Murdoch v Murdoch [1975] 1 SCR 423 stated as follows:
“As is pointed out by Scott, Law of Trusts, 3rd ed., 1967, vol. 5, at p. 3215, “a constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ... The basis of the constructive trust is the unjust enrichment which would result if the person having the property were permitted to retain it. Ordinarily, a constructive trust arises without regard to the intention of the person who transferred the property”; and, again, at p. 3413, quoting Judge Cardozo “a constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”
71.
The United States Supreme Court in Harris Tr & Sav Bank v Salomon Smith Barney Inc, 530 US 238, 250–51 (2000) citing Moore v Crawford, 130 US 122, 128 (1889) stated thus:
“
Whenever the legal title to property is obtained through means or under circumstances ‘which render it unconscientious for the holder of legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same..”
72.
As has been established therefore, trusts are created either expressly, where the trust property, its purpose and the beneficiaries are clearly stated, or established by the operation of the law. Like in the instant case, where it is not expressly stated, the trust may be established by operation of the law.
73.
From the definitions above, we establish that a constructive trust is a right traceable from the doctrines of equity. It arises in connection with the legal title to property when a party conducts himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit.
74.
Vide section 3(1) of the Judicature Act, cap 8 Laws of Kenya, the doctrines of equity are applicable in Kenya and form part of our laws. It states that common law, doctrines of equity and statutes of general application shall apply in so far as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.
75.
In addition, we also note that the concept of trust is not new in our jurisdiction. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another Petition 10 of 2015 [2018] eKLR, we observed that the courts, vide section 163 of the Registered Land Act (repealed by the Land Registration Act No 3 of 2012) have been more willing to import the doctrines of implied, resulting and constructive trust as known in English law, into section 28 of the Act.
76.
The concept of constructive trust has also been inferred in a number of decisions of the superior courts. The Court of Appeal in Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others, Civil Appeal No 51 of 2014 [2015] eKLR held that:
“
A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see. Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment.”
77.
In Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri Civil Appeal No 6 of 2011, consolidated with No 26 & 27 of 2011 [2014] eKLR and in Willy Kimutai Kitilit v Michael Kibet, Civil Appeal No 51 of 2015 [2018] eKLR, the Court of Appeal, in matters involving the sale of land, held that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land, subject to the circumstances of the case.
78.
The applicability of the doctrine of constructive trust is therefore now settled within our jurisdiction and is applied to land sale transactions. In our ruling
reviewing the Court of Appeal decision on certification, we underscored the fact that the constructive trust is already settled. We stated thus:
“13.
We think that the dispute did not end with the vitiation of contracts or the law on the circumstances of resulting or constructive trusts and the lifting of the corporate veil which we agree are settled issues. The crux of the applicants’ case in their fifteen grounds, as we understand it, is the ultimate recourse granted by the courts under such instances in view of the existing constitutional and statutory provisions. …” (Emphasis ours)
The first question before us therefore is not whether the Court of Appeal was correct in imputing a constructive trust but rather, whether such trust can be imported into a land sale agreement to defeat a registered title therefrom obtained for valuable consideration without offending the constitutional right to property under article 40 of the Constitution and other statutory provisions.
79.
By virtue of article 40 of the Constitution, every person either individually or in association with others, has the right to acquire and own property of any description, and in any part of Kenya. This right to property is however not absolute. Under article 40(3) the State may deprive a person of property through a process of acquisition of land for a public purpose or in public interest in accordance with the Constitution. Further, under article 40(6) the rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
80.
While article 40 has an internal limitation on the right to property, the general limitation of rights provision at article 24 of the Constitution provides that any limitation on a right shall be by law, and only to the extent that the limitation is reasonable and justifiable, in an open and democratic society based on human dignity, equality and freedom. Other relevant factors to be taken into account include the nature of the right, the importance and purpose of the limitation, and relation between the limitation and the purpose of such limitation. It further, provides that the person seeking to justify a particular limitation has the obligation to justify the limitation.
81.
As prescribed, a limitation of a fundamental right or freedom, must be provided under law. It is therefore imperative for us to examine legislation making provision for the registration of titles and the limitations on the right to property set out.
82.
The Land Registration Act, No 3 of 2012, is the law that governs registration of titles. Section 25 of the Land Registration Act provides that the rights of a proprietor shall not be liable to be defeated except as provided under the Act, subject to encumbrances and conditions in the register; and to such liabilities, rights and interests declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. Additionally, as is stipulated under section 25(2) nothing in this provision shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as a trustee.
83.
Under section 26 of the Land Registration Act, No 3 of 2012, a Certificate of Title issued by the Registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner. However, this is subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate. Further, the title of the proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation and where the certificate of title was acquired illegally, un- procedurally or through a corrupt scheme.
84.
Section 28 provides that unless the contrary is expressed in the register, all registered land shall be subject to overriding interests as may for the time being subsist and affect the same, without being noted in the register. These overriding interests include, trusts.
85.
While sections 25, 26 and 28 of the Land Registration Act recognize that the rights of a registered proprietor of land are absolute and indefeasible, these are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests include trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property is provided under law, and includes a constructive trust.
86.
We have found that the doctrines of equity are part of our laws by virtue of section 3 of the Judicature Act. And while the Constitution entitles every person to the right to property at article 40, this right is not absolute. Article 24 provides that a right cannot be limited except by law. We have also established that, while sections 25 and 26 of the Land Registration Act provide for the rights of a proprietor and that the certificate of title is conclusive evidence of proprietorship, section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust.
87.
We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.
iii. Whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.
88.
The appellants urge that a constructive trust cannot be declared against a shareholder for valuable consideration, and that in any event, the remedy against a shareholder who has not fully paid a valuable consideration for his shares is a call- up for payment by the innocent shareholders. They posit that the appropriate remedies for non-payment of share value by a shareholder was set out in the Companies Act and within the Articles of Association of the various companies. They further contend that shareholding itself, being a contractual matter between shareholders, a declaration of trust in the circumstances amounted to deprivation of the 1st, 2nd and 3rd appellants’ right to property under article 40 of the Constitution. They maintain that a trust did not arise as the shareholding was a product of negotiations and was spelt out in the Memorandum and Articles.
89.
The respondents on the other hand submit that shares in a company are property like any other. Constructive trust therefore applies to shareholding agreements and the registration as holders of shares in a company, against persons who acquire title by breach of fiduciary duties, undue influence and other wrong doings. They submit that it is not in dispute that the 4th to 7th appellants were special purpose vehicles created to salvage the 1st respondent from financial distress. The constructive trust therefore stepped in as an equitable concept to prevent the appellants from acting in an unconscionable manner defeating the common intention.
90.
The respondents further urge that the appellants never paid any consideration for the shares they seek to enforce. They cannot therefore rely on the letter of the law to enforce the ownership of shares when at all material times, the intention of the parties was to create a trust to aid in the restructuring of the 1st respondent. They thus submit that the issue at hand must be answered affirmatively, as the global stance is that a constructive trust can be imported into a shareholding agreement to disentitle a registered shareholder.
91.
The Companies Act, No 17 of 2015, makes provision to govern all types of companies. Section 20 of the Act provides for the articles of association as the Constitution of the company. Pursuant to section 26 of the Act, for existing companies before the commencement of the Act, such as the companies in the instant suit, the memorandum of association is treated as provisions of the articles. Companies therefore have a free hand in managing their own affairs through these constitutive documents. As provided under section 30(1) of the Act, the company’s constitution binds the company and its members to the same extent as if the company and its members had covenanted, agreed with each other to observe the constitution. Further, within our jurisdiction and outside, it has been held that a court cannot interfere with the internal affairs of a company except for limited circumstances. In Martin Lemaiyan Mokoosio & another v Reshma Praful Chandra Vadera & 3 others [2021] eKLR, Odunga J (as he then was) held as follows:
“13.
Whereas disputes regarding internal affairs of a company ought to be resolved in accordance with the constitution of the company, where it was alleged that the company was not acting in accordance with its own constitution, the court had the power to intervene. In the instant case the allegations were that the respondents had violated the constitution of the company and therefore the court was entitled to intervene.”
In Tanui & 4 others v Birech & 11 others [1991] KLR, the Court of Appeal expressed itself in the following terms:
“
…We would agree that while it is not the business of the High Court or this court to involve itself in the day to day running of institutions such as the church, colleges, clubs and so on, yet where it is shown that such an organization is conducting its affairs in a manner contrary to its constitution and to the detriment of its members, then the High Court and this court would not only be entitled to but under a duty to compel it, either, by injunction or otherwise, to obey its constitution.”
92.
It is important to note that section 93 of the Act requires the company to keep a register of its members including information relating to beneficial owners of the company, if any. Section 104 however provides that:
104.
Trusts not to be entered on register
1.
A company shall not accept, and shall not enter in its register of members, notice of any trust, expressed, implied or constructive.
2.
If a company contravenes subsection (1), the company, and each officer of the company who is in default, commit an offence and on conviction are each liable to a fine not exceeding five hundred thousand shillings.
Section 104(1) was similarly contained in section 119 of the repealed Companies Act cap 486 which provided that: “No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the registrar”.
93.
Further, section 105 of the Act states that until the contrary is proved, the register of the members of a company is evidence of the matters required or authorised to be included in it. It is therefore evident from the statutory provision that the Act expressly provides that there can be no entry of a trust on the company register.
94.
We have found that a constructive trust can arise and be imported into a land sale agreement to defeat a registered title, and established that the constructive trust is imposed on property in the hands of a wrongdoer to prevent him or her from benefitting unjustly from the wrongful conduct. Constructive trust is therefore an appropriate remedy for a wronged party and has a right to the proceeds.
95.
We however note that section 104(1) of the Companies Act, and section 119 of the repealed Companies Act cap 486, which is similar to section 126 of the Companies Act 2006 of the United Kingdom provides that:
126.
Trusts not to be entered on register
No notice of any trust, expressed, implied or constructive, shall be entered on the register of members of a company registered in England and Wales or Northern Ireland, or be receivable by the registrar.
96.
In commenting on this provision, Palmer’s Company Law Manual observes as follows:
“
There is nothing to prevent trustees from becoming members of a company but the CA 1985, S.360 provides that no notice of any trust – express, implied or constructive – may be entered on the register of any company registered in England and Wales. The rationale behind the rule (which does not apply in Scotland) is that the relationship between trustee and beneficiary is of no concern to the company which should be entitled to assume that it can deal solely with the registered holders.”
97.
In Farouk Ravate & another v Eric Agbeko & 2 others; Ravasam Development Company Limited (interested parties) HCCC No 450 of 2011 (Consolidated with No. 476 of 2015 and No. 637 of 2015) [2020] eKLR, Tuiyott J (as he then was) stated as follows while noting the observations made in commentaries on the effect of section 119 of the repealed Companies Act:
“40
…Nothing in the three passages I have set out suggests that the effect of this provision is to outlaw or bar trust arrangements in regard to shares in a company. Quite to the contrary, it recognizes that they may exist but that rights of the beneficiaries as against the Company (and perhaps against third parties as I shall be proposing) are circumscribed because no notice of such Trust is to be entered in the register of members.
In all these cases (in English law, but not in Scots Law) the trustee as registered holder will be personally responsible for all matters and liabilities arising in respect of the shares although he will in turn be entitled to an indemnity from the beneficiaries. An English company’s rights as against the trustee are not therefore limited to the trust property”.
98.
We do agree that whereas section 104 of the Companies Act proscribes the entry of trusts on the register of members, the intention of this provision was not to bar any trust arrangements, and we add, including constructive trusts. There is therefore no bar to the holding of share(s) upon a trust. As the court stated in the case above, which we agree with:
“
The fact that a company does not recognize a person holding a share upon a trust and treats a registered shareholder as the absolute owner of his shares does not mean that it does not allow its members to enter trust relationships. As a corollary it does not mean that a trust arrangement is not enforceable as between the contracting parties.”
99.
In the present case, the Court of Appeal having established that there was unconscionable or inequitable behaviour, trust was imposed as the most appropriate remedy, and we are in total agreement thereto. In answering the question before us and taking into account the cited provisions of the Companies Act, whether a constructive trust can be imported into a shareholding of a company, our answer is in the affirmative. We have established that, section 104 does not outlaw or bar importation of trust into the shareholding of a company. Further, the Black’s Law Dictionary, 11th edition at page 1654 defines a shareholder as an individual who owns or holds a share or shares in a company. A shareholding therefore signifies proprietorship in a company to the extent of the share(s) held. Consequently, in this regard, company shares constitute property under article 260 of the Constitution and therefore, where it is found that there was a wrong doing, then a constructive trust may be inferred, and we find that the Court of Appeal, after considering the totality of the circumstances in the case, was right in finding that a constructive trust had clearly been created.
iv. What reliefs should this Court grant?
100.
The appellants have urged that we allow the petition of appeal, set aside the order of the Court of Appeal and reinstate the decision of the High Court in Mombasa Civil Case No. 9 of 2011, and in the alternative substitute it with the court’s own decision. The respondents submitted that by virtue of this court having a limited scope and jurisdiction as set out in the ruling of July 8, 2022, it cannot grant reliefs (b), (c), (d), and (e) of the petition as they are ultra vires the court’s powers.
101.
The Court of Appeal determined that the shares held by the 1st and the 3rd respondents in the 4th to the 7th appellants are held in trust for the 1st respondent or its nominees having determined that the 1st appellant had set out in a scheme to purchase the property at a paltry Kshs 27,000,000/- thus unjustly enriching himself; he was conflicted between his duties as a trustee and his scheme to purchase the property; and notwithstanding the trust relationship, the 1st appellant did not utilize any of his personal funds to purchase the property. It found that the actions of the 1st appellant were irregular, deceitful, in breach of his trust obligations and resulted in his unjust enrichment. We uphold these findings.
102.
A party was wronged, another has benefitted as a result of the wrongdoing. It clings on section 104 of the Companies Act to state that there can be no entry of a trust on the company register. To rectify the unjust enrichment, breach of fiduciary duty and right the wrong doing committed against the respondents, the Court of Appeal found that there was a constructive trust to remedy the wrong. We have noted that the Companies Act, however, bars the registration of any trust, expressed, implied or constructive in its register of members. It further provides for a hefty fine for any person who contravenes this provision. In our view, this statutory provision needs to be relooked at noting that there are circumstances that may give rise to a constructive trust, or other kind of trust in companies, and which require that trusts related to companies be disclosed for reasons of rule of law, accountability and good sense of justice.
103.
Having set out our parameters in this appeal, and noting that our focus is on the recourse, rather than the applicability of the doctrine of trust, we are not persuaded to re-open the merits of the Court of Appeal decision in concluding the applicability of the trust. Litigation has to come to an end and the Court of Appeal, having satisfied itself of the facts, came to one conclusion and made its orders. As expected, a decision arising out of adversarial litigation is not bound to be satisfactory to both parties and undoubtedly, different courts would come to different conclusions on the same facts. Re-opening the facts in our view is not appropriate under circumstances, and would be going beyond our constitutional remit if we so did. At any rate nothing has been shown to take that unconventional route.
104.
A trend towards promotion of legal certainty, safeguarding of property rights, and equitable access to justice undoubtedly emphasizes the necessity for a revision of the legislation governing the registration of trusts (including constructive) in relation to shares held in a company. These changes would be indicative of a growing recognition of the importance of constructive trust as a means of addressing unjust enrichment and ensuring equitable outcomes in disputes. Legislation that is in line with international developments and prevailing standards can enhance the strength and adaptability of the legal system, enabling it to more effectively tackle present day issues pertaining to shareholding, property rights and fair redress. It provides an opportunity for courts to shape the legal landscape concerning providing clarity particularly on enforcing remedies when breaches or unfairness occur.
105.
We reiterate that a constructive trust is imposed to address situations where it would be unjust for one party to retain legal ownership of property under the unequitable circumstances. The court recognizes that a claimant has a better right to certain property than the person who holds legal title to it, it therefore declares a constructive trust in favour of the victim of the wrong, who is then given a right to the property.
106.
Courts are an integral part of the Kenyan judicial system, viewed as vehicles for redressing wrongs. As a result, they are entrusted with the responsibility of adjudicating disputes and administering justice, in accordance with the Constitution’s ethos, values and principles. In carrying out their judicial duties, they are obligated to adhere to the principles outlined under article 159 of the Constitution. This guarantees that the objectives and tenets of the Constitution are upheld. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/106/eng@2023-12-28 |
Application E020 of 2023 | Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others (Application E020 of 2023) [2023] KESC 110 (KLR) (28 December 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 28 December 2023 | 2,023 | Nairobi | Civil | Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others | [2023] KESC 110 (KLR) | null | .
Cognisant that this court (Lenaola, SCJ) by an order dated May 26, 2023, issued pursuant to rule 46 of the Supreme Court Rules, 2020, deemed the notice of appeal dated December 19, 2022, which was filed in Civil Appeal No 88 of 2000 and transmitted to this court on December 21, 2022 by the applicant, as withdrawn for failure to institute the appeal within the prescribed time; and
2.
Upon perusing the amended notice of motion dated October 30, 2023 and lodged on November 3, 2023 by the applicant under article 50 of the Constitution, sections 3A, 15B, 21A & 23(2C) of the Supreme Court Act and rules 33 & 36 of the Supreme Court Rules seeking the following orders:
“
…
ii.
Review and setting aside of this honourable court’s (Lenaola, SCJ) order dated May 26, 2023 withdrawing the applicant’s notice of appeal dated December 19, 2022 which was filed pursuant to rule 36(4) of the Supreme Court Rules.
…
iv.
Costs of the motion be provided.”
3.
Upon considering the affidavit in support of the motion sworn by Dr Davidson Mwaisaka, the Head of Legal (Kenya & East Africa) of Standard Chartered Bank Kenya Limited, on October 30, 2023 and the applicant’s submissions of even date to the effect that; the Court of Appeal by a judgment dated December 16, 2022 allowed Civil Appeal No 88 of 2000 which had been filed by the 1st and 2nd respondents; in turn, the applicant filed the notice of appeal dated December 19, 2022 in the Court of Appeal and transmitted the same to this Court on December 21, 2022, intimating its intention to challenge the said judgment in this court; thereafter, the applicant filed a notice of motion dated January 20, 2023, Civil Applic No Sup E001 of 2023 (certification motion), anchored on article 163(4)(b) of the Constitution in the Court of Appeal, seeking leave to file an appeal to this court or certification that its intended appeal raises matters of general public importance; the Court of Appeal on April 26, 2023 certified the certification motion as urgent and issued directions with respect to its disposal, which the applicant complied with; and
4.
Further noting that the applicant urged that, its advocates on record received an email from this court on May 29, 2023 concerning the order of May 26, 2023; the said order is erroneous as firstly, the applicant opted to file the notice of appeal prior to obtaining certification or leave to appeal to this Court in line with rule 36(4) of the Supreme Court Rules; secondly, the certification motion was heard on July 3, 2023 by three judge bench of the Court of Appeal (Warsame, M’Inoti & Mativo, JJA) and the ruling thereof is set to be delivered on notice; consequently, time for filing the appeal could only commence running after the certification motion is determined, and certification or leave to appeal is granted as set out in section 15B(1) of the Supreme Court Act; and unless the order dated May 26, 2023 is reviewed and set aside, the applicant will be stripped of its right to a fair hearing by prematurely denying it audience before this court; and
5.
Taking into account the replying affidavit sworn on behalf of the 1st and 2nd respondents by Mohan Galot, the Principal Shareholder, Governing Director and Chairman of the Board of Directors of the said respondents, on November 7, 2023 and submissions of even date. The tenor of which is that, the motion is an abuse of this court’s process as it is misconceived and fatally defective; the applicant has not met the threshold of review since it has failed to demonstrate that the impugned order was obtained through fraud, deceit or misrepresentation or was rendered by an incompetent court; likewise, the applicant has not pointed out any error on the face of the record; and as such, the motion should be dismissed with costs; and
6.
Appreciating that when the motion was mentioned before the Deputy Registrar of this court on November 17, 2023, counsel for the 3rd respondent, Mr Paul Chege, indicated that the 3rd respondent does not oppose the motion; and
7.
Bearing in mind that the learned judge exercised his discretion under rule 46(1) of the Supreme Court Rules in withdrawing the applicant’s notice of appeal as appreciated in Kabuito Contractors Ltd v Attorney General, SC Applic No E025 of 2023; and
8. | Upon deliberations on the motion and the rival submissions, we opine as follows:
i.
The long and short of the applicant’s motion is that it seeks this court to review and set aside the decision of a single judge of this court. Towards that end, the applicant invoked section 21A of the Supreme Court Act, which delineates exceptional circumstances under which this court can review its decision. Nonetheless, the applicant has not demonstrated how the order of May 26, 2023 falls within the said exceptional circumstances. In any event, section 21A is not applicable in this case. See Florence Wairimu Mbugua & Sylvia Murugi Mbugua (Suing as the administrators of the Estate of Joseph Kiarie Mbugua) & another v Timber Manufacturers & Dealers Limited, SC Applic No E019 of 2023.
ii.
Be that as it may, the applicant also invoked section 23(2C) of the Supreme Court Act which provides as follows:
“
A party aggrieved by the decision of a single judge or two judges may apply for review of the decision by five or more judges of the court.”
iii.
In Parliamentary Service Commission v Martin Nyaga Wambora & others, SC Applic No 8 of 2017; [2018] eKLR, this court set the guiding principles for review of a decision of a single Judge or limited Bench of the court made in exercise of the Judges’ discretion. This court held inter alia that-
“
…
vi.
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:
a.
as a result, a wrong decision was arrived at; or
b.
it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.
iv.
It is not in dispute that following the Court of Appeal’s judgment dated December 16, 2022 in Civil Appeal No 88 of 2000, the applicant filed the notice of appeal dated December 19, 2022 in the Court of Appeal and transmitted the same to this court on November 21, 2022. Moreover, the applicant had not obtained certification by the Court of Appeal under article 163(4)(b) of the Constitution prior to filing the notice of appeal. The applicant contends that it intends to invoke this court’s appellate jurisdiction under article 163(4)(b) of the Constitution. Therefore, it filed the notice of appeal pursuant to rule 36(4) of the Supreme Court Rules which reads as follows:
“
In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.”
The import of rule 36(4) is that an intending appellant may opt to file a notice of appeal either before or after certification in a matter of general public importance. See Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others, SC Applic No 3 (E008) of 2022; [2022] KESC 25 (KLR).
v.
Further, the applicant urged that it filed the certification motion dated January 20, 2023 before the Court of Appeal and annexed directions issued thereto by the said court on April 26, 2023 to the motion at hand. The applicant submitted that the application was heard on July 3, 2023 and the ruling is set to be delivered on notice. The respondents did not deny the foregoing. Therefore, as it stands the certification motion is still pending before the Court of Appeal. By dint of section 15B(1) of the Supreme Court Act, an appeal under article 163(4)(b) of the Constitution can be filed as follows:
“
15B.
1.
Any appeal to the Supreme Court involving a matter of general public importance shall only be made—
a.
upon certification by the Court of Appeal; or
b.
upon certification by the Supreme Court in accordance with article 163 (4)(b) of the Constitution.”
vi.
It follows therefore that since the certification motion is yet to be determined that time for filing the appeal is as provided under rule 38(1)
“
38.
1.
An appeal to the court shall be filed within—
a.
thirty days of the date of filing the notice of appeal, where the appeal is as of right; or
b.
thirty days after the grant of certification, where such certification is required. [Emphasis added]
vii.
We note that at the time the learned judge issued the order of May 26, 2023, the foregoing was not brought to the attention of the court. Thus, the learned judge cannot be faulted for deeming the notice of appeal as withdrawn. That notwithstanding, we find that the said order will not prejudice the applicant from getting a fair hearing or audience before this court should its certification motion be successful. In the event that certification is issued, the applicant will be at liberty to move the court either by filling a notice of appeal pursuant to the certification or as the case may be under the relevant provision of law. In the circumstances, we decline at this juncture to review and set aside the order of May 26, 2023.
viii.
Taking into account the foregoing and this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it fair to order each party to bear their own costs of this motion.
9.
Consequently and for the reasons afore-stated, we make the following orders:
i.
The amended notice of motion dated October 30, 2023 and filed on November 3, 2023 is hereby dismissed.
ii.
Each party shall bear its own costs of the motion.
It is so ordered | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/110/eng@2023-12-28 |
Petition (Application) E006 of 2023 | Gachuhi & another v Evangelical Mission for Africa & another (Petition (Application) E006 of 2023) [2023] KESC 109 (KLR) (Civ) (21 December 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 21 December 2023 | 2,023 | Nairobi | Civil | Gachuhi & another v Evangelical Mission for Africa & another | [2023] KESC 109 (KLR) | null | Upon perusing the notice of motion dated July 28, 2023 and filed on August 2, 2023, brought pursuant to section 21A(a) and (d) of the Supreme Court Act and rule 31 (1) and (6) of the Supreme Court Rules 2020, seeking to review the ruling and orders of this court delivered on June 30, 2023; reinstatement for hearing of the petition dated March 10, 2023 and filed on March 16, 2023; grant of the motion dated March 23, 2023 and filed on March 28, 2023; dismissal of the Motion dated March 30, 2023 and filed on April 4, 2023; and costs; and
2.
Upon considering the applicants’ grounds on the face of the application and affidavit sworn by the 1st applicant on July 28, 2023, in which he contends that; the Judgment of the Court of Appeal (challenged in the petition struck-out) was premised on a non-existent public policy on free primary education; no such policy has been enacted under the Education Act, the Basic Education Act or any other statute; as a consequence, the impugned ruling was premised on a non-existent law and misrepresentation of facts; this court has a constitutional duty to correct the error by the Court of Appeal; and unless the said Ruling is set aside, the applicants’ constitutional rights on the interpretation and applicability of public policies, the rule of law under article 10 and to a fair hearing under article 50 of the Constitution will be violated; and
3.
Further considering the applicants’ submissions dated July 28, 2023 and supplementary submissions dated September 7, 2023, to the effect that this court has jurisdiction to review its decisions, and their application meets the threshold under section 21(A) of the Supreme Court Act. Moreover, the applicants restate their grounds in support and urge that the superior courts below lacked the jurisdiction to pronounce public policy on matters of enforcement of an award against private educational institutions, when no such policy has been enacted; the public policy alleged and relied on by the said courts violated articles 232(1)(d) and 10(1)(c) of the Constitution and section 12 of the Public Service (Values and Principles) Act; this court has an inherent jurisdiction to ensure that an injustice is not committed, as was its finding in Dynes Muriithi & 4 others v Law Society of Kenya & another; SC (Application) No 12 of 2015, [2016] eKLR; therefore the Court had jurisdiction to entertain the appeal dismissed by the impugned ruling but fell in error in striking out the same; and
4.
Having read the respondents’ grounds of opposition dated August 25, 2023, and filed on August 28, 2023, wherein it is urged that the application is an abuse of court process and should be dismissed in limine; this court lacks the requisite jurisdiction to hear and determine the instant application as it does not fall within the purview of section 21(A) of the Supreme Court Act; the said application does not meet the threshold settled in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition No 6 of 2014, [2017] eKLR (Fredrick Outa case); and that the Appeal which was struck out did not raise any issues of contestation revolving around the interpretation or application of the Constitution, to warrant the exercise of this court’s jurisdiction under article 163(4)(a) of the Constitution; and
5.
Upon considering the respondents’ submissions dated August 25, 2023 and filed on August 28, 2023, wherein the respondents restate their grounds in opposition and further urge that this court, having determined it lacked the jurisdiction to hear the appeal by the applicants under the principles settled in the Geo Chem Middle East v Kenya Bureau of Standards; SC Petition No 47 of 2019, [2020] eKLR, similarly lacks the jurisdiction to entertain the instant application; and the applicants are misleading the court regarding several public policies on education, such as the Sessional Paper No 1 of 2005 on Education Training and Research, and the TIVET Institutions Guidance and Counselling Policy and Operational Guidelines (2011); and
6.
Bearing in mind that the legal position as regards this court’s power to review its own decisions is well settled in the cases of Jasbir Singh Rai & 3 others v Tarlochan Signh Rai & 4 others; SC Petition (Application) No 4 of 2012, [2013] eKLR and Fredrick Otieno Outa; wherein this court held that, as a general rule, the Supreme Court has neither the jurisdiction to sit on appeal over its own decisions, nor the jurisdiction to review its decisions, other than in the manner contemplated by section 21(A) of the Supreme Court Act , that is where:
i.
The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;
ii.
The judgment, ruling or order is a nullity by virtue of having been made by a court which was not competent;
iii.
The court was misled into giving judgment, ruling or order under the belief that the parties have consented thereto; and
iv.
The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision. | We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, we find that the applicants have not demonstrated to our satisfaction that the impugned ruling was obtained by fraud or deceit, is a nullity, was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision, or that the court was misled into giving its ruling under review on a mistaken belief that the parties had consented thereto (as per the legal principles settled in the Fredrick Otieno Outa) case; and
ii.
In our view, the instant application is an appeal disguised as a motion for review, and therefore does not fall within the confines of the parameters prescribed in the foregoing paragraphs.
8.
Consequently and for reasons aforesaid, we make the following orders:
i.
The notice of motion dated July 28, 2023 and filed on August 2, 2023 is hereby dismissed; and
ii.
The applicants shall bear the respondents’ costs.
It is so Ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/109/eng@2023-12-21 |
Petition (Application) E027 of 2023 | Goodison Sixty One School Ltd v Symbion Kenya Ltd; Ngotho (Intended Interested Party) (Petition (Application) E027 of 2023 & Application E042 of 2023 (Consolidated)) [2023] KESC 111 (KLR) (21 December 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 December 2023 | 2,023 | Nairobi | Civil | Goodison Sixty One School Ltd v Symbion Kenya Ltd; Ngotho (Intended Interested Party) | [2023] KESC 111 (KLR) | null | Before this court are three separate motions brought by the parties for determination. Although not related, the motions are intertwined and therefore, to ensure prudent use of judicial time, we will dispose of them in this composite ruling. The first application is by Paul Ngotho (intended interested party) seeking to be joined in the petition as an interested party. The second application is by the respondent seeking the striking out of Petition No E027 of 2023 - Goodison Sixty-One School Ltd vs Symbion Kenya Ltd for want of jurisdiction and the third application is by the appellant seeking leave to exceed the mandatory limit of 15 pages of written submissions in support of the Petition; and
2.
Uponperusing the motion by the intended interested party dated October 6, 2023 brought pursuant to section 23(2B)(a) of the Supreme Court Act, 2011 as well as rule 24 of the Supreme Court Rules, 2020 seeking leave to participate in the proceedings as indicated above; and
3.
Uponconsidering the grounds in support of the application and the averments contained in the supporting affidavit and further affidavit sworn by Paul Ngotho, the Arbitrator who determined the dispute between the appellant and respondent, wherein he inter alia contends that; he has been mentioned in the pleadings before this court and was subject of the proceedings in High Court Misc Civil Cause No 131 of 2016 as well as Consolidated Appeal Nos 158, 159 and 160 0f 2020; he rendered the final arbitral award on February 25, 2016 in favour of the Respondent; the appeal is premised on the proceedings before the Arbitral Tribunal and Award issued by him and therefore, it is necessary for him to be joined in the proceedings; the appellant alleges that the intended interested party was biased and that he denied it fair hearing causing it prejudice, hardship and injustice resulting into a defective, unfair and unlawful arbitral process; the appellant alleges breach of duty to disclose, lack of impartiality and independence on his part; the appellant owes him unpaid arbitration fees assessed at Kshs 2,500,000/- together with interest accrued from the date of the award until its payment in full; the appellant challenges the integrity of the arbitral process, making it necessary for him to be joined to the proceedings to shed light on the process and aid the court in making a fair and just determination; he has a clear, identifiable interest separate and distinct from those advanced by the parties herein; and he stands prejudiced should he not be joined as an interested party; and
4.
Notingthe intended interested party’s submissions dated October 11, 2023, wherein he reiterates the contents of his supporting affidavit and further submits that; the appellant has alleged denial of his right to fair hearing, bias under article 50(1) and 159(2) of the Constitution and so he deserves an opportunity to respond to the allegations and should be joined as an interested party; issues of his alleged bias/incompetence cannot be settled unless he is a party; he has satisfied all the requirements for joinder as an interested party as outlined by this court in Francis K Muruatetu and another v Republic SC Petition No 15 of 2015 as consolidated with Petition No 16 of 2015; [2016] eKLR; and he stands to suffer prejudice if not joined as an interested party; and
5.
Taking into accountthe motion dated October 9, 2023 by the respondent brought under article 163(4)(a) of the Constitution, sections 15, 15A, 15B of the Supreme Court Act, 2011 and rules 31, 32 & 33 of the Supreme Court Rules, 2020 seeking that Petition No E027 of 2023 be struck out for want of jurisdiction; and
6.
Consideringthe grounds in support of the application and the averments contained in the supporting affidavit sworn by Oscar Ogunde, Director, Symbion Kenya Ltd wherein he contends that; this court lacks jurisdiction to hear and determine the petition under article 163(4) (a) of the Constitution; the appellant has not sought certification from the Court of Appeal that the matter raises issues of general public importance and that in any event, the petition does not fall within the ambit of matters contemplated by article 163(4)(b) of the Constitution as was held by this court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SC Petition No 12 of 2016 [2019] eKLR (Nyutu Agrovet Ltd case); and that there is no provision for a further appeal from the Court of Appeal on an arbitration matter; and
7.
Also consideringthe respondent’s submissions dated October 9, 2023 and submissions in reply dated November 1, 2023 wherein it reiterates the contents in support of the application and submits that; this Court has in numerous decisions unequivocally set the principles governing the invocation of its jurisdiction under article 163(4)(a) of the Constitution; the initial test lies in determining the issues addressed at the High Court and whether the superior courts settled issues concerning interpretation and application of the Constitution; no issues of constitutional application or interpretation arose at the High Court and the Court of Appeal as the dispute was rooted on a contractual breach; this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition No 4 of 2019 [2020] eKLR (Geo Chem case) held that it lacks jurisdiction on arbitration appeals from the Court of Appeal; and
8.
Cognizantof the appellant’s motion dated October 12, 2023 brought under rule 31 of the Supreme Court Rules, 2020 seeking leave to exceed the limit of 15 pages for written submissions in support of the Petition of Appeal; and
9.
Notingthe grounds in support of the application and the averments contained in the supporting affidavits sworn by Salah El-Din Amin, Advocate, wherein he contends that; the petition arises from the consolidated judgment of the Court of Appeal in respect of 3 substantive and distinct civil appeals based on diverse provisions of the Arbitration Act, 1996 and Constitution as well as other laws of Kenya; separate submissions were filed by the parties in the 3 substantive appeals at the Court of Appeal; it is not seeking to file 15 pages per appeal but 27 pages for the consolidated appeal; no prejudice will be caused to the respondent if the application is allowed; and
10.
Uponreading the submissions of the appellant dated October 12, 2023 wherein it reiterates the contents of its supporting affidavits and submits further that; article 159(2)(d) of the Constitution and section 3 of the Supreme Court Act, 2011 grants the Court inherent powers to give directions necessary for the due administration of justice; the 15 page limit prescribed in Direction No 17(a)(i) of the Supreme Court (General) Practice Directions is a mere technicality which ought not, in appropriate circumstances, be given due regard if that would result in an injustice to any party; and
11.
Bearing inmindthe replying affidavit sworn on October 13, 2023 and October 25, 2023 by Zainab Jaffer, the Director of the appellant, in reply and opposition to the intended interested party’s application for joinder and the respondent’s application seeking to strike out the petition, wherein she contends that the intended interested party’s application is made in bad faith and motivated by mischief as he waived his right to appear and respond to the appellant’s application challenging his appointment at the High Court and also opted not to participate in any aspect of further proceedings at the High Court as well as the Court of Appeal; the application to strike out the appellant’s petition is frivolous, vexatious and an abuse of the process and ought to be struck out; the petitioner has raised issues of interpretation and application of the Constitution in all proceedings before the superior courts and all the matters of law raised by the respondent in its application are duly and comprehensively addressed in the appellant’s petition; the respondent has consistently sought to silence the appellant by erecting jurisdictional hurdles and procedural technicalities to avoid the determination of the substantive issues by courts; and
12.
Upon Furtherconsidering the appellant’s submissions in reply to the intended interested party and the respondent’s submissions in support of their motions wherein it reiterates the contents of its pleadings and submissions; and | Having considered the applications, responses, and submissions before us,
We now opine as follows:
i.
This court has previously settled the twin questions of whether both the Court of Appeal and the Supreme Court are vested with the jurisdiction to hear and determine appeals arising out of arbitration disputes. Particularly, in Geo Chem Middle East case (supra) we held that, in determining the above questions, the court has to first evaluate whether the contested issues in the petition were issues of constitutional controversy that had been substantively determined by the High Court and the Court of Appeal.
ii.
In applying the above finding to the present matter, we note that the appellant invoked the provisions of articles 50, 149, and 165 of the Constitution in its first application which sought to review the orders of Ochieng’ J. To contextualize matters, in his ruling, the learned judge declined the invitation by the appellant to remove the Arbitrator and annul the arbitration proceedings finding that the application had been made after the final award had been delivered and the Arbitrator could not be condemned unheard. Mwongo J in a decision delivered on 2nd May 2017- on review of Ochieng J’s orders - declined to interpret or apply any provisions of the Constitution and instead stated that reliance on articles 50, 149 and 165 aforesaid was untenable and that it was debatable whether,a decision of the court made under section 14 of the Arbitration Act could be reviewed, and whether section 3A of the Civil Procedure Act, as invoked by the appellant, was also applicable to proceedings under section 14. Therefore, the High Court specifically Mwongo J only tangentially touched on the constitutional issues raised but did not meaningfully interpret or apply the Constitution. In the original application before Ochieng J which triggered the one before Mwongo J, Ochieng J did not once refer to the Constitution in his ruling.
iii.
In disposing of the third and fourth applications, Tuiyott J (as he then was) delivered rulings on April 13, 2018 and December 7, 2018. In the said rulings, the learned judge found that the issues raised before him - on the alleged bias and partiality of the Arbitrator - ought to have been raised before Ochieng J and once they were not, then he was not minded to give them any consideration. He added that, in any event, the Arbitrator conducted the proceedings fairly and ought to be commended and not condemned. All these issues, which are the main subject of the appeal before us, did not involve the interpretation and application of the Constitution in the manner expected by article 163(4)(a) of the Constitution.
iv.
The record also shows that the Court of Appeal did not interrogate any issues involving the interpretation and application of the Constitution at all. In its judgment, the court delineated two issues for determination; whether failure by the appellant to seek leave to appeal rendered the appeal incompetent and whether the three appeals before it fell within the ambit of the exceptional circumstances contemplated by the Nyutu case (supra) in any appeal arising from an application to set aside an arbitral award under section 35 of the Arbitration Act. In disposing the above issues, the Court of Appeal held that the appellant never sought and obtained leave either from the High Court or the Court of Appeal before filing its appeal and therefore dismissed Civil Appeal No 159 of 2020. In doing so, it also observed that a decision not anchored on section 35 of the Arbitration Act is not appealable to the Court of Appeal thus dismissing Civil Appeal Nos 158 and 160 of 2020.
v.
Therefore, in line with the guiding principles set in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; [2012] eKLR the issues before the superior courts did not involve the interrogation of any constitutional question(s) that rose through the normal appellate mechanism to enable this court exercise its jurisdiction on the interpretation and application of the Constitution under article 163(4)(a) of the Constitution.
vi.
Furthermore, in Nyutu Agrovet Ltd case (supra) we stated as follows: “Reading each of the above provisions, alleged breaches of the Constitution cannot be properly introduced by way of an application to set aside an arbitral award. Breaches of the Constitution are properly governed by Articles 165(3) and 258 of the said Constitution and cannot by litigational ingenuity be introduced for adjudication by the High Court by way of invocation of section 35 of the Arbitration Act.”
vii.
In Synergy Industrial Credit Limited v Cape Holdings Limited SC Petition No 2 of 2017 [2019] eKLR (Synergy case) we also stated:
“
Generally, therefore, once parties agree to settle their disputes through arbitration, the arbitral tribunal should be the core determinant of their dispute. Once an award is issued, an aggrieved party can only approach the High Court for setting aside the award, only on the specified grounds. And hence, the purpose of Section 35 is to ensure that courts are able to correct specific errors of law, which if left alone would lead to a miscarriage of justice. Therefore, even in promoting the core tenet of arbitration which is a quicker and efficient way of settling commercial disputes, that should not be at the expense of real and substantive justice. In the interest of safeguarding the integrity of the administration of justice and particularly in the absence of an express bar we, like the House of Lords in Inco Europe Ltd & others (supra), hold that the Court of Appeal should have residual jurisdiction but only in exceptional and limited circumstances”.
viii.
The court, in addressing appeals arising from section 35 of the Arbitration Act, added as follows in the Synergy case (supra):
“
An arbitral award may be set aside by the High Court only if-
a.
the party making the application furnishes proof-
i.
that a party to the arbitration agreement was under some incapacity; or
ii.
the arbitration agreement is not valid under the law to which the parties have subjected it to or, failing any indication of that law, the laws of Kenya; or
iii.
the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv.
the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decision on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or
v.
the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or
vi.
the making of the award was induced or affected by fraud, bribery, undue influence or corruption;
b.
the High Court finds that-
i.
the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
ii.
the award is in conflict with the public policy of Kenya.”
ix.
In view of the above holding and our findings in this ruling, it is our considered opinion that this court does not have jurisdiction under article 163(4)(a) of the Constitution to hear and determine the present appeal as the matters before the superior courts did not involve interpretation and application of the Constitution at all. The issues relating to the conduct of the Arbitrator and the arbitral proceedings which were at the core of the applications before the High Court cannot by any shade of imagination translate into issues requiring the interpretation of the Constitution. Furthermore, the appellant's case has not met the criteria set in the Synergy case (supra) to have enabled either the Court of Appeal or this court to have jurisdiction to entertain the same. As a consequence, Petition No E027 of 2023 is struck out for want of jurisdiction.
x.
Having struck out Petition No E027 of 2023 it follows that the applications seeking joinder of the intended interested party and leave to exceed the page limit of the appellant’s submissions are rendered otiose.
xi.
It is settled that costs follow the event, but the court may in appropriate cases exercise discretion and with good reason, decide otherwise as was held by this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, SC Petition No 4 of 2012; [2013] eKLR. The respondent being the successful party, is entitled to costs. The appellant shall therefore bear the costs incurred by the respondent. The intended interested party shall bear the costs of his application.
14.
Accordingly, we make the following orders:
a.
The notice of motion dated October 9, 2023 is hereby allowed.
b.
Petition No E027 of 2023 is hereby struck out.
c.
The notice of motion dated October 6, 2023 is hereby struck out.
d.
The notice of motion dated October 12, 2023 is hereby struck out.
e.
We hereby direct that the sum of Kshs 6000/- deposited as security for costs in the appeal herein be refunded to the appellant.
f.
The appellant shall bear the costs of the application dated October 9, 2023 and the same shall be paid to the respondent only. The intended interested party shall bear his costs.
15.
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/111/eng@2023-12-21 |
Petition E010 of 2023 | Khan v International Commercial Company (K) Ltd (Petition E010 & E009 of 2023 (Consolidated)) [2023] KESC 107 (KLR) (21 December 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 December 2023 | 2,023 | Nairobi | Civil | Khan v International Commercial Company (K) Ltd | [2023] KESC 107 (KLR) | null | A. Introduction
1.
Before the court are two appeals by the appellant both dated March 31, 2023 and filed on April 3, 2023, pursuant to articles 163(4)(a), and 258(1) of the Constitution, sections 3(a)(e), 3A, 15(2) and 15A of the Supreme Court Act, 2011 and rule 38(1) (a) of the Supreme Court Rules, 2020. The appeals challenge the decisions of the Court of Appeal in Civil Appeals Nos 63 and 124 of 2018, both delivered on February 17, 2023 which dismissed the appellant’s appeals challenging the Employment and Labour Relations Court’s (ELRC) hearing directions issued on December 1, 2017 by Onyango J and February 14, 2018 by Makau J the appellate court reasoned that the learned Judges of the trial court had correctly exercised their discretion in issuing the impugned directions.
2.
By a consent dated May 17, 2023 and adopted on May 26, 2023, the two appeals were consolidated with Petition No E010 of 2023 designated as the lead file.
B. Background
i. Proceedings at the Employment and Labour Relations Court
3.
The appeal originates from an employment dispute. The appellant was employed by the respondent until the termination of his employment on May 2, 2012. Aggrieved, the appellant filed ELRC Case No 66 of 2013 where he inter alia alleged unfair constructive dismissal on grounds that he was required to manage a newly completed commercial development that had core construction defects, without any comparative salary increment. During the pendency of the suit, the parties filed several applications but of importance to this appeal are two applications highlighted below.
4.
The appellant’s first application sought the recusal of Mbaru J citing bias for inter alia permitting surprise oral evidence without a witness statement thus denying the appellant the right to further cross-examine the respondent’s witness after re-examination and also for denial of leave to amend his pleadings. Vide a Ruling delivered on January 24, 2014, Mbaru J dismissed the application for recusal and denied the appellant leave to amend his pleadings. Aggrieved, the appellant appealed against the ruling. The Court of Appeal allowed the amendment but made no orders as to the learned judge’s recusal. That appeal is not subject of the present proceedings.
5.
Upon resumption of hearing before the ELRC, the appellant wrote a complaint letter dated September 15, 2017 against Mbaru J, detailing his dissatisfaction with the manner in which the suit was handled. On September 29, 2017, the learned Judge recused herself to bolster the appellant’s confidence that justice would be dispensed impartially. The learned Judge also referred the matter back to the Principal judge of the ELRC for re-allocation to another trial Judge.
6.
Subsequently, the matter was listed for directions on December 1, 2017 before the Principal Judge, Onyango J, and after hearing the parties, she directed that; the matter be heard by court No 3; all the applications pending determination be consolidated and heard with the main claim; parties were precluded from filing any other applications pending the hearing of the substantive suit; and the matter was fixed for hearing on February 5, 2018. These directions of December 1, 2017 were to become the subject of appeal in Civil Appeal No 63 of 2018.
7.
Pursuant to the directions issued on December 1, 2017, the appellant filed a second application for stay pending appeal, and the same was listed for hearing before Radido J on January 18, 2018 wherein the judge directed that the file be placed before the principal judge for further directions. On January 22, 2018, parties appeared before Onyango J who declined to hear the application and noted that the matter had been scheduled for hearing on February 5, 2018 before court No 3. On the date fixed for the hearing, the matter was mentioned before the Deputy Registrar who fixed it for hearing on February 14, 2018.
8.
On February 14, 2018, the parties appeared before court No 3 presided over by Makau J and after hearing the parties’ contesting arguments on which of the pending applications was to be heard first, the learned Judge directed that; the court do focus on finalizing the substantive suit; the applications that challenged the competency of pleadings be heard on priority basis to pave way for the hearing of the part-heard suit; notices of motion dated June 6, 2017 seeking to strike out the defence and the one dated June 27, 2016 seeking to strike out the amended claim be heard on a priority basis; parties to file submissions; and the matter be mentioned for highlighting of submissions on March 20, 2018. These directions further aggrieved the appellant and are the root of Civil Appeal No 124 of 2018. | D. Analysis and Determination
29.
Having considered the respective parties’ pleadings and submissions in the appeal before us, we are of the considered view that the following issues emerge for determination:
i.
Whether the jurisdiction of this court has been properly invoked under article 163(4)(a) of the Constitution; and
ii.
If the answer to (i) is in the affirmative,
a.
whether the trial court properly exercised it discretion;
b.
whether the appellant’s fundamental rights had been infringed; and
c.
What reliefs are available to the appellant?
i. Whether the jurisdiction of this court has been properly invoked under article 163 (4) (a) of the Constitution
30.
The appellant invoked this court’s jurisdiction under article 163(4)(a) of the Constitution alleging that the directions, actions, or omissions of the learned judges of the ELRC took a constitutional trajectory involving interpretation and application of the Constitution, particularly the Bill of Rights and therefore he is properly before us. Moreover, that the Court of Appeal was called upon to pronounce itself on the breaches of the Constitution but it ignored the breaches occasioning gross miscarriage of justice.
31.
At the core of the respondent's response to the above contentions is that the appeal does not involve any issue of interpretation or application of the Constitution and as such the court does not have jurisdiction to entertain the same. Furthermore, that the appeal arose from interlocutory applications and the exercise of discretionary powers by the ELRC, and the superior courts did not therefore interpret or apply any constitutional provisions with finality.
32.
From the foregoing, this court is called upon to evaluate its jurisdictional standing to entertain this appeal, that is, whether the appeal raises questions of constitutional interpretation or application of the Constitution and whether the same has progressed through the appropriate appellate mechanisms so as to reach this court by way of an appeal as contemplated under article 163(4)(a) of the Constitution.
33.
This court has in many instances addressed the question of its jurisdiction under article 163(4)(a) of the Constitution. The court in that regard specifically laid down the guiding principles in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; [2012] eKLR, Peter Oduor Ngoge v Francis Ole Kaparo & 5 others SC Petition No 2 of 2012 [2012] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 other SC Application No 5 of 2014 [2014] eKLR. The court was also categorical on this issue when it stated thus in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR: “In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether
the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution.”
34.
This position was furthermore reaffirmed by the court in Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] eKLR where we emphasized that;
“
“…in order to evaluate the jurisdictional standing, the test is whether the appeal raises a question of constitutional interpretation or application and whether such a constitutional issue has been canvassed in the superior courts leading to the present appeal. In order to establish that fact, the court needs to ask itself the following questions:
i.
What was the question in issue at the High Court and the Court of Appeal?
ii.
Did the superior Courts dispose of the matter after interpreting or applying the Constitution}}?
iii.
Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?”
35.
In applying the above holdings to the present issue, we note that the first set of directions, subject of the appeal herein, were issued by Onyango J on December 1, 2017 where she directed as follows:
“
The matter will be heard by court 3; All the applications will be consolidated with the claim and heard together; parties will not be allowed to file further applications pending the hearing of the case; the case is fixed for hearing on February 5, 2018.”
36.
The second set of directions which are the subject of the appeal before us were given by Makau J as follows:
“
The court will focus on finalizing the suit i.e. the dispute between the employer and employee. I will fix the hearing date from the applications,which challenge the pleadings so that after the issue of the pleadings is settled, we can focus on the trial which is already part-heard. The notice of motion dated June 5, 2017 by the claimant seeking to strike out defence and the notice of motion dated June 27, 2017 seeking to strike out the amended claim will be heard on a priority basis. The submissions have been filed for the claimant’s motion. Respondent is given 14 days to file and serve the motion dated 27.6.2017 and thereafter to file submission and serve within 14 days after service. Mention for highlighting on March 20, 2018.”
37.
A plain reading of the above directions reveals that the directions emanated from interlocutory matters before the trial court. No substantive questions of interpretation and application of the Constitution therefore arose at the ELRC during the proceedings leading to the directions issued by the two learned judges. What was before the ELRC concerned normal court processes during the conduct of the matter which was aimed at aiding the disposal of the matter and not cogent issues of constitutional controversy.
38.
Similarly, the determination of the Court of Appeal in both appeals before it revolved around the single issue of the exercise of discretion by the learned judges of the ELRC. Even though the Court of Appeal tangentially touched on the issue of violation of the appellant’s fundamental rights, it found that there was no evidence to support the assertions and that was the end of that matter.
39.
In Ananias N Kiragu v Eric Mugambi & 2 others SC Civil Application No 10 of 2019; [2020] eKLR we stated thus:
“
8.
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question but also on an issue that had been canvassed right through from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court…”
40.
This position was reiterated and reaffirmed by this court in Paul Mungai Kimani & 2 others v Kenya Airports Authority & 3 others SC Petition No 11 of 2019; [2021] eKLR where we observed:
“
(44)
We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.”
41.
Having found that the trial court did not determine any constitutional issue in its directions issued on December 1, 2017 and February 14, 2018 and that the Court of Appeal only tangentially touched on the issue of the violation of the appellant’s rights, we are of the considered view that the same has not progressed though the appropriate appellate mechanisms to properly reach this Court under article 163(4)(a) of the Constitution. Moreover, bearing in mind that the appeal herein originated as a result of interlocutory directions or orders from the ELRC and that the substantive matter is still pending determination before the ELRC, we find that this court does not have jurisdiction to entertain it.
42.
Having concluded that this court lacks jurisdiction to adjudicate the appeal pursuant to article 163(4)(a) of the Constitution, it consequently follows that the court is unable to assess whether the trial court appropriately exercised its discretion and whether the rights of the appellant were violated.
43.
It is well established that costs follow the event but the court may in appropriate cases exercise discretion and order otherwise as was our holding in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR. The appellant, acting in person, impressed us with his clear submissions, misguided as they were for the reasons above, and he ought to have anticipated the consequences of his pursuit of a lost cause. Consequently, we shall exercise discretion and award costs to the respondent.
E. Orders
44.
Consequently, we issue orders as follows:
1.
Petition No E010 of 2023 dated March 31, 2023 is hereby dismissed.
2.
Petition No E009 of 2023 dated March 31, 2023 is hereby dismissed.
3.
Costs of the two appeals are hereby awarded to the respondent.
4.
We hereby direct that the sum of Kshs 6,000/- deposited as security for costs in each of the appeals herein be refunded to the appellant.
45.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/107/eng@2023-12-21 |
Application E018 of 2023 | Wanga v Republic (Application E018 of 2023) [2023] KESC 108 (KLR) (Civ) (21 December 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko | 21 December 2023 | 2,023 | Nairobi | Criminal | Wanga v Republic | [2023] KESC 108 (KLR) | null | Upon perusing the notice of motion by the applicant dated July 4, 2023 and filed on July 5, 2023 pursuant to article 163(4)(a) of the Constitution, sections 15, 21 and 23 of the Supreme Court Act, 2011 and rules 15 and 36 of the Supreme Court Rules, 2020 seeking the following orders:
1.
That this application be heard by two or more judges as a preliminary procedure to determine extension of time in accordance with section 23(2A)(b) of the Supreme Court Act.
2.
That the honourable court exercises its powers under section 21 (1) of the Supreme Court Act, rule 15 (2) of the Supreme Court Rules, 2020 and articles 22 (1), 50 (2) (q) and 51 (2) of Constitution of Kenya to extend the time limit in rule 36 (1) for filing the notice of appeal that accompanies this application;
3.
That the honourable court admits further evidence to be submitted by the appellant as may be necessary for determining the appeal, in accordance with section 20 of the Supreme Court Act and article 50(2)(k) of the Constitution, and the Supporting Affidavit of Timothy Bryant filed herein; and
4.
Any such further or other orders as the appellant may request and this honourable court deem fit in all circumstances.
1.
Noting that on September 1, 2023, a consent order was adopted by this court on the following terms:
1.
That by consent dated August 17, 2023 and filed online on August 21, 2023, duly executed by the firm of Bryant’s Law LLP, counsel for the appellant; and Office of the Director of Public Prosecutions for the respondent, wherein they consent that the Supreme Court do extend time to the appellant to file [his appeal] within the next fourteen days (14 days) from the date thereof, the said consent is hereby adopted as an order of this Court.
2.
That the notice of motion dated July 4, 2023 be placed before the hon Chief Justice and President of the Supreme Court for empanelment of a bench to hear and determine prayer 3.
The applicant has since filed its appeal being SC Petition No E030 of 2023- Godrick Simiyu Wanga v Republic and therefore, the only outstanding issue from the prayers sought in the application is prayer 3 which seeks leave to adduce additional evidence; and
3.
Upon now perusing the grounds on the face of the application, supporting affidavit sworn on July 4, 2023 by Timothy Bryant, counsel for the applicant, and written submissions filed on July 5, 2023 wherein he submits that the intended appeal raises issues of general public importance anchored on violation of articles 29, 48 , 49 & 50 of the Constitution and in particular; the lower court’s failure to recall PW1 for cross-examination; the Court of Appeal’s failure to re-analyse the evidence; violation of the applicant’s right to cross examine the complainant and violation of the applicant’s right to counsel. Further, that the applicant wishes to call fresh evidence in the nature of affidavit evidence on the circumstance of the applicant’s arrest and first trial, empirical research on the right to fair trial and the adverse effects if such a right is violated; and
4.
Upon perusing the respondent’s submissions dated August 9, 2023 and filed on August 16, 2023 wherein it is submitted that the application for leave to appeal out of time is not the appropriate place to seek admission of fresh evidence. In opposing the grant of that prayer, the respondent also contends that the same does not meet the criteria set out in section 20 of the Supreme Court Act as well as rule 26 of the Supreme Court Rules. The respondent cites this court’s decision in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Limited & 9 others [2011] eKLR in support of that contention where this court held that an applicant has to demonstrate inter alia that the fresh evidence could not have been obtained by him upon the exercise of due diligence; and | "Having considered the totality of the Application, and Submissions put forth, we opine as follows:
i.
Section 20 of the Supreme Court Act, 2011 as read with rule 26 of the Supreme Court Rules grant this court power to admit additional evidence in an appeal before it. Section 20 of the Act provides the issues the court should consider before doing so. They are whether the additional evidence-
a.
is directly relevant to the matter before court;
b.
is capable of influencing or impacting on the decision of the court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the court.
ii.
This court has also expressed in Mohamed Abdi Mahamad v Ahmed Abdullahi Mohamed & 3 others SC Petition Nos 7 & 8 of 2018; [2018] eKLR, Evans Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others SC Petition No 18 & 20 of 2014; [2014] eKLR, and more subtly in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others SC Petition No 38 of 2019; [2020] eKLR that the exercise of this jurisdiction shall not be whimsical, and the court would not be in haste in granting the same.
6.
Applying the above principles to the present application particularly the need to exercise restraint in admitting fresh evidence, we note that in his application, the applicant was initially seeking leave to file his notice of appeal out of time which prayer was granted by consent. He subsequently filed his appeal and it is our finding that an application for additional evidence should be predicated upon a filed appeal and upon the applicant showing that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial; was not within his knowledge; or could not have been produced at the time of the suit or petition. Where a prayer is made for admission of additional evidence together with the prayer for leave to file an appeal out of time and there being no appeal on record at the time of filing the application, the prayer is clearly premature. The reason for this is that the petition of appeal is the one that contains all the grounds of appeal, the facts and evidence in support thereof as well as the applicable law and without it, the court cannot properly determine the prayer for admission of additional evidence.
7.
Furthermore, the applicant has not set out the additional evidence he seeks to adduce. He has merely alluded to affidavit evidence on the circumstances of his arrest, empirical evidence on the right to a fair trial and the adverse effects of violation of that right. The court cannot determine the relevance or the credibility of the fresh evidence and whether the same fits the criteria set out in section 20 of the Supreme Court Act with such bare material placed before us by the applicant’s counsel. In the circumstance, the application for this and the reasons above, must fail.
8.
On costs, award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. On this account, it is only prudent that we defer the issue of costs and abide await the outcome of the appeal." | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/108/eng@2023-12-21 |
Petition 32 (E036) of 2022 | Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2023] KESC 105 (KLR) (15 December 2023) (Judgment) | Judgement | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 15 December 2023 | 2,023 | Nairobi | Civil | Fanikiwa Limited
1st Appellant
Mary Jepkemboi Too and Sophie Jelimo Too (Suing as joint administrators ad litem of the Estate of Mark Kiptarbei Too)
2nd Appellant
Lonrho Agribusiness (EA) Limited
3rd Appellant
David Korir
4th Appellant
and
Sirikwa Squatters Group
1st Respondent
The Commissioner Of Lands
2nd Respondent
The Chief Registrar Of Titles
3rd Respondent
Director Of Land Adjudication And Settlement
4th Respondent
Director Of Survey
5th Respondent
District Land Officer, Uasin Gishu District
6th Respondent
Highland Surveyors
7th Respondent
Kennedy Kubasu
8th Respondent
Ahmed Ferej & 60 others
9th Respondent
Richard Kirui & 15 others
10th Respondent
Stanbic Limited
11th Respondent
Kenya Commercial Bank Limited
12th Respondent
Eco Bank Limited
13th Respondent
Milly Chebet
14th Respondent
National Bank Of Kenya Limited
15th Respondent
Kenya Women Micro-Finance Bank
16th Respondent
Commercial Bank of Africa
17th Respondent
Co-operative Bank of Kenya
18th Respondent | [2023] KESC 105 (KLR) | null | A. Introduction
1.
Three appeals were filed before this court, that is, petition No 32 (E036) of 2022 by Fanikiwa Limited (Fanikiwa), petition No 35 (E038) of 2022, by Mary Jepkemboi Too & Sophie Jelimo Too (suing as joint administrators ad litem of the estate of Mark Kiptarbei Too) (administrators of the estate of Mark Too), and petition No 36 (E039) of 2022 by Lonrho Agribusiness (EA) Ltd & David Korir The appeals which are dated November 21, 2022, December 14, 2022 and December 23, 2022, respectively, are anchored on article 163(4)(a) of the Constitution. Subsequently, by a consent order dated January 31, 2023, the three appeals were consolidated with Petition No 32 (E036) of 2022 designated as the lead file.
2.
The consolidated appeal challenges the judgment of the Court of Appeal ((Kiage, M’Inoti & Mumbi Ngugi, JJA) in Civil Appeal No 45 of 2017 (consolidated with Civil Appeal No 44 & 68 of 2017) delivered on November 18, 2022. In a nutshell, the dispute that culminated in the consolidated appeal revolves around the ownership and/or entitlement to parcels which were registered as LR Nos 9606, 9607, 9608, 745, 742/2, 7739/7R, 12398, 10793 and 10794 in the former Uasin Gishu District (the suit parcels).
B. Background
i. Factual history
3.
The suit parcels were registered under the repealed Registration of Titles Ordinance (subsequently referred to as the repealed Registration of Titles Act (RTA). The grants/titles to the suit parcels were first issued in favour of Plateau Wattle Company Ltd between 1958 and 1962 as leaseholds for periods ranging from 946 to 951 years. However, before the expiry of the leaseholds, Plateau Wattle Company transferred the suit parcels on March 26, 1965 to East Africa Tanning Extract Company for a consideration of Kshs 6,583,925. It is instructive to note that the East Africa Tanning Extract Company changed its name multiple times. Eventually, in 2000 it became Lonrho Agribusiness (East Africa) Limited (Lonrho Agribusiness), the 3rd appellant. On November 2, 2000, Lonrho Agribusiness surrendered the titles to the suit parcels to the government. The purpose of the surrender is a matter contested between the parties and marks the genesis of the dispute before the court. Nonetheless, upon the surrender, the suit parcels were subsequently registered under the repealed Registered Land Act (RLA) and freeholds titles issued thereto in favour of Lonrho Agribusiness. Thereafter, the suit parcels were sub-divided into various units that were eventually transferred to third parties. | F. Orders
135.
Accordingly, and for the reasons afore-stated, we make the following orders:
i.
The consolidated appeal is hereby allowed;
ii.
The judgment and orders of the trial and appellate courts are hereby set aside in their entirety.
iii.
The 1st respondent herein, to wit, Sirikwa Squatters Group, its agents, members, servants, employees and/or representatives are hereby permanently restrained from entering, taking possession of and in any other manner interfering with Fanikiwa’s (the 1st appellant) quiet possession of the suit properties described as LR No Pioneer/ngeria Block 1 (EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487, 5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471, 1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85, 5495 and 5902;
iv.
We declare that the finding by the superior courts below to the effect that the retired President’s approval of allocation of the suit parcels and the subsequent surrender of the titles was for purposes of settling Sirikwa’s members, violated and arbitrarily deprived the 3rd appellant herein, Lonrho Agribusiness, of its rights over and interests in the suit parcels as guaranteed under article 40 of the Constitution.
v.
All parties shall bear their own costs
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/105/eng@2023-12-15 |
Petition E017 of 2023 | Adam v Jiir & 3 others (Petition E017 of 2023) [2023] KESC 101 (KLR) (8 December 2023) (Reasons) | Reasons | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, N Ndungu, I Lenaola, W Ouko | 8 December 2023 | 2,023 | Nairobi | Civil | Hassan Mohammed Adam
Appellant
and
Ahmed Abdullahi Jiir
1st Respondent
Ahmed Muhumed Abdi
2nd Respondent
The Independent Electoral and Boundaries Commission
3rd Respondent
County Returning Officer, Wajir County Mohamed Adan Ali
4th Respondent | [2023] KESC 101 (KLR) | null | A. Introduction
1.
The Constitution of Kenya, 2010, underscores the sovereignty of the people. Thus, the people may exercise their sovereign power either directly or through their democratically elected representatives. Sovereign power is exercised through elected representatives and occurs through a general election, being the second Tuesday of August every fifth year. With the promulgation of the Constitution of Kenya, 2010, Kenya held its third general election on August 9, 2022. In the said election, the appellant and the 1st respondent were among the candidates for the Gubernatorial Elections in Wajir County. The 3rd respondent, through the 4th respondent, declared the 1st and 2nd respondents as governor and deputy governor of Wajir County, respectively, having garnered 35, 533 votes. The appellant came in second with 27, 224 votes. Just like in the first and second electoral cycle, the election of the Governor for Wajir County was challenged before the courts.
2.
Taking into account the importance of expeditious settlement of electoral disputes as prescribed under article 87(1) of the Constitution, the court heard this petition of appeal and rendered an ex tempore judgment on September 8, 2023 pursuant to rule 28(2) of the Supreme Court Rules 2020 by which the petition of appeal dated July 31, 2023 was struck out with costs to the respondents and the reasons thereby reserved; now rendered in this judgment of the court.
B. Litigation Background
Proceedings in the High Court
3.
The appellant, dissatisfied with the declaration of the August 9th, 2022 general election results, lodged High Court election Petition No E008 of 2022 against the 1st to 4th respondents. He alleged that the election was tainted by numerous illegalities and irregularities that contravened the Constitution, Elections Act, Election (General) Regulations and the principles laid down therein or any law relating to the conduct of elections including decisions of superior courts, leading to skewed results in favour of the 1st and 2nd respondents.
4.
He alleged intimidation and misinformation of voters; gross discrepancies in the statutory forms; improper counting, tallying and tabulation of results; failure to deploy KIEMS Kits; and inflation of vote numbers through the use of supervisor method of voter identification. He therefore sought an order for scrutiny and recount at various polling stations; that the results declared by the returning officer be set aside and fresh elections be conducted.
5.
The 1st and 2nd respondents, in their joint response, denied all the allegations made against them. In particular, they responded to the averment relating to the postponement of elections in Eldas constituency, clan dynamics, intimidation, misinformation, undue influence of voters, voter turnout and failure to deploy KIEMS kits.
6.
Likewise, the 3rd and 4th respondents jointly denied every allegation set out in the petition. They averred that the Wajir Gubernatorial election process was backed by an elaborate electoral management system in compliance with electoral laws, which system included several layers of safeguards to ensure an open, transparent, participatory and accountable process, to guarantee free and fair elections pursuant to article 81 as read with article 86 of the Constitution.
7.
Following the conclusion of oral witness testimonies, the court allowed the appellant’s application for scrutiny in part, limiting it to twelve (12) polling stations; that it be presided over by the Deputy Registrar of that court; and the resultant reports be filed and supplied to the parties who made submissions on the same.
8.
Upon hearing the parties’ arguments, the court identified three issues for determination:
(a)Whether illegalities and irregularities were committed in the Wajir Gubernatorial elections as alleged and if yes, what the effect was; (b) Whether the Wajir Gubernatorial elections were conducted substantially in accordance with the Constitution and election laws; and (c)What orders the court should issue. The first issue was further delineated into the following sub- issues: the supervisor mode of identification; failure to deploy KIEMS Kits; alterations in Forms 37A; rejected ballots; voter intimidation and mis- information; violence in some parts of Wajir East Constituency and disproportionately high turnout in Wajir West Constituency.
9.
In a Judgment delivered on March 3, 2023, the court (Dulu, J) dismissed the petition with costs, and upheld the election of the 1st and 2nd respondents as governor and deputy governor of Wajir County respectively. In respect of the first issue, the court held that: though the 3rd respondent failed to fill in Form 32A for supervisor validated voters there was no evidence of vote inflation or padding as a result of this failure; failure to deploy KIEMS Kit was not proved; the impugned alterations on Forms 37A are excusable to human error and the mere absence of countersigning did not affect the election results; the appellant did not call any evidence to demonstrate non – declaration of rejected ballots in Form 37C, in any event, rejected ballots are void and accord no advantage to any candidate; voter intimidation, misinformation and bribery spurred by the postponement of the Eldas election and clan dynamics was not proved; the complaint of violence in some parts of Wajir East Constituency did not interfere with distribution of election materials which were airlifted; and the allegation of disproportionately high turnout in Wajir West Constituency were unsubstantiated.
10.
As to whether the Wajir Gubernatorial elections were conducted substantially in accordance with the Constitution and election laws, the court held that though there was non-compliance with the legal provisions on filling Form 32A and there were counter signing alterations made on Form 37A, there was no evidence that voters in any polling station exceeded the number of registered voters. Furthermore, neither of the two irregularities appeared to confer an advantage or disadvantage on any of the candidates. Consequently, the court found that there was no non-compliance with the Constitution. | G. Final Orders
63.
Consequently, we issue the following Orders:
i.
The notice of motion dated August 15, 2023 and filed on even date be and is hereby allowed with costs to the 1st and 2nd respondents.
ii.
The petition of appeal dated July 31, 2023 and filed on even date is struck out with costs to the respondents.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/101/eng@2023-12-08 |
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