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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 |
Petition (Application) E011 of 2023 | Kenya Airports Authority v Otieno, Ragot & Company Advocates (Petition (Application) E011 of 2023) [2023] KESC 104 (KLR) (8 December 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 8 December 2023 | 2,023 | Nairobi | Civil | Kenya Airports Authority v Otieno, Ragot & Company Advocates | [2023] KESC 104 (KLR) | null | Mandatory requirement of leave of the Supreme Court to file pleadings out of time
The Supreme Court disallowed an application to strike out submissions out of time on grounds that at the hearing, the applicant could well argue their appeal orally. The respondent could always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation. The Supreme Court however underscored the importance of complying with court orders and seeking leave before filing pleadings out of time.
Reported by John Ribia
Civil Practice and Procedure – pleadings – submissions – timelines – submissions filed out of time without leave of the Supreme Court - whether the Supreme Court had the discretion to allow for late filing of submissions - whether the Supreme Court could grant an applicant the discretion to file pleadings out of time having not sought leave of the court to file the pleadings out of time and having not complied with the orders of the Registrar of the Court - Constitution of Kenya articles 50(1), 159, and 163(5); Supreme Court Act (cap 9B) section 3; 21; 21(2); Supreme Court Rules, 2020 (cap 9B Sub leg) rules 12(1), 31(6), and 65.
Brief facts
The respondent sought to strike out and expunge from the record the submissions, list and digest of authorities all dated and filed by the appellant on grounds that the documents were filed out of time, without leave of the Supreme Court, and in violation of the timelines issued by of the Deputy Registrar of the Supreme Court in the matter.
Issues
Whether the Supreme Court had the discretion to allow for late filing of submissions.
Whether the Supreme Court could grant an applicant the discretion to file pleadings out of time having not sought leave of the court to file the pleadings out of time and having not complied with the orders of the Registrar of the Court.
Held
Section 21 of the Supreme Court Act (the Act) granted the Supreme Court general powers to make any ancillary or interlocutory orders. Rule 65 of the Supreme Court Rules empowered the Supreme Court to issue such directions as could be appropriate where a provision of the Rules or Practice Directions was not complied with, having regard to the gravity of the non-compliance and the general circumstances of the case.
Article 159 of the Constitution set out the guiding principles of the exercise of judicial authority which included that justice shall not be delayed and shall be administered without undue regard to procedural technicalities.
Compliance with the Supreme Court’s orders and directions on filing and service of documents was imperative. Compliance went to the root of the rule of law as well as the dignity of the Supreme Court.
From the directions issued by the Hon. Deputy Registrar on August 7, 2023, the appellant ought to have filed and served its submissions on or before August 28, 2023. It was not until September 22, 2023, that the appellant filed its submissions online, and filed its hardcopies on September 25, 2023, thus delaying compliance with the court’s directions by over 25 days. As noted in rule 12(1) of the Supreme Court Rules, filing was deemed complete when the document was submitted both electronically and physically. The delay in compliance by the appellant was therefore prejudicial to the respondent who was deprived the opportunity to respond to the appellant’s submissions.
Whereas late filing of submissions was not incurable, and the Supreme Court had discretion to allow such late filing. The appellant had not moved the Supreme Court appropriately by way of an application for extension of time to file the said documents.
Section 21 of the Act and rule 65 of the Supreme Court’s Rules granted the Supreme Court general powers to make any ancillary or interlocutory orders and any such directions as may be appropriate. The bottom line in all cases was for parties to litigation to reasonably access justice.
Prejudice had been suffered by the respondent due to the applicant’s failure to timeously file its submissions. The respondent could be facilitated to mitigate such prejudice as may have been suffered.
At the hearing, the applicant could well argue their appeal orally. The respondent could always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation.
Application disallowed. | We have considered the application, responses and submissions filed by the parties and now opine as follows:
i.
This court has in several of its decisions reiterated that compliance with its orders and directions on filing and service of documents is imperative. As we stated in the Okiya Omtatah case (supra) compliance with court orders goes to the root of the rule of law as well as the dignity of the court.
ii.
We note that from the directions issued by the Hon. Deputy Registrar on August 7, 2023 the appellant ought to have filed and served its submissions on or before August 28, 2023. It was not until September 22, 2023 that the appellant filed its submissions online, and filed its hardcopies on September 25, 2023 thus delaying to comply with the court’s directions by over 25 days. As noted in rule 12(1) of the Court’s Rules, filing is deemed complete when the document is submitted both electronically and physically.
iii.
The appellant having failed to comply with the court’s direction, the respondent proceeded to file its submissions online on September 22, 2023 aware of the impending mention to confirm compliance on September 25, 2023. The delay in compliance by the appellant was therefore prejudicial to the respondent who was deprived the opportunity to respond to the appellant’s submissions. Upon exhaustion of the timelines, the Hon. Deputy Registrar proceeded to certify the matter as ready for hearing.
iv.
Guided by this court’s decision in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others SC Petition No.5 of 2016 [2018] eKLR where we underscored the importance of complying with court orders and given directions, every party has an obligation to honour the court’s directions. Whereas late filing of submissions is not incurable, and this court has discretion to allow such late filing, the appellant has not moved the court appropriately by way of an application for extension of time to file the said documents, however, is that fatal?
v.
This court is granted general powers to make any ancillary or interlocutory orders by the provisions of section 21 of its Act. Similarly rule 65 of the Court’s Rules empowers the court to issue such directions as may be appropriate. The bottom line in all cases is for parties to litigation to reasonably access justice.
vi.
The consideration to bear in mind here is what prejudice has been suffered by the respondent due to the applicant’s failure to timeously file its submissions and whether the respondent can be facilitated to mitigate such prejudice as may have been suffered. Conversely, would the applicant be able to still argue their appeal without the submissions? The answer to both enquiries, we find, are in the affirmative. At the hearing, the applicant can well argue their appeal orally. The respondent can always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation.
vii.
Consequently, and under powers granted by section 21 of the Supreme Court Act and rule 65 of the Court’s Rules, we order that the late filed submissions be admitted and deemed to have been filed within time. The respondent is hereby granted 14 days therefrom to draw, file and serve supplementary submissions.
viii.
On the issue of costs, this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012 [2014] eKLR held that costs follow the event. On this account and in the circumstances, the appellant shall bear the costs of the respondents.
Orders
11.
Consequently, we make the following orders:
i.
The respondent’s notice of motion dated September 29, 2023 be and is hereby disallowed;
ii.
The appellant’s submissions, list and digest of authorities all dated September 22, 2023 and filed on September 25, 2023 be and are hereby admitted as part of the record;
iii.
The respondent be and is hereby granted fourteen (14) days from the date of this ruling to draw, file and serve supplementary submissions;
iv.
The appellant shall bear the costs of the application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/104/eng@2023-12-08 |
Petition (Application) 16 of 2019 | Non- Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 102 (KLR) (Civ) (8 December 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | W Ouko | 8 December 2023 | 2,023 | Nairobi | Civil | Non- Governmental Organizations Coordination Board
Applicant
and
EG
1st Respondent
Attorney General
2nd Respondent
DK
3rd Respondent
AMI
4th Respondent
Kenya Christian Professionals Forum
5th Respondent
Katiba Institute
6th Respondent | [2023] KESC 102 (KLR) | null | The application sought for among other orders; that the court set aside and/or review downwards the decision made by the Registrar of the court as related to item 1 on instructions taxed at Kshs 5,000,000. The applicant contended that; the Deputy Registrar delivered a decision taxing the 1st respondent’s bill of costs at Kshs 5,018,104 of which, Kshs 5,000,000 was awarded as instruction fees; and that by doing so, the Deputy Registrar erred in failing to give consideration to the fact that the bill of costs and decree were lodged and drawn contrary to rule 29 as well as paragraph 2(2) of the Third Schedule to the Supreme Court Rules, 2020 because the decree was neither drawn and certified following the applicable procedure nor was it lodged after making the order for costs. The applicant further submitted that it had never received any draft decree for approval or rejection from the 1st respondent. | Before considering the merits of the reference, there are two preliminary issues to be disposed of. The first one is whether the 1st respondent’s replying affidavit is competent. According to the applicant, the replying affidavit is fatally defective for the reason that it lacks in the jurat or attestation part, the place where the oath or affidavit was made or taken contrary to section 5 of the Oaths and Statutory Declarations Act.
9.
Alive to the fact that the power to strike out pleadings is a draconian measure that ought to be employed sparingly and only as a last resort and even then, only in the clearest of cases, as has been explained in a long line of previous decisions, including Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others, Civil Appeal (Application) No 228 of 2013; [2013] eKLR.
10.
It is noted that this objection has been raised by the applicant in its further affidavit and supplementary Submissions, without an opportunity to the 1st respondent to reply, and considering that under part v of the Supreme Court Rules, the court can only issue an order upon being appropriately moved, the applicant ought to have filed a formal application to strike out these pleadings as opposed to seeking to do so through submissions. For this reason, I decline to venture into the merit of whether the 1st respondent’s Replying Affidavit is properly on record.
11.
Secondly, there have been arguments by both parties as to the effect of a consent dated June 29, 2023. In that consent, it is purported that the applicant acknowledged its indebtedness to the 1st respondent and undertook to settle the taxed bill of costs together with the auctioneer’s charges. This court, in Geoffrey M Asanyo & 3 others v Attorney-General, SC Petition No 7 of 2019; [2020] eKLR held as follows regarding a consent:
“[40] Adoption of a consent by a court is a process, in the course of which a court discharges the duty of evaluating the clarity of the consent placed before it by parties and giving directions on the manner of adoption. This circumvents the risk of an unlawful order and validates the mode of adoption and compliance. Thus, a consent by parties becomes an order of the court only once it has been formally adopted by the court…”
12.
Noting that both the Executive Director of the applicant and counsel for the 1st respondent executed the consent dated June 29, 2023; that subsequently, the applicant’s counsel contested the manner in which it was entered insisting that the applicant’s Executive Director was coerced into signing it and that the applicant’s board did not sanction it. But of significance is the fact that the consent has not been formally adopted by the court as an order and therefore serves no useful purpose in these proceedings. It could not per se have settled the issue of costs between the parties.
13.
Evaluating the arguments in this reference, the first matter to consider is whether the bill of costs and decree were lodged and drawn contrary to rule 29 and paragraph 2(2) of the third schedule to the Supreme Court Rules 2020. The argument is that the 1st respondent failed to submit the decree to the applicant for approval or rejection as required by rule 29.
14.
Rule 29(4) provides as follows:
“
(4)
Any party may, within fourteen days from the date of judgment or ruling, prepare a draft order and submit for the approval of the other party who shall, within seven days of receiving the draft order-
a.
approve it, with or without any changes; or
b.
reject it.
5.
Where the parties approve the draft, it shall be submitted to the Registrar who shall if satisfied that it is properly drawn, certify the order accordingly.
6.
Where parties do not agree on the content of the order, any judge who sat at the hearing shall settle the terms of the order.” [my emphasis].
15.
Accordingly, the taxing officer in determining this question stated the following:
“
(7)
…… but having read rule 29(4), it is my view that the same is optional so that it will be erroneous to hold that the filing of a party and party bill of costs must be preceded by an approved decree or order. It is equally clear from the framing of rules 59, 60 and the third schedule to the Supreme Court Rules, 2020 that in the exercise of his/her discretion in assessment of costs, the Registrar is not required to first ensure compliance with rule 29 of the Supreme Court Rules 2020.
(8)
Lastly, I have read the submissions by the appellant on this aspect of the case and noted that it does not challenge the order for costs as contained in the Judgment of February 24, 2023.
The appellant’s contention on this issue falls on the wayside.”
16.
It is common factor that a draft decree was not submitted to the applicant for approval or rejection in terms of rule 29 aforesaid. What then is the effect of that failure? The applicant has prayed that for this omission, the court be pleased “to set aside and/or review downwards” the impugned decision as it relates to item 1 on instructions taxed at Kshs 5,000,000.
17.
It must be stressed that is not for nothing that rule 29(4) of the Supreme Court Rules, reproduced above, sets out in some detail the steps to be followed when a decree has been drawn: that the parties must themselves, first be satisfied that the decree reflects the decision; that the process of exchanging a draft decree may be initiated by either party; and that it is only when the parties fail to agree that the court steps in to settle the terms of a decree.
18.
But strictly speaking, a decree, being a formal expression of a court’s conclusive determination of the rights of the parties in a suit, is a product of a judgment and therefore belongs to the court. That is why it is of no consequence until it is duly sealed by the registrar, who, under section 10 of the Supreme Court Act is responsible for—
“
10(1) (d)…certifying that any order, direction or decision is an order, direction or decision of the court, or of the chief justice or other judge, as the case may be.”
19.
The main consideration in approving or rejecting a decree is that a decree must always mirror the judgment. In the instant case, the applicant does not claim that the decree is at variance with the judgment of the court, which in so far as costs are concerned merely stated that: “the 1st respondent shall have the costs”.
20.
While it must be emphasized that parties must strictly follow the steps enumerated in rule 29, in the circumstances of this case, it is my considered view that the setting aside of the execution process, as sought here is not the answer and will serve no purpose. The relief of setting “aside and/or review downwards” would have been efficacious only if it was demonstrated that the decree was at variance with the judgment.
21.
In the end, on this question, I come to the conclusion that, although the 1st respondent offended rule 29 of the Supreme Court Rules, that offence cannot attract the kind of sanction sought in this prayer.
22.
The gravamen of the applicant’s reference is the taxed award of Kshs 5,000,000 for instruction fees. This court recently in Outa v Odoyo & 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 certificate of taxation:
“
(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.”
23.
Bearing these principles in mind, I reiterate that the only point of contention is item No 1 which was on instruction fees. The 1st respondent had sought the item be taxed at kshs 20,000,000 while the applicant insisted that Kshs 1,500 was reasonable. Resolving this question, the taxing officer expressed himself as follows:
“
(16)
… I hold and find that this was an exceptional case where novel constitutional issues were raised. I am mindful in this case, counsel’s industry in the success of the case must be compensated reasonably. There is indeed evidence of extensive research as submitted by counsel for the 1st respondent. The nature of the case and its importance in the field of enforcement of human rights for the minority cannot be underestimated. The Kshs 1,500/= proposed by the appellant is so little that it cannot attract young lawyers to the legal profession.
(17)
I am now satisfied that after a consideration of the factors a taxing officer ought to bear in mind in awarding instruction fees, I hereby in the exercise of my discretion award Kshs 5,000,000 as instruction fees.”
24.
In arriving at the award, the taxing officer took into consideration, the novelty of the matter and its contribution to the growth of jurisprudence; the nature of the case and its importance in the field of enforcement of human rights for the minority involving the LGBTIQ community; and the industry of counsel through extensive research conducted while being cautious not to enrich the victor unjustly. He therefore found the amount of Kshs 20,000,000 proposed by the 1st respondent to be excessive and 1,500 grossly and manifestly deficient.
25.
In this court costs payable by a party can be awarded at three levels: assessed by the court itself when making its decision; or taxed by the registrar; or reached by consent of the parties. See rule 59 of the Supreme Court Rules, 2020. Where the registrar is called upon to tax a bill of costs rule 60 directs that such costs shall be taxed in line with the scale outlined in the third schedule to the Supreme Court Rules 2020.
26.
Specific to instructions, paragraph 9 of the third schedule makes 3 important provisions, that:
i.
Instruction fees “shall be such sum as the taxing officer shall consider reasonable but shall not be less than one thousand shillings”.
ii.
Secondly, the fees for instructions “shall be such sum as the taxing officer shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties”.
iii.
Finally, that sum allowed under the second consideration “shall include all works necessary and properly done in connection with the appeal and not otherwise chargeable, including attendances, correspondence, perusals, and consulting authorities”.
27.
Balancing all these factors the taxing officer proceeded, in exercise of his discretion, to reduce the 1st respondent’s proposed award of Kshs 20,000,000 to Kshs 5,000,000. I do not think the taxing officer can be said to have committed an error of principle or can it be said that the fee awarded is manifestly excessive as to warrant my interference? The function of a single judge seized of a reference is to review the taxing officer’s certificate of taxation to ascertain whether the taxing officer has, among other things, erred in principle. It is and cannot be in the nature of a new hearing.
28.
Unless the taxing officer improperly exercises his discretion or applies the wrong principles or the quantum awarded is obviously wrong, the single Judge ought not to interfere with the decision of the taxing officer on the mere question of quantum, or merely because the single judge would have awarded a different figure had he been the taxing officer.
29.
Rule 6 (2) of the rules of the court only permits any party aggrieved by a decision of the registrar to apply for a review to a single judge, whose decision is final. Because taxation is not a mathematical exercise but rather a discretionary process, the single Judge cannot purport to engage in such an exercise, which involves perusing the record in order to ascertain all work necessary and properly done in connection with the appeal, including attendances, correspondence, perusals, and consulting authorities.
30.
In the circumstances, I find that no material has been placed before me to interfere with the taxing officer’s discretion. The authorities cited by the applicant to persuade me that the award was excessive relate to election petitions whose timeline are only six months in the courts below, while parties and counsel in thisappeal have been in court for over ten years, traversing the entire superior courts. Perhaps it is this single factor that informed the court’s decision to award costs to the 1st respondent even when the two superior courts below did not make any orders as to costs. No doubt, the complexity and novelty of the case similarly informed the decision to constitute larger benches in the courts below (High Court, three judges and five in the Court of Appeal), while in this court there was a split decision, 3:2.
31.
Consequently, and for all the reasons explained, this reference fails and is dismissed with an order that each party shall bear their own costs.
32.
Accordingly, I order that:
i.
The reference dated September 28, 2023 be and is hereby dismissed; and
ii.
Parties shall bear their own costs as costs are awarded at the discretion of the court.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/102/eng@2023-12-08 |
Civil Application E032 of 2023 | Oyatsi v Nzoia Sugar Company Limited (Civil Application E032 of 2023) [2023] KESC 103 (KLR) (8 December 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 December 2023 | 2,023 | Nairobi | Civil | Francis Oyatsi
Applicant
and
Nzoia Sugar Company Limited
Respondent | [2023] KESC 103 (KLR) | null | Brief facts
The applicant filed two applications; the first one sought enlargement of time to file an appeal and stay of execution of the Court of Appeal judgment dated April 22, 2021while the second one sought leave of the court to amend the notice of motion dated August 29, 2023. The respondent had appealed against the decision of the trial court at the Court of Appeal which reversed the trial court’s judgment vide its judgment dated March 8, 2019 (the date and mode of delivery of the Court of Appeal judgment was the main contention in both applications). The respondent thereafter made an application for settling terms of the decree. The same was determined by a one-judge bench of the Court of Appeal on April 22, 2021.
The applicant sought leave to amend the notice of motion on the grounds that the amendment sought to add the final decision of the Court of Appeal dated March 8, 2019 as part of the prayer seeking enlargement of time to file an appeal. Initially, the applicant had sought enlargement of time to appeal against the consequential orders of April 22, 2021 only. The applicant contended that there was discovery of new and important facts disclosed by the respondent’s replying affidavit served upon him on September 25, 2023 and that he had realized, for the first time, that the Court of Appeal’s judgement was delivered on March 8, 2019, without prior notice to him, reasons which were entirely different from the reasons preferred in his application dated August 29, 2023.
The applicant sought to be granted extension or enlargement of time to file and serve notice of appeal and or appeal against the order of the Court of Appeal dated the April 22, 2021and that if leave was granted the court grants a stay of execution of the order pending hearing and determination of the intended appeal. The applicant urged that he did not agree with the validity of the judgment and he filed an application seeking orders that the Court of Appeal recalls, cancels the judgment and hear the appeal afresh. The applicant claimed that the Court of Appeal had not given directions as to the hearing of that application and he therefore he filed the instant application. | Consequently, we make the following orders:
a.
The notice of motion dated August 29, 2023 and filed on September 1, 2023 is hereby dismissed.
b.
The notice of motion dated October 2, 2023 and filed on October 5, 2023 is hereby dismissed.
c.
Costs of the both applications are awarded to the respondent.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/103/eng@2023-12-08 |
Application E039 of 2023 | Sundowner Lodge Limited v Kenya Tourist Development Corporation (Application E039 of 2023) [2023] KESC 100 (KLR) (8 December 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 December 2023 | 2,023 | Nairobi | Civil | Sundowner Lodge Limited
Applicant
and
Kenya Tourist Development Corporation
Respondent | [2023] KESC 100 (KLR) | null | "Brief facts
The applicant filed the instant application seeking review of the Court of Appeal decision declining to certify the intended appeal as being one involving matters of general public importance. The applicant’s claim at the trial court was premised on breach of the lending contract to which the applicant filed a suit and sought general and special damages, interests and costs. The trial court awarded the applicant Kshs 153,000 as special damages and Kshs 30,000,000 as general damages. On appeal, the Court of Appeal set aside the award of Kshs 30,000,000 as general damages.
The applicant contended that a review of the Court of Appeal’s decision was merited as the intended appeal to the Supreme Court raised questions of general public importance that transcended beyond the parties; as a result of the Court of Appeal’s misinterpretation of its prior decisions, its decision in the matter had a likelihood of causing confusion in the legal practice and among the lower courts regarding the recoverability of general damages for breach of contract." | Having therefore considered the application, response, submissions and issues proposed to be certified as involving general public importance, we now opine as follows:
(i)
The issues proposed to be certified as involving general public importance revolve primarily around the availability of general damages as a remedy for breach of contract in Kenya and the extent of such remedy, if at all. Specifically, the applicant seeks a final pronouncement from this court on this issue on account of conflicting decisions by the Court of Appeal on that subject.
(ii)
Examining the judgments of the superior courts submitted by the applicant, it is manifest that the High Court appreciated the general rule that general damages are not normally awarded in breach of contract cases save for exceptional circumstances upon which it proceeded to award general damages to the respondent. Likewise, on appeal, the Court of Appeal acknowledged the general rule and was not persuaded that the authorities cited by the trial court supported the proposition that in cases of breach of contract there exists a large and wide – open discretion to a court to award any amount of damages, in addition to the quantified damages. In the premise, the Court of Appeal, in differing with the basis upon which the High Court had awarded general damages did not negate but rather affirmed the general rule.
(iii)
Further, vide the ruling dated September 22, 2023 in Civil Application No Sup 19 of 2018, the Court of Appeal, affirmed that there is no ambiguity in the legal practice since the appellate court did not misinterpret its previous decisions that general damages are not awardable for breach of contract except in exceptional circumstances, which have to be justified. It therefore follows that this issue is well settled and the issue of contradictory previous decisions does not arise.
(iv)
To our minds the applicant seeks another opportunity to have a third bite at the cherry by seeking to revisit factual findings and conclusions already resolved by the superior courts below. Determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal to the Supreme Court.
(v)
In the end, we have no difficulty in recognising that the Court of Appeal correctly interrogated the proposed issues as against the threshold set out in Hermanus Phillipus Steyn case in arriving at its decision that they did not warrant a certification as involving general public importance. We therefore, decline to vacate its finding.
(vi)
As for costs, it is only prudent that costs follow the event.
10.
Consequently, for the reasons aforesaid, we make the following orders:
(i)
The originating motion dated and filed on October 4, 2023 be and is hereby dismissed; and
(ii)
The costs of this application be borne by the applicant.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/100/eng@2023-12-08 |
Application E026 of 2023 | Everton Coal Enterprises Limited v Karanja & 5 others (Application E026 of 2023) [2023] KESC 98 (KLR) (10 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 10 November 2023 | 2,023 | Nairobi | Civil | Everton Coal Enterprises Limited
Applicant
and
Rose Wakanyi Karanja
1st Respondent
Grace Wangari Karanja
2nd Respondent
Kenneth Ndichu Karanja
3rd Respondent
William Muigai Karanja
4th Respondent
Geoffrey Chege Kirundi
5th Respondent
Lucy Wamaitha Chege
6th Respondent | [2023] KESC 98 (KLR) | null | Brief facts
The applicant sought for several orders from the Supreme Court relating to a judgment by the Court of Appeal at Nairobi in Civil Appeal No 172 of 2010. The applicant requested the Supreme Court to extend time and grant leave to file a Notice of Appeal against the Court of Appeal's 2016 judgment; to review the Court of Appeal's refusal to grant certification in 2023, certify the intended appeal as a matter of general public importance, grant leave to appeal against the 2016 Court of Appeal judgment, and determine the costs of the application in the intended appeal.
The initial dispute involved a property transaction and breach of sale agreement concerning LR No 10090/23. The parties involved were the 1st to 4th respondents and the 5th and 6th respondents (an advocate and his wife). The advocate, representing a vendor in a prior legal case, was alleged to have entered into a sale agreement for the same property. A sale agreement was made between the deceased vendor (represented posthumously by the 1st to 4th respondents) and the 5th and 6th respondents. Legal disputes followed, leading to various court cases and appeals.
The Court of Appeal revoked the transfer of the property to the 5th and 6th respondents, citing legal irregularities including conflict with the Advocates Act and issues surrounding the Land Control Board consent. The applicant was not initially a party to the proceedings but was joined as an interested party after the Court of Appeal judgment, seeking to challenge the adverse order affecting its title to the property. | Having considered the application, affidavits, and rival arguments by both parties, we now opine as follows:
21.
Cognizant of the fact that, although the applicant was not a party to the suit before both the High Court and the appeal in the Court of Appeal, it was joined as an interested party post-judgment stage. The main question that follows is whether the applicant is competent to approach this court in the manner that it has done. Or framed differently, whether the court has jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal.
22.
Acknowledging that jurisdiction is everything and that without it, a court has no power to take one more step; and that a court’s jurisdiction flows from either the Constitution or legislation or both. See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011: [2012] eKLR. It follows that we must, in limine, be satisfied that the applicant has properly invoked the jurisdiction of this court. In respect of this application, the court is guided by article 163(5) of the Constitution, section 15B of the Supreme Court Act, rule 33 of the Supreme Court Rules, 2020 and past decisions of the court on the subject. Specifically, where the Court of Appeal certifies or declines to certify a matter as one of general public importance, rule 33 aforesaid grants an aggrieved party the right to apply to this court for review. Such application must be made within fourteen days.
23.
Further, by rule 33(5) an “application for certification shall only be limited to the parties in the original cause”, which this court in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR, interpreted to mean 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.…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. An interested party may not frame its own fresh issues or introduce new issues for determination by the court”.
24.
Guided by the following passage in our decision in Law Society of Kenya v Communications Authority of Kenya, SC Petition No 8 of 2020; [2023] eKLR, where we underscored the significance of a party having locus standi in a matter:
“
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court.
The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts. A person in this context should therefore be a party with locus standi in the matter.” [our emphasis].
25.
Strictly speaking, though joined, the applicant was not a party to “the proceedings” in the Court of Appeal having been joined post-judgment, yet a joinder contemplates a situation where proceedings are still pending before the court and in terms of rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) which is in pari materia with order 1 rule 10(2) of the Civil Procedure Rules, a party will only be added to on-going proceedings in order to enable the court adjudicate fully upon and settle all the questions involved in the particular proceedings before it.
26.
Noting that the original dispute between the 1st to 4th respondents and the 5th and 6th respondents having been settled in a judgment rendered on July 29, 2016, there were no proceedings to which the applicant could properly join four years later on June 5, 2020, when the ruling by the first bench of the Court of Appeal was rendered. This question has been settled in a long thread of past decisions. For example, in JMK v MWM & another [2015] eKLR, the court stressed that;
“
…an application for joinder of parties can be filed only in pending proceedings; that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings, either before, or during the trial; and that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable”.
See also the Court of Appeal judgment in Kenya Airport Authority v Mitu- Bell Welfare Society & 2 others [2016] eKLR on the finality of a judgment as a decision of a court resolving all the contested issues and settling the rights and liabilities of the parties before it and our decision in University of Eldoret & another v Hosea Sitienei & 3 others, SC Application No 8 of 2020; [2020] eKLR emphasizing the finality of the litigation process. Similarly, this Court haspronounced itself in the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others, [2014] eKLR, relying on Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR on the place of an interested party in any proceedings.
27.
Convinced that the issues the applicant wishes to raise before the Supreme Court were not those determined by the courts below, where the sole issue was always whether the 5th and 6th respondents legally acquired title to the suit property. Whether or not the applicant was an innocent purchaser for value, was never pleaded, canvassed or determined. Indeed, from the record, the issue was raised, according to the Court of Appeal, from the bar, without any evidence in support. At that point, the court had no opportunity or material from which to determine the question. Issues like the proprietary rights of women were never the subject of determination before both superior courts below.
28.
We restate, on the authority of Hermanus Phillips Steyn v Giovanni Gnecchi-Ruscone (supra) that the applicant has not satisfied 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. All we see, like the appellate court did see, is a spirited attempt by the 5th and 6th respondents through the applicant to have a second bite at the cherry. The grounds listed for consideration in the intended appeal, are those that would have only aggrieved the parties before the Court of Appeal. We also reiterate as we did in University of Eldoret & another v Hosea Sitienei & 3 others (supra) that a party must only elect one avenue; either to seek a review or lodge an appeal, they cannot seek both as this defeats the essence of the finality of litigation.
29.
Consequently, and for the reasons given, we find that the applicant lacks the locus standi and is not competent to seek certification before this court. As a corollary, this court lacks the jurisdiction to determine this application for certification.
30.
Accordingly, we make the following orders:
i.
The originating motion dated July 21, 2023 and filed on August 4, 2023 is hereby dismissed.
ii.
The decision of the Court of Appeal delivered on July 7, 2023 denying leave to appeal to this court is hereby affirmed.
iii.
The costs of this application shall be borne by the applicant.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/98/eng@2023-11-10 |
Application E035 of 2023 | Maina v Macharia & 5 others (Application E035 of 2023) [2023] KESC 97 (KLR) (10 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko | 10 November 2023 | 2,023 | Nairobi | Civil | Amos Mwago Maina
Applicant
and
Peter Waihenya Macharia
1st Respondent
Stanley Kyalo Muli
2nd Respondent
Samuel Nduhiu Macharia
3rd Respondent
Independent Electoral And Boundaries Commission
4th Respondent
Milliam W Gachihi, the Constituency Returning Officer, Starehe
5th Respondent
Albert Gogo, the County Returning Officer, Nairobi City
6th Respondent | [2023] KESC 97 (KLR) | null | Brief facts
The application sought for orders that the notice of appeal lodged by the 1st, 2nd and 3rd respondents at the Court of Appeal regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be deemed to have been withdrawn and that the 1st, 2nd and 3rd respondents be ordered to pay the costs relating to the notice of appeal and the costs of the application. The applicant contended that; his election as the Member of the National Assembly Starehe Constituency was challenged by the 1st, 2nd and 3rd respondents in the High Court and was dismissed thus leading to the 1st, 2nd and 3rd respondents filing election petition appeals at the Court of Appeal. The Court of Appeal dismissed the appeal following which the 1st, 2nd and 3rd respondents lodged a notice of appeal on August 8, 2023 but had not yet filed their petition and record of appeal before the instant court.
The applicant submitted that the 1st, 2nd and 3rd respondents had failed to comply with rule 38 of the Supreme Court Rules, 2020 by not instituting their appeal within 30 days of the date of filing the notice of appeal where the appeal was as of right, which lapsed on September 7, 2023. The applicant further submitted that he was unaware of any application filed by the 1st, 2nd and 3rd respondents for certification of the intended appeal as a matter of general public importance and thus prayed that it would be in the interest of justice that the notice of appeal be formally deemed as withdrawn and he be awarded costs. | Having therefore considered the application, responses thereto and submissions before us, We now opine as follows:
i.
Rule 38 of the Supreme Court Rules 2020 stipulates that an appeal to this court shall be filed within 30 days of the date of filing the notice of appeal, where the appeal is as of right; or 30 days after the grant of certification, where such certification is required. As we enunciated in Arvind Shah & 7 others vs Mombasa Bricks & Tiles Ltd & 5 others; SC Application No.3 (E008) of 2022, rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance.
ii.
In the application before us, the 1st, 2nd and 3rd respondents indicate their intention to invoke this court’s jurisdiction under article 163 (4) (b) of the Constitution. This involves certifying their intended appeal as a matter of general public importance. Though they submit that they filed their notice of appeal before obtaining certification rendering the application premature, the 1st, 2nd and 3rd respondents have not provided any evidence to support their assertion considering that the said assertion is vehemently opposed on grounds that the application for certification is non-existent.
iii.
Rule 46 of the Supreme Court Rules provides:
“
(1)
Where a party has lodged a notice of appeal, but fails to institute the appeal within the prescribed time, the notice of Appeal shall be deemed to have been withdrawn, and the court may on its own motion, or on application by any party, make such orders as may be necessary.
(2)
The party in default shall be liable to pay the costs arising, to any person upon whom the notice of appeal was served.”
We are satisfied that the 1st, 2nd and 3rd respondents have defaulted in filing their appeal within the prescribed timeline after filing their notice of appeal. The 1st, 2nd, and 3rd respondents have also not provided any justification for the continued existence of the notice of appeal on this court’s record beyond the period permitted by rules 36 and 38 of the Supreme Court Rules.
iv.
At any rate, as we enunciated in Kabuito Contractors Ltd v the Attorney General; SC Civil Application No E025 of 2023, if the 1st, 2nd and 3rd respondents pursue their application for certification before the Court of Appeal and succeed, they have sufficient time to move this court under the relevant rule.
v.
On the issue of costs, bearing in mind that costs follow the event as enunciated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR and rule 46 (2) that the party in default in instituting the appeal shall be liable to pay the costs arising; we see no reason to deny the respondents costs as prayed.
8.
Consequently, and for the reasons aforesaid, we make the following orders:
i.
The notice of motion dated September 19, 2023 and filed on 21st September, 2023 be and is hereby allowed.
ii.
The notice of appeal dated August 8, 2023 lodged by the 1st, 2nd and 3rd respondents in the first instance at the Court of Appeal even date regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be and is hereby deemed to have been withdrawn.
iii.
The 1st, 2nd and 3rd respondents shall bear the costs hereof.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/97/eng@2023-11-10 |
Application E030 of 2023 | Nairobi Bottlers Limited v Ndung’u & another (Application E030, E034 & E038 of 2023 (Consolidated)) [2023] KESC 96 (KLR) (10 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 10 November 2023 | 2,023 | Nairobi | Civil | Nairobi Bottlers Limited
Applicant
and
Mark Ndumia Ndung’u
1st Respondent
Coca Cola Central, East & West Africa Ltd
2nd Respondent | [2023] KESC 96 (KLR) | null | Brief facts
The appeal was filed out of time on grounds that the certified copies of the trial court’s judgment and proceedings were availed to the petitioner after the time for filing had lapsed. The appellant filed the appeal along with an application for extension of time for filing the appeal out of caution in the event that the court found that an appeal was actually filed out of time. Opposed to the appeal, the 1st respondent filed an application to have the appeal struck out for having been filed out of time without leave. | Accordingly, and for the reasons afore-stated, we make the following orders:
i.
The applicant’s notice of motion dated August 16, 2023 and filed on August 21, 2023 is hereby dismissed.
ii.
The applicant’s notice of motion dated September 29, 2023 and filed on October 2, 2023 is hereby dismissed.
iii.
The 1st respondent’s notice of motion dated September 18, 2023 and filed on September 19, 2023 is hereby allowed.
iv.
The applicant’s appeal, SC Petition No E024 of 2023 dated August 16, 2023 and filed on August 21, 2023 is hereby struck out.
v.
The 1st respondent shall have costs of the three motions and the appeal.
It is so ordered | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/96/eng@2023-11-10 |
Petition (Application) E018 of 2023 | Republic v Mwangi; Equality Now & another (Intended Interested Party); Initiative for Strategic Litigation (ISLA) & 3 others (Intended Amicus Curiae) (Petition (Application) E018 of 2023) [2023] KESC 99 (KLR) (Civ) (10 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola | 10 November 2023 | 2,023 | Nairobi | Civil | Republic
Petitioner
and
Joshua Gichuki Mwangi
Respondent
and
Equality Now & Center For Rights Education And Awareness (CREAW)
Intended Interested Party
Nathan Khaemba Makokha & Hesbon Onyango
Intended Interested Party
and
Initiative For Strategic Litigation (ISLA)
Intended Amicus Curiae
Kenya Legal And Ethical Issues Network On Hiv & Aids (KELIN)
Intended Amicus Curiae
Federation Of Women Lawyers Kenya (FIDA)
Intended Amicus Curiae
Women's Link Worldwide (WLW)
Intended Amicus Curiae | [2023] KESC 99 (KLR) | null | Brief facts
The respondent, Joshua Gichuki Mwangi, was convicted of defilement under the Sexual Offences Act, 2006. Several parties applied to join the Supreme Court proceedings: two sets of interested parties sought to challenge or defend the constitutionality of mandatory minimum sentences, while a group of NGOs applied as amici curiae to offer comparative legal perspectives and advocate for victims’ rights. The applications were grounded in public interest and constitutional interpretation concerning sentencing, mitigation, and victims’ protection. | Having considered the applications, responses, and submissions before us,
We now opineas follows:
i.
Rule 24 of the Supreme Court Rules, 2020 provides that:
“
(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.
This Court has on numerous occasions pronounced itself on the criteria for admission as an interested party. Specifically, the Court laid guiding principles for admission of an interested party in Mumo Matemo case. These principles were reiterated and reaffirmed in Muruatetu case as follows:
“
(37)
From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
i.
The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii.
The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii.
Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
v.
It is common ground that the origin of the dispute before this Court can be traced to criminal proceedings where the respondent was charged with the offence of defilement and was subsequently tried, convicted, and sentenced in accordance with the Sexual Offences Act, 2006. Criminal proceedings have a direct impact on an individual’s fundamental rights and freedoms as enshrined in the the Constitution. Therefore, the Court must exercise caution in permitting the involvement of third parties, including interested parties and amici curiae, as their participation may lead to the proliferation of the issues brought for determination by such an individual.
vi.
In the above context, and turning to the 1st joint intended interested parties’ case, they seek to generally address the Court on the utility of minimum mandatory sentences on victims of sexual violence, and the gravity, extent, and impact of such sentences. Having carefully considered their Submissions, it is our view that the 1st joint intended interested parties raise issues of public interest generally and have not shown any personal stake in the matter, nor the prejudice they stand to personally suffer in case of non-joinder. Furthermore, the issues they seek to submit on have largely been addressed by the petitioner in this matter and there is no value in them repeating the same issues in different words. We, therefore, find that the 1st joint intended interested parties have not met the conditions for admission as interested parties.
vii.
Likewise, the 2nd joint intended interested parties have not shown any personal stake in this specific matter nor the prejudice they will suffer if not joined as interested parties. While they may be in the same position as the respondent, having been convicted of sexual offences, there is nothing they will add to the petition which the respondent cannot. Furthermore, Hesbon Onyango Nyamweya having successfully challenged the minimum mandatory nature of the sentences prescribed in the Sexual Offences Act at the High Court in Machakos, in Maingi & 5 others v Director of Public Prosecutions & another (supra) he is at liberty to pursue the same separately, if at all it has been appealed against. Consequently, we find that the 2nd joint intended interested parties have not met the conditions for joinder in the manner they seek.
viii.
We now turn to the application for admission as amici curiae by the joint intended amici curiae. In this context, the instructive provision is rule 19 of the Supreme Court Rules, 2020 which provides as follows:
“
19.
(1)
The court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the court.
Participation of friends of the court.
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.”
iX.
This Court has also set the guiding principles applicable in determining an application for joinder as amicus curiae in the Mumo Matemu case where it stated as follows:
“
An amicus brief should be limited to legal arguments. 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.
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.
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.”
X.
Having considered the proposed amici brief, we note that the joint intended amici curiae intend to address the Court on points of law that no party in the proceedings has addressed including the State’s obligation under article 21 (1) of the Constitution and comparative lessons on the application of mandatory minimum sentences from other jurisdictions. In the circumstances, we are inclined to allow the application for admission of the joint intended amici curiae. However, their participation shall be limited to the filing of an amici brief only which they have already done and which the court will consider in determining the appeal.
Xi.
While it is settled that costs follow the event, we are alive to the fact that the issues raised by the parties in the instant matter constitute public interest issues. In these circumstances, we find that each party do bear their own costs.
14.
Accordingly, we make the following Orders:
a.
The Notice of Motion dated August 21, 2023 is hereby dismissed.
b.
The Notice of Motion dated August 24, 2023 is hereby dismissed.
c.
The Notice of Motion dated August 23, 2023 is hereby allowed and the participation of the amici shall be limited to the court’s consideration of the amici brief already on record.
d.
Each party shall bear their costs.
15.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/99/eng@2023-11-10 |
Petition (Application) 19 (E027) of 2021 | Senate & 3 others v Speaker of the National Assembly & 10 others (Petition (Application) 19 (E027) of 2021) [2023] KESC 95 (KLR) (10 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 10 November 2023 | 2,023 | Nairobi | Civil | The Senate
1st Appellant
The Speaker of Senate
2nd Appellant
Senate Majority Leader
3rd Appellant
Senate Minority Leader
4th Appellant
and
The Speaker of the National Assembly
1st Respondent
The National Assembly
2nd Respondent
The Council of County Governors
3rd Respondent
The Attorney General
4th Respondent
Institute for Social Accountability
5th Respondent
Kenya Medical Supplies Authority
6th Respondent
Mission for Essential Drugs and Supplies
7th Respondent
Katiba Institute
8th Respondent
Pharmaceutical Society of Kenya
9th Respondent
Elias Murundu
10th Respondent
The Commission on Revenue Allocation | [2023] KESC 95 (KLR) | null | Brief facts
On July 11, 2023, when the matter was mentioned before the full court, parties indicated that they were engaged in out of court negotiations with the aim of settling the dispute. Consequently, the court issued directions which were subsequently amended on July 18, 2023, granting the parties up to September 11, 2023 to complete the ongoing negotiations. On September 7, 2023, a few days before the lapse of the period granted to the parties to try and reach a settlement, the Attorney General (4th respondent) filed the instant application for orders for the court to enlarge and extend time for parties to conclude the ongoing out of court discussions aimed at recording a consent on the appeal and the cross-appeal by at least 120 days. | Taking into account the 1st to 4th appellants’ grounds of opposition to the application and submissions filed on their behalf dated October 2, 2023 to the effect that; the application is bad in law and an abuse of the court process; the applicant has not attached any evidence to the application to demonstrate that the negotiations are ongoing; that the application is an afterthought aimed at frustrating the appellants in their attempt to pursue justice; and finally that the application is an attempt to delay hearing and determination of the matter; and having considered the application, affidavits and rival arguments by the parties, we now opine as follows:
10.
Aware that this matter was certified as ready for hearing, but for the efforts of the parties to attempt an out of court settlement; that on July 11, 2023 at the request of the parties, it was taken out to give them a chance towards this end and to record a consent on or before September 11, 2023. However, four days before the lapse of the period granted, the applicant has instituted the instant application praying that time for lodging a consent compromising the appeal be enlarged.
11.
Whereas this court by the provisions of rule 15(5) of the Supreme Court Rules, 2020, has jurisdiction to extend the time limited by either the Rules or by a decision of the court and guided by the principles well enunciated in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No 16 of 2014; [2014] eKLR; and
12.
Taking into account that this motion was filed on September 7, 2023, before the lapse of the date set by our amended directions issued on July 18, 2023, we are persuaded that there has not been any undue delay in filing the instant application as it was filed four days prior to the deadline of September 11, 2023.
13.
Whereas the appellants have opposed this application for the reason that the applicant has not provided proof of any ongoing negotiations, we recall and it is apparent on the face of the record that when the appeal was mentioned before the full court on July 11, 2023, the appellants through their counsel Mr Okongo Omogeni, SC appearing together with Mr Letangule, Ms Thanji and Ms. Nduta, confirmed that indeed a technical team comprising representatives from both Houses were engaged in negotiations.
14.
Satisfied ourselves on the strength of the correspondence from the Office of the Prime Cabinet Secretary and several letters exchanged between the Offices of the Clerks of both Houses and the Office of the Prime Cabinet Secretary, resolutions from the various meetings and a of the draft Houses of Parliament (Bicameral Relations) Bill, 2023 by the National Assembly, all which are annexed to the applicant’s Affidavit in support of the application; that consultative meetings involving the leadership and technical teams from both Houses have been ongoing with the aim of developing proposals on the processing of Bills. Further, the 1st and 2nd respondents have in their replying affidavit detailed the series of events that have occurred since February 2023 to date, all in an effort to settle the dispute pending before the court. Then, finally, there was the August/September break for both Houses. Consequently, we find and come to the conclusion that the reasons for the delay of settling the matter out of court have been sufficiently explained and are plausible.
15.
Evidently, there are efforts by the parties towards reaching a settlement in this dispute and seeing the significant progress so far made as deposed in the Affidavit evidence of Shadrack J. Mose and Samuel Njoroge, in terms of the two Bills, with one having passed through the first reading. And in addition, we continue to be guided in steering this dispute towards a possible settlement by the provisions of section 29C (1) of the Supreme Court Act that provides that;
“In the conduct of proceedings, the court shall promote and encourage alternative dispute resolution mechanisms, in accordance with article 159 (2) (c) of the Constitution.”
16.
Further, in line with the court’s decision in Council of Governors v Attorney General & 7 others, Reference 2 of 2017; [2019] eKLR we reiterate the statement in the following passage:
“
(64)
We reiterate that article 159(2)(c) is an important pillar of the Constitution. It is trite law that the Constitution is a living document in which life should constantly be breathed into. The provisions of the Constitution are not mute but should be nourished and sustained by our courts among other entities. Consequently, the need to encourage ADR in dispute resolution cannot be gainsaid. This burden rests on all persons and government entities by virtue of article 2(1) of the Constitution which provides that the Constitution binds all.
…
(67)
Secondly, co-operation among various state functionaries is key. Article 189 of the Constitution provides for cooperation between the two levels of governments: national and county governments. That in case of a dispute between the two levels of government, every effort to settle the dispute under the national law should be pursued. Hence this court would not allow such a requirement of the Constitution to be abdicated.” [our emphasis]
17.
Guided accordingly by the foregoing, we find that the applicant has satisfied the strictures under rule 15(2) together with the principles under Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (supra) to warrant the granting of leave to extend time within which to conclude the negotiations.
18.
Consequently, we are minded to grant the parties a final opportunity of 120 days from the date of this ruling considering the averment by the 1st and 2nd respondents that Parliament will again be proceeding on recess during part of this period.
19.
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 exercise of our discretion, we defer the costs of this application which shall abide the outcome of the negotiations.
20.
Accordingly, we make the following orders:
i
The applicant’s notice of motion dated September 7, 2023 be and is hereby allowed to the extent that parties are granted, from the date of this ruling, a final one hundred and twenty(120) days extension to complete out of court negotiations and record a consent to compromise this appeal.
ii.
In the event that parties reach a settlement they shall file the written terms of the settlement before this court on or before the expiration of the one hundred and twenty (120) days aforesaid.
iii.
In any case the appeal shall be mentioned before the hon Deputy Registrar on March 15, 2024 to confirm the status.
iv.
Should the parties fail to reach a settlement, the matter shall be set down for hearing on a priority basis.
v.
Costs of this application shall abide the outcome of negotiations.
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/95/eng@2023-11-10 |
Application E017 of 2023 | Dari Limited & 5 others v East African Development Bank (Application E017 of 2023) [2023] KESC 93 (KLR) (7 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 7 November 2023 | 2,023 | Nairobi | Civil | Dari Limited
1st Applicant
Raphael Tuju
2nd Applicant
Mano Tuju
3rd Applicant
Alma Tuju
4th Applicant
Yma Tuju
5th Applicant
SAM Company
6th Applicant
and
East African Development Bank
Responden | [2023] KESC 93 (KLR) | null | Brief facts
On October 6, 2023 the Supreme Court (the court) dismissed the applicants’ application for conservatory orders on the grounds that: although the applicants had satisfied the arguability test, they had failed to demonstrate that the appeal would be rendered nugatory if the conservatory orders were denied. They also failed to satisfy the public interest threshold. Aggrieved by parts of that ruling, the applicants filed the instant application for review. | 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 Fredrick Otieno Outa v Jared Odoyo Okello & 3 others (supra), 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, 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.”
7.
Applying these conditions to this application, we find that the applicants have failed to demonstrate that the ruling of this court of October 6, 2023 was obtained by fraud, deceit, misrepresentation of facts or in what way it is a nullity. What the applicants have tried to do is to introduce new evidence, which was not before the court during the application for conservatory orders, in the quest to persuade this court to change its mind and rule in their favour.
8.
Consequently, 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 ruling. The aim of this application is to avail the applicant a second bite at the cherry. For these reasons, the application lacks substance and is disallowed.
9.
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 exercise of our discretion, the applicants shall bear the costs of this application.
10.
Accordingly, we make the following orders:
i.
The notice of motion dated October 12, 2023 and filed on October 13, 2023 is hereby dismissed.
ii.
The costs of this application shall be borne by the applicants.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/93/eng@2023-11-07 |
Petition E012 of 2023 | Dari Limited & 5 others v East African Development Bank (Petition E012 of 2023) [2023] KESC 94 (KLR) (7 November 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 7 November 2023 | 2,023 | Nairobi | Civil | Dari Limited
1st Applicant
Raphael Tuju
2nd Applicant
Mano Tuju
3rd Applicant
Alma Tuju
4th Applicant
Yma Tuju
5th Applicant
S.A.M Company Limited
6th Applicant
and
East African Development Bank
Respondent | [2023] KESC 94 (KLR) | null | Brief facts
The application sought for among other orders; the striking out of the respondent’s replying affidavit sworn by Justa Kiragu and dated May 12, 2023; in the alternative, the court to grant leave to the petitioner to adduce additional evidence in terms of the affidavits of the 2nd applicant, Edward Okundi and Amos Aketch dated October 26, 2023 (the affidavits); in further alternative, the court to grant the petitioners the opportunity to file a rejoinder to the respondent’s response. The 2nd applicant contended that in response to the petition of appeal filed therein, the respondent filed a replying affidavit sworn by Justa Kiragu on May 12, 2023 which did not respond to the petition of appeal but instead, relying on the documents in the record of appeal proceeded to give a slanted narrative of the history of the engagements between the parties.
In the alternative, if the court was not minded to strike out the response, then to affirm the constitutional right to fair hearing, leave should be granted to the petitioners to adduce additional evidence, in terms of the affidavits. It was further argued that it was prejudicial to the petitioners to proceed to the hearing of the petition of appeal without the additional evidence contained in the affidavits. | Having therefore considered the application, supporting affidavit, affidavit in rejoinder and submissions before us by the petitioners on one hand and the replying affidavit on behalf of the respondent on the other hand, We now opine as follows:
i.
By the ruling made on October 6, 2023, we struck out the supplementary affidavits by the petitioners for want of procedure. We observed that the applicants did not invoke rule 26 in seeking to adduce additional evidence despite acknowledging that the supplementary affidavits sought to rebut averments made by the respondent. It is apparent that in filing the present application, the petitioners seek to re-introduce the contents of the said affidavits that were otherwise struck out. This in our view is akin to ingeniously seeking to discreetly review our ruling. The parties appear to be rehashing their arguments made in the application leading to the above ruling.
ii.
The main prayer before the court is for the striking out of the replying affidavit sworn by Justa Kiragu on May 12, 2023. In the alternative, the petitioners have sought leave to adduce additional evidence by way of Affidavits by Raphael Tuju, Edward Okundi and Amos Oketch with the affidavits to be deemed as filed and part of the record in the petition of appeal. In the further alternative, the petitioners pray for an opportunity to file a rejoinder.
iii.
Rule 42 of the Supreme Court Rules provides for response to petition of appeal in the following manner:
“42. (1) Unless otherwise directed by the court, a respondent shall file grounds of objection, an affidavit, or both, within fourteen days of service of the petition.”
The tenor of the above provision is that the respondent was at liberty to choose whether to file grounds of objection and/or affidavit. In this instance, the respondent opted to file the affidavit sworn by Justina Kiragu. This rule does not specify the form or content of the said response to petition. The petitioners having filed their petition and record of appeal, it is not upon the them to dictate the manner in which a respondent should file its response. The petitioners are at liberty to attack the contents of the response during the hearing of the petition, within the petition itself and not through an application such as the one before us. As such we find the prayer to strike out the replying affidavit to be premature and unmerited.
iv.
As we noted in the ruling of October 6, 2023, the applicants hinge their appeal on the question of recognition and enforcement of foreign judgments in Kenya in relation to articles 50 and 25 of the Constitution. Having declined to strike out the Replying Affidavit, does the alternative prayer for additional evidence avail? The petitioners submit that our order for striking out their affidavits was to enable them comply with the process. The petitioners have, however, sought the introduction of additional evidence as an alternative prayer.
v.
Taking the application in its context, the petitioners have not explained or justified their failure to adhere to the provisions of rule 26 of the Supreme Court at the first instance. Their attempt to seek leave to adduce additional evidence reeks of a belated afterthought with the objective of filling up gaps in its case. It is apparent that our ruling triggered the reaction by the petitioners. We therefore do not find merit in this prayer. With this finding, we do not find it necessary to interrogate the nature and threshold of the evidence sought to be adduced as clearly, the applicants are litigating/pleading in instalments. In the same vein, the prayer to deem the affidavits sworn by the 2nd petitioner, Edward Okundi and Amos Oketch as duly filed is rendered superfluous.
vi.
On the further alternative prayer for opportunity to file a rejoinder to the respondent’s response, rule 42(2) mandates the petitioner to file and serve a rejoinder within seven days of being served with the response. We understand that the honourable Deputy Registrar issued directions on the filing of rejoinder which directions the petitioners did not heed. The petitioners have neither sought to extend time within which to file the rejoinder nor explained the reasons for non- compliance. We are not persuaded that the supplementary affidavits struck out in our ruling of October 6, 2023 were intended to be the rejoinder. Those affidavits were filed specifically in response to the replying affidavit in respect of the application for conservatory orders and to strike out supplementary affidavits. At no point was the court dealing with the substantive petition. This points to the inexorable conclusion that the prayer to file a rejoinder is disallowed.
vii.
It is prudent that the matter proceeds to hearing during which the parties shall advance their respective cases for determination by the court.
viii.
On costs, it is a settled principle that they follow the event. However, since the substantive dispute is still pending, it is only proper that the costs abide the outcome of the appeal.
37.
Consequently, and for the reasons aforesaid we make the following orders:
i.
The notice of motion application dated October 26, 2023 and filed on October 27, 2023 be and is hereby dismissed.
ii.
Costs of the application shall abide the outcome of the appeal.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/94/eng@2023-11-07 |
Petition (Application) E015 of 2023 | County Assembly of Migori v Aluochier & 2 others (Petition (Application) E015 of 2023) [2023] KESC 92 (KLR) (Civ) (27 October 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 27 October 2023 | 2,023 | Nairobi | Civil | County Assembly of Migori
Applicant
and
Isaac Aluoch Polo Aluochier
1st Respondent
Vincencia Awino Kionge
2nd Respondent
Charles Owino Likowa
3rd Respondent | [2023] KESC 92 (KLR) | null | null | Taking into account the pleadings and submissions of the parties, we now opineas follows:
i.
We must first settle the issue raised by the 2nd Respondent that the appeal before us is premature and ought to be struck out and without even going into the merits of the application before us.
ii.
In that context, we note that the judgment by the Court of Appeal sought to be appealed against is brief and was delivered on May 26, 2023, with no reasons, pursuant to Rule 34(6) of the Court of Appeal Rules, 2022. The Court’s direction on that day was that the reasons for the judgment would be delivered on September 22, 2023. We are not aware whether the reasons were delivered on that day but it matters not because there is no reasoned judgment before us.
iii.
In Jimi Richard Wanjigi v Wafula Chebukati & 2 others, SC Application No 6 of 2022 and Oscar Oluoch Ouma Abote v Loice Akoth Kawaka & 4 others; SC Petition No 16 of 2022, we specifically held that there can be no basis upon which a petition of appeal can be jurisprudentially determined in the absence of reasons for an impugned judgment. This in effect, renders any hearing of the Applicant’s petition of appeal before this Court, untenable, in the absence of the reasons for the Court of Appeal judgment. The reason for this finding is obvious-we cannot determine whether we have jurisdiction to determine the petition of appeal without having sight of a wholesome judgment from the Court of Appeal. Jurisdiction, it has been said often, is everything and without an appellant laying a firm basis for it, no court can be properly moved.
iv.
In the same limb, the 1st Respondent’s cross appeal, also similarly grounded on the reasons in the Court of Appeal judgment, lacks any legs to stand on and must meet the same fate as the petition of appeal. It would be a waste of precious judicial time and resources to consider whether it is properly onrecord or not.
v.
In effect, having found that the petition of appeal is not properly before us, we are unable to consider the application nor can we grant or deny the orders sought therein.
vi.
On costs, although they ordinarily follow the event, no party has succeeded in any manner and so each shall bear its costs of the proceedings before us.
9.
Consequently, and for reasons aforesaid, we make the following Orders:
Orders:
i.
The Notice of Motion dated and filed on August 3, 2023 is struck out;
ii.
The Petition of Appeal dated June 12, 2023 as well as the Cross Appeal dated June 27, 2023 as filed by the 1st Respondent are hereby struck out.
iii.
Each party shall bear their costs of the proceedings before us.
10.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/92/eng@2023-10-27 |
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) [2023] KESC 91 (KLR) (6 October 2023) (Ruling) | Ruling | Supreme Court of Kenya | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Barclays Bank Of Kenya Limited (Now Absa Kenya PLC)
Petitioner
and
Commissioner Of Domestic Taxes (Large Taxpayer’s Office)
Respondent
and
Kenya Bankers Association
Interested Party
Mastercard Asia Pacific (PTE) Limited
Interested Party | [2023] KESC 91 (KLR) | null | Brief facts
The applicant (an interested party in the suit) sought leave to adduce additional evidence in support of the applicant’s replying affidavit. The applicant contended that the applicant was joined at the final stage of appeal (before the Supreme Court) and therefore had no opportunity to produce evidence before the superior courts below. The applicant further contended that the evidence in question was credible, authentic, was directly relevant to the issues presented for determination, and would have a significant impact on the final verdict of the Supreme Court.
The respondent opposed the application on grounds that the applicant was not a primary party to the suit and as such could neither frame new issues nor adduce additional evidence. The respondent claimed that the applicant had also failed to meet the principles set under case law to adduce additional evidence. | We now opine as follows: -
i.
The applicant is duty bound to satisfy all the elements under the provisions of section 20 of the Supreme Court Act, 2011; rule 26 of the Supreme Court Rules, 2020; and the principles set out in the Mohamed Abdi Mahamud case (supra);
ii.
This court in the said decision emphasized that even with the application of the set principles, the court will only allow additional evidence on a case-by-case basis and even then, sparingly and with abundant caution;
iii.
It is evident that the additional evidence sought to be introduced is either part of the record before this court or in the public domain both locally and internationally; and
iv.
Had the applicant’s advocates on record exercised due diligence and taken time to peruse the court’s record, they would have spared this court’s judicial time as well as their client’s and other parties’ time and resources.
12.
Applying these principles to the application, we arrive at the inevitable conclusion that none of the conditions for the grant of leave to adduce additional evidence have been satisfied. Similarly, for reasons aforesaid, we find the instant application frivolous and an abuse of court process.
13.
Consequently, we make the following orders:
i.
The motion dated July 6, 2023 and filed on July 10, 2023, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicant.
It is so ordered. | null | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/91/eng@2023-10-06 |
Petition (Application) E012 of 2023 | Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023 & Application E017 of 2023 (Consolidated)) [2023] KESC 90 (KLR) (6 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Dari Limited & 5 others v East African Development Bank | [2023] KESC 90 (KLR) | null | Brief facts
The Supreme Court in the instant ruling was determining over three applications. The applicants filed the first application in which they sought conservatory orders staying the execution of a judgment of the Court Appeal which condemned the applicant to pay USD 15,162,320.95 to the respondent for default in repayment of a loan arising from a facility agreement.
The other two applications were by the respondent which sought to strike out the applicant’s supplementary affidavits. The distinguishable difference between the two applications was that one application sought to strike out the affidavits on grounds that they presented privileged documents which had been improperly and/or unlawfully obtained. The second application contended that the documents presented in the affidavits did not form part of the record of the High Court and Court of Appeal and as such ought not to be considered and or interrogated for purposes of determination of the petition as they did not form part of the record before the Supreme Court.
Issues
Whether the enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court.
Whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court.
Whether the Supreme Court would strike out supplementary affidavits which effectively introduced additional and fresh evidence without following the prescribed legal procedure.
Held
Empowered by rule 40(3) of the Supreme Court Rules, the Supreme Court could, on application of any party, direct certain documents to be excluded from the record, and an application for such exclusion could be made orally. The annexures adduced by the applicants in the supplementary affidavit were not produced in the superior courts below.
It was a party’s duty to satisfy all the elements under the provisions of section 20 of the Supreme Court Act that guided the court in admitting additional evidence. Under rule 26, a party that sought to adduce additional evidence should make a formal application to the court. The supplementary affidavits sought to rebut averments made by the respondent. However, that did not extend to allowing the applicants to introduce additional evidence through the backdoor. Proper procedures as prescribed by the law must be followed. The applicants failed to do so. The supplementary affidavits were therefore struck out.
Under section 21 (2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, the Supreme Court had inherent power to make any ancillary or interlocutory orders that it deemed fit to make as it may be necessary for the ends of justice or prevent abuse of the process of the court. To consider whether to entertain the interlocutory relief sought, an applicant must demonstrate that the appeal was arguable and not frivolous; that if stay was not granted the appeal will be rendered nugatory; and that it was in the public interest that the order of stay was granted.
The proceedings pending before the High Court did not directly arise in the instant appeal. The impugned judgment by the Court of Appeal made no reference to the instant proceedings. The stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of the High Court that declined to extend the stay orders that had been issued by the Court of Appeal. The applicants had not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, the pending proceedings before the High Court were beyond the Supreme Court’s remit.
Questions on the arguability of an appeal did not call for the interrogation of the merits of the appeal and the court, at the preliminary stage, must not make any definitive findings of either fact or law. An arguable appeal was not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinged their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violated article 50 as read with article 25 of the Constitution. That was an issue that had arisen through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. The applicants had an arguable appeal, the merit of which could only be interrogated at the hearing.
In determining whether the subject matter to be stayed was reversible, a court had to balance the interest of the applicant vis-à-vis that of the respondent who was seeking to enjoy the fruits of its judgment. The balance of probability favoured the respondent. Though the respondent held securities being charges over the suit properties which were located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent was colossal with a decretal sum of USD 15,162,320.95 that continued accruing interest. The appeal before the court was founded on the enforcement and recognition of a foreign judgment as against the Supreme Court’s judgment in Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment)
The money decree issued was a result of the findings on the primary dispute. The enforceability and validity of the facility agreement dated April 10, 2015 as between the different parties was a distinct issue whose determination accrued from a different cause of action. The parties were, in any event, engaged before the High Court.
The respondent remained a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent did not suffice. The applicants had not demonstrated the extent to which, if at all, the alleged immunity accrued and applied to the instant case. The court could not be called upon to make a determination on immunity or otherwise of the respondent, as the issue was not on appeal before the Supreme Court, having not been subject of judicial determination in the superior courts below.
The dispute between the parties arose out of the facility agreement entered into by the parties on April 10, 2015 and the terms thereunder. They were at best private interests that were at stake that did not have a bearing on public interest as the settings were specific to the parties in the dispute. Enforcement of a foreign judgment was not in and of itself an affirmation of public interest until it was interrogated further as could be applicable on a case to case basis. Prima facie, the applicants’ dispute was a matter of “private international law” or “conflict of laws”.
It was premature for the Supreme Court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. That position extended to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. The applicants had not demonstrated that they could surmount the public interest criteria for exercise of our discretion in their favour. | In relation to the proceedings pending before the High Court, we note that they do not directly arise in the appeal before us. The impugned judgment by the Court of Appeal makes no reference to these proceedings. Having interrogated the record, it is evident that the stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of Kasango J in HCCC E469 of 2019 on July 8, 2020 that declined to extend that stay orders that had been issued by the Court of Appeal in Civil Appeal No 49 of 2020. The applicants have not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, these pending proceedings before the High Court are beyond our remit.
30.
In saying so, we align ourselves to our findings in the Kenya Plantation & Agricultural Workers’ Union v Kenya Export Floriculture, Horticulture And Allied Workers’ Union (Kefhau); represented by its Promoters; David Benedict Omulama & 9 others SC Pet No 4 of 2018; [2019] eKLR where we held as follows:
“
(23)
That the court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties since the alleged causes are live before it. Accordingly, that court should ideally be afforded the first opportunity to express an opinion as to whether the causes filed and being filed before it raise similar questions as to the ones being raised before the Supreme Court. Should the applicants be dissatisfied with the decision of that Court, they shall be free to appeal that decision before the Court of Appeal and subsequently to this court through the normal appellate mechanism. To allow the applicant disregard the courts below and come directly to this court in search of stay orders, would amount to an abuse of the process of court. This was the reasoning of this court in the case of Sum Model Industries Ltd v Industrial & Commercial Development Corporation, SC Application No 1 of 2011; [2011] eKLR.”
It is our finding that since, the proceedings the applicants seek to be stayed are not in the purview of this court, it would only be right to afford the trial court the opportunity to render its decisions and if necessary, the dissatisfied party to follow the appellate hierarchy. This leaves us with the sole prayer for conservatory orders staying the judgment of the Court of Appeal.
31.
On whether an appeal is arguable, we pronounced ourselves in Tanad Transporters Limited & 2 others v Laiser Communications Limited & 2 others, SC Petition No 7 (E009) of 2022 and George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) SC Miscellaneous Application No 7 (E011) of 2021 [2021] eKLR that this question does not call for the interrogation of the merits of the appeal and the court, at this stage, must not make any definitive findings of either fact or law. An arguable appeal is not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinge their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violate article 50 as read with article 25 of the Constitution. This is an issue that has transcended through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. It is our view that this sufficiently demonstrates that the applicants have an arguable appeal, the merit of which can only be interrogated at the hearing.
32.
On the nugatory aspect, the concern is whether what ought to be stayed is allowed to happen is reversible, or not. To establish this, a court has to balance the interest of the applicant vis a vis that of the respondent who is seeking to enjoy the fruits of its judgment. (See Tanad Transporters Limited Case (supra)). The applicants assert that there is imminent danger of eviction from LR No 1055/165 and LR No 11320/3 which the respondent currently holds as securities. That in the event their appeal succeeds, the respondent’s immunity may prevent the applicants from recovering their monies. Conversely, the respondent contends that the amount in question which is owed to them is considerably substantial, and in any case, the applicants can be compensated by way of damages.
33.
Matching the competing arguments under the circumstances, the balance of probability favours the respondent. We say so because, though the respondent currently holds securities being charges over LR No 1055/165 and LR No 11320/3 which are located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent is colossal with a decretal sum of USD 15,162,320.95 that continues accruing interest. The appeal before us is founded on the enforcement and recognition of a foreign judgment as against our judgment in Elly Okong’o Ing’ang’a case. The money decree issued is a result of the findings on the primary dispute as already stated. The enforceability and validity of the Facility Agreement dated April 10, 2015 as between the different parties is, in our view, a distinct issue whose determination accrues from a different course of action. The parties are, in any event, still engaged before the High Court including in High Court Insolvency Cases E001, E002, E003, and E004 of 2020, as consolidated with E469 of 2019.
34.
We are satisfied that the respondent remains a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent does not suffice. This is because the applicants have not demonstrated the extent to which, if at all, the alleged immunity accrues and applies to the present situation. Moreover, we cannot at this stage be called upon to make a determination on immunity or otherwise of the respondent, as the issue is not on appeal before this court, having not been subject of judicial determination in the superior courts below.
35.
Lastly, on the public interest element, we note that although the intended appeal is on the recognition of the foreign judgment, the arguments raised by the applicant with respect to the present application revolve around their grievances with the enforcement of the resultant money decree. Our perusal of the record reveals that the dispute between the parties arose out of the Facility Agreement entered into by the parties on April 10, 2015 and the terms thereunder. These are at best private interests that are at stake that do not have a bearing on public interest as the settings are specific to the parties in this dispute. In our view, enforcement of a foreign judgment is not in and of itself an affirmation of public interest until it is interrogated further as may be applicable on a case to case basis. We think that, prima facie, the applicants’ dispute is a matter of “private international law” or “conflict of laws” as known in other jurisdictions.
36.
It is premature for the court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. This position extends to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. It is our inescapable conclusion that the applicants have not demonstrated to our satisfaction that they can surmount the public interest criteria for exercise of our discretion in their favour.
37.
| Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/90/eng@2023-10-06 |
Petition 17 (E021) of 2022 | Janmohamed S.C (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v Lagat & 4 others (Petition 17 (E021) & 24 (E027) of 2022 (Consolidated)) [2023] KESC 85 (KLR) (Civ) (6 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Janmohamed S.C | [2023] KESC 85 (KLR) | null | Brief facts
The 2nd respondent filed an application contending that the appeal raised no issues of constitutional interpretation. The applicant sought for the application to be struck out and for the firms that filed the petition to be sanctioned for filing frivolous and vexatious petitions.
Issues
Whether the Supreme Court could determine on an application contesting its jurisdiction where it had already ruled that it had jurisdiction in a previous ruling.
Held
In a ruling dated October 28, 2022, the Supreme Court had previously ruled that it had the jurisdiction to entertain the instant matter. The issue of jurisdiction was conclusively determined in the ruling. All other issues raised by the applicant were misguided and did not require the Supreme Court’s attention. The instant application was frivolous, vexatious, and an abuse of the process of court.
Application dismissed. | Upon considering the motion by the 2nd respondent dated June 14, 2023, and lodged on June 15, 2023, pursuant to article 163(4)(a) of the Constitution, sections 12, 15, 21(2) of the Supreme Court Act, No 7 of 2011 and rules 3(4) and (5), 31(6), 40(1) of the Supreme Court Rules 2020, seeking orders, to;
"Stay the determination of the application dated January 13, 2023 for leave to adduce additional evidence; strike out Petition No 17 (E021) of 2022 (as consolidated with Petition No 24 (E027) of 2022); alternatively, in relation to Petition No 17 (E021) of 2022, expunge grounds of appeal pleaded at paragraph 22 (a) to (g) of the petition, with the exception of paragraph 22(d), paragraphs 23 to 59, 71 to 75 setting skeletal arguments in support of the appeal, and paragraphs 76(a),(b),(c),(e) and (f) with the exception of (d) delimitating issues for determination by the Court; sanction and punish the firms of Kinoti Kibe & Company Advocates and Kemboy Law Advocates for filing a frivolous and vexatious petition outside the purview of article 163(4)(a) of the Constitution; and any further orders the court deems fit to grant; and
2.
Upon examining the grounds on the face of the application, supporting affidavit sworn by Mr David K Chelugui on June 14, 2023, and the applicant’s written submissions dated June 14, 2023, wherein it is argued that; the appeal raises no issues of constitutional interpretation or application; of the five issues delimitated by the appellate court for determination, the only constitutional issue is on retrospective application of the Constitution, which was only addressed from a theoretical perspective and did not constitute the ratio decidendi of the impugned judgment; the 1st appellant’s arguments at paragraphs 22(a) to (g) and 27 of Petition No 17 (E021) of 2022 are a unilateral construct of constitutional provisions and not questions addressed or determined by the Court of Appeal; and the issue of retroactive application of the Constitution has not transmuted through the hierarchy of courts, but was raised for the first time before the Court of Appeal; and
3.
Further, noting the 1st appellant’s replying affidavit sworn by Zehrabanu Janmohamed SC on June 29, 2023 and submissions dated June 30, 2023 in opposition, on grounds inter alia that; the applicant’s prayer seeking stay of the determination of the application dated January 13, 2023 has been overtaken by events in view of the ruling delivered on June 16, 2023; that the court’s jurisdiction to entertain the appeal was settled in the affirmative in the ruling of this court delivered on October 28, 2022; and the applicant’s advocate on record, Mr Ahmednasir Abdullahi SC has made unfounded and disparaging remarks against this court, the Deputy Registrar, the disputing parties, and advocates en masse, once again evincing conduct deprecated and admonished by this court in the case of Republic v Ahmad Abolfathi Mohammed & another KESC Petition No 39 of 2018 [2019] eKLR; and
4.
Upon considering the 2nd appellant’s replying affidavit sworn by Jaswant Singh Rai on July 27, 2023 and submissions of even date, to the effect that; the consolidated appeal involves the interpretation and application of the Constitution, thus falls squarely within the ambit of article 163(4)(a) of the Constitution; the proceedings at both the Eldoret Environment and Land Court in Petition No 9 of 2014 and the Court of Appeal in Kisumu Civil Appeal No 159 of 2019 as consolidated with Kisumu Civil Appeal No 254 of 2019, involves interpretation of articles 24, 40 and 259(1) of the Constitution, particularly, the application of the Limitation of Actions Act to the enforcement of fundamental rights and freedoms protected under the bill of rights; and, the question of retrospective application of the Constitution was raised before the trial court in the replying affidavit of Philip Vargese dated November 25, 2014, and ground 4 of the grounds of opposition dated November 25, 2022 but no determination was made; and
5.
Upon noting the applicant’s rejoinder to the 1st appellant’s submissions dated July 18, 2023, and response to the 2nd appellant’s submissions dated August 3, 2023, wherein the applicant faults the 1st appellant’s counsel for making unwarranted remarks against its advocate on record; reiterates that article 24 of the Constitution was not cited, interpreted or applied in the determinative portion of the Court of Appeal’s judgment; and that the Court of Appeal did not interpret or apply article 40 of the Constitution, but only adhered to precedent set by the Supreme Court in the cases of Kiluwa Limited & another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment); and Samuel Kamau Macharia v Kenya Commercial Bank SC Application No 2 of 2011 [2012]eKLR; and
6.
Noting this court’s ruling dated October 28, 2022, on the question of its jurisdiction to determine this appeal, wherein we pronounced ourselves thus:
“[14] …. It is evident that the appeal raises issues involving the interpretation or application of the Constitution, therefore, in keeping with this court’s decision in Lawrence Nduttu, we find that we have the jurisdiction to entertain the appeal and application before us.”
7.
We now determine as follows:
"Having carefully considered the application, responses thereto, and rival submissions by the parties, and guided by this court’s ruling dated October 28, 2022, in this same appeal; we find that the issue as to whether the court has jurisdiction under article 163(4)(a) was conclusively determined in the ruling aforesaid. All other issues raised by the applicant are in the circumstances completely misguided and do not require our attention at all. Consequently, and without saying more, we deem the application before us frivolous, vexatious, and an abuse of the process of court. ' | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/85/eng@2023-10-06 |
Civil Application E025 of 2023 | Kabuito Contractors Ltd v Attorney General (Civil Application E025 of 2023) [2023] KESC 89 (KLR) (Civ) (6 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Kabuito Contractors Ltd v Attorney General | [2023] KESC 89 (KLR) | null | Brief facts
The application sought the review and setting aside of the order of May 26, 2023 by a single judge of the court (the judge) marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No. 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn. The applicant contended that on March 10, 2023, it filed a notice of appeal before the instant court evincing his intention to appeal against the decision of the Court of Appeal. The applicant further contended that the matters in dispute were of general public importance.
The applicant stated that it filed an application for certification dated March 31, 2023 at the Court of Appeal and that by May 22, 2023 the Court of Appeal had not issued directions on the application for certification. The applicant further averred that on May 26, 2023, the court (the judge) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the Supreme Court Rules.
Issues
What were the guiding principles for review of a decision of the Supreme Court made in exercise of discretion? | Upon reading the notice of motion by the applicant dated June 23, 2023 and filed on July 24, 2023, brought pursuant to articles 50 and 163(4)(b) of the Constitution, sections 3A, 15B and 21A of the Supreme Court Act, rules 33 and 36 of the Supreme Court Rules 2020 seeking orders that;
'
This honourable court be pleased to review and set aside its Order of May 26, 2023 by the Honourable Justice Lenaola marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn; and'
2.
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Kithinji Marete on June 23, 2023 wherein he contends that; on March 10, 2023, the applicant filed a notice of appeal before this court evincing his intention to appeal against the decision of the Court of Appeal in Civil Appeal No 638 of 2019, Attorney General v Kabuito Contractors Ltd delivered on March 3, 2023 overturning the judgment in HCCC No 284 of 2008 issued in favour of the applicant; the matters in dispute being of general public importance, the applicant filed an application for certification dated March 31, 2023 at the Court of Appeal; by May 22, 2023 the Court of Appeal had not issued directions on the application for certification; on May 26, 2023, this court (Lenaola, SCJ) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the court’s Rules; and that no appeal can be filed until the same is certified as a matter of general public importance; and
3.
Upon considering the applicant's submissions dated June 23, 2023 and filed on June 24, 2023 in which the applicant submits that; the court has discretion under sections 3A and 21A of the Supreme Court Act to review any of its decisions in instances where the court considers it meritorious, exceptional and in the public interest; the application is meritorious because the order subject of the application was grounded on failure to institute its appeal within the prescribed time; the notice of appeal deemed withdrawn by the court was proper pursuant to rule 36 of the Supreme Court Rules, 2022 and that rule 36(4) provides that it is not mandatory to obtain certification at the Court of Appeal before filing the notice of appeal; rule 38(1)(b) of the Supreme Court Rules provides that an appeal to this court where certification is required ought to be filed within 30 days of the grant of certification; by the time of grant of the order of May 26, 2023, the applicant was yet to receive any directions from the Court of Appeal on its application for certification; in issuing the order, the Judge was not aware of the foregoing proceedings and proceeded in the mistaken belief that it was the applicant’s mistake in not lodging an appeal within the prescribed period; the applicant is keen on pursuing the appeal as evidenced by the filing of the notice of appeal as was held by this court in Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Petition 18 (E020) of 2022) [2023] KESC 28 (KLR) (21 April 2023)(Ruling);
'should the order of the judge not be reviewed and set aside, the applicant will suffer grave injustice as it shall be deprived of the right to fair hearing as provided under article 50 of the Constitution; and'
4.
Upon considering the replying affidavit sworn on behalf of the respondent on August 4, 2023 by Emmanuel Kiarie, Principal State Counsel in the office of the respondent and filed on August 7, 2023 where it opposes the application on the grounds that; the applicant has failed to establish any new and important matters of evidence which were not within its knowledge after the exercise of due diligence or that such matters or evidence could not be produced by it at the time when the order of May 26, 2023 was issued by Justice Lenaola; it was not necessary to obtain certification before lodging the notice of appeal on matters of general public importance and the application lacks merit and should be dismissed. The deponent also downplays the matters which the applicant will ultimately seek certification on before this court for lack of lacunae in the law of contract and failure to specify the articles of the Constitution for which the matters alluded to will assume a constitutional trajectory.
5.
Having therefore considered the application, response, and submissions before us, we now opine as follows:
i.
Section 23(C) of the Supreme Court Act confers upon the court the jurisdiction to review the decision of a single Judge by five or more judges, upon application by a party aggrieved by the decision of a single judge.
ii.
This court set the guiding principles for review of a decision of the court made in exercise of discretion in Parliamentary Service Commission v Martin Nyaga Wambora & others SC Application No 8 of 2017; [2018] eKLR where it, inter alia, stated that;
(31)
…
vi.
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise [of] 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.'
iii.
In the instant application, the applicant contended that the order of May 26, 2023 deeming the notice of appeal as withdrawn was made by the single judge, unaware of the pending certification application at the Court of Appeal. Rules 36(1) and (4) of the Supreme Court Rules 2020 provide that:
(1)
A person who intends to make an appeal to the court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal…
(4)
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.' (Emphasis ours).
iv.
On the other hand, rule 38(1) of the Supreme Court Rules provides for the timelines for filing an appeal in the following manner:
(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.'
v.
The court has discretion under rule 46(1) of the Supreme Court Rules, 2020 on its own motion, or on application by any party, to make such orders as may be necessary in instances where a party lodges a notice of appeal but fails to institute the appeal within the prescribed time.
vi.
Taking the above into consideration, has the applicant satisfactorily demonstrated that the Judge misdirected himself in the exercise of the powers conferred under rule 46(1) and as a result arrived at a wrong decision? Or is it manifest from the decision that the judge was wrong and as a result, there has been an apparent injustice? The answers to the above questions are in the negative. We note that although the applicant has attached a notice of appeal and an application for certification at the Court of Appeal, there is no evidence that the notice, though filed, was lodged before the Registrar of the Court of Appeal or that the application for certification filed at the Court of Appeal was eventually lodged.
vii.
Furthermore, the applicant made no attempt to justify the continued existence of the notice of appeal on the court’s record for a period outside that permitted by rules 36 and 38 of the Supreme Court Rules. The belated explanation by the applicant does not suffice at this late stage. In any event, if the application before the Court of Appeal succeeds -if it exists at all- the applicant will have sufficient time to move this court under the relevant rule. And if it does not succeed, the procedure for review of that decision is available to the applicant.
viii.
Having stated as above, we concur with the decision made by the Honourable Justice I Lenaola on May 26, 2023 deeming the notice of appeal withdrawn. Consequently, the applicant’s application dated June 23, 2023 must be dismissed.
ix.
The notice of appeal having been deemed as withdrawn, we see no reason to award costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/89/eng@2023-10-06 |
Application E023 of 2023 | Kiarie v Dyer & Blair Investment Bank Limited & another (Application E023 of 2023) [2023] KESC 87 (KLR) (6 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Kiarie v Dyer & Blair Investment Bank Limited & another | [2023] KESC 87 (KLR) | null | Brief facts
The appellant had filed an application for review of the ruling of the Court of Appeal that denied the applicant certification to file an appeal before the Supreme Court. At the High Court the matter revolved a question on the interest payable form a transaction between the applicant and an investment adviser and stockbroker. The Court of Appeal agreed with the High Court that the 1st respondent failed to invest the funds in question in treasury bonds as agreed between the parties; however, the Court of Appeal differed in the award for damages. Aggrieved, the applicant sought to appeal at the Supreme Court.
The Court of Appeal denied its application for certification on grounds that the issues raised by the applicant did not transcend the applicant’s personal interests; and that they were by their very nature, ordinary issues that did not rise beyond the business relationship between the applicant and 1st respondent. The applicant filed the instant application seeking to review the decision of the Court of Appeal.
Issues
What conditions did an appellant that sought certification before the Court of Appeal need to satisfy to warrant an appeal to the Supreme Court?
Held
An intending appellant that sought grant of certification before the Court of Appeal must demonstrate the following to warrant certification:
that the issue to be canvassed transcended the circumstances of the particular case and had a significant bearing on public interest;
that the appeal raised a substantial point of law the determination of which would have a significant bearing on public interest;
that the question for determination had risen through the judicial hierarchy and had been the subject of judicial determination; and
that there had been uncertainty in the law which required resolution.
The mere apprehension of a miscarriage of justice and determinations of fact in contests between parties were not, by themselves, a basis for granting certification to appeal to the Supreme Court.
None of the matters sought to be raised in the intended appeal transcended the interests of the parties herein. The determination of any or all of those issues would not affect any other group of persons or the public in general. The grounds entailed determinations of facts by construing the terms and conditions of a contract between the applicant and the 1st respondent.
Application dismissed, decision of the Court of Appeal affirmed.
| Upon reading the originating motion application by the applicant dated June 21, 2023 and filed on June 26, 2023 pursuant to article 163(4)(b) of the Constitution, section 16 of the Supreme Court Act 2011 and rule 33(3) of the Supreme Court Rules 2020 for orders that:
i.
The decision of the Court of Appeal dated 9th June in Civil Application No Sup 7 of 2017 be reviewed.
ii.
The decision of the Court of Appeal dated 9th June in Civil Application No Sup 7 of 2017 be set aside and substituted with an order allowing the applicant’s notice of motion dated September 7, 2017 filed at the Court of Appeal.
iii.
An order do issue certifying the applicant’s intended appeal of the decision of the Court of Appeal dated July 28, 2017 in Civil Appeal No 78 of 2016 consolidated with Civil Appeal No 62 of 2016 as a matter of general public importance.
iv.
Leave to appeal the decision of the Court of Appeal dated July 28, 2017 in Civil Appeal No 78 of 2016 consolidated with Civil Appeal No 62 of 2016 be granted.
v.
Costs of the application be provided for; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit of John Kungu Kiarie, the applicant, and the submissions filed on his behalf on June 26, 2023, wherein he raises the following seven issues that he considers to involve matters of general public importance:
a.
Whether interest on treasury bonds in the year 2003 was 10% and whether this issue was pleaded, or evidence led to prove it. If not, whether this was a travesty of justice by the Court of Appeal.
b.
Whether the Court of Appeal has the power to introduce its own evidence in a case or use evidence neither pleaded, adduced or determined by the High Court thereby considering extraneous matters.
c.
Whether the applicant was entitled to only one year interest of 10% of the investment of Kshs 91,500,000/-.
d.
Whether there was privity of contract between the applicant and the 2nd respondent.
e.
Whether the interests on the awarded damages ought to attract interest from the date of the High Court judgment.
f.
Whether a successful party should be denied costs without justification and whether this goes against well-established principles.
g.
Whether the Court of Appeal decision violated the applicant’s rights under articles 50(1), 48, 25 and 10 of the Constitution; and
3.
Bearing in mind the facts giving rise to the dispute between the parties and noting that the 1st respondent and the applicant had a long-standing relationship. The former was the latter’s investment adviser and stockbroker from time to time. Of significance to this application was a transaction in 2003 wherein the applicant availed to the 1st respondent Kshs 100 million to invest on the applicant’s behalf. The funds became the subject of investigations by the Central Bank’s Anti- Banking Fraud Unit. The investigations culminated in the applicant being charged with several counts of obtaining money by false pretence; and
4.
Considering that in response to these events, the applicant’s accounts with the 2nd respondent were frozen, which gave further rise to this dispute, because after these issues were resolved and the applicant acquitted, it turned out that the freezing was unwarranted. The question before the two courts below turned on what reliefs the applicant was entitled to from the 1st respondent. Later, the 1st respondent released to the applicant the principal amount of Kshs 67,500,000 and interest of Kshs 2,296,559.75. The applicant was shocked and wondered how such a colossal amount (the principal sum) which had been held by the 1st respondent for a period of over 4 years could earn such low interest, bearing in mind that during the pendency of the criminal trial, the applicant successfully applied for the release of Kshs 24,000,000; and
5.
Acknowledging that the applicant, for his part, demanded Kshs 465,500,000 as loss of income and interest of 16% per annum to be calculated on a daily basis until payment in full; and
6.
Noting that the Court of Appeal agreed with the High Court that the 1st respondent failed to invest the funds in question in treasury bonds as agreed between the parties. The Court of Appeal, however disagreed with the High Court and set aside the award of damages and the interest applied thereon by the High Court which had implied that the contract to invest funds had been renewed for the duration of four years. According to the Court of Appeal, there was no basis for the four-year period. Instead, it held the view that an award of damages equivalent to the returns the respondent would have earned from the investment in treasury bonds for a period of one year 'within the terms of the investment contract' would suffice; that the applicant was therefore only entitled to damages for one year and an interest rate of 10% on the principal amount. The appellate court also found that there was no privity of contract between the 2nd respondent and the applicant and proceeded to set aside the liability entered by the High Court against the 2nd respondent; and
7.
Taking into account the applicant’s submissions challenging those conclusions, particularly the part of the judgment awarding interest of 10% based on the treasury bonds rates for the year 2003 when there was no evidence from either party of this fact; that in so holding the appellate court ignored the fact that the amount for investment was a whooping Kshs 91.5 million held by the 1st respondent for a whole four-year period; and that the determination by the appellate court amounted to a travesty of justice; and
8.
Further, considering the argument that by condemning the applicant to bear his own costs both in the High Court and Court of Appeal without giving a reason for overburdening him with costs, the appellate court violated the applicant’s constitutional right under articles 50(1), 48, 10 and 25; and that all the aforementioned questions meet the test of general public importance as set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC Application No 4 of 2012; [2013] eKLR as being questions bearing on the proper conduct of the administration of justice; and
9.
Upon considering the 1st respondent’s replying affidavit sworn on July 7, 2023 by Jimnah Mbaru, the Director of the 1st respondent and its submissions dated July 10, 2023 wherein the 1st respondent opposes the application for reasons that: the application does not raise any points of law that have a bearing on general public interest that deserve consideration by the Supreme Court; that the issues to be canvassed in the intended appeal are private, contractual and only affect the rights of parties to this particular dispute; that on the face of the application, the first ground concerns the percentage of interest which the applicant contends the Court of Appeal got wrong, and for which the proper course would be to go back to that court with application for review; that the issue of the duration of the contract, whether one year or four years is one of fact and concerns interpretation of a written contract between the parties which, in terms of this court’s declaration in Hermanus (supra) cannot be a basis for granting certification; that similarly the question of award of costs and interest does not warrant certification as the legal principles on award of interests and costs are well settled; and finally, that based on the foregoing, the application cannot be said to raise novel constitutional issues regarding violation of articles 50(1), 48, 10 and 25 when such issues were not pleaded, canvassed or determined in both superior courts below and therefore cannot be made a ground for argument before this court; and
10.
Noting that the Court of Appeal in the first instance dismissed the application for certification for the reasons that the issues raised by the applicant do not transcend the applicant’s personal interests; and that they are by their very nature, ordinary issues that do not rise beyond the business relationship between the applicant and 1st respondent. Moreover, no novel issues of law or uncertainty in the law exists to warrant the Supreme Court pronouncement. In totality, the court held that there would be no jurisprudential value in the Supreme Court engaging in the determination of issues raised in this application outside its jurisdiction; and
Having considered the application, affidavits, and rival arguments by both parties, we now opine as follows:
11.
Bearing in mind the well-settled principles for the grant of certification enunciated in a long line of our decisions, starting with the now famous case of Hermanus (supra), cited by both sides and the Court of Appeal in its ruling giving rise to the present application; that an intending appellant must demonstrate the following to warrant certification: that the issue to be canvassed transcends the circumstances of the particular case and has a significant bearing on public interest; that the appeal raises a substantial point of law the determination of which will have a significant bearing on public interest; that the question for determination has risen through the judicial hierarchy and has been the subject of judicial determination; and that there has been uncertainty in the law which requires resolution. Moreover, it was underscored in Hermanus (supra) that the mere apprehension of a 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.
12.
Having examined the judgments of both the High Court and the Court of Appeal, we note that the applicant’s grievance flows from a business relationship with the 1st respondent, signified by a written agreement. Specifically, the applicant wishes to challenge the quantum of damages assessed and the 10% interest applied thereon by the Court of Appeal on the basis of one year instead of four years. The applicant is also dissatisfied with the exoneration by the Court of Appeal of the 2nd respondent from liability on account of lack of privity of contract; and finally, that in error the Court of Appeal condemned the applicant to bear his own costs both in the High Court and Court of Appeal without giving reasons.
13.
Upon our own independent assessment of these grounds, we find that they all relate to private matters based purely and dependent solely on the construction of the terms of a written contract between the applicant and 1st respondent. None of the matters sought to be raised in the intended appeal transcends the interests of the parties herein. The determination of any or all of these issues will not affect any other group of persons or the public in general. In addition, these grounds entail determinations of facts by construing the terms and conditions of a contract between the applicant and the 1st respondent.
14.
In view of the many decisions of this court on the proper invocation of its jurisdiction in terms of article 163(4)(b) of the Constitution, we reiterate and remind parties and counsel that before taking out an originating motion for certification or review, the foregoing principles must be satisfied in terms of this court’s pronouncement in the following decisions; Lawrence Nduttu & 6000 others v Kenya Breweries Ltd and Another SC Petition No 3 of 2012;[2012] eKLR , Hermanus (supra), Malcolm Bell v Daniel Toroitich Arap Moi & another SC Application No 1 of 2013; [2013] eKLR and Town Council of Awendo v Nelson Oduor Onyango & 13 others SC Misc Application No 49 of 2014; [2015] eKLR, among many others.
15.
Consequently, and for the reasons given, we find no merit in the motion and see no justification in disagreeing with the conclusion reached by the Court of Appeal, that the application has not passed the threshold for the grant of leave to appeal to this court pursuant to article 163(4)(b) of the Constitution. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/87/eng@2023-10-06 |
Civil Application E019 of 2023 | Mbugua & another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & another) v Timber Manufacturers & Dealers Limited (Civil Application E019 of 2023) [2023] KESC 86 (KLR) (6 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Mbugua & another | [2023] KESC 86 (KLR) | null | Brief facts
The applicants were aggrieved by the Court of Appeal’s decision in Nairobi Civil Appeal No. 21 of 2015 as consolidated with Nairobi Civil Appeal No. 180 of 2015. They filed two notices of appeal for each of the consolidated matters before the Supreme Court pending the determination of their application to certify the appeal as one of general importance. They argued that the two court orders issued by a single judge of the Supreme Court that marked the aforementioned notices of appeal as withdrawn was an apparent error on the face of the record, since time for filing their intended appeal before the Supreme Court had not started running as their certification application was still pending.
Issues
Whether it was mandatory for appellants before the Supreme Court to obtain certification of a matter as one of general importance before filing a notice of appeal.
Whether in an application for review of the Supreme Court’s decision, one could apply for correction of an error on the face of the record.
What were the circumstances under which the Supreme Court could review its own decision? | .
Upon perusing the notice of motion by the applicants dated June 8, 2023, and filed on July 6, 2023, pursuant to article 159 of the Constitution of Kenya, 2010; sections 3 and 21(4) of the Supreme Court Act, 2011; rule 28(5) of the Supreme Court Rules, 2020 and all other enabling provisions of the law seeking orders:
1.
That this honourable court be pleased to review, vary and/or set aside the court orders issued by Hon Lenaola, SCJ on May 26, 2023 marking the 2 notices of appeal dated October 7, 2019 and filed on October 11, 2019 in respect of the intended appeals from Nairobi Court of Appeal Civil Appeal No. 21 of 2015 as consolidated with Nairobi Court of Appeal Civil Appeal No. 180 of 2015, as withdrawn on account of failure to institute the appeal within the prescribed time.
2.
That this honourable court be pleased to make any further orders as it deems fit in the circumstances to meet the ends of justice.
2.
Upon perusing the grounds on the face of the application and the supporting affidavit sworn on June 8, 2023, by Lawrence M Mbabu wherein the applicants contend that aggrieved by the Court of Appeal’s decision in Nairobi Civil Appeal No 21 of 2015 as consolidated with Nairobi Civil Appeal No 180 of 2015 delivered on September 27, 2019, the applicants filed two Notices of Appeal for each of the consolidated matters, both dated October 7, 2019 and filed on October 11, 2019, before this court pending the determination of their certification application before the Court of Appeal in Nairobi Court of Appeal Civil Application Sup 13 of 2020. Therefore, they argue that the two court orders issued by Hon Justice Lenaola, SCJ on May 26, 2023, marking the aforementioned Notices of Appeal as withdrawn is an apparent error on the face of the record, since time for filing their intended appeal before this court has not started running as their certification application is still pending; and
3.
Upon considering the applicants’ submissions dated June 8, 2023, and filed on July 6, 2023, the applicants submit that: the import of section 21(4) of the Supreme Court Act, 2011 as explained in this court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No 6 of 2014; [2017] eKLR assert that the error committed by the Honourable Judge falls within the purview of the exceptional circumstance alluded to under rule 28(5) of the Supreme Court Rules, for the reasons that the honourable judge was under the mistaken belief that the appeal was as of right or had already been granted certification and as a result, the applicants had failed to file their requisite appeal within 30 days of filing the Notices of Appeal or grant of certification under rule 38(1)(a) or (b) of the Supreme Court Rules, 2020 respectively; accordingly, failure to set aside the court orders issued on May 26, 2023 due to the error committed will occasion the applicants great injustice; and
4.
Cognizant that vide a consent signed by the parties’ advocates dated August 29, 2023, the respondent herein is not opposed to the application; and
5.
Taking into account provisions of section 21 of the Supreme Court Act, rule 28(5) of the Supreme Court Rules, 2020 as well as this court’s decision in Fredrick Otieno Outa case, we have considered the totality of the application and now opine as follows:
i.
Rule 36(1) of the Supreme Court Rules 2020 provides that “a person who intends to appeal to the court shall file a notice of appeal within fourteen (14) days from the date of judgment or ruling which is the subject of appeal.” However, rule 36(4) states that “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.” We have previously emphasized in Arvind Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No 3 (E008) of 2022 that rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance.
ii.
Turning to the instant matter, the applicants, aggrieved by the decision of the appellate court in Nairobi Civil Appeal No 21 of 2015 as consolidated with Nairobi Civil Appeal No 180 of 2015 delivered on September 27, 2019, filed two notices of appeal before this court on October 11, 2019, within the 14-day timeframe. According to rule 38(1) of the Supreme Court Rules, an appeal should be filed within thirty days of the date of filing the notice of appeal, where the appeal is as of right; or thirty days after the grant of certification, where such certification is required. It is manifest that no appeal was filed within 30 days of filing of the notice of appeal or any indication that the applicants had filed an application for certification of matters as involving general public importance or that such an application was pending before the Court of Appeal, or at all.
iii.
On that account, is there an apparent error on the face of the record in the issuance of the court orders on May 26, 2023 by the honorable judge? Hardly. There is nothing on record to show that, at the time the orders were issued on May 26, 2023, almost four years after the notices of appeal were filed, there was a pending application for certification before the Court of Appeal. Rule 46(1) of the Supreme Court Rules empowers the court, on its own motion or on application by any party, to make such orders as may be necessary in instances where a party lodges a notice of appeal but fails to institute the appeal within the prescribed time.
iv.
In invoking section 21(4) of the Supreme Court Act and rule 28(5) of the Supreme Court Rules the applicants seek to move the court to exercise two distinct jurisdictional powers: correcting an oversight or clerical error, and review its own decision. In the Fredrick Otieno Outa case we accentuated our position as follows:
“[85] This section as quoted, embodies what is ordinarily referred to as the “Slip Rule”. By its nature, the Slip Rule permits acourt of law to correct errors that are apparent on the face of the judgment, ruling, or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of thecourt. In other words, the Slip Rule does not confer upon acourt, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it ”
Correction of an apparent error on the face of the record, which is unavailable to the applicants, is distinct from a review.
v.
On the review relief as set out in the application before us, the principles in Fredrick Otieno Outa case now buttressed in section 21A of the Supreme Court Act highlight the exceptional circumstances in which this court may review its own decision as:
a.
Whether 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 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.
vi.
From the foregoing, the applicants have not delineated under which of the mentioned circumstances they seek to review the orders of the court issued by a single judge. At any rate, this is a different jurisdiction from that granted under section 23 (2C) of the Supreme Court Act, which provides that:
“
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.”
vii.
In the end, we decline to exercise discretion in favour of the applicants as prayed. At all times, the applicants remain at liberty to approach the court under the relevant rule, if at all a determination is made on their alleged application for certification. On costs, award of the same is discretionary and follows the event as enunciated in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR. This application having been uncontested, no costs have been sought.
6.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/86/eng@2023-10-06 |
Application E022 of 2023 | Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation (Application E022 of 2023) [2023] KESC 88 (KLR) (Civ) (6 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 6 October 2023 | 2,023 | Nairobi | Civil | Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation | [2023] KESC 88 (KLR) | null | Brief facts
The application sought the review of the ruling of the Court of Appeal denying certification of the intended appeal as one involving matters of general public importance and leave to amend the notice of appeal. The applicants urged that the intended appeal raised the following questions of general public importance; conflicting case law from the Court of Appeal as to whether the in duplum principle applied retrospectively; applicability of section 4(4) and 19 of the Limitation of Actions Act prescribing a 6-year limitation period on interest on a guaranteed debt or a consent amounting to a preliminary decree; whether a guarantor assumed primary liability for the entire debt contrary to the fixed sum expressed in the contract; whether it was a clog and fetter on the equity of redemption for a chargee to charge unconscionable interest; whether a chargee was a constructive trustee of surplus monies following sale of charged property; what interest, between court rates, the bank’s fixed deposit rates or commercial rates should be applied to surplus monies held in trust by a chargor who refused to account for and refund the excess.
Issues
What were the requirements for a matter to be certified as being of general public importance?
Whether opting for the review of a Court of Appeal decision amounted to forfeiting the right of appeal over the decision. | Upon perusing the applicants’ motion dated June 20, 2023 and filed on June 23, 2023, pursuant to article 163(4)(b) and (5) of the Constitution, sections 3A, 21, 15 and 15B of the Supreme Court Act, 2011 and rule 33(2) and (3) of the Supreme Court Rules, 2020 seeking: review of the ruling of the Court of Appeal (Omondi, Laibuta, Mumbi Ngugi, Mativo & Odunga, JJA) dated June 9, 2023 denying 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 (Koome (as she then was), Warsame & Kiage, JJA) delivered on August 6, 2019 in Civil Appeal No 30 of 2018, Mwambeja Ranching Company Limited v Kenya National Capital Corporation; and leave to amend the notice of appeal dated August 8, 2019, to replace Kenya National Capital Corporation with Project Advisory Services; and
2.
Upon considering the applicants’ grounds on the face of the application and affidavits in support both sworn by Harry Horn (Junior) and Allen Waiyaki Gichuhi, SC on June 20, 2023, wherein it is urged that the intended appeal raises the following questions of general public importance, reproduced thus: conflicting case law from the Court of Appeal as to whether the in duplum principle applies retrospectively; applicability of section 4(4) and 19 of the Limitation of Actions Act prescribing a 6-year limitation period on interest on a guaranteed debt or a consent amounting to a preliminary decree; whether a guarantor assumes primary liability for the entire debt contrary to the fixed sum expressed in the contract; whether it is a clog and fetter on the equity of redemption for a chargee to charge unconscionable interest; whether a chargee is a constructive trustee of surplus monies following sale of charged property; what interest, between court rates, the bank’s fixed deposit rates or commercial rates should be applied to surplus monies held in trust by a chargor who refuses to account for and refund the excess?; and
3.
Further considering the applicants’ submissions dated July 10, 2023 and filed on July 17, 2023, restating the grounds set out above and in addition, urging that the appellate court in its judgment dated August 6, 2019 misapplied the law, in holding that the cause of action relating to continuing securities never lapses. Moreover, that the court created confusion by finding that a guarantor’s liability is limited to a fixed sum, but refused to apply the aspect of time barred interest or the in duplum rule to ascertain the lawful debt due; Furthermore, that the case raises matters of general public importance requiring certainty of law. In support, the applicants cite the case of Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone SC Application No 4 of 2012; [2013] eKLR, to urge that the questions raised permeate the banking industry, affect a considerable number of persons, continually engage the workings of judicial organs and have a significant bearing on public interest. As pertains the prayer for leave to amend the notice of appeal, it is urged that this court has inherent jurisdiction to allow amendment of the notice of appeal dated August 8, 2019, as it shall not cause prejudice to the respondent; and
4.
Uponnoting the respondent’s grounds of opposition, submissions and list of authorities, all dated July 27, 2023 and filed on even date wherein it is urged that the applicant have not established any basis for review under article 163(5) of the Constitution; that they are agitating narrow private interests relating to their adjudged contractual liability to the respondent, hence conclusions drawn by the superior courts below on matters of fact and interpretation of contractual documents, do not have any bearing on the public interest. To this end, the respondent cites this court’s ruling in National Bank of Kenya Limited v Basil Criticos SC Application No 14 (E023) of 2022; [2023] eKLR. Additionally, it is urged that the in duplum principle under section 44A of the Banking Act has clear provisions as to its application, raising no novelty requiring this Court’s determination; and that the applicants have not anchored the prayer on amendment of the notice of appeal on any enabling provisions of law; and
5.
Noting that before the Court of Appeal, the applicants filed a composite application seeking leave to amend the notice of appeal; review of the Judgment of the Court of Appeal (Koome, Warsame & Kiage, JJA), delivered on August 6, 2019; and certification of its intended appeal in the alternative, in effect pursuing the appellate court’s jurisdiction of appeal and review simultaneously. Further noting that the Court of Appeal declined the prayer for review as grievances raised by the applicant were principally grounds of appeal, the consideration of which would amount to sitting on appeal over its own decision. Similarly, the Court of Appeal found that the certification application failed to meet the principles settled in Malcolm Bell v Hon Daniel Toroitich arap Moi & another SC Application No 1 of 2013; [2013] eKLR. Furthermore, the appellate court stated that it was functus officio as jurisdiction to grant leave to amend a notice of appeal regularly filed against the decision of the court lay with the Supreme Court;
6.
Cognisant of the fact that this court has already established the basis 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…'
7.
We now opine as follows: -
i.
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;
ii.
In any event, the applicant opted for review of the Court of Appeal’s judgment, in effect forfeiting his right of appeal at that instance;
iii.
Flowing from the above, this court therefore, has no jurisdiction to review certification of an intended appeal, where no right of appeal lies in the first instance;
iv.
Having found as above, the applicants’ prayer to amend the notice of appeal dated August 8, 2019 is moot. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/88/eng@2023-10-06 |
Petition (Application) E009 of 2023 | Khan v International Commercial Company (K) Ltd (Petition (Application) E009 & E010 of 2023 (Consolidated)) [2023] KESC 84 (KLR) (3 October 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | SC Wanjala, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 3 October 2023 | 2,023 | Nairobi | Civil | Khan v International Commercial Company | [2023] KESC 84 (KLR) | null | Brief facts
The instant matter was mentioned on September 22, 2023 before the Deputy Registrar of the Supreme Court for compliance and was subsequently set down for hearing on October 5, 2023, for determination of all the questions raised in the appeal. One week before the hearing, the applicant sought orders setting aside the decisions by the Court of Appeal in Civil Appeals No. 63 and 124 of 2018, as well as the directions issued by the Employment and Labour Relations Court on December 1, 2017.
Issues
Under what circumstances would the Supreme Court issue an order staying proceedings?
Whether the Supreme Court could issue an order staying proceedings where the substance of the appeal was before the court for determination. | Upon perusing the notice of motion dated June 29, 2023 and filed on July 3, 2023 by Abdi Ahmed Abdi, the 1st respondent/applicant under the provisions of articles 50(1), 159 and 163(7) of the Constitution, sections 3, 21 and 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules seeking Orders;
1.
That this honourable court be pleased to review, vary and set aside the judgment and order of this court delivered on June 16, 2023;
2.
That this court be pleased to dismiss with costs the Petition dated December 16, 2020 and filed on December 21, 2020;
3.
In the alternative, a declaration does issue that;
a.
Abdisamit location is in Dertu Division in Daadab Constituency within Garissa County.
b.
Auliya Sub-location is in Dertu Location in Dertu Division in Daadab Constituency in Garissa County.
c.
Laago Sub-location is in Alango Arba Location in Dertu Division/Ward in Daadab Constituency in Garissa County.
4.
The costs of this application and interest thereon be provided for.
5.
Any other and further relief that this honourable court may deem fit and just to grant in the circumstances of this case; and
2.
Upon also considering the grounds in support of the application for review and the grounds in the supporting affidavit by the applicant sworn on June 29, 2023 as well as the applicant’s written submissions dated and filed on July 3, 2023 wherein the applicant claims that the judgment rendered on June 16, 2023 was made based on misrepresentation of the geographical location of the impugned location and sublocations; that there exist meritorious, exceptional and public interest circumstances that warrant this court to review its determination of June 16, 2023; and that in the absence of an express order of this Court as to the exact location of the impugned location and sub-locations, confusion lingers amongst the residents of Daadab Constituency and Balambala Constituency; that this court has jurisdiction to review its judgment; and that the applicant has met the requirements set out under section 21A of the Supreme Court Act as well as rule 28(5) of the Supreme Court Rules; and
3.
Further considering the appellant’s grounds of opposition dated July 27, 2023 opposing the application on the grounds that it is an attempt by the applicant to relitigate the appeal; that the application does not meet the standard for review of judgment; that the application is an abuse of the court process; and that the applicant is seeking to introduce grounds and prayers that were never the subject of litigation before the superior courts, hence not a ground for review before this court; and
4.
Also noting the appellant’s written submissions dated July 10, 2023 and filed on July 11, 2023 wherein the appellant denies that the judgment was obtained through misrepresentation of facts; that the applicant is seeking an opportunity to relitigate or reopen the matter; that the applicant is asking this court to issue new prayers despite his appeal having been concluded; and that this court lacks original jurisdiction to handle this application as it is functus officio, having rendered its judgment; and
5.
Further considering the 5th respondents’ grounds of opposition and written submissions dated July 11, 2023 and filed on July 14, 2023 where the application is opposed on grounds that the application has failed to meet the threshold set out in Section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules; that the application is vexatious as it seeks to re-litigate issues after a judgment has been rendered; that the mere dissatisfaction of a party with the court’s judgment is not a ground to invoke this court’s power to review its judgment; that this court is functus officio; that the application is akin to a second appeal and the court lacks jurisdiction to entertain it while relying on this court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others; SC Petition No 6 of 2014;[2017] eKLR ; and
6.
Noting the written submissions by the 6th respondent dated August 4, 2023 and filed on August 8, 2023, supporting the application by submitting that first, this court has jurisdiction to review this application under rule 28(5) of this court’s rules and the finding by this Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others that set out the guiding principles to be considered by the Supreme Court while determining review of its decisions; that the applicant has demonstrated exceptional circumstances that warrant review as a matter of public interest and sufficient grounds laid out warranting such review; and
7.
Also noting the grounds of opposition and the written submissions by the 8th respondent opposing the application on grounds that the application falls short of the threshold set out in Fredrick Otieno Outa -v- Jared Odoyo Okello & 3 others; that the application fails to show how the Supreme Court made a glaring omission, patent mistake or grave error; that the application violates the principle that litigation must come to an end and; that the application is an attempt to appeal the matter.
We Now Opine as follows:
i.
This Court set out its power to review its own decision in the Fredrick Otieno Outa decision where we held that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. We however did set out that in exercise of its inherent powers, the 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 exceptional circumstances in which the court can vary any of its judgments, rulings, or orders are limited to 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.
ii.
Having considered the notice of motion, its grounds in support, and the applicant’s submissions, we fail to see how the conditions set out in Fredrick Otieno Outa decision have judgment delivered on June 16, 2023 that he seeks to have impugned meets the exceptional circumstances reiterated above. Ground 3 of the motion speaks for itself-a whole new cause of action has been introduced at this late hour. Review can never issue in such circumstances. No other ground reproduced above also meets the Outa threshold.
iii.
Instead, the applicant has disguised his application as a review one but it is in fact an appeal, seeking to restate and re-argue the appeal and reopen matters already determined with finality, while asking the court to grant orders to that effect. The court in Fredrick Otieno Outa specifically warned on this when it held:
'
We have unambiguously held, that an application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome.'
iv.
It is therefore disconcerting that the applicant is asking this court to relitigate issues already determined with finality and issue declarations to that effect. It needs restating that this court lacks jurisdiction to entertain a second appeal over its own judgment. As we did state in Fredrick Otieno Outa, once the court has determined an appeal from the Court of Appeal, it becomes functus officio, and such a judgment stands until it is departed from in a future case or reviewed with the exceptional circumstances outlined earlier. Consequently, we find that this application lacks merit as no such grounds for review have been established and is therefore for dismissal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/84/eng@2023-10-03 |
Application E014 of 2023 | Amollo v Wilson (Application E014 of 2023) [2023] KESC 77 (KLR) (Civ) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Amollo v Wilson | [2023] KESC 77 (KLR) | null | Brief facts
The applicant received an adverse judgment at the Environment and Land Court and sought to get a stay of the decision at the Court of Appeal. A single judge bench of the Court of Appeal, dismissed his application for stay. Further aggrieved the applicant approached the Supreme Court with an application that sought leave to appeal the decision of the Court of Appeal. The applicant sought leave in two respects. The first leave was towards the appeal to the Supreme Court and the second leave was towards the appeal to the Court of Appeal. The latter leave was sought alongside stay of execution of the decision of the Environment and Land Court.
Issues
Whether the Supreme Court had the jurisdiction to determine an application for certification for leave to appeal to the Supreme Court where it had not been lodged and determined by the Court of Appeal.
Whether the Civil Procedure Act and its rules were applicable to the Supreme Court. | Upon perusing the notice of motion application dated March 30, 2023 and filed on May 16, 2023 pursuant to section 3A of the Civil Procedure Act, sections 15, 16, 17, 20 of the Supreme Court Act, articles 28, 40, 48, 50(1) and 159(1)(d) of the Constitution, in which the applicant seeks leave to file an appeal against the ruling of Murgor, JA dismissing her application for extension of time to lodge an appeal to the Court of Appeal, and stay of execution of the judgment of the Environment and Land Court; and
2.
Upon perusing the grounds on the face of the application and the affidavit in support thereof sworn by Dola Indidis, Advocate, on March 30, 2023 in which the applicant contends that: it is in the interest of justice that leave be granted to allow the applicant to appeal; the appeal has high chances of success; and that the application has been brought without inordinate delay; and
3.
Upon further perusing the applicant’s submissions dated March 30, 2023 and filed on May 16, 2023 wherein the applicant contends that: her vital witness was prevented from testifying in ELC Case No 667 of 2013 on July 21, 2021; Hon. Justice B.M. Eboso took the file with him to his new station in Thika and delivered the judgment while an application to appeal against the ruling dated July 21, 2021 that closed her case was still pending; the delay to file the appeal was inadvertent and was cured by the certificate of delay; the applicant is the registered owner of the suit property since 1/11/1987 and relies on it for rental income; the application ought to be allowed for the case to be heard wholesomely including the vital evidence locked out; she was denied justice on technicalities; the respondent did not oppose the impugned appeal to the Court of Appeal; and that granting the prayers sought will not prejudice the respondent; and
4.
Considering the respondent’s grounds of opposition dated August 9, 2023 filed in response to the application and his submissions dated August 15, 2023 where he contends that: the jurisdiction of the Supreme Court has not been properly invoked to warrant hearing of this appeal or application under article 163(4) of the Constitution; the application lacks foundation and is irregularly filed as the appellant has neither filed a notice of appeal as required by law nor sought extension of time to file the appeal out of time; and that the applicant is guilty of laches and is underserving of the discretion of the court; and
5.
Further considering the respondent’s submissions where he relies on this court’s decision in Wanjigi v Chebukati & 2 others SC Petition 19 (E022) of 2022 [2023] eKLR where the court stated that its appellate jurisdiction is set out in article 163(4), and under article 163(4)(a) of the Constitution, only issues involving interpretation or application of the Constitution may be considered by the court and that mere allegation by a party that a question of constitutional interpretation or application was involved, does not automatically bring the appeal within the ambit of article 163(4)(a) of the Constitution; and
6.
Upon further perusing the applicant’s submissions dated August 19, 2023 as a rejoinder to the respondent’s grounds of opposition, where she contends that the objection is an issue of procedural technicality which falls within the ambit of article 159(1)(d) of the Constitution; the court ought not to be tied by procedural technicalities; the authority relied on by the applicant is not relevant to the instant application; and the respondent’s averments are false, as it filed its notice of appeal dated March 30, 2023; and
7.
Bearing In Mind this court’s jurisdiction under article 163(4)(a) and
(b)
of the Constitution, as read with section 15, 15A and 15B of the Supreme Court Act, to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters of general public importance upon certification;
8.
We Have considered the application, affidavit, grounds of opposition, and submissions filed and now opine as follows:
i.
From our understanding of the application, the applicant’s grievance is against the decision of a single Judge of the Court of Appeal (Murgor JA) wherein she declined to grant leave to the applicant to file the Notice of Appeal out of time and stay of execution, arising out of the judgment of the Environment and Land Court. We note that the applicant did not resort to rule 57(1)(b) of the Court of Appeal Rules 2022 by filing a reference to the full bench of the Court of Appeal to vary, discharge or reverse the said decision of the single Judge of the Court of Appeal. Thus, the applicant’s prayer for leave to appeal against this dismissal, does not at the first instance, fall for our determination.
ii.
The applicant has invoked the provisions of section 3A of the Civil Procedure Act, which provisions we held in Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR and County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, to be inapplicable when moving this court. The Supreme Court is only moved under the Constitution, the Supreme Court Act, and the Supreme Court Rules 2020.
iii.
The appellate jurisdiction of this Court to hear appeals from the Court of Appeal is exercised pursuant to article 163(4)(a) or (b) of the Constitution as read together with Sections 15, 15A and 15B of the Supreme Court Act. These provisions grant this court jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as involving general public importance.
iv.
The application does not indicate which appellate jurisdiction of the court it seeks to invoke. A perusal of the orders sought by the applicant suggests that the applicant seeks leave in two respects. The first leave is towards the appeal to the Supreme Court and the second leave is towards the appeal to the Court of Appeal. The latter leave is sought alongside stay of execution of the decision of the Environment and Land Court. To the extent that the applicant seeks leave under section 15B(2) of the Supreme Court Act, a certification for leave to appeal to the Supreme Court on a matter involving general public importance shall only be made first at the Court of Appeal, and a party dissatisfied with the Court of Appeal decision may apply to this Court for review. See Sum Model Industries Ltd v Industrial and Commercial Development Corporation, Civil Application No 1 of 2011; [2011] eKLR. The application has not distilled and framed any specific questions that transcend the parties as to be certified as involving general public importance as set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup Ct Appl No 4 of 2012 [2013] eKLR. The applicant does not proffer any explanation or reasons for failure to adhere to this prerequisite step. We therefore see no reason to excuse this omission to enable us consider the prayer for leave.
v.
We note that the applicant is yet to file the substantive appeal as she only alluded to a draft Memorandum of Appeal as annexed to the affidavit in support of the application. The Supreme Court Act, and the Supreme Court Rules provide for the institution of an appeal to this court, including the form of the petition of appeal.
vi.
Pursuant to rule 36 of the Supreme Court Rules, a person intending to make an appeal to this court, shall file a notice of appeal within fourteen days from the date of judgment or ruling, and file it in the first instance with the Registrar of the court from which the appeal originates and upon filing, transmit a of the notice to the Supreme Court registry. The notice of appeal annexed to the application, though indicated to have been filed on March 30, 2023 has not been signed and sealed by the Registrar of the Court of Appeal. There is no evidence of transmission of the same to the Supreme Court. That being said, the failure to file or transmit a notice of appeal is not mandatory in relation to an appeal on a matter of general public importance, and can as well be filed upon grant of certification. However, as already stated above, it is not indicated which of the court’s jurisdiction herein invoked.
For the reasons set out above, the jurisdiction of this court has not been properly invoked. As for costs, we see no reason to award costs to either party. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/77/eng@2023-09-22 |
Petition (Application) E013 of 2023 | Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others; Everest Limited & another (Interested Parties) (Petition (Application) E013 of 2023) [2023] KESC 76 (KLR) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others; Everest Limited & another | [2023] KESC 76 (KLR) | null | Brief facts
The 1st respondent filed an application that sought to strike out the notice of appeal filed by the appellants on grounds that it was not served to the respondents within the 7-day period required under rule 37 of the Supreme Court Rules. The 1st respondent also sought to get the record of appeal struck out for being incomplete, in that it did not contain the record of appeal that was filed in the first appeal (Court of Appeal).
The appellant opposed the application on grounds that it was in the interest of justice that the Supreme Court exercised its discretion to admit the notice of appeal, petition, and the record of appeal, since no probable prejudice would be occasioned to the respondents; that the inadvertent omission of the supplementary record was not deliberate; and that the grounds of appeal before the Supreme Court were not dependent upon the omitted record since they did not center on a factual dispute but rather on the interpretation.
Issues
Whether a notice of appeal to the Supreme Court that was served on the respondents beyond the requisite seven-day timeline was defective.
Whether a record of appeal to the Supreme Court that did not contain a supplementary record that was filed in the first appeal before the Court of Appeal was incompetent. | Upon perusing the notice of motion dated June 23, 2023 and filed on even date by the 1st respondent, pursuant to section 3A, 21(1) and (2) of the Supreme Court Act but erroneously expressed as rules 31(6), (37(1), 40(1)(d), 65(1) and (2) of the Court of Appeal Rules instead of the Supreme Court Rules, seeking the striking out the notice of appeal dated March 23, 2023 and the Record of Appeal dated April 28, 2023; and
2.
Upon perusing the supporting affidavit sworn on 21st June 2023 by Richard Gitahi, the trust Secretary of the Safaricom Staff Pension Scheme Registered Trustees, the 1st respondent in support of the motion and a further affidavit sworn by Bernard Nderitu on July 25, 2023; and
3.
Upon considering the written submissions by the 1st respondent filed on June 23, 2023, wherein they argue the notice of appeal was not served upon them contrary to the mandatory requirement of rule 37(1) of the Supreme Court Rules; that this Court, in determining this application may be guided by the principles set out in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others, SC PT (Application) No 38 of 2018; (2019) eKLR; Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others , SC Application No 7 of 2014; (2014) eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others, CA No (Application) 228 of 2013; (2013) eKLR, where this court and the Court of Appeal emphasized it is a jurisdictional prerequisite to file and serve the notice of appeal; that the record of appeal is incomplete in contravention of rule 40(1)(d) and (4) of the Supreme Court Rules since it does not include the supplementary record of appeal dated November 19, 2019 which was part of the record in the Court of Appeal, and the appellant has failed to apply for leave for their inclusion out of time; and that this omission is not only deliberate but also meant to deny the court the opportunity to have all the necessary relevant documents for a just and informed decision; and
4.
Noting that the appellant in its replying affidavit sworn by Otieno John Kenneth Rajwayi, their Planning Manager on July 10, 2023 and the written submissions of even date are opposed to the application on grounds that the underlying dispute herein was presented by the 1st respondent as a public interest litigation which fact was noted in the judgment of the trial court; that in compliance with rule 36(1) of the Supreme Court Rules, they filed a notice of appeal on March 30, 2023 but the Registrar of the Court of Appeal only endorsed his signature on the filed notice on April 27, 2023; that only then did the appellant transmit the endorsed notice of appeal together with the petition and record of appeal to this court on April 28, 2023 and thereafter service of the notice of appeal, petition of appeal and record of appeal was effected on May 4, 2023;
5.
Further, the appellant has pleaded that in the interest of justice, this court exercises its discretion to admit the notice of appeal, petition, and the record of appeal, since no probable prejudice will be occasioned to the respondents; that the inadvertent omission of the supplementary record of appeal in CA No 185 of 2017 was not deliberate; and that the truth of the matter is that the two grounds of appeal before this court are not dependent upon the omitted record since they do not centre on a factual dispute but rather on the interpretation.
6.
Upon considering the appellant’s reliance on the holding of this court in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others (supra), and his argument that where no prejudice has been occasioned, the court ought to excuse noncompliance with a procedural rule; that equally, as this court held in following the holding of this court in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others (supra), failure to include the supplementary record of appeal from the Court of Appeal as part of the record does not automatically render the appeal fatal; and
7.
Noting that the 2nd to 4th respondents as well as the 1st and 2nd interested parties did not file any pleadings with respect to this application;
We now therefore opine as follows:
8.
Uponexamining rule 36 of the Supreme Court Rules 2020, upon which this application rests, and which demands that;
“
(1)
A person who intends to make an appeal to the court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal.
2.
The notice of appeal shall be— (a) …………
(b)
filed at the first instance with the Registrar of the court, or with the tribunal from which an appeal originates.
2.
Upon filing of the notice of appeal, the petitioner shall transmit a of the notice to the Registrar”. (Our emphasis).
The registrar in the highlighted section above is according to Rule 2, the Registrar of the Supreme Court; and
9.
Upon examination of rule 37(1) which provides that;
“
A petitioner shall, within seven days of lodging a notice of appeal, serve transmitted copies of the notice upon all persons directly affected by the appeal”. (Our emphasis).
It is the copies of the notice that the petitioner is required to transmit to the registrar of this court that are to be served upon all persons directly affected by the appeal; and
10.
Restating the principles enunciated by this court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No 16 of 2014; (2014) eKLR and University of Eldoret & another v Hosea Sitienei & 3 other, SC Application No 8 of 2020; (2020) eKLR, both of which underscored the vital nature of a notice of appeal as a jurisdictional pre-requisite whose filing signifies the intention to appeal; and further state that where the law provides for the time within which something ought to be done and that time lapses, one needs to first seek an extension of time before one can proceed to do that which the law requires; and
11.
Upon applying these strictures to the rival submissions in this application, we note that the notice of appeal dated March 23, 2023 was filed on the e-filing portal of the Court of Appeal on March 30, 2023and on April 28, 2023in this court and service of the same was effected on May 4, 2023, exactly thirty-five days from filing before the Court of Appeal; and
12.
Interms of rule 37, the appellant was required, within seven days of lodging a notice of appeal, to serve transmitted copies of the notice upon the respondents with or without the endorsement from the Registrar of the Court of Appeal as is the practice before this court; and
13.
Emphasising this court’s consistent pronouncement that rules of the court must be observed and the prescribed time limits are requirements to be met, we find that the appellant having failed to serve the notice within seven days as prescribed by the Rules missed a very crucial preliminary step in instituting the appeal. Rules of procedure must be applied and followed at all times by the parties, counsel, and even the courts to ensure there is fairness of proceedings and to afford parties the equality of arms. Because the object of judicial proceedings is to arrive at the truth by using the best available procedure and process, the infringement of the rules may have serious consequences; and
14.
Upon further examining rule 40 which stipulates what the contents of a record of appeal from the Court of Appeal must include, one of which is “relevant pleadings required to determine the appeal”; and looking at the nine documents which were introduced in the Court of Appeal by a supplementary record of appeal, there cannot be any doubt that they were presented before that court because the appellant believed they were important for the just determination of the first appeal. That being the case, by necessary implication, they would equally be relevant for the determination of this appeal; and
15.
Noting that the nine documents contained in the supplementary record are minutes, sketches, drawings, approvals, affidavits, and other pleadings from the Environment and Land Court, we find that the same ought to have been included in the record before this court; and ultimately the inevitable conclusion we must draw is that the notice of appeal dated March 23, 2023 is defective for failing to comply with rule 37(1) of the Supreme Court Rules; and further that the record of appeal lodged in this court is incomplete.
16.
Bearing in mind our finding above that there is no subsisting appeal having found the notice of appeal defective, we make the following orders:
i.
The notice of motion dated June 21, 2023 and filed on even date is hereby allowed.
ii.
Consequently, the notice of appeal dated March 23, 2023and the record of appeal dated April 28, 2023 are hereby struck out.
iii.
The 1st respondent shall have costs of this application noting that the other respondents did not file any pleadings in respect of the application.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/76/eng@2023-09-22 |
Application E028 of 2023 | Garama v Karisa & 3 others (Application E028 of 2023) [2023] KESC 83 (KLR) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 22 September 2023 | 2,023 | Nairobi | Election | Garama v Karisa & 3 others | [2023] KESC 83 (KLR) | null | Brief facts
The application sought the stay of execution against the judgment and decree of the Court of Appeal delivered on the July 28, 2023 pending the final determination of the appeal and issuance of conservatory orders restraining the 1st respondent from certifying the position of the Member of National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal. The applicant contended that the Court of Appeal in dismissing his appeal and the 2nd and 3rd respondents’ cross appeal misinterpreted the provisions of articles 81 and 86 of the Constitution of Kenya, 2010 (the Constitution) by imposing on the 2nd respondent, the Independent Electoral and Boundaries Commission (IEBC) the burden of compliance which was not contemplated by articles 81 and 86.
The applicant further argued that the impugned decision was defective for affirming the nullification of the applicant’s victory despite finding that the irregularities were mostly minor and did not affect the outcome of the results. The applicant also urged that the judgment of the Court of Appeal created a vacancy, consequently the Speaker of the National Assembly was required to gazette the vacancy within 21 days of the decision to pave way for fresh elections, and in the event that fresh elections proceeded, there was a likelihood that the outcome of the appeal and the outcome of the fresh elections would be at variance, hence rendering the appeal an exercise in futility. The applicant further argued that should the court fail to grant stay and the IEBC proceed to trigger a by-election, the same would occasion the use of scarce public resources whose use would ultimately be in vain.
Issues
What were the requirements to be met before the Supreme Court could grant an order for stay of execution?
| .
Upon perusing the notice of motion by the applicant dated August 1, 2023 and filed on August 8, 2023 pursuant to article 163(4)(a) of the Constitution and rule 31 and 32 of the Supreme Court Rules, 2020 seeking the following orders:
1.
Spent
2.
Spent.
3.
This court be pleased to issue a stay of execution against the judgment and decree delivered on the July 28, 2023 pending the final determination of the appeal.
4.
This court be pleased to issue conservatory orders restraining the 1st respondent from certifying the position of the Member of National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal.
5.
This court be pleased to issue conservatory orders restraining the 1st respondent from announcing or conducting the elections for Member of National Assembly in Magarini Constituency pending the hearing and determination of the appeal.
6.
Costs of this application be in the cause.
2.
Upon perusing the grounds on the face of the application, supporting affidavit sworn on August 1, 2023 by Hon Harrison Garama Kombe and written submissions dated August 1, 2023 and filed on August 8, 2023 wherein the applicant contends that on July 28, 2023, the Court of Appeal sitting in Mombasa delivered its judgment in Election Appeal No E001 of 2023 dismissing both the appeal lodged by the applicant and the cross appeal lodged by the 2nd and 3rd respondents; dissatisfied with the impugned judgment, the applicant has immediately preferred an appeal to this court and seeks stay of execution of the impugned judgment pending determination of his appeal; that the applicant’s appeal has been lodged in compliance with the court’s jurisdictional mandate under article 163 (4)(a) of the Constitution and as enunciated in the cases of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Pet No 3 of 2012 (2012) e KLR and Evans Kidero & 4 others v Ferdinand Waititu & 4 others; SC Petition 18 & 20 of 2014 [2014] e KLR as it seeks to challenge the superior court’s interpretation of the general principles of the electoral system under article 81(e) of the Constitution and the 2nd respondent’s obligation during voting under article 86 of the Constitution; that the main issue for determination by the two superior courts was centred around whether the election for the Member of National Assembly for Magarini Constituency was conducted in accordance with the principles set out in articles 81 and 86 of the Constitution. On whether the appeal is arguable and not frivolous, the applicant contends that the Court of Appeal misinterpreted the provisions of articles 81 and 86 of the Constitution by; imposing on the 2nd respondent the burden of compliance which is not contemplated by articles 81 and 86 of the Constitution since the court required that there be absolutely no errors, substantive or administrative, in order for an election to be said to have complied with article 81 of the Constitution by elevating explained human errors to the pinnacle of opaqueness and non- transparency that warrant the voiding of elections; by introducing a standard and burden of proof unknown in law when it held that the explained irregularities did not affect the results yet a holistic analysis at those irregularities would lead to only one conclusion, that it was a shambolic process; by finding that the explained errors in eight (8) polling stations warranted the nullification of elections in the entire 191 polling stations majority of which were not affected by the explained human errors and/or irregularities; and.
3.
Upon considering the applicant’s further argument that the impugned decision is defective; for affirming the nullification of the applicant’s victory despite finding that the irregularities were mostly minor and did not affect the outcome of the results and in doing so, abandoned the two part test established by section 83 of the Elections Act pursuant to articles 81 and 86 of the Constitution; for making findings that were factually inconsistent with the testimony and evidence placed before the High Court; and, the decision seeks to unjustifiably sanction the punishment of candidates who contest an election for any human errors made by the 2nd respondent ,which errors had no impact on the outcome of the election. Further, on whether the appeal would be rendered nugatory without the grant of stay, the applicant urges that the 2nd respondent is obliged by law to soon declare the impugned position as vacant, pursuant to section 16 of the Elections Act; the judgment of the superior court created a vacancy, consequently the Speaker of the National Assembly is required to gazette the vacancy within 21 days of the decision being July 28, 2023 to pave way for fresh elections, and in the event that fresh elections proceed, there is a likelihood that the outcome of the appeal and the outcome of the fresh elections will be at variance, hence rendering the appeal an exercise in futility and a waste of judicial resources.
4.
Finally, on whether it is in the public interest to grant the order of stay, the applicant contends that, should the court fail to grant stay and the 2nd respondent proceeds to trigger a by-election, the same will occasion the use of scarce public resources whose use will ultimately have been in vain. The applicant cites the decisions in Zacharia Okoth Obado vs Edward Akong’o Oyugi & 2 others; SC Petition 4 of 2014 [2014] e KLR and Anami Silverse Lisamula vs IEBC & 2 others; SC Petition 9 of 2014 [2014] e KLR to urge that the prevention of wastage of public resources is sufficient public interest and ground to grant a stay of execution. Furthermore, that it is in the interest of the constituents of Magarini that they continue to have representation in the National Assembly and continue to have the projects so far commenced by the applicant carried out as the apex court determines with finality the question of whether the election carried out on August 9, 2022 was conducted in accordance with the law. The applicant relies on the decision Nathif Jama Afam v Abdikhaim Osman Mohammed & 3 others; SC Petition 13 of 2014 [2014] e KLR to argue that the certainty in the representation of the citizens should be maintained until the final determination by the court; and
5.
Upon perusing the 1st respondent’s replying affidavit sworn on August 21, 2023 by Stanley Karisa and filed on August 22, 2023 and written submissions of even date opposing the application on the grounds that the court is not properly seized of this matter due to the applicant having filed two notices of appeal, the first dated July 31, 2023 by the firm of Messrs Mutisya Mwanzia & Ondeng Advocates and the second dated August 1, 2023 by the firm of Messrs Rachier & Omollo LLP, and with no application nor request to withdraw or strike out any of the two notices of appeal, the applicant has elected to rely only on the second notice of appeal; the two notices of appeal are in any event not valid notices contemplated under rule 36(1) of the Supreme Court Rules, 2020; contrary to the applicant’s contentions the constituents of Magarini Constituency would wish to have a Member of National Assembly who they elect by exercising their franchise freely and there is nothing prejudicial to the applicant seeking a fresh mandate in equal footing with other candidates; it would be unfair for the applicant to continue earning a salary and other emoluments if the court were to eventually confirm the superior court’s decision to annul the election of the applicant; there is nothing expensive in conducting a fresh election in comparison to denying the constituents of Magarini Constituency their democratic right to exercise and express their sovereign will to elect a person of their own choice as Member of National Assembly; prayers 4 and 5 sought against the 1st respondent are misconceived and unenforceable as he is not mandated by the Constitution or the Elections Act to conduct any election; the applicant has failed to demonstrate that he has an arguable appeal as there was no interpretation or application of the Constitution by either superior court save for mere references to relevant constitutional provisions; and
6.
Upon perusing the 2nd and 3rd respondent’s replying affidavit sworn on August 22, 2023 by Chrispine Owiye and filed on August 29, 2023 together with written submissions of even date in support of the application contending that the applicant has satisfied the guiding principles for this court to exercise its discretionary powers; that the applicant’s appeal raises issues of constitutional interpretation and application to fall within the ambit of article 163(4)(a) as it concerns interpretation of articles 81 and 86 of the Constitution together with section 82 of the Elections Act and part XIII of the Elections (General) Regulations, 2017. On whether the appeal before this court is arguable, it is contended that, as elaborated by the applicant, it is challenging the lowering of the threshold of the burden of proof set by the Supreme Court and which the Court of Appeal had not accommodated while interpreting article 81 of the Constitution; the test for nullification of an election is stipulated under section 83 of the Elections Act read alongside articles 81 and 86 of the Constitution that an election cannot be nullified other than on grounds of irregularities that substantially affect the results; that the elections of Magarini Constituency were conducted in accordance with the principles laid down in the Constitution and other statutory requirements and that the irregularities occasioned by the 2nd and 3rd respondents’ conduct were not of such magnitude to have affected the results of the elections and the will of the people so as to justify annulment of the election results. On whether the appeal would be rendered nugatory, it is argued that, if the orders sought are not granted, the election machinery will be set in motion forcing the applicant to seek re-election while at the same time pursuing his appeal; the applicant’s main objective in filing the application is to forestall a situation where he is forced to go through the rigours of an election when there is a possibility that his earlier election could be upheld by this court. On whether it is in the public interest that the orders of stay are granted, it is urged that the matter involves public interest issues which necessitates grant of orders that are for public good and will preserve public resources while also ensuring fidelity to the Constitution. It is also submitted that the 1st respondent had the onus of proving all the allegations that were raised before the trial court but has failed to plead with precision or adduce evidence to prove all the allegations before the trial court thus failing to discharge his burden as enshrined in articles 81 and 86 of the Constitution.
Having considered the totality of the application, responses and submissions put forth, we now pronounce as follows:
7.
Appreciating that the court, under section 23A of the Supreme Court Act 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.
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 that before this 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.
iii.
that it is in the public interest that the order of stay be granted.
9.
Noting that the gist of the appeal involves a determination of the proper interpretation of the provisions of articles 81 and 86 of the Constitution and section 83 of the Election Act on the two-prong test before nullification of elections to determine whether the election for the Member of National Assembly in Magarini Constituency was conducted in accordance with the principles and whether the irregularities by the 2nd and 3rd respondent were sufficient enough to nullify the elections. We further take cognizance that the applicant’s appeal also addresses the principles of the burden of proof to be applied in elections petitions. In our view, and in light of the facts and arguments here, we find that the appeal is arguable and not frivolous; and
10.
Further noting that the impending and imminent execution of the impugned decision of the Court of Appeal would constrain the applicant to seek re-election while at the same time pursuing his appeal with the possible consequence that the outcome of the appeal and the outcome of the fresh elections would be at variance, hence rendering the appeal an exercise in futility and a waste of judicial resources; and
11.
Bearing in mind that the competing claims in this matter lie in favour of public interest and good governance both running in tandem with the need to consciously deploy limited public resources. Put another way, our rational sense of balance and proportion lies not in favour of fresh elections for Magarini Constituency while an appeal is pending, rather it lies in favour of an expedited hearing of the appeal.
12.
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. On this account, it is only prudent that we defer the costs to await the ultimate outcome of the appeal
13.
For the aforestated reasons we make the following orders:
a.
The notice of motion dated August 1, 2023 and filed on August 8, 2023 by the applicant be and is hereby allowed.
b.
Execution of the judgment and order of the judgment of the Court of Appeal delivered on 28th July, be held in abeyance pending the final determination of the appeal.
c.
A conservatory order shall issue forth against the Independent Electoral and Boundaries Commission from declaring the position of Member of the National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal.
d.
A conservatory order issue restraining the Independent and Electoral Boundaries Commission from setting in motion the process of election for the position of Member of the National Assembly for Magarini Constituency pending the hearing and determination of the applicant’s appeal.
e.
The Registrar shall make due arrangements for the hearing and disposal of the appeal, on the basis of priority and of the greatest frequency.
f.
The costs of this application to abide the outcome of the appeal.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/83/eng@2023-09-22 |
Petition 21 (E023) of 2020 | Member of Parliament Balambala Constituency v Abdi & 7 others (Petition 21 (E023) of 2020) [2023] KESC 80 (KLR) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Member of Parliament Balambala Constituency v Abdi & 7 others | [2023] KESC 80 (KLR) | null | Brief facts
The matter arose from a dispute of the division of 3 constituencies within Garissa County. The matter was resolved by the Supreme Court On June 16, 2023. The applicant was aggrieved by the findings of the court and filed the instant application for review in which he sought for the Supreme Court to vary the judgment or set it aside.
The respondents opposed the application on grounds that the applicant was attempting to relitigate the matter. They contended that the applicant had not met the threshold for the Supreme Court to review its own decision.
Issues
Under what circumstances would the Supreme Court review its own decisions? |
1.
Upon perusing the notice of motion dated June 29, 2023 and filed on July 3, 2023 by Abdi Ahmed Abdi, the 1st respondent/applicant under the provisions of articles 50(1), 159 and 163(7) of the Constitution, sections 3, 21 and 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules seeking Orders;
1.
That this honourable court be pleased to review, vary and set aside the judgment and order of this court delivered on June 16, 2023;
2.
That this court be pleased to dismiss with costs the Petition dated December 16, 2020 and filed on December 21, 2020;
3.
In the alternative, a declaration does issue that;
a.
Abdisamit location is in Dertu Division in Daadab Constituency within Garissa County.
b.
Auliya Sub-location is in Dertu Location in Dertu Division in Daadab Constituency in Garissa County.
c.
Laago Sub-location is in Alango Arba Location in Dertu Division/Ward in Daadab Constituency in Garissa County.
4.
The costs of this application and interest thereon be provided for.
5.
Any other and further relief that this honourable court may deem fit and just to grant in the circumstances of this case; and
2.
Upon also considering the grounds in support of the application for review and the grounds in the supporting affidavit by the applicant sworn on June 29, 2023 as well as the applicant’s written submissions dated and filed on July 3, 2023 wherein the applicant claims that the judgment rendered on June 16, 2023 was made based on misrepresentation of the geographical location of the impugned location and sublocations; that there exist meritorious, exceptional and public interest circumstances that warrant this court to review its determination of June 16, 2023; and that in the absence of an express order of this Court as to the exact location of the impugned location and sub-locations, confusion lingers amongst the residents of Daadab Constituency and Balambala Constituency; that this court has jurisdiction to review its judgment; and that the applicant has met the requirements set out under section 21A of the Supreme Court Act as well as rule 28(5) of the Supreme Court Rules; and
3.
Further considering the appellant’s grounds of opposition dated July 27, 2023 opposing the application on the grounds that it is an attempt by the applicant to relitigate the appeal; that the application does not meet the standard for review of judgment; that the application is an abuse of the court process; and that the applicant is seeking to introduce grounds and prayers that were never the subject of litigation before the superior courts, hence not a ground for review before this court; and
4.
Also noting the appellant’s written submissions dated July 10, 2023 and filed on July 11, 2023 wherein the appellant denies that the judgment was obtained through misrepresentation of facts; that the applicant is seeking an opportunity to relitigate or reopen the matter; that the applicant is asking this court to issue new prayers despite his appeal having been concluded; and that this court lacks original jurisdiction to handle this application as it is functus officio, having rendered its judgment; and
5.
Further considering the 5th respondents’ grounds of opposition and written submissions dated July 11, 2023 and filed on July 14, 2023 where the application is opposed on grounds that the application has failed to meet the threshold set out in Section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules; that the application is vexatious as it seeks to re-litigate issues after a judgment has been rendered; that the mere dissatisfaction of a party with the court’s judgment is not a ground to invoke this court’s power to review its judgment; that this court is functus officio; that the application is akin to a second appeal and the court lacks jurisdiction to entertain it while relying on this court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others; SC Petition No 6 of 2014;[2017] eKLR ; and
6.
Noting the written submissions by the 6th respondent dated August 4, 2023 and filed on August 8, 2023, supporting the application by submitting that first, this court has jurisdiction to review this application under rule 28(5) of this court’s rules and the finding by this Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others that set out the guiding principles to be considered by the Supreme Court while determining review of its decisions; that the applicant has demonstrated exceptional circumstances that warrant review as a matter of public interest and sufficient grounds laid out warranting such review; and
7.
Also noting the grounds of opposition and the written submissions by the 8th respondent opposing the application on grounds that the application falls short of the threshold set out in Fredrick Otieno Outa -v- Jared Odoyo Okello & 3 others; that the application fails to show how the Supreme Court made a glaring omission, patent mistake or grave error; that the application violates the principle that litigation must come to an end and; that the application is an attempt to appeal the matter.
We Now Opine as follows:
i.
This Court set out its power to review its own decision in the Fredrick Otieno Outa decision where we held that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. We however did set out that in exercise of its inherent powers, the 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 exceptional circumstances in which the court can vary any of its judgments, rulings, or orders are limited to 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.
ii.
Having considered the notice of motion, its grounds in support, and the applicant’s submissions, we fail to see how the conditions set out in Fredrick Otieno Outa decision have judgment delivered on June 16, 2023 that he seeks to have impugned meets the exceptional circumstances reiterated above. Ground 3 of the motion speaks for itself-a whole new cause of action has been introduced at this late hour. Review can never issue in such circumstances. No other ground reproduced above also meets the Outa threshold.
iii.
Instead, the applicant has disguised his application as a review one but it is in fact an appeal, seeking to restate and re-argue the appeal and reopen matters already determined with finality, while asking the court to grant orders to that effect. The court in Fredrick Otieno Outa specifically warned on this when it held:
'
We have unambiguously held, that an application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome.'
iv.
It is therefore disconcerting that the applicant is asking this court to relitigate issues already determined with finality and issue declarations to that effect. It needs restating that this court lacks jurisdiction to entertain a second appeal over its own judgment. As we did state in Fredrick Otieno Outa, once the court has determined an appeal from the Court of Appeal, it becomes functus officio, and such a judgment stands until it is departed from in a future case or reviewed with the exceptional circumstances outlined earlier. Consequently, we find that this application lacks merit as no such grounds for review have been established and is therefore for dismissal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/80/eng@2023-09-22 |
Petition (Application) 16 of 2019 | Non- Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 78 (KLR) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Non- Governmental Organizations Coordination Board v EG & 5 others | [2023] KESC 78 (KLR) | null | Brief facts
The instant application sought among other orders; grant leave to the applicant and enlargement of time to file a reference against the decision of the registrar on taxation of costs dated June 9, 2023; that the reference filed be deemed as properly filed; and a stay of execution of the ruling and order of the Registrar of the court dated June 9, 2023 pending re-taxation of the bill of costs.
The applicant contended that although the decision under challenge was delivered on June 9, 2023, the applicant only became aware of it on June 20, 2023 when it was served with the proclamation notice; that the applicant was unable to issue instructions to counsel on the filing of the reference application as its legal manager was indisposed and out of the office for the whole week and that upon the legal manager resuming work, the instant application was brought without undue delay.
Issues
What were the guiding principles in considering an application for extension of time?
What was the procedure to be followed by a person who was dissatisfied with a decision of the Registrar of the Supreme Court in the taxing of costs?
What were the principles for grant of stay of execution? | Recalling that on June 27, 2023, this court (W. Ouko, SCJ) sitting as a single judge certified this matter as urgent and directed that it be placed before the Hon Vice President of the court for further orders; that subsequently, on June 29, 2023 the applicant filed a second certificate of urgency with affidavits in support to review those orders contending that there was a real threat of execution of orders arising from the taxation ruling of the Deputy Registrar issued on June 9, 2023. Consequent, upon considering the prevailing situation, the court granted on a temporary basis, prayer (iii) of the said motion, staying the execution commenced by the 1st respondent, and also restrained the 1st respondent and the auctioneers from selling, or disposing of any of the applicant's proclaimed property and/or household equipment pending the hearing and determination of the instant application.
2.
Now, therefore, upon considering the aforesaid notice of motion dated June 24, 2023 brought under article 159 and 163(4)(a) of the Constitution, sections 11, 23(2)(e) and 23 of the Supreme Court Act, 2011 as well as rules 15(2), 30 and 62 of the Supreme Court Rules, 2020 for orders:
i)
… (spent)
ii)
That this honourable court be pleased to grant leave to the applicant and enlarge time to file a reference against the decision of the registrar on taxation of costs dated June 9, 2023;
iii)
That the execution proceedings commenced by the 1st respondent/decree holder against the applicant/ judgment debtor be stayed and/or set aside including restraining the 1st respondent and Zasha Auctioneers, their agents and/or employees and/or any person acting under their instructions or directions from selling, dealing, interfering, alienating or disposing any of the applicant’s property and/household equipment pending hearing and determination of the present application;
iv)
That the reference filed herein be deemed as properly filed;
v)
That the court be pleased to issue a stay of execution of the ruling and order of the registrar of this court dated June 9, 2023 pending re-taxation of the bill of costs;
vi)
That the court be pleased to set aside or review downwards the decision made by the registrar of this court dated June 9, 2023 as relates to item 1 on instructions taxed at Kshs 5,000,000/-; and
vii)
Costs of this application be provided for; and
3.
Upon reading the applicant’s supporting affidavit sworn on June 24, 2023 by Lindon Otieno, the legal affairs manager of the applicant and their written submissions dated June 27, 2023 whose combined effect is that, although the decision under challenge was delivered on June 9, 2023, the applicant only became aware of it on June 20, 2023 when it was served with the proclamation notice; that upon receipt of the proclamation notice together with the ruling, the applicant was unable to issue instructions to counsel on the filing of the reference application as its legal manager was indisposed and out of the office for the whole week; that upon the legal manager resuming work, the instant application was brought without undue delay; and that the time taken between the deadline for filing the reference and the filing of the instant application was only 10 days; and
4.
Upon considering the application for stay of execution of the Hon Deputy Registrar’s ruling on taxation and an order of injunction against the attachment and sale of the applicant’s property, wherein, the applicant submits that the intended reference has a high chance of success; in that the Hon Deputy Registrar erred in failing to give consideration to the fact that the said bill of costs and decree were lodged and drawn contrary to rule 29 as well as paragraph 2(2) of the third schedule to the Supreme Court Rules 2020; and further, that no draft order or decree was submitted by the 1st respondent to the applicant for prior approval contrary to rule 29 aforesaid. Therefore, should the 1st respondent proceed to execute the order for costs made pursuant to the Deputy Registrar’s ruling, the subject matter will be lost, and the reference rendered nugatory; and
5.
Upon reading the applicant’s supplementary submissions dated July 24, 2023, wherein the applicant has deponed that it is facing imminent threat of execution and stands to suffer irreparable harm in the event the auctioneers proceed to sell and dispose of the proclaimed goods; that despite the instant application being certified as urgent by the court on June 27, 2023, on the morning of June 29, 2023, Zasha Auctioneers in the company of more than 50 men, proceeded to the applicant’s office premises and sought to attach with the intention of selling the applicant’s properties including the applicant’s tools necessary for the performance of its statutory obligation; that taking advantage of the presence of auctioneers in the applicant’s premises, the 1st respondent’s advocate used her influence to unduly coerce the applicant’s Executive Director into entering into a consent with it; that the applicant protested to the Registrar of the court and pointed out that the purported consent was obtained under duress, coercion, undue influence and without the authority or consent of the applicant’s board as well as without authority of the applicant’s counsel on record; and that the impugned consent does not settle the matter. The applicant finally submits that this being a public interest matter, the applicant has satisfied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, SC application No 16 of 2014; [2014] eKLR for the grant of an order of extension of time and for an order of stay of execution; and
6.
Uponconsidering the 1st respondent’s replying affidavit sworn on July 7, 2023 by EG opposing the application and submissions dated July 11, 2023 to the effect that the application ought to be dismissed in its entirety on account of the consent dated June 29, 2023 entered into by the parties; that contrary to the applicant’s submissions, the applicant was at all times represented by the firm of Messrs Muma and Kanjama Advocates who were aware of the taxation ruling but failed to comply with the order of the court, thereby prompting the execution process; that as a matter of fact, on its own initiative, the applicant reached out to the 1st respondent’s counsel, Ms Ligunya, inviting her to a meeting on June 29, 2023 to enter into a consent for the settlement of the matter; that the consent was willingly and lawfully signed by the applicant’s Executive Director in the presence of the 1st respondent’s counsel on record upon refusal by the applicant’s counsel, Mr Kanjama, even after he was instructed by the applicant to execute the same; that the allegations of undue influence, duress and coercion, which have not been proved are merely a calculated move by the applicant to run away from its obligations after obtaining a favorable orders of stay on June 30, 2023; that the consent itself having preceded the orders of stay, the latter was of no effect having been overtaken by events; and that consequently the consent agreement settled the matter between the parties and there is nothing left for this court’s determination; and
7.
Further,noting the assertion by the 1st respondent that, the applicant is not deserving of the grant of orders for extension of time as it has at all times, through its conduct and that of its advocate, acted in a fraudulent and deceitful manner with the aim of defeating court orders; that it has failed to prove in a satisfactory manner the reasons for delay and in a casual manner attributed its failure to file the reference to the legal manager’s alleged illness; that no evidence had been tendered to suggest that the applicant’s advocates had communicated to the legal manager or to the applicant’s office of the court’s ruling; that in any event, the applicant has not rejected the decree as drawn by this court to hinge the same as a proper ground for review of the decision of the taxing master; that the application lacks merit and ought to be dismissed with costs; and that the court considers adopting the consent dated June 29, 2023 as entered into by the parties; and
8.
Having consideredthe application, affidavits and rival arguments by both parties, we now therefore opineas follows:
9.
The foregoing lengthy arguments, notwithstanding, we are only concerned in this ruling with two prayers; enlargement of time and stay of execution. 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. The guiding principles in considering an application for extension of time are well enunciated in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC application No 16 of 2014; [2014] eKLR but bears repeating:
“
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
v)
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
10.
Applying these principles, we note from the record that the taxation ruling in question was delivered by email to the parties on June 9, 2023. Under rule 62(1) of the Supreme Court Rules, 2020, “A person who is dissatisfied with a decision of the Registrar in the taxing of costs may refer the matter, within seven days to a single judge for determination.” Consequently, the applicant was required to have lodged its reference by June 16, 2023. This was not done and the reason advanced by the applicant was that the applicant’s legal affairs manager was indisposed as a result of which he was unable to review the said ruling and give instructions to counsel on record for the applicant. To corroborate these assertions, the applicant has attached a sick off form dated June 12, 2023 in respect of Lindon Otieno, the applicant’s legal affairs manager, as an illustration that he was away from office for 5 days. Based on this averment and evidence, we hold the view that the reason for the delay is plausible and satisfactory, in addition to the fact that the instant motion was brought without undue delay and the respondents have not shown any prejudice they stand to suffer if time sought is granted.
11.
Considering the applicant’s second prayer for stay of execution of the order arising from the taxation ruling, this court has, under section 23A of the Supreme Court Act, 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. The principles for grant of stay of execution as enunciated in Gatirau Peter Munya v Dickson Mwenda & 2 others, SC application No 5 of 2014; [2017] eKLR are, as it were, old hat. First, the applicant must satisfy the court that the appeal is arguable and is not frivolous; second, that unless the orders of stay are granted, the appeal will be rendered nugatory; and third, it is in the public interest that the order of stay be granted.
12.
Noting the appellant’s grievance with the Hon Deputy Registrar’s ruling that the bill of costs and decree were lodged and drawn contrary to rule 29 as well as paragraph 2(2) of the third schedule to the Supreme Court Rules, 2020 for the reason that the decree was neither drawn and certified nor was it lodged after making the order for costs; and that no draft order or decree was submitted by the 1st respondent to the applicant for approval. Besides these, both parties also have rival arguments regarding the validity of the consent agreement and whether it settled the matter between the parties. In our view, these issues which are to be raised in the intended reference are indeed arguable and not frivolous.
13.
Further noting that the impending and imminent threat of execution of the decree arising from the ruling will render the intended reference nugatory should the auctioneers proceed to sell and dispose of the proclaimed goods before the determination of the reference. Lastly, in view of the fact that the dispute involves a statutory body funded by public coffers, we are of the view that it is in public interest that the order of stay be granted pending the determination of the intended Reference. In the result, the strictures in section 23A of the Supreme Court Act and rule rule 15(5) of the Supreme Court Rules, 2020 together with the principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission (supra) and Gatirau Peter Munya v Dickson Mwenda & 2 others, have fully been met to warrant the granting of the two prayers.
14.
Cognizantthat, by the provisions of rule 62 of the Supreme Court Rules 2020, the jurisdiction to determine a reference on taxation is donated to a single judge as opposed to the full bench. Secondly, the applicant’s invitation of the court in this application to deem “the reference filed herein as properly filed” is untenable for a second reason. This court has laid the principle that once time is enlarged, the applicant must properly and formally lodge the document, serve it and pay fees for it. The court cannot sanitize by “deeming” documents irregularly lodged before granting leave. It is presumptive and inappropriate to file a document out of time and then seek the court to extend the time. See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (supra) and Kenya Hotel Properties Limited v Attorney General & 5 others, SC application 2 of 2021; [2021] eKLR. The proper course is to file and serve the reference for consideration before a single judge.
15.
On costs, the 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. In exercise of our discretion, we defer the costs of this application to await the ultimate outcome of the reference on taxation.
16.
Accordingly, we make the following orders:
The applicant’s notice of motion dated June 24, 2023 be and is hereby allowed in the following terms:
i)
Leave be and is hereby granted to the applicant to file and serve the reference against the decision of the Deputy Registrar on taxation of costs dated June 9, 2023 within 7 days of delivery of this ruling.
ii)
An order staying the execution of the order of the Deputy Registrar of this court dated June 9, 2023 commenced by the 1st respondent, including an order restraining the 1st respondent and Zasha Auctioneers, their agents and/or employees, and/or any person acting under their instructions or directions from selling, dealing, interfering, alienating or disposing of any of the applicant’s property and/or household equipment be and is hereby issued pending the determination of the reference on taxation.
iii)
Costs of this application shall abide the outcome of the reference on taxation.
iv)
We direct that the file be placed before the Deputy Registrar of the court for the purposes of issuing directions on the filing of the reference on taxation and the subsequent exchange of submissions.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/78/eng@2023-09-22 |
Petition 6 of 2014 | Outa v Odoto & 3 others (Petition 6 of 2014) [2023] KESC 75 (KLR) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Outa v Odoto & 3 others | [2023] KESC 75 (KLR) | null | Court Act and Rule 62 of the Supreme Court Rules 2020 in which the only relief now left is for the single Judge to consider reviewing the decision of the Deputy Registrar dated 9th June 2023 on the Bill of Costs with respect to items Nos. 1, 2, 3, 5, 13, 14, 19, 20, 25, 26, 35, 36,37 and 40 and;
2.
Bearing in mind that the taxation in dispute arises from an election petition in which Fredrick Otieno Outa, the appellant was found to have been properly elected Member of the Parliament for Nyando Constituency in the 2013 general elections, and the appellant’s costs in the High Court, Court of Appeal and the Supreme Court were to be borne by Jared Odoyo Okelo, the 1st respondent; and
3.
Upon perusing the three affidavits sworn by the 1st respondent on 16th June 2023, 3rd July 2023, and 7th July 2023 as well as the affidavit sworn by Bruce Odiwor Odeny on 3rd July 2023 in support of the Motion as well as the submissions and supplementary submissions by the 1st respondent filed on 22nd June 2023 and 4th July 2023, respectively, wherein he explains that the imminent execution will diminish his political career and cause him irreparable loss incapable of being compensated in monetary terms; that he had raised an objection to the Bill of Cost dated 20th August 2014, and sought for its dismissal because it was not served within the mandatory seven days as provided for under clause 2(1) of the Third Schedule of the Supreme Court Rules 2012; that the Deputy Registrar, however, noted that the Supreme Court Rules 2012 did not provide for any sanctions therein and in any event, the issue had been overtaken by events; that the Deputy Registrar deliberately failed to apply the sanctions under Rule 55(a) and (b); and
4.
Upon further considering the 1st respondent’s submissions to the effect that pertaining to item No. 1, the Deputy Registrar disregarded the ratio enunciated by the Court of Appeal sitting in Nyeri in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 Others; CA No. 12 of 2018; [2018] eKLR to the effect that an award of costs is not a punishment or a deterrent measure to scare away litigants from the doors of justice; that the Deputy Registrar misdirected himself by failing to take into account all the conditions set out under clause 9(2) of the Third Schedule in awarding instruction fees; that with regard to item No. 2, the scale provides for Kshs. 1000; that with regard to items Nos. 3, 13, 14, 19, 20, 25, and 26, the advocate did not sign a certificate that the number of folios in respect of any item charged was correct and the Deputy Registrar confirmed the same and found 51 folios as opposed to 2671 folios but allowed the costs anyway; and that on item No. 5, the only air ticket produced had a figure of Kshs. 4,800 but the Deputy Registrar awarded Kshs. 12,460 instead; and
5.
Noting that the appellant in his preliminary objection, replying affidavit, and written submissions all filed on 3rd July 2023 is opposed to the application on grounds that counsel for the 1st respondent lacks audience before this Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules; that Rule 55(a) and (b) is discretionary and the Deputy Registrar exercised this discretion judiciously in issuing directions with respect to the appellant’s Bill of Costs; that the notice of objection having been filed way after compliance of the said directions had been overtaken by events; that in any event, the 1st respondent was represented by counsel on 13th March 2023 and 11th April 2023 when the said directions were issued and failure by counsel on record to raise an objection on the said dates cannot be visited on the Deputy Registrar; and
6.
Further Noting the appellant’s argument that pursuant to clause 9(2) of the Third Schedule of the Supreme Court Rules 2012, the Deputy Registrar found that indeed the appeal raised complex questions of law and facts, taking into account that this was the second appeal before this Court following the promulgation of the Constitution in 2010 and a lot of research and industry was employed by the appellant’s team to ensure success, hence the instruction fees awarded by the Deputy Registrar was reasonable; that item No. 2 of the Bill of Costs was awarded according to scale in the Third Schedule to the Supreme Court Rules 2012, that is Kshs. 2000; that pertaining to item Nos. 3, 13, 14, 19, 20, 25, and 26, clause 3(2)(c) of the Third Schedule relied on by the 1st respondent, allows the Deputy Registrar to exercise discretion which discretion was duly and properly exercised.
In view of the foregoing, I, Now Therefore Opine As Follows:
7.
In the first place, the appellant filed his Bill of Costs on 21st August 2014. For some unknown reasons, it has taken more than 9 years and two election cycles for the Bill to be taxed. The second thing to note is that the appellant has in his arguments as reflected in paragraph 5 above, repeatedly referred to provisions of the Civil Procedure Rules for the arguments that counsel for the 1st respondent lacked audience before the Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules. By the provision of Section 1 (2) of the Civil Procedure Act and the Rules made pursuant to it, these provisions have no application before this Court. Civil proceedings in this Court are regulated by the Supreme Court Rules.
8.
The Registrar, as the taxing officer, has the power to tax costs arising out of any proceedings before this Court, between the parties in accordance with the scale set out in the Third Schedule to the Rules and the jurisdiction of a single Judge 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. The applicable law at the time of filing the Bill of Costs in 2014 was the Supreme Court Rules 2012 and the Third Schedule thereunder which, in contrast with the 2020 Rules, permitted any person dissatisfied with the decision of a single judge to apply to the Court to vary, discharge or reverse the decision. However, following the promulgation of the 2020 Rules, this has changed so that the decision of a single judge in a reference on taxation, just like in the case of review of any decision of the Registrar under Rule 6, is final.
9.
In the exercise of that function the taxing officer, in his ruling of 9th June 2023 taxed the bill at Kshs. 6,184,590, the main bone of contention being instruction fees. While the appellant had sought Kshs. 10,000,000 under this item, the taxing officer awarded Kshs. 6,000,000, based, first on the complexity of the question the appeal raised and secondly, guided by previously decided cases, all of which appear to have taxed the bills presented at half the amount sought.
10.
The principles of setting aside the decision of a Taxing Officer are now old hat, going by the numerous decisions of the superior courts below. As early as 1972 these principles were propounded by Spry VP, in the leading case of Premchand Raichand Limited & Another v. Quarry Services of East Africa Limited and Another; [1972] EA 162, which has been approved in a long line of subsequent rulings, for example, First American Bank of Kenya v. Shah and Others; (2002) EA 64 and Joreth Ltd v. Kigano and Associates (2002); 1 EA 92, to name but two.
11.
| Upon perusing this application brought pursuant to the provisions of Sections 3A and 23(2)(e) and (i) of the Supreme Court Act and Rule 62 of the Supreme Court Rules 2020 in which the only relief now left is for the single Judge to consider reviewing the decision of the Deputy Registrar dated 9th June 2023 on the Bill of Costs with respect to items Nos. 1, 2, 3, 5, 13, 14, 19, 20, 25, 26, 35, 36,37 and 40 and;
2.
Bearing in mind that the taxation in dispute arises from an election petition in which Fredrick Otieno Outa, the appellant was found to have been properly elected Member of the Parliament for Nyando Constituency in the 2013 general elections, and the appellant’s costs in the High Court, Court of Appeal and the Supreme Court were to be borne by Jared Odoyo Okelo, the 1st respondent; and
3.
Upon perusing the three affidavits sworn by the 1st respondent on 16th June 2023, 3rd July 2023, and 7th July 2023 as well as the affidavit sworn by Bruce Odiwor Odeny on 3rd July 2023 in support of the Motion as well as the submissions and supplementary submissions by the 1st respondent filed on 22nd June 2023 and 4th July 2023, respectively, wherein he explains that the imminent execution will diminish his political career and cause him irreparable loss incapable of being compensated in monetary terms; that he had raised an objection to the Bill of Cost dated 20th August 2014, and sought for its dismissal because it was not served within the mandatory seven days as provided for under clause 2(1) of the Third Schedule of the Supreme Court Rules 2012; that the Deputy Registrar, however, noted that the Supreme Court Rules 2012 did not provide for any sanctions therein and in any event, the issue had been overtaken by events; that the Deputy Registrar deliberately failed to apply the sanctions under Rule 55(a) and (b); and
4.
Upon further considering the 1st respondent’s submissions to the effect that pertaining to item No. 1, the Deputy Registrar disregarded the ratio enunciated by the Court of Appeal sitting in Nyeri in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 Others; CA No. 12 of 2018; [2018] eKLR to the effect that an award of costs is not a punishment or a deterrent measure to scare away litigants from the doors of justice; that the Deputy Registrar misdirected himself by failing to take into account all the conditions set out under clause 9(2) of the Third Schedule in awarding instruction fees; that with regard to item No. 2, the scale provides for Kshs. 1000; that with regard to items Nos. 3, 13, 14, 19, 20, 25, and 26, the advocate did not sign a certificate that the number of folios in respect of any item charged was correct and the Deputy Registrar confirmed the same and found 51 folios as opposed to 2671 folios but allowed the costs anyway; and that on item No. 5, the only air ticket produced had a figure of Kshs. 4,800 but the Deputy Registrar awarded Kshs. 12,460 instead; and
5.
Noting that the appellant in his preliminary objection, replying affidavit, and written submissions all filed on 3rd July 2023 is opposed to the application on grounds that counsel for the 1st respondent lacks audience before this Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules; that Rule 55(a) and (b) is discretionary and the Deputy Registrar exercised this discretion judiciously in issuing directions with respect to the appellant’s Bill of Costs; that the notice of objection having been filed way after compliance of the said directions had been overtaken by events; that in any event, the 1st respondent was represented by counsel on 13th March 2023 and 11th April 2023 when the said directions were issued and failure by counsel on record to raise an objection on the said dates cannot be visited on the Deputy Registrar; and
6.
Further Noting the appellant’s argument that pursuant to clause 9(2) of the Third Schedule of the Supreme Court Rules 2012, the Deputy Registrar found that indeed the appeal raised complex questions of law and facts, taking into account that this was the second appeal before this Court following the promulgation of the Constitution in 2010 and a lot of research and industry was employed by the appellant’s team to ensure success, hence the instruction fees awarded by the Deputy Registrar was reasonable; that item No. 2 of the Bill of Costs was awarded according to scale in the Third Schedule to the Supreme Court Rules 2012, that is Kshs. 2000; that pertaining to item Nos. 3, 13, 14, 19, 20, 25, and 26, clause 3(2)(c) of the Third Schedule relied on by the 1st respondent, allows the Deputy Registrar to exercise discretion which discretion was duly and properly exercised.
In view of the foregoing, I, Now Therefore Opine As Follows:
7.
In the first place, the appellant filed his Bill of Costs on 21st August 2014. For some unknown reasons, it has taken more than 9 years and two election cycles for the Bill to be taxed. The second thing to note is that the appellant has in his arguments as reflected in paragraph 5 above, repeatedly referred to provisions of the Civil Procedure Rules for the arguments that counsel for the 1st respondent lacked audience before the Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules. By the provision of Section 1 (2) of the Civil Procedure Act and the Rules made pursuant to it, these provisions have no application before this Court. Civil proceedings in this Court are regulated by the Supreme Court Rules.
8.
The Registrar, as the taxing officer, has the power to tax costs arising out of any proceedings before this Court, between the parties in accordance with the scale set out in the Third Schedule to the Rules and the jurisdiction of a single Judge 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. The applicable law at the time of filing the Bill of Costs in 2014 was the Supreme Court Rules 2012 and the Third Schedule thereunder which, in contrast with the 2020 Rules, permitted any person dissatisfied with the decision of a single judge to apply to the Court to vary, discharge or reverse the decision. However, following the promulgation of the 2020 Rules, this has changed so that the decision of a single judge in a reference on taxation, just like in the case of review of any decision of the Registrar under Rule 6, is final.
9.
In the exercise of that function the taxing officer, in his ruling of 9th June 2023 taxed the bill at Kshs. 6,184,590, the main bone of contention being instruction fees. While the appellant had sought Kshs. 10,000,000 under this item, the taxing officer awarded Kshs. 6,000,000, based, first on the complexity of the question the appeal raised and secondly, guided by previously decided cases, all of which appear to have taxed the bills presented at half the amount sought.
10.
The principles of setting aside the decision of a Taxing Officer are now old hat, going by the numerous decisions of the superior courts below. As early as 1972 these principles were propounded by Spry VP, in the leading case of Premchand Raichand Limited & Another v. Quarry Services of East Africa Limited and Another; [1972] EA 162, which has been approved in a long line of subsequent rulings, for example, First American Bank of Kenya v. Shah and Others; (2002) EA 64 and Joreth Ltd v. Kigano and Associates (2002); 1 EA 92, to name but two.
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.
12.
Starting with item No. 1 and guided by Rule 9 (2) of the Third Schedule to the effect that the fees allowed for instructions to appeal or to oppose an appeal is in the discretion of the taxing officer and shall be such sum as he shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the person to bear the costs and all other relevant circumstances; and shall include all the work done in connection with the appeal, including attendances, correspondence, perusals, and consulting authorities. 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.
13.
Before applying these principles to the facts in this reference, it has to be restated that the genesis of this reference is an election petition that transcended the High Court through the Court of Appeal up to this Court; and that at every stage the appellant was successful and awarded costs. Whereas the main issue in contestation was whether the appellant committed an electoral offence of bribery, this Court also determined issues of constitutionality of Section 85A of the Elections Act on the restriction of the jurisdiction of the Court of Appeal to ‘matters of law only’ in election-dispute appeals, as well as whether members of Constituency Development Fund are “public officers” under the Constitution. In our judgment of 3rd July 2014, we declared at paragraph 211 that the appeal raised complex questions of law and fact and awarded the appellant costs against the 1st respondent from the High Court, Court of Appeal, and in this Court.
14.
The taxing officer rendered himself as follows in his consideration of item No.
1.
(Instruction fees);
“
I have on my part been guided by the decision of the Superior courts in such matters and the decision of my predecessors in this court and I am satisfied that the instruction fees sought for herein is excessive. For instance, in Sc Petition No. 24 Of 2018 Hon. Clement Kungu Waibara vs Hon. Annie Wanjiku Kibeh & Another where the Petitioner had sought for instruction fees of Kshs. 1,000,000.00, my predecessor taxed it at Kshs.600,000.00. In Sck Petition No. 23 of 2018 Sammy Kemboi Kipkeu vs Bowen David Kangogo the petitioner had sought for instruction fees of Kshs. 1,000,000.00 but it was taxed at Kshs. 500,000.00.
(17)
It is evident from the two decisions referred to by the 1st respondent that; my predecessor reduced instruction fees by half or thereabouts” With that, the taxing officer proceeded to tax item No.1 at Kshs. 6,000,000.00 (Kenya shillings six million only).
15.
Although taxation is not a mathematical exercise but a discretionary process the taxing officer merely purported to mechanically reduce to half the instruction fees claimed because that is what his predecessors had done previously. There has to be some justification for doing so. Even looking at some of the authorities relied upon, the principle adopted here by the taxing officer was still flawed and the amount taxed was manifestly excessive as to amount to an injustice. The taxing officer, after properly setting out the criteria of taxation in Rule 9(2) of the Third Schedule, and stressing the complexity of the appeal, put undue consideration on reducing the amount claimed into half and ignored the fact that in the High Court appellant was awarded an all-inclusive cost of Kshs. 750,000, and Kshs. 350,000 as instruction fees by the Court of Appeal. The taxing officer ought to have also been guided by a legion of decisions of the superior courts on costs in election petitions. Those decisions emphasize that costs are not meant to be punitive but to compensate a successful litigant; that high costs are an impediment to the right to access to justice and; that in awarding costs, courts must be guided by the principles of fairness, justice, and access to justice. See Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others; [2013] eKLR, Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others (supra); Dennis Magare Makori & Another v IEBC & 3 Others, Kisumu Election Petition Appeal No. 22 of 2018; and Philip Kyalo Kaloki v IEBC & 2 Others, Election Petition Appeal 25 of 2018.
16.
It was as a result of concerns over high awards of costs in election petitions that in 2017, Elections (Parliamentary and County Elections) Petitions Rules were promulgated, introducing a mechanism for capping costs in election petitions, whose rationale is to extend a fair and consistent compensation of costs incurred by the successful litigants and to deter unjust enrichment through inflated bills of costs. Rule 30 thereof enjoined election courts, at the conclusion of a petition or appeal, to make an order specifying-
(a)
the total amount of costs payable;
b.
the maximum amount of costs payable;
b.
the person who shall pay the costs under paragraph (a) or (b); and
c.
the person to whom the costs payable under paragraphs
(a)
and (b) shall be paid”.
17.
In many election petitions today which have been heard fully and decided on merit, costs have been capped by courts at no more than Kshs. 2.5 million or 3 million. Going by these trends, an award of Kshs. 6 million is a new record high. In Esposito Franco v Amason Kingi Jeffah & 2 Others [2014] eKLR, costs were capped at a total of Kshs. 3 million to be shared equally by all the 3 respondents. In Marble Muruli v Wycliffe Oparanya & 3 others [2013] eKLR, costs were capped at Kshs.5 million to be shared between the petitioner, 1{{^st}respondent and the 2nd respondent. In Ferdinard Ndungu Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2013] eKLR the court capped the total costs at Kshs.5 million, payable to all the 5 respondents jointly. In Jackton Ranguma v IEBC & others [2017] Kshs.2.5 million was awarded to the 1st and 2nd respondents, in Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others (supra), the Court of Appeal capped the total costs at Kshs.2.6 million for 3 respondents. Owino Paul Ongili Babu, the 1st respondent in Francis Wambugu v Owino Paul Ongili Babu; SC Petition No. 15 of 2018, had sought Kshs. 30 million as instruction fees but the taxing officer in this Court awarded Kshs. 2 million. Similarly and finally, in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others (supra), the Court of Appeal reduced costs of Kshs.10 million awarded by the High Court to Kshs.2 million.
18.
In the circumstances, I come to the conclusion that the taxing officer committed an error of principle in awarding Kshs. 6 million as instruction fees. This, as I have shown was manifestly excessive, and did not take into account the consistent levels of awards given for instruction fees in previous similar cases. Of course, on the other hand, the amount of Kshs. 500,000 proposed by the 1st respondent, is manifestly deficient.
19.
Taking into account everything else stated in the preceding paragraphs, it is my considered opinion that an award of Kshs. 1,000,000 is sufficient recompense to the appellant in the circumstances of this reference. While there is no gain in saying that the appeal was of some substance and import, as reflected in the length of the judgment running into 211 paragraphs, I reiterate what I stated at the beginning of this ruling that the only (main) question in the petition was simply whether the appellant had committed the election offence of bribery, for which the High Court awarded an all-inclusive costs Kshs. 750,000, and the Court of Appeal Kshs. 350,000. Of course, the question of the constitutionality of Section 85A of the Elections Act and whether Constituency Development Fund (CDF) Members are “public officers” was also resolved.
20
Finally, regarding items Nos. 2, 3, 13, 14, 19, 20, 25, 26, 35, 36, 37, and 40, I am satisfied they were all properly taxed to scale, and therefore attract no further consideration.
21.
Consequently, this reference succeeds only to the extent that Item No. 1 taxed at Kshs.6 million is set aside and substituted with a sum of Kshs. 1 million. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/75/eng@2023-09-22 |
Application E016 of 2023 | Sanitam Services (EA) Limited v Nyaga & another (Application E016 of 2023) [2023] KESC 81 (KLR) (Civ) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Sanitam Services | [2023] KESC 81 (KLR) | null | Brief facts
The originating motion sought among other orders: the review/ setting aside the ruling, orders and decision of the Court of Appeal in Civil Application No. E089 of 2021; the certification of the matter as fit for determination by the court against the decision and judgment of the Court of Appeal in C.A. No. 10 of 2019. The applicant contended that the Court of Appeal’s finding and judgment in Civil Appeal No. 10 of 2019 which was based on an additional principle/ingredient of defamation had no foundation in law; that was, the requirement for evidence by a third party to establish injury to a person’s reputation. According to the applicant, the requirement, albeit erroneous, had often been applied by the courts below and therefore the intended appeal presented the Supreme Court with an opportunity to resolve the anomaly and error.
The applicant further contended that the requirement for evidence by a third party violated and ousted the applicant’s inherent right to dignity. The applicant also found that despite appreciating that the 1st respondent had admitted to the four known legal principles/ingredients of defamation, the Court of Appeal found the applicant had not established the erroneous additional principle; and the effect of such a finding was that it altered the entire body of law relating to admissions. The respondents contended that: the application had not met the test for certification as raising matters of general public importance.
Issues
Whether a mere apprehension of a miscarriage of justice was a proper basis for granting certification for an appeal to the Supreme Court.
| 1.
Upon perusing the originating motion dated April 13, 2023 and filed on May 25, 2023, pursuant to article 163(4) of the Constitution, and rules 24 and 26 of the Supreme Court Rules, seeking the following orders:
1.
The ruling, orders and decision of the court of Appeal of March 31, 2023 in Civil Application No E089 of 2021 be reviewed/set aside.
2.
This honourable court be pleased to certify this matter as fit for determination by the Supreme Court against the decision and Judgment of the Court of Appeal in CA No 10 of 2019.
3.
As a consequence, thereof, the applicant be granted leave to appeal to the Supreme Court.
4.
That as a consequence thereto this honourable court be pleased to, inter alia, formulate the following issues for consideration in the intended appeal:
i.
Is the principle of third-party evidence one of the principles of the law requisite in defamation proceedings?
ii.
Is third party’s evidence the best evidence in defamation proceedings?
iii.
Did the Court of Appeal by its findings and judgment oust the applicant’s inherent right to dignity under article 28 of the Constitution of Kenya?
iv.
Was there a violation and infringement of the applicant’s rights under article 25(c) and 28 of the Constitution of Kenya?
v.
Is it time for the courtto reinterpret and correct the precedent set out in legal dicta in regard to defamation in light of article 25(c) and 28 of the Constitution of Kenya?
5.
Cost be provided for.
2.
Upon perusing the grounds on the face of the application and the supporting affidavit by the applicant’s Director, SM Kamau Ng’ang’a, sworn on April 13, 2023 where he contends that: the legally established ingredients for the tort of defamation are that the statement in issue must be defamatory, it must refer to the plaintiff, it must be published by the defendant and it must be false; the Court of Appeal’s finding and judgment in Civil Appeal No 10 of 2019 which was based on an additional principle/ingredient which has no foundation in law; that is, the requirement for evidence by a third party to establish injury to a person’s reputation; the aforementioned requirement, albeit erroneous, has often been applied by the courts below; therefore the intended appeal presents the Supreme Court with an opportunity to resolve the anomaly and error; the requirement for evidence by a third party violates and ousts the applicant’s inherent right to dignity under article 28 of the Constitution; despite appreciating that the 1st respondent had admitted to the four known legal principles/ingredients of defamation, the Court of Appeal found the applicant had not established the erroneous additional principle; and the effect of such a finding is that it altered the entire body of law relating to admissions; and
3.
Upon Further considering the applicant’s grounds that: the Court of Appeal’s reliance on irrelevant case law violates articles 164 and 166 of the Constitution; whereas it was a second appeal, the Court of Appeal took into account matters of fact including facts that had neither been raised nor canvassed at the trial and appellate court contrary to article 25(c) of the Constitution; the impugned judgment violates sections 17, 20, 22, 23, 100, 107, 117, 119, 143 and 162 of the Evidence Act; the issues sought to be raised in the intended appeal transcend the parties dispute and are of general public interest; and
4.
Upon considering the applicant’s submissions dated May 22, 2023and filed on May 25, 2023where it contends that: its intended appeal meets the test and threshold set out in the Court of Appeal decision in Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture Horticulture and Allied Workers Union Sup Case No 5 of 2017 [2018] eKLR; there is need for interpretation of articles 25(c), 28, 33(3) of the Constitution relating to the right to fair trial, dignity and freedom of expression given that persons must be protected from reputational risks; other jurisdictions such as India, United Kingdom, USA, Australia and Nigeria do not require that harm or injury to a person’s reputation should be proved by evidence of a third party witness under the respective laws;
5.
Noting that the respondents did not file any response to the application but only filed the submissions dated June 20, 2023 on June 23, 2023wherein they contend that: the application has not met the test for certification as raising matters of general public importance relying on this court’s decisions in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone SC Application 4 of 2013 [2013] eKLR, and Malcolm Bell v Daniel Toroitich Arap Moi & another, Supreme Court Application No 1 of 2013 [2013] eKLR which the Court of Appeal correctly applied; the matter does not raise any substantial point of law with a bearing on public interest but is a dispute that arose between two private entities; it has not been demonstrated that there is uncertainty in the law of defamation within our jurisdiction nor have there been contradictory precedents thereto; the applicant has failed to concisely set out the specific elements of general public importance in the present dispute but merely alleges breach of numerous constitutional and statutory provisions without providing a cogent nexus to public interest; and
6.
Noting that the applicant has not specified whether the application is made under article 163(4)(a) or (b) of the Constitution, we take cognizance of the fact that the substance of the application and the orders sought relate to article 163(4)(b) which grants this court jurisdiction to hear appeals from the Court of Appeal on matters of general public importance; and
7.
Taking into Account this court’s guiding principles for certifying a matter as one involving general public importance set out in Hermanus Phillipus Steyn case, we Now Opine as follows:
i.
The issues for determination in the substantive appeal before the Court of Appeal were whether the learned Judge of the High Court rightly found that the ingredients for the tort of defamation were proved on a balance of probabilities; whether the learned Judge rightly reduced the award from Kshs 7 million to Kshs 2 million; and specifically whether to succeed in the claim for defamation, it was incumbent upon the applicant herein to prove that as a consequence of the letters referred to, the operative words being, “..that Sanitam Service have approached many of our customers with similar warnings in the recent past with clear intent to acquire business through unscrupulous ways…” and “…this is illegal approach..” its character and reputation was diminished.
ii.
In summary, the five questions set out by the applicant as matters of general public importance are whether third party evidence is a prerequisite in defamation, and whether there was a violation of the applicant’s rights underarticles 25(c) and 28 of the Constitution, which in our view are factual issues specific to the parties’ circumstances and do not transcend the parties’ dispute;
iii.
The applicant has not established any contradiction or uncertainty in law arising from the Court of Appeal judgment in respect to its decision on the ingredients of the tort of defamation, and the attendant law that requires settlement by this Court. On the alleged violation of articles 25(c), 28, 164 and 166 of the Constitution by the Court of Appeal, the same is not subject to the Court’s jurisdiction under article 163(4)(b) of the Constitution;
iv.
We reiterate, as we have in previous decisions of the court, that a mere apprehension of a miscarriage of justice, is a matter most apt for resolution in the superior courts below, and is not a proper basis for granting certification for an appeal to the Supreme Court;
v.
We have perused the impugned Court of Appeal ruling and are satisfied that the Court of Appeal correctly interrogated the applicants’ proposed issues under the threshold set by this Court in Hermanus Phillipus Steyn case. We affirm the appellate court’s decision in declining to certify the questions raised by the applicant as matters of general public importance that would necessitate the exercise of this court’s jurisdiction under article 163(4)(b) of the Constitution;
8.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/81/eng@2023-09-22 |
Petition (Application) E005 of 2023 | Stanbic Bank Kenya Limited v Santowels Limited (Petition (Application) E005 of 2023) [2023] KESC 82 (KLR) (22 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 22 September 2023 | 2,023 | Nairobi | Civil | Stanbic Bank Kenya Limited v Santowels Limited | [2023] KESC 82 (KLR) | null | Brief facts
The appeal arose from issues revolve around the interpretation of whether the rate of interest applied by a financial institution and the variation/increase thereof was subject to the approval of the Cabinet Secretary in charge of finance or within the parties’ freedom to contract. The Court of Appeal certified the matter as one raising issues of general public importance and the matter found its way to the Supreme Court.
In the instant application, the Attorney General sought leave to be joined as amicus curiae. The applicant also sought for the Cabinet Secretary for Finance and National Treasury to be joined as an amicus curiae.
Issues
Whether an applicant that had not sought to review the decision by the Court of Appeal to certify an appeal to the Supreme Court as one raising issues of public importance could contest the certification during the hearing of the substantive appeal at the Supreme Court
Whether a delay in filing pleadings on grounds that an applicant was waiting for the court to determine the pending applications was unreasonable.
What factors guided the Supreme Court in deterring an application to be joined as amicus curiae?
| Upon perusing the notice of motion dated July 18, 2023 and lodged on July 25, 2023 by Stanbic Bank Kenya Limited (the applicant) under rules 3, 19(1)(2) & (4) and 31 of the Supreme Court Rules, 2020 seeking the following orders:
a.
Leave be granted by this court for the Cabinet Secretary for Finance & National Treasury (sic) to be joined as an amicus curiae to this appeal.
b.
The costs of this application be provided for.
2.
Noting that while the applicant seeks the admission of the Cabinet Secretary for Finance and National Treasury (sic), it probably meant the Cabinet Secretary, National Treasury and Economic Planning (the Cabinet Secretary); and that throughout its application and supporting affidavit thereto, the applicant refers to the Cabinet Secretary and the Attorney General interchangeably;
3.
Taking into account the affidavit in support of the motionsworn by the applicant’s Head of Legal, Litigation and Corporate Functions, June Opiyo, on July 18, 2023 and the applicant’s submissions of even date to the effect that; firstly, the appeal herein raises substantial matters of general public importance; the issues revolve around the interpretation of sections 44 and 52 of the Banking Act; that is, whether the rate of interest applied by a financial institution and the variation/increase thereof is subject to the approval of the Minister (now known as the Cabinet Secretary) in charge of finance or within the parties freedom to contract; and the issues are cross cutting and affect the entire banking industry;
4.
Secondly, upon filing the appeal herein, the applicant by a letter dated March 6, 2023 informed the Attorney General of the same and served him with copies thereof; the Attorney General has significant experience in law, legislative amendments as well as the roles and workings of the Cabinet Secretary; the participation of the Attorney General/Cabinet Secretary will be of valuable assistance to this court; thirdly, the intended amicus curiae meets the criteria under rule 19 of the Supreme Court Rules, 2020; the Attorney General meets the neutrality test set out in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others, SC Petition No 12 of 2013; [2015] eKLR (Mumo Matemo); the motion has been brought without delay; and lastly, no prejudice will be occasioned to the parties by the admission of the intended amicus curiae;
5.
Cognizant that Santowels Ltd (the respondent) by a replying affidavit sworn by its advocate on record, Kelvin Mogeni, on August 2, 2023 and written submissions of even date opposed the motion on the grounds that; the crux of the appeal relates to the applicant overcharging interest on the respondent’s loan account; no issue arose as to the application of sections 44 and 52 of the Banking Act in the superior courts below; in any event, while interpreting sections 44 and 52 of the Banking Act that duty falls on the court and not the Cabinet Secretary; the appeal does not raise any matter of public importance or public interest to warrant the intended amicus curiae’s participation; moreover, the motion was brought late contrary to rule 19(4) of the Supreme Court Rules, which requires such a motion to be lodged within seven (7) days of filing any response in the appeal; the appeal was filed on March 1, 2023 while the respondent filed its response vide a cross appeal dated March 23, 2023 and a replying affidavit dated March 24, 2023; it follows that the motion should have been filed within seven
(7)
days of filing of the cross appeal; the intended amicus curiae has not filed any application for admission as required by rules 6 and 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules); and the admission of the intended amicus curiae would only convolute the matter;
6.
Appreciating that when the Motion was mentioned before the Deputy Registrar of this court on August 7, 2023, counsel for the applicant indicated that the intended amicus curiae had been served although the intended amicus curiae had not filed any brief or response to the motion; and
7.
Bearing in mind the role of an amicus curiae in any proceedings is to aid the court to arrive at a determination based on the law. See Attorney General v Ndii & 73 others; Akech (Intended amicus curiae), SC Petition (Applic) No E016 of 2021; [2021] KESC 20 (KLR). Further, that the operative provision that guides the court in considering the admission of an amicus curiae is rule 19 of the Supreme Court Rules, 2020 which reads –
“
19.
Participation of friends of the court
1.
The court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the court.
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.
3.
Any fees or expenses incurred by a person appointed by the court as a friend of the court on its own motion, shall be paid out of the Judiciary Fund, in accordance with a scale determined by the President.
4.
An application to be admitted as an amicus or a friend of the court shall be done within 7 days upon filing of a response in any proceedings before the court.”
8.
Upon deliberations on the motion and the rival submissions we opine as follows:
i.
It is not disputed that the appeal herein was lodged under article 163(4)(b) of the Constitution. In point of fact, the Court of Appeal in certifying that the appeal raised issues of general public importance by its ruling dated February 17, 2023 in Civil Applic (Sup) No E196 of 2022 expressed as follows:
“
We have also considered the applicant’s grounds in support of certification and in our view, the intended appeal primarily revolves around the proper interpretation and application of sections 44 and 52 of the Banking Act. As we understand it, the applicant is saying that the courts have given different interpretation on instances when the consent of the minister in charge of finance is required and instances when the parties have freedom of contract to agree on the rate of interest, including the right to vary that rate.
Having considered the issue, we find there is uncertainty in the law arising from the contrary views in the High Court and this court on the question of the rate of interest and banking charges which requires certainty. The battle on whether banks have a free hand to change any rate of interest and banking charges and whether customers can wake up many years after signing contractual documents to challenge the rate of interest has been ranging in our courts for a long time and requires clarification.”
ii.
It is also common ground that the respondent did not seek a review of the above order of certification. Accordingly, the respondent cannot now be heard to claim that the appeal does not raise any issue of general public importance.
iii.
As to the competence of the motion which was filed by the applicant as opposed to the intended amicus curiae, rule 19(1) of the Supreme Court Rules is clear. It provides that any party can request the court to admit a person as amicus curiae. Furthermore, this court in Mumo Matemo confirmed that it can consider suggestions from parties to any proceedings, to have a particular person, state organ or organization admitted in any proceedings as amicus curiae.
iv.
It is not clear to us who between the Cabinet Secretary and the Attorney General, the applicant seeks to be admitted as amicus curiae. As we pointed out earlier in this ruling, the applicant refers to both of them interchangeably. Be that as it may, while we have no doubt as to the Attorney General’s expertise, the applicant has not demonstrated that the intended amicus curiae would be addressing point(s) of law which have not been addressed by the parties to the suit. In other words, that he would introduce novel aspects of the legal issues in question that will aid in the development of the law. See Mumo Matemo.
v.
Besides, it would appear that neither the Attorney General nor the Cabinet Secretary is keen in participating in this matter. The applicant deposed that it served the Attorney General with its appeal on March 6, 2023. What is more, despite being served with motion, the intended amicus curiae have not filed any response or brief setting out their position. Equally, we find that no prejudice would be occasioned to the Cabinet Secretary or the Attorney General if they are not admitted as amicus curiae. See JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Amici Curiae), SC Petition (Applic) No 11 of 2020; [2021] eKLR.
vi.
Last but not least, the applicant lodged its appeal on March 1, 2023 while the respondent lodged its cross appeal and replying affidavit on 22nd and March 24, 2023 respectively. It is not clear why the applicant chose to file the motion at hand on July 25, 2023. Moreover, the explanation that the applicant could not file the motion because of another pending application for joinder of Kenya Bankers Association as an interested party, which was only determined on June 16, 2023 holds no weight. Nothing stopped the applicant from filing its motion as an application for joinder of an interested party has no bearing on admission of an amicus curiae. In fact, in many instances this court has determined such applications simultaneously. Consequently, we find that the motion at hand was lodged after unreasonable delay.
vii.
Based on the foregoing, the motion does not meet the criteria set out under rule 19 of the Supreme Court Rules and lacks merit. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/82/eng@2023-09-22 |
Petition 5 (E006) of 2022 | Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 22 September 2023 | 2,023 | Nairobi | Civil | Torino Enterprises Limited v Attorney General | [2023] KESC 79 (KLR) | null | A. Introduction
1.
Before this court is the petition dated March 14, 2022 and filed on March 16, 2022. It is brought under articles 10(1) and (2), 19, 22, 27 (1) and (2), 50(1) and 163(3)(b) and (4)(a), of the Constitution and section 15(2) of the Supreme Court Act, 2011, challenging the judgment and orders of the Court of Appeal (Musinga (P), Murgor & Mohamed JJA) delivered in Civil Appeal No 84 of 2012 on February 4, 2022. The impugned decision overturned the High Court (Gacheche, J as she then was) in Constitutional Petition No 38 of 2011.
B. Background
i.At the High Court
2.
On February 21, 1964, a freehold title known as Embakasi LR No 11xxx (Original No 41/x) measuring 5639 acres was alienated and granted to Kayole Estates Limited. Thereafter, this parcel of land was transferred to the then Nairobi City Council (hereinafter NCC) for valuable consideration and a transfer duly registered on November 22, 1971. In 1973, the parcel of land was subdivided into eight parcels. One such parcel is LR No 22xxx, Grant No IR 85966 situate within the City of Nairobi and measuring 83.910 hectares (hereinafter the Suit Property).
3.
In a plaint dated March 10, 2011 and filed on even date, the appellant instituted High Court, Constitutional Petition No 38 of 2011 against the Attorney General, the respondent herein. It was the appellant’s case that upon payment of a consideration of Kshs 12,000,000.00 it had acquired the suit property for a term of 99 years commencing from the year 2000, from Renton company limited, which company had acquired the said property for value from NCC, through an allotment letter dated December 19, 1999. The appellant urged that it was issued with a title deed under the Registration of Titles Act cap 281 on April 26, 2001.
4.
The appellant further contended that on or about the year 2005, the Department of Defence (hereinafter DoD) encroached on its property and unlawfully fenced off ninety (90) acres thereof. It urged that despite demands and requests to desist from trespassing on its property, DoD proceeded to construct a demining college and auxiliary buildings. It was its case that these actions were illegal and contravened its constitutional rights to property guaranteed under article 40 of the Constitution. It further urged, that DoD had failed to communicate its intention to acquire part of the suit property or to comply with the compulsory acquisition procedures provided for under the Land Acquisition Act (cap 295). It consequently sought the following reliefs;
i.
A declaration that the Government’s acquisition of 90 acres of the suit property was in contravention of article 40(3) of the Constitution;
ii.
A declaration that the said occupation, retention and detention of the said 90 acres amounted to compulsory acquisition;
iii.
A declaration that any continued occupation of the said portion of the suit property without compensation amounted to acquisition contrary to article 40(3) of the Constitution;
iv.
That it be restored possession of its land in the same condition it was when it was unlawfully acquired by the Government, or alternatively an order for the payment of Kshs 1, 530,000,000 being the [then] current value of the said 90 acres, with interest thereon at the [then] prevailing central bank rates from the date of the petition till payment in full;
v.
An order for mesne profits from the date of the respondent’s occupation until its restoration; and
vi.
Costs of the petition.
5.
In opposition, DoD argued that in 1984, it had requested the permanent secretary, Ministry of Defence to initiate consultative engagements with the NCC, the then registered proprietor and other stakeholders, with the intention to acquire a portion of the suit property for the expansion of its Embakasi Garrison. It was the respondent’s argument that after expansive consultation in 1986, the Ministry of Defence surveyed, beaconed and fenced the identified portion. It was also contended that the Commissioner of Lands had given assurance to DoD that the said parcel would be registered in its name.
6.
DoD also challenged the legality of the appellant’s title, arguing that the same had not been acquired in accordance with the applicable laws. It contended that the suit property was public land, and as such, was not available for allocation to a private entity. It further submitted that it had put up important military facilities thereon. In conclusion, DoD argued that the title issued to the appellant could not be protected under article 40(6) of the Constitution and that the said alleged proprietorship was against public interest.
7.
In a judgment delivered on July 4, 2011, the trial court, (Gacheche, J) allowed the petition with costs to the appellant. The court determined that the suit property was a freehold private property and not public land, contrary to the contention by DoD. The court held that the appellant was the lawfully registered proprietor, pursuant to article 40 of the Constitution and section 23(1) of the Registration of Titles Act.
8.
The trial court held that DoD was in contravention of article 40(3) of the Constitution and the requirements laid down in Part II of the Land Acquisition Act cap 295. It held that the occupation, retention, and continued occupation of the said portion of the suit property amounted to an illegal compulsory acquisition.
9.
The trial court issued the following orders, as particularized in its decree issued on July 12, 2011;
a.
A declaration that the acquisition of the suit property by the respondent was in contravention of article 40(3) of the Constitution of Kenya & the Land Acquisition Act and thus the occupation, retention, detention and any continued occupation of the said portion of the suit land amounted to compulsory acquisition without compensation contrary to article 40(3) of the Constitution of Kenya .
b.
The respondent shall, within 30 days from the date of the Judgment, restore the possession of the said land to the respondent in the same condition as it was when it was unlawfully acquired;
c.
In the alternative, the respondent shall pay the appellant the sum of Kshs 1,530,000,000.00, being the market value of the said land as per the valuation report produced in court and undisputed by the respondent;
d.
Interest on the award at court rates till payment in full;
e.
The prayer for mesne profits is declined as it was not specifically pleaded; and
f.
Costs to the petitioner.
ii.At the Court of Appeal
10.
Aggrieved by the entire Judgment, the respondent filed Civil Appeal No 84 of 2012 citing twenty-five (25) grounds summarized as follows, that the trial judge erred in law and fact, in:
i.
Failing to consider that the respondent had been in actual occupation of the suit property for decades before the purported registration in the appellant’s name;
ii.
Failing to consider that DoD being a state organ within the meaning of article 62(1)(b) had an indefeasible constitutional right to use and occupy the suit property regardless of whether the appellant had subsequently been issued with title to the said property or not;
iii.
Failing to consider that the uninterrupted occupation of the land by DoD and the erection of military installations thereon had created a public interest that overrides all private interests;
iv.
Failing to find that the suit property was an original allocation from the Commissioner of Lands and thus was Government land within the meaning of the Government Lands Act;
v.
Failing to find that the title documents were processed in favour of Torino Enterprises without the consent of the Attorney General’s Accounting Officer;
vi.
Finding that there was compulsory acquisition;
vii.
Failing to consider that some of the documents relied on by Torino Enterprises before the trial court were obtained fraudulently;
viii.
Granting Torino Enterprises an award of Kshs 1, 530,000,000.00 on the basis of an unproved valuation report;
ix.
Failing to find that the title to the suit property purportedly acquired by Torino Enterprises contravened the provisions of article 40(6) of the Constitution; and
x.
Failing to find that there was fraud in the process of registration of the suit land in the name of Torino Enterprises.
11.
Before the matter was set down for hearing, the respondent by way of a motion dated October 5, 2017, sought leave to adduce additional evidence. The appellate court (Waki, Gatembu & Odek, JJA) on February 22, 2019, allowed the application and further granted leave to the appellant to adduce any additional evidence in reply. Both parties duly complied with the leave orders. However, during the hearing of the appeal, counsel for the respondent raised an objection urging the appellate court, to expunge part of the evidence adduced by the appellant. It was argued that the particularised evidence was inadmissible as it comprised uncertified public documents or confidential correspondence marked either ‘restricted or secret’, which ran contrary to the provisions of sections 68(2) and 80 of the Evidence Act.
12.
After hearing the parties, the Court of Appeal delineated the following issues for determination; whether some of the documents that were relied upon by the respondent offended the provisions of sections 68(2)(c) and 80 of the Evidence Act; whether the suit land was available for alienation and/or allocation; whether the registration of the suit land in the respondent’s name was legally done; and whether the respondent was illegally dispossessed of the suit land and therefore entitled to compensation.
13.
In a judgment delivered on February 4, 2022, the Court of Appeal (Musinga (P), Murgor & Mohamed, JJA), allowed the appeal and overturned the High Court. On the issue of whether any evidence relied on was inadmissible, the appellate court faulted the trial court for failing to make a finding on a similar objection raised by the respondent before it. It then determined that the evidence appearing on pages 32 and 52 of the record of appeal and on pages 21, 22, 23-27, 28-29,30, 32 and 33 of the respondent’s supplementary record of appeal was inadmissible. The court held that the same were public documents under section 79 of the Evidence Act. For the documents to be admissible as evidence, they had to be certified as required by section 80 of the Evidence Act. Since they had not been so certified, the same were expunged from the court’s record.
14.
On whether the suit land was available for alienation, the appellate court determined that the land in question was not “unalienated government land” within the meaning of section 2 of the Government Lands Act (repealed). on the contrary, the court held that the suit property was private land, even long before NCC bought it in 1971. As a result, it opined that the Commissioner of Lands lacked the power to alienate or allocate it to a third party.
15.
The court further found that at the time of allocation, purchase, and consequent transfer of the suit property, DoD was in occupation of a portion thereof. The latter had fenced it and put up various facilities thereon. As a result, it was the court’s reasoning that even if the Commissioner of Lands had the power to alienate the suit property, all persons likely to be affected by such action ought to have been informed and heard before the alienation. Additionally, it determined that the appellant was not an innocent purchaser for value without notice, as any diligent purchaser ought to have been aware of DoD’s occupation and military installations.
16.
The appellate court also took issue with the fact that the suit property, was hastily registered just a day after Renton Company Limited’s application to transfer the same to the appellant. It also noted that there was overwhelming evidence that sometime in 1997, NCC had entered into an arrangement with the Government of Kenya agreeing to allocate part of its land measuring 400 hectares to DoD at a consideration of Kshs.40,000,000.00. However, the appellate court did not definitively establish whether the purchase sum had been paid by DoD.
17.
Consequently, the court concluded that neither Renton Company Limited, nor the appellant herein, had acquired a valid interest in or over the suit property. It held that the Certificate of Title issued to the appellant was an illegal document and by virtue of article 40(6) of the Constitution, the concept of indefeasibility of title under section 26 of the Land Registration Act was inapplicable.
iii.At the Supreme Court
18.
Aggrieved by the entire judgment, the appellants filed the instant appeal, citing several grounds of appeal summarized as follows:
The judges of appeal erred in law by:
i.
Failing to dismiss the appeal before it having entered a finding that the suit property was private land, but instead proceeded to invalidate the appellant’s title in disregard of articles 10, 19, 22, 24, 27,40 and 50 of the Constitution, and particularly in disregard of laid down procedures for establishing the legality or otherwise of a title;
ii.
Failing to consider that under article 40(6) of the Constitution, a finding that any land was unlawfully acquired, must be through a legally established process;
iii.
Failing to determine that there had never been such a process leading to a finding of any unlawfulness;
iv.
Converting themselves into a court of first instance even when the respondent had brought to their attention the existence of a pending ELC Civil Case No 282 of 2012 City Council of Nairobi v Attorney General, Minister for State for Defence & Kenya Defence Forces (hereinafter ELC Civil Case No 282 of 2012) wherein the ownership and legality of the title to the Suit Property was squarely in issue;
v.
Failing to recognize that in a case where there were pending and substantive proceedings before a correct forum charged with the determination of the bona fides of a certificate of title, to wit the Environment and Land Court, it lacked the jurisdiction to prejudge the pending suit;
vi.
Defying and ignoring the respondent’s clear submission to the effect that the High Court Constitutional Division was not the proper or appropriate forum to determine the parties’ respective rights as there was no opportunity to call and test evidence on the nullification of a certificate of title;
vii.
Failing to find that the respondent had not presented any cross petition to establish fraud, illegality or corruption by the appellant and therefore its finding prejudiced any other future or pending legal process under article 40(6) of the Constitution;
viii.
Failing to follow the principle that the appellant’s title could only be challenged on the ground of fraud or misrepresentation, which had not been proven; and
ix.
Failing to appreciate that the bona fide owner of the suit property (NCC) was not claiming any rights against the appellant herein.
19.
The appellant seeks the following reliefs:
a.
The appeal herein be allowed and the portion of the Court of Appeal judgment dated February 4, 2022 that purported to nullify or otherwise invalidate the appellant’s title to land parcel No 22xx, Grant No IR 85xxx be set aside and the Judgment of the High Court dated July 4, 2011 be reinstated in full.
b.
The court be pleased to grant any other or further relief it may deem fit. | E. Analysis
i.On jurisdiction
39.
The appellant argued that the two superior courts acted in excess of jurisdiction by failing to confine themselves to the limited question of trespass and restitution as presented, and instead inquiring into the validity of the appellant’s title to the suit property.
40.
As regards the High Court, the appellant urged that the trial court was not the appropriate forum to determine the parties’ respective rights to the suit property as there was no opportunity to call or test evidence. As for the Court of Appeal, it was contended that the appellate court converted itself into a court of first instance, in disregard of the proceedings then pending before the Environment and Land Court in ELC Civil Case No 282 of 2012, wherein the ownership and legality of the title to the suit property was in issue.
41.
Similarly, it was urged that article 40(6) of the Constitution and section 26 of the Land Registration Act No 3 of 2012, create a positive legal prerequisite, entailing an inquiry to determine the validity of a title to land. The appellant submitted that the Environment and Land Court, is the constitutionally established forum for such inquiry, and faulted the two superior courts for usurping the constitutionally donated jurisdiction of the former.
42.
On the other hand, the respondent argued that the two superior courts had properly invoked their jurisdiction. Towards this end, it was contended that to effectively determine the parties’ respective claims, the courts had first to settle the question regarding the validity of title over the suit property. Moreover, the Attorney General urged that the appellant had departed from its pleadings before the superior courts and was seeking for the first time, the interpretation of what amounts to a legally established process under article 40(6) of the Constitution.
43.
For us to dispose of the first issue in the face of the two contrasting views, it is important to briefly revisit the procedural environment, that preceded the operationalization of the Environment and Land Court. The court is established under article 162(1) and (2) (b) of the Constitution of 2010 . It was operationalized by the Environment and Land Court Act No 9 of 2011. After its commencement, vide Gazette Notice No 16268 dated November 9, 2012, the then Chief Justice issued the ‘Practice Directions on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land’. It was directed that all matters pending judgment and ruling before the High Court, arising from proceedings relating to the environment and the use and occupation of, and title to land, would be concluded by the High Court. Similarly, all part-heard cases pending before the High Court, relating to the same proceedings would be heard and determined by the same court.
44.
Upon perusal of the record before us, we note that the appellant’s suit before the High Court was instituted by way of a plaint dated March 10, 2011 and filed on even date. Consequently, the trial court heard and determined the dispute through its Judgment delivered on July 4, 2011. From the chronology of events, we entertain no doubt that, at the time the trial court heard and determined the suit, the Environment and Land Court was not operational.
45.
In any event, the Practice Directions unequivocally directed the High Court to hear and determine pending proceedings on environment and land matters as specified in the foregoing paragraph 43 of this judgment. In the circumstances, we see no reason to fault the trial court on grounds of jurisdictional over-reach.
46.
We now turn focus to the contention by the appellant to the effect that by determining the appeal before it, the Court of Appeal had in reality transformed itself into a court of first instance. It was the appellant’s submission that at the time the appellate court handed down its judgement, the ELC Civil Case No 282 of 2012 was pending before the Environment and Land Court.
47.
Upon perusal of the record before the Environment and Land Court, we note that by a consent dated March 25, 2021, the proceedings in ELC No 282 of 2012 were withdrawn, and the consent adopted as an order of the said court on June 30, 2021. Consequently, as of February 4, 2022 when the appellate court delivered its Judgment, the said proceedings had long been concluded. In similar vein therefore, we see no reason to fault the appellate court’s exercise of jurisdiction to determine the appeal. There was nothing pending at the Environment and Land Court which could have necessitated the Court of Appeal to down its tools.
ii.Whether the appellant has a valid title to the suit property;
48.
Two central sub-issues fall for our determination, namely, the legal status of the suit property, and whether the appellant acquired a valid title to the same. It was the appellant’s case that upon payment of Kshs 12,000,000, it acquired the suit property from Renton Company Limited for a term of 99 years from 2000. It further argued that it was the duly registered proprietor, having been issued with a certificate of title on April 26, 2001.
49.
The respondent disputed this assertion and contended that the appellant did not acquire a good title from Renton Company limited. The Attorney General maintained that the letter of allotment, upon which the appellant’s title is premised, was silent on whose behalf the Commissioner of Lands was making the allotment; at the time of its transfer to the appellant, the conditional thirty days acceptance period had lapsed; the suit property was not un-alienated government land and therefore the Commissioner of Lands lacked the authority to alienate it. The Attorney General further submitted on “without prejudice” basis that, at the time of allotment, the suit property was occupied by DoD and was unavailable for allocation. In the alternative, the respondent urged that there were irregularities in the process leading to the registration of the property in the appellant’s name;and had the appellant conducted due diligence, it would have ascertained DoD’s possession and occupation at the time of purchase.
50.
For us to determine the legal status and validity of the title, we must inquire into the root title of the suit property.
iii.Alienated or un-alienated government land
51.
Article 62 of the Constitution defines ‘public land’ to include:
62 (1)
(a)
land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date; [Emphasis Added].
52.
The Government Lands Act (repealed), which was the Act in force at the effective date defined ‘unalienated government land’ in section 2 as follows;
“
unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment. [Emphasis Added].
section 3 of the Physical Planning Act, cap 286 defines unalienated land in similar terms.
53.
This court in Kiluwa Limited & another v Business Liaison Company Limited & 3 others, (Petition 14 of 2017); [2021] KESC 37 (KLR) had this to say about un-alienated government land:
“
(55)
A number of conclusions can be derived from the foregoing provisions as quoted. Firstly, un-alienated government land is public land within the context of article
62
of the Constitution and the Government Lands Act (repealed). This notwithstanding the fact that, the expression “Public Land” only came to the fore with the promulgation of the 2010 Constitution. What article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of“public tenure”. The retired constitution used the term“government” instead of “public” to define such lands”.
54.
On the basis of the parties’ submissions and the evidence on record, it is clear to us that on February 21, 1964, a parcel of land known as Embakasi LR No 113xx (Original No 41/3) measuring 5639 acres was alienated and a freehold title granted to Kayole Estates Limited. This parcel of land was later transferred to the defunct Nairobi City Council for valuable consideration by a transfer registered on November 22, 1971. In 1973, the parcel of land was subdivided yielding to, amongst others, the suit property.
55.
In view of these dealings, could the suit property retain the status of “unalienated government land”? The answer to this question must be in the negative considering the fact that once an individual or entity acquires any un- alienated government land, or other land for that matter, consequent upon registration of title, in accordance with the provisions of the applicable law, such land transmutes from “public” to “private” land. Article 64(a) of the Constitution defines private land as consisting of ‘registered land held by any person under any freehold tenure’. In Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others, Civil Appeal No 79 of 2007; [2015] eKLR, the Court of Appeal held:
“
… the legal effect of registrations made in 1907 and 1911 was to convert the suit property at that time from un-alienated government land to alienated land with the consequence that the suit property became private property and moved out of the ambit and confines of the Government Land Act. …” [Emphasis Added].
We consider the foregoing statement to be an accurate illumination of the meaning of “private land”.
56.
Consequently, we find that upon alienation to Kayole Estates Limited in 1964, the suit property was converted from un-alienated government land to private freehold land. There being no question as to the regularity and legality of the process by which the said land was alienated in favour of Kayole Estates Ltd, we find and hold that the same was effectively divested from the purview of the regulatory regime of the Government Lands Act (now repealed). The Commissioner of Lands could therefore not have had any authority, to allocate the suit property to any other person as he purported to have done. By the same token, there being no evidence on record to the contrary, we find that the defunct Nairobi City Council acquired valid title to the suit property from Kayole Estates ltd through purchase. Where does our finding leave Renton company ltd? It is worthy restating that the said company could only have acquired valid title from the Nairobi City Council, and not the commissioner of lands who had long been divested of authority to allocate the same.
57.
The respondent also challenged the letter of allotment on grounds that at the time of its transfer, the conditional thirty (30) days acceptance period had lapsed. As it turned out, the letter was also silent on whose behalf the commissioner of lands had made the allotment. Noting that the Commissioner of Lands by an allotment letter dated December 19, 1999 purported to allocate the suit property to Renton Company Limited. Thereafter, by a letter dated April 25, 2001, Renton Company Limited sought approval from the Commissioner of Lands to transfer the same to the appellant. The appellant’s ownership is traced back to this allotment Letter even if subsequently registered under the Registration of Titles Act cap 281 (Repealed) on April 26, 2001.
58.
So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein. In Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997 [unreported]; and in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others HC Civil Case No 182 of 1992; [2008] eKLR, the superior courts restated this principle as follows:
“
It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer an interest in land at all ” [Emphasis added].
59.
The pronouncement in Gladys Wanjiru and Dr Joseph NK Arap Ng’ok (supra) has been echoed in various Environment and Land Court decisions post the 2010 Constitution, including; Lilian Wanjeri Njatha v Sabina Wanjiru Kuguru & another, Environment and Land Case No 471 of 2010; [2022] eKLR; John Elias Kirimi v Martin Maina Nderitu & 4 others, Environment and Land Suit No 320 of 2011; [2021] eKLR; and Kadzoyo Chombo Mwero v Ahmed Muhammed Osman & 11 others, Environment and Land Case No 42 of 2021; [2021] eKLR, to mention but a few.
60.
Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter. In Peter Wariire Kanyiri v Chrispus Washumbe & 2 others, Environment and Land Court Case No 603 of 2017; [2022] eKLR, Kemei, J held as follows:
“
[15].
In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added].
61.
While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed.
62.
Back to the facts of this case, the allotment letter issued to Renton Company Limited was subject to payment of stand premium of Kshs 2,400,000.00, annual rent of Kshs 480,000.00 amongst others. Moreover, the letter was granted on condition that Renton Company Limited would accept it within thirty (30) days from the date of the offer, failure to which it would be considered to have lapsed.
63.
While the allotment letter is dated December 19, 1999, Renton Company limited made the specified payments on April 24, 2001, one hundred and twenty- seven (127) days from the date of the offer. It is not in question that Renton had not complied with the terms and conditions of the allotment letter. Therefore, the letter ought to have been deemed as lapsed at the time it purported to transfer the same to the appellant. The respondent submitted that a letter of allotment does not confer any property rights unless it is perfected, failure to which it is rendered inoperative and of no legal import. We have already declared that an allotment letter, even if perfected, cannot by and in itself confer transferable title to the Allottee, unless the latter completes the process by registration. Therefore, the grim reality is that all transactions between Renton Company limited and the appellant were a nullity in law.
64.
What about the argument to the effect that the appellant was an innocent purchaser for value without notice? It is obvious by now that such argument cannot hold in view of our pronouncements regarding the transactions between Renton and the appellant. However, be that as it may, there is evidence on record in the form of correspondences and minutes, confirming that DoD had been granted access by the defunct municipal council and had taken possession of, and erected public infrastructure upon the suit property before the purported purchase. Of importance is the letter from the Commissioner of Lands to DoD, confirming that the latter was in occupation of the Property. Further, it is on record that the Ministry of Lands and Settlement was monitoring excision activities by NCC to ensure that the portion occupied by DoD was not affected. This letter is dated August 11, 1999, approximately one (1) year and eight (8) months before the impugned transfer. Therefore, if the appellant was a diligent purchaser, it ought to have at least known of this fact. An innocent purchaser for value would also denote one was aware of what they are purchasing by inspecting the suit premises. This takes us to the question of whether the appellant had visited the suit premises and if so, what was its impression of the military installations on the suit premises? The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation.
iv.Whether DOD acquired a valid title to the property
65.
In as much as the appellant does not have a valid title to the suit property, DoD is similarly tainted. Although it has been able to prove that it has been in exclusive occupation and use of the Suit Property from 1986 to date, with the full knowledge and authority of NCC and the Commissioner of Lands, (see the various communication and correspondence between it, NCC and other stakeholders including an Internal Memo dated April 24, 1984, minutes of a meeting held on May 24, 1984, letter dated February 22, 1996 and letter dated August 11, 1999), there is nothing on record to prove that DoD ever acquired valid title to the suit property. Just as the Commissioner of Lands could not allocate the said land to Renton for reasons already canvassed, so also was he equally hamstrung in relation to DoD.
66.
The court takes cognizance of ELC Civil Case No 282 of 2012, filed by the defunct Nairobi City County seeking; rescission of the letter of allocation dated October 7, 1997; delivery of vacant possession of LR. No 41/33 Embakasi; in the alternative to compensation in the sum of Kshs 61,500,000,000; interest; any other reliefs the court deemed fit to grant. Moreover, we note that during the main hearing of this case, the learned state counsel, representing the Attorney General, submitted that Parliament had taken over the dispute between NCC and DoD with a view to settling the matter outside the court process.
67.
Although, ELC Civil Case No 282 of 2012 was duly withdrawn in line with the provisions of articles 6(2) and 189(3) of the Constitution as well as the Inter- governmental Relations Act No 2 of 2015, the withdrawal neither determined ownership nor passed good title to the Suit Property or a portion thereof to DoD. As matters currently stand therefore, title to the suit property, remains vested in Nairobi County which is the legal successor to the defunct Nairobi City Council.
v.Admissibility of evidence
68.
The appellant faults the Court of Appeal for expunging documents on pages 32, 52 and 21, 22 23-27, 28-29, 30, and 33 of its record and supplementary record respectively. It urged that the appellate court crafted and imposed an asymmetrical application of section 80 of the Evidence Act. It also contended that once the Attorney General had been granted leave to introduce confidential documents, it too had an automatic corresponding right to adduce similar evidence obtained from the same chains of communication. The appellant urged that the asymmetrical application contravened article 50(1) of the Constitution and amounted to suppression of evidence. In response, the Attorney General submitted that public documents within the meaning of section 79 of the Evidence Act must be produced in accordance with sections 68(1)(e)(f), (2)(c) and 80 of the Evidence Act, and the non-compliance rendered the evidence inadmissible.
69.
We agree with the Court of Appeal’s reasoning that the impugned documents were public documents within the meaning of section 79 of the Evidence Act requiring certification in accordance with sections 68(1)(e)(f), (2)(c) and 80 of the Evidence Act. Moreover, we are guided by this court’s decision regarding evidence unlawfully procured, in Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others; Presidential Election Petition No 4 of 2017, [2017] eKLR, wherein we held as follows:
“
(22)
……. We also recognize that information held by the State or state organs, unless for very exceptional circumstances, ought to be freely shared with the public. However, such information should flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information.
(23)
Further, a duty has also been imposed upon the citizen(s) to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from, as any such derogation would lead to a breach and/or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It is a two-way channel where the right has to be balanced with the obligation to follow due process.” [Emphasis Added].
vi.Reliefs
70.
Having disposed of the issues framed, and having reached the conclusions we have, we are left with no option but to dismiss the Appeal. As regards costs, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Pet No 4 of 2014; [2014] eKLR, this court held that it has the discretion to award costs to ensure that the ends of justice are met and that costs ordinarily follow the event.
71.
Having considered the history and nature of the case before us, it is our view that each party shall bear its own costs in the High Court, Court of Appeal, and this court.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/79/eng@2023-09-22 |
Petition 23 (E026) of 2022 | Independent Electoral and Boundaries Commission v Chege (Petition 23 (E026) of 2022) [2023] KESC 74 (KLR) (12 September 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 12 September 2023 | 2,023 | Nairobi | Civil | Independent Electoral and Boundaries Commission v Chege | [2023] KESC 74 (KLR) | null | A. Introduction
1.
Before this Court is the Appeal dated August 8, 2022 and filed on even date. It is brought pursuant to article163(4) (a) of the Constitution, section 15 (2) of the Supreme Court Act, 2011 and rules 38 and 39 of the Supreme Court Rules, 2020. It challenges the decision of the Court of Appeal (Karanja, J Mohammed & Laibuta, JJA) in Civil Appeal No E255 of 2022. The impugned decision upheld the decision of the High Court (Mrima, J) in Constitutional Petition No E073 of 2022.
B. Background
i. At the High Court
2.
The appellantbefore this Court, through its Electoral Code of Conduct Enforcement Committee (hereinafter the ‘Committee’) instituted proceedings against the Respondent by its summons issued on February 11, 2022 following comments that she had allegedly made at a public rally at Isibuye area within Vihiga County on February 10, 2022 in contravention of Clause 6(a) and (i) of the Electoral Code of Conduct (hereinafter ‘the Code’). She was also served with a statement of breach detailing the alleged offensive utterances. According to the Appellant, the Respondent’s comments cast aspersions on the integrity of the General Elections 2017, and raised credibility questions on the Appellant’s capacity to deliver a free and fair election administered in an impartial, accurate and accountable manner as envisaged under article 81(e) of the Constitution. Those remarks reproduced verbatim were as follows:
“
Mnajua kule Central nimeskia wengine wakisema hapa tuliwaibia… Kuna ka ukweli kidogo … Lakini … kama tulijua kuiba … si hata hii tutafanya nini … Wanafikiria wao ndo wajanja…”
3.
Subsequently, the respondent was summoned to appear before the Committee on February 15, 2022, for hearing of the complaint against her. She appeared before the Committee in obedience to the summons but raised a preliminary objection challenging inter alia, the jurisdiction of the Committee to hear the matter. By its ruling delivered on the same date, the Committee dismissed the Respondent’s preliminary objection.
4.
Dissatisfied with the Committee’s ruling, the Respondent filed High Court Constitutional Petition No E073 of 2022, Sabina Wanjiru Chege v Independent Electoral and Boundaries Commission (the High Court Petition) challenging the proceedings, together with an application for conservatory orders staying further proceedings. She urged that the Committee violated her fundamental rights protected under articles 1(1), 2(1) & (4), 3(1), 20(1), 22, 23, 24(1)(a) - (e), 27, 33, 35 (1) & (3), 47(1) & (2) and 50 of the Constitution and sought orders summarized as follows:
a.
Certiorari quashing the statement of breach, summons and proceedings by the Committee against the respondent;
b.
Certiorari quashing the Ruling by the Committee made on February 15, 2022 dismissing the respondent’s objection;
c.
A declaration that the summons and statement of breach both dated February 11, 2022, and served by the Committee, were unlawful and unconstitutional;
d.
A declaration that the failure by the Commission to publish the regulations contemplated under section109 (cc) and (ff) to prescribe regulations of the enforcement of the Second Schedule to the Elections Act is unlawful and unconstitutional;
e.
A declaration that clause 15(6) of the Second Schedule to the Elections Act, 2011, is unlawful as it was based on section 110(6) of the Elections Act, which section had been deleted vide section 25 (c) of Act No 36 of 2016;
f.
A declaration that the decision by the Commission to invoke article 252 of the Constitution to commence a hearing into alleged breaches by the respondent on violations of Clause 6(a) and 6(i) was unlawful and unconstitutional;
g.
A declaration that, by claiming that it was seized of a report and materials in respect of the complaint against the respondent, the decision by the Commission to commence investigations suo motu as stated in its ruling of February 15th, 2022 was unlawful and illegal;
h.
an order of prohibition restraining the Committee from enforcing the Second Schedule of the Elections Act without first prescribing the regulations contemplated under section 109(cc) and (ff) of the Act, in accordance with the Constitution;
i.
A conservatory order restraining the appellantfrom acting unlawfully and unconstitutionally, before drafting the regulations, conducting public participation, and submitting the regulations to Parliament as per the law and the Constitution;
J
A conservatory order restraining the Appellant from violating the respondent’s aforementioned fundamental rights and freedoms.
5.
The respondent specifically faulted the appellant’s dismissal of her preliminary objection, wherein she had raised concerns, regarding its refusal to furnish her with a of its investigation report, and other relevant documents.
6.
In opposing the Petition, the appellant asserted that it had acted lawfully. It contended that the respondent was bound by its Code of Conduct specifically by virtue of the provisions of paragraphs (1) and (2) thereof, being an elected Woman Representative of Murang’a County and a member of the Jubilee Party Parliamentary Group. Furthermore, the appellant urged that pursuant to article 252(1)(a) and (d) of the Constitution, as read with section 107 of the Elections Act, it was empowered to: conduct its own investigations, issue summons to persons suspected to have breached the Code, examine them and arrest those suspected of having committed election offences. It was also the appellant’s argument that its chairperson, had rightfully designated himself as the chairperson of the Committee, as he was the only member who by law, possessed qualifications required to chair it; that the Committee considered the preliminary issues raised by the respondent before dismissing them; and that the Rules of Procedure on Settlement of Disputes had already been enacted vide Legal Notice No 139 of 2012 pursuant to provisions of the Elections Act.
7.
In its consideration of the petition, and application for conservatory orders which were determined together, the trial court framed six questions for determination, i.e,: whether the Committee had jurisdiction to entertain violations of the Code; whether the Code was in force and if so, whether it was binding upon the respondent; whether the appellant’s chairpersonerred in chairing the sittings of the Committee; whether the appellanthad formulated regulations to guide the proceedings before the Committee; whether the proceedings against the respondentbefore the Committee were in violation of her afore-stated fundamental rights; and whether the respondent was entitled to any reliefs.
8.
In a Judgment delivered on April 4, 2022, the trial court (Mrima, J) allowed the respondent’s Petition, effectively quashing the summons and statement of breach levelled against her, as well as the proceedings conducted before the Committee. The trial court determined that the Committee was unconstitutional, null and void ab initio for being in contravention of articles 2(4), 3(1), 249 and 252 of the Constitution. It also issued orders quashing parts of sections 7, 8, 10 and 15 of the Code under the Second Schedule of the Elections Act; and portions of rules 15(4) and 17(1) and (2) of the Rules of Procedure on Settlement of Disputes establishing and granting powers to the Committee to summon witnesses, and conduct hearings of complaints based on allegations of breach of the Code.
9.
On the issue as to whether the Committee had jurisdiction to entertain violations of the Code, it was the court’s determination that article 252 of the Constitution, prescribes that the commissions and independent offices are vested with the powers to conduct investigations and issue summons to witnesses to assist in such investigations, namely: the Kenya National Human Rights and Equality Commission, the Judicial Service Commission, the National Land Commission and the Auditor General. The trial court found that the Appellant could conduct investigations but had no jurisdiction by itself or through the Committee to summon witnesses or conduct any hearings in relation to a complaint of the breach of the Code or at all. Moreover, the court held that the Committee was an unconstitutional outfit, lacking any legality.
10.
Regarding the issue as to whether the code was in force and if so, whether it was binding upon the respondent, the trial court underscored the fact that paragraph 18 of the Code had operational timelines for its application, which in this case was from the date of publication of a notice of Election, until the swearing in of newly elected candidates. In addition, the court determined that the appellant did not adduce evidence to confirm that the respondent or the Jubilee Party to which she belonged, had subscribed to the Code for the election period that ran from January 20, 2022 to the declaration of results on August 9, 2022, hence there was no basis to hold that the Code was binding upon her.
11.
Regarding the issue as to whether the appellant’s chairperson erred in chairing the sittings of the Committee, the trial court held that since the Committee was a nullity ab initio, it did not matter whether the appellant’s chairperson rightly chaired the Committee or otherwise, as he was riding on a ‘constitutionally dead horse.’ For this reason, the court declined to make a pronouncement on the issue stating that it had been overtaken by events, hence a determination on it would serve no purpose.
12.
On whether the appellant had formulated regulations to guide the proceedings before the Committee, the trial courtdetermined that the respondent’s claim that the appellant had failed to publish regulations envisaged under the Code for its enforcement was misconceived; for the reason that it was clearly demonstrated that the Rules of Procedure had been promulgated as subsidiary legislation as Legal Notice No 139 of 2012.
13.
As regards the issues whether the proceedings against the respondent before the Committee were in violation of her fundamental rights and if she was entitled to any of the reliefs sought, the trial Court determined that article 2(4) of the Constitution was violated to the extent that the Committee was contrary to article 252 of the Constitution; article 3(1) was contravened by the appellant’s failure to uphold the Constitution; article 27(1) was infringed for not according the respondent equal protection and benefit of the law; article 35 was contravened as the respondent was not provided with all the necessary evidence against her to be able to properly prepare for her defence having been served with the alleged footage from the Communications Commission of Kenya by a letter dated February 15, 2022, the date that the proceedings began. In the circumstances, articles 47 and 50 of the Constitution were also contravened. Consequently, the Petition succeeded, and the trial court issued orders summed up as follows:
a.
A declaration that the appellant’s Code and Committee contravened articles2(4), 3(1), 249 and 252 of the Constitution and were null and void ab initio;
b.
A declaration and orders of certiorari quashing the Committee’s summons, statement of breach, and proceedings against the respondent;
c.
Orders of certiorari quashing parts of sections 7, 8, 10 and 15 of the Code under the Second Schedule of the Elections Act as well as parts of rules 15(4) and 17(1) and (2) of the Rules of Procedure on Settlement Disputes establishing and granting powers to the Committee to summon witnesses and conduct hearings of complaints based on allegations of breach of the Code.
ii. At the Court of Appeal
14.
Aggrieved by this judgment, the appellantmoved the Court of Appeal vide Civil Appeal No E255 of 2022. The appellate court framed the following five issues for determination:
i.
Whether the respondentwas bound by the Code;
ii.
Whether the Committee had jurisdiction to summon the respondent, hear the alleged complaint against her, make findings thereon and possibly impose sanctions against her;
iii.
Whether the impugned parts of the Code were unconstitutional;
iv.
Whether the appellantwas entitled to the reliefs sought in the appeal; and
v.
What remedies were appropriate under the circumstances, including orders as to costs.
15.
In a Judgment delivered on July 15, 2022, the Court of Appeal (Karanja, J Mohammed & Laibuta, JJA) dismissed the appeal for being unmeritorious, in effect affirming the High Court’s decision. On the question, whether the respondent was bound by the Code, the Court of Appeal observed that the legal force of the Code is dependent on actual subscription by political parties thereto, and professed candidates for elective positions at the national and county levels as provided in section 110(1) of the Elections Act and paragraphs (1) and (2) of the Code. The appellate court noted that section 18 of the Elections Act states that the Code applies in the case of a general election, from the date of publication of a notice 0f election until the swearing in of newly elected candidates. Consequently, it reasoned that the Code was not binding on the respondent on account of: hernot being a candidate in the August 9, 2022 General Elections at the time of the Committee’s proceedings and at all material times thereafter, the non-joinder of her political party in the proceedings before the Committee through which evidence of subscription would have been led and the non-disclosure of her being an official of that party, if that was the case. The court posited that the fact that the respondent was not bound by the Code divested the Committee of the jurisdiction and power to enforce the same against her.
16.
As regards the issue whether the Committee had jurisdiction to summon the respondent, hear the alleged complaint, make findings and impose sanctions against her, the court upheld the High Court’s finding that the appellantwas not one of the specific commissions and entities under article 252(3) of the Constitution vested with the power to issue summons and examine witnesses.
17.
On the issue whether the impugned parts of the Electoral Code were unconstitutional, the appellate court agreed with and affirmed the High Court in entirety in its decision that the Committee was unconstitutional. The appellate court stated that to the extent that the Elections Act purported to confer on the Committee substantive prosecutorial and judicial or quasi-judicial powers not availed to the appellant under the Constitution, the impugned provisions were inconsistent with the Constitution by virtue of article 2(4). Further, it was an infringement on both substantive and electoral due process and at variance with the Latin maxim nemo judex in causa sua, ‘no one should be a judge in their own cause’. In the same vein, the court surmised that the wielding by the Commission of policing, prosecutorial and quasi-judicial powers offended the immutable principles of due process and violated the rule against bias.
18.
Arising from the foregoing, the appellate court held that the appellant was not entitled to the reliefs sought and dismissed the appeal with costs to the respondent.
iii. Proceedings at the Supreme Court
19.
Aggrieved by the Judgment in its entirety, the appellant has filed the instant appeal premised on five grounds reproduced below. That the Court of Appeal misapplied and misapprehended the Constitution by:
i.
Finding that paragraph 15 of the Second Schedule to the Elections Act is unconstitutional because it empowered the appellant to summon witnesses; and that the appellant “cannot summon any witness neither can it conduct any hearing of such a complaint” ostensibly because it is not one of the Commissions and Independent Offices empowered by article 252(3) of the Constitution to issue summons to witnesses yet the provisions of article 88(4)(e) of the Constitution empowers the appellant to “settle all electoral disputes” and that the disputes relating to breaches of the Electoral Code of Conduct are envisaged by the said article;
ii.
Finding that ‘the Electoral Code of Conduct Enforcement Committee is an unconstitutional outfit and lacks any legality’ whereas article 88(4)(e) of the Constitution empowers the appellant to settle electoral disputes;
iii.
Interpreting the provisions of article 252(3) of the Constitution to mean that only the Commissions and the Independent Office listed therein have the power to summon witnesses yet the Constitution, in the case of the appellant, under articles 82, 84 and 88(5) empowers Parliament to enact legislation for better performance of the predicate constitutional responsibilities. In effect, the Court of Appeal has also by parity of reasoning, paved the way for annulment of the power to issue summons upon witnesses conferred on other Chapter 15 institutions which are not listed in article 252(3). This includes the National Police Service Commission, the Salaries and Remuneration Commission, the Teachers Service Commission, the Ethics and Anti- Corruption Commission amongst others;
iv.
Failing to consider that article 88(4)(j) and (5) of the Constitution mandates the appellant to prescribe a code of conduct for all parties and candidates participating in an election and further that the Second Schedule to the Elections Act is a derivative of articles 82(2), 84, 86(d) and 88(5) of the Constitution. By establishing the Electoral Code of Conduct Enforcement Committee and conferring powers upon it to issue summons to persons who are alleged to have breached the Code, Parliament was merely fulfilling the aspirations of Chapter Seven of the Constitution; and
v.
Applying the wrong principles when construing or interpreting the Constitution by not construing the Constitution as one integrated document, each clause supporting each other and not destroying it and consequently rendering the Electoral Code of Conduct ineffectual and otiose. In effect, the Court of Appeal has allowed elections to be held in a manner which is not in consonance with the principles of the electoral system envisaged in article 81(e)(ii) which requires that an election be conducted in a free and fair manner which is
“free from violence, intimidation, improper influence or corruption”
as well as the responsibility placed on the appellantby article 86(d) which requires it to put in place
“appropriate structures and mechanisms to eliminate electoral malpractice”.
20.
The appellantseeks the following reliefs, that:
a.
The instant Petition (Appeal) be allowed.
b.
That the Judgment of the Court of Appeal dated July 15, 2022 in Civil Appeal No E255 of 2022 and the Judgment of the High Court dated April 4, 2022 in Constitutional Petition No E073 of 2022 be set aside.
c.
Such consequential and appropriate reliefs, further or other order(s) as this Court may deem just and expedient in the interest of justice.
d.
That the costs of this Petition be provided for.
21.
The respondenthas filed a Cross-Petition and response dated September 9, 2022 and filed on November 18, 2022 in opposition to the Appeal and associating herself with the decisions of the superior courts below. She seeks the following declarations:
a.
That an attempt to turn IEBC into a quasi-judicial body is unconstitutional. As an independent elections management body, IEBC must remain impartial, neutral, efficient and accountable for its actions and processes as envisaged in Article 81(e) of the Constitution;
b.
That clause 15(1-10) which turns IEBC into a quasi-judicial body is unconstitutional;
c.
That in the matter of electoral disputes as envisaged in the Constitution, IEBC should only be called into acting out of a trigger or complaint by a citizen or political party citing violations of the Electoral Code;
d.
That where the IEBC acts suo motu and investigates a breach, the only mechanism available for it is to invoke the provisions of clause 9, 10, 11 and 12 of the Electoral Code of Conduct;
e.
That clauses 7(a)(i) and (ii) and 8 of the Second Schedule to the Elections Act is unconstitutional in so far as it purports to confer to the Appellant powers to issue a formal warning, a fine as it determines, and the requirement for registration of the fine with the High Court. Such powers are not envisaged in the Constitution;
f.
That the envisaged committee on enforcement of the Electoral Code is illegal and in excess of the powers conferred to the IEBC in the Constitution;
g.
That the provisions of the Second Schedule purporting to establish a committee to enforce the Electoral Code, its composition and duties thereof are invalid and unconstitutional.
22.
The Cross-Petition and Response raises the following grounds:
i.
In the application of section 74 of the Elections Act disputes relating to nominations ought to be lodged with the appellant and determined within ten days.
ii.
The appellant acted as the complainant, purportedly investigated, arrived at the decision to charge, lodged the complaint with itself and purported to sit in trial of the respondent with a view to penalizing her contrary to the Constitution, the law and the principles of separation of powers and natural justice;
iii.
The respondent never subscribed to the Electoral Code as espoused in section 110 of the Elections Act for purposes of the general election in August 2022;
iv.
Clause 7(a)(i) and (ii) and 8 of the Second Schedule to the Elections Act is unconstitutional in so far as it purports to confer to the appellant powers to issue a formal warning, a fine as it determines, and the requirement for registration of the fine with the High Court. the Constitution mandates the appellant to develop the Electoral Code and not to enforce it;
v.
The provisions of Clause 15(1) – (10) of the Electoral Code in purporting to set up the Enforcement Committee and its purported composition and duties are unconstitutional, illegal and a violation of the principles of separation of powers;
vi.
The IEBC is not clothed with constitutional powers to summon any witness neither can it conduct any hearing of such a complaint on account of article 253(3) of the Constitution;
vii.
The provisions of article 88(4)(e) of the Constitution only empowers the appellant in a limited way, to settle electoral disputes arising from or relating to party primary or party nominations. It excludes election Petitions and disputes after declaration of election results;
viii.
Article 88(4)(j) confines the role of the appellantto the development of a code of conduct for candidates and parties contesting in an election. It makes no reference nor does it vest in the IEBC, the power to enforce and punish any breaches or violation of the Code of Conduct;
ix.
Article 88(4)(k) confines the appellant to ‘monitoring of compliance with the legislation required under article 82(1)(b) relating to nomination of candidates by political parties’;
x.
On the general functions of the Commission and holders of independent offices, article 252(1) restricts these commissions to conduct investigations on their own motion or on a complaint made by a member of the public and nothing more;
xi.
The second schedule to the Elections Act is not a derivative of articles 88(2), 84, 86(d) and 88(5) of the Constitution;
xii.
The Court of Appeal acted appropriately in declaring certain provisions of the Elections Act unconstitutional to the extent that they seek to make IEBC a complainant, an adjudicator over its own cause, an investigator and prosecutor in its own cause, besides sitting in trial over the very allegations it makes and investigates.
23.
The appellant, in its Rejoinder to Response to Appeal and Reply to Cross- Petition dated and filed on September 28, 2022, posits that the Cross-Petition is fatally defective as neither the Supreme Court Act nor the Supreme Court Rules contemplate the filing of a Cross-Petition to a Petition of Appeal and that having been lodged without a record of appeal as contemplated under rule 47(2)(b) of the Supreme Court Rules, the Cross-Petition is incompetent. It implores the Court to strike out the Cross-Petition and its supporting affidavit with costs. Nonetheless, the appellant reiterates its averments in the Petition of Appeal in its substantive response thereto. | E. Analysis
i. Whether the Appellant had jurisdiction to summon the Respondent, hear the alleged complaint against her and make findings thereon.
36.
It was the appellant’s argument that it is empowered under article 252(1)(a) of the Constitution, to conduct investigations on its own initiative or upon a complaint made by a member of the public. Moreover, the appellant argued that according to article 88(4)(e) of the Constitution, it is empowered to settle electoral disputes relating to or deriving from nominations but excluding electoral Petitions.
In the same mould, the appellantsubmitted that paragraph 15(4) of the Code, being a normative derivative of the Constitution, empowers it to summon a suspected or implicated offender of the Code. The appellant took issue with the superior courts’ declaration to the effect that it lacked jurisdiction. It contended that such a decision “stripping it of jurisdiction” would severely hamper the enforcement mandate of constitutional commissions, not listed in article 252(3) of the Constitution.
37.
On the other hand, the respondenturged that the appellantlacks the powers or jurisdiction to issue summons as it is not one of the Commissions listed under article 252(3) of the Constitution. Consequently, the respondent submitted that the provisions of paragraph 15(4) of the Code are an aberration as they offend the letter and spirit of the Constitution, specifically, articles 252(3) and 88(5) which circumscribe the powers to issue summons.
38.
It is not in doubt that the appellantis a constitutional Commission established under article 88(1) and further provided for under article 248(2)(c) of the Constitution. Under article 252, the general functions and powers of Commissions are set out as follows:
252.
General functions and powers
1.
Each commission, and each holder of an independent office—
a.
may conduct investigations on its own initiative or on a complaint made by a member of the public;
b.
has the powers necessary for conciliation, mediation and negotiation;
c.
shall recruit its own staff; and
d.
may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.
39.
Guided by the above provisions, it is clear that the appellantis clothed with the powers to conduct investigations, either on its own initiative, or pursuant to a complaint made by a member of the public. The question that then arises is whether such powers entail the issuance of summons requiring appearance before the appellantor committees established under it as well as conducting hearings in the enforcement of the Code.
40.
It is instructive to take note of section 15 of the Electoral Code under which the appellant’s Enforcement Committee is established. Pursuant to section 15(4) to (7) thereof, the Committee is empowered to issue summons requiring attendance before it in the following terms;
15
…
4.
The Committee shall issue summons to the person, political party or referendum committee against whom a complaint has been received as having infringed the provisions of this Code and any other person who the Commission has reason to believe to have infringed the provisions of this Code to attend its meetings. The meetings will be convened at any place which the Committee may deem fit.
5.
In its proceedings, the Committee may examine the person summoned and may allow a person to have legal representation.
6.
The committee shall not be bound by the provisions of the Criminal Procedure Code or the Evidence Act in its proceedings.
7.
Every person who is summoned by the Committee and who attends the meetings of the Committee shall be accorded the right to be heard.
41.
Additionally, sections 7, 8, and 10 of the Code and rules 15(4) and 17 (1) and (2) of the Rules of Procedure on Settlement Disputes confer similar powers to the appellant, including the imposition of sanctions.
42.
Article 252(3) of the Constitution lists the Commissions and independent offices empowered to summon witnesses to include the; Kenya National Human Rights and Equality Commission; Judicial Service Commission; National Land Commission; and the Auditor-General.
43.
Both the Court of Appeal and High Court were of the view that article 252(3) of the Constitution, limits the power of constitutional Commissions and independent offices to issue summons to the above listed four. The two superior Courts concluded that since the appellant is not one of the four listed therein, any law or statutory instrument that bestows upon it the power to summon witnesses, runs contrary to the Constitution, and is therefore null and void to the extent of its inconsistency.
44.
It was the appellant’s further contention that pursuant to article 88(4)(e) of the Constitution, it is empowered to settle electoral disputes relating to or deriving from nominations, but excluding electoral Petitions. It further urged that this provision clothes it with jurisdiction to enforce the Code.
45.
The respondent submitted that the appellant had powers, to initiate investigations on its own motion, as long as it would not proceed to frame charges and transform itself into a trial tribunal. Moreover, she urged that article 88(4)(e) of the Constitution, only vests upon the appellant, the power to settle electoral disputes arising from party nominations, but not the power to conduct trials arising from breaches of the Code.
46.
The respondent further urged that the appellant’s functions and powers, must be exercised in accordance with the Constitution as per the edict in article 88(5) thereof. It was her case that article 86(d) of the Constitution, requires the appellant to only ensure that appropriate structures and mechanisms to eliminate electoral malpractice are put in place.
47.
In view of the foregoing submissions, we now turn to the task of determining whether, the appellantacted in excess of its constitutional mandate, by summoning, hearing the complaint against the respondent, and making a finding thereon. The following constitutional provisions of articles 84 and 88 are instructive in this regard:
“
84.
Candidates for election and political parties to comply with code of conduct.
In every election, all candidates and all political parties shall comply with the code of conduct prescribed by the Independent Electoral and Boundaries Commission.
…
88
…
(4)
The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament, and in particular, for –
…
e.
the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election Petitions and disputes subsequent to the declaration of election results; …
(j)
the development of a code of conduct for candidates and parties contesting elections”
48.
The object of the Code envisaged under article 88(4)(j) above, is set out in section 3 of the Second Schedule to the Elections Act as follows:
The object of this Code is to promote conditions conducive to the conduct of free and fair elections and a climate of tolerance in which political activity may take place without fear, coercion, intimidation or reprisals.
49.
This Court has on numerous occasions interpreted article 88(4)(e) of the Constitution to mean that IEBC is empowered by the Constitution to resolve pre- election disputes including nominations. Our pronouncements have largely been in the context of whether, an election court has jurisdiction to determine pre-election disputes, notwithstanding the provisions of article 88(4)(e) of the Constitution. However, they are quite instructive in the instant case as they shed light on the powers of the IEBC in summoning witnesses as well as conducting hearings in relation to complaints on breach of the Electoral Code.
50.
In Silverse Lisamula Anami v. Independent Electoral and Boundaries Commission & 2 others, SC Petition No 30 of 2018 [2019] eKLR where one of the issues for determination was “whether the election Court has jurisdiction to adjudicate over issues relating to the pre- election period, such as nomination and qualification of candidates, in view of article 88(4)(e) of the Constitution,” this court at paragraph 54 rendered itself thus:
“
54.
How do we resolve the apparent conflicting positions taken by the Court of Appeal and election courts? Our view is that articles 88(4)(e) and 105(1) and (3) must be read holistically and that whereas the IEBC and PPDT are entitled, nay, empowered by the Constitution and Statute to resolve pre-election disputes including nominations, there are instances where the election Court in determining whether an election is valid, may look to issues arising during the pre-election period only to the extent that they have previously not been conclusively determined, on merits, by the IEBC, PPDT or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution. Where a matter or an issue has been so determined, then the election Court cannot assume jurisdiction as if it were an appellate entity since that jurisdiction is not conferred on it by the Constitution.”
51.
In Sammy Ndung’u Waity v. Independent Electoral & Boundaries Commission & 3 Others, SC Petition No 33 of 2018, [2019] eKLR, one of the issues for determination was, “whether an Election Court has jurisdiction to determine pre-election disputes, including those relating to the nomination of candidates.” We emphasized the fact that the Constitution has to be interpreted holistically and purposively with regards to article 88(4)(e) of the Constitution. We noted that article 88(4)(e) of the Constitution constitutes part of the normative architecture for the resolution of pre-election disputes. We stated that this framework for dispute resolution came into existence after the promulgation of the 2010 Constitution. Prior to this, the jurisdiction to determine pre-election disputes, lay with the High Court sitting as an Election Court. At paragraphs 59 and 60 the Court held:
“
(59)
It is clear to us that the Constitution of 2010 and the resultant electoral law, deliberately set out, to delimit the institutional competencies for the settlement of all electoral disputes. In this regard, it donated jurisdictional authority to different judicial and quasi- judicial organs……
60.
Coming to pre-election disputes, including disputes relating to, or arising from nominations, the Constitution is clear. These are to be resolved by the IEBC (through its Committee on Dispute Resolution as provided for by section 12 of the enabling Act) or where applicable, by the Political Parties Disputes Tribunal. Where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can lawfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.”
52.
To ensure that article 88(4)(e) of the Constitution was not rendered inoperable, while at the same time preserving the efficacy and functionality of an election Court under article 105 of the Constitution, the Court developed the following principles at paragraph 68:
“
(i)
all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance;
ii.
where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article165 (3) and (6) of the Constitution, such dispute shall not be a ground in a Petition to the election court;
iii.
where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution; the High Court shall hear and determine the dispute before the elections, and in accordance with the Constitutional timelines;
iv.
where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a Petition to the election Court;
v.
the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution, even after the determination of an election Petition;
vi.
in determining the validity of an election under article 105 of the Constitution, or section 75(1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.”
53.
In Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) Petition No 7 of 2018 [2019] eKLR, the court restated the relevance of article 88(4)(e) of the Constitution in the clearly established constitutional mechanisms for resolving pre-election disputes. The court observed at paragraph 72:
“72 What are we to make of a situation where a contestant ignores the Constitution, drags an entire County through a gruelling election, only to turn around and intone that his rival was not qualified to vie in the first place? Is an election court to assume jurisdiction over such a dispute in such circumstances? We think not. If we were to allow contestants, or any other person, to consciously incubate a dispute, bypassing the Constitution, and originating it at an election court, that would surely render article 88(4)(e) of the Constitution inoperable. For if one can originate any dispute at an election court, why bother with the IEBC? The IEBC, in relation to election disputes, would surely become otiose! It is in this regard that we developed principle number (iv) hereinabove, which states that:
“Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a Petition to the election court.”
54.
It is therefore evident that article 88(4)(e) of the Constitution is clear and without ambiguity that the IEBC is tasked exclusively with the responsibility to entertain disputes arising from nominations and conclusively determine them.
55.
We are also alive to our decision in Alnashir Popat & 7 others v Capital Markets Authority, Pet No 29 of 2019 [2020] eKLR, where we were grappling with the propriety of the dual statutory mandate granted to the Respondent therein as the investigator and enforcer of capital markets infractions in Kenya. We appreciated the social and historical background leading to the enactment of the Capital Markets Act (CMA Act). We noted that to meet its objectives, the CMA Act section 11(3) of the CMA Act grants the Capital Markets Authority (CMA) wide powers to enable it instill discipline upon any errant player, with a view to regulating and facilitating the development of an orderly, fair and efficient capital market in Kenya, in line with the preamble to the Act. We observed in paragraphs 50 &51 that:
“
[50]
As the Canadian Supreme Court later stated in the case of Brosseau v Alberta Securities Commission, [1989] 1 SCR 301, “Administrative tribunals are created for a variety of reasons and to respond to a variety of needs.” In the case of securities commissions, that courts added, “By their nature, such commissions [read tribunals] undertake several different functions. They are involved in overseeing the filing of prospectuses, regulating the trade in securities, registering persons and companies who trade in securities, carrying out investigations and enforcing the provisions of the Act.”
(51)
Such bodies will therefore have repeated dealings, in both administrative or adjudicative capacities, with the same parties. It is for this reason and to achieve the efficiency required in the operations of the securities markets, that the legislatures more often than not, allow for an overlap of functions which in normal judicial proceedings would be kept separate.” (emphasis ours)
We agreed with the respondentin that matter, at paragraphs 54 & 55 that:
“
for purposes of efficiency and in the carrying out of the objective of the CMA Act, especially in the expeditious disposal of disputes that arise in the operations of the capital markets, the functions set out in section 11(3)(cc)(h) cannot be performed by separate bodies. To fragment the discharge of those functions will in our view, lead to disputes dragging for years on end and thus defeating one of the crucial objectives of the CMA Act: efficiency. As such, these functions have, as of necessity, to be discharged by one body hence the overlap in the mandate granted to CMA.
55.
In the circumstances, we find and hold that section 11(3)(cc) & (h) of the CMA Act is not unconstitutional. The overlapping mandate does not per se render the Section unconstitutional.”
56.
We note that the Elections Act in its Second Schedule in section 15(4) as reproduced in earlier parts of this Judgment empowers the appellant’s Enforcement Committee to issue summons requiring attendance before it. Further, the Rules of Procedure on Settlement Disputes confer similar powers to the appellant, including the imposition of sanctions. This Court has been categorical 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. (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014 [2014] eKLR at para 77; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition No 2B of 2014 [2014] eKLR at paras 234, 243 and 244).
57.
Thus, we are of the view that the Elections Act and the Electoral Code of Conduct therein are deliberately designed to enable the IEBC to perform its constitutional roles notably in articles 84, 88 (4) (e), 88(5), and 252(1) of the Constitution.
58.
It, therefore, goes without saying that this courtconsistently emphasizes the importance of adhering to the mechanisms and procedures of dispute resolutions provided by the law. As earlier illustrated, we have been quite consistent that the IEBC can conclusively determine pre-electoral disputes. Settling electoral disputes furnishes the IEBC with all requisite attendant powers to wit; conducting investigations, summoning witnesses, hearing complaints and making determinations thereof. This overlapping mandate is exceptional because it is authorized by statute and therefore is not unconstitutional. As such, the overlap does not foul the principle of natural justice, nemo judex in causa sua (no man should be a judge in his own cause).
59.
Noting that the Electoral Code of Conduct is designed to enable the IEBC to perform its constitutional and statutory mandate, the appellantis empowered to enforce the Code of Conduct through the issuance of summons and conducting trial proceedings. To find otherwise would be to hamper IEBC’s constitutional mandate. This finding also answers the second issue for determination, that indeed, the Electoral Code of Conduct is constitutional.
60.
We, therefore, cannot agree with the superior courts below that IEBC acted in excess of jurisdiction, by issuing summons to and conducting hearings, pursuant to which it meted sanctions against the respondent. How else could IEBC conclusively resolve this matter? We are persuaded by the appellantthat it has jurisdiction to summon witnesses and to conduct hearings in relation to a complaint of breach of the Electoral Code pursuant to article 88(4)(e) of the Constitution in complement with article 252(3) of the Constitution. Thus, we remain faithful to the edict that a Constitution must be interpreted purposively and holistically and as an integrated whole, each clause supporting the other and not destroying it.
iii. Whether the Electoral Code of Conduct was binding upon the Respondent.
61.
The appellant contends that the Code was binding upon the respondent in accordance with section 110 of the Elections Act as read with paragraph 1(2) of the Code. This is denied by the respondent who urges that she did not offer herself for elective office and could not have subscribed to the Code in 2022 as she was not a candidate.
62.
The Elections Act in instructive on this issue. Section 110 provides:
“
110.
Electoral code of conduct
1.
Every political party and every person who participates in an election or referendum under the Constitution and this Act shall subscribe to and observe the Electoral Code of Conduct set out in the Second Schedule in such manner as the Commission may, subject to paragraph 6 of that Schedule, determine.
2.
A political party that is eligible to nominate candidates under the Constitution, this Act or any other written law shall not be eligible to contest in any election unless the political party and the candidate have subscribed to the Electoral Code of Conduct referred to in subsection (1).
63.
The second Schedule of the Elections Act in sections 1 & 2 provide:
1.
This Code shall be subscribed to by—
a.
every political party participating in the election of a president, a member of Parliament, a county governor, a member of a county assembly;
b.
every candidate; and
c.
every leader, chief agent, agent or official of a referendum committee.
2.
This Code shall, in so far as it is applicable, bind the Government and every political party, leader, office bearer, agent and member of a political party or a person who supports a political party, and every candidate nominated under the electoral laws for any election.
64.
Article 84 of the Constitution mandates all candidates and political parties to comply with the Code of Conduct prescribed by IEBC. It is clear from the Constitution and the above provisions of the Elections Act, that it is mandatory for political parties, candidates, and members of the referendum committees who participate in an election or referendum under the Constitution to comply and subscribe to the Electoral Code.
65.
Now was this Code binding on the respondent? She made the alleged utterances on February 10, 2022. We note that she was not a candidate during that electoral period. However, at the respective time, the appellantavers in its pleadings that she was a member of the Jubilee Party and that Jubilee Party was participating in the 2022 general elections. If this was indeed the case, it would mean that she was bound by the Electoral Code. However, we note that the Appellant other than stating this ground in its pleadings, they did not adduce any evidence to confirm that indeed the Jubilee Party subscribed to the Electoral Code for the election period which time was running from the January 20, 2022 to the declaration of the results of the general election that were held on August 9, 2022. We note that Jubilee party was also not a party in this cause. Neither can we glean from the record that the appellantadduced proof that respondentwas either a member or official of the Jubilee Party. Due to the inconclusive nature of the evidence on this, we find that the respondentcannot be found liable in the instant case.
| Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/74/eng@2023-09-12 |
Application E011 of 2023 | Kaluma v NGO Co-ordination Board & 5 others (Application E011 of 2023) [2023] KESC 72 (KLR) (Civ) (12 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 12 September 2023 | 2,023 | Nairobi | Civil | Kaluma v NGO Co-ordination Board & 5 others | [2023] KESC 72 (KLR) | null | a. Introduction
1.
The applicant, George Peter Kaluma, filed a notice of motion dated March 9, 2023 seeking the review and setting aside of the Judgment of this court delivered in NGO Coordination Board v Eric Gitari & others, SC Petition No 16 of 2019 on February 24, 2023. We hasten to point out at the outset that the applicant was neither a party to the appeal before the Supreme Court nor was he a party when the matter was heard and determined by both the High Court and Court of Appeal.
b. Litigation Background
i. Before the High Court
2.
The 2nd respondent filed Constitutional Petition No 440 of 2013 before the High Court, seeking inter alia, a judicial interpretation of the words ‘every person’ in article 36 of the Constitution to include all persons living within the Republic of Kenya despite their sexual orientation. He further prayed for a declaration that the 1st respondent had contravened the provisions of article 36 of the Constitution in failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice. Lastly, he sought an order of mandamus directing the 1st respondent to comply with its constitutional duties under articles 27 and 36 of the Constitution and to register his organization as provided for under the Non-Governmental Organizations Co-ordination Act (NGO Act).
3.
The 1st respondent opposed the petition on grounds that the same was premature because internal remedies under the law had not been exhausted; there was no breach of the petitioner’s right to associate with others; and that any infringement of the petitioner’s rights was justifiable. The Board further submitted that under article 36(3) of the Constitution, a proposed association can be denied registration if reasonable grounds for non-registration are advanced.
4.
The 4th and 5th respondents, AMI and DK joined the matter as interested parties before the High Court and submitted that there is a distinct difference between Lesbian, Gay and Bisexual persons (LGB), and Transgender and Intersex persons (TI). They were concerned that the registration of the NGO would result in a blurring of such issues.
5.
The 6th respondent, Kenya Christian Professional Forum was also an interested party and urged that the petition should be dismissed arguing that there was no violation of article 36 of the Constitution. They further urged that the rejection of the names proposed by the petitioner was reasonable, as it would otherwise be in violation of section 162 of Penal code.
6.
The amicus curiae, Katiba Institute submitted that the Board’s decision not to register the proposed NGO violated the 2nd respondent’s rights, including the right to freedom of association and fair administrative action. It also submitted that the laws relied on by the Board as justification for rejecting the request for registration were irrelevant to the issue of registration. It also submitted that the denial of registration was not in tandem with the requirements of article 24 of the Constitution.
7.
The two issues for determination delineated by the High Court for determination, were whether lesbian, gay, bisexual, transgender, intersex and queer groups have a right to form associations in accordance with the law; and whether the decision of the Board not to allow the registration of the proposed NGO because of the choice of name was a violation of the rights of the petitioner under article 36 and 27 of the Constitution.
8.
A three Judge bench of the High Court (Lenaola, Ngugi & Odunga JJ., as they then were) delivered its judgment on April 24, 2015. The court determined that the refusal to reserve the proposed names was purely administrative and was made pursuant to the NGO Regulations, and not under the NGO Act. The court further held that, even if there was no statutorily prescribed internal remedy that was available to the 2nd respondent, the court could not close its doors on him for failure to exhaust an internal remedy that did not apply to his circumstance. The court thus found that the acts of the 1st respondent constituted an infringement of the 2nd respondent’s right to freedom of association.
9.
Furthermore, the court faulted the 1st respondent’s reliance on sections 162 and 163 of the Penal Code to justify its decision and found that the latter does not criminalize homosexuality or the state of being homosexual, but rather refers to certain sexual acts which are “against the order of nature.” The court also found that the Penal Code does not criminalise the right to freedom of association of people based on their sexual orientation. On article 27 of the Constitution, the court held that an interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.
10.
Accordingly, the trial court allowed the petition and declared that ‘every person’ in article 36 of the Constitution includes all persons living within the Republic of Kenya despite their sexual orientation, that the 2nd respondent was entitled to exercise his freedom of association and issued an order of mandamus directing the 1st respondent to strictly comply with its constitutional duty under article 27 and 36 of the Constitution and the relevant provisions of the NGO Co- ordination Act.
ii. Before the Court of Appeal
11.
The 1st respondent being aggrieved by the decision of the High Court filed an appeal before the Court of Appeal. The issues for determination delineated by the Court were whether the 2nd respondent had an obligation to exhaust the remedies available under the NGO Coordination Act, whether in rejecting the reservation of the name, the 1st respondent violated the provisions of article 36 and 27 of the Constitution and lastly whether the right under article 36 is a limited right pursuant to article 24 of the Constitution.
12.
A five judge bench at the Court of Appeal having considered all submissions, by majority decision (Waki, Koome (as she then was), Makhandia with Nambuye, Musinga JJA dissenting), arrived at similar findings as the High Court and dismissed the matter being Civil Appeal No 145 of 2015 in a judgment which was dated and delivered on March 22, 2019.
iii. Before the Supreme Court
13.
The 1st respondent being aggrieved with the decision of the Court of Appeal, filed an appeal before this court seeking to set aside the judgment of the appellate court delivered on March 22, 2019. The issues set out for determination by this court were whether the 1st respondent was required to exhaust internal remedies under the NGO Act, and whether the decision of the 1st respondent violated article 36 and 27 of the Constitution.
14.
The appeal was dismissed by a majority (Mwilu; DCJ & VP, Wanjala, Njoki with Ibrahim, Ouko SCJJ dissenting). In determining the matter, the majority opined that the petition of appeal was not with the legalization or decriminalization of LGBTIQ activities, or the morality of the same sex marriage but revolved around the question as to whether the refusal to register an organization of persons who fall within the LGBTIQ classification contravened the fundamental rights and freedoms provided for in article 36 and 27 of the Constitution.
15.
This court held that sections 162,163 and 165 of the Penal Code and the provisions of article 24 of the Constitution do not convey the intention to limit the freedom of association of LGBTIQ persons. On the provisions of article 36, the court found that the 1st respondent’s limitation of the 2nd respondent’s right to freedom of association was not proportionate to the aim sought for registration of the proposed NGO. This Court also held that the word “sex” as used in article 27 of the Constitution, was to be interpreted as to include the expression “sexual orientation”. The court therefore found that the 2nd respondent’s right not to be discriminated against directly or indirectly, based on their sexual orientation was violated by the 1st respondent. Consequently, we did, by a majority, agree with the findings of the High Court, and the Court of Appeal that LGBTIQ persona have a right to freedom of association, which includes the right to form an association of any kind. The appeal was therefore dismissed in its entirety.
16.
Having set out the litigation background of this matter and the determination by the court we now turn to consider the present application.
c. The Application and Parties’ Submissions
17.
The notice of motion dated March 9, 2023 is supported by an affidavit sworn on even date by the applicant, George Peter Kaluma. The applicant avers that the application is filed pursuant to the inherent jurisdiction of this court and all enabling provisions of the law. The application seeks the following orders:
i.
The application be certified urgent.
ii.
The implementation of the judgment of the court in Supreme Court Petition Number 16 of 2019 between NGO Coordination Board and Eric Gitari and others dated and delivered on February 24, 2023 be stayed pending the hearing and determination of the application.
iii.
The court be pleased to review and set aside the judgment of this court dated February 24, 2023 where at paragraph 79 the court found and decreed that the use of the word “sex” under article 27(4) of the Constitution ‘refers also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise’; and that the word “including” under article 27(4) also comprises “freedom from discrimination based on a person’s sexual orientation.”
iv.
The court be pleased to review and set aside the judgment of this court dated February 24, 2023 where at paragraph 79 it found and decreed that the appellant’s action of refusing to reserve the name of the 1st respondent’s intended NGO on the ground that sections 162, 163 and 165 of the Penal Code criminalises gay and lesbian liaisons was discriminatory in view of article 27(4) of the Constitution.
v.
The court be pleased to review and set aside the judgment of this court dated February 24, 2023 where it decreed that LGBTQ have a right to freedom of association which included the right to form an association of any kind contrary to the provisions of article 36(3)(a) of the Constitution, section 14 of the Non-Governmental Organizations Coordination Act, regulation 8(3)(b) of the Non-Governmental Organizations Regulations as read together with sections 162, 163 and 165 of the Penal Code.
vi.
The court be pleased to review and set aside its orders on costs in the judgment dated and delivered on February 24, 2023.
vii.
Parties to bear own costs this being a public interest action.
viii.
Such other/further orders as the honourable court may deem fit, just and appropriate in the circumstances.
18.
The application is premised inter alia, on the following grounds: that the judgment usurped the sovereign power of the people, the legislative role and authority of Parliament and purported to amend article 27(4) of the Constitution; that the court disregarded the views of the people of Kenya on ‘sex’ and ‘gender’ contained in the final report of the Constitution of Kenya Review Commission; that the court inadvertently determined Civil Appeal No 536 of 2013 between EG & 7 others v Attorney General; DKM & 9 others (interested parties); Katiba Institute & another (amicus curiae) concerning the constitutionality of sections 162(a), (c) and 165 of the Penal Code; that the court usurped and completely vacated the powers bestowed upon the Director of NGO Co-ordination Board to reserve proposed names of associations; that the decision has opened the door wide to registration of associations, entities, organisations whose naming and or objects are contrary to the law and inconsistent with public interest; and that there is widespread discontent, uproar, dissent and displeasure with the judgment by the general public as reported across all mainstream media and social media platforms. The applicant also contends that the matter is of great public interest and that the exercise by the court of its inherent review jurisdiction is justified by patent errors of law and the exceptional circumstances in this matter.
19.
The 1st respondent filed a replying affidavit sworn by Lindon Otieno on April 14, 2023 in his capacity as the legal affairs manager of the NGO Co-ordination Board. This affidavit supports the application filed by George Peter Kaluma, as it is deponed that this court has jurisdiction to review its judgment delivered on February 24, 2023 on the grounds that it was obtained through fraud, deceit and misrepresentation of facts by the 2nd respondent. The 1st respondent refers to its annexures where it has produced some published articles and a website publication. The 1st respondent contends that the 2nd respondent failed to disclose that he co-founded and illegally operates an unlawful organisation since the year 2012 called ‘the National Gay and Lesbian Human Rights Commission’ and that he deceived the court that he together with others, had been denied their right to associate. The 1st respondent also contends that it was not aware of this information prior to the delivery of the judgment.
20.
Additionally, the 1st respondent urges that the judgment delivered on February 24, 2023 has impacted the proceedings pending in Nairobi Court of Appeal (Civil Appeal No 536 of 2019 Eric Gitari v The Honourable Attorney General & others).
21.
The 1st respondent prays for a review on the order for costs. It also contends that it has been experiencing challenges with regard to applying the judgment and needs further clarification which will be obtained when it makes oral submissions on the issues raised in the instant application.
22.
The 2nd respondent in his replying affidavit sworn on March 22, 2023 opposes the application and argues that it is frivolous and without any merit because the applicant lacks legal standing as he is not a party to the proceedings. The 2nd respondent contends that section 21A of the Supreme Court Act provides that the Supreme Court may review its own judgment or order “upon application by a party.” He further urges that the applicant has not met the grounds for review under section 21A of the Supreme Court Act and that the application is procedurally irregular as it would fundamentally undermine the authority of the Supreme Court and the finality of its proceedings.
23.
He relied on this court’s decisions in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR; Wanderi & othersv Engineering Registration Board and others [2020] eKLR; Mohamed Ali Mohamud vs Ahmed Abdullahi Mohamad & 3 others [2018] eKLR; and Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others [2023] eKLR to buttress his assertion.
24.
The applicant filed submissions in rejoinder dated April 11, 2023. Herein, he submits that the instant application consciously invokes the inherent jurisdiction of the court and not section 21(4) of the Supreme Court Act. He states that the application raises grave and novel matters which require further elaboration in open court.
25.
The applicant also cites the following international instruments to support his case: Universal Declaration of Human Rights, the International Covenant on Civil and Political rights, the African Charter on Human and Peoples Rights, the Yogyakarta principles and Yogyakarta+10. | d. Issues for Determination
26.
Taking into account the submissions of the all parties, two issues emerge for determination:
i.
Whether the applicant is competent to make the application;
ii.
Whether the applicant has established a basis for the review of this court’s decision.
On the applicant’s competence,
27.
This court on February 24, 2023 delivered its judgment and order in SC Petition No 16 of 2019 NGOs Co-ordination Board vs Eric Gitari & others. As earlier stated, the applicant herein, Peter George Kaluma, was neither a party to the appeal before this court nor was he a party in the matter before the Court of Appeal nor the High Court. This begs the question whether the applicant is competent to approach this court in the manner that he has. By extension, it begs the question whether, this court has jurisdiction to entertain an application seeking a review of its judgment, by a person who was never a party to the proceedings that culminated in the said judgment.
28.
In Law Society of Kenya v Communications Authority of Kenya SC Petition No 8 of 2020 [2023] eKLR, we held as follows on the significance of a party having locus standi in a matter:
“
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts. A person in this context should therefore be a party with locus standi in the matter.”
29.
In the instant application, the applicant contends that an application for review can be invoked by any person who would appeal the matter but is yet to do so. we disagree. this court derives its jurisdiction from article 163 of the Constitution and subsequently from legislation, to wit, the Supreme Court Act and Rules. It is therefore bound by its rules and procedure. Thus, a party moving the court under article 163 must be competent to do so in the first place.
30.
Section 21A of the Supreme Court Act provides for the circumstances pursuant to which this court may review its own decision on an application filed by “a party”. The court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties. Consequently, we find that the applicant is not competent to seek a review of the judgment under reference.
Whether the applicant has established a basis for the review of this court’s decision,
31.
This court has neither jurisdiction to sit on appeal nor to review its decisions other than in the manner provided for by section 21A of the Supreme Court Act. These principles were also set out in the matter of Fredrick Otieno Outa vs Jared Odoyo Okello & 3 others, SC Petition No 6 of 2014; [2017] eKLR (Outa). Both the Act and stated case law stipulate the circumstances under which this Court may review its decisions, either on its own motion, or upon application by a party as follows:
a.
The judgment, ruling or order is obtained through 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 the belief that the parties have consented; and
d.
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.
32.
The applicant has not demonstrated how his matter conforms to the specific parameters enumerated under section 21A of the Supreme Court or in the Outa case; neither has he demonstrated to our satisfaction that the impugned Judgment was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto. In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law. Therefore, the application stands dismissed. On costs, the applicant is an Advocate of the High Court of Kenya and a Member of Parliament. He ought to have known that his application was misconceived ab initio.
He must consequently bear the costs thereof.
e. Disposition
33.
Flowing from our findings above, the final orders to be made are as follows:
i.
The notice of motion dated March 9, 2023 is dismissed.
ii.
The applicant shall bear the costs of the appeal.
It is so ordered.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/72/eng@2023-09-12 |
Petition 10 (E013) of 2022 | MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG, Judge of the Environment and Land Court of Kenya (Petition 10 (E013) of 2022) [2023] KESC 73 (KLR) (12 September 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 12 September 2023 | 2,023 | Nairobi | null | MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG, Judge of the Environment and Land Court of Kenya | [2023] KESC 73 (KLR) | null | A. Introduction
1.
By the petition of appeal dated May 19, 2022, this court is being asked to exercise its jurisdiction under article 163(3) and (8) of the Constitution. The appeal challenges the report and recommendation issued by the tribunal appointed to inquire into the petitioner’s inability to perform the functions of her office due to mental incapacity.
2.
Part A of the petition of appeal specifies that the petition is premised on the following grounds:
i.
That the inability of the petitioner to perform the functions of her office due to mental incapacity was not established as contemplated under article 168(1)(a) of the Constitution;
ii.
That the honourable Tribunal erred in law and fact in holding that Judicial Service Commission had discharged its mandate as contemplated under article 168(4) of the Constitution;
iii.
That in all circumstances of the case, the findings of the honourable Tribunal and the recommendation thereto is not supported in law by the evidence adduced.
B. Background
3.
The petitioner was nominated to serve as a Judge of the Environment and Land Court (ELC) in the year 2012. Before her appointment, the Judicial Service Commission (JSC) through one of its Commissioners, reported that it had received information from unnamed lawyers that the Judge had a medical history of mental illness. The JSC resolved to have the petitioner, who was then a nominee for appointment as a judge, undergo a medical examination conducted by a medical board constituted by the Director of Medical Services to determine her suitability for the position.
4.
The Medical Board assessed the petitioner on November 1, 2012. Its findings were communicated to the JSC on November 2, 2012. The findings of the report indicated that:-
“the judgewas sane, coherent in speech, had a good memory of current affairs, and was fairly eloquent in addressing issues raised by the board members.” The Board then concluded that, “even though records indicate that the judgehad a history of mental illness, she had been declared by her psychiatrist as having fully recovered and was therefore fit to take up the position of a judge.”
5.
The petitioner was subsequently appointed as a judgeof the ELC and posted to Kakamega Law Courts. She was later transferred to Milimani Law Courts in January 2013 and then to the Judiciary Training Institute (JTI) in January 2018.
6.
Following complaints received by the JSC inter alia regarding delay of delivery of rulings and judgment, the Commission in a meeting held on May 2, 2019 resolved to inquire further into the matter. In this regard, the JSC sought reports of the performance of the Judge from the acting Registrar of the ELC, the Director of the JTI, and lastly, a report by the acting Director of Planning and Organizational Performance (DPOP). The JSC also called for her medical record which medical file was availed by the Human Resource Directorate.
7.
Subsequently, upon deliberations, the JSC resolved that the petitioner appears before a Medical Board (second Medical Board) which was to be constituted by the Director of Medical Services for examination of her fitness to continue serving as a Judge. The second Medical Board was constituted and it examined the Judge on November 28, 2019 at the National Spinal Injury Hospital.
8.
It submitted its report dated July 24, 2020 and concluded that:-
“Based on the fact that the Hon Lady Justice MG was on treatment for Schizophrenia with evidence of several relapses, evidence of lack of insight during the period of relapses leading to absence from duty. She also had evidence of below-average performance. She is not fit for further service as a judge.”
9.
The JSC held a meeting on September 16, 2020 and deliberated on the report and findings of the second Medical Board. It resolved to institute proceedings against the petitioner for her removal pursuant to article 168 (1)(a) of the Constitution. The petitioner was invited on September 28, 2020 to make her representation on the findings of the second Medical Board and the contemplated action of her removal from office.
10.
Following the hearing of the petitioner and the deliberations on the matter, the JSC Committee that had been established to consider her removal from office concluded that the ground for removal of the petitioner on the basis of her inability to perform the functions of the office arising from mental incapacity under article 168(1) of the Constitution had been established. Consequently, on March 23, 2021, the JSC considered and deliberated on the Committee’s findings and recommendations and adopted the same through a majority decision. Thus, a petition dated April 12, 2021 was submitted to the President recommending the suspension of the Judge and the appointment of a Tribunal in terms of article 168 (5)(b) of the Constitution to consider the removal of the petitioner from office.
11.
His Excellency, President Uhuru Kenyatta, (as he then was) by a Gazette Notice No 8625 dated July 20, 2021 and published on August 23, 2021, suspended the petitioner from office with immediate effect and appointed a Tribunal to inquire into the matter of her removal. The composition of the Tribunal included three Judges, and two psychiatrists amongst others.
12.
The tribunal concluded its hearing and deliberations and, in a report dated April 13, 2022 stated that the allegations, that the Judge has mental incapacity and therefore unable to perform the functions of the office of Judge of the ELC, were established to the required standard of proof. The Tribunal unanimously recommended that the petitioner be removed from office of judge of ELC.
13.
Aggrieved by the decision of the tribunal, the petitioner filed a petition of appeal dated May 19, 2022 before this court pursuant to article 168(8) of the Constitution. | D. Issues for Determination
32.
From the pleadings, submissions by the parties, and records of appeal, the following issues have crystallized for determination by this court:
i.
Whether the Tribunal acted within its jurisdiction to make the findings contained in its report;
ii.
Whether the petitioner’s mental incapacity was established; and
iii.
Whether mental incapacity rendered the petitioner unable to perform the functions of the office of a judge of the ELC.
E. Analysis
Whether the Tribunal acted within its jurisdiction to make the findings contained in its report
33.
The petitioner contends that the Tribunal went outside its mandate when it made conclusions and findings on mental illness and mental incapacity, treatment, psychosocial support, and the petitioner’s mental illness and its impact on the right to access justice. The respondent opposes these contentions and reiterates that it acted within its mandate.
34.
The process of removal of a Judge from office is provided for under article 168 (2) to (7) of the Constitution and we summarize it as follows; It is initiated by the JSC on its own motion or upon a petition being filed by any person for consideration by the Commission. If satisfied that the petition discloses a ground for the removal of a Judge, the JSC shall send the petition to the President. The President thereafter suspends the Judge within fourteen days and also appoints a Tribunal to hear the Petition and make recommendations to the President for the removal or reinstatement of the Judge.
35.
The Constitution also provides under article 168(7)(a) & (b) that the Tribunal shall be: ‘(a) responsible for the regulation of its proceedings, subject to any legislation contemplated in clause (10); and (b) inquire into the matter expeditiously and report on the facts and make binding recommendations to the President.’
36.
This court, pursuant to article 168(8) of the Constitution has the jurisdiction to hear a judge who is aggrieved by the decision of the Tribunal and appeals within ten days after the Tribunal makes its recommendation. We pause here to point out as we did in the Mutava case that our jurisdiction under article 168(8) of the Constitution is “expansive in that we are required to re-evaluate and re-assess the evidence on record with a view of establishing whether the Tribunal misdirected itself and whether the Tribunal’s conclusion should stand.”
37.
The grounds for removal from office are outlined in article 168 (1) and they are reproduced hereunder for clarity:
“
168.
Removal from office
A judge of a superior court may be removed from office only on the grounds of—
a.
inability to perform the functions of office arising from mental or physical incapacity;
b.
a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;
c.
bankruptcy;
d.
incompetence; or
e.
gross misconduct or misbehaviour.”
38.
From the record, it is evident that pursuant to the petition by JSC and in exercise of the powers conferred by article 168(5) of the Constitution as read with section 31 of the Judicial Service Act, 2011, His Excellency, former President Uhuru Kenyatta, vide Gazette Notice No 8625 dated July 20, 2021 and published on August 23, 2021, suspended the Petitioner from office with immediate effect and appointed a Tribunal to inquire into the matter. The pertinent parts of this gazette notice in this issue are reproduced hereunder:
“
Whereas the petition is premised on the Constitutional provisions on removal from office of a judge of a superior court, under article 168 (1) (a) of the Constitution and is pursuant to the findings of the Judicial Service Commission;
…..Now therefore and having considered the petition of the Judicial Service Commission together with its annexures, I note that:
…..The Judicial Service Commission having considered various medical reports was satisfied that a ground for removal of the Honourable Justice MMG, on the reason of her inability to perform the functions of office arising from mental incapacity under article 168(1)(a) of the Constitution has been disclosed,
…..(iii) The mandate of the tribunal shall be:
To consider the Petition on removal of the Hon Lady Justice MMG from office on the reason of her inability to perform the functions of office arising from mental incapacity under article 168(1)(a)…”
39.
On September 10, 2021, the Tribunal gazetted its Rules of Procedure in accordance with the Constitution and pursuant to section 31(5) of the Judicial Service Act. It held a case conference on October 18, 2021. During the case conference, the list of allegations, summary of facts, and summary of the findings by the JSC and its resolution and recommendation for her removal were read out to the petitioner and her counsel. The petitioner elected to have the proceedings in camera pursuant to rule 9(1) of the Tribunal Rules.
40.
The Tribunal heard a total of 12 witnesses including the petitioner. The Tribunal in its report dedicated Chapter Four to identifying and crystallizing key medical issues that emerged in the proceedings and were relevant in the determination of the subject matter.
41.
The Tribunal on page 87 of its report at paragraph 554 acknowledging the novelty of the proceedings before it stated:
“
554.
The issue of inability to perform the functions of the office of a Judge arising out of mental incapacity has not been considered by any other Tribunal. article 168(1)(a) of the Constitution provides that a Judge may be removed from office for “inability to perform the function of office arising from mental or physical incapacity.”
555.
What is required to be established before this Tribunal is not the issue of breach of code of conduct applicable to Judges, bankruptcy, incompetence, gross misconduct or misbehaviour by the Judge but alleged incapacity arising out of a mental condition. The instant Tribunal must first establish the existence of a mental illness and, secondly answer the question whether that illness has resulted in mental incapacity, leading to inability on the part of the Judge to perform the expected functions of that office.
556.
With specific reference to Justice MMG, whereas there is an admission that she has a mental illness known as Schizophrenia, this Tribunal, however being inquisitorial, must inquire into the nature of the illness, its extent and severity as well as its impact on the performance of the Judge and whether it has resulted in her inability to perform the expected function of that office.”
42.
Again on page 91 paragraph 579, after interrogating the definition of mental incapacity under the Constitution, the Mental Health Act (1989) of Kenya the Mental Capacity Act, 2005 (UK), the Convention on the Rights of Persons with Disabilities (CRPD), Black’s Law Dictionary 9th Edition, the Online Merriam-Webster Dictionary and persuasive case law, the Tribunal reported:
“
579.
The Tribunal in the current instance is required to establish whether Justice MMG lacks mental capacity which renders her unable to perform the functions of the Office of a Judge of the ELC as provided under article 168 1(a) of the Constitution.”
43.
The Tribunal, on page 233 paragraph 1344 stated:-
“In the context of these proceedings, the Tribunal holds that to determine the question of whether the mental illness resulted in mental incapacity, it must determine whether the mental illness is so severe as to affect the judge’s capacity to undertake the functions of office of judge.”
44.
Indeed, a thorough reading of the Tribunal’s Report reveals an in-depth inquiry as to whether the petitioner was unable to perform her judicial functions due to mental incapacity. It is therefore evident, in doing so, that the Tribunal was exercising its mandate pursuant to article 168(1)(a) of the Constitution. All the conclusions and findings of the Tribunal were geared towards establishing whether she was unable to perform the functions of office due to mental incapacity. The Tribunal found that she suffered from a mental illness that led to mental incapacity and inability to undertake the functions of her office. As such, we are of the view that the Tribunal confined itself to the matters contained in the petition submitted to the President by the JSC and we are not persuaded by the petitioner that the Tribunal considered issues extraneous to its jurisdiction.
Whether mental incapacity was established
45.
We now turn to determine this novel issue before us; whether the Tribunal erred in arriving at a finding of mental incapacity. The petitioner contends that it was not established that she suffered mental incapacity. It was her case that the required standard of proof was not met and the Tribunal erroneously concluded that mental illness amounted to proof of mental incapacity. The respondent on the other hand urged that the standard of proof that the mental illness had affected the petitioner’s ability to perform her duties as judge was satisfied on account of the evidence adduced.
46.
It is prudent for us to venture into the legislative scheme governing mental incapacity. The Mental Health Act, cap 248 Laws of Kenya does not define mental incapacity. It however defines a person with mental illness in section 2 as ‘a person diagnosed by a qualified mental health practitioner to be suffering from mental illness.’ This Act is however silent on the resultant effect of mental capacity of persons with mental illness. We shall therefore seek a comparative perspective on the issue.
47.
The United Kingdom enacted the Mental Capacity Act in 2005 (UK Act). This Act, in section 1 provides that the following principles are applicable when applying the statute:
a.
“A person must be assumed to have capacity unless it is established that he lacks capacity;
b.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
c.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
d.
An act done, or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests;
e.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”
48.
The UK Act further provides in sections 2(1) and (2) as follows:
“
(1)
A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2)
It does not matter whether the impairment or disturbance is permanent or temporary.”
49.
The case of Heart of England NHS Foundation Trust vs JB [2014] EWCOP 342 expounded on the UK Act. The case concerned a 62-year-old woman (JB) diagnosed with paranoid schizophrenia during her 20's In 2013 JB developed ulcers on her feet and eventually her right foot became gangrenous. The medical advice was for an amputation which JB opposed but doctors attending her were in conflict as to whether she lacked capacity to make medical decisions. The NHS Trust applied to the court of protection for a declaration that JB lacked capacity to consent to medical treatment and that it would be in her best interest to have a through-knee amputation and for her to be sedated if she resisted. Peter Jackson, J held:
"3.
There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005. This empowers the court of protection to authorise actions that would be in the best interests of the incapacitated person.
4.
The Act contains a number of important general principles regarding capacity:…..
These principles reflect the self-evident seriousness of interfering with another person's freedom of action. Accordingly, interim measures aside, the power to intervene only arises after it is has been proved that the person concerned lacks capacity. We have no business to be interfering in any other circumstances. This is of particular importance to people with disadvantages or disabilities. The removal of such ability as they have to control their own lives may feel an even greater affront to them than to others who are more fortunate.
5.
Furthermore, the Act provides (s 1(6)) that even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible: this acknowledges that people who lack capacity still have rights and that their freedom of action is as important to them as it is to anyone else.”
50.
The judge concluded by finding that JB undoubtedly had a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacked insight), but that it had not been established that she thereby lacked the capacity to make a decision about surgery for herself. On the contrary, the evidence established that she had capacity to decide whether to undergo an amputation of whatever kind.
51.
Long before the enactment of the Mental Capacity Act in 2005, the UK Law Commission’s tabled a report on Mental Incapacity: Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated Adults (Law Comm 231) (https://www.lawcom.gov.uk/app/uploads/2015/04/lc231.pdf).
52.
The Commission was investigating the then UK law (Mental Health Act 1983) relating to mental incapacity after a number of outside bodies drew attention to problems and deficiencies in the existing law to the Commission’s attention. On page 32 the Commission noted as follows on ‘capacity’:
“
(1)
Capacity and Lack of Capacity
Presumption of capacity and standard of proof
It is presumed at common law that an adult has full legal capacity unless it is shown that he or she does not. If a question of capacity comes before a court the burden of proof will be on the person seeking to establish incapacity, and the matter will be decided according to the usual civil standard, the balance of probabilities. We proposed in Consultation Paper No 128l that the usual civil standard should continue to apply and the vast majority of our respondents agreed with this proposal. A number, however, argued that it would be helpful if the new statutory provisions were expressly to include and restate both the presumption of capacity and the relevant standard of proof.
We recommend that there should be a presumption against lack of capacity and that any question whether a person lacks capacity should be decided on the balance of probabilities. (Draft Bill, clause 2(6).)”
53.
At page 34:
“
A diagnostic threshold
In the consultation papers we suggested that a person (other than someone unable to communicate) should not be found to lack capacity unless he or she is first found to be suffering from “mental disorder” as defined in the Mental Health Act, 1983.
On page 36:
3.
12 We take the view that (except in cases where the person is unable to communicate) a new test of capacity should require that a person’s inability to arrive at a decision should be linked to the existence of a “mental disability”. The adoption of the phrase “mental disability” will distinguish this requirement from the language-of the Mental Health Act, 1983 and will stress the importance of a mental condition which has a disabling effect on the person’s capacity. We recommend that the expression “mental disability’’ in the new legislation should mean any disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning. (Draft Bill, clause 2(2).) …
The definition of incapacity
The functional approach means that the new definition of incapacity should emphasise its decision-specific nature. A diagnostic threshold of “mental disability” should be included, except in cases of inability to communicate.
We recommend that legislation should provide that a person is without capacity if at the material time he or she is:
"1.
unable by reason of mental disability to make a decision on the matter in question, or
2.
unable to communicate a decision on that matter because he or she is unconscious or for any other reason. (Draft Bill, clause 2(1).)”
54.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/73/eng@2023-09-12 |
Petition (Application) E025 of 2023 | Farah v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Petition (Application) E025 of 2023) [2023] KESC 71 (KLR) (11 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 11 September 2023 | 2,023 | Nairobi | Election | Farah v Independent Electoral and Boundaries Commission | [2023] KESC 71 (KLR) | null | Brief facts
The petitioner filed an appeal before the Supreme Court. The Deputy Registrar directed that the petition of appeal would not be admitted for hearing until the disposal of the applicant’s application for leave to appeal to the Supreme Court on the ground that the appeal raised a matter of general public importance. Aggrieved the appellant filed the instant application seeking to review the decision of the Deputy Registrar on grounds that the appellant had elected to file an appeal as of right pursuant to article 163(4)(a) of the Constitution and that by filing the appeal under article 163(4)(a) he had abandoned the application for certification at the Court of Appeal.
Issues
Whether the Registrar of the Supreme Court had the power to decline pleadings that were not filed in accordance with the Constitution, the Supreme Court Act, the Supreme Court Rules, 2020, or the Supreme Court (General) Practice Directions, 2020 for filings.
Whether the Supreme Court’s Deputy Registrar subverted the applicant’s right to a fair hearing by declining to admit a petition of appeal because of the application that sought to certify the appeal as one raising matter(s) of general public importance was pending at the Court of Appeal.
Held
The role of the Registrar was encapsulated under rule 6 (1) of the Supreme Court Rules, 2020 (the Rules) which provided inter alia that the Registrar could decline pleadings that were not in accordance with the Constitution, the Supreme Court Act, the Rules, or the Supreme Court (General) Practice Directions, 2020 for filings.
Rule 6(2) the Rules provided that any party aggrieved by a decision of the Registrar made under the rule could apply for a review to a single judge. Since the applicant had moved the Court of Appeal for certification of the appeal as one involving matter(s) of general public importance, it was only right that the Court of Appeal be given an opportunity to pronounce itself on the same or grant orders withdrawing the application in line with the applicant’s application seeking to withdraw the application dated July 28, 2023, before the Supreme Court could seize the petition of appeal. There was no evidence that the application had been withdrawn or determined.
The applicant should first ensure that the application for certification dated July 28, 2023 still pending before the Court of Appeal was disposed of before any other step can be taken in the petition of appeal he sought to file before the Supreme Court.
Application dismissed. | Upon reading the notice of motion by the applicant dated August 30, 2023 and filed on even date, brought pursuant to articles 20(3)(a) and (b), 21(1), 27 (1), 50(1) and 163 of the Constitution, rules 6(2) and (3), 31 and 32 of the Supreme Court Rules, 2020 and sections 31, 32 and 33 of the Supreme Court (General) Practice Directions, 2020 seeking orders that;
1.
The court be pleased to review and discharge the decision of the Honourable Deputy Registrar issued on August 29, 2023; and
2.
The court do issue appropriate directions for the disposal and hearing of the petition of appeal dated August 18, 2023; and
2.
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Bardad Mohamed Farah on August 30, 2023 wherein he contends that; on August 25, 2023, he filed a petition of appeal dated August 18, 2023 pursuant to article 163(4)(a) of the Constitution; subsequently, the court directed the parties to appear virtually before the Deputy Registrar on August 29, 2023 for further directions; on August 29, 2023, the Deputy Registrar directed that the petition of appeal would not be admitted for hearing and/or dispensed with until the disposal of a notice of motion dated July 28, 2023 filed at the Court of Appeal being Civil Application No Sup E006 of 2023 where the applicant had sought leave to appeal to the Supreme Court on the ground that the appeal raised a matter of general public importance; the directions of the Deputy Registrar were issued despite their submission that the Court of Appeal had not set down the application dated July 28, 2023 for hearing one month after filing; notwithstanding the application for certification at the Court of Appeal, the applicant had elected to file an appeal to this court as of right pursuant to article 163(4)(a) of the Constitution and that by filing the appeal under article 163(4)(a) he had abandoned the application for certification at the Court of Appeal; and that the Deputy Registrar’s action subverted the applicant’s right to a fair hearing enshrined in article 50(1) of the Constitution; and
3.
Upon considering the applicant's submissions dated August 30, 2023 and filed on even date wherein he; reiterates the arguments in his supporting affidavit; faults the Deputy Registrar for selectively relying on paragraph 44 of this court’s decision in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others, Supreme Court Civil Application No 35 of 2014 [2015] eKLR (Fahim case) and submits that the Fahim case is distinguishable as it sought for extension of time to file an appeal out of time and concurrently filed two certification applications at the Court of Appeal and before this court was seeking certification at the first instance and priority over the certification at the Court of Appeal; submits that he had indicated that he no longer wished to pursue the certification application before the Court of Appeal in Civil Application No Sup E006 of 10 2023, therefore, his petition under article 163(4)(a) is not premature; and in conclusion, he prays that the court ought to set aside the Deputy Registrar’s ruling of August 29, 2023; and
4.
Upon considering the 1st and 2nd respondents’ grounds of opposition dated September 1, 2023 and filed online even date where they oppose the applicant’s application on inter alia the grounds that; the applicant has, pending before the Court of Appeal, an application for certification and an application for withdrawal of the application for certification; the applicant approaches this court contrary to the principles set by this court in Hassan Nyanje Charo v Khatib Mwashetani & 3 others SC Application No 15 of 2014; [2014] eKLR and that this court’s jurisdiction can only be triggered where the Court of Appeal has determined the application for certification; the applicant’s application offends the procedure for certification set by this court in Sum Model Industries Ltd v Industrial & Commercial Development Corporation SC Application 1 of 2011; [2011] eKLR; and that the instant application is an abuse of the court process and incompetent; and
5.
Also noting the 3rd respondent’s replying affidavit and submissions wherein he contends that; he was declared the duly elected Member of the National Assembly for Mandera North Constituency following the August 9, 2022 elections; the applicant challenged his election before the High Court and lodged an appeal before the Court of Appeal having been aggrieved by the appellate court’s decision; aggrieved by the decision of the Court of Appeal, the applicant filed an application for certification at the Court of Appeal under article 163(4)(b) of the Constitution; consequently the applicant filed a petition before this Court under article 163(4)(a) of the Constitution despite there being a pending certification application before the Court of Appeal; the applicant’s application has not met the criteria for review of the decision of the Deputy Registrar relying on this court’s decision in Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others SC Application No E008 of 2022 [2022] eKLR where the court declined an invitation to review the decision of the Deputy Registrar; it is trite that the court cannot exercise concurrent jurisdiction with the Court of Appeal, therefore, the court is precluded from exercising jurisdiction; even though the applicant may have filed a notice of withdrawal, such a withdrawal can only be considered upon an order by the Court of Appeal; and he concludes that the applicant has not laid an adequate basis for review of the Deputy Registrar’s decision of August 29, 2023, he prays for dismissal of the instant application; and
6.
Having considered the application, responses, and submissions before us, we now opine as follows:
i.
The role of the Registrar is encapsulated under rule 6(1) which provides inter alia that the Registrar can decline pleadings that are not in accordance with the Constitution, the Act, the rules, or the court’s Practice Directions for filings. This court affirmed this position in Okiya Omtatah Okoiti v Attorney General & another, SC Application No 1 of 2019; [2019] eKLR, where it observed that one of the roles of the Registrar is;
“
(b)
to decline pleadings that are not in accordance with the Constitution, the Act, these rules, or the court's practice directions for filings.”
ii.
Furthermore, rule 6(2) of the Supreme Court provides that;
“
6(2)
Any party aggrieved by a decision of the registrar made under this rule may apply for a review to a single judge.”
iii.
Bearing in mind the above, did the Deputy Registrar subvert the applicant’s right to a fair hearing by declining to admit the petition filed under article 163 (4)(a) of the Constitution pending the disposal of Civil Application No Sup. E006 of 2023 which sought certification at the Court of Appeal under article 163 (4) (b) of the Constitution?
iv.
In this context, the Deputy Registrar found as follows:
“Having consulted the court on the way forward and being guided by the decision of this court in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others, Supreme Court Civil Application No 35 of 2014 [2015] eKLR which had almost similar circumstances to this petition, the court held at paragraph 44 as follows:
“[44] It is clear to us that a party who moves the appellate court for leave and certification has recognized the relevant cause as one founded on “matter of general public importance”. Consequently, this court’s intervention is not in issue until that court’s task is complete.”
v.
In the instant application, the applicant faults the Deputy Registrar for selectively relying on paragraph 44 of the Fahim case. I reiterate that since the applicant had moved the Court of Appeal for certification of the appeal as one involving matter(s) of general public importance, it is only right that the Court of Appeal be given an opportunity to pronounce itself on the same or grant orders withdrawing the application in line with the applicant’s application seeking to withdraw the application dated July 28, 2023, before this court can seize the petition of appeal herein. I must add that, I have seen no evidence that the said application has been withdrawn or determined.
vi.
As a consequence of my findings above, I concur with the Deputy Registrar’s direction that the applicant should first ensure that the application for certification dated July 28, 2023 still pending before the Court of Appeal is disposed of before any other step can be taken in the petition of appeal he seeks to file before this court. I, therefore, find that the notice of motion dated August 30, 2023 lacks merits and is hereby dismissed.
vii.
It is well settled that costs follow the event and are awarded as a matter of discretion, I direct that costs in this application shall be paid by the applicant to the respondents.
7.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/71/eng@2023-09-11 |
Petition 13 (E015) of 2022 | CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others (Petition 13 (E015) of 2022) [2023] KESC 68 (KLR) (8 September 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 September 2023 | 2,023 | Nairobi | Civil | CMM | [2023] KESC 68 (KLR) | null | Brief facts
The appellants were seven children suspects facing arson related charges in a matter that was of public interest. When they were presented before court to answer to their charges, the 1st to 4th respondents aired and published the case through their respective media houses on various platforms. In their publications they revealed the faces and identities of the children.
Aggrieved the petitioners filed a constitutional petition in which they contended that their rights had been violated. In the petition filed at the High Court, the appellants sought various declaratory orders; an order compelling the respondents to pay general, exemplary, punitive and aggravated damages to each minor for infringement of their rights; and an order compelling the respondents to remove the images, pictures, stories or caricatures posted on the internet regarding the minors.
The respondents’ justification for doing so was, first, that they did not know that the suspects were minors in view of the fact that the proceedings were conducted in the normal manner in open court suggesting that they concerned adults; that generally, criminal proceedings were, by their nature public, open to other members of the public and the press; that the publication was a fair and accurate report of the proceedings and only exposed the minors to the extent that they were suspects of criminal involvement and misconduct; that the publications were authored and videos uploaded in public interest as a matter of informing the general public of the steps being taken, including charging in court those involved, to curb the arson menace; that it was the court’s responsibility, knowing that the case involved children, to conduct the proceedings in camera; and finally, that the minors’ right to privacy was not guaranteed in criminal proceedings but limited.
The petition before the High Court was dismissed and so was the appeal filed by the appellants at the Court of Appeal. Further aggrieved the appellants filed the instant petition before the Supreme Court in which they contended that the child's best interests ought to have been prioritized over public interest; that article 21 of the Constitution placed a duty on the 5th respondent and the courts as State organs, to observe, protect and promote the rights and fundamental freedoms in the Bill of Rights, especially in relation to vulnerable groups such as children.
The appellants’ further contended that the 1st to 4th respondents were guilty of irresponsible journalism; that the story was published with malicious intent, commercial consideration and profit, given prominence to gain popularity and with utter disregard for the dignity, privacy and best interest of the minors.The appellants contended that by posting a story on YouTube channels that included pictures of the children accompanied by a voice-over discussion of their alleged participation in the arson attack; that by reporting, televising, and publishing the story along with the images of the children, the respondents were in violation of the right to privacy and to protect and preserve the best interest of the children.
Issues
What was the nature and scope of the concept of best interest of the child?
How did courts reconcile the best interests of the child principle and the competing right of the people to open justice through a public hearing, freedom of expression of journalists, freedom of the media and the right of access to information of the Kenyan public?
Whether a petitioner who had proved at the High Court that their rights had been violated was required to also prove damage and injury suffered so as to be awarded damages.
What principles were applicable by courts, court staff, counsel, prosecutors, and the media in protecting the best interests of a child facing a criminal trial or a civil suit?
Whether the Supreme Court in an appeal filed as of right in a matter involving the interpretation/application of the Constitution, had the jurisdiction to determine matters of fact and evidence that did not have any constitutional underpinning.
| E. Analysis And Determination
Jurisdiction of the Court
41.
As a preliminary statement, we declare our satisfaction that this appeal has properly been brought as of right pursuant to article 163(4)(a) of the Constitution. The petition filed in the High Court, the arguments before both superior courts below as well as the judgments of those courts, all involve the interpretation and application of articles 31(c), 33(1), 34 and 53(2) of the Constitution, and as such satisfy the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012: [2012] eKLR.
The first of the three main issues this appeal raises is,
i.Whether both superior courts below erred by placing public interest in publishing the pictures or images of children in a criminal trial over and above the best interest of the child;
42.
We reiterate the common position that when the seven suspects were presented before court on November 5, 2012, they were children as defined in article 260 of the Constitution. They faced arson-related charges. It is further conceded that the 1st to 4th respondents aired and published the case through their respective media houses on various platforms. However, the respondents’ justification for doing so was, first, that they did not know that the suspects were minors in view of the fact that the proceedings were conducted in the normal manner in open court suggesting that they concerned adults; that generally, criminal proceedings are, by their nature public, open to other members of the public and the press; that the publication was a fair and accurate report of the proceedings and only exposed the minors to the extent that they were suspects of criminal involvement and misconduct; that the publications were authored and videos uploaded in public interest as a matter of informing the general public of the steps being taken, including charging in court those involved, to curb the arson menace; that it was the court’s responsibility, knowing that the case involved children, to conduct the proceedings in camera; and finally, that the minors’ right to privacy was not guaranteed in criminal proceedings but limited.
43.
On their part, the appellants argued that the child's best interests ought to have been prioritized over public interest; that article 21 of the Constitution places a duty on the 5th respondent and the courts as State organs, to observe, protect and promote the rights and fundamental freedoms in the Bill of Rights, especially in relation to vulnerable groups such as children.
44.
It is the appellants’ further contention that the 1st to 4th respondents were guilty of irresponsible journalism; that the story was published with malicious intent, commercial consideration and profit, given prominence to gain popularity and with utter disregard for the dignity, privacy and best interest of the minors as required by the law; that the respondents neither bothered to confirm the age of the minors nor seek their comments on the issues before publishing them and that as a result of their reckless actions, the minors have been stigmatized, were traumatized and even shunned by society for being exposed as arsonists; that given the wide circulation and the permanent nature of the information, the children will have to live with that stigma and trauma throughout their lives and the injury will remain indelible.
45.
The last three paragraphs above constitute the rival arguments of the two sides in this appeal. The resolution of the issue in contention on this ground must depend on the proper construction of all the relevant provisions of the Constitution and the law. The canons of constitutional interpretation that have been infused in our judicial system over the years and which are today expressed in article 259 of the Constitution, adjure the courts to interpret the Constitution in a manner that promotes its purposes, values and principles and contributes to good governance. Those constitutional values and principles are expressed in the Preamble to include a commitment to nurturing and protecting the well-being of the individual, the family, communities and the nation: the recognition of the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. This is in addition to the consideration of national values and principles of governance under article 10 of the Constitution. They are also discoverable through purposive, holistic, organic and liberal interpretations of the Constitution.
46.
Applying these principles, we start with article 53(2) of the Constitution which is the clause in the Bill of Rights dedicated to enhanced protection of children’s rights, in keeping with Kenya's obligation under the 1989 UN Convention on the Rights of the Child (CRC) and the 1990 African Charter on the Rights and Welfare of the Child (African Children’s Charter). The article requires that:
“
53(2).
A child’s best interests are of paramount importance in every matter concerning the child.”
47.
This article is a right in and of itself of the child, and not merely a guiding principle. In addition to being a self-standing right, it also strengthens the broader framework of human rights under chapter four of the Constitution. The reach of article 53(2) (a child’s best interests) is not to be limited to the rights enumerated in article 53(2)(a) to (f), that is, the child's right to a name and nationality; to free basic education; to basic nutrition, shelter and health care; to be protected from abuse, neglect; to parental care and protection; not to be detained, except as a measure of last resort, and when detained, for the shortest appropriate period of time and in a separate cell from adults and in conditions that take into account the child’s age and sex, among other related rights. These provisions must be interpreted to apply to all aspects of the law, civil or criminal which affect the child bearing in mind the principle of the best interest of a child. In other words, beyond article 53, all the other rights in the Constitution apply to children, as human beings unless they are excluded because such rights only apply to adults, for example, the right to vote or to marry.
48.
The best interest of a child principle is also reflected in international law. It is, for instance, one of the four core principles of the United Nations Convention on the Rights of the Child (CRC), which provides that;
“
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
In identical language, article 4 of the African Children’s Charter restates the principle that “the best interests of the child shall be the primary consideration.” Both instruments, we confirm, have been ratified by Kenya.
49.
Again, in fulfillment of its commitment to undertake all appropriate legislative and other measures to implement the rights under the Conventions, Kenya enacted the Children Act, 2001 (Repealed). Section 4(2) and (3)(b) thereof which was the applicable law when this dispute arose, again in the very language of the two Conventions restated the principle in the following words:
“
(2).
In all actions concerning children whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.
(3).
All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
a.
Safeguard and promote the rights and welfare of the child;
b.
and promote the welfare of the child;
c.
…”
50.
So, what does “the best interest” of the child mean, and what is its rationale and scope? Since the best interest of a child will vary from case to case depending on the situation, its determination and what constitutes it will depend on the unique circumstances of each case as we recently explained in MAK v RMAA & 4 others, SC Petition No 2 (E003) of 2022; [2023] KESC 21 (KLR). We said that;
“
The concept of the child’s best interest is flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs.”
51.
For the same reason, that a child’s best interest is pliable, the term has not been defined by the Constitution or the two Conventions. However, the First Schedule to the Children Act, 2022 lists 18 situations (not exhaustively) of what may constitute the best interests of the child headed “Best Interest Considerations”. It is important to appreciate the rationale behind this principle and why children require special treatment. We can do no better than reproduce the following explanation in the judgment of the majority in the Constitutional Court of South Africa in the case of Centre for Child Law v Minister of Justice 50[(CCT98/08) [2009] ZACC 18, where Cameron J, said:
“
We distinguish them because we recognise that children's crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. We recognise that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence, we afford children some leeway of hope and possibility.”
[52]
Those sentiments were echoed in another case before the same court in the case of J v National Director of Public Prosecution, 59[CCT 114/13) [2014] ZACC 13, as follows:
“
The contemporary foundations of children's rights and the best-interests principle encapsulate the idea that the child is a developing being, capable of change and in need of appropriate nurturing to enable her to determine herself to the fullest extent and to develop her moral compass. This court has emphasised the developmental impetus of the best-interests principle in securing children's right to learn as they grow how they should conduct themselves and make choices in the wide and moral world of adulthood'. (Per Skweyiya, J) | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/68/eng@2023-09-08 |
Application E029 of 2023 | Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 September 2023 | 2,023 | Nairobi | Civil | Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others | [2023] KESC 69 (KLR) | null | Brief facts
At the High Court, appellant filed a petition that contended that the taxing provisions of the Finance Act, 2023 were unconstitutional. The High Court certified the matter as urgent and granted conservatory orders suspending the application of the Finance Act, 2023.
Aggrieved the State appealed against the conservatory orders. The Court of Appeal under rule 5(2) of the Court of Appeal Rules lifted the conservatory orders on grounds of public interest. Aggrieved the appellant filed the instant appeal in which it sought for the Supreme Court to vacate the Court of Appeal’s decision.
Issues
Whether the Supreme Court had jurisdiction to entertain an appeal arising from exercise of the Court of Appeal’s discretion under rule 5(2)(b) of the Court of Appeal Rules.
Whether it was irregular for parties to file joint submissions as well as separate submissions at the same time.
Whether applications filed out of time without leave of the Supreme Court on grounds that the delay was occasioned by the Supreme Court’s online filing platform could be allowed.
Whether a litigant who had named the Judges of the Supreme Court in a derogatory manner in a video clip could be held to be in contempt of court. | Before us is a notice of motion dated August 5, 2023 filed at the instance of the applicants. The motion which is anchored on articles 1, 2, 3(1), 22, 43, 47, 73, 75, 129, 153(4)(a), 159, 163(4)(a) & (b), 201(d), 210(1), 226(5), 227(1) & 259 of the Constitution seeks inter alia orders that-
“
i.
…
ii.
This honourable court be pleased to suspend or stay the ruling delivered on July 28, 2023 and the orders granted on the same date by the Court of Appeal in Civil Application Nos E304 & E310 of 2023.
iii.
This honourable court be pleased to suspend or stay the intended proceedings in the Court of Appeal as ordered/directed by the superior court in Civil Application Nos E304 & E310 of 2023 …”
2.
The salient facts which culminated in the motion revolve around the annual national budgetary process for the 2023/2024 financial year. More specifically, the enactment of the Finance Act, 2023 (the Act) which sets out the revenue raising measures for the National Government. The applicants together with the 9th to 11th respondents herein lodged a petition in the High Court, HC Petition No E181 of 2023, on May 31, 2023. The petition challenged the constitutionality and validity of the Finance Bill, 2023 (the Bill), which was the precursor to the Act. However, before the petition could be heard, the Bill was passed by the National Assembly on June 21, 2023. It was later assented to by the President on June 26, 2023 resulting in the Act.
3.
Subsequently, on June 29, 2023 an amended petition reflecting the prevailing changed circumstances was filed before the High Court. The amended petition challenges the constitutionality of the Act on procedural and substantive grounds. In a nutshell, that, the Act was not subjected to the preliminary mandatory concurrence process of the speakers of the two houses of parliament as envisaged under article 110(3) of the Constitution. Some of its provisions were not subjected to public participation as they were sneaked in on the floor of the National Assembly. Further, that it dealt with matters outside its intended scope under article 114 of the Constitution.
4.
Contemporaneously, the applicants and the 9th to 11th respondents also filed an application under a certificate of urgency seeking interlocutory orders on even date. Its main ground was that a substantial portion of the Act was scheduled to come into effect on July 1, 2023. Consequently, they sought conservatory orders suspending the Act or specified provisions thereof which they believed were sneaked in or were not considered by the Senate and an interim prohibition order stopping the 1st to the 8th respondents herein from giving effect to the Act or the specified provisions thereof. They also implored the High Court to certify, pursuant to article 165(4) of the Constitution, that the amended petition raises substantial questions of law.
5.
Upon the application being placed before Thande, J on June 30, 2023, the learned judge certified it as urgent. She also issued ex-parte conservatory orders suspending the Act pending the determination of the application.
6.
The 3rd and 4th respondents opposed the above application on the grounds that, firstly, the ex-parte orders had been obtained through misrepresentation and deliberate concealment of material facts. In that, the two Speakers of Parliament had jointly resolved that the Bill did not affect county governments. That the said position was within the applicants’ and the 9th to 11th respondents’ knowledge as well as evidenced by the correspondence exchanged. Secondly, that the Act was enacted in accordance with the Constitution and the Public Finance Management Act. Thirdly, that the national government’s main source of revenue is taxes and the Act is intended to foster the collection of revenue of over Kshs 211 billion. Accordingly, they argued that the suspension of the Act was bound to hinder the collection of such revenue which is not capable of being recovered in the event the amended petition is unsuccessful.
7.
Fourthly, that taxation is a policy decision which falls within the exclusive mandate of the Executive. As such, the court lacked jurisdiction to delve into policy decisions. Lastly, that the applicants and the 9th to 11th respondents had not met the threshold to warrant the issuance of the orders sought. It is on the premise of the aforementioned grounds that they also lodged an application dated June 30, 2023 seeking inter alia, variation and setting aside of the ex-parte orders.
8.
Equally, the 1st and 2nd respondents filed an application dated July 1, 2023 seeking variation and setting aside of the ex-parte orders. Their application was based on more or less similar grounds as the 3rd and 4th respondents, save that they asserted, in addition, that the learned Judge ought to have exercised judicial restraint in favour of an inter-partes hearing of the application for conservatory orders as opposed to issuing the ex-parte orders.
9.
The 5th, 6th and 8th respondents also opposed the application for grant of conservatory orders on the same grounds as the 1st, 2nd, 3rd and 4th respondents. However, the 5th respondent added that the Act and the impugned provisions therein enjoyed a presumption of constitutionality. The presumption could only be rebutted after the amended petition was heard and determined on merit. Accordingly, in his opinion, conservatory orders or suspension of the Act could not issue at the interlocutory stage.
10.
The application for conservatory orders and the two applications seeking to set aside the ex-parte orders were heard together by Thande, J. By a ruling dated July 10, 2023, the learned judge found that the applicants and the 9th to the 11th respondents had established a prima facie case with a probability of success. Further, that unless the conservatory orders were extended, there was real likelihood that the amended petition would be rendered a mere academic exercise. In her view, the prejudice that would be occasioned to the public by being subjected to a law which may be determined as unconstitutional far outweighed the prejudice that would be occasioned to the 1st to 8th respondents should the amended petition fail. Ultimately, the learned Judge allowed the application for conservatory orders and dismissed the two applications seeking to set aside the ex-parte orders. She also certified that the amended petition raises substantial questions of law; and remitted the matter to the Chief Justice to empanel a Bench of an uneven number of Judges of the High Court to determine the same.
11.
Thereafter, the 1st and 2nd respondents, on one hand, and the 3rd and 4th respondents, on the other, filed notices of appeal intimating their intention to challenge the High Court’s decision in the Court of Appeal. They further filed applications before the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules. The 1st and 2nd respondents filed Civil Application No E304 of 2023 while the 3rd and 4th respondents filed Civil Application No E310 of 2023. Both applications sought stay of the conservatory orders issued by the High Court on July 10, 2023.
12.
The applications were anchored on the grounds that; the intended appeals were arguable with high probability of success; the manner in which the High Court dealt with the application for conservatory orders amounted to judicial overreach; the suspension of the Act has the effect of halting the operations of the government; the government stands to suffer substantial financial loss in reduced revenue collection which cannot be recovered; the effect of the conservatory orders are dire and irreversible; and public interest would be best served in issuing orders of stay.
13.
In similar fashion, the 5th, 6th and 8th respondents supported the applications. However, the applicants, the 9th and 11th respondents` opposed the applications contending that they had not met the requisite principles to warrant the orders sought. To them, public interest lay in not interfering with the conservatory orders issued by the High Court.
14.
Upon hearing Civil Application No E304 of 2023, the Court of Appeal vide a ruling dated July 28, 2023 found that the intended appeals raised arguable points. Further, unlike the High Court, the court found that public interest tilted in favour of staying the conservatory orders issued by the High Court. As a result, the Court of Appeal granted orders under its rule 5(2)(b) and lifted the conservatory orders suspending the Act pending the hearing and determination of the intended appeals. The court indicated that its decision would also apply to Civil Application No E310 of 2023. It also went on to issue the following directions:
"i.
We direct the applicants (the 1st, 2nd, 3rd and 4th respondents herein) to file their appeals within the next 14 days.
ii.
Parties to file and serve their submissions within the next 30 days.
iii.
Both appeals be heard and determined within 60 days from the date of this ruling.”
15.
Aggrieved by the Court of Appeal decision, the applicants lodged an appeal, Petition No E022 of 2023, as well as the current motion before this court. In support of the motion, the applicants lodged an affidavit sworn by the 1st applicant on August 5, 2023 and joint written submissions of even date. It is instructive to note at this juncture that the said submissions were 48 pages long contrary to this Court’s Practice Direction No 17(a)(i). The practice direction in question provides that submissions in relation to appeals from the Court of Appeal should not exceed 15 pages.
16.
The motion which was lodged under a certificate of urgency was placed before the duty Judge (Njoki, SCJ) on August 8, 2023. On the same day, the duty judge certified the matter as urgent and issued the following orders:
“
i.
…
ii.
That the applicants do serve the notice of motion dated August 5, 2023 together with submissions on the respondents by close of business on Wednesday August 9, 2023.
iii.
That upon service, the respondents do file and serve their responses together with the submissions within seven (7) days.
iv.
That the applicants do file and serve any rejoinder (if any) together with supplementary submissions within seven (7) days from service of the responses.
v.
All documents shall be filed both in hard and soft copies…”
17.
Based on the aforementioned timelines, the respondents ought to have filed their responses and/or submissions on or before August 16, 2023. It follows therefore that the applicants should also have lodged their rejoinder, if any, on or before August 23, 2023.
18.
Subsequently, on August 15, 2023, each applicant, without leave of the court, filed written submissions in support of the motion on the court’s online platform. They availed the hard copies thereof on August 16, 2023. The logical inference from such filing is that the applicants intended to remedy the anomaly in their initial joint written submissions. The applicants admitted as much when the matter was mentioned before the Deputy Registrar of this court on August 25, 2023.
19.
As for the respondents, who filed their responses and submissions on record, they admitted during the said mention that they had done so outside the stipulated time frame. More specifically, the 1st and 2nd respondents filed a replying affidavit sworn by Prof Njuguna Ndungu as well grounds of opposition on August 17, 2023 on this court’s online platform. They further lodged written submissions on August 25, 2023 on the online platform. Afterwards, they only availed hard copies of the replying affidavit and their written submissions at the court’s registry on August 28, 2023.
20.
Mr Mutinda, who appeared for the said espondents, attributed the delay to multiple litigation relating to the Act pending before the superior courts below. He went on to explain that his clients were required to file responses in a total of 12 matters within the same timelines as the motion at hand. Owing to voluminous documentation and complexity of the matters, it was overwhelming to meet the timelines set by this court, he submitted. He also urged that no prejudice had been occasioned by the delay. In the end, he asked the Deputy Registrar to indulge the 1st and 2nd respondents and deem their pleadings as duly filed the delay notwithstanding.
21.
The 3rd and 4th respondents filed their written submissions on time on the online platform, that is, on August 16, 2023. However, they lodged a notice of preliminary objection on August 17, 2023 on the said platform. They later availed the hard copies on August 22, 2023. Mr Mbarak who appeared for the 3rd and 4th respondents attributed the delay to the same grounds as the 1st and 2nd respondents. He also asked the Deputy Registrar to deem their pleadings as having been properly filed.
22.
The 5th respondent filed a replying affidavit sworn by Josephine Mugure and written submissions on August 17, 2023 on the court’s online platform. He equally availed the hard copies thereof on even date. On his part, Mr Muhoro, who appeared for the 5th respondent submitted that the delay was occasioned by difficulties that he experienced with the court’s online platform on August 16, 2023. He claimed that he sent an email to the court on the same and attached copies of the 5th respondent’s pleadings. Nonetheless, he sought the court’s indulgence to deem the pleadings as being properly before it.
23.
Similarly, the 8th respondent lodged a replying affidavit sworn by David Benedict Omulama and written submissions on August 17, 2023 on the court’s online platform. The hard copies thereof were also availed on even date. However, there was no appearance for the 8th respondent when the matter was mentioned before the Deputy Registrar. As such, no explanation was offered for the delay in filing all documents within time.
24.
Lastly, the 9th respondent also filed his replying affidavit and written submissions on August 17, 2023 on the court’s online platform. He only availed the hard copies of the replying affidavit on August 28, 2023. Like others, the 9th respondent attributed the delay in meeting the set timelines to multiple litigation and voluminous documentation. He also submitted that the delay was not deliberate and urged the court to admit his pleadings out of time.
25.
At the conclusion of the mention, the Deputy Registrar indicated that he lacked jurisdiction to vary the orders issued by the duty Judge on August 8, 2023. Consequently, he directed that the effect of non-compliance would be determined by the court. He also declined to grant leave to the 3rd applicant to file a rejoinder.
26.
Taking all the above matters into account, we must state that, this court has on several instances underscored the importance of compliance with its orders, rules and practice directions. With regard to filing and service of documents within the requisite time, the court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the rules or by the court, and affirmed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others, SC Petition No 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 others v Okoiti & 3 others, SC Petition (Application) No 13 of 2020 & Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.
27.
Neither the Supreme Court Act nor the Supreme Court Rules or this court’s Practice Directions permit the applicants to file written submissions in the manner that they did. Rule 31 of this court’s Rules stipulates that an interlocutory application, such as the applicants’, should be filed together with written submissions. Therefore, we find it irregular for parties to file joint submissions as well as separate submissions at the same time. Not only would it be repetitive but also unnecessary and a waste of precious judicial time. In any event, based on the directions issued, the applicants’ submissions were to be served together with the motion. In the end and without belabouring the point, we hereby strike out the four sets of the applicants’ written submissions. In addition, we caution litigants to adhere to the court’s practice directions relating to the length of written submissions lodged before the court, as explained in the preceding paragraph.
28.
Moving onto the respondents’ responses and/or submissions, we are not convinced with the explanation for the delay. To begin with, litigants and advocates should accord this court the respect and decorum it deserves as the apex court of the land. Further, nothing has been placed before us to substantiate the contention by the 5th and 9th respondents that the delay was occasioned by difficulties in accessing the court’s online platform.
29.
Be that as it may, to accede to the respondents’ prayer to deem the responses and/or submissions filed out of time as properly before the court is tantamount to sanctioning an illegality. The respondents ought to have first sought leave of the court to file their responses out of time prior to filing the same. See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No 16 of 2014; [2014] eKLR and University of Eldoret & another v Hosea Sitienei & 3 others, SC Application No 8 of 2020; [2020] eKLR. Consequently, save for the 3rd and 4th respondents submissions, we strike out the responses and submissions filed out of time without leave of the court.
30.
Turning to the substance of the motion before us the gist of the affidavit in support of the motion and the applicants’ joint submissions is that the appeal lodged before this court is anchored on article 163(4)(a) of the Constitution. The core of the dispute also revolves around the interpretation and application of the Constitution, specifically article 23(3)(c) of the Constitution which deals with conservatory orders. According to the applicants, the manner in which the Court of Appeal interpreted and applied article 23(3) and its own mandate under article 164(3) and rule 5(2)(b) of the Court of Appeal Rules resulted in constitutional injustice. They claimed that the appeal seeks to preserve the substratum of the matter pending before the High Court.
31.
The applicants acknowledged that this court has held that it is bereft of jurisdiction to entertain appeals arising from rule 5(2)(b) of the Court of Appeal Rules. Nonetheless, citing Bia Tosha Ltd v Kenya Breweries Ltd & 6 others, SC Petition No 15 of 2020 [2023] KESC 14 KLR (Bia Tosha 2020), they contended that this court has equally pronounced itself on exceptional circumstances that would warrant it to entertain such an appeal. Towards that end, they posited that the nature of the constitutional dispute in issue; the fact that it is yet to be heard and determined by the High Court; and the jurisdictional error committed by the Court of Appeal in the matter at hand, fall within the exceptional circumstances.
32.
To further bolster their argument on this court’s jurisdiction, the applicants relied on Deynes Muriithi & 4 others v Law Society of Kenya & another, SC Applic No 12 of 2015; [2016] eKLR. In that regard, they argued that the impugned ruling and orders has caused grave injustice to the applicants by pre- empting the substance of the proceedings before the High Court. Further, that the ruling was inconsistent with the Court of Appeal’s earlier decision in Denis Njue Itumbi v Law Society of Kenya & 55 others, Civil Applic No E126 of 2023 in that, in the aforementioned case, the court was faced with a similar application under rule 5(2)(b) seeking to lift interlocutory conservatory orders, which were issued ex-parte by the High Court. However, unlike the matter at hand, the Court of Appeal declined to allow the application on the ground that it was premature. This is because the court found that the High Court had not made any substantive decision capable of being challenged on appeal.
33.
Based on the foregoing, the applicants implored this court to invoke its inherent jurisdiction and correct the injustice occasioned by the impugned ruling. More so, it ought to do so in line with its mandate to assert the supremacy of the Constitution and to provide authoritative and impartial interpretation of the Constitution under section 3 of the Supreme Court Act.
34.
On the arguability of its appeal before this court, they urged that the Court of Appeal lacked jurisdiction to entertain the applications before it, because, according to the applicants, there was no decision from the High Court on merits of the amended petition. Therefore, the applications before the Court of Appeal were premature. Consequently, relying on Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, they argued that the impugned ruling was a nullity and void for want of jurisdiction.
35.
The applicants furthermore submitted that the impugned ruling not only validated but allowed the Act to take effect immediately. In other words, the Court of Appeal unjustly predetermined and/or disposed the substance of the amended petition pending before the High Court and intended appeals, which at the time were yet to be filed before it. In turn, the applicants’ right to fair hearing and access to justice under articles 25(c), 50(1) and 48 of the Constitution were violated.
36.
They also asserted that the learned Judges erred in finding that the intended appeals to the Court of Appeal were arguable. In their view, disposal of the intended appeals would entail delving into the substratum of the matter pending before the High Court. Furthermore, it would elicit comments on the merits of issues yet to be adjudged at the High Court.
37.
They, in addition, faulted the learned Judges of appeal for failing to apply the binding test as stipulated by this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014; [2014] eKLR in exercising their discretion under rule 5(2)(b). The binding test being consideration of; (i) merits of the case, (ii) public interest and (iii) preserving constitutional values. Instead, they claimed that the Court of Appeal applied an outdated test which is only applicable in private law disputes contrary to the principle of stare decisis as delineated under article 163(7) of the Constitution.
38.
Moving on to the nugatory aspect, they reiterated that the impugned ruling gravely prejudiced the proceedings pending before the High Court. Therefore, unless the orders sought are granted, the hearing of the amended petition before the High Court will be a mere academic exercise.
39.
Moreover, they argued that it is unconscionable to subject Kenyan taxpayers to the excesses of the Act yet the High Court had found that a prima facie case, to the effect that, the Act is unconstitutional, had been established. Further, taxpayers would suffer irreparable harm in the event the amended petition in High Court succeeds.
40.
Lastly, they argued that the orders sought will not dispose the intended appeals before the Court of Appeal. Rather, the exceptional circumstances of this matter demand preservation of the substratum of the matter before the High Court by granting the orders sought.
41.
In their submissions, the 3rd and 4th respondents contended that this court is devoid of jurisdiction to entertain the motion. More so, since it challenges the exercise of the Court of Appeal’s discretion under rule 5(2)(b) of the Court of Appeal Rules yet there is neither an appeal nor intended appeal pending before this court. To buttress their position reference was made to Teachers Service Commission v Kenya National Union of Teachers & 3 others , SC Applic No 16 of 2015; [2015] eKLR; Daniel Kimani Njihia v Francis Mwangi Kimani & another, SC Applic No 3 of 2014 [2015] eKLR and Okiya Omtatah Okoiti v Sicpa Securities Sol Sa & 2 others, SC Applic No 15 of 2018; [2019] eKLR.
42.
They also submitted that, two appeals have since been filed before the Court of Appeal as per the impugned ruling. These are Civil Appeal No E598 of 2023- National Assembly & Speaker of the National Assembly v Okiya Okoiti Omtatah, Eliud Matindi & 11 others; and Civil Appeal No E623 of 2023 - State Law & another v Okiya Okoiti Omtatah, Eliud Matindi & 11 others. Further, that the Court of Appeal had directed that the said appeals, which are pending, be determined within 60 days of the impugned ruling. Therefore, in their view, the motion is premature since there is no judgment by the Court of Appeal wherein constitutional issues or matters of general public importance have been canvassed. In that regard, they cited Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others, SC Petition No 22 of 2014; [2018] eKLR. Consequently, the 3rd and 4th respondents claimed that the motion is incompetent and should be struck out with costs.
43.
Before delving into the merits of the motion, we have to address the issue of jurisdiction. Jurisdiction is a pre-requisite for a court before it delves into any matter before it. A court’s jurisdiction flows from either the Constitution or legislation. Further, a court cannot bestow upon itself jurisdiction beyond what is conferred by the law. See Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, SC Applic No 2 of 2011; [2012] eKLR.
44.
The Motion at hand arises from the exercise of the Court Appeal’s discretion under rule 5(2)(b) of the Court of Appeal Rules. It is well settled that the purpose of rule 5(2)(b) is to preserve the substratum of an appeal or intended appeal before the Court of Appeal. Equally, the Court of Appeal in issuing orders under rule 5(2)(b) exercises original and discretionary jurisdiction. It does not dispose of the appeal or intended appeal before it. In other words, it does not make definitive findings on the substantive merits of the appeal or intended appeal. See the Court of Appeal decision in Equity Bank Limited v West Link Mbo Limited, Civil Applic No 78 of 2011; [2013] eKLR.
45.
Moreover, this court has time and time again pronounced itself on its jurisdiction to entertain applications challenging the exercise of the Court of Appeal discretion under rule 5(2)(b). Some of those decisions have been cited by the parties herein. In the Teachers Service Commission case this court held that it lacked jurisdiction to determine such applications. In doing so, the court observed that in exercising its discretion under rule 5(2)(b), the Court of Appeal does not determine the appeal before it. Therefore, there is no substantive determination of either a constitutional question or matter of general public importance by the Court of Appeal, which has risen from the High Court to the Court of Appeal. Consequently, such an application does not meet the constitutional parameters of this court’s appellate jurisdiction under article 163(4) of the Constitution. See also Sonko v Clerk County Assembly of Nairobi City & 11 others, SC Applic No 14 (E022) of 2021; [2021] KESC 14 (KLR).
46.
Flowing from the foregoing, we find that the motion does not fall within the court’s appellate jurisdiction under article 163(4)(a) as invoked by the applicants. We are equally not convinced that the decision of the Court Appeal has occasioned grave injustice to warrant invocation of our inherent jurisdiction as we did in the Deynes Muriithi case. Besides, the intended appeals before the Court of Appeal have since been filed and are to be disposed within 60 days of the impugned ruling. Furthermore, the hearing of the amended petition before the High Court is scheduled to commence this September, 2023. In the circumstances, we find that the issues in dispute would be properly ventilated in the appeals before the Court of Appeal as well as in the amended petition before the High Court.
47.
Before we conclude, it is important to point out that the applicants misapprehended the tenor of this court’s decision in Bia Tosha 2020. It is important to clarify that this court in the said decision did not pronounce itself on any exceptional or unique circumstances that would warrant it to entertain an appeal emanating from rule 5(2)(b) as alluded by the applicants. The appeal also did not arise from an order made under rule 5(2)(b) and we reiterated the settled position that this court lacks jurisdiction to entertain an appeal arising from exercise of the Court of Appeal’s discretion under the said rule. Furthermore, in entertaining the appeal therein, which arose from an interlocutory ruling of the High Court granting conservatory orders, we were satisfied that it had met the threshold under article 163(4)(a) of the Constitution, in that, the issue in dispute had been considered and determined on merit by the High Court as well as the Court of Appeal. See Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR. Therefore, the circumstances in the Bia Tosha 2020 are distinguishable from those in the motion at hand.
48.
Lastly, taking into account the public interest nature of the motion and guided by this court’s decision on costs enunciated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR, we make no orders as to costs.
49.
Before issuing final orders, our attention has been drawn to a video clip circulating in the public domain showing, Okiya Omtatah Okoiti, the 1st applicant in the instant motion, naming judges of this court in a derogatory manner, even as this matter was pending before us. We must remind parties that the dignity and authority of this court or indeed any court of law should not be taken for granted. We would like to state without any equivocation that we shall not hesitate to cite and punish any party or person whose conduct interferes or attempts to interfere with the course of justice in relation to any matter pending determination before the court or whose conduct deliberately undermines the court’s authority or dignity. We find the message delivered in that video clip contemptuous and debasing of the dignity of this court. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/69/eng@2023-09-08 |
Application E012 of 2021 | Vulcan Lab Equipment Ltd v Ethics and Anti Corruption Commission & another (Application E012 of 2021) [2023] KESC 70 (KLR) (Civ) (8 September 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 September 2023 | 2,023 | Nairobi | Civil | Vulcan Lab Equipment Ltd v Ethics and Anti Corruption Commission & another | [2023] KESC 70 (KLR) | null | Brief facts
The applicant filed an originating motion dated April 30, 2021 seeking review of the ruling declining to grant certification. The applicant also filed a notice of motion dated April 13, 2023 and filed on June 7, 2023 seeking leave to amend the originating motion. The applicant contended that the Court of Appeal when declining to grant certification, failed to appreciate that private citizens entered into contracts with Government agencies all the time and the procurement law was structured in a way that private citizens lacked the means of knowing whether the officials of those Government agencies had complied with their statutory obligations and internal policies, before entering into such contracts. The applicant contended that the intended appeal met the threshold to be certified as a matter of general public importance.
The notice of motion sought leave to the originating motion on grounds that the applicant failed to include the orders it was seeking in the originating motion. The 1st respondent opposed the notice of motion on grounds that: the application was filed two years after the original originating motion of April 30, 2021, hence the inordinate delay in filing the application had not been explained; should such an extension be granted, it would have been extended by a huge margin; and the application was a futile exercise and an abuse of the court’s process.
Issues
What was the effect of failure to file the printed of a pleading at the Supreme Court, after filing the electronic ? | This ruling will dispose of two applications by Vulcan Lab Equipment Ltd, the applicant. The first is an originating motion dated April 30, 2021 seeking review of the ruling declining to grant certification. The second is the notice of motion dated April 13, 2023 and filed on June 7, 2023 seeking leave to amend the originating motion dated April 30, 2021 and filed on June 7, 2023.
2.
Uponperusing the originating motion dated April 30, 2021 brought under article 163(4)(b) of the Constitution of Kenya, section 16 of the Supreme Court Act, and rule 33(2) and (3) of the Supreme Court Rules seeking a determination of the following questions:
i.
Whether the indoor management rule is binding on semi-autonomous government agencies;
ii.
Whether the Supreme Court should determine the conflicting position taken bycourt vis a vis the indoor management rule’s applicability to semi-autonomous government agencies and government agencies;
iii.
Whether an acquitted/innocent contracting party can be faulted on account of the failure of a semi-autonomous government agency to follow its own internal procurement procedures;
iv.
Whether imputations of corruption can legitimately be attached or attributed to a litigant who has already been acquitted by the criminal court on the basis of the indoor management rule;
v.
Whether an acquittal from which there is no challenge, entitles the acquitted party the presumption of innocence in law and whether another court can separately condemn the innocent party based on the same set of facts;
vi.
Whether the presumption of innocence can be displaced by the civil court (Court of Appeal) in making a decision to deny the applicant a contractual remedy;
vii.
Whether innocent third parties, in dealing with a semi-autonomous government agency, are required to be satisfied that its officials have followed relevant statutory requirements, and if so, (i) to what extent does the law impose such a duty, and (ii) to what extent should an innocent third party look into the internal arrangements of the government agency during its procurement process;
viii.
Whether the civil court should deny an innocent contracting party its contractual and legal remedies where there are public servants that have been found guilty and convicted of the offence;
ix.
Whether the application of the indoor management rule to transactions with semi-autonomous government agencies or government agencies transcends the specific circumstances of this particular case and has a significant bearing on the public interest;
x.
Whether the determination of this issue shall have a significant bearing on the public interest; and
3.
Uponalso considering the grounds in support of the application in the supporting affidavit sworn on April 30, 2021 by Vishal Kochar, the applicant’s managing director, where he further contends that the Court of Appeal in declining to grant certification, failed to appreciate that private citizens enter into contracts with government agencies all the time and the procurement law is structured in a way that private citizens lack the means of knowing whether the officials of those government agencies have complied with their statutory obligations and internal policies, before entering into such contracts;
4.
Alsoconsidering the applicant’s written submissions dated January 10, 2022 contending that the applicant’s intended appeal meets the threshold to be certified as a matter of general public importance having met the principles outlined in Town Council of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR; that the issue(s) 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 and that the issues raised in the intended appeal raise questions with a bearing on the proper conduct of the administration of justice; and
5.
Furtherconsidering the 1st respondent’s written submissions dated July 14, 2023 wherein it is urged that the application for review has not met the requirements for the grant of orders under article 163(4)(b) and article 163(5) of the Constitution as was set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR as it fails to raise issues of general public importance; that there is nothing novel about the issues raised by the applicant; that the application fails to raise any issue where the law requires clarification or the uncertainty that the court needs to clear and clarify; that the applicant has also failed to demonstrate that the intended appeal raises matters that are relevant to real public interest and concern since the questions raised by the applicant as issues of public importance are purely contractual, arising out of a transaction executed between the applicant and the School Equipment Production Unit, the 2nd respondent, therefore not capable of transcending the circumstances of the case; and
6.
Notingthe averments in the 2nd respondent’s replying affidavit sworn on July 17, 2023 by George Korongo, Advocate, the grounds of opposition and written submissions dated July 17, 2023, wherein it is contended that the questions raised by the applicant do not transcend the circumstances of this particular case; that the application does not meet the requirements of article 163(4)(b) of the Constitution; that the applicant has failed to demonstrate that there is uncertainty regarding the state of the law and; that the determination of facts in context between parties cannot be in itself a basis for granting certification for an appeal to the Supreme Court; and
7.
Bearing in mind that the applicant has also filed a notice of motion dated April 13, 2023 pursuant to the provisions of article 163 of the Constitution, section 3 & 3A of the Supreme Court Act and rules 3 and 31 of the Supreme Court Rules seeking leave to amend its originating motion dated April 30, 2021 on grounds that the applicant failed to include the orders it is seeking in the Originating Motion being:
i.
The Supreme Court does review and set aside the decision of the Court of Appeal in Nairobi Civil Application No Sup 12 of 2020 declining to certify the questions as raising matters of general public importance;
ii.
The Supreme Court does review and set aside the said decision rejecting the request for certification on the grounds that the issues raised in the intended appeal are not novel and they do not transcend the dispute between the parties herein;
iii.
The Supreme Court does review the said ruling and declare that the Court of Appeal erred in law in failing to certify the matters herein as raising questions of general public importance deserving to be considered by the Supreme Court on appeal;
iv.
The Supreme Court does grant leave to the applicants to appeal against the decision of the Court of Appeal in Nairobi Civil Appeal No 197 of 2018;
v.
Costs of this application to be provided for; and
8.
Notingthe grounds in the applicant’s supporting affidavit sworn by Vishal Kochhar on April 13, 2023 and the written submissions dated April 13, 2023 where the applicant submits that the application for amendment of the originating motion is meritorious; that this court has the inherent power to make such orders or give such directions as may be necessary for the ends of justice; that the application seeks to correct an inadvertent mistake to the extent of including the orders sought in the application to enable the court to adjudicate over the real issues in dispute and that the respondents are not likely to suffer any prejudice; and
9.
Also considering the 1st respondent’s grounds of opposition and written submissions dated June 14, 2023 opposing the notice of motion on grounds that the application was filed two years after the original originating motion of April 30, 2021, hence the inordinate delay in filing the application has not been explained; that should such an extension be granted, it will have been extended by a huge margin and; that the application is a futile exercise and an abuse of the court’s process;
10.
We now opine as follows:
i.
As a matter of fact, the applicant filed its originating motion dated April 30, 2021 on this court’s e-filing online platform on April 30, 2021, which was the last day for filing an application seeking review of a certification ruling from the Court of Appeal. The invoice from the e-filing platform proves this. As per rule 33(2) of this Court’s Rules, such a review should be sort within 14 days. Rule 33(2) of this Court’s Rules provides that:
“
Where the Court of Appeal has certified or has declined to certify a matter as one of general public importance, an aggrieved party may apply to the court for review, within fourteen days.”
ii.
However, the applicant failed to also file the printed of the originating motion and only proceeded to present the physical on June 7, 2023, almost two years after filing the electronic . Rule 12 of this court’s rules is instructive as it provides that:
“ (1)
Pleadings and any other document filed in the court shall be in both printed and electronic form.
2.
A party filing any document shall ensure consistency in the printed and the electronic forms.
3.
Incase of any inconsistency between the hard and soft , the hard shall prevail.
4.
Where a document is lodged in a sub-registry, the deputy registrar receiving the same shall transmit it to the Registry."
iii.
In Sonko v Clerk, County Assembly of Nairobi City & 11 others, SC Petition (Application) No 11 (E008) of 2022; [2022] eKLR, we discussed the import of rule 12 of the Supreme Court Rules by finding that:
“
A plain reading of the rule would lead to the simple conclusion, as properly expressed by the Registrar in her letter of May 18, 2022 that the printed of any pleading, while matching the electronic , shall be filed simultaneously with the latter. This must remain the operative rule in this court.” [Emphasis added]
iv.
There is no doubt that the applicant has physically filed its originating motion almost two years from the date of delivery of the ruling, more specifically, a delay of 1 year and 11 months. What do we take of the applicant’s actions of sitting on the printed for a period of almost two years? Can the motion be deemed to be properly before us? The originating motion, although filed electronically, failed to comply with the procedure provided for under rule 12 of the Court’s Rules. In Kenya Hotel Properties Limited v Attorney General & 5 others, SC Application No 2 (E004) of 2021 [2021] eKLR, we specifically held that filing is complete when a party submits pleadings and documents in both printed and electronic form. It was our finding that:
“Be it as it may, we have perused the record and noted that the said Supplementary Record, although electronically filed, did not comply with the filing procedures provided for under rule 12(1) of the Supreme Court Rules, 2020 which state that filing is complete when a party submits both printed and electronic form. Therefore, for our purpose, the said supplementary record is not properly filed.”
v.
The applicant did not provide an explanation as to why he failed to present the printed copies to the registry as is required under this court’s rules. Instead, the applicant proceeded to file another application seeking leave to amend its application for review, though being fully aware that it had sat on the printed of the originating motion. We thus find that the originating motion dated April 30, 2021, having been filed on June 7, 2023 was not properly filed. As a corollary, the applicant’s notice of motion dated April 13, 2023 and filed on June 7, 2023 falls by the wayside as it has no leg to stand on.
vi.
Costs follow the event, and therefore the applicant shall bear the costs of the respondents.
11.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/70/eng@2023-09-08 |
Petition (Application) E014 of 2023 | Ashmi Investment Limited v Riakina Limited & another (Petition (Application) E014 of 2023) [2023] KESC 66 (KLR) (4 August 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 4 August 2023 | 2,023 | Nairobi | CIvil | Ashmi Investment Limited v Riakina Limited & another | [2023] KESC 66 (KLR) | null | Brief facts
The applicant contended that they were the registered owner of the suit properties as allocated to it having paid the allotment fees. The Court of Appeal affirmed its judgment upheld the High Court decision cancelling the applicant’s survey, deed plan and the resultant titles to the suit properties. Aggrieved the applicant filed the instant appeal on grounds that the decisions were reached without any cogent proof of illegality or fraud tendered by the 1st respondent; and that it did not violate the doctrine of lis pendens as the titles issued during the pendency of the trial were a culmination of the registration process.
The respondent filed a preliminary objection on grounds that the appeal was frivolous as the Supreme Court lacked jurisdiction as moved by the appellant and that the notice of appeal was filed out of time contrary to rule 36 (1) of the Supreme Court Rules.
Issues
Whether a dispute on the ownership of land as a bona fide allottee, and the court’s application of the doctrine of lis pendens warranted an appeal to the Supreme Court on grounds of constitutional interpretation.
What factors did the Supreme Court consider before granting conservatory relief pending the hearing and determination of an appeal?
Whether a notice of appeal that was filed 15 days after the decision of the Court of Appeal was rendered owing to a national holiday being gazette within the 15 days, was filed in time
| Upon perusing the applicant’s notice of motion dated May 4, 2023 and filed on May 19, 2023 pursuant to article 163(4)(a) of the Constitution 2010; sections 21(1)(a), 24 (1) of the Supreme Court Act No 7 of 2011; rules 3(5), 31 & 32 of the Supreme Court Rules, 2020 seeking the following orders:
1.
Spent;
2.
Spent;
3.
That the honourable court be pleased to issue conservatory orders staying the execution of the ruling dated April 14, 2023 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission pending the hearing and determination of this petition of appeal;
4.
Spent;
5.
That the honourable court be pleased to issue conservatory orders staying the execution of the Judgment dated November 19, 2021 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission, pending the hearing and determination of this petition of appeal;
6.
Spent;
7.
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 pending the hearing and determination of this petition of appeal;
8.
That this honourable court be pleased to grant such other appropriate relief as it may deem fit, to give effect to the orders sought herein; and
9.
That the costs of this application be provided for; and
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on May 4, 2023 by Abdirahman Mohamed Elmi, and written submissions dated May 4, 2023 and filed on May 19, 2023 wherein the applicant contends that it is the registered owner of LR Nos 29957 and 29955 (hereinafter the suit properties) as allocated to it having paid the allotment fees; that the Court of Appeal in its ruling dated April 14, 2023 affirmed its judgment dated 1November 9, 2021 where it upheld the High Court decision cancelling the applicant’s survey, deed plan and the resultant titles to the suit properties; that this decision was reached without any cogent proof of illegality or fraud tendered by the 1st respondent; and that it did not violate the doctrine of lis pendens as the titles issued during the pendency of the trial was a culmination of the registration process; and
3.
Upon considering the applicant’s further argument that it has met the test laid down by this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014; [2014] eKLR by demonstrating that it has an arguable appeal based on the aforementioned grounds; that the appeal would be rendered nugatory if the subject matter is not preserved since the 1st respondent during the pendency of the Court of Appeal proceedings invaded the suit properties, erected a perimeter wall and installed a security person who has made it impossible for the applicant to go anywhere near the suit properties; and that public interest rests in favour of allowing the application as pertinent questions have been raised including the place of the court to infer fraud where it is not specifically pleaded and no evidence has been led to prove the same to the required standard; as well as dispossession of a legitimate allottee of property in the absence of proof of fraud and illegality; and
4.
Upon perusing the 1st respondent’s notice of preliminary objection dated May 30, 2023 and filed on June 13, 2023, opposing the application and petition of appeal on the grounds that the appeal is frivolous for this court lacks jurisdiction as moved by the appellant; and that the notice of appeal was filed/lodged out of time contrary to rule 36(1) of the Supreme Court Rules; and
5.
Upon considering the applicant’s written submissions dated May 9, 2023 in opposition to the preliminary objection wherein the applicant asserts that this court has jurisdiction because, from the onset, its claim was anchored on its right to own the suit properties as the bona fide allottee; and thus, the question before the court was whether the applicant or 1st respondent had acquired a right to the suit properties under article 40 of the Constitution. Hence, the appeal has attributes of constitutional interpretation and/or application that arise from the main suit and require it to be heard and determined by the superior courts below which this court has discretion to assess as was held by the court in Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney General & 2 others Sup Ct Petition No 45 of 2018 [2020] eKLR. Furthermore, the applicant contends that section 26 of the Land Registration Act, legislation derived from article 68 of the Constitution, calls Upon the superior court to question whether the applicant has a legitimate title of the suit properties under article 40, and whether the 1st respondent violated the same in anyway; and
6.
Additionally, the applicant argues that the notice of appeal was lodged within the prescribed timeline considering that April 21, 2023 was a holiday and is excluded under rule 36(1) of the Supreme Court Rules, section 57 of the Interpretation and General Provisions Act and as determined by this court in Bookpoint Limited v Guardian Bank Limited & another; SC Application No 4 (E006) of 2021, [2021] eKLR; and
7.
Having taken into account the entirety of the application, the preliminary objection, responses and submissions put forth, we opine as hereunder:
8.
A preliminary objection challenging our jurisdiction having been raised in response to the application and appeal, the same has to be addressed in limine. The crux of the preliminary objection is two pronged. First, that the notice of appeal was filed out of time contrary to rule 36(1) of the Supreme Court Rules, 2020 and secondly, that the appeal does not meet the threshold of article 163(4)(a) of the Constitution.
9.
On the first objection we note that under rule 36(1) of the Supreme Court Rules, a notice of appeal ought to be filed within fourteen (14) days from the date of judgment or ruling which is the subject of appeal. Rule 36(2)(b) thereof stipulates that the filing of the notice of appeal is, at the first instance, with the registrar of the court from which the appeal originates. The ruling subject of appeal in this instance was delivered on April 14, 2023. It is uncontroverted that the applicant lodged the notice of appeal to the Court of Appeal, through its online virtual platform on April 28, 2023. As indicated under section 57(b) of the Interpretation and General Provisions Act, public holidays are excluded in computing time. Since April 21, 2023 was gazetted as a public holiday vide Gazette Notice No 5045 dated April 19, 2023, we find that the applicant filed the notice of appeal within the fourteen-day window, expiring on April 29, 2023.
10.
We appreciate that in line with the Covid-19 Practice Directions on Electronic Case Management issued by the Court of Appeal and in particular Direction 8(3) thereof, filings before the Court of Appeal are entirely virtual. Thus, the date of filing effectively coincides with the date of lodging through the virtual platform. The court has previously exercised its discretion to excuse the confusion arising out of the transition between the Court of Appeal filing process and the filing before the Supreme Court in relation to the notice of appeal. In Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2022] KESC] 24 (KLR) (Civ) (19 May 2022) (ruling), we held as follows:
“We are Satisfied therefore that the electronic notice of appeal was timeously lodged in the Court of Appeal strictly in accordance with Direction 8(3) aforesaid and subsequently filed in this court within the time set, we find that it is properly on record and reject the objection by the 1st respondent, being satisfied that it was electronically served on June 17, 2021 which was the same day that the notice of appeal was filed.”
11.
This was in response to a similar objection regarding the electronic lodging of the notice of appeal before the Court of Appeal and the transmission of the hard to this court in line with rule 12 of this court’s rules as explained in the case of Kenya Hotel Properties Limited v Attorney General & 5 others; SC Application No 2 of 2021 (E004 of 2021); [2021] eKLR; We are therefore satisfied that just like in the cited cases, the objections concerning non-compliance with rule 36(1) of this court’s rule cannot stand.
12.
On the second limb of the objection, both parties appreciate the parameters of our jurisdiction. We need not re-emphasize that jurisdiction of a court flows from either the Constitution or legislation or both. And, jurisdiction is everything. (See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR). Only those appeals arising from cases involving interpretation or application of the Constitution can be entertained by the Supreme Court. The appeal must originate from the Court of Appeal case where issues of contestation revolved around interpretation or application of the Constitution. That the interpretation or application has formed the basis for determinations at the superior courts below and the same issue progressed through the normal appellate mechanism to reach this court.
13.
The gist of the applicant’s case from the onset before the superior courts focused on determining the ownership of the suit properties between the applicant and the 1st respondent. This is readily discerned from paragraph 13 of the plaint filed before the High Court and the prayer seeking a declaration as a bona fide owner of the suit properties. In doing so, the applicant invoked the doctrine of bona fide owner in the wake of double allotment of the suit properties. In the appeal before us, which stems from that before the Court of Appeal, the applicant raised grievances on the court’s application of the doctrine of lis pendens and the findings of fraud as against the evidence adduced at the trial including the affidavit introduced at the Court of Appeal sworn by one Zacharia Ndege.
14.
We caution, as we did in Daniel Kimani Njihia v Francis Mwangi Kimani & another Sup Ct Civil Application No 3 of 2014 [2015] eKLR, that the Supreme Court is not just another layer of appeal. Our circumscribed jurisdiction under article 163(4)(a) of the Constitution does not permit the court to adjudicate factual contestations unless they can fit the narrow prism of constitutional interpretation and application. 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. The objection therefore partially succeeds and is to that extent only allowed.
15.
In saying so, we think it is necessary to allow the appellant to ventilate its appeal under the strict confines of article 163(4)(a) of the Constitution. The court recently entertained a similar dispute involving contested ownership of land in Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2022] KESC] 30 (KLR) (21 April 2023) (Judgment) as of right.
16.
With our finding on the preliminary objection, we now turn to consider the prayers for conservatory relief. We note that the application is uncontroverted as the respondent fully relied Upon the objection in response to the same. Nevertheless, it is not lost to us that the applicant still has to satisfy the court that it is deserving of the said orders. The court’s jurisdiction to grant interim relief is hinged on sections 21 and 24 of the Supreme Court Act. The objective of the interim relief is to protect the substratum of the appeal.
17.
As set out in Gatirau Peter Munya case, it is evident to us that the appeal satisfies the three tests of arguability, in view of the self-evident arguments raised in the appeal, the appeal would be rendered nugatory if the court does not intervene and public interest in the sense that it is important for the constitutional right to own property, the exercise of authority by public bodies resulting to double allocations of titles to land and the misapplication of the doctrine of lis pendens which is a legal argument that goes to jurisdiction.
18.
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. However, as the appeal is yet to be determined, it is only prudent that the costs abide the outcome of the appeal.
19.
Consequently, we make the following orders:
a.
The preliminary objection partly succeeds to the extent that the applicant will restrict its 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;
ii.
Whether the Court of Appeal misapplied the doctrine of lis pendens and thereby denying the applicant a right to property.
b.
Notice of motion dated May 4, 2023 and filed on May 19, 2023 be and is hereby allowed.
c.
Conservatory orders be and are hereby issued staying the execution of the ruling dated April 14, 2023 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission pending the hearing and determination of the appeal;
d.
Conservatory orders staying the execution of the Judgment dated November 19, 2021 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission, pending the hearing and determination of this appeal.
e.
A temporary injunction be and is hereby issued 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 pending the hearing and determination of this appeal.
f.
The costs of the application to abide the outcome of the appeal.
| Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/66/eng@2023-08-04 |
Petition (Application) 34 (E035) of 2021 | Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2021) [2023] KESC 67 (KLR) (Civ) (4 August 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 August 2023 | 2,023 | Nairobi | Civil | Kampala International University v Housing Finance Company Limited | [2023] KESC 67 (KLR) | null | Brief facts
The applicant contended that it filed its appeal without the proceedings of the Court of Appeal and the High Court as they had not been typed by then and that the record of appeal was incomplete without the proceedings of the courts. The applicant further contended that it was necessary to amend the petition of appeal so as to bring out the inadvertently omitted background information on the matters raised in the arbitration and that the information would enable the court to make a determination from a fully informed position.
The applicant argued that the amendment would give the court a wider latitude to either hear and ventilate through the issues raised before the arbitrator and give its final determination or remit the same back to the arbitrator for a fresh hearing. The applicant stated that application ought to be allowed in the spirit of the court’s judicial authority under article 159 of Constitution of Kenya, 2010 (Constitution) and that no prejudice would be suffered by the respondent should the orders sought be granted. The applicant finally contended that the amendment was necessary so as to bring out the background information and material and that the information had a direct bearing on the main issue of the appeal.
Issues
Whether the Supreme Court had discretion to allow amendments to a petition to determine the real questions in dispute.
Whether the Supreme Court could delve into the merits or the likelihood of success of a matter in an application to amend a petition and to file a supplementary record of appeal.
| Upon perusing the notice of motion dated March 17, 2023 and filed on May 5, 2023 by the petitioner indicated as brought pursuant to rules 18 and 23 of the Supreme Court Rules, seeking leave to amend the petition of appeal and file a supplementary record of appeal; and
2.
Upon perusing the grounds on the face of the application and the supporting affidavit of Hassan Basajjabalaba, the Chairman of the petitioner’s Board, sworn on March 11, 2023, wherein the applicant contends that; it filed its appeal without the proceedings of the Court of Appeal and the High Court as they had not been typed by then; the record of appeal is incomplete without the proceedings of the courts; it is necessary to amend the petition of appeal so as to bring out the inadvertently omitted background information on the matters raised in the arbitration; the information will enable the court to make a determination from a fully informed position; the amendment will give this court a wider latitude to either hear and ventilate through the issues raised before the arbitrator and give its final determination or remit the same back to the arbitrator for a fresh hearing; this application ought to be allowed in the spirit of this court’s judicial authority under article 159 of Constitution; no prejudice will be suffered by the respondent should the orders sought be granted; and it is in the interest of justice for the amendment to be allowed; and
3.
Upon considering the applicant’s further argument in its submissions dated April 17, 2023 and filed on May 5, 2023 where it relies on rule 18 of the Supreme Court Rules 2012 (now rule 26 of the Supreme Court Rules 2020) and the principles set out in this court’s ruling in Attorney General v Zinj Limited Sup Ct Petition (Application) No 1 of 2020 [2021] eKLR on filing of additional evidence, and contends that the amendment is necessary so as to bring out the background information and material that will remove vagueness or doubt over the case and that the information has a direct bearing on the main issue of the appeal; and
4.
Upon perusing the respondent’s replying affidavit sworn by Regina Kajuju Anyika on May 24, 2023 in opposition to the application, and its submissions dated May 31, 2023, it contends that the petition of appeal in the present case must be limited to the question whether the Court of Appeal properly applied the principles enunciated by this court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) Sup Ct Petition No 12 of 2016 [2019] eKLR and Synergy Industrial Credit v Cape Holdings Limited Sup Ct Petition No 2 of 2017 [2019] eKLR in dismissing the applicant’s application for leave to appeal the decision of the High Court dated October 21, 2022, and noting that the appeal herein is an interlocutory appeal, pursuant to rules 40 and 41 of the Supreme Court Rules, 2020 the typed proceedings from the High Court and the Court of Appeal are not necessary; and
5.
Upon further considering the respondent’s arguments that; based on this Court’s decision in Geo Chem Middle East v Kenya Bureau of Standards Sup Ct Petition No 47 of 2019 [2020]eKLR, this court lacks jurisdiction to grant the prayers sought in the application and to give a final determination or remit the same to the arbitrator for fresh hearing as sought in the amended petition; the factual background sought to be introduced are matters already pleaded in the various pleadings in the record of appeal; the application lacks merit, is an abuse of the court process, and is merely filed to delay and deny the respondent the opportunity to enjoy the fruits of its judgment arising from the arbitration award made on September 27, 2019; and
6.
considered the application, response and the submissions filed by the petitioner and by the respondent we therefore opine as follows:
i.
The provisions of 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 or interlocutory orders as may be necessary for the ends of justice. This court therefore has discretion to allow amendments to determine the real questions in dispute and to do substantial justice. We echo our position in Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Ltd Sup Ct Application No 12 of 2019 [2019] eKLR, where we held as follows:
“
(27)
... Rule 3(5) of the Supreme Court Rules gives this court inherent power to make such orders, or give such directions as may be necessary for the ends of justice. We are satisfied that the purpose of the proposed amendment is to define the real question in controversy, and that the respondents will still have an opportunity to respond to the amendment, thereby addressing any potential prejudice that they may have suffered.”
Thus, the purpose of any amendment is to define the real question in controversy and the respondent will, in any event, have an opportunity to respond to the same.
ii.
In the same vein, the court has powers to grant leave to file a supplementary record under rule 40(4) of the Supreme Court Rules, 2020 when satisfied that the amendment seeks to introduce a critical document omitted. In Surya Holdings Limited & 2 others v CFC Stanbic Limited & another Sup Ct Petition No 8 of 2019 [2020] eKLR we stated as follows:
“
In considering whether to exercise discretion and grant leave to file documents out of time, we have time and again restated that the onus is on the applicant to explain the delay and that no prejudice will be caused to the opposing party. Rule 40(4) of the Supreme Court Rules, 2020 obligates an applicant to seek leave to file a Supplementary record of appeal to include a document omitted from the record of appeal unless such a supplementary record is filed within 15 days of lodging the record of appeal."
iii.
On the prayer to amend the petition, a perusal of the draft amended petition reveals that the applicant seeks to set out the background of what transpired before the arbitrator including an additional prayer to, ‘either quash the Arbitral Award subject to HC Misc Cause No E564 of 2019 and judgment be entered as prayed in the claim before the arbitrator, or the court invokes its powers under article 159 of the Constitution and orders the parties to hold in equal rights in respect of the property subject of charge in equal shares’. In our view, the applicant’s argument as we perceive it is that it merely intends to place the issues in disputation in perspective to facilitate the just determination of the appeal.
iv.
In our earlier ruling delivered on January 27, 2023 in this matter (Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling)), the court noted some of the contentions that rendered the appeal arguable. taking into account the respondent’s perception as to the nature and extent of issues in the intended appeal, the court, like in the earlier ruling, shall not at this juncture delve into the merits or the likelihood of success. The parties will have ample time to fully ventilate their arguments in line with our jurisdiction under article 163(4)(a) of the Constitution. The respondent’s prejudice to be suffered, if any, will be discernible then. For these reasons, we are therefore inclined to allow the prayer to amend the petition of appeal as sought.
v.
On the leave to file a supplementary record of appeal containing the proceedings of the High Court and Court of Appeal, it is apparent that the same were not available at the time of filing the record of appeal. The unavailability of the proceedings of the superior courts below and the time taken to secure them is not attributed to the fault of the applicant. The respondent has not controverted this limb of argument or demonstrated any likely prejudice if this prayer is granted. This renders the prayer as one for allowing.
vi.
In the circumstances, the interest of justice is best served by allowing the amendment of the petition and for the petitioner to file the supplementary record containing the proceedings before the superior courts below for the purposes of placing before the court all matters in controversy for the court’s determination. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/67/eng@2023-08-04 |
Reference 1 (E001) of 2021 | County Government of Nairobi v Attorney General (Reference 1 (E001) of 2021) [2023] KESC 65 (KLR) (Civ) (14 July 2023) (Advisory Opinion) | Advisory opinion | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 14 July 2023 | 2,023 | Nairobi | Civil | County Government of Nairobi v Attorney General | [2023] KESC 65 (KLR) | null | A. Introduction
1.
By a reference dated July 15, 2021, the County Government of Nairobi (the applicant herein), sought this court’s Advisory Opinion under article 163 (6) of the Constitution on the following four issues, reproduced verbatim:
1.
Whether the outstanding legal debt during the transition from the National Government to the devolved government as provided under sections 4 and 7 of the Transition to Devolved Government Act should have been absorbed by the National Government and not the County Government;
2.
Whether the transfer of functions from the County Government to the National Government vide the Deed of Transfer dated February 25, 2020 in terms of articles 187, 189 of the Constitution and sections 24, 25 and 28 of the Intergovernmental Relations Act should have also included the transfer of liabilities including the Kshs 60 billion owed in legal debt from the County Government to the National Government;
3.
Whether the county accounting officers should personally be held liable for the failure of the County governments to obey orders requiring payment of any money by way of damages or otherwise, or of any costs in legal debts; and
4.
Whether the arrest warrants issued against County Executive Officers on account of failure to pay the legal debt owed by the County Government violate their rights under articles 27, 28, 29, and 48 of the Constitution.
2.
The reference was supported by the affidavit of Lydia Kwamboka, the County Attorney of the applicant sworn on July 15, 2021.
B. Background
3.
By the operation of sections 3(d) and 7(2)(a)(e)(f) and (g) of the Transition to Devolved Government Act, all the assets and liabilities of its predecessor, the Nairobi County Council, were deemed to have been transitioned into the applicant’s assets and liabilities register. Further, pursuant to articles 187 and 189 of the Constitution as well as sections 25 and 26 of the Intergovernmental Relations Act, the applicant, through a Deed of Transfer of Functions dated February 25, 2020 (hereinafter ‘the Deed of Transfer’) unequivocally transferred the following services to the National Government through the Nairobi Metropolitan Services (hereinafter ‘NMS’): the county health services, county transport services, county planning and development services and county public works, utilities, and ancillary services, but failed to transfer corresponding liabilities.
4.
The applicant now seeks clarification of an alleged ambiguity in the legal statutes and framework, affecting the settlement of debts owed by the defunct Municipal Councils including the Nairobi City Council after the transition to devolved governments, and debts and liabilities sharing between the latter and the National Government, following the execution of the Deed of Transfer and transfer of functions aforesaid. | E. Analysis
i. Whether the application for an advisory opinion is premature
26.
The Attorney General’s preliminary objection is two-pronged. First, it was urged that the applicant’s reference was premature as the applicant had failed to seek the Attorney General’s advice, before moving the court for an advisory opinion. It was also urged that this inaction was deliberate. Consequently, the Attorney General contended that the court’s jurisdiction under article 163(6) of the Constitution should be ousted.
27.
Second, it was argued that the respondent, through the solicitor general had instructed the applicant’s advocates on record to withdraw the reference, as continuation of these proceedings lacks the applicant’s authority. These contentions were re-emphasized when this reference came up for hearing. It is imperative to note that the applicant did not controvert this challenge in its written submissions and its advocates on record failed to appear before the court when this reference came up for hearing to do the same.
28.
On our part, we have pronounced ourselves, as regards preliminary objections in the case of Independent Elections and Boundaries Commission v Jane Chepngerer and 2 others, SC Civil Application No 36 of 2014; [2015] eKLR where we stated:
“
It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law…”
29.
On the same issue, this court affirmed in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, SC Application No 50 of 2014; [2015] eKLR that;
“… a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
30.
Accordingly, an objection that disputes the jurisdiction of a court of law is one raising a pure point of law. We find that the respondent’s preliminary objection falls within these demarcations and warrants our determination at this stage.
31.
We now turn focus to the issue, whether the advisory opinion is premature for want of the Attorney General’s prior advice. The first point of call is rule 53
(c)
of the Supreme Court Rules, 2020 which provides that: rule 53
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]
F. Final Orders
44.
In that context, and responding to the preliminary objection before us, our orders are as follows:
i.
The preliminary objection by the Attorney General is upheld;
ii.
The reference dated July 15, 2021 and filed on July 19, 2021 be and is hereby struck out; and
iii.
Each party shall bear its costs.
We are further guided by our decision In the Matter of the Interim Independent Electoral Commission SC Application No 2 of 2011; [2011] eKLR [Re IIEC] where the court considered the question whether seeking advice from the Attorney-General, or the requirement for seeking such advice before moving the court for an advisory opinion, would be tantamount to interference with the independence of the Interim Independent Electoral Commission. The court pronounced itself as follows:
“In the instant matter, it is our opinion that, seeking the advice of the Attorney-General, or being required to do so by a rule of procedure, does not compromise the independence of a State organ in any way, nor does it vest a veto power in that office. While the applicant after obtaining advice from the office of the Attorney-General is not necessarily bound by the same, for the purpose of this court, the fact that such advice was sought in the first place, will demonstrate the applicant’s commitment, as well as fidelity to due process”.
33.
Consequently, In the Matter of the National Gender and Equality Commission, Reference No 1 of 2013; [2014] eKLR, we directed that, even though the locus standi of the party, and the nature of the subject matter, are two paramount considerations, there are other factors which though essential, will be weighted on a case-by-case basis. The issue whether the opinion of the Attorney-General has been sought is one such factor. In that matter, we concluded that;
“
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” [Emphasis added].
34.
Similarly, the need to seek the advice of the Attorney General was reiterated In the Matter of Speaker, County Assembly of Siaya County, Reference No 4 of 2017; [2020] eKLR.
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. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/65/eng@2023-07-14 |
Petition 17 (E021) of 2022 | Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 4 others; Tiony & another (Intended Interested Party) (Petition 17 (E021) & 24 (E027) of 2022 (Consolidated)) [2023] KESC 64 (KLR) (14 July 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 14 July 2023 | 2,023 | Nairobi | Civil | Zehrabanu Janmohamed SC (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi)
1st Appellant
Rai Plywood (K) Ltd
2nd Appellant
and
Nathaniel K Lagat
1st Respondent
Susan Cherubet Chelugui & David K. Chelugui (Suing as the Administrators of the Estate of the Late Noah Kipngeny Chelugui)
2nd Respondent
District Land Registrar Uasin Gishu
3rd Respondent
The Registrar Of Titles
4th Respondent
The National Land Commission
5th Respondent
and
Kimaiyo Tiony
Intended Interested Party
Moses Kiniiya Nene
Intended Interested Party | [2023] KESC 64 (KLR) | null | The applicants sought leave to be admitted as interested parties in the instant petition. They sought to be allowed to be granted an opportunity to submit written and oral arguments in the petition. The applicants alleged to be holders of a power of attorney of the 1st respondent over land that was allegedly the subject of the instant case.
The respondents opposed the application on grounds that the applicants lacked locus standi to approach the court as the 1st respondent was a substantive party to the proceedings and that the land that they referenced in their application was separate and distinct form the suit property.
Issues
Whether a holder of a power of attorney could apply to be joined as an interested party in a suit in which the principal was a substantive party to a suit.
Held
In determining applications to be joined as an interested party, the Supreme Court was guided by rule 24 of the Supreme Court Rules 2020, and the principles established in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others and Francis Karioki Muruatetu & Another v Republic & 5 Others.
The 1st respondent, the alleged grantor of the Power of Attorney to the applicants, was at all times an active party to the proceedings before the trial court and at the Court of Appeal. There was no basis upon which the applicants could be admitted as interested parties.
The power of attorney could not be activated on behalf of the very person, who had been and remained a party to the proceedings. The applicants had not set out any personal interest or stake that was clearly identifiable and proximate, or the prejudice they were likely to suffer in case of non-joinder.
Application dismissed. | We therefore make the following orders:
a.
The notice of motion dated January 17, 2023 and lodged on January 24, 2023, is hereby dismissed;
b.
The costs of this application shall be borne by the applicants.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/64/eng@2023-07-14 |
Petition (Application) E004 of 2023 | Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya (Intended Amicus Curiae) (Petition (Application) E004 of 2023 & Petition E002 of 2023 (Consolidated)) [2023] KESC 63 (KLR) (14 July 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 14 July 2023 | 2,023 | Nairobi | Civil | Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya | [2023] KESC 63 (KLR) | null | The Law Society of Kenya sought to be enjoined as amicus curiae in the instant suit. The crux of the petition revolved around the jurisdiction of the Employment and Labour Relations Court (ELRC) vis-à-vis the jurisdiction of the High Court to entertain disputes that did not emanate from an employer-employee dispute. In particular, the question was whether the determination of the constitutionality of the NSSF Act, 2013 was the mandate of the High Court or the ELRC. LSK proposed an amicus brief that related to the question of the jurisdiction of the ELRC to determine the aforementioned issues. | We now determine as follows:
i.
It is common ground that the crux of the dispute in the consolidated appeal pertains to the parameters of the ELRC’s vis-à-vis the High Court’s jurisdiction as far as the determination of the constitutionality of NSSF Act, 2013 is concerned; the particular issues being; a determination of whether ELRC has jurisdiction to entertain a dispute which does not arise from an employer-employee dispute; and whether the determination of the constitutionality of the NSSF Act, 2013 was the mandate of the High Court under article 165(3)(d)(i) or the ELRC under article 162(2)(a) of the Constitution.
ii.
Having appraised the proposed amicus brief we note that the points of law set out above, which LSK intends to advance, relate to the question of the ELRC’s jurisdiction to determine the constitutionality/validity of the NSSF Act, 2013.
iii.
Nonetheless, we cannot help but note that the arguments in the proposed amicus brief have largely been addressed in one way or another by the parties to the consolidated appeal through their pleadings and/or submissions. As such, the proposed amicus brief does not introduce novel aspects of the legal issue in question. See Francis Karioki Muruatetu & Another v Republic & 5 others, SC Petition No 15 of 2015 as consolidated with Petition No 16 of 2015 [2016] eKLR. In addition, we are not convinced that the motion was brought within reasonable time. For those reasons, we find that LSK has not met the conditions which would warrant its admission as amicus curiae in the consolidated appeal.
iv.
While costs should generally follow the event, guided by 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, an order that each party to bear their own costs is just and will serve the ends of justice. This is because to order otherwise may have the effect of barring bona fide applications for admission of persons who would assist the court as amicus curiae. We also recognize that the applicant was motivated by public interest to advance the law save that the issues it intends to raise are well covered by the pleadings and submissions on record.
11.
Consequently and for the reasons afore-stated, we make the following orders:
i.
The notice of motion dated May 15, 2023 and lodged on May 16, 2023 by LSK is hereby dismissed.
ii.
Each party shall bear their own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/63/eng@2023-07-14 |
Petition (Application) E006 of 2022 | Gachuhi & another v Evangelical Mission for Africa & another (Petition (Application) E006 of 2022) [2023] KESC 62 (KLR) (Civ) (30 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 30 June 2023 | 2,023 | Nairobi | Civil | Gachuhi & another v Evangelical Mission for Africa & another | [2023] KESC 62 (KLR) | null | null | We now opine as follows:
i.
Examining the record and the Judgments of the superior courts below, it is inarguably clear that the High Court interrogated and applied the requirements for setting aside an arbitral award under Section 35 of the Arbitration Act and set aside the same on grounds that it upset Sections 35 (2) (b) (ii) of the Arbitration Act and was against public policy;
ii.
Similarly, in its Judgment, the Court of Appeal confined itself to the issue, whether the High Court erred in setting aside the arbitral award under Section 35 of the Arbitration Act. To answer this question, it interrogated the findings of the trial court within the parameters settled by the jurisprudence of this Court. It affirmed the trial court’s decision;
iii.
Consequently, we agree with the respondents that no issues of contestation revolving around the interpretation or application of the Constitution have arisen to warrant the exercise of this Court’s jurisdiction under Article 163 (4) (a) of the Constitution;
iv.
Guided by our finding in Geo Chem [supra], we find that we lack the jurisdiction to entertain the petitioners’ application for stay of execution and the petition dated March 10, 2023; and
v.
Having so found, the other issues arising from the parties' rival submission must fall by the way side.
15.
Consequently and for reasons aforesaid, we make the following Orders:
i.
The Notice of Motion dated March 30, 2023 and filed on April 4, 2023 be and is hereby allowed;
ii.
The Notice of Motion dated March 23, 2023 and filed on March 28, 2023 be and is hereby dismissed;
iii.
The Petition dated March 10, 2023 and filed on March 16, 2023 be and is hereby struck out;
iv.
The petitioners shall bear the respondents’ costs; and
We hereby direct that the sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioners;
It is so Ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/62/eng@2023-06-30 |
Petition 41 of 2018 | Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another (Petition 41 of 2018) [2023] KESC 61 (KLR) (30 June 2023) (Judgment) (with dissent - MK Ibrahim & N Ndungu, SCJJ) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 30 June 2023 | 2,023 | Nairobi | Constitutional | Gitonga Mwangi Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi)
Petitioner
and
Zehrabanu Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi)
1st Respondent
Raymark Limited
2nd Respondent | [2023] KESC 61 (KLR) | null | null | E. Analysis
53.
Before considering the issues as set out above, we are constrained to pronounce ourselves on the question as to whether this court has jurisdiction to entertain this appeal in the first place. This would not have been necessary, had the issue not been raised by the respondents in the course of the main hearing. It is the 1st respondent’s argument that the appeal is frivolous, vexatious and an abuse of the process of court. The appeal, argues the 1st respondent, exceeds the parameters of leave granted by this court. In support, the 2nd respondent submits that the issues raised in the appeal were never part of the pleadings at the trial stage. Furthermore, he argues, the appeal does not raise any weighty constitutional questions to warrant this court’s further intervention.
F. Final orders of the court
i.
The appeal dated November 2, 2018 is hereby dismissed;
ii.
Each party shall bear its own costs; and
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 appellant.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/61/eng@2023-06-30 |
Petition 5 (E007) of 2021 | Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2023] KESC 51 (KLR) (23 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 23 June 2023 | 2,023 | Nairobi | Civil | Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission | [2023] KESC 51 (KLR) | null | A. Introduction
1.
This appeal challenges constitutionality of the provisions of section 8 and 9 of the Public Order Act which provides for the mandate of the Cabinet Secretary of Interior and a police officer in charge of a county or division to issue curfew orders and curfew restriction orders respectively.
2.
The appellant also submits that as a result of the said curfew orders specific constitutional rights and freedoms of the citizens were infringed or violated including the right to life under article 26; the right to equality and freedom from discrimination under article 27; the right to liberty under article 29; freedom of conscience, religion, belief under article 32 and the right to movement under article 39 of the Constitution.
3.
The appellant instituted this case before the High Court Constitutional & Human Rights division challenging the directive issued by the then Cabinet Secretary for Internal Security imposing a curfew in Wajir, Garissa, Mandera and Tana River Counties from 6.30pm to 6.30 am between the months of April 2015 to June 2015. The curfew orders and restrictions were imposed following a heinous terrorist attack on April 2, 2015 at Garissa University where at least 148 innocent Kenyans were killed and numerous others injured.
4.
Both the High Court and the Court of Appeal dismissed the appellant’s case and made a finding that section 8 and 9 of the Public Order Act was not unconstitutional and that the alleged limitation of human rights and freedoms within section 8 and 9 of the Public Order Act is justifiable, reasonable and necessary under article 24 of the Constitution.
B. Background
i. Proceedings in the High Court
5.
The appellant filed a constitutional petition before the Garissa High Court petition No 6 of 2015 which challenged constitutionality of sections 8 and 9 of the Public Order Act, on which the curfew was predicated. It also contended that the continued enforcement of the curfew severally curtailed the residents’ rights of movement and worship. The effect of the curfew reduced the number of hours in the day leading to a serious negative impact on the socio-economic activities and livelihoods of the people living in these counties since economic activities in these areas are particularly active during the night due to the severe high temperatures, these activities include but not limited to retail trading, video shows, travel, and social gatherings.
6.
The appellant prayed for the High Court to grant inter alia the following orders; An order of injunction restraining the respondents, whether by themselves, agents, police, military officers, or other assigns, from continuing to enforce the orders of curfew affecting Garissa, Wajir, Mandera, and Tana River County residents and interfering with the free movement of the residents of the aforementioned counties, an order lifting the curfew and a declaration that that curfew imposed on the aforementioned counties is illegal, unconstitutional, and null and void.
7.
The appellant also prayed for a declaration that sections 8 and 9 of the Public Order Act are unconstitutional and void, that the 1st respondent acted without authority to impose the curfew on the counties, that the citizens’ right to religion especially during the month of Ramadhan be safeguarded and an order for the payment of damages to communities and residents to be assessed.
8.
The High Court identified four key issues for determination: whether the petition can be allowed even though the respondent and the interested party did not file replying affidavits; whether sections 8 and 9 of the Public Order Act are unconstitutional; whether the curfew imposed on the residents of Garissa, Wajir, Mandera, and Tana River Counties infringed on their fundamental rights and was unconstitutional, null and void, and whether the prayers sought can be granted.
9.
On March 14, 2017, the High Court (Dulu J) dismissed the petition with no order as to costs and made the following findings. On the issue of failure by respondents and the interested party to file replying affidavits to the petition, the learned judge found that the points in dispute were legal rather than factual therefore, a replying affidavit was not necessary as it is only required when controverting facts.
10.
On the question of the unconstitutionality of sections 8 and 9 of the Public Order Act, the learned judge observed that powers to declare a state of emergency are different from those of the imposition of a curfew or curfew restriction orders. The presidential powers to declare a state of emergency under article 58 of the Constitution require the national assembly, however, there was no such requirement for curfew orders and curfew restriction orders. Therefore, the powers conferred on the President to declare a state of emergency differ from the powers bestowed on the Cabinet Secretary to declare curfew orders and curfew restrictions. Ultimately, it found that sections 8 and 9 of the Public Order Act were not unconstitutional.
11.
On the violation of the fundamental rights and freedoms, the learned judge while admitting that certain fundamental rights had been limited by the imposition of the curfew due to the prevalence of insecurity, held that the curfew order was justified at the time it was imposed and not unconstitutional. | F. Determination
30.
We shall first dispense with the issue of jurisdiction. The appellant has filed this appeal as a matter of right pursuant to article 163(4)(a) of the Constitution. The guiding principles set by this court to interpret whether this court has jurisdiction to hear and determine this appeal have been set out in several cases by this court. In the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] eKLR and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2013] eKLR, this court established that an appeal must originate from a matter where the issues contested revolved around the interpretation or application of the Constitution and the same is now being contested before the Supreme Court. Where the case has 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.
31.
We have reviewed the record of appeal and heard the submissions by the parties and find that this appeal faults the challenges the Court of Appeal’s finding on whether the provisions of sections 8 and 9 of the Public Order Act are constitutional vis a vis article 58 and the rights and freedoms under articles 26,27,29,32 and 39 of the Constitution which were purportedly violated as a result of enforcement of curfew orders and restrictions in Wajir, Garissa, Mandera and Tana River Counties between April 2, 2015 and June 18, 2015. We find that this appeal is properly before us pursuant to article 163(4)(a) of the Constitution.
(i) Whether sections 8 and 9 of the public order are unconstitutional?
32.
The second issue for our determination is whether sections 8 and 9 of the Public Order Act is constitutional vis a vis article 58 of the Constitution. We shall reproduce the provisions and analyse constitutionality thereof.
“
8.
Curfew orders
(1)
The Cabinet Secretary, on the advice of the Inspector-General of the National Police Service may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorized by or under the curfew order.
(2)(a)
It shall be a condition of every permit granted under subsection (1) of this section that the holder thereof shall at all times while acting under the authority thereof during the hours of darkness carry a light visible at a distance of twenty-five feet.
(b)
Subject to paragraph (a) of this subsection, a permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.
(3)
A curfew order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for the period specified therein or until earlier rescinded by the same authority or by the Minister as hereinafter provided:
Provided that no curfew order which imposes a curfew operating during more than ten consecutive hours of daylight shall remain in force for more than three days, and no curfew order which imposes a curfew operating during any lesser number of consecutive hours of daylight shall remain in force for more than seven days.
(4)
Deleted by Act No 19 of 2014, s. 4(b).
(5)
The variation or rescission of a curfew order shall be published in like manner as that provided in subsection (3) of this section for the publication of a curfew order.
(6)
Any person who contravenes any of the provisions of a curfew order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.
(7)
A certificate under the hand of the authority making, varying or rescinding a curfew order, specifying the terms, and the date and manner of publication, of such order, variation or rescission, shall be prima facie evidence thereof in all legal proceedings.
(8)
Any person who, without lawful excuse, carries or has in his possession, in any area in which a curfew order is in force and during the hours during which the curfew imposed thereby is operative, any offensive weapon shall be guilty of an offence:
Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the Court that he carried or had in his possession the offensive weapon—
i.
solely for domestic or defensive purposes within enclosed premises which he lawfully occupied or in which he was lawfully present; or
ii.
with the authority of his employer and solely for domestic or defensive purposes within enclosed premises in the lawful occupation of his employer”.
33.
Section 9 of the Public Order Act provides for curfew restriction orders as follows:
“
(1)
A police officer in charge of the police in a county or a police officer in charge of a police division may, if he considers it necessary in the interests of public order within the area of his responsibility so to do, by order (hereinafter referred to as a curfew restriction order) prohibit, during such hours as may be specified in the curfew restriction order, all persons, or, as the case may be, all members of any class of persons specified in the curfew restriction order, from entering, being or remaining, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew restriction order, in or at any premises specified in the curfew restriction order:
Provided that no person shall, by or in pursuance of a curfew restriction order, be prohibited or prevented from entering, being or remaining in any premises at which he normally resides, or, during reasonable hours of business, work or employment, any premises at which he normally has his place of business, work or employment.
(2)
A permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.
(3)
A curfew restriction order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for such period, not exceeding twenty-eight days, as may be specified therein or until earlier rescinded by the same authority or by the Cabinet Secretary as hereinafter provided.
(4)
Every curfew restriction order shall, forthwith on its being made, be reported to the Commissioner of Police, and the Commissioner of Police may, if he thinks fit, vary or rescind the curfew restriction order.
(5)
The variation or rescission of a curfew restriction order shall be published in like manner as that provided in subsection (3) of this section for the publication of a curfew restriction order.
(6)
Any person who contravenes any of the provisions of a curfew restriction order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.
(7)
A certificate under the hand of the authority making, varying or rescinding a curfew restriction order, specifying the terms, and the date and manner of publication, of such order, variation or rescission, shall be prima facie evidence thereof in all legal proceedings”.
34.
Article 58 of the Constitution provides as follows on the declaration of a state of emergency:
“
1)
A state of emergency may be declared only under article 132 (4)(d) and only when—
a.
the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
b.
the declaration is necessary to meet the circumstances for which the emergency is declared.
2)
A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only—
a.
prospectively; and
b.
for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.
3)
The National Assembly may extend a declaration of a state of emergency—
a.
by resolution adopted—
i.
following a public debate in the National Assembly; and
ii.
by the majorities specified in clause (4); and
b.
for not longer than two months at a time.
4)
The first extension of the declaration of a state of emergency requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.
5)
The Supreme Court may decide on the validity of—
a.
a declaration of a state of emergency;
b.
any extension of a declaration of a state of emergency; and
c.
any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
6)
Any legislation enacted in consequence of a declaration of a state of emergency—
a.
may limit a right or fundamental freedom in the Bill of Rights only to the extent that;
i.
the limitation is strictly required by the emergency; and
ii.
the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency; and
b.
shall not take effect until it is published in the gazette.
7)
A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorize the indemnification of the State, or of any person, in respect of any unlawful act or omission”.
35.
Having set out the legislative provisions on curfew orders and curfew restriction orders under contention as against constitutional provisions on state of emergency, we now turn to the analysis of constitutionality of the legislative provisions.
36.
We have previously pronounced ourselves on the test on determining constitutionality of legislative provisions. In the case of Law Society of Kenya v Attorney General & another petition No 4 of 2019[2019] eKLR this court held as follows at paragraph 36:
“
Before determining the above issues, we consider it pertinent to restate the approach that every court should take when determining the question whether any statutory provision is unconstitutional or not. It is alleged in the petition of appeal that the cited provisions of WIBA should be struck off for being in violation of the former and present constitutions. In addressing that issue, it must always be borne in mind that the legislature’s primary constitutional mandate is the making of laws. Those laws set the ultimate direction of all activities in a State and the actions of all persons. Thus, there exists principles that underline the determination of constitutional validity of a statute or its provisions because it is the function of the courts to test ordinary legislation against the governing yardstick: Constitution.”
37.
This court further enumerated on the applicable presumption and onus dischargeable as follows at paragraph 37:
“
At the forefront of these principles is a general but rebuttable presumption that a statutory provision is consistent with Constitution. The party that alleges inconsistency has the burden of proving such a contention. In construing whether statutory provisions offend Constitution, the courts must therefore subject the same to an objective inquiry as to whether they conform with Constitution.”
38.
Additionally, in the same paragraph, the Supreme Court enumerated the principle that, “the true essence of a statutory provision as well as its effect and purpose must be considered.”
39.
Reference is also made to this court’s precedent and findings made by the courts on legislative interpretation in the following respective cases; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, and Hamdarddawa Khana v Union of India and others 1960 AIR 554 and Pepper v Hart [1992] 3 WLR.
40.
The Supreme Court of India in the case of Reserve Bank of India v Peerless General Finance & Investment Co Ltd & others [1987] 1 SCC 424 considered the intent of text and context in interpretation and held as follows.
“
Interpretation must depend on the test and the context. They are the bases of interpretation. One may well say if the test is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”
41.
The appellant contends that the provisions of section 8 and 9 of the Public Order Act are unconstitutional as they give sweeping powers to the Cabinet Secretary and the Police without checks and balances or parliamentary and judicial oversight contrary to the provisions of article 58 and 95 of the Constitution. It is its case that the provisions do not provide timelines on duration of curfews and further that the provisions infringe on an array of human rights. The appellant also contends that the provisions are archaic and contrasted the provisions to the colonial statutes on issuance of passes which were written permits granted by an authority under inter alia the Native Passes Regulations 1900.
42.
It is the respondents' case that the impugned provisions are not unconstitutional as they meet the objective of the Public Order Act which is to attain the legitimate purpose of ensuring safety, peace, and order at the attainment of national security in a given area of the country. Further that sections 8 and 9 of the Act presuppose a state of security, peace, and stability that is free from criminal activities and violence.
43.
The court in determining the purpose of a curfew held as follows in the case of Muslims for Human Rights (MUHURI) & 4 others v Inspector General of Police & 2 others [2014] eKLR
“
The underlying objective of a curfew is to enable security personnel to move into an area affected by criminal acts leading to public disorder, or such other acts that affect normal operations of the residents of the affected area…”
44.
In analyzing constitutionality of sections 8 and 9 of the Public Order Act, we shall begin by considering the purpose of the Act. The long title of the Act provides that the objective of the Statute is to make provision for the maintenance of public order and for purposes connected therewith. With reference to curfew orders, the Cabinet Secretary responsible for Internal Security is mandated to issue the order which is premised on advice of the Inspector General of Police. The order is issued in the interests of maintaining public order.
45.
In the circumstances of this case, the curfew orders in dispute were issued following a heinous terrorist attack in Garissa and it was necessary in the circumstances to forestall any other attacks as well as maintain public order while investigations relating to the attack were conducted whilst maintaining law and order in the affected county as well as the neighboring counties. Therefore, the 2nd respondent legitimately issued the curfew order which was also a precautionary measure to avert any further potential risk upon the lives of the residents in the four (4) counties.
46.
In the case of Republic v Ministry & 3 others Ex-parte Kennedy Amdany Langat & 27 others, Judicial Review Case No 2 of 2018 and JR 709 of 201 (Consolidated) [2018] eKLR held as follows on the application of the precautionary principle.
“
126.
Therefore, applying the precautionary principle, which principle is designed to prevent potential risks, I find and hold that it is the duty of the state to take protective measures without having to wait until the reality and seriousness of those risks are fully demonstrated or manifested. This approach takes into account the actual risk to public health, especially where there is uncertainty as to the existence or extent of risks to the health of consumers. The state may take protective measures without having to wait until the reality and the seriousness of those risks are apparent.”
47.
Further, there was need to maintain national security considering that the nature of terrorism translates across the victim country’s borders. Article 238 (2) of the Constitution provides that the principles of national security are that it is subject to the authority of the Constitution and Parliament, it shall be pursued in compliance with the law and utmost respect for the rule of law, democracy and human rights and fundamental freedoms and that national security organs shall respect the diverse culture of the communities within Kenya.
48.
Sections 8 and 9 of the Public Order Act provide for the duration of hours to remain indoors and which applies to every member of any class except with a written permit. Additionally, curfew restriction orders are issued by the police in charge of a county or division restricting persons from entering, being or remaining in any premises. The Black’s Law Dictionary defines a curfew as ‘a regulation that forbids people from being outdoors or in vehicles during certain hours.’ Although the statutory provisions do not state the hours for the curfew operation, the proviso in section 8(3) caters to the limitation of hours to a curfew as it prohibits the operation of a curfew order for more than ten (10) hours consecutive hours of daylight for three (3) consecutive days or for less consecutive hours for more than seven (7) days. Further, a curfew restriction order should not exceed twenty-eight (28) days. We therefore find that the law does provide for the operation hours of a curfew which is not excessive but rational to meet the objective of the issuance of the orders.
49.
On publication of the orders, sections 8 and 9 of the Public Order Act provides that the authority making the order shall in a manner it may think sufficient notify all persons of the day the curfew shall come into force and its duration. We, therefore, find that although the proviso does not state how the publication should be issued, the 2nd respondent has the onus to ensure that the publication is widespread and that all affected persons are informed on the issuance of the curfew.
50.
The appellant contends that the provisions of sections 8 and 9 of the Public Order Act should be considered vis a vis article 58 of the Constitution on a declaration of a state of emergency. A reading of article 58 of the Constitution provides that a state of emergency is declared in the limited circumstances where the State is threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergency. The declaration is for an initial period of fourteen (14) days and any subsequent extension is subject to the approval by National Assembly and its validity or legislation enacted pursuant to the declaration can be challenged in the Supreme Court.
51.
Constitution anticipates that a declaration of a state of emergency is likely to limit the enjoyment of rights and freedoms and provides that the limitation should strictly be required by the emergency and be consistent with the Republic’s obligation under international law applicable to a state of emergency.
52.
Therefore, in contrast to the legislative provisions on curfew orders and curfew restriction orders, it is apparent that a declaration of a state of emergency affects the entire State. Consequently, the declaration must be subjected to oversight by Parliament and any legal challenge arising thereof be resolved by the courts and in this instance, the jurisdiction is limited to the Supreme Court. On the other hand, curfew orders and curfew restriction orders are limited to a particular area and therefore will not require Parliamentary approval. However, any legal challenge arising from the declaration of a curfew can be adjudicated upon in the courts. The duration of a curfew restriction order shall not exceed a period of twenty-eight (28) days which we opine is a reasonable period upon recommendation by the authority making it.
53.
Consequently, gleaning on the considerations above we find that the appellant’s arguments fail and hold that the provisions of sections 8 and 9 of the Public Order Act attain constitutional threshold as well as meet the intent and purpose of the Act.
(ii) Whether the imposition of the curfew orders violated the rights enshrined under articles 26, 27, 29, and 39 of the Constitution and whether the limitation was justifiable?
54.
The appellant contends that the curtailing of movement of people had the effect of depriving people of their livelihood contrary to article 26 of the Constitution on the right to life, and that the voluntary limitation violated the right to liberty under article 29 of the Constitution, that sections 8 and 9 of the Public Order Act provides that the curfew can be imposed on members of a specific class which purportedly causes segregation thereby violating the right to equality and freedom from discrimination contrary to article 27 of the Constitution; that persons in the areas that the impugned curfew orders were declared are majority Muslim faithful who could not conduct night prayers during the holy month of Ramadhan thereby curtailing the freedom of religion contrary to article 32 of the Constitution, and that the movement of persons where the curfew and restriction orders were imposed was in contravention of the right of movement under article 39 of the Constitution.
55.
The respondents in opposition urged that there was no infringement of rights but the orders merely limited the enjoyment of certain rights. It is their case that the right of movement was limited to ensure safety and security and maintain public order as many lives had been lost during the terrorist attack. Additionally, that the orders applied to all residents and did not discriminate against the Muslim residents right to freedom of religion.
56.
We now turn to the principles applicable. With reference to international law, some human rights treaties include special provisions allowing for derogations from particular rights in times of war or other emergencies threatening the life of the nation.
57.
Article 4 of the International Covenant on Civil and Political Rights specifies that:
“
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the states parties to the present covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.
58.
Other treaties containing a derogation clause include article 15 of the European Convention on Human Rights, article 4 of the International Covenant on Civil and Political Rights, article 27 of the American Convention on Human Rights and part v of the European Social Charter. These provisions generally require states to officially notify the respective treaty regime and indicate the reasons for their derogation as well as the duration.
59.
The derogation clauses are included because, during exceptional times, it can be crucial to curtail rights in order to preserve their long-term existence. This is important because human rights themselves come under threat in situations where there is no public order. In addition, the measures must be of an exceptional and temporary nature and only in a situation that amounts to a public emergency threatening the life of a nation.
60.
In this matter, it is imperative to note that the curfew orders and restriction orders were issued as a result of an unfortunate terrorist attack. Terrorism is classified as an international threat and its suppression involves a combined multi-national and multi-agency approach. Internationally, Kenya is core in the fight against terrorism having been a victim of the heinous attacks on occasions we do not wish to recollect.
61.
The Siracusa Principles drafted in 1958 provide for the limitation and derogation principles in the International Covenant on Civil and Political Rights - ICCPR. The principles define which public emergencies fall under article 4 of the ICCPR and provide for example, that public health may be invoked to trigger emergency provisions for the purpose of allowing ‘a State to take measures dealing with a serious threat to the health of the population or individual members of the population.’ These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.
62.
The Siracusa Principles specifically state that restrictions should, at a minimum, be:
i.
“provided for and carried out in accordance with the law;
ii.
directed toward a legitimate objective of general interest;
iii.
strictly necessary in a democratic society to achieve the objective;
iv.
the least intrusive and restrictive available to reach the objective;
v.
based on scientific evidence and neither arbitrary nor discriminatory in application; and
vi)
of limited duration, respectful of human dignity, and subject to review.”
63.
In relation to the ICCPR, the Siracusa Principles specify that limitation clauses based on the covenant provisions can only be invoked if they are necessary, based on one of the grounds justifying limitations recognized by the covenant, responding to a pressing social need, pursuing a legitimate aim, are necessary in a democratic society, and proportional to the nature of the threat.
64.
During the Covid 19 pandemic the Human Rights Committee in its ‘statement on derogations from the covenant in connection with the Covid-19 pandemic’, specifies that the pandemic has put an onus on member states to take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and that such measures may result in restrictions on the enjoyment of individual rights guaranteed by the covenant
65.
Article 24 of the Constitution provides as follows on the limitation of rights and fundamental freedoms; that
“
A right or fundamental freedom in the bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
a.
the nature of the right or fundamental freedom;
b.
the importance of the purpose of the limitation;
c.
the nature and extent of the limitation;
d.
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
e.
the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose”.
66.
This court in the case of Karen Njeri Kandie v Alassane Ba & another SC petition No 2 of 2015 [2017] eKLR held at paragraph 78 that:
“
Before applying the ‘reasonable and justifiable’ test, therefore, a court must first determine whether a right has been limited under a particular law . . .it is important to consider the factors set out in Constitution that will assist us to answer this question including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation and the fact that the need for enjoyment of the right one individual does not prejudice the rights of others, as well the consideration of the relationship between the limitation and its purpose, and whether there is a less restrictive means to achieve that purpose’’
67.
Chaskalson P, of Constitutional Court of South Africa held as follows on the limitation test in the case of S v Makwanyane and another [1995] ZACC 3 at paragraph 104:
“
The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of s 33(1). The fact that different rights have different implications for democracy and, in the case of our Constitution, for ‘an open and democratic society based on freedom and equality’, means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by- case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process the relevant considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.’’
68.
Turning to the contention by the appellant, on the alleged infringement on the right of movement, we opine that the very nature of curfew orders is to limit movement of people so as to maintain security, law, and order. The operating hours of the curfew were between 6.30 pm and 6.00 am. These hours are reasonable and it was justifiable for this right to be limited for the duration of the curfew. On the alleged infringement of the right of life whose enjoyment the appellant urged infringed on the rights of the good people of the Wajir, Mandera, Garissa and Tana River counties to livelihood as the curfew orders restricted persons from being in their business premises, we find as follows. In the circumstances, the need to preserve the right to life, after over a hundred lives were lost in the terrorist attack, outweighed the limitation on the restriction of business trading hours. In any event, during the curfew period, the residents were notified of the curfew and were therefore obliged to adjust their business trading hours.
69.
On the alleged discrimination, segregation and infringement of the freedom of religion, the appellant urged that sections 8 and 9 of the Public Order Act speaks to the issuance of curfew orders against a class of persons. A reading of the provision shows that the curfew orders apply to “every member of any class of persons specified in the curfew order” and that the exception is only granted to persons who have a written permit from the authority. In this instance, the curfew order applied to all the residents of the four counties and did not segregate any class of persons as alleged. It was unfortunate that the curfew run during the month of Ramadhan thereby restricting the Muslims from attending night prayers. However, the limitation of the freedom of religion was justifiable in the circumstances.
70.
Consequently, relying on the provisions of Constitution, International Law, and the principles on the reasonable and justifiable test and taking into account all factors attendant to this cause, we find that the limitations were justifiable and reasonable in the circumstances and that there was no violation of the enjoyment of human rights as alleged by the appellant.
G. Orders
i.
The appeal is hereby dismissed
ii.
Each party shall bear its own costs.
iii.
We hereby direct that the sum of Kshs 7,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the appellants. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/51/eng@2023-06-23 |
Application E013 of 2023 | Miruka v Kenya Revenue Authority & 5 others (Application E013 of 2023) [2023] KESC 50 (KLR) (23 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, I Lenaola, W Ouko | 23 June 2023 | 2,023 | Nairobi | Civil | Miruka v Kenya Revenue Authority & 5 others | [2023] KESC 50 (KLR) | null | Brief facts
The applicant filed the instant appeal seeking to be granted whistle blower award and protection. The applicant contended that he had given his ideas, information and intelligence to the Kenya Revenue Authority to map out and register all landlords and estate property owners and agents to curb tax evaders. He sought compensation for his efforts. His petition before the High Court was dismissed and his first appeal was yet to be determined by the Court of Appeal. Aggrieved by the alleged delay the applicant filed the instant appeal before the Supreme Court. | 7.
We have considered the application, affidavits, submissions filed and now opine as follows:
i.
This application has not been filed pursuant to the provisions of article 163(4)(a) or (b) of the Constitution, as read together with section 15, 15A and 15B of the Supreme Court Act which grants this court jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as involving general public importance. The application is also not seeking certification or review under article 163(4)(b) of the Constitution.
ii.
In any event, in Sum Model Industries Ltd v Industrial and Commercial Development Corporation, Sup Ct civil application No 1 of 2011 [2011] eKLR we held that a certification for leave to appeal to the Supreme Court on a matter of general public importance ought to be first filed at the Court of Appeal and a party with the Court of Appeal’s decision in this regard, is at liberty to seek a review of that decision from the Supreme Court. This is the import of rule 33 that the applicant has invoked.
iii.
There is neither an appeal nor an intended appeal preferred to this court from the Court of Appeal. The applicant has not made reference to any decision by the Court of Appeal in the present case. The genesis of the matter is High Court Petition No 538 of 2016 filed by the applicant. The same was dismissed and the applicant appealed to the Court of Appeal in Nairobi Civil Appeal No E005 of 2020, which appeal is yet to be heard and determined on its merits.
iv.
The applicant has instead invoked the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and has sought orders that are not in the nature envisaged under the Constitution or the Supreme Court Act for which this court has original jurisdiction.
v.
Rules 7 and 33 of the Supreme Court Rules quoted by the applicant are not reflected in the prayers sought by the applicant or the grounds in support of the application. Rule 7 relates to the sittings of this court while rule 33 relates to certification of a matter as involving general public importance, which, as already stated, the applicant has not complied with.
vi.
As we held in Hermanus Phillipus Steyn v Giovanni Gnecchi- Ruscone Sup Ct Application No 4 of 2013 [2013] eKLR, it is trite law that a court of law has to be moved under the correct provisions of the law, which the applicant has failed to do.
8.
Consequently, for reasons aforesaid, we make the following orders:
i.
The notice of motion dated March 17, 2023 be and is hereby dismissed;
ii.
Each party to bear own costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/50/eng@2023-06-23 |
Application E009 of 2023 | Munguti & 6 others v Zibu & 13 others (Application E009 of 2023) [2023] KESC 49 (KLR) (23 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 23 June 2023 | 2,023 | Nairobi | Civil | Munguti & 6 others v Zibu & 13 others | [2023] KESC 49 (KLR) | null | Brief facts
At the heart of the dispute between the parties was the question of ownership of certain assets in the form of immovable properties, money in the bank, and control and management of the 7th applicant. The assets were allegedly acquired using donor funds from the 2nd respondent and other donors; the 2nd respondent remitted funds to the 1st applicant to register the 7th applicant as well as to purchase land with a view to setting up a children’s home and drug addiction rescue and rehabilitation centre. The first two plots were registered in the name of the 7th applicant while the latter property in the name of the 1st applicant.
The instant application sought among others the review and setting aside of the Court of Appeal decision declining leave to appeal to the instant court; the grant of leave of the court to file an appeal against the judgment of the Court of Appeal in Civil Appeal No 260 of 2018, Henry Muli & others v Cyrus Robert Sala Zibu & others; and the certification of their appeal as raising matters of general public importance.
The applicants submitted that the Court of Appeal did not analyse each of the framed issues and consider the arguments advanced for certification, to the effect that the instant court needed to clarify the law. It was the applicants’ argument that the position relating to remedies available upon the finding of the existence of a trust was unsettled. | We Now Therefore Opine as Follows:
5.
Restating the principles governing applications for certification as enunciated by the court in Hermanus Phillipus Steyn; that the applicant must satisfy the court that the issue to be canvassed on appeal before the court is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest; where a point of law is raised, that such a point is a substantial one the determination of which will have a significant bearing on the public interest; the question or questions of law must have arisen in the courts below and must have been the subject of judicial determination; that where the certification is occasioned by a state of uncertainty in the law arising from contradictory precedents, the Supreme Court may either resolve the uncertainty or refer the matter to the Court of Appeal with appropriate directions; that mere apprehension of miscarriage of justice is not a proper basis for granting certification and the matter must still fall under article 163(4)(b) of the Constitution; that the applicant must identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for certification; and that determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court; and
6.
Upon applying these strictures to the rival Submissions; on the one hand, that the appeal raises matters of general public importance and that the Court of Appeal did not consider the arguments raised by the applicants with respect to resulting trusts, and on the other hand that the issues raised by the applicants as forming matters of general public importance do not meet the threshold established in the Hermanus Phillipus Steyn case because the appeal relates to private interests over land; the single issue for consideration and determination is whether the applicants have made a case to the satisfaction of the court to warrant us to review the decision of the Court of Appeal denying the applicants the certificate to appeal to this court; and
7.
Upon examining the record, it is inarguably clear that at the heart of the dispute between the parties is the question of ownership of certain assets in the form of immovable properties (plot numbers 3762, 3763, and 3792), money in the bank, and control and management of the 7th applicant. The assets were allegedly acquired using donor funds from the 2nd respondent and other donors; the 2nd respondent remitted funds to the 1st applicant to register the 7th applicant as well as to purchase land with a view to setting up a children’s home and drug addiction rescue and rehabilitation centre; that the first two plots were registered in the name of the 7th applicant while the latter property in the name of the 1st applicant; and
8.
Upon determination of these issues, the Environment and Land Court held that the relationship between the 1st applicant and the 2nd respondent resulted in the creation of an implied trust; that the 1st-6th applicants, who are the officials of the 7th applicant, in the circumstances were trustees of the 2nd respondent and his donor friends in respect to the subject plot, funds in the bank, moveable and immoveable assets registered in the name of the 1st applicant, his agents, spouse, servants and or appointees; that the implied trust between the 2nd respondent and the 1st applicant graduated and became a public trust in which the respondents and the people of Makueni County were beneficiaries of; a mandatory injunction compelling the 1st applicant to register Plot No 3792 in the name of the 7th applicant; and
9.
On Appeal, the Court of Appeal isolated four issues to consider; whether the 2nd respondent demonstrated that the funds sent to the 1st applicant were sourced from the former and his friends from Germany; whether the 7th applicant received funds from other donors not connected to the 2nd respondent; whether a resulting trust was created in favour of the 2nd respondent, over all funds, movable and immovable assets respectively registered in the applicants’ and the 1st applicant’s names, as well in the names of 1st applicant’s agents, spouse, servants or appointees and; whether the orders made were within the jurisdiction of the Environment and Land Court; and
10.
Upon considering these issues, the appellate court found, just like the trial court, that the 1st applicant bought the three plots in question with funds remitted to him by the 2nd respondent and other donors connected to the 2nd respondent; that the 1st applicant failed to present proof that he had purchased any of the plots with funds from any other source; and that in registering one of the plots in his name automatically created a resulting or implied trust in favour of the 2nd respondent from whom the funds in the form of donations for the purchase of the plots originated; and
11.
Upon affirming further the trial court’s conclusions and bearing in mind that the declaratory orders issued by that court concerned the issue of trust over the subject plot and related assets, the appellate court was satisfied that the Environment and Land Court had the jurisdiction under article 162(2) of the Constitution to entertain the dispute and determine it; and
12.
Considering the principles enunciated in Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others; CA No 51 of 2014; [2015] eKLR that a resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee; that a resulting trust will automatically arise in favour of the person who advances the purchase money; and whether or not the property is registered in his name or that of another, is immaterial; it is our view that the issues, as determined by the superior courts below, are settled; and
13.
Further Satisfied that the courts below, besides the Court of Appeal’s decision in Twalib Hatayan & another v Said Saggar (supra) have, in the following cases, in a long list of others, firmly and consistently established the above principles of a resulting trust; Peter Ndungu Njenga v Sophia Watiri Ndungu; CA No 2 of 2000; [2000] eKLR and Juletabi African Adventure Limited & another v Christopher Michael Lockley; CA No 75 of 2016; [2017] eKLR and N W K v J K M & Another; ELC No 422 of 2011; [2013] eKLR; and
14.
Distinguishing the instant case from this court’s decision in Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No 3 (E008) of 2022; [2022] eKLR, the issue raised by applicants in the latter was whether it was open to the court to imply and import the doctrine of trust into land sale transactions and into shareholding of a company as to disentitle the registered holder of land or shares, respectively, obtained for valuable consideration without offending the constitutional right to property under article 40 of the Constitution and other statutory provisions. On the other hand, in the former, the 1st applicant is challenging the right to property with respect to a resulting trust having failed to present proof that he had purchased any of the plots with funds other than those from the 2nd respondent and his donor friends. Secondly, the remedy available as a result of an implied trust was never an issue before the superior courts below. A declaration of the existence of a resulting trust is itself a remedy in an action like this one; and
15.
Therefore persuaded that no instance of state of uncertainty in the law arising from contradictory precedents on the issues raised have been pointed out to us; that the questions presented in the present application do not transcend the circumstances of this particular case; and that the issues in dispute arise from a private claim between the parties that resulted in a trust. Likewise, in the specific circumstances of this case, we do not see any significant question of law that requires further input from this court. All the applicants are asking us to do, is to grant them another opportunity to have a "third" bite at the cherry by revisiting factual issues that have concurrently been resolved by the two courts below; and
16.
And bearing in mind that the two courts below us reached the conclusion that, in view of the relationship between the parties herein, an implied trust resulted; that decision being founded on pure evidence which pointed to the fact that the 1st appellant was attempting to reap where he did not sow by insisting “to derive personal benefits from projects that were intended to benefit the less fortunate in the society”. Being conclusions based on facts, we are precluded from attempting to reevaluate them; and
17.
In the circumstances, we see no justification to disagree with the determination of the Court of Appeal that the application has not passed the threshold for the grant of leave to appeal to this court pursuant to article 163(4)(b); and
18.
Therefore, we dismiss this application and make the following orders:
a.
The application dated February 28, 2023 and filed on March 31, 2023 is hereby dismissed.
b.
The decision of the Court of Appeal delivered on February 3, 2023, declining leave to appeal to this court is hereby affirmed.
c.
The costs of this application shall be borne by the applicants.
19
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/49/eng@2023-06-23 |
Petition 15 (E022) of 2021 | Muthuuri & 4 others v Attorney General & 2 others (Petition 15 (E022) of 2021) [2023] KESC 52 (KLR) (23 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 23 June 2023 | 2,023 | Nairobi | Civil | Muthuuri & 4 others v Attorney General & 2 others | [2023] KESC 52 (KLR) | null | A. Introduction
1.
The genesis of this dispute can be traced back to a circular issued on January 1, 1969 where the then Police Commissioner granted graduate police officers in the rank of constable a salary higher than their counterparts who were not graduates. Over time, this practice developed into a policy within the police force (as it was then known) as evinced by a subsequent letter from the Permanent Secretary in charge of personnel management dated July 26, 1995. In that letter, the Permanent Secretary directed that graduate police constables be “differentiated” and designated as University Graduate Constables and placed in job group J.
2.
It is apparent from the pleadings before us, that the program was intended to encourage graduates with degrees in the relevant fields to apply for recruitment in the lower echelons of the police force which guaranteed them a higher salary than those in the same cadre but without a degree. It appears to us that the programme was designed to entrench professionalism in the police force.
3.
It should be apparent that the two documents, the 1969 circular and the letter of 1995, predate the current Constitution which was promulgated in 2010. Article 244 of which defines the functions and objects of the National Police Service (the force has come to be known). The article enjoins the service “to strive for the highest standards of professionalism and, to train staff to the highest possible standards of competence and integrity” so as to respect human rights and fundamental freedoms and dignity.
4.
The Constitution also establishes the National Police Service Commission (named in the proceedings as the 2nd respondent) and the office of the Inspector- General (the 3rd respondent). The National Police Service Commission (NPSC) under article 246(3)(a) is the body mandated to “recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service”.
5.
Pursuant to, the National Police Service Act was enacted in 2011 to make further provisions in respect of the National Police Service. By section 28 thereof, the 2nd respondent is empowered to make regulations generally for the better carrying into effect of any provisions of the Act, and in particular to provide for: “(a) appointments, confirmation of appointments, promotions and termination of appointments.”
6.
Based on this, the 2nd respondent has made the National Police Service Commission (Recruitment and Appointment) Regulations, 2015. In November 2016, it also promulgated the Career Progression Guidelines for the National Police Service Uniformed Personnel. These two instruments, in addition t and the National Police Service Act, are critical in the determination of this petition, bearing in mind also that the Constitution has also created the Salaries and Remuneration Commission “to set and regularly review the remuneration and benefits” of all State officers: and to advise the national and county governments on the remuneration and benefits of all other public officers. | E. Analysis and Determination
47.
Before we turn to consider each of these issues, we must dispose of the two preliminary points raised by the respondents in their submissions. First, they have argued that the ELRC lacked jurisdiction in the first place to entertain the petition before it because it did not raise any constitutional issues and secondly, that the 5th appellant’s name be struck out from these proceedings for being a busybody. On the latter question, it is apparent from the record that the 5th appellant has all along, from the ELRC through to this court been a party, though it is common factor that he is not a police officer. In terms of rule 36 of the Supreme Court Rules, we conclude that the 5th appellant has the locus standi to be in this appeal.
48.
The short answer to the first question regarding the jurisdiction of the ELRC to entertain the dispute is that, apart from the fact that the respondents have not cross-appealed this issue, we note that this question is being introduced for the first time before us. It was neither raised in the ELRC nor determined by the Court of Appeal. The general rule is that parties are bound by their pleadings. However, a court may make a determination on an unpleaded issue where in the course of the hearing, parties have canvassed the issue and left it to the court to determine. See Odd Jobs v Mubia [1970] EA 476. This was not the case here. We cannot, in those circumstances, consider or determine the question in vacuo without the benefit of the opinions of the learned judges of the two superior courts below.
Both objections must therefore fail.
i. Jurisdiction under article 163(4)(a)
49.
Given this court’s special and circumscribed jurisdiction, before considering the merits of arguments in any appeal before it, as a matter of practice, it first ascertains if it has properly been moved. As Nyarangi, JA said in his long- established and classic statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. If we find, for instance, that we do not have jurisdiction, we must down our tools at that point, save in exceptional circumstances. In this appeal, the respondents have contended that this court lacks jurisdiction to entertain the petition since the appellants’ contracts of employment do not have statutory underpinnings as to render a breach thereof actionable by way of constitutional petition; and that the appellant’s grievance before the ELRC did not raise any constitutional issues.
50.
It is settled that appeals from the Court of Appeal will lie to this court under article 163(4) of the Constitution, either on matters of constitutional interpretation and application, or upon certification, by either the Court of Appeal or this court, on matters of general public importance.
51.
It is apparent to us from the record of appeal, that all through from the chain of courts starting with ELRC, to the Court of Appeal through to this court, the issue has remained the interpretation and application of articles 27, 41 and 47 of the Constitution. Our simple answer to this question, is that the court is clothed with the requisite jurisdiction to determine the instant appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/52/eng@2023-06-23 |
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) [2023] KESC 44 (KLR) (Civ) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 June 2023 | 2,023 | Nairobi | Civil | Barclays Bank of Kenya Limited | [2023] KESC 44 (KLR) | null | Brief facts
The application sought to; strike out the 2nd interested party’s replying affidavit sworn by Shafi Shaikh on October 19, 2022 and filed on October 21, 2022; to expunge from the record the additional new evidence therein; and costs of the application. The applicant contended that; the 2nd interested party’s impugned replying affidavit was incurably defective for reasons that it adduced additional evidence without leave of court; that the impugned affidavit raised new grounds of appeal and pleaded new facts, substantially changing the primary parties’ case; and that such conduct amounted to disregard of the court’s procedural laws and was an outright abuse of the court’s process.
The 2nd interested party moved the court by way of a motion dated July 5, 2022 and filed on July 8, 2022 under the provisions of rules 31(1), (2),(4),(5) and 24 of the Supreme Court Rules, 2020, seeking; leave to be admitted as an interested party; an order directing the Deputy Registrar of the court to supply the applicant with pleadings filed by the parties in the appeal; leave to submit affidavit evidence and written submissions in support of the appeal; any other order the court deemed fit to grant; and costs of the application. The court allowed the application and admitted the 2nd interested party and directed it to file its affidavit in response to the petition within 14 days and any other party to file a rejoinder, if need be, within 14 days of service. | We now opine as follows: -
In agreement with the applicant, we find that the contents of the 2nd interested party’s replying affidavit constitute new and additional evidence.
Pursuant to the provisions of rule 26 of this Court’s Rules and the principles established in the Mohamed Abdi case (supra), such evidence can only be adduced following the grant of leave by this court.
(i)
The application dated July 5, 2022 and filed on July 8, 2022, upon which it is urged such leave was sought and granted, was brought pursuant to rules 31(1),(2),(4),(5) and 24 of the Supreme Court Rules, 2020 which set out the procedure for interlocutory applications and joinder of an interested party. Consequently, by its ruling delivered on October 7, 2022, this court limited itself to the issue of joinder only; and
(ii)
As a result, the new additional evidence adduced in the 2nd interested party’s replying affidavit, excluding the copy of the Judgment of the Court of Appeal at pages 39-47, is irregular and inadmissible. Regarding the issue as to whether the 2nd interested party’s affidavit introduces new grounds of appeal, we hold that this is a substantive question that will be properly determined in the main appeal.
[11]
Consequently, for reasons aforesaid, we make the following orders:
(i)
The notice of motion application dated November 25, 2022 and filed on December 2, 2022, be and is hereby partially allowed;
ii.
The offending annexures of the 2nd interested party’s replying affidavit sworn by Shafi Shaikh on October 19, 2022 and filed on 21st October 2022, collectively marked as “SS-3”, be and are hereby expunged from the record; and
iii.
Costs of the application shall abide the outcome of the appeal.
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/44/eng@2023-06-16 |
Petition 6 (E007) of 2022 | Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Dande & 3 others v Inspector General, National Police Service & 5 others | [2023] KESC 40 (KLR) | null | A. Introduction
1.
The appellants filed three petitions of appeal before this court dated March 24, 2022, March 9, 2022 and April 12, 2022 pursuant to the provisions of 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. The appeals arise out of the Judgments of the Court of Appeal at Nairobi (Makhandia, Ngugi & Nyamweya JJA) in Civil Appeal Nos 246 of 2016, 378 of 2018, and 147 of 2019 delivered on February 18, 2022, February 4, 2022, and March 4, 2022, respectively.
B. Background
2.
The 1st - 3rd appellants were senior employees of British American Asset Managers Limited (BAAM), a subsidiary of British American Asset Managers Company (K) Ltd (Britam), responsible for Unit Trusts, Discretionary Portfolios, Cash Management Solutions, and Alternative Investments. At all material times, the 1st appellant was the Chief Executive Officer, the 2nd appellant was the Senior Portfolio Manager and the 3rd appellant was the Assistant Company Secretary.
3.
Sometime in 2013 and during the course of the appellants’ employment, BAAM entered into a joint-venture project with Acorn Group Limited (Acorn) for the development of real estate and other business ventures, within Nairobi County and elsewhere. Acorn was to be responsible for the real estate development activities while BAAM was to be responsible for real estate finance and exit activities. It was also a term in the agreement that BAAM would acquire a 25% stake in Acorn with two seats on the Board and committee membership for oversight purposes. Thus, Acorn and BAAM became the special purpose vehicles for the sole purpose of executing specific projects.
4.
Following the joint-venture agreement, BAAM successfully carried out several Investments and even launched the BAAM Cash Management System. However, when it attempted to launch the real estate business, the same was allegedly not received well by Dr Wairegi, the then Managing Director of Britam, who thought that the real estate should have been launched by Britam and not BAAM. In several instances therefore, Britam communicated its misgivings about BAAM’s cooperation with Acorn alleging among other things that, Acorn was not an expert in real estate.
5.
Soon thereafter, a dispute arose between Britam and the appellants. The main issue in contention was whether the 1st - 3rd appellants, as managers of BAAM, could commence any real estate project and sign agreements directly with BAAM clients without any benefit to Britam shareholders. As a result of the dispute, the 1st - 3rd appellants resigned from Britam on various dates between August and September 2014. Subsequently, the 1st - 3rd appellants formed a rival company, Cytonn Investments Limited (the 4th respondent).
6.
As a consequence, BAAM instituted various civil suits against the appellants and Acorn on or about October 2014, seeking restitution of funds allegedly fraudulently transferred by the 1st - 3rd appellants to Acorn and its affiliates without BAAM’s approval under the guise of investing in real estate as part of the joint venture aforesaid. BAAM also lodged complaints against the appellants with various professional bodies to which they belonged, namely the Advocates Disciplinary Committee, the Certified Financial Analyst Institute (CFA) and the Institute of Certified Public Accountants (ICPAK). In addition, criminal proceedings against the appellants were instituted upon complaints lodged by BAAM. | D. Analysis and Determination
58.
Having considered the respective parties’ pleadings and submissions in the appeal before us, the following issues emerge for determination;
i.
Whether the appellants have properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution.
ii.
Whether the appeal, or any part of it, is moot, leaving no live controversy requiring adjudication.
iii.
Whether the scope of judicial review has evolved to include merit review of an administrative decision or other action complained of.
iv.
Whether the decision to investigate, arrest and prosecute the appellants constituted an abuse of power by the 1st and 2nd respondents.
v.
Whether the appellants are entitled to the right to access to information under article 35(1)(b) of the Constitution.
vi.
What relief is available to parties? | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/40/eng@2023-06-16 |
Petition 32 (E036) of 2022 | Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others (Applicant) (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 39 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others | [2023] KESC 39 (KLR) | null | A. Introduction
1.
There are three appeals pending hearing before this Court all arising from the judgment of the Court of Appeal at Eldoret, Civil Appeal 45 & 44 of 2017 (Consolidated) (PO Kiage, K M’inoti & M Ngugi, JJA) delivered on November 18, 2022.
2.
The three pending appeals Supreme Court Petition No 32(E036) of 2022 Fanikiwa Limited v Sirikwa Squatters group & 20 others (Fanikiwa); Supreme Court Petition No 35(E038) of 2022 Mary Jepkemboi Too & Sophie Jelimo Too (Suing as administrators’ ad litem in the Estate of Mark Kiptarbei Too v Sirikwa Squatters group & 20 others and Supreme Court Petition No 36 (E039) of 2022 Lonrho Agribusiness (EA) Ltd & David Korir v Sirikwa Squatters group & 20 others were consolidated by consent on January 16, 2017 with the lead file being Fanikiwa .
3.
Additionally, as a result of the Court of Appeal Judgment, twelve applications have been filed before us. These constitute an application by Fanikiwa to adduce additional evidence, an application by Sirikwa to strike out both the 8th respondent’s replying affidavit and John Hulme’s affidavit sworn on January 9, 2013, and ten applications for joinder of parties. The focus of this ruling is the joinder of parties’ applications. Nine parties, representing the 1st -10th applicants respectively seek to be joined in the consolidated appeal as interested parties. The 10th party, (11th applicant) the Law Society of Kenya (LSK) seeks admission as an amicus curiae.
B. Background
4.
The litigation resulting in the impugned judgment was initiated by Sirikwa Squatters Group (Sirikwa). In the petition filed in the High Court, Sirikwa claimed, inter alia, that they were entitled to land parcels known as LR No 9606, 9608, 742/2, 7739/7R, 12398, 10793, and 10794 (suit property), all in Uasin Gishu District. The basis of this claim was that all the members of Sirikwa were descendants of persons who originally occupied the suit property, but who were forcefully evicted from the suit property by white settlers in the 1920’s. Sirikwa was constituted of people who worked as farmhands and labourers for the registered proprietors of the suit property. The registered proprietors of the suit property changed severally, and at the time of filing suit, the land was registered in the name of the 7th respondent Lonrho Agri-Business East Africa Limited (Lonrho).
5.
It was argued in the trial court that following a request made by Sirikwa to the former President of the Republic of Kenya (the late Moi), the President approved that the suit property be allocated to Sirikwa. It was contended that this never materialized because the Commissioner of Lands (2nd respondent), the Chief Registrar of Titles (3rd respondent), the Director of Land Adjudication and Settlement (4th respondent), the Director of Survey (5th respondent) and the District Lands Officer, Uasin Gishu District (6th respondent) failed to implement the Presidential directive or to execute the necessary conveyance, and/or issuance of titles to Sirikwa. Instead, it was claimed, they fraudulently issued titles to other individuals without following due process.
6.
Thus, Sirikwa petitioned the High Court seeking, inter alia, a declaration that their rights and fundamental freedom and protection to right to property had been violated or infringed or was about to be violated in regard to the suit property through the arbitrary issuance of titles to Lonrho amongst others. It also sought orders cancelling all the titles or any title issued and/or emanating from the suit property as well as damages for breach and/or violation of their constitutional rights.
7.
In his judgment delivered on February 9, 2017, the learned judge (A Ombwayo) found that Sirikwa had a legitimate expectation to be registered as the owner of the suit property. He concluded that Sirikwa had established their claim under the principle of legitimate expectation, and directed, inter alia, that all the resultant titles or any title issued by or emanating from the suit property, issued to Lonrho and Mark Too or any beneficiaries be cancelled and the register rectified accordingly.
8.
The trial court judgment prompted three appeals and a cross-appeal. These were Eldoret Civil Appeal No 44 of 2017, lodged by Lonrho Agribusiness and Mr Korir. Herein, the learned Judge was faulted for: finding that Sirikwa had legitimate expectation to the suit properties; holding that conversion of the titles to the suit properties was unlawful; failing to hold that the suit properties were private property; and for failing to hear many affected parties. Eldoret Civil Appeal No 45 of 2017 filed by Fanikiwa faulted the learned Judge for canceling the applicants’ forty-four titles carved out of the suit properties and registered in its name without affording it an opportunity to be heard. Eldoret Civil Appeal No 68 of 2017 filed by Mary Jepkemboi Too and Sophie Jelimo Too, the administrators of the estate of Mr Too, faulted the learned Judge for holding that the suit properties were surrendered for purposes of settling members of Sirikwa and for canceling indefeasible titles The cross-appeal filed by Sirikwa challenged the learned Judge’s finding that Mr Too had legitimately purchased 27 hectares from the suit properties and that no fraud or wrongdoing had been proved against him.
9.
The three appeals were consolidated with Civil Appeal No 45 of 2017 being the lead file. It was then brought to the attention of the Court that many parties were likely to be affected as a result of the judgment of the trial court which canceled resultant titles emanating from the suit property. The Court of Appeal issued an order dated October 1, 2018 and directed Fanikiwa to publish within 14 days a notice in one of the daily newspapers with wide circulation notifying the public of the judgment issued by the trial court, its effect, and the existence of the three appeals.
10.
Following the public notice and applications for joinder, seventy- eight individuals and seven financial institutions were joined as respondents in the appeal. The individual applicants based their applications for joinder on the assertion that they were innocent purchasers for value without notice and that their titles were canceled without being heard. On their part, the financial institutions hinged their applications on the fact that they were not afforded an opportunity to be heard, and that they stood to suffer massive loss because they held valid charges over some of the nullified titles on the strength of which they had advanced substantial loans to the registered owners.
11.
Consequently, by a judgment delivered on November 18, 2022, the Appellate Court, (Kiage, M’inoti, Mumbi Ngugi, JJA) dismissed the consolidated appeals; varied the trial court judgment to the extent that the nullification of the titles of the individual and financial institution respondents who were joined to the appeal was set aside; and allowed Sirikwa’s cross-appeal. This is what triggered the consolidated appeal and the ten applications for joinder of parties before us. | Consequently, we make the following orders:
a.
The notice of motion application dated December 6, 2022 filed by Ezekiel Kibet Mibei and Naftali Kiplimo Mibei is disallowed.
b.
The notice of motion application dated December 30, 2022 filed by Solomon Estimoa Luvai and 624 other applicants is disallowed
c.
The notice of motion application dated January 10, 2023 filed by Simon Macharia Maina & 48 others is disallowed.
d.
The notice of motion application dated January 11, 2023 filed by Mark Somoey & 13 others is disallowed.
e.
The notice of motion application dated January 13, 2023 filed by Kibwari PLC is disallowed
f.
The notice of motion application dated January 13, 2023 filed by John K. Sitenei & 9 others is disallowed.
g.
The notice of motion application dated February 17, 2023 filed by Charles Sang’anyi Nyameino & 26 others is disallowed.
h.
The notice of motion application dated January 12, 2023 filed by James Kipkerebulit Yatich & 438 other applicants is disallowed.
i.
The notice of motion application dated February 8, 2023 filed by the University of East Africa -Baraton is disallowed.
j.
The notice of motion application dated February 7, 2023 filed by the Law Society of Kenya is disallowed.
k.
There shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/39/eng@2023-06-16 |
Petition 32 (E036) of 2022 | Fanikiwa Limited v Sirikwa Squatters Group & 20 others (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 57 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Fanikiwa Limited v Sirikwa Squatters Group & 20 others | [2023] KESC 57 (KLR) | null | A. Introduction
1.
The notice of motion before the court is dated January 9, 2023 and filed by the appellant, Fanikiwa Limited, pursuant to articles 10, 20, 24, 25, 159 and 259 of the Constitution, sections 20 and 21 of the Supreme Court Act and rules 3 and 26 of the Supreme Court Rules and prays for orders that;
i.
That this honourable court do admit additional evidence to be adduced by the appellant as outlined in the affidavits by Sophia Chemengen Too and Jeremy Paul Henry Hulme in such manner as this court may direct and/or direct that the evidence of Sophia Chemengen Too and Jeremy Paul Henry Hulme be taken by the trial court or the Registrar of this court;
ii.
That the costs of this application be in the cause.
2.
The application is supported by the affidavit of Sophia Chemengen Too, co-administrator of the estate of the 8th respondent Mark Kiptarbei Too, a former director of the applicant, and is premised on the following, summarized, grounds:
i.
That the Judgment delivered on February 9, 2017 by the Environment and Land Court, at Eldoret, in Constitutional Petition No 4 of 2016, issued an order to cancel the proprietorship of Lonrho Agribusiness (EA) Ltd, the 7th Respondent, in respect to title numbers 9606, 9607, 9608, 745, 745/2, 7739/7R, 12398, 10793 and 10794 (hereinafter the suit properties) and also ordered that the title deeds for these parcels be issued to the 1st respondent, Sirikwa Squatters Group.
ii.
That the suit properties were awarded to the 1st respondent on the basis that the 7th respondent had surrendered the parcels to the Kenya government for onward settlement of the 1st respondent’s members.
iii.
That the decision by the trial court was founded upon a perceived legitimate expectation purportedly arising from “a letter dated October 11, 2001 by the Director of Land Adjudication and Settlement” and “an approval by the late President Moi on October 28, 1998’’.
iv.
That the trial court further ordered “cancellation of all resultant titles or any title issued and/or emanating” from the suit properties. That this order annulled the titles to the properties lawfully purchased by the applicant by way of a Sale Agreement dated September 30, 2003.
v.
That the applicant was not a party before the trial court but subsequently lodged an appeal before the Court of Appeal challenging the decision of the trial court.
vi.
That the Court of Appeal by a judgment delivered on November 18, 2022 held that: the 1st respondent “was indubitably entitled to the five properties on the basis of express conferment by Lonrho Agribusiness (EA) Ltd;” that the express conferment alluded to is a letter by Jeremy Paul Henry Hulme, the General Manager of the registered owner of the suit properties and; that “Mr. Hulme had power and authority to surrender the land and specify the purpose of the surrender”; that the “the true basis of Sirikwa’s claim is the voluntary surrender of these parcels by the registered owner, not the approval or concurrence by the former President”.
vii.
That Mr. Hulme did not testify in the superior courts and the conclusion reached by the Court of Appeal was not based on any evidence.
viii.
That the additional evidence sought to be introduced relates to; whether Lonrho Agribusiness (EA) could have surrendered land which had already been sold and transferred to purchasers; and whether Mr Too was Chairman of Lonrho Agribusiness (EA) at the time of the Sale Agreement dated September 30, 2003.
ix.
That the additional evidence could not have been tendered earlier for the reasons that the appellant was not a party in the trial court, had no notice that the constitutional right to its properties were at risk of impeachment; that the focal point before the trial court was whether the land was surrendered to the Kenya government for settlement of the 1st respondent’s members not conferment by Mr Hulme and that the evidence of Mr Hulme became a core issue due to the determination by the Court of Appeal.
x.
That the evidence to be tendered is specific, direct, concise, and not argumentative; that the evidence could not be adduced earlier; and the evidence has only been established after the Court of Appeal judgment where the evidence of Mr Hulme became a core issue for determination.
xi.
That the evidence will be beneficial for the court to render a judgment that is fair and just to both the parties herein and the numerous land owners whose ownership is impacted by the judgment.
xii.
That no prejudice will occur to any party.
xiii.
That the court has discretion to admit additional evidence and for this discretion to be exercised in the appellant’s favour for substantive justice to be advanced.
3.
Sophia Chemengen Too’s supporting affidavit sworn on January 11, 2023 states that the additional evidence the applicant seeks admitted relates to four distinct issues namely:
a.
Evidence by Mr Jeremy Hulme to the effect that he did not write or sign the letter dated November 9, 2000.
b.
Evidence by Mr Jeremy Hulme that the surrender of the leasehold titles under Registration of Titles Act (RTA) was in consideration of Lonrho Agribusiness (EA) Ltd obtaining freehold titles under Registered Land Act (RLA).
c.
Evidence by Mr Jeremy Hulme of the impact that the judgment has on numerous purchasers.
d.
Evidence that the late Mark K Too held one (1) share in the applicant company and he ceased to be the Chairman of Lonrho in September 2000.
4.
A perusal of the affidavit sworn by Jeremy Paul Henry Hulme January 9, 2023 annexed to the instant application shows that the applicant seeks to adduce the following additional evidence:
a.
A copy of a letter produced as annexure ‘JPHH 1 in paragraph 19 of the affidavit. The letter is dated November 9, 2000 from the deponent to the Chairman of Sirikwa Squatters Group informing him that the titles to land reference numbers 9608,745/2, 12398, 7739/7 and 9607 was surrendered to the Kenya Government on November 2, 2000 and requesting him to pursue the matter with the relevant ministry for the final resettlement of the squatters. It is deponed that this letter is a forgery. The other additional evidence sought to be adduced is;
b.
A bundle of surrender instruments from Lonrho Agribusiness Group to the Government of Kenya for Land Reference numbers 745, 9607, 9608, 9609,10793, 10794/2, 11481 and 12398 produced as annexure ‘JPHH-2’ in paragraph 32 of the affidavit.
5.
The 2nd to 21st respondents signed a consent in support of the application. The application is opposed by the 1st respondent who filed a replying affidavit sworn by Benjamin Chepng’otie Ronoh on January 18, 2023. The deponent contends that the applicant is engaging in a re-enactment of the case which is being presented as ‘additional evidence;’ that the issue that the titles to parcels of land reference numbers 9606, 9607, 9608, 745, 742/2, 773917R, 10793 and 10794 was not surrendered in the year 2000 is incorrectly guised as additional evidence since the factual position was determined in the plethora of correspondence produced in the records of appeal and determined by the Court of Appeal; that the applicant was aware of the matter before the Environment and Land Court but did not deem it necessary to join or participate in it; that when the applicant joined the matter before the Court of Appeal and was granted leave to file additional evidence, it chose to introduce evidence in a piecemeal manner.
6.
The 1st respondent further contends that the Agreement for Sale dated September 30, 2003 between Lonrho Agribusiness (EA) Limited and Mark K Too provided that Too was the majority shareholder and director of Lonrho Agribusiness (EA) Limited; that the applicant was granted an opportunity to be heard and that the new evidence lacks any credibility, and should not be admitted.
7.
Additionally, the 1st respondent contends that the Court of Appeal already analysed the issues regarding the sale and purchase of the suit properties, the ‘approval’ by the former President, the ‘surrender’ of the parcels of land for the purpose of resettlement and whether Mr. Hulme had the power and authority to effect conferment. It is contended that these issues do not form the core of the appeal and are not matters for the Supreme Court’s determination at this stage. It is also urged that the Court of Appeal arrived at the finding that the 1st respondent was entitled to the legitimate expectation to be allocated the land based on several documents and this finding was not based on the sole document allegedly written by Jeremy Paul Hulme.
A. Background
The proceedings before the Environment and Land Court
8.
The 1st respondent, Sirikiwa Squatters Group, filed a constitutional petition in the High Court against the 2nd to 11th respondents herein. The petition was subsequently transferred to the Environment and Land Court for determination. The 1st respondent prayed inter alia for a declaration that its constitutional right to property and/or interest over the suit properties be protected and also prayed in particular for;
a.
An Order directing the Commissioner of Lands and the 2nd to 5th respondents to perform their constitutional duties and abide with the letter reference No DS/C/1/10/1/Vol.11/01 dated 11th Day of October 2001 by the Director of Land Adjudication & Settlement, Mr A Shariff, on behalf of the Ministry of Land and Settlement and communication by His Excellency the President of the Republic of Kenya (Retired) directing the approval and issuance of Title deeds for parcel Nos 9606, 9607, 9608, 745, 742/2, 7739/7R 12398, 10793 and 10794 all in Uasin Gishu District for resettlement and allocation to Sirikwa Squatters Group.
b.
A declaration for the protection of Sirikwa Squatters Group’s right to property as it was in real danger of being arbitrarily acquired by the 6th, 7th, 8th ,9th and 10th respondents and their beneficiaries to the detriment of the petitioners.
c.
Damages as against the 1st, 2nd, 3rd ,4th , 5th , 6th , 7th , 8th , 9th and 10th respondents for breach and/or violation of the petitioners constitutional right to properties and protection of the same.
d.
A declaration that the acts of the 9th and 10th respondents of carrying out survey works on the suit parcel of land Ref Nos 9606, 9607, 9608, 745, 742/2, 7739/7R 12398, 10793 and 10794 all in Uasin Gishu without the authority of the Director of Surveys either generally or specifically was thus an illegality, and the said works are of no legal effect and the 9th and 10th respondents are liable in damages and/or compensation to the petitioners for their illegal acts on terms and/or quantum to be assessed by the court.
e.
That together with the grant of the orders above, the honourable court hereby forthwith cancels all the titles or any title issued and/or emanating from LR Nos 9606, 9607, 9608, 745, 742/2, 7739/7R 12398, 10793 and 10794 all in Uasin Gishu to the 6th, 7th respondents and all other beneficiaries and their registers be rectified accordingly.
f.
Costs and any other relief.
9.
The issues delineated by the court for determination were:
a.
Whether the petitioners had legitimate expectation to acquire and be allocated the property.
b.
Whether the disputed parcels of land were private or public land upon surrender.
c.
Which remedies should the court grant?
10.
By a judgment delivered on February 9, 2017, the Court, (A Ombwayo, J), relying on the presidential approval to Sirikwa Squatters Group application dated October 22, 1998, the letters from the Commissioner of Lands dated July 17, 2007 and the letters from the Director of Land Adjudication and Settlement dated June 22, 2007, November 9, 2005 and May 20, 2006 held that all these proved availability of the land for resettlement of the group. The court found that the events as captured in the letters proved that the members of the group had the legitimate expectation to be registered as the owners of the suit properties.
11.
In addition, the trial judge found that the lands in dispute were registered under the Registration of Titles Act-RTA (repealed), and therefore the surrender of the lease was governed by the RTA which did not provide for conversion from leasehold to freehold. The trial judge cited section 44 of the RTA on surrender of land to the Government and found that the lands in dispute reverted to the government upon surrender and were to be managed under the regime of the Government Lands Act (GLA) and not to be converted to the regime of RLA as had happened. The court held that the conversion from GLA to RLA was not lawful and therefore all transactions that followed were a nullity.
12.
Ultimately, the court issued an order directing the 1st, 2nd, 3rd, 4th and 5th respondents (the 2nd to 6th respondent herein) to perform their constitutional duties and abide with the letter reference No DS/C/1/VOL 11/01 dated the 11th day of October, 2001 by the Director Land adjudication & Settlement Mr. A. Shariff on behalf of the Ministry of Land and Settlement, His Excellency the President of the Republic of Kenya (Retired) direct approval of the [ transfer?-see note above ]October 28, 1998 and issue Title Deeds for parcel Nos 9606, 9607 9608, 745, 742/2, 7739/7R, 12398, 10793 and 10794 all in Uasin Gishu District into the names of the 1st respondent for them to resettle and allocate their members.
13.
The trial court further found that the actions of the 6th, 7th & 8th respondents (7th -9th respondents herein) were illegal and an attempt to deprive the 1st respondent of their allocated parcels of land. It also held that the work of the surveyors was illegal and of no legal effect. It proceeded to cancel all the resultant titles or any title issued and/or emanating from LR No 9606, 9607 9608, 745, 742/2, 7739/7R, 12398, 10793 and 10794 all issued to the 7th and 8th respondents herein and all other beneficiaries and ordered for the Registers to be rectified accordingly.
14.
The trial court also found that the registration of the 7th respondent, Mr Too, as the owner of approximately 27 ha of the suit land having paid approximately ksh 30,000,000, did not offend the 1st respondent’s legitimate expectation as the 7th respondent had not been found to be involved in any fraud or wrongdoing. Therefore the court ordered that he be allocated not less than 27 hectares of the suit land and that in the meantime status quo to be maintained in respect of the approximately 27ha occupied and utilized by him. | C. Analysis
31.
This motion raises the question of whether the applicant has met the threshold for the grant of leave to present additional evidence pursuant to rule 26 of the Supreme Court Rules,2020. In particular, rule 26 (1) and 2 provide:
“
(1)
The court may call or admit additional evidence in any proceedings.
(2)
A party seeking to adduce additional evidence shall make a formal application to the court.”
32.
This court has previously pronounced that it ‘must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence’. (Raila Amollo Odinga & another v IEBC & others [2013] eKLR.)
33.
Further, the principles governing admission of additional evidence in appellate courts in Kenya were enunciated by this court in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [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.”
34.
Additionally, the court re-affirmed that it “will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.”
35.
Noting the applicable principles enumerated we now turn to consider the prayer sought by the applicant to adduce additional evidence. It bears restating the additional evidence sought to be adduced in this matter. The applicant through Sophia Chemengen Too’s affidavit seeks to adduce additional evidence that relates to four distinct issues namely; evidence by Mr Jeremy Hulme to the effect that he did not write or sign the alleged letter dated November 9, 2000; evidence by Mr Jeremy Hulme that the surrender of the leasehold titles under Registration of Titles Act was in consideration of Lonrho Agribusiness (EA) Ltd obtaining freehold titles under Registered Land Act; evidence by Mr Jeremy Hulme of the impact that the judgment has on numerous purchasers and evidence that the late Mark K. Too held one (1) share in the applicant company and he ceased to be the Chairman of Lonrho in September 2000. We pause here to point out that even though it has been deposed that ‘the evidence to be tendered is neither bulky nor argumentative and that it is specific, direct and extremely concise’, this evidence has not been produced to us thus we are left merely speculating as to its contents.
36.
The additional evidence outlined in Jeremy Paul Henry Hulme’s affidavit is a letter, marked ‘JPHH 1’ dated November 9, 2000, from Mr Hulme to the Chairman of Sirikwa Squatters Group requesting him to pursue the surrender by Lornho Agribusiness Limited of the titles to LR Nos 9608, 745/2, 12398, 7739/7 and 9607 with the relevant government ministry for the final resettlement of the squatters, relied on by the appellate court. This letter forms part of the court record. It is nonetheless deponed that this letter is a forgery.
37.
It is evident that both superior courts relied on this letter to make a finding that the 1st respondent was entitled to the five properties on the basis of express conferment by Lonrho Agribusiness. Indeed, the appellate court delivered itself on the following terms:
“….one would have expected the General Manager of the registered owner, writing barely a week after the surrender, to indicate as much. But what does Mr Hulme really say? He emphatically states that the five properties had already been surrendered to the Government and requests Sirikwa to liaise with the relevant Government Ministry 'for final resettlement' of its members 'on the land already surrendered to the Government.' The clear intent manifest in the letter is that the surrender was for purposes of settling the squatters. If indeed the suit properties were surrendered merely for conversion of tenure and transfer to beneficiaries who excluded Sirikwa, it would be expected that the General Manager of the company surrendering the properties would say so upfront. Instead, he states the contrary.It should also be borne in mind that in an affidavit sworn on April 26, 2007 by David Kiptanui Yego, the Vice Chairman of Sirikwa, he deposed that there was a tripartite agreement between Lonrho Agribusiness, Sirikwa and the Government regarding surrender of parcels of land by Lonrho Agribusiness for settlement of Sirikwa squatters. Taking the above into consideration, we are satisfied that the trial court did not err in holding that Sirikwa had legitimate expectation that it would be allocated the suit properties. Those properties were surrendered to the Government for the express purpose of settling members of Sirikwa. The surrender was not contrary to the law because it was by the registered owner, who had power and authority to surrender the land and to specify the purpose of the surrender, which was to settle members of Sirikwa.”
38.
This letter has been a running theme in both superior courts. We note that this is the first time a claim of forgery is being made with regards to it. Even though the applicant was not a party in the trial court, Lonrho Agribusiness EA, the 7th respondent and the former employer of Mr Hulme, has been a party in this matter since the trial court and has never raised the issue of the letter being a forgery. We cannot fathom why the applicant would wait until the 11th hour to make this claim. As such, we are not convinced that this evidence could not be adduced earlier.
39.
The applicant also seeks to adduce evidence that the surrender of the leasehold titles was made for the issuance of freehold titles under the RLA as produced in his evidence marked ‘JPHH2’. This evidence relates to LR Nos 745, 9607, 9608, 9609, 10793, 10794/2, 11481 and 12398. The issue of surrender of the properties is also a common thread in this matter and the 7th respondent, Lonrho Agribusiness Limited, has been a party from the onset of this matter at the trial court. Accordingly, we are unconvinced that the additional evidence sought to be adduced by the applicant is not being utilized for the purpose of removing lacunae and filling gaps in evidence. As such, it is our considered view that the application is an attempt by the applicant to make a fresh case in this petition. In a nutshell, the application has not met the conditions precedent enunciated in the Mohamed Abdi Mahamud case (supra). Consequently, we find that applicant has not met the threshold for the grant of an order for admission of additional evidence.
Orders
40.
Having considered the application dated January 9, 2023 and submissions and the response and submissions by the 1st respondent we find as follows:
a.
The application dated January 9, 2023 is dismissed.
b.
There shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/57/eng@2023-06-16 |
Petition 32 (E036) of 2022 | Fanikiwa Limited v Sirikwa Squatters Group & 20 others (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 58 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Fanikiwa Limited v Sirikwa Squatters Group & 20 others | [2023] KESC 58 (KLR) | null | The 1st respondent filed an application that sought for the Supreme Court to strike out the 8th respondent’s affidavit for being filed out of time, to strike out the petitioner’s applications; one that sought to adduce additional, and a joinder application that sought to introduce new parties to the proceedings before the Supreme Court. | Consequently, we make the following orders:
i.
The notice of motion application dated January 30, 2023 is hereby dismissed.
ii.
There shall be no order as to costs.
19.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/58/eng@2023-06-16 |
Petition 13 of 2019 | Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 June 2023 | 2,023 | Nairobi | Civil | Githiga & 5 others v Kiru Tea Factory Company Ltd | [2023] KESC 41 (KLR) | null | A. Introduction
1.
The petition of appeal dated April 3, 2019 and lodged on April 26, 2019 is brought pursuant to article 163(4)(a) of the Constitution. It arises from the ruling of the Court of Appeal at Nyeri (Ouko (P) (as he then was), Sichale & Otieno-Odek, JJA) in Civil Application No 137 of 2017 delivered on March 28, 2019. The Court of Appeal dismissed the applicants’ application seeking to review a contempt ruling delivered on February 22, 2019.
B. Background
2.
On or about July 9, 2009, Kiru Tea Factory Company Ltd (KTFC) and Kenya Tea Development Agency Holdings Limited (KTDA-HL) entered into a management agreement with KTDA-HL being an agent of KTFC. In turn, KTDA- HL assigned its obligations under the agreement to Kenya Tea Development Agency Management Services Limited (KTDA-MS) creating a further agency relationship. KTDA-HL through its agent, KTDA-MS provided KTFC with company secretarial services as and when required through their Company Secretary, John Kennedy Omanga. This arrangement continued until September 11, 2017 when the Board of Directors of KTFC replaced John Kennedy Omanga with Benard Kiragu Kamau as its Company Secretary responsible for the conduct of elections in its Electoral Areas and Buying Centre Committees.
3.
However, on October 5, 2017, John Kennedy Omanga on behalf of KTDA-HL and KTDA-MS purportedly published an announcement in the daily newspapers convening an Annual General Meeting (AGM) of KTFC scheduled for November 20, 2017. Further, on October 9, 2017, John Kennedy Omanga allegedly issued a notice of a meeting in the Company’s Buying Centre Committee in two Electoral Areas known as Mioro and Kiambuthia. As a consequence, a dispute arose between various members of the Board of Directors of KTFC and its Company Secretary. The dispute involved two factions, having a war of attrition with each faction competing for control of the affairs of the KTFC. One faction was led by Mr Geoffrey Chege Kirundi (Kirundi) while the opposing faction was led by Mr Stephen Maina Githiga (Githiga). The subject matter of the dispute was the holding of a general meeting and the nomination of persons as members of the Board of Directors of KTFC or Tea Buying Centre Committees. | D. Analysis and Determination
38.
This court in a ruling in SC Application No 12 of 2019 delivered on September 4, 2020 framed the following issues for determination;
i.
Whether a court presiding over contempt proceedings has a right to ignore deliberately the responses/defences placed before it by the cited contemnors.
ii.
Whether a court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.
iii.
Whether a court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo motu to determine the original pleading without invitation and participation of either party in the proceedings.
iv.
Whether a court hearing a contempt of court application can convict the alleged contemnors without affording them a hearing.
v.
Whether a court hearing a contempt of court application can overlook a miscarriage of justice to convict for contempt.
39.
Before interrogating the issues as framed, we would like to address two preliminary issues. The first issue is on the jurisdiction of this court to entertain the appeal. we note that even though the issue of jurisdiction was determined by this court vide a ruling dated September 4, 2019, it is important to elaborate on the same as it was argued by the parties during the hearing. Second, we shall also address ourselves to the issue of striking out of the 3rd, 4th, 5th, and 6th respondents from the proceedings. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/41/eng@2023-06-16 |
Petition 17 (E021) of 2022 | Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 3 others (Petition 17 (E021) & 24 (E027) of 2022 (Consolidated)) [2023] KESC 59 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Zehrabanu Janmohamed SC (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi)
1st Appellant
Rai Plywood (K) Ltd
2nd Appellant
and
Nathaniel K Lagat
1st Respondent
Susan Cherubet Chelugui & David K Chelugui (Suing as the Administrators of the Estate of the Late Noah Kipngeny Chelugui)
2nd Respondent
District Land Registrar Uasin Gishu
3rd Respondent
Registrar Of Titles
4th Respondent | [2023] KESC 59 (KLR) | null | The plaintiff had filed an application for waiver of fees that had been dismissed by the Registrar of the Supreme Court. Aggrieved the plaintiff filed for review before a single judge of the Supreme Court that was aggrieved. Further aggrieved, the plaintiff filed the instant application. | In conclusion, none of the conditions for the grant of leave to adduce additional evidence have been satisfied;
9.
Having carefully considered the application, responses and submissions by the parties herein, we find no merit in the application and make the following orders:
i.
The motion dated January 13, 2023 and filed on January 18, 2023, 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/2023/59/eng@2023-06-16 |
Application E002 of 2023 | Kagina v Kagina & 2 others (Application E002 of 2023) [2023] KESC 54 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Kagina v Kagina & 2 others | [2023] KESC 54 (KLR) | null | The application sought for among others a review of the Court of Appeal’s decision declining to grant certificate of leave to appeal against the decision of the Court of Appeal. The applicant contended that: the intended appeal raised matters of general public importance as it presented controversy on the law of succession and required precedence on the threshold of what constituted intermeddling and the application of section 45(1) and (2)(a) and (b) and section 55 of the Law of Succession Act Cap 160 Laws of Kenya. The applicant further contended that the matter transcended the circumstances of the case and had an important bearing on the public interest. The applicant’s grievance was that the respondents, who were his co-administrators in the estate of the deceased, had intermeddled with the estate and had either subdivided and sold, alienated or earmarked fraudulently to sell certain properties of the estate. | Consequently, for reasons aforesaid, we find no issue deserving further input of this court and make the following orders:
i.
The originating motion filed on February 17, 2023 be and is hereby dismissed.
ii.
No orders as to costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/54/eng@2023-06-16 |
Petition 17 of 2020 | Katiba Institute v Attorney General & 9 others (Petition 17 of 2020) [2023] KESC 47 (KLR) (16 June 2023) (Judgment) (with dissent - N Ndungu, SCJ) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Katiba Institute v Attorney General & 9 others | [2023] KESC 47 (KLR) | null | A. Introduction
1.
This appeal concerns the nomination and subsequent appointment of three members of the Judicial Service Commission (the JSC/Commission) under article 171(2)(g) and (h) of the Constitution; the questions being whether the nomination and appointment of Patrick Gichohi (the 5th respondent), Olive Mugenda (the 6th respondent) and Felix Koskei (the 7th respondent) as members of the JSC was valid. Secondly, whether section 15 of the Judicial Service Act, 2011 (JS Act) is inconsistent with the provisions of the Constitution for not providing for the qualifications of persons to be appointed under article 171(2)(h), for failure to provide for a competitive process of appointment and for purporting to give the President a role in the appointment of members of the JSC under article 171(2)(b), (c), (d), (f) and (g) of the Constitution.
2.
In considering these questions, it will be relevant to look at the origin and history of the Commission. History is always important in determining questions like these because generally, legal decisions are deeply connected to the past – often to the recent past. Chapter Ten – section 184 of the Constitution of Kenya, which was Schedule Two to the Kenya Independence Order in Council, 1963, established the Commission for the first time under the Westminster Model Constitution with a slim membership of only five, comprising the Chief Justice as Chairman, two persons appointed by the Governor- General acting in accordance with the advice of the Chief Justice, from among the Justices of the Court of Appeal or the puisne Judges of the Supreme Court (equivalent of the High Court); and two persons appointed by the Governor General on the advice of the Chairman of the Public Service Commission.
3.
Under the former Constitution, JSC again comprised five members, the Chief Justice as Chairman, the Attorney General, a representative from the High Court, a representative from the Court of Appeal and the Chairman of the Public Service Commission. The members of JSC were direct appointees of the President. See section 68(1).
4.
As the Judiciary grew in its complement and expanded in its geographical spread, so did the need to expand the composition and functions of the Commission as reflected in various reports such as Report of the Committee to Inquire into Terms and Conditions of Service of the Judiciary, 1991-1992, the Report of the Committee on the Administration of Justice, 1998, and the Final Report of the Task Force on Judicial Reforms, 2009 - 2010. Although the latter Report advised against including a nominee of the PSC as a member of JSC and explained that following the de-linking of the Judiciary from mainstream civil service in 1993, the role of the PSC in the JSC would be superfluous, the final (present) Constitution retained its membership. In accordance with the aforementioned reports, the JSC’s composition was expanded, and its functions enhanced.
B.Background
5.
On February 9, 2018 the President nominated the 5th respondent as a representative of the PSC under article 171(2)(g) and the 6th and 7th respondents as representatives of the public to the JSC under article 171(2)(h). Thereafter, on February 13, 2018 the President forwarded the names of the three respondent nominees to the National Assembly for vetting and approval.
6.
Pursuant to section 6 of the Public Appointments (Parliamentary Approval) Act, the National Assembly, after giving public notice of the vetting exercise, conducted an approval hearing on February 21, 2018. In the process, it received three written objections on the suitability of the 6th respondent. Two of the objections, however, failed the criteria of admission and were struck out, leaving only one by Dr George Lukoye (the 8th respondent). The 8th respondent was the Secretary of the Kenyatta University Chapter of the Universities Academic Staff Union. He brought the complaint and swore an affidavit on behalf of the Union.
7.
According to the affidavit, the 6th respondent was alleged to have occupied the office of the Vice Chancellor of Kenyatta University for 10 years without being lawfully appointed, a matter that was litigated in ELRC Petition No 128 of 2016, Okiya Omtatah Okoiti v Kenyatta University Council & 6 others. It was further claimed that she had influenced Kenyatta University Council and/or Council Committee to recommend a fraudulent exorbitant exit package payment in her favour. That exit package was the subject of another court case in ELRC Civil Case No 2010 of 2016, Olive Mugenda v Kenyatta University & another. She was also accused of financial misappropriation, corruption, abuse of office, irregular payment of allowances and irregular recruitment of staff.
8.
The 6th respondent denied the allegations and maintained that the issues raised were sub-judice ELRC Petition No 128 of 2016 and ELRC Civil Case No 2010 of 2016 which were, at the time the complaints were lodged, pending conclusion before the Employment and Labour Relations Court. She, nonetheless, denied allegations of financial mismanagement and explained that the Ethics and Anti-Corruption Commission (EACC) which had conducted investigations in respect of these allegations found no evidence and closed the file.
9.
Ultimately, after considering the complaints and substance of the complaints, the National Assembly rejected the complaints and approved the appointments of the three respondents, who were subsequently formally appointed as members of the Commission | F. Analysis and Determination
Jurisdiction of this court
55.
It is our responsibility, as a matter of practice, to independently satisfy ourselves that this appeal is properly before the court, even if the issue of jurisdiction has not been raised. In this appeal, however, the 6th respondent’s objection to jurisdiction was limited to the argument by the appellant that the Court of Appeal drew inferences not supported by the evidence. According to the 6th respondent, this issue does not involve the interpretation or application of the Constitution.
56.
The appeal is brought as of right pursuant to article 163(4)(a) of the Constitution. From the petition in the High Court, the arguments before both superior courts below as well as the judgments of the two courts, we have no doubt whatsoever that the subject matter involves the interpretation and application of articles 171 and 250 of the Constitution. The appeal, for these reasons, meets the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Pet No 3 of 2012; [2012] eKLR.
Turning to the first question,H. Disposition
136.
Consequent, upon our conclusion above, the petition of appeal dated September 7, 2020 is disposed of by making the following orders in answer to the three issues framed for determination:
i.
There is no requirement for fair competition in appointments to the JSC under article 171(2)(g) and (h).
ii.
Section 15(2) of the Judicial Service Act is, to the extent, that it confers on the President the authority to appoint members elected and nominated to the JSC under article 171(2), (b), (c), (d), (f) and (g), unconstitutional.
iii.
The approval by the National Assembly of the 5th respondent was irregular and unnecessary.
iv.
To the extent that section 15(2) confers on the President power to appoint the 5th respondent, it is inconsistent with article 171 and therefore invalid. But it is in harmony with article 171 in so far as it does not prescribe merit, diversity and fair competition as prerequisites for appointment of a representative of the PSC and the two members to represent the public in the JSC under articles 171(2)(g) and (h), respectively.
v.
Parties to bear their own costs.
vi.
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.
137
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/47/eng@2023-06-16 |
Petition (Application) E011 of 2023 | Kenya Airports Authority v Otieno, Ragot & Company Advocates (Petition (Application) E011 of 2023) [2023] KESC 56 (KLR) (Civ) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 16 June 2023 | 2,023 | Nairobi | Civil | Kenya Airports Authority v Otieno, Ragot & Company Advocates | [2023] KESC 56 (KLR) | null | The applicant filed the instant application seeking a stay of execution of the decree/order resulting from the judgment delivered by the Court of Appeal on May 19, 2023 in Civil Appeal No 39 of 2017 and as a consequence to stay the hearing of the enforcement proceedings pending before the High Court and any other consequential orders arising therefrom pending the hearing and determination of the petition of appeal.
The applicant contended that it had retained the services of the respondent to represent it in a suit filed by various plaintiffs in which the plaintiffs claimed that the court proceeded to strike out the suit with costs; and that the respondent demanded to be paid advocate-client costs based on the certificate of costs derived from party-to-party costs for the sum of Kshs 151, 650, 000. Since the applicant and respondent could not agree on fees, the respondent filed their bill of costs which was taxed at Kshs 8,759,022.74. That finding was upheld upon a reference before the High Court. On appeal, the impugned decision court increased the fees by one half in the sum of Kshs 196,044,750.50. | Accordingly, we make the following orders:
a.
The notice of motion dated April 19, 2023 and filed on April 25, 2023 by the applicant be and is hereby allowed.
b.
That pending the hearing and determination of the petition of appeal against the judgment delivered on May 19, 2021, this honourable court be pleased to order a stay of execution of the decree/order resulting from the judgment delivered by the Court of Appeal on May 19, 2023 in Civil Appeal No 39 of 2017 and as a consequence to stay the hearing of the enforcement proceedings pending before the High Court in Kisumu HCCC Misc Civil Cause 95 of 2011 and any other consequential orders arising therefrom.
c.
The costs of this application to abide the outcome of the appeal.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/56/eng@2023-06-16 |
Petition 13 of 2020 | Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (16 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Kenya Railways Corporation & 2 others v Okoiti & 3 others | [2023] KESC 38 (KLR) | null | Introduction
1.
Before this court are two appeals, as consolidated by the consent order dated December 7, 2020.The first appeal is by Kenya Railways Corporation, the 1st appellant herein (KRC) and the second one is by the Attorney General and the Public Procurement Oversight Authority (the 2nd and 3rd appellants respectively). Both appeals are anchored on article 163(3)(b)(1) and 163(4)(a) of the Constitution as well as section 15(2) of the Supreme Court Act, 2011.
2.
The appeals challenge a portion of the judgment of the Court of Appeal delivered on June 19, 2020 in Civil Appeal No 13 of 2015 as consolidated with Civil Appeal No 10 of 2015. In particular, the appellants are aggrieved by the finding by the appellate court that the 1st appellant failed to comply with and violated article 227(1) of the Constitution and sections 6(1) and 29 of the repealed Public Procurement Disposal Act, 2005 (PPDA, 2005) in the procurement of the Standard Gauge Railway (SGR) project.
3.
The 1st and 2nd respondents Okiya Omtatah Okoiti and Wyclife Gisebe Nyakina, cross appealed challenging portions of the impugned judgment principally relating to documentary evidence that was expunged by the High Court as affirmed by the Court of Appeal.
B. Background
4.
On October 28, 2008the then President of Kenya, HE Mwai Kibaki, and the President of Uganda, HE Yoweri Museveni, issued a joint communiqué committing that both countries would replace the Mombasa-Kampala metre gauge railway line constructed during the colonial period and dubbed, “the lunatic express.” The lunatic express was facing a number of technical and capacity challenges and limitations. The communiqué intentioned the change of the outdated metre gauge system with a high-capacity railway system, that is, Standard Gauge Railway (SGR) line linking the Port of Mombasa to Kampala, with a branch line to Kisumu and Pakwach in Uganda.
5.
This commitment was based on the understanding that each country would develop the portion of the SGR line falling within its border under unified technical standards and identify financing for the construction of its portion. About a year later, the two countries reduced their commitment into a bilateral agreement signed on October 1, 2009. Kenya’s portion of the SGR line was to be constructed in two phases - phase 1 covering Mombasa to Nairobi while phase 2 would extend to Malaba from Nairobi with a branch line to Kisumu.
6.
On August 12, 2009 the Ministry of Transport executed a Memorandum of Understanding (MOU) with China Road and Bridge Corporation (CRBC), a state- owned corporation of the People’s Republic of China. Under the MOU, CRBC was to undertake, at its own cost, a feasibility study of the construction of phase 1 covering 500 kilometres and come up with a preliminary design for the project. This included consideration of the technical details, the financing required and the legal implementation of the project. In the event the results of the study were approved, CRBC would be the sole agent to design, construct and supervise all works of the project. Further, upon agreement of the design, parties were to negotiate a commercial contract with CRBC required to source funding for the project.
7.
CRBC submitted the feasibility study report in February 2011, which KRC, the statutory body mandated with the responsibility of the railway network in the country, being tasked with the responsibility to review. The feasibility and preliminary design report was approved by KRC with revisions on June 26, 2012. The approved scope of works included construction of a single-track railway, stations, workshops and freight exchange depots as well as supply and installation of facilities (signalling, communication for trains control, electricity and water supply to each station), locomotives and passenger coaches.
8.
According to KRC, following numerous deliberations between the Government of Kenya through the National Treasury and the Government of China, it was agreed that the Government of China would finance the project through Exim Bank of China, a state-owned financing institution. Thus, Exim Bank would finance 85 % of the costs for the project while Kenya would meet the remaining 15% as a counterpart funding. Additionally, part of the financing by Exim Bank would be issued as a concessional loan while the other part would be a commercial loan.
9.
KRC and CBRC executed commercial contracts. The first one was executed on August 11, 2012 for the construction of the SGR line (civil works). A subsequent commercial contract was executed on October 4, 2012for the supply and installation of facilities, locomotives and rolling stock. The totality of the two contracts was that CRBC was engaged as an engineering, construction and design contractor for the project.
10.
In a bid to meet its portion of the funding of the project, the government introduced a railway development levy at the rate of 1.5% of the customs value of imported goods to be charged on all imports. This levy was introduced by the Finance Bill of June 18, 2013, which is currently provided for under section 117A of the Customs and Excise Act. | In the end, we find merit in the appeal to the extent set out here below and issue the following orders:
i.
The Court of Appeal judgment dated June 19, 2020 is hereby set aside.
ii.
The cross appeal dated September 23, 2022 be and is hereby dismissed.
iii.
We affirm the superior courts’ decision on the expunging of documents.
iv.
The procurement process for the Standard Gauge Railway project was undertaken in conformity with the provisions of article 227 of the Constitution .
v.
The Standard Gauge Railway procurement was undertaken as a government to government contract hence exempt from the provisions of the Public Procurement Disposal Act, 2005 by virtue of section 6(1) of the said Act.
vi.
Each party bears their own costs. It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/38/eng@2023-06-16 |
Petition (Application) E004 of 2023 | Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others (Petition (Application) E004 of 2023 & Petition E002 of 2023 (Consolidated)) [2023] KESC 42 (KLR) (Election Petitions) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 16 June 2023 | 2,023 | Nairobi | Civil | Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others | [2023] KESC 42 (KLR) | null | Two appeals were lodged before the instant court against the Court of Appeal’s judgment at the instance of the County Pensioners Association (the 3rd applicant) and by the Kenya Tea Growers Association and Agricultural Employers Association (the 1st and 2nd applicants respectively). The 3rd applicant filed a notice of motion seeking orders inter alia that- a conservatory order be issued restraining the National Social Security Fund Board of Trustees (1st respondent), the Attorney General (5th respondent) and the Federation of Kenya Employers (13th respondent) and their respective agents, proxies or employees from implementing sections 18, 19, 20 and 71 of the National Social Security Fund (NSSF) Act, 2013 (the Act) pending the hearing and determination of its appeal.
The gist of the 3rd applicant’s motion was that; the Employment and Labour Relations Court (ELRC) held that the Act was unconstitutional and that subsequently, the Court of Appeal set aside the ELRC’s decision on the ground that the ELRC lacked jurisdiction to entertain the dispute. The 3rd applicant stated that its appeal raised arguable issues which included that; the Court of Appeal misconstrued articles 162(2)(a) and 165(3)(b)(d) and (5) of the Constitution of Kenya, 2010 (the Constitution) as far as the scope of the jurisdiction of the ELRC vis a vis the High Court was concerned. The 3rd applicant further argued that its appeal would be rendered nugatory unless the order sought was granted.
The 1st respondent opposed the 3rd applicant’s motion on the grounds that; the 3rd applicant lacked locus standi to lodge its appeal and motion; in that, having been joined as an interested party at the ELRC, it could not purport to take over the role of the primary parties by filing its appeal and the motion; furthermore, the 3rd applicant’s membership consisted of former employees of local authorities who were contributors to the Local Authorities Pension Trust (Laptrust) and that the Laptrust scheme was closed in 2012. The 1st respondent thus stated that the Act did not apply to the 3rd applicant nor to its contributors; and as such, the 3rd applicant had no conceivable interest or grievance it could pursue.
The 1st and 2nd applicants motion apart from seeking a similar order restraining the implementation of sections 18,19, 20 and 71 of the Act, as the 3rd applicant, the 1st and 2nd applicants sought stay of execution and/or implementation of the judgment by the Court of Appeal pending the hearing and determination of their appeal. They argued that their appeal was arguable as the Court of Appeal erred in assuming jurisdiction and determining the merits of the proceedings before the ELRC, which it had declared as null and void. They further argued that their appeal would be rendered nugatory because the implementation of the Act would impose a heavy and unbearable financial burden on its members and if their appeal succeeded, they would not be able to recover the contributions made. | Consequently and for the reasons afore-stated, we make the following orders:
i.
The 1st and 2nd applicants’ notice of motion dated March 2, 2023 and filed on March 3, 2023 is hereby dismissed.
ii.
The 3rd applicant notice of motion dated February 16, 2023 and filed on February 17, 2023 is hereby dismissed.
iii.
Costs of the motions shall abide the outcome of the consolidated appeal.
iv.
The consolidated appeal be set down for hearing on a priority basis.
It is so ordered | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/42/eng@2023-06-16 |
Application E010 of 2023 | Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased) v Mukolwe & another (Sued as administrators of the Estate of David Nyambu Jonathan Kituri (Deceased) & another (Application E010 of 2023) [2023] KESC 53 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 16 June 2023 | 2,023 | Nairobi | Civil | Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased) v Mukolwe & another (Sued as administrators of the Estate of David Nyambu Jonathan Kituri (Deceased) & another | [2023] KESC 53 (KLR) | null | The instant application sought the review of the ruling and orders of the Court of Appeal dismissing the application for grant of certification. Among the orders sought by the applicants were; a certificate that the applicants' intended appeal raised a matter of general public importance and that substantial miscarriage of justice may occur if an appeal was not lodged against the judgment delivered by the Court of Appeal.
The applicants had instituted their claim through an originating summons where they sought orders under the doctrine of adverse possession in relation to the suit property. The High Court dismissed the applicants’ action on the ground that it had failed to prove the claim of adverse possession. Subsequently, the applicants filed an appeal to the Court of Appeal which upheld the decision of the High Court and dismissed the appeal. The applicants aggrieved by the judgment of the Court of Appeal sought certification to appeal to the instant court. The Court of Appeal dismissed the application for certification.
The applicants contended that the Court of Appeal failed to appreciate the gravamen of the application; and that the main issue that was yet to receive a firm and jurisprudence-setting address by the instant court was the interplay between the doctrine of adverse possession and entry into a property pursuant to a sale agreement that was not completed by no fault of the purchaser. The applicants urged that it was of importance to a sufficiently large section of the public; the point of law transcended the facts of the individual case as there were numerous other cases that had different outcomes with respect to the same issue and had a significant bearing on the public interest. | Accordingly, we are persuaded that in the circumstances, that, the instant application lacks merit and hereby make the following orders:
a.
The notice of motion dated March 3, 2023 and filed on March 12, 2023 seeking review of the Court of Appeal’s ruling delivered on February 17, 2023 in Civil Application Sup No 4 of 2018 be and is hereby dismissed.
b.
The applicants shall bear the costs of the application.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/53/eng@2023-06-16 |
Petition 21 (E023) of 2020 | Member of Parliament Balambala Constituency v Abdi & 7 others (Petition 21 (E023) of 2020) [2023] KESC 35 (KLR) (16 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Member of Parliament Balambala Constituency v Abdi & 7 others | [2023] KESC 35 (KLR) | null | A. Introduction
1.
Before the court is a petition dated December 16, 2020 and filed on December 21, 2020. The appeal is filed pursuant to article 163(4)(a) of the Constitution and is anchored on the interpretation and application of articles 10, 189, 201(d) and 232 of the Constitution. It revolves around the purported creation of new administrative units by the 2nd respondent (Cabinet Secretary for Interior and Coordination of National Government) within Garissa County and challenges the decision of the Court of Appeal which upheld the decision of the High Court (Mativo, J), in Constitutional & Human Rights, Petition No 238 of 2015 delivered on October 4, 2017.
B. Factual Background
i) Proceedings at the High Court
2.
On May 15, 2015, the 2nd respondent issued two advertisements in the form of notices, Ref Nos DC/HR/1/30/105 and DC/HR/1/30/106 respectively, advertising for the position of Chief Grade II Job Group ‘H’ and Assistant Chief II, Job Group ‘F’ in Garissa sub-county. In the advertisements, the position for Chief was for the area known as Abdisamit Location in Central division and the Assistant Chiefs position was for two sub-locations. The first Assistant Chief position was for ‘Auliya’ sub-location within Abdisamit Location, Sankuri division while the other position was for Laago sub-location, Modika location in Central division. All the areas advertised fell within Garissa County.
3.
After the advertisement was issued, the 1st respondent, a resident of Garissa County, filed before the High Court, Constitutional Petition No. 238 of 2015, claiming that the advertisements were erroneous contending firstly, that in the advertisement for the Chief Position, it purported to show that Abdisamit Location is in Central Division of Garissa sub-county yet it was in Dertu Division, Dertu Ward in Daadab Constituency. Secondly, for the position of Assistant Chief, the advertisement erroneously indicated that Auliya sub-location was in Abdisamit Location of Sankuri Division yet it was in Laago sub-location in Modika Location.
4.
The 1st respondent contended that by issuing these advertisements, the 2nd respondent had ‘purportedly created’ new administrative units namely, Auliya and Laago sublocations without participation from the citizens either directly or through their elected leaders. He also alleged that the advertisements restricted those interested in applying for the positions to only residents of the mentioned location and sub-location.
5.
The 1st respondent therefore challenged the creation of the administrative units on two grounds. First, he claimed that there was no public participation and secondly, that there had already been a determination on those elective/administrative boundaries by the High Court in Nairobi Judicial Review Application No 120 of 2012 that was heard and consolidated with Republic v Independent Electoral and Boundaries Commission & another ex-parte Councillor Eliot Lidubwi Kihusa & 5 others, Judicial Review Misc Application No 94 of 2012 [2012] eKLR which case involved several consolidated Judicial Review applications among them Nairobi Judicial Review Application No 120 of 2012 where the dispute involved the delimitation of boundaries of Balambala and Dujis Constituencies of Garissa County.
6.
The 1st respondent maintained that this decision had never been reviewed, appealed against or varied yet the 2nd respondent, in total disregard of those orders, moved Abdisamit location from Dertu division to Central division of Garissa sub-county and Auliya sub-location, from Dertu ward of Daadab Constituency to Abdisamit location of Sankuri division to Modika location. He alleged that Auliya and Abdisamit geographically fall within Dertu Location of Daadab Constituency and that the intended creation of these new sub-locations into Balambala Constituency would relocate Daadab residents to seek services at Balambala which would in turn, subject them to unnecessary hardship and would therefore be a violation of their right to fair administrative action under article 47 of the v Constitution as well as article 10 on the national values and principles of governance, article 88 that mandates IEBC, the 8th respondent to delimit constituencies as well as article 159 of the Constitution.
7.
The 2nd and 3rd respondents on their part, denied the alleged violations of the Constitution and the law and the violation of existing court orders. They maintained that it was within their mandate to create administrative units and that the issues before the trial court differed from those in the previous suit. They further maintained that their decision was in conformity with the provisions of the Districts and Provinces Act, 1992 (repealed). They furthermore pleaded that the units were created in response to an urgent need to bring services closer to the people, to aid in the maintenance of security along the Kenya- Somali border and, to aid in the provision of relief food. It was also their case that the judgment in Republic v Independent Electoral and Boundaries Commission and another ex-parte Councillor Eliot Lidubwi Kihusa & 5 others; Nairobi Judicial Review No 94 of 2012 [2012] eKLR which included the Judicial Review application filed by one Peter Odoyo Ogada in respect of Suba South and Suba North Constituencies (hereinafter referred to as “Republic v IEBC & 2 others; Nairobi Judicial Review Miscellaneous Application No 94 of 2012) only dealt with electoral boundaries and not administrative boundaries.
8.
The 8th respondent, also opposing the petition, claimed that its constitutional mandate did not include the creation of administrative units, a function vested in the 2nd respondent, and therefore the petition was misguided and ought to be dismissed.
9.
In its Judgment delivered on October 4, 2017, the High Court Mativo, J (as he then was) found that the decision rendered by the High Court in Republic v IEBC & 2 others; Nairobi Judicial Review Miscellaneous Application No 94 of 2012 that also made orders with respect to Nairobi Judicial Review Application No 120 of 2012 related to the issues raised in the present petition and that the judgment still stands. It was therefore the learned Judge’s finding that the 2nd respondent’s decision to create the said administrative units violated the decision in Nairobi Judicial Review Miscellaneous Application No 120 of 2012.
10.
On the issue of whether the 2nd respondent acted within the confines of the law while creating the said administrative units, it was the trial court’s finding that the provisions of section 4 of the National Government Coordination Act as well as the provisions of articles 10 and 189 of the Constitution offer the guiding principles in the creation of such units. More fundamentally, the trial court observed that there was no proper public participation or any serious engagement with the public as expressly provided for under article 10 of the Constitution which lists public participation as one of the values and principles of governance that bind all state organs, officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. The trial court, in addition, found that there was a violation of the provisions of article 47 on the right to fair administrative action as the decision by the 2nd respondent complained of was illegal or ultra vires as it was undertaken in violation of a court decision and hence, not grounded on the law.
11.
For the above reasons, the trial court proceeded to conclude that the 2nd respondent violated the provisions of articles 10, 189, 201(d), 232, 47 and 159 of the Constitution, the guiding principles in section 4 of the National Government Coordination Act No 1 of 2013 by purporting to create new administrative units in violation of the law and disregarding the court decision rendered in Nairobi Judicial Review Application No 120 of 2012 and made a declaration to that effect. The trial court further granted an order of certiorari quashing the decision of the 2nd respondent contained in the advertisement dated May 15, 2015 and an order of mandamus directing the 2nd and 3rd respondents to comply with the decision rendered in Nairobi Judicial Review Application No 120 of 2012. | E. Analysis
i) Whether this Court has jurisdiction to determine the Appeal
45.
The 1st respondent raised the issue of jurisdiction and was emphatic that this court lacks jurisdiction to hear this matter. The question of this court’s jurisdiction to handle appeals filed as of right under article 163(4)(a) is one that the court embarks on before determining a matter on its merits. It thus has to be settled first, in any event, as the 1st respondent, a party before the court, is opposed to this court’s jurisdiction to determine the present appeal.
46.
That being said, the question of whether this appeal is properly before this court was answered and settled by this court in a ruling delivered on October 8, 2021. In that ruling, we found that the contested issues in this appeal were issues of constitutional controversy that had been determined before the High court and the Court of Appeal and involved the interpretation and application of the Constitution. It was our finding in that regard that:
“
From the above, it is evidently clear that though section 4 of the National Government Coordination Act was the basis upon which the trial court adjudicated on whether the administrative actions of the 2nd respondent were done within the confines of the law. The provisions of Section 4 were founded on the provisions of articles 10, 189, 201(d) & 232 of the Constitution, and it is these constitutional provisions that the 2nd respondent was found to be in breach of.”
47.
The upshot therefore is that this matter is properly before us and we hold and find that we have jurisdiction underarticle 163(4)(a) of the Constitution to determine it.
48.
We now proceed to interrogate the issues of constitutional interpretation or application that form the substratum of the appeal. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/35/eng@2023-06-16 |
Application 14 (E023) of 2022 | National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos (Application 14 (E023) of 2022) [2023] KESC 60 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos | [2023] KESC 60 (KLR) | null | The appellant had sought for its appeal to be certified as one that raised issues of general public importance that warranted an appeal to the Supreme Court. Aggrieved the appellant filed an application at the Supreme Court to set aside the decision of the Court of Appeal. The matter of general importance that the appellant sought to be determined was whether a guarantor was discharged upon payment of the principal amount and was therefore not liable for interest, costs and other charges.
The respondent opposed the application on grounds that no matters of general public importance affecting the banking industry had been raised. | We now opine as follows:
The notice of motion lacks merit as the applicants have not 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. Neither have the applicants raised any substantial question of law, the determination of which, would have a significant bearing on the public interest.
9.
Consequently, for the reasons aforesaid, we make the following orders:
i.
The notice of motion dated December 22, 2022 and filed on December 28, 2022, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicants.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/60/eng@2023-06-16 |
Petition 28 (E030) of 2022 | Njuguna & 46 others v Spire Properties (K) Limited & 12 others (Petition 28 (E030) of 2022) [2023] KESC 37 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Njuguna & 46 others v Spire Properties (K) Limited & 12 others | [2023] KESC 37 (KLR) | null | "A. Introduction
1.
The appellants filed the petition of appeal dated September 12, 2022 pursuant to article 163(4)(a) of the Constitution. They challenge the decision of the Court of Appeal in Civil Appeal No 135 of 2018, consolidated with Civil Appeal No 139 of 2018 which was delivered on July 29, 2022.
2.
The 2nd respondent, Transnational Bank Limited, filed a preliminary objection dated November 3, 2022 challenging this court’s jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution. The preliminary objection is supported by the 1st respondent, Spire Properties (K) Limited and is opposed by the appellants and the 5th -13th respondents.
At the oral hearing, we directed and limited the parties to the preliminary objection. Before addressing the preliminary objection, we briefly highlight the background and litigation history of the matter before the superior courts below.
B. Background & Litigation History
3.
The appellants and the 5th-13th respondents were employed by the 3rd respondent on diverse dates between 1981 and 1997 in various capacities and departments at Diani Reef Grand Hotel (the hotel). The 2nd respondent appointed the 4th respondent, RT Dunnet, as the receiver manager vide a deed of appointment dated September 2, 1998, under terms of a debenture, following the failure by the 3rd respondent to meet its obligations therein.
4.
At the point of taking over as receiver manager, the 4th respondent was presented with a list of existing staff and computation of their terminal dues owed to them as at September 2, 1998. The appellants opted to continue working at the hotel and receiving their monthly dues, even after it was placed under receivership. However, unlike those who left employment, the appellants were not paid their terminal dues. The computation of their terminal dues, which was not disputed by any party was Kshs 32, 457,007.00.
i. High Court
5.
The appellants and the 5th -13th respondents instituted Mombasa High Court Civil Case No 62 of 2007 against the 1st-4th respondents vide a plaint dated March 27, 2007. They sought a declaration that they are entitled to be paid their terminal benefits by the 1st – 4th respondents jointly and severally; judgment for the sum of Kshs 32,457,007/=; general damages; and costs and interests.
6.
In a ruling dated March 25, 2013 the High Court (Mwongo J) transferred the suit to the Industrial Court (as it then was) having found that the dispute relates to employment and labour relations. Consequently, the matter was issued a new case number, being Industrial Court Cause No 79 of 2013 and disposed of by that court.
ii. Employment and Labour Relations Court (ELRC)
7.
The appellants urged that; they were employed on permanent and pensionable terms, and were entitled to leave and/or leave allowance and gratuities calculated according to their period of service, upon termination of their employment services; the 3rd respondent did not take any loan facility and therefore the receivership was unlawfully set in motion and without justification; the purported sale of the Hotel was to defeat the payment of the appellant’s terminal benefits; that even assuming that there was a loan, the Receiver Manager was obliged in law to call for a creditor’s meeting setting out a schedule of the secured and unsecured debts indicating, what proportions of such debt would be paid out of the proceeds of sale; it had an obligation to advertise the sale in both local and international dailies so as to receive the best bid which ought to pay all the creditors; no auction sale took place; the sale of the 1st respondent to the 4th respondent was shrouded with mystery and that termination of their employment was irregular, unlawful and improper.
8.
In its defence, the 1st respondent maintained that it never entered into any contracts of employment with the appellants, and it was separate and distinct from the 2nd, 3rd and 4th respondents and therefore, it could not be held liable jointly or severally for their acts and/or omissions. The 2nd and 4th respondents on the other hand averred that the 3rd respondent obtained a loan facility from the 2nd respondent secured by all the necessary security documents prepared and perfected in connection with the loan. That the Receiver Manager was therefore appointed pursuant to the security documents, specifically the debenture, after the 1st respondent defaulted on the loan repayment. They denied the allegations of fraud and maintained that they did not terminate the appellants’ employment as they did not have capacity to do so.
9.
In its judgment dated September 8, 2017 the trial court determined that; there was an intricate web of relationships between the Parties; the appellants were employed by the 3rd respondent and remained as such up to the date the 4th respondent took over running of the business; the appointment of the Receiver Manager did not of itself terminate the contracts of employment; the 3rd respondent was not the appellants’ employer but was the principal wrongdoer who set in motion the receivership and denial of their terminal dues; and that the 2nd respondent was vicariously accountable for the actions of the 4th respondent.
10.
The trial court further determined that; the 2nd respondent did not have a justification for appointing the Receiver/Manager as it was not shown that the 1st respondent had defaulted in its obligations to the Bank of Scotland nor a demand made by the 3rd respondent to the 1st respondent; the 4th respondent had an obligation to advertise the Hotel properly highlighting actual and potential value, including to the international hotel industry; the sale of the hotel was not lawfully carried out, the appointment of the Receiver/Manager having been substantively invalid; and it made a finding that in creditors meetings held, the employees’ concerns were aired and undertakings made by the Receiver/Manager to retain them in employment.
11.
Consequently, the trial court found that; the 2nd, 3rd and 4th respondents were liable to pay the appellants terminal dues of Kshs 29,603,973; the termination of the appellants’ contracts was irregular, unlawful and improper and, granted each of them Kshs 500,000.00 to be paid by all the respondents jointly and severally; including costs and interest on terminal dues at 14% per annum from the date of filing the claim.
ii. Court of Appeal
12.
Aggrieved by the decision of the Employment and Labour Relations Court, the 1st respondent filed Civil Appeal No 135 of 2018. It urged that the trial court erred in finding that the sale of the Hotel was flawed; that there was an employment relationship between the appellant and the 1st respondent; that it made a promise to re-employ the appellants creating a legitimate expectation; that it breached obligations to the appellants; and that it erred in awarding general damages against it.
13.
The 2nd respondent filed Civil Appeal No 139 of 2018 on the grounds that the trial court erred in failing to appreciate that there was no contractual relationship of employment between it and the appellants; that it had all the rights to appoint a receiver under the debenture and that the appellants did not challenge the receivership in a Commercial Court, therefore it had no locus standi to challenge the commercial transaction between the 3rd respondent and the 2nd respondent; interfering and interpreting all contractual documents between the 2nd and 3rd respondents in favour of the appellants who were not parties to those contractual documents; that the allegations of fraud were not proved; general damages were awarded in contravention of the Employment Act; and failure by the trial court to consider their evidence, submissions and authorities.
14.
In a judgment delivered on July 29, 2022, the appellate court allowed the two appeals. It held that the ruling of Mwongo, J could not be construed as having extended the jurisdiction of the ELRC beyond the jurisdiction conferred on that court by the Constitution and by statute, and that article 162(2) of the Constitution as read with section 12 of the ELRC Act limit the jurisdiction of the court to hearing and determination of disputes relating to employment and labour relations. The appellate court’s view was that the pronouncement by the court effectively invalidating and nullifying a receivership was a matter beyond the court’s jurisdiction. Concerning liability, it held that the receiver terminated the claimants’ employment by reason of redundancy and therefore, the 1st respondent was liable. It determined that in the circumstances, a fair compensation for the claimants was an award of 6 months gross salary to each deserving claimant. On the issue of general damages, it held that since the ELRC had no jurisdiction to entertain the issue of the validity and /or legality of the appointment of the receiver, it could not award general damages on that basis. The appellate court’s order read as follows:
“
The only order that remains in favour of the claimants is the six months’ gross salary due and payable by the 1st respondent and they were entitled to costs and interests payable by the 1st respondent. The appellants herein shall bear their own costs but the claimants shall be entitled to costs and interests, payable by the 1st respondent.”
ii. Supreme Court
15.
The appellants have filed the instant appeal, being aggrieved by the decision of the Court of Appeal. It is premised on the grounds that the learned judge erred in law and fact in;
a.
Finding that article 162(2) of the Constitution as read with section 12(1) of the Employment and Labour Relations Court Act, 2011, 2011 which provides for jurisdiction of the ELRC to hear and determine disputes relating to employment and labour relations preclude the ELRC from making pronouncements invalidating and nullifying a receivership as such was a matter beyond the court’s jurisdiction;
b.
Concluding that the challenge to validity/legality of the receivership process before the ELRC was a matter beyond the court’s jurisdiction by dint of article 162(2) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011;
c.
Failing to interpret and determine that article 162(2) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011, extends to determination of the validity/legality of processes leading to determination of employment regardless of whether the process is of a commercial nature or any other nature for that matter; and
d.
Holding at paragraph 84 that it had awarded 6 months gross salary to each deserving claimant and paragraph 87 that, “the only order that remains in favour of the claimants is the six months gross salary due and payable by the 1st respondent” whereas this does not pass the dictates of article 10 of the Constitution as it is an impractical order that is self-contradicting since they cannot pay themselves.
16.
As earlier intimated, when the petition came up for hearing on April 26, 2023, we noted that the 2nd respondent had filed the notice of preliminary objection dated November 3, 2022 which we directed that it be argued first. The said preliminary objection is the subject of this determination.
" | D. Analysis and Determination
28.
Upon considering the preliminary objection filed by the 2nd respondent, the submissions filed thereto in support and in opposition, and upon hearing the oral arguments by the parties in court, the only issue for determination is whether this court has jurisdiction to hear and determine the appeal as a matter of right under article 163(4)(a) of the Constitution.
29.
This court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, Civil Application No 2 of 2011 [2012] eKLR held that a court’s jurisdiction flows from either the Constitution or legislation or both. A court can therefore only exercise jurisdiction as conferred by the Constitution or written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law. The Supreme Court’s appellate jurisdiction is set out in article 163(4) of the Constitution of Kenya which states:
“
(4)
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 Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).”
30.
This court has set out the guiding principles for invoking its jurisdiction under article 163(4)(a) in several of its decisions including in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another (supra) and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Sup Ct Petition No 10 of 2013 [2014] eKLR. In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others Sup Ct Petition No 45 of 2018; [2020] eKLR we stated as follows:
“
(i)
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
ii.
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfaction of the court and with precision those aspects/ issues of his matter which in his opinion fall for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of constitutional interpretation and application.
iii.
A 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).
iv.
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).
v.
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
31.
It therefore follows, as we determined in Rutongot Farm Ltd v Kenya Forest Service & 3 others SC Petition No 2 of 2016 [2018] eKLR, that in order to address the issue whether this court has jurisdiction or not, 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?
32.
Each case must however be evaluated on its own facts. To enable us resolve the question whether a matter concerns the interpretation and application of the Constitution, we must establish whether the issues raised in the petition fall within the ambit of this court’s jurisdiction, cognisant of the fact that we examine the appeal, not on its merits, but under the lens of the requirements of article 163(4)(a) of the Constitution.
33.
The appellants have set out four grounds of appeal, compressed in their submissions into two issues for determination: whether the ELRC had jurisdiction to entertain the issue of validity and/or legality of the receivership; and whether the Court of Appeal’s judgment violated article 10 of the Constitution.
34.
Having perused the record before us, we note that the matter was first filed at the High Court, and subsequently transferred to the Industrial Court vide a ruling dated March 25, 2013. In the said ruling, Mwongo J stated as follows:
“[8].
… Section 12 of the Industrial Court Act provides: 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 provisions or 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.
[9].
Given the provisions of article 162 (2) and the Industrial Court Act 2011 cited above, the primary constitutional concern in this matter is whether on a proper reading of the pleadings, the dispute herein relates to employment and labour relations. I have no doubt in my mind that the dispute herein relates to employment and labour relations. The monetary prayer is for payment of terminal benefits from employment of the plaintiffs who were allegedly employees of the 1st defendant, subsequently put under receivership of the 2nd defendant allegedly with the involvement of the 3rd defendant.
[10].
The secondary question that arises is whether, given the nature of the pleadings the dispute relates to or arises out of employment between an employer and employee in terms of section 12 of the Industrial Court Act. Again by the same argument, I have no doubt that the disputes in the plaint arise out of an employment scenario.”
35.
We note that the learned judge further stated that:
“
12
…Their jurisdiction is narrowed down to all matters relating to employment and labour relations. Whatever legal or factual scope of such matters, whether involving fraud or receivership or company law, the learned judges of the Industrial Court are entitled to address them fully and substantively. That is how wide the scope of their jurisdiction is.
13.
Thus the argument of the 3rd and 4th defendant that that court cannot deal with matters of fraud is hollow and unpersuasive so is that, that court cannot deal with employment in cases or issues of receivership or arraignment of contract or novation or any other legal issues affecting employment. Such arguments wholly misunderstand the object of article 162(2) which is to create a court similar to the High Court, but where focus is indeed all matters related to employment and labour relations.”
36.
The reliefs sought by the appellants as set out in their Plaint were: a declaration that they were entitled to be paid their terminal benefits by the 1st – 4th respondents jointly and severally; judgment for the sum of Kshs 32,457,007/=; general damages; and costs and interests.
37.
We note that in the ruling transferring the matter to the ELRC, the High Court analysed the pleadings before it and determined that it was an employment and labour relations matter. The court noted the provision of article 162(2) and (3) of the Constitution which empowers Parliament to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and to enact legislation to determine the jurisdiction of the said courts and section 12 of the Industrial Court Act. The High Court specifically addressed itself to section 12 of the Industrial Court Act and the pleadings before it. We note that there was no question of interpretation or the application of article 162(2) of Constitution.
38.
We note that in making its determination, the trial court framed the issues for determination as: what relationship if any, parties had with each other; whether the appointment of the receiver manager was lawful; whether the 1st, 2nd and 3rd respondents acted lawfully in selling the hotel to the 4th respondent; and whether the appellants suffered as a result of the receivership and sale of the Hotel, whether they are entitled to terminal benefits, damages, costs and interest, and if so, from which respondent, and to what extent. The trial court made findings concerning the receivership and held that there was no justification for appointing the receiver/manager, and the sale of the hotel was not lawfully carried out.
39.
The issue before the Court of Appeal on the other hand, was whether the trial court went beyond its jurisdiction, taking note of the ruling of Mwongo, J. It was the appellate court’s view that the said ruling could not be construed as having extended the jurisdiction of the ELRC beyond the jurisdiction conferred to it under the Constitution or statute. The Court of Appeal in its judgment noted that the jurisdiction of the ELRC was resolved in the ruling delivered by Mwongo J on March 25, 2013 where he held that the matter was a dispute relating to employment and labour relations. It further held that the trial court’s pronouncements, by effectively invalidating and nullifying the receivership was beyond the court’s jurisdiction under the Constitution and Statute.
40.
This court in Aviation & Allied Workers Union of Kenya case (supra) stated that it is for the appellant to demonstrate the manner in which the superior courts interpreted or applied the provisions of the Constitution and the impact on its case. We stated:
“
[36]
.. In an appeal such as this, the appellant ought to show how the other superior courts incorrectly interpreted, or applied the relevant provision of the Constitution, and how the right interpretation when applied, would impact upon its case. And “interpretation” or “application”, in this regard, resides in the assumption of a task that transcends just the reference to the rich generality of constitutional principle; it is a task that focusses upon specific clauses of the Constitution, and calls for the attribution of requisite meaning, tenor and effect.”
41
Further, in Hassan Ali Joho cases, (supra) we held that an appeal is admissible if it raises cogent issues of constitutional controversy. We stated:
“[52]
..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, in furtherance of the objects laid out under section 3 of the Supreme Court Act, 2011 (Act No 7 of 2011).”
42.
Additionally, in Benson Ambuti Adega case (supra) this court held:
“
[45]
…It is manifestly evident from the foregoing 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. (See Erad Supplies and General Contractors Ltd v National Cereals & Produce Board (supra)).”
43.
We establish from the primary pleading filed at the High Court that the appellants sought their terminal benefits against the 1st – 4th respondents jointly and severally; judgment for the sum of Kshs 32,457,007/=; general damages; and costs and interest. The appellants were seeking their dues from the 1st – 4th respondents upon termination of their employment. It was on this basis that the High Court transferred the matter to the ELRC as the matter related to employment and labour relations. It was also the Court of Appeal’s finding that the transfer of the matter to the ELRC could not be construed as having extended the court’s jurisdiction. The issue concerning the receivership therefore had a limited bearing to the main claim by the appellants. In Stanley Mombo Amuti case (supra) we noted that in Erad Supplies and General Contractors Ltd case (supra) we specifically stated 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. Indeed, in Aviation and Allied Workers Union (supra) we added that the mere reference to the rich generality of constitutional principle as the Court of Appeal did in the present case, is not a sufficient ground to invoke article 163(4)(a). The same must be said of the present cause.”
44.
To this end therefore, we find that this court does not have jurisdiction to entertain the consideration and determination of the issue whether the ELRC had jurisdiction to entertain the issue of validity and/or legality of the receivership in the instant appeal. Further, calling on this court to determine the issue would be seeking to have the court address itself to the extent of the application of the provisions of section 12 of the ELRC Act, which statutory provision was not under constitutional challenge before any of the superior courts below. Consequently, we declare that this court is not clothed with jurisdiction to consider this matter under this issue touching on receivership.
45.
The twin issue that the appellants seek a determination of is whether the Court of Appeal’s judgment violated article 10 of the Constitution. The appellants seek a determination on
“whether the Learned Judges of Appeal erred by holding at paragraph 84 of the judgment that it had awarded 6 months gross salary to each deserving claimant and paragraph 87 of the judgment where it held that,
“The only order that remains in favour of the claimants is the six months gross salary due and payable by the 1st respondent.”
The appellants contend that this holding does not pass the constitutional dictates under article 10 of the Constitution as, whereas the court made the said findings, it did not determine who among the appellants was a deserving claimant entitled to the six months gross salary. They further aver that the order for payment of the six months’ salary was to be effected by the 1st respondent, who happened to be one of the claimants. It is therefore their submission that the matter took a Constitutional trajectory as the Court of Appeal decision is in contravention of article 10 of the Constitution for lacking transparency and accountability.
46.
In this court’s decision in John Florence Maritime Services Limited case (supra) we noted that in determining whether the matter took a constitutional trajectory, it requires a look at a court’s reasoning and even the processes and procedures adopted by a court in its proceedings, noting the court’s discretionary mandate. We stated:
(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."
47.
The appellants aver that the judgment lacked clarity, was impractical and self-contradicting. The appellants’ grievance is that the Court of Appeal awarded the claimants six months gross salary due and payable by the 1st respondent, whereas the 1st respondent was one of the claimants and not determining who was a “deserving claimant.” The question for determination under this issue is therefore whether the matters raised by the appellants are anomalies about which this court ought to assume jurisdiction, noting that the Supreme Court is not only charged with the interpretation and application of the Constitution, but the protection of the Constitution as well.
48.
The appellants aver that “upon disposal of the matter by the Court of Appeal it remained unclear to the petitioners as to whether they actually got any relief from the court since the only relief granted by the court lacked clarity, was impractical and self-contradicting. The relief granted ended up to be of no assistance in resolving the dispute.” In response to this issue, the 1st respondent submitted that the alleged errors made by the Court of Appeal are capable of being corrected under the slip rule provided under rule 37(1) of the Court of Appeal Rules or through the settlement of terms under rule 34(2) of the Court of Appeal Rules.
49.
Our understanding of this averment is that the appellants are unable to comprehend the import of the judgment by the Court of Appeal. The appellants are therefore, in essence, asking us to interpret and clarify the said judgment. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another Sup Ct Presidential Election Petition No 1 of 2017 [2017] eKLR in our ruling delivered on October 17, 2017 we held (paragraph 56) that this court has no jurisdiction to interpret its decisions or those of other courts. We therefore cannot heed the appellants’ call to assist them in understanding the judgment, more so, through the present appeal.
50.
It is our considered view that this is an issue that can be addressed by the Court of Appeal. The appellants ought to have moved the Court of Appeal appropriately to either confirm or clarify the import of its decision. Rule 34(2)(d) and (e) of that court’s rules provides that-
“
(2)
Where a decision of the court was given in a civil application or appeal
d.
if the parties do not agree on the form of the order, or if there is non- compliance with sub-rules (a) and (b), the form of the order shall be settled by the presiding judge or by such judge who sat at the hearing as the presiding judge shall direct, after giving all the parties an opportunity of being heard;
d.
if the parties are unable to agree which party was substantially successful, the Registrar, on the application of either party, which application may be made informally, and after giving all parties an opportunity of being heard, shall direct by which party the draft is to be prepared, and such direction shall be final.”
51.
Rule 35 of the Court of Appeal Rules on its part, makes provision for correction of errors. It states-
“
(1)
A clerical or arithmetical mistake in any judgment of the court or any error arising therein from an accidental slip or omission may at any time, whether before or after the judgment has been embodied in an order, be corrected by the court, either of its own motion or the application of any interested person so as to give effect to what the intention of the court was when judgment was given.
(2)
An order of the court may at any time be corrected by the court, either of its own motion or on the application of any interested person, if it does not correspond with the judgment it supports to embody or, where the judgment has been corrected under sub-rule (1), with the judgment as so corrected.”
52.
We therefore find, taking into account the cited provisions, that this issue does not fall under the ambit of article 163(4)(a) of the Constitution. We state so because the issues raised largely revolve around factual contestations as among the parties, which the superior courts below were engaged in, to enable them determine the extent of culpability, if any, as among the different parties.
53.
For the reasons set out above, we decline the invitation to assume jurisdiction in respect of this appeal. As stated in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Application No 3 of 2014 [2015] eKLR, this court had not been conceived as just another layer in the appellate -court structure. Much less an explainer to litigants and counsel of judgments of superior courts below.
54.
Considering this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup Ct Petition No 4 of 2012; [2014] eKLR which 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, and noting that this matter did not proceed to hearing of the appeal on the merits, and to bring closure to the litigants before the court, we exercise our judicial discretion in ordering that each party shall bear its costs.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/37/eng@2023-06-16 |
Application E015 of 2023 | Otieno, Ragot & Company Advocates v Kenya Airports Authority (Application E015 of 2023) [2023] KESC 55 (KLR) (Civ) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 16 June 2023 | 2,023 | Nairobi | Civil | Otieno, Ragot & Company Advocates v Kenya Airports Authority | [2023] KESC 55 (KLR) | null | Brief facts
The instant application sought among other orders; the review the ruling of the Court of Appeal in Civil Application Sup. No. E001 of 2012 (Kisumu) in which that court allowed the respondent’s application seeking certification that an intended appeal to the Supreme Court raised questions of general public importance and granted leave to appeal. The applicant argued that the intended appeal to the Supreme Court did not raise questions of general public importance since it did not meet the criteria set out in law and the principles that had been developed by this court in the Hermanus Phillipus Steyn v Giovanni Gnecchi -Ruscone, SC Application No. 4 of 2012; [2013] eKLR.
The applicant further argued that the dispute between the parties had always been about payment of professional fees for services rendered by the applicant as an advocate to the respondent who had been sued for Kshs.13,932,000,000; and that since the parties differed on fees, the applicant filed advocate and client bill of costs and was awarded Kshs.8,759,022.74 including disbursements by the taxing officer. The applicant further claimed that the taxing officer arrived at that sum by increasing the instruction fees by one half as provided for under Schedule Part A and B of the Advocates Remuneration Order, 2014.
Issues
Whether the manner in which advocates fees were taxed was appealable to the Supreme Court as a matter of general public importance considering the existence of divergent positions by courts.
| Upon perusing the notice of motion by the applicant dated March 31, 2023 and filed on even date pursuant to article 163 (5) of the Constitution, rule 33(2) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, seeking orders that:
1.
This court be pleased to review the ruling of the Court of Appeal in Civil Application Sup No E001 of 2012 (Kisumu) dated the March 17, 2023 by which the said court allowed the respondent’s application dated June 2, 2021 seeking certification that an intended appeal to the Supreme Court of Kenya against a decision of the said court delivered on May 19, 2021 in Civil Appeal No 39 of 2017 raised questions of general public importance and granted leave to appeal.
2.
Upon the grant of the order for review, this honourable court be pleased to find that the intended appeal does not satisfy the criteria for the grant of an order for certification and leave under the Constitution and the law and that therefore the Court of Appeal should have refused the respondent’s application dated June 2, 2021 seeking certification and leave to appeal to this honourable court.
3.
The costs of the proceedings be borne by the respondent.
2.
Upon perusing the grounds on the face of the application; the supporting affidavit and further affidavit sworn on March 31, 2023 and April 26, 2023 respectively by David Otieno; and written submissions dated March 31, 2023 and filed on April 4, 2023 wherein the applicant argues that the intended appeal to this court does not raise questions of general public importance since it does not meet the criteria set out in law and the principles that have been developed by this court in the Hermanus Phillipus Steyn v Giovanni Gnecchi -Ruscone, SC Application No 4 of 2012; [2013] eKLR; that the dispute between the parties has always been about payment of professional fees for services rendered by the applicant as an advocate to the respondent who had been sued for Kshs 13,932,000,000/-; that since the parties differed on fees, the applicant filed advocate and client bill of costs and was awarded Kshs 8,759,022.74 including disbursements by the taxing officer; that the taxing officer arrived at the said sum by increasing the instruction fees by one half as provided for under Schedule Part A and B of the Advocates Remuneration Order, 2014; and
3.
Upon considering the applicant’s further argument that there is no ambiguity for the law is clear and decisions of superior courts have remained constant; that notwithstanding the clarity on the law, the applicant castigates the appellate court for relying on minority decisions of the superior court as constituting differences in opinions at the superior court; that the invitation of determining what “subject value” means is frivolous since the courts are clear about what the subject is in each case; that the respondent cannot propose this court to litigate on matters that were never raised, addressed and determined before the superior courts, as reiterated by this court in Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others, SC Application No 2 of 2015; [2015] eKLR. The applicant affirms that the only reason the respondent wants to prefer an appeal to this court is because the sum increased to Kshs 196,044,750.50/-; and
4.
Upon perusing the respondent’s replying affidavit sworn on April 17, 2023 by Margaret Munene and written submissions dated April 26, 2023 and filed on April 27, 2023 in which the respondent, in opposing the application, contends that the applicant raises no new issue warranting review because they reiterate the objections raised before the Court of Appeal; that the appellate judges correctly found that the intended appeal meets the criteria set out in the Hermanus Phillipus Steyn case given that the issues impact the public interest and therefore transcend the private interests of the parties to this dispute; that there are divergent opinions of majority and minority of the superior court regarding the interpretation and application of the provisions of schedule VI part A and B of the Advocates Remuneration Order, 2014 and the question of the exercise of the taxing officer’s judicial discretion leaving the law unsettled on this subject; that to the extent it remains unsettled, the right to access to justice as enshrined under article 48 of the Constitution may be impeded by claims of unreasonable fees; and
5.
Cognisant that the questions of law as certified by the Court of Appeal for appeal to this court are:
a.
The proper interpretation of the provisions of schedule VI part A and B of the Advocates Remuneration Order, 2012 and in particular whether the phrase ‘fees prescribed in A above increased by one – half’ effectively takes away the taxing master’s judicial discretion in the taxation of an Advocate-Client bill of costs;
b.
The proper judicial interpretation of the term ‘subject value’ in instances where the subject matter of a dispute although pleaded is fictitious and unsubstantiated and hence unascertainable from the pleadings without valuation
c.
Whether a certificate of taxation of party and party costs is binding per se on the taxing master in the taxation of the Advocate – Client bill of costs and whether such certificate completely fetters discretion and appreciation of actual work done in assessing Advocate-Client instruction fees.
d.
Whether the costs awarded to an Advocate should be allowed to be so punitive (in this case being an increment of instruction fees by the majority of Court of Appeal from Kshs 5,000, 000/- to Kshs 196, 044, 750.50/-) with the effect of impeding access to justice as guaranteed underarticle 48 of the Constitution; and
6.
Bearing In Mind the provisions governing this court’s jurisdiction under article 163(4)(b) of the Constitution to hear appeals from the Court of Appeal on matters of general public importance, as well as section 15B of the Supreme Court Act and rule 33(2) of the Supreme Court Rules, 2020 on the right to review the Court of Appeal’s decision on certification of a matter as one of general public importance; and
7.
Taking Into Account the parameters of what amounts to a matter of general public importance as set out by this court in Hermanus Phillipus Steyn case, as appreciated by the parties and the Court of Appeal; and the additional guidelines in Malcom Bell v Daniel Toroitich Arap Moi & another, SC Application No 1 of 2013; [2013] eKLR;
8.
We have considered the application, responses thereto and submissions put forth by the parties and now opine as follows:
i.
The main legal issue identified for certification is the interpretation of the provisions of Schedule VI, Part A and B of the Advocates Remuneration Order 2014 to the extent to which such interpretation limits the exercise of the taxing officer’s judicial discretion in taxation of advocate-client bill of costs especially where the value of the subject matter of a dispute, although pleaded, is not substantiated.
ii.
At the heart of the dispute between the parties is the manner in which the Advocates fees were taxed using either of the parameters set out in the Advocates Remuneration Order, whose outcome portends a massive difference in the entitlement of advocates fees as awarded by the courts. We also note that the Court of Appeal, though differently constituted, has pointed out the prevailing controversy. In Kinyua Muyaa & Co Advocates v Kenya Ports Authority Pension Scheme & 8 others (Civil Appeal (Application) 69 of 2020) [2022] KECA 1119 (21 October 2022) (Ruling), the Court of Appeal stated as follows:
“19. Lastly, there is the contention that “there is uncertainty in the previous holdings by the Court of Appeal with some justices of appeal holding that a certificate of costs in a party & party bill is binding in an advocate/client bill of costs and that the taxing master need only increase that certificate with 50%”. There is merit in this contention. …”
iii.
We are satisfied that this case affords a sufficient opportunity for the need to decisively address the issue and that this issue transcends the circumstances of this particular case and has a significant bearing on the public interest considering the existence of divergent positions as appreciated by the Court of Appeal.
iv.
We see no difficulty in appreciating that the Court of Appeal correctly interrogated the proposed questions under the threshold set out in Hermanus Phillipus Steyn Case in arriving at its decision. We therefore, decline to vacate its finding.
v.
As for costs, it is only prudent that we defer costs to follow the ultimate outcome of the appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/55/eng@2023-06-16 |
Petition (Application) E005 of 2023 | Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association (Intended Interested Party) (Petition (Application) E005 of 2023) [2023] KESC 45 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 16 June 2023 | 2,023 | Nairobi | Civil | Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association | [2023] KESC 45 (KLR) | null | Whereas the Court of Appeal by a ruling dated February 17, 2023 in Civil Applic. (Sup) No E196 of 2022 granted leave to Stanbic Bank Kenya Ltd (the appellant) to file the appeal, Petition No E005 of 2023, under Article 163(4)(b) of the Constitution in the following terms:
'
We have also considered the applicant’s grounds in support of certification and in our view, the intended appeal primarily revolves around the proper interpretation and application of sections 44 and 52 of the Banking Act. As we understand it, the applicant is saying that the courts have given different interpretation on instances when the consent of the minister in charge of finance is required and instances when the parties have freedom of contract to agree on the rate of interest, including the right to vary that rate.
Having considered the issue, we find there is uncertainty in the law arising from the contrary views in the High Court and this Court on the question of the rate of interest and banking charges which requires certainty. The battle on whether banks have a free hand to change any rate of interest and banking charges and whether customers can wake up many years after signing contractual documents to challenge the rate of interest has been ranging in our courts for a long time and requires clarification.'; and
2.
Upon considering the Notice of Motion dated March 23, 2023 and lodged on March 24, 2023 by Kenya Bankers Association (the applicant) under Rules 3, 24 and 31 of the Supreme Court Rules, 2020 seeking the following orders:
a.
Leave be granted for the applicant to be joined as an interested party to this appeal.
b.
The costs of this application be provided for.
3.
Taking Into Account the affidavit in support of the motion sworn by the applicant’s Chief Executive Officer, Habil Olaka, on March 23, 2023 and the applicant’s submissions of even date to the effect that; firstly, the applicant and its members have an identifiable stake/interest in the appeal before this Court. In that, the applicant as well as a number of its members are parties in several suits pending before the superior courts below, all of which revolve around the interpretation, application and effect of Sections 44 and 52 of the Banking Act; the issues in dispute in the superior courts below are directly in issue in the appeal before this Court; and this Court’s decision will be final and binding on the superior courts below. Secondly, that the applicant’s members will be prejudiced if the applicant is not allowed to participate in the appeal and be able to put forth submissions on behalf of the banking industry; the submissions not only set out a different perspective from the appellant but are also relevant to the determination of the appeal.
4.
Thirdly, the applicant intends to, submit on the historical development of legislation relating to the control of interest, on one hand and bank charges other than interest, on the other hand; demonstrate that it was never the intention of the Legislature that Section 44 of the Banking Act should control interest; and establish that Section 52 of the Banking Act was intended to preserve contractual obligations and assets of banks from claims by customers seeking to avoid liability for their contractual obligations as well as restrain banks from seeking to recover interest or other bank charges in excess of what is permitted by legislation. In any event, no prejudice will be occasioned to the parties by the applicant’s participation as an interested party; and
5.
Appreciating the fact that when the matter was mentioned before the Hon Deputy Registrar of this Court on March 27, 2023 and April 11, 2023, the appellant’s counsel indicated that the appellant had no objection to the motion; and
6.
Noting that Santowels Ltd (the respondent) by a replying affidavit sworn by its Managing Director, Rajiv Raja, on April 4, 2023 opposed the motion on the grounds that; the crux of the appeal relates to the appellant overcharging interest on its loan account, which issue the applicant cannot respond to or submit on; the question of interpretation of Sections 44 and 52 of the Banking Act neither arose in the superior courts below nor is it subject of the appeal before this Court; the issues in the suits pending before the superior courts below cannot be raised in this appeal; and the joinder of the applicant to the appeal would only convolute the matter; and
7.
Bearing In Mind the guiding principles in considering an application for joinder of an interested party as delineated under Rule 24 of the Supreme Court Rules, 2020 and discussed by this Court Francis Karioki Muruatetu & Another v Republic & 5 Others, SC Petition No 15 & 16 of 2015; [2016] eKLR wherein it was held that -
'
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
i.
The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii.
The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii.
Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.' | We Opine as follows:
i.
It is clear that the Court of Appeal certified the appeal on the basis of uncertainty that had arisen due to conflicting decisions from the superior courts below on the interpretation of Sections 44 and 52 of the Banking Act.
ii.
Having perused the submissions that the applicant intends to put forth as well as the appellant’s written arguments in support of the appeal, we cannot help but note that there is no divergence between the two. In other words, the applicant’s submissions do not offer a different perspective from the appellant.
iii.
Further, the applicant has not demonstrated the prejudice it will suffer if it is not admitted as an interested party. This is because the applicant and its members can advance their interests in the suits pending before the superior courts below, which have the competence to interrogate the evidence and deal with the issues therein. It is our humble view that allowing the applicant to engage in multiple litigation in all the courts will not only be prejudicial to the parties but undermine the core purpose of the hierarchy of courts. Moreover, it is this Court’s duty to safeguard the autonomous exercise of the respective jurisdiction of those superior courts as aptly observed in Peter Oduor Ngoge v Francis Ole Kaparo and 5 Others, SC Petition No 2 of 2012; [2012] eKLR.
9.
Consequently and for the reasons afore-stated we make the following Orders:
i. The Notice of Motion dated March 23, 2023 and filed on March 24, 2023 is hereby dismissed.
ii. The applicant shall bear the costs of the respondent in this Motion.
10
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/45/eng@2023-06-16 |
Application E003 of 2023 | Wafula v Director of Public Prosecution & 149 others (Application E003 of 2023) [2023] KESC 43 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 June 2023 | 2,023 | Nairobi | Criminal | Wafula v Director of Public Prosecution & 149 others | [2023] KESC 43 (KLR) | null | Brief facts
The instant application sought among other orders a declaration that: Supreme Court Criminal Petition No E032 of 2022 was duly filed before a court of competent jurisdiction and that the Chief Justice should constitute a five-judge bench to reinstate Supreme Court Criminal Petition No E032 of 2022. The applicant contended that the petition of appeal concerned corruption within the Judiciary and other arms of the state and that the 1st-15th respondents had been compromised to deny his litigation matters within his area of jurisdiction, where the causes of actions occurred. The applicant submitted that the ruling delivered by the court on February 17, 2023 violated articles 163 (3)(b)(i) and (ii), (4)(a-b) and (9) of the Constitution as a single judge bench decision could not be the final decision in a Supreme Court comprising seven judges.
Issues
Whether a determination by a single judge on the decision of the Registrar was final. | Upon perusing the originating motion dated February 21, 2023 seeking among others declaration that: Supreme Court Criminal Petition No E032 of 2022 was duly filed before a court of competent jurisdiction; her Ladyship the Chief Justice and President of the Supreme Court do constitute a five Judge bench to reinstate Supreme Court Criminal Petition No E032 of 2022 which was filed after the Criminal Court of Appeal declined to admit Court of Appeal Criminal Application No E008 of 2021; and orders transferring the 3rd and 9th up to 14th,th, 61st, 62nd and 93rd respondents who contravened the Supreme Court Rules 2020; and
[2]
Upon perusing the grounds adduced by the applicant in support of the orders sought where he inter alia contends that the petition of appeal concerns corruption within the judiciary and other arms of the state and that the 1st-15th respondents have been compromised to deny his litigations within his area of jurisdiction, where the causes of actions occurred; and
[3]
Upon further considering the applicant’s submissions dated February 21, 2023 wherein he inter alia submits that the ruling delivered by this court on February 17, 2023 violated article 163(3)(i) & (ii), (4)(a-b) and (9) of the Constitution as a single Judge bench decision cannot be the final decision in a Supreme Court comprising seven Judges. In conclusion, he urged the court to allow the filing of his petition of appeal being Supreme Court Petition No E032 of 2022 and notice of motion filed on July 25, 2022; and
[4]
Having considered the application and submissions before us, we now opine as follows:
1.
We take note that even though the application was brought under the wrong provisions of the law, it seeks to review the decision of a single judge.
2.
The instructive provision in this context is rule 6(2) and (3) of the Supreme Court Rules, 2020 which provides as follows:
“
(2)
Any party aggrieved by a decision of the Registrar made under this rule may apply for a review to a single judge.
(3)
A determination by the single judge on the decision of the Registrar shall be final.”
3.
This court having pronounced itself vide a ruling delivered on February 17, 2023 in Supreme Court Criminal Petition No E032 of 2022 where the applicant sought to review the Deputy Registrar’s decision dated November 4, 2022, we find that the court lacks jurisdiction to entertain the instant application on the ground that a determination by a single judge on the decision of the Registrar is final. As such, the decision made by the Honourable Justice W Ouko delivered on February 17, 2023 stands. Consequently, the applicant’s application is hereby dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/43/eng@2023-06-16 |
Application E003 of 2023 | Wafula v Director of Public Prosecution & 149 others (Application E003 of 2023) [2023] KESC 48 (KLR) (Civ) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Wafula v Director of Public Prosecution & 149 others | [2023] KESC 48 (KLR) | null | Brief facts
The plaintiff had filed an application for waiver of fees that had been dismissed by the Registrar of the Supreme Court. Aggrieved the plaintiff filed for review before a single judge of the Supreme Court that was dismissed. Further aggrieved, the plaintiff filed the instant application.
Issues
Whether the Supreme Court had the jurisdiction to review a decision by a single judge of the Supreme Court in a review of a decision by the Registrar of the Supreme Court to deny waiver of fees. | Upon perusing the notice of motion dated February 27, 2023 seeking orders for leave to be granted to the applicant to prosecute an originating motion dated February 21, 2023
2.
Upon reading the supporting affidavit of Benjamin Barasa Wafula sworn on February 27, 2023 where he avers that he only attained basic knowledge in paper making and due to his former employer tarnishing his reputation and his advanced age, he has not been able to secure employment. Thus, he is financially unable to cater for the prescribed fees; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders sought wherein he contends that he was employed by Pan African Paper Mills (EA) Company Ltd from January 3, 1983 to September 23, 2003 when his employment was terminated after he allegedly supported the government’s proposal to have Pan African Paper Mills EA Company Ltd raise its employees’ salaries, who were underpaid by 32.39%; and that, after his termination as a Quality Control Checker and Trade Unionist, his capacity to secure employment was crippled affecting his financial status; and
4.
Furthermore, considering the applicant’s originating motion wherein he seeks inter alia a declaration that; Supreme Court criminal petition No E032 of 2022 was duly filed before a court of competent jurisdiction; her Ladyship the Chief Justice and President of the Supreme Court do constitute a five judge bench to reinstate Supreme Court criminal petition No E032 of 2022 which was filed after the criminal division of the Court of Appeal declined to admit Court of Appeal criminal application No E008 of 2021; and orders transferring the 3rd and 9th up to 14th, 18th, 61st, 62nd, and 93rd respondents from their current workstations for contravening the Supreme Court Rules 2020; and
5.
Upon considering the applicant’s submissions dated February 27, 2023 wherein he submits that the government allegedly grabbed his ancestral land being LR No Ndivisi/Muchi 1122 up to 1400 without compensation and that, the County Government of Bungoma is using the village administrator, who is a daughter of the 74th respondent herein, to assess eligible candidates for the award of strange scholarships and bursaries cases in his area of abode; and
6.
Having considered the application and submissions before us, we now opine as follows:
i.
Rule 63(2) of the Supreme Court Rules, 2020 provides as follows:
“
(2) The Registrar may, where satisfied that a party lacks the means to pay the required fees, permit that the matter be lodged.”
ii.
The above-quoted provision confers powers on the Registrar to entertain an application for request for waiver of fees. Any party aggrieved by the decision of the Registrar is permitted to apply for review to a single judge whose decision shall be final by dint of rule 6(2) and (3) of the Supreme Court Rules, 2020. The applicant has failed to invoke this procedure and instead filed a motion directly to the court seeking waiver of court fees to prosecute his application dated February 21, 2023. While aware that the applicant is acting in person and may not be aware of the correct procedure, we are nonetheless constrained not to grant his application for reasons detailed out below.
iii.
An objective merit review of the originating motion dated February 21, 2023, which is the subject of the instant application, reveals that it seeks to review the decision of a single judge emanating from a decision of the Registrar. The Deputy Registrar of this court had on November 4, 2022 dismissed the applicant’s plea to lodge his pleadings in Supreme Court criminal petition No E032 of 2022 and a single judge of this court had on February 17, 2023 declined to review that decision. That decision is final as explained above and therefore granting the present application would be an action in vain. As a consequence, we have no jurisdiction under the above rule to revisit that decision. In the circumstances, we find that the application lacks merit and is hereby dismissed.
7.
For the foregoing reasons, the final orders of the court are as follows:
Orders:
a.
The application dated February 27, 2023 seeking waiver of fees to prosecute an originating motion dated February 21, 2023 is hereby dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/48/eng@2023-06-16 |
Presidential Election Petition E001 of 2023 | Wafula v National Rainbow Coalition Party Of Kenya & 93 others (Presidential Election Petition E001 of 2023) [2023] KESC 46 (KLR) (16 June 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | Wafula v National Rainbow Coalition Party Of Kenya & 93 others | [2023] KESC 46 (KLR) | null | Brief facts
The instant application sought leave to prosecute an Originating Motion dated December 19, 2022 as a pauper due to lack of funds for payment of court fees, and orders staying the Azimio la Umoja One Kenya Alliance and all its affiliated Parties or any organization claiming through the said coalition from organizing demonstrations and picketing in any part of the country until they have proved their purported victory of 8.1 million votes as at August 9, 2022. The applicant contended that Azimio la Umoja had new and compelling evidence, regarding its loss in the August 9, 2022 presidential election, it should have taken that evidence to court because the demonstrations held by them were in contempt of the Supreme Court decision which upheld the result of the said election.
Issues
Whether the Supreme Court could determine an application based on an originating motion which had not been presented to the court.
Whether the Supreme Court had the jurisdiction to entertain a prayer for leave to approach the court as a pauper in the first instance.
Whether the Supreme Court had the jurisdiction to determine a presidential election petition that was filed out of time. | Upon perusing the notice of motion dated March 13, 2023 seeking leave to prosecute an originating motion dated December 19, 2022 as a pauper due to lack of funds for payment of court fees, and orders staying the Azimio la Umoja One Kenya Alliance and all its affiliated Parties or any organization claiming through the said coalition from organizing demonstrations and picketing in any part of the country until they have proved their purported victory of 8.1 million votes as at August 9, 2022; and
2.
Upon reading the supporting affidavit of Benjamin Barasa Wafula sworn on March 13, 2023 wherein he contends that, if at all the Azimio la Umoja One Kenya Coalition had new and compelling evidence, regarding its loss in the August 9, 2022 presidential election, it should have taken that evidence to court because the demonstrations held by them are in contempt of the Supreme Court decision which upheld the result of the said election; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders sought wherein he contends that; he was employed by Pan African Paper Mills (EA) Company Ltd from January 3, 1983 to September 23, 2003 when his employment was terminated after he allegedly supported a government proposal to raise the Pan African Paper Mills EA Company Ltd employees’ salary, who were underpaid by 32.9%, and after his termination as a Quality Control Checker and Trade Unionist, his capacity to secure employment was crippled thus affecting his financial status; and that an order of stay of the holding of any political rallies pending the determination of this Petition should be issued to stop any scandal that may occasion a state of emergency; and
4.
Having considered the application before us, we opine as follows:
1.
Noting that the originating motion dated December 19, 2022 which the applicant seeks to prosecute as a pauper was not availed to court, we are unable to determine the objective merit of the present application in that context. That motion in any event will be determined separately if need be. Furthermore, rule 63(2) of the Supreme Court Rules, 2020 bestows Upon the Registrar the power to consider a request for waiver of fees at the first instance. The decision of the Registrar is reviewable by a single judge whose decision is final. Therefore, this court is not clothed with jurisdiction to entertain the prayer for leave to approach the court as a pauper in the first instance. Consequently, this prayer must fail.
2.
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014; [2014] eKLR we reiterated three principles that guide a court in deciding an application for stay. The principles require an applicant to demonstrate, first that the appeal is arguable and not frivolous; that if the order of stay is not granted the appeal will be rendered nugatory; and finally, that it is in the public interest to grant an order of stay.
3.
This court in George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) Misc Application No 7 (E011) of 2021 [2021] eKLR also stated:
“
It must be remembered that the question 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 findings of either fact or law. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully by the court.”
4.
In the above context, the application herein was filed together with Presidential Election Petition No E001 of 2023 which we have taken time to peruse and to satisfy ourselves that it is arguable.
5.
Article 140 of the Constitution vests this court with the mandate to determine questions relating to the validity of a presidential election. It provides as follows:
“
A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.”
6.
A perusal of the Presidential Election Petition above reveals that it was filed seven months after the declaration of the results of the presidential election.
7.
The question of timelines in the electoral process was addressed in Raila Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) (26 March 2013) (ruling) where we stated:
“
…The parties have a duty to ensure they comply with their respective timelines, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided.”
8.
We also emphasized the importance of adhering to electoral timelines in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Petition No 2B of 2014; [2014] eKLR where we noted:
“
…The constitutional sensitivity about “timelines and timeliness”, was intended to redress this aberration in the democratic process. The country’s electoral cycle is five years. It is now a constitutional imperative that the electorate should know with finality, and within reasonable time, who their representatives are. The people’s will, in the name of which elections are decreed and conducted, should not be held captive to endless litigation.”
9.
Noting that the Constitution sets clear timelines as to when a person can file a presidential election petition, the court is also bound by the same provisions to admit a presidential election petition within the stipulated timeframe. The court can only, therefore, possess the requisite jurisdiction if a presidential election petition is filed within that fixed timeframe. As a consequence, if any presidential election petition is filed outside the stipulated time frame as is in the instant case, then it only follows that the court lacks jurisdiction to entertain the same.
10.
For the foregoing reasons, we must find that we have no jurisdiction to determine the application before us well as the presidential election on which it is predicated, and therefore even as we down our judicial tools, the same must be dismissed and struck out, respectively.
5.
Accordingly, we make the following orders:
a.
The application dated March 13, 2023 is hereby dismissed.
b.
The Presidential Election Petition No E001 of 2023 is hereby struck out for want of jurisdiction.
c.
There shall be no orders as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/46/eng@2023-06-16 |
Petition 33 (E037) of 2022 | WMM v EWG (Petition 33 (E037) of 2022) [2023] KESC 36 (KLR) (16 June 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 16 June 2023 | 2,023 | Nairobi | Civil | WMM v EWG | [2023] KESC 36 (KLR) | null |
A. Introduction
1.
The petition before this court is dated November 23, 2022 and filed on November 24, 2022. The appeal is filed pursuant to the provisions of article 163(4)(a) of the Constitution; section 15A of the Supreme Court Act and rule 39 of the Supreme Court Rules 2020. The appeal challenges the decision of the Court of Appeal (M’inoti, Omondi & Laibuta, JJ A) in Civil Application No E416 of 2021 delivered on November 4, 2022 declining to grant the appellant orders staying execution under rule 5(2)(b) of the Court of Appeal Rules.
B. Background
i. Proceedings at the High Court
2.
The appellant and respondent had cohabited and lived as husband and wife since 2008. The respondent claimed that from the time she started living with the respondent as her husband, she helped the appellant either directly or indirectly to acquire various assets during their cohabitation despite the assets being registered in the respondent’s name. The assets included parcels of land, motor vehicles and developments made on their matrimonial home in Thome (hereinafter referred to as ‘matrimonial properties’). The respondent further claims that she and the appellant were unable to bear a child despite spirited attempts on their part and for that reason, her relationship with the appellant turned sour resulting in the respondent being kicked out of their matrimonial home, eventually resulting in their separation.
3.
Subsequently, the respondent instituted by way of originating summons, proceedings for enforcement of the right to matrimonial home and property in High Court Civil Suit No 1 of 2019 under the provisions of article 28, 29(c) & (f), 40 (1) & (2) and 45(3) of the Constitution; sections 4,6,8,9, 12(2) & (3) and 17 of the Matrimonial Property Act 2013 and other enabling laws seeking various orders inter alia; a temporary injunction restraining the appellant from alienating or interfering with the matrimonial properties pending determination and hearing of the originating summons; a declaration that the matrimonial properties are such properties within the meaning of the Matrimonial Property Act of 2013 and were acquired by the joint funds and efforts of the appellant and respondent; and an order that the said matrimonial properties be valued and sold and the net proceeds be divided equally between the appellant and the respondent.
4.
The respondent then proceeded to file a notice of motion dated October 4, 2019 seeking to amend her originating summons where she sought to include particulars of other immovable properties not listed in her originating summons as well as amendments to the effect that her marriage to the appellant was based on long cohabitation and that she wanted to rely on presumption of marriage in the division of the matrimonial property. The respondent also sought two further declarations; that the appellant and respondent be presumed married between the year 2008 and 2018 and that the marriage between the appellant and respondent be dissolved.
5.
The appellant opposed the application by claiming that the proposed amendments sought to introduce a new cause of action and also ousted the jurisdiction of the High Court to hear and determine the originating summons.
6.
In a ruling dated and delivered on April 30, 2020, the High Court (Muchelule, J (as he then was) exercised his discretion and allowed the notice of motion and in effect, admitted the amended originating summons. The trial judge noted that the practice obtaining is that parties who seek to divorce file a petition before the subordinate court and if they seek a declaration of their interest in any matrimonial property acquired during the marriage and subject to the value of the property, they would file the cause at the High court. He however noted that for purposes of the application for amendment before the court, though it would be desirable for parties seeking the dissolution of marriage to initially file their cause in the subordinate courts, the High Court is nonetheless clothed with unlimited original jurisdiction in criminal and civil cases under article 165(2)(a) of the Constitution and that under section 17(2)(b) of the Matrimonial Property Act, an application or a declaration of rights to any property that is contested between spouses may be made as part of a petition in a matrimonial cause.
7.
The trial judge was also of the view that since the respondent was seeking as part of her prayers, the selling of the matrimonial property and the equal sharing of the proceeds of the sale therefore bringing herself under the provisions of section 7 of the Matrimonial Property Act, then it would be effective and in the interest of justice for all the matters to be dealt with at the High court.
ii. Proceedings in the Court of Appeal
8.
Aggrieved, the appellant moved to the Court of Appeal and filed a notice of appeal expressing their intention to appeal the decision of Muchelule J (as he then was) dated April 30, 2020. It is on the basis of that notice of appeal that the appellant also filed an application under rule 5(2)(b) of the Court of Appeal Rules in Nairobi Civil Application No E416 of 2021 seeking orders to have the proceedings before the High Court in the ruling delivered in Family Suit No 1 0f 2019 (OS) on April 30, 2020 stayed pending the hearing and determination of the intended appeal. The appellant’s intended appeal before the Court of Appeal was anchored on the grounds that the learned judge erred in law and fact by; allowing the respondent’s application and by doing so, usurped the jurisdiction of the Resident Magistrate’s Court in dissolving marriages as expressly conferred by section 2 of the Marriage Act; entertaining the originating summons pursuant to the Matrimonial Property Act despite the fact that no divorce proceedings have been initiated or concluded; and by declaring that the court is clothed with jurisdiction under article 165(2)(a) of the Constitution to determine divorce proceedings notwithstanding that a statute has plainly ousted that jurisdiction and granted it to the Resident Magistrate’s Courts.
9.
In its determination, the Court of Appeal (M’Inoti, Omondi & Laibuta JJA), after considering the grounds of appeal as set out in the appellant’s intended appeal noted that in determining whether the appellant’s application was meritorious, the appellant had to prove that he has an arguable appeal. The appellate court was of the view that the question as to whether the applicant has an arguable appeal turns on the court’s finding on the question of whether the High Court has jurisdiction to hear and determine the respondent’s summons relating to their marital dispute and matrimonial property.
10.
The Court of Appeal, in agreeing with the trial court, held that the High Court has unlimited original jurisdiction under article 165(3)(a) of the Constitution in all matters and that section 66 (2) of the Marriage Act does not override or oust the unlimited jurisdiction of the High Court to hear and determine matters related to the dissolution of marriages. The appellate court therefore noted that in effect, the provisions of article 165(3) of the Constitution supersede the provisions of section 66(2) of the Marriage Act.
11.
It was therefore the appellate court’s finding that since the value of the matrimonial property in issue is claimed to have exceeded the pecuniary jurisdiction of the Magistrate’s Court which is set at Kshs 20 Million for the Chief Magistrate’s Courts and coupled with the unlimited jurisdiction of the High Court, the appellant had failed to prove that he had an arguable appeal with a probability of success.
12.
The Court of Appeal exercised its discretion and declined to issue the orders sought under rule 5(2)(b) of the Court of Appeal Rules on the grounds that the appellant had failed to show that he had an arguable appeal. Having found that there was no arguable appeal, the court found no reason to address the nugatory aspect. The appellant’s notice of motion was therefore dismissed.
iii. Proceedings in the Supreme Court
13.
Aggrieved by the Court of Appeal’s decision, the appellant has filed an appeal before this court laying out two grounds of appeal being:
i)
That the learned judges erred in finding that pursuant to article 165(3) of the Constitution, the High Court’s unlimited and original jurisdiction in civil and criminal matters is only subject to article 165(5) and that article 165(3)(a) supersedes the express limits on jurisdiction on dissolution of marriage in the Marriage Act;
ii)
That the learned judges erred by making conclusive, definitive and/or final findings/pronouncements on the law as regards the jurisdiction of the High Court to hear and determine divorce matters vis a vis the express provisions of the Marriage Act at the interlocutory stage thus preempting the determination of the intended appeal and hence prejudicing the appellant’s right to appeal.
14.
The appellant now seeks the following reliefs:
i)
The ruling and orders of the Court of Appeal delivered on November 4, 2022 be set aside and there be substituted thereof an order allowing Nairobi Civil Application No E416 of 2021 in terms of prayer 2;
ii)
Costs of this appeal be borne by the respondent
iii)
Such consequential or further orders as this honorable court may deem just.
15.
In response to the petition, the respondent filed a replying affidavit dated February 2, 2023 and filed on February 3, 2023. Therein, she opposes the appeal and depones that the notice of appeal is incurably defective for targeting a non-existent decision by quoting the wrong date for the respondent’s application for amendment of her originating summons.
16.
The respondent also depones that the Court of Appeal’s ruling is unassailable, in that the High Court is vested with unlimited jurisdiction under article 165(3)(a) of the Constitution to handle civil and criminal matters; that under section 17(2)(b) of the Matrimonial Property Act, an application for a declaration of rights to any property between spouses may be made as part of a petition in a matrimonial cause and that; considering the value of the properties contested between the appellant and the respondent exceeded Kshs 20 Million, then the High Court is by dint of article 165(3)(a) and section 17(2)(b) of the Matrimonial Property Act, clothed with the jurisdiction to determine the dispute.
17.
In conclusion, the respondent claims that the appellant is asking this court to make a determination on the merits of his intended appeal before the Court of Appeal which would be pre-emptive and embarrass the hearing of the pending appeal by the court. The respondent therefore claims that the appeal lacks merit, is an abuse of the court process, is intended to waste the court’s time and that the same should be dismissed.
| D. Issues for Determination
26.
Flowing from the foregoing, two issues arise for our consideration:
i)
Whether there is a substantive determination of a constitutional question by the Court of Appeal to warrant the invocation of this court’s jurisdiction under article 163(4)(a) of the Constitution and;
ii)
Whether this court has jurisdiction to hear appeals arising from interlocutory orders of the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules.
We shall proceed to address the two issues concurrently.
E. Analysis
27.
The appellant has approached this court under article 163(4)(a) of the Constitution which allows appeals as of right to the Supreme Court in all cases involving interpretation and application of the Constitution. While this court has on numerous occasions made determinations on the extent of its powers under article 163(4)(a) of the Constitution, the question of the extent of this court’s jurisdiction is one we need to address before engaging our minds on the determination of appeals.
28.
The question as to when this court assumes appellate jurisdiction over appeals filed under article 163(4)(a) has been addressed in a number of cases with the court coming up with guiding principles. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; 2012] eKLR we held that
“
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).”
29.
This position was further entrenched in the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR, where we emphasized that:
“
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.”
30.
Further, in Erad Suppliers & General Contractors Ltd vs National Cereals & Produce Board, SC Petition No 5 of 2012 [2012] eKLR this Court held 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.”
31.
From the above decisions, we reiterate that for an appeal to be properly before this court under article 163(4)(a) of the Constitution, the appellant must show how the Court of Appeal disposed of the matter by way of interpreting or applying particular provision[s] of the Constitution. Therefore, the question before us that remains to be decided is whether article 163(4)(a) of the Constitution grants this court jurisdiction to entertain appeals challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules. The appellant admits that though this appeal arises from a determination of an interlocutory application, he argues that the High Court and Court of Appeal made a determination on a constitutional matter and we should therefore seize jurisdiction and determine the merits of his appeal.
32.
In that regard, the appellant argues that the Court of Appeal erred by determining an issue of jurisdiction through an interlocutory application brought under rule 5(2)(b) of the Court of Appeal Rules. The appellant also contends that the appeal lies as of right as the issue for determination is the interpretation of article 165(3)(a) of the Constitution vis-a-vis the application of sections 2 and 66 of the Marriage Act.
33.
The respondent however contests the jurisdiction of this court to determine this appellant’s appeal by urging that the appellant having confirmed that he still has an intended appeal before the Court of Appeal, is still inviting this court to make pronunciations on the merits of that intended appeal which would in effect, be pre- emptive and embarrass the hearing of the intended appeal before the Court of Appeal.
34.
The appellant now seeks this court’s determination on whether the Court of Appeal erred by finding that the High Court had jurisdiction to determine the originating summons filed by the respondent relating to both their marital dispute and matrimonial property and; whether such a finding defeats the intention of the provisions of the Marriage Act on the dissolution of marriages and Matrimonial Property Act on the division of matrimonial property, as both statutes provide for the relevant procedures as well as the courts to adjudicate on such disputes.
35.
We note that the Court of Appeal, in arriving at its decision, considered whether the High Court has jurisdiction to determine the originating summons filed before it by the respondent. The appellate court held;
“To our mind, the High Court’s unlimited original jurisdiction in civil and criminal matters as conferred by article 165(3) (a) is only subject to clause (5). To that extent, section 66(2) of the Marriage Act, 2014 does not override or oust the unlimited original jurisdiction of the High Court to hear and determine matters relating to dissolution of marriages. In effect, the provision of article 165(3) of the Constitution supersedes section 66(2) of the Marriage Act.
To the extent that the value of the matrimonial property in issue is claimed as exceeding the pecuniary jurisdiction of the magistrates’ courts, which is set at Kshs 20,000,000 in the case of Chief Magistrate’s Courts, and coupled with the unlimited jurisdiction of the High Court, we reach the inescapable conclusion that the applicant has no arguable appeal with a probability of success.”
36.
The decision by the Court of Appeal flows from the High Court decision where the trial court, while determining whether it had jurisdiction to determine the filed originating summons held:
“
For the purposes of this application, I consider that, although it is desirable that a party seeking the dissolution of a marriage goes to the subordinate court, this court is under article 165(2)(a) of the Constitution clothed with unlimited original jurisdiction in criminal and civil cases. Under section 17(2) (b) of the Matrimonial Property Act, an application or a declaration of rights to any property that is contested between spouses may be made as part of a petition in a matrimonial cause. And now that the applicant seeks, as part of her prayers, the selling of the property and the equal sharing of the proceeds of such sale, and therefore bringing herself under section 7 of the Matrimonial Property Act, I consider it appropriate and effectual that all these matters be dealt with in this court.”
37.
Flowing from the above, it is not in dispute that the superior courts made determinations on the question of jurisdiction preliminarily. It is this determination that the appellant seeks to convince us to decide on by claiming that such pronouncements shall have a compounding effect that will lead to the High Court determining matters reserved for tribunals and subordinate courts by arrogating itself jurisdiction whereas there are statutes that specifically provide for such jurisdiction.
38.
We note that in its decision, the Court of Appeal considered whether the appellant had an arguable appeal, and in doing so, considered the question of jurisdiction, which was essentially, the appellant’s main ground of appeal in his intended appeal to the Court of Appeal. The learned judges of appeal aptly captured this issue when they stated:
“
On our reading of the grounds on which the applicant’s motion is founded, the draft memorandum of appeal, the affidavit in support thereof, and the written and oral submissions made to us, we are of the considered view that the question as to whether the applicant has an arguable appeal turns on our finding on a single question: whether the High Court has jurisdiction to hear and determine the respondent’s summons relating to their marital dispute and matrimonial property.”
39.
In interpreting whether the appellant’s application had merit, the Court of Appeal was guided by the provisions of rule 5(2)(b) of the Court of Appeal Rules which provides for stay of execution of proceedings pending the determination of a pending appeal or in the appellant’s case, an intended appeal. The Court of Appeal considered that to be successful, an applicant must first show that the intended appeal is arguable and not merely frivolous and that secondly, the intended appeal, if successful, will be rendered nugatory if there is impending execution of/or further proceedings from the impugned judgment. For the court to determine the first limb it must be satisfied, prima facie, that the appeal or intended appeal is arguable. That is precisely the question the court was answering here, without expressing a definitive conclusion. That can only be done in the appeal.
40.
Having so said, it is not in dispute that the appeal before us is an appeal arising from the interlocutory orders of the Court of Appeal issued under rule 5(2)(b) of the Court of Appeal Rules. The nature of appeals arising from orders issued under rule 5(2)(b) applications filed under the Court of Appeal Rules has previously been determined by this court in a number of cases. In Deynes Muriithi v the Law Society of Kenya & another, Civil Application No 12 of 2015, this court held:
“
…the main purpose of rule 5(2)(b) applications, is that the orders issued therein are for preserving the substratum of the appeal. This means that the Court of Appeal, at that stage, has not yet determined and disposed of the appeal; it is yet to set out its reasoning, in interpretation and application of the Constitution. The Appellate Court has yet to determine the main appeal which must have been heard at the High Court, moving on to the Court of Appeal, and then to this court.”
41.
Also in Teachers Service Commission v Kenya National Union of Teachers & 3 others, Sup Ct Civil Application No 16 of 2015, the question before the court was whether article 163(4)(a) of the Constitution grants this court jurisdiction to entertain appeals arising from interlocutory orders of the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules where the exercise of discretion by the Court of Appeal is contested. In finding that we lacked jurisdiction to handle such appeals, we held that:
“
(35)
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…, 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.
(36)
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.” Emphasis ours]
42.
In reiterating the above position, we affirm that the Court of Appeal exercises discretionary powers in issuing orders under rule 5(2)(b) of its rules. In the circumstances, we note that the appeal before us arose from an interlocutory decision of the Court of Appeal challenging the exercise of discretion by the Court of Appeal under rule 5 (2) (b) of that court’s rules meaning that there is no substantive appeal before us. There is also no judgment from the Court of Appeal in which constitutional issues have been analyzed and a determination issued. Indeed, in Basil Criticos v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 22 of 2014 [2015] eKLR while interrogating an appeal against orders by the Court of Appeal denying the extension of time where there was no judgment by the Court of Appeal, we found that:
“
[50]
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? We have no doubt that, had this fact been openly ventilated in Court in the initial application by the applicant, the ex parte order for stay would not have issued from the single-judge bench of this court.” [Emphasis ours]
43.
We reiterated this finding in Clement Kungu Waibara v Annie Wanjiku Kibeh & another, SC Civil Application No 31 of 2020 [2020] eKLR where while answering the question posed on what this court would be sitting on appeal over in the absence of a judgment by the Court of Appeal, we went on to find:
“
(12)
Without a judgment of the Court of Appeal which would then create a finality to contested issues and then point parties to the specific limb in article 163(4) to which our intervention would be required, we cannot see how our jurisdiction under that article can be properly invoked.”
44.
We have restated the law on our jurisdiction elsewhere in this judgment as well as our findings in our decisions on the issue of interlocutory appeals to demonstrate that appeals from rulings of the Court of Appeal under rule 5(2)(b) cannot be disguised as appeals under article 163(4)(a) as such appeals are anchored on intended appeals that are yet to be heard and determined. On this basis, we decline the invitation by the appellant to find that we have jurisdiction to determine this appeal.
45.
Before we conclude, and for clarity, we would like to distinguish this court’s finding on lack of jurisdiction to handle appeals arising from interlocutory decisions of the Court of Appeal where there is no substantive appeal pending before us to that where we have assumed jurisdiction in appeals arising from interlocutory applications originating from the High court, through to the Court of Appeal and finally to this court. Of relevance are our decisions in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR and Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others, SC Application No 10 of 2017; [2018] eKLR.
46.
In the Joho case, the issue for determination before the High Court that was presented by way of an application was on the constitutionality of section 76(1)(a) of the Elections Act in line with article 87(2) of the Constitution where the parties invited the High court to exercise its jurisdiction as conferred by article 165(3)(d)(i) to interpret Constitution and determine the validity of this provision of the the Elections Act. The High Court exercised its jurisdiction and rendered a decision which was then appealed to the Court of Appeal and ultimately, to the Supreme Court. This court therefore made a determination that it had jurisdiction as the appeal emanated from a substantive determination of a constitutional question by the Court of Appeal. This court’s jurisdiction was triggered because the issue in dispute had been canvased right through from the High Court to the Court of Appeal, even though the substantive appeal on the outcome of the election petition was still pending before the Court of Appeal.
47.
In the Bia Tosha decision, we considered the question of whether a determination in an interlocutory application legitimately lies on appeal before this court as of right. The court affirmed that this question was answered in the Joho case hence its holding that an interlocutory application which is determined by the Court of Appeal could properly lay a foundation for an appeal before this court. However, we noted that just like in Joho, the resolution must be of a constitutional issue canvassed before the High Court where a determination is rendered, with the decision being appealed to the Court of Appeal and then finally rising to the Supreme Court.
48.
In conclusion, we find that as long as the twin issues of the monetary value of the properties in dispute and the nature of the relationship between the appellant and respondent were not determined by the two superior courts, the appellant has not properly invoked article 163(4)(a) of the Constitution by purporting to challenge the jurisdiction of the High Court. In the circumstances, no appeal lies before us as of right. Further, as long as the aforesaid issues were not determined by the two superior courts, the submissions by the appellant that there were constitutional determinations by the superior courts are merely preemptive. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/36/eng@2023-06-16 |
Application E005 of 2023 | Cogno Ventures Limited & 4 others v Bia Tosha Distributors Limited & 15 others; Kenya Breweries Limited & 6 others (Interested Parties); Ferran & 24 others (Contemnor) (Application E005, E006 & E012 of 2023 (Consolidated)) [2023] KESC 33 (KLR) (26 May 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 26 May 2023 | 2,023 | Nairobi | Civil | Cogno Ventures Limited & 4 others v Bia Tosha Distributors Limited & 15 others; Kenya Breweries Limited & 6 others (Interested Parties); Ferran & 24 others (Contemnor) | [2023] KESC 33 (KLR) | null | "A. Background
1.
On February 17, 2023, the Supreme Court issued a judgment in Bia Tosha Distributors Limited vs Kenya Breweries Limited & 6 others SC Pet 15 of 2020 in the following terms:
'
(134)
Consequently, upon our conclusion, we order that:
i.
The appeal dated August 20, 2020 be and is herebyallowed;
ii.
The judgment and orders of the Court of Appeal in Civil Appeal No 163 of 2016 delivered on the July 10, 2020 be and are hereby set aside in entirety;
iii.
The High Court orders of June 29, 2016 be and are hereby reinstated and the Court do consider the consequences of any disobedience of those orders;
iv.
The matter be and is hereby remitted to the High Court for disposal of the amended petition dated June 20, 2016 pending before the High Court on priority basis; considering the age of this matter;
v.
Costs in the Court of Appeal and in this court are awarded to the appellant as against the 1st and 2nd respondents.'
The court found merit in the appeal paving way for the resumption of the proceedings that had been instituted before the High Court.
2.
As we perceived it, the dispute emanates from commercial agreements between Bia Tosha Distributors Limited ('Bia Tosha') and Kenya Breweries Limited (KBL) and UDV (Kenya) Limited ('UDV') concerning the distribution of KBL’s products. KBL sought to repossess some of the distribution territories previously granted to Bia Tosha and declined to refund goodwill paid by Bia Tosha, on the ground that the amounts were non-refundable. KBL further appointed other distributors to that distribution territory. In reaction to KBL’s measures, Bia Tosha chose to pursue the constitutional path by instituting a petition before the High Court. It also invoked the Competition Act in so far as it affected the exclusivity of the distributorship arrangement.
3.
What escalated to this court on appeal revolved around conservatory orders granted by the High Court regarding constitutional rights violations within the commercial contracts between the parties.
B The Applications
4.
The judgment by this court gave rise to action both before the High Court and now before us by the main disputants, their representatives and third parties. Three applications have been filed before us. Two of them seek a review of the judgment issued on February 17, 2023 while the third one is for committal for contempt for disobeying the said judgment.
a. Application No E005 of 2023
5.
This is an application by Cogno Ventures Limited ('Cogno') dated February 24, 2023 and filed on February 28, 2023 pursuant to sections 3, 21(2) and 24(1) of the Supreme Court Act and rule 28 (5) of the Supreme Court Rules, 2020. It seeks, inter alia, to review, vary and set aside the judgment made on February 17, 2023. It is supported by a supporting affidavit and further affidavit sworn on February 24, 2023 and March 6, 2023 respectively by Shadrack Onyango Oriah; and written submissions dated February 24, 2023 and filed on February 28, 2023;
6.
Cogno faults this court for failing to take into account that the distribution agreements as at February 2, 2006 between Bia Tosha and KBL did not confer exclusive control to Bia Tosha to distribute and sell KBL’s products in the prescribed routes; that the order affects other distributors like the applicant who have non-exclusive distribution agreements with KBL and UDV, to distribute and sell their products on some routes shared with Bia Tosha; and that it stands to suffer enormous loss and damage at an interlocutory stage since the Amended Petition before the High Court is yet to be heard on merit. Besides, that the provisions of section 21(3) of the Competition Act prohibits restrictive trade practices. Thus, there is sufficient grounds for this court to invoke its inherent power and review its orders based on its guiding principles laid down in Parliamentary Service Commission v Martin Wambora & others SC Application No 8 of 2017 [2018] eKLR;
7.
In response, Bia Tosha filed a notice of preliminary objection dated March 3, 2023 and filed on March 6, 2023; additional notice of preliminary objection dated March 4, 2023 and filed on March 6, 2023; replying affidavit sworn by Anne – Marie Burugu on March 3, 2023 and filed on March 6, 2023; and written submissions dated March 3, 2023 and filed on March 6, 2023. Bia Tosha urges that the review application be struck out in limine given that the applicant has approached the High Court and this court seeking conflicting orders that resulted in the High Court injuncting the recognition and application of this court’s judgment. Furthermore, that since Cogno’s submissions were expunged by this court at the hearing of the appeal on May 17, 2022, it was barred from referring to this court; hence, this is a backdoor entry to this court by reproducing applications which KBL and UDV respondents have filed before the High Court to circumvent this court’s Orders that deny the said respondents audience until they purge their contempt before the High Court; that the application is a defiance of this court’s judgment which compounds the disobedience of the orders of this court;
8.
Bia Tosha further argues that Cogno has no legal standing because it was not in existence when the cause of action arose; that Cogno is not a competitor of Bia Tosha or the other distributors of KBL and UDV given that distributors of KBL and UDV do not compete with each other. Accordingly, the application fails the test in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition No 6 of 2014; [2017] eKLR and ought to be dismissed with costs;
9.
KBL, East African Breweries PLC ('EABL') and Diageo PLC ('Diageo') filed a replying affidavit sworn on March 3, 2023 by Nadida Rowlands affirming that KBL did not issue exclusive contracts on any of the routes and more than one distributor could be appointed to serve specific routes; that the KBL was specifically warned by the Competition Authority of Kenya against contracting with exclusivity clauses; and that Cogno and Bia Tosha have over the years been operating as distributors of the KBL on these routes.
10.
UDV filed a replying affidavit sworn on March 3, 2023 by Karen Mate- Gitonga confirming averments made in the applicant’s supporting affidavit with regard to the distribution agreement between UDV and the applicant. It asserts that UDV only filed an application before the High Court in compliance with the directive issued by this court to purge the contempt before they are allowed audience before this court;
11.
Kamahuha Limited’s ('Kamahuha') written submissions dated March 3, 2023 and filed on March 6, 2023 in opposing the application, argue that only KBL and UDV could possibly be aggrieved and thus gain from a review. That filing the application on behalf of the said respondents, amounts to abuse of the court process; that even if the merits of the application were to be addressed, the application has not met the exceptional five circumstances elucidated by this court in the Fredrick Otieno Outa case; that it is not for this court to delve into the minutiae of evidence as to the factual position obtaining either on February 2, 2006 or any other period prior to the grant of Onguto J’s order. Hence, the application should be dismissed with costs;
12.
Four Winds Trading Company Limited ('Four Winds') grounds of opposition dated March 2, 2023 and filed on March 6, 2023 and written submissions dated March 2, 2023 and filed on March 6, 2023 argue that the application is brought in bad faith and is an abuse of the court process as the application falls outside the exceptional circumstances set out in the Fredrick Otieno Outa case (supra). That the grounds of review raised are disguised to have this court sit on appeal over its own judgment and re-litigate the appeal;
b. Application No E006 of 2023
13.
This is an application by Andrew Kilonzo, Jane Karuku and Andrew Cowan (hereinafter the applicants) dated February 27, 2023 and filed on March 2, 2023 pursuant to articles 10(1), 50(1) & (2), 159(2)(d) & (e), 163(3)(b), (4) and (7) and 259(1)(a)(b) and (c) of the Constitution of Kenya 2010, sections 3(a)(b) and (e), 3A, 21A, 20(4) and 23A of the Supreme Court Act, 2011; and rules 3, 31 and 32 of the Supreme Court Rules, 2020. It also seeks to review and set aside the orders of this court’s judgement delivered on February 17, 2023. The application is supported by the supporting affidavit and supplementary affidavit sworn on February 27, 2023 and March 8, 2023 respectively by Andrew Kilonzo; written submissions dated February 27, 2023 and supplementary submissions dated March 9, 2023.
14.
The applicants contend that there is non-disclosure and misrepresentation of facts on the part of the respondent who did not serve the applicants with contempt applications filed at the High Court and Court of Appeal, the orders alleged to have been disobeyed, notice of penal consequences or the petition and pleadings filed before this court. That this is evidenced through the difficulty occasioned on the respondent who sought substituted service by advertisement to serve two of the applicants and non-service of the applicants has been raised at the High Court by some parties and the respondent is yet to respond to the same. That it is this concealment that led to this court in, its judgment at paragraphs 128 and 129, finding KBL and UDV in contempt of orders issued by the High Court on June 29, 2016; and at paragraphs 130 and 131 found the contempt suitable for punishment on a priority basis to be assessed by the High Court. That even though the KBL, UDV, EABL & Diageo herein are the respondents in the contempt application pending before the High Court, the respondent has sought an order for the committal of the applicants to civil jail for six (6) months.
15.
The applicants contend that if this information was available to this court then it would not have arrived at the findings it did. Subsequently, that this court considered a weighty issue with far reaching ramifications without full facts denying the applicants their inalienable right to a fair hearing as guaranteed under article 50 of the Constitution of Kenya, 2010. Therefore, the circumstances of this application are so grave and exceptional that a review is necessary to meet the ends of justice. They cite this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (Application) No 4 of 2012 and Fredrick Otieno Outa case (supra).
16.
Bia Tosha filed a notice of preliminary objection dated March 5, 2023 and filed on March 6, 2023; replying affidavit sworn on March 5, 2023 and filed on March 7, 2023 and written submissions dated and filed on March 6, 2023. It opposes the application arguing that there is no jurisdiction to entertain the application since it is brought in defiance of an existing order barring the applicants approaching this court without first purging their contempt; that KBL and UDV having been found guilty of contempt necessarily means that its officers are equally guilty of contempt; therefore, the two companies cannot purport to circumvent their conviction by propping up its senior officers as parties in an application to gain audience before this court.
17.
Bia Tosha asserts that this court’s judgment is plainly clear that it the KBL and UDV parties for disobeying the Court of Appeal status quo order of August 11, 2016; that it did not convict the applicants for their disobedience of the High Court order of June 29, 2016, the applicants have failed to disclose to the court the existence of stay of those contempt proceedings which this court directed the matter be heard, determined and punishment issued against the contemnors. Alternatively, that the applicants having authorized Nadida Rowlands at the Court of Appeal to seek stay of the contempt proceedings which were about to commence before the High Court illustrates that they were aware of the contents of the order;
18.
Further, that the misrepresentation of this court’s judgment is mischievous as it has resulted in Diageo applicants (KBL, UDV, EABL and Diageo) filing applications at the High Court seeking interpretation of this court’s judgment; that similarly, in two matters, they acquiesced to the grant of orders at the High Court compelling them to continue trading with third parties against the judgment of this court; that there is a direct bar against the applicants approaching any court on this matter without first purging their contempt.
19.
Moreover, that in a suit filed by the respondent against Waweru Gatonye, SC, who was their previous lead counsel being defended by the firm of Njoroge Regeru Advocates, who are the applicants advocates herein, amounts to conspiracy to pervert the course of justice given that Waweru Gatonye, SC, would need to share all the relevant confidential information with his lawyers; that this will affect the right of the respondent to receive a fair hearing; and that all things considered the standard of review is not satisfied to demonstrate exceptional circumstances to warrant this court to interrogate its judgment.
20.
KBL, EABL and Diageo’s replying affidavit sworn on March 5, 2023, filed on March 7, 2023 by Nadida Rowlands avers that from the chronology of this matter, the order for stay of the first contempt application filed at the High Court was made by the Court of Appeal on November 9, 2016 which is still in force; that this has resulted in there being two conflicting decisions, one by the Court of Appeal staying the first contempt application and the other by this court directing the High Court to proceed to deal with the same first contempt application; that since advocates did not make any submissions on the merits and or demerits of the two contempt applications when this court heard Petition No 15 of 2020, KBL did not have an opportunity to inform the court of the status of the first contempt application and granted stay; and there is need to safeguard the right to be heard.
21.
UDV’s replying affidavit sworn on March 3, 2023 by Karen Mate– Gitonga argues that since both applications for contempt before the High Court and Court of Appeal were not heard at the time this court was delivering its judgment on February 17, 2023; this court’s holding UDV and Cogno in contempt of court was arrived at from the documents on record without recourse to the parties; as a result, UDV should be allowed to preserve the applicants’ rights under article 50 of the Constitution.
22.
Cogno’s written submissions dated March 4, 2023 and filed on March 14, 2023 support the application. They affirm the grounds raised by the applicants as sufficient for this court to invoke its inherent power and review its judgment since the applicants were not accorded a fair hearing under article 50 of the Constitution. They rely on this court’s decisions in the Fredrick Otieno Outa case, Parliamentary Service Commission Case and the Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly & 10 others) SC Application No 4 (E010) of 2022 (Unreported to support its submissions.
23.
Kamahuha opposes the application through its written submissions dated March 6, 2023 and filed on March 7, 2023. It argues that this court has no jurisdiction under section 21A of the Supreme Court Act or at all as this issue has not percolated through the judicial hierarchy; and given that the High Court has not expressed itself on the merits of the Bia Tosha’s application pending before it, any comment or determination will prejudice the just and fair resolution of those pending applications by the High Court;
24.
Four Winds filed grounds of opposition and written submissions both dated March 5, 2023 and filed on March 7, 2023. It contends that the applicants have failed to establish any exceptional circumstances that would warrant this court to review its judgement as was set in the Fredrick Otieno Outa case; that the applicants hold senior positions in the 4th and 5th interested party companies or companies affiliated with the EABL who have always been represented in these proceedings and, therefore, information has always been available to them. Further, that they authorized an official of the KBL and UDV to respond to the contempt application dated August 23, 2016 on their behalf. Relying on the Court of Appeal decision in Shimmers Plaza Limited v National Bank of Kenya [2015] eKLR Four Winds states that jurisprudence has developed beyond necessity of personal service of penal notices and orders to knowledge of the orders. And that the applicants must have been aware of the contempt proceedings.
" | C. Determination
36.
The centrality of the judgment of this court made on February 17, 2023 has necessitated a consolidated determination of these three applications. From our perusal of the applications and the positions adopted by the parties, we can sum up the issues arising for our disposal as follows:
a.
The competency of the respective applications;
b.
Whether to review, vary and /or set aside our judgment made on February 17, 2023 and if so in what manner;
c.
Whether the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents/contemnors are in contempt of the judgment and order of this honourable court dated February 17, 2023 and if so the appropriate punishment and /or consequences for such contempt;
d.
Whether to strike out Nairobi High Court Civil Suit No Comm Misc E127 of 2023 – Ngong Matanyok Wholesalers Limited & another v Kenya Breweries Limited & another and Nairobi High Court Civil Suit No Comm E075 of 2023 – Tony West & another Limited & Another vs Kenya Breweries Limited & another;
37.
Before delving into the identified issues, we note that there was a prayer in Application No E012 of 2023 seeking stay of Application Nos E005 and E006 of 2023 pending the determination of the said Application No 12 of 2023. However, preliminary objections have also been raised challenging the sustainability of Application No E012 of 2023. As already noted, the manner in which the court has opted to dispose the applications and the attendant need for prudent use of judicial time and resources, this prayer is best subsumed in the substantive determination. In the same manner, the preliminary objections raised in each of the applications are addressed in the course of disposal of the respective issues.
38.
It emerges that the parties either misunderstood our judgment rendered on February 17, 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. In doing so, we echo our determination in the ruling rendered on October 17, 2017 in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another SC Election Petition No 1 of 2017; [2017] eKLR where we stated as follows:
'
(58)
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.'
40.
Similarly, in John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others SC Petitions Nos 2 and 4 of 2017; [2017] eKLR, we found it necessary to clarify certain aspects of our judgment by stating as follows:
'[266] These two paragraphs have assumed judicial prominence since the nullification of the Presidential election of August 8, 2017 by this court. Not only have they been subject to contradictory interpretations by parties to the petitions before us, they have also elicited varying 'expert' comment from many quarters.'
41.
The apparent point of misunderstanding of our judgment is the import of paragraphs 128 to 131 and in particular, the finding of contempt and the consequences thereof. For context, the appeal before us was against the decision of the Court of Appeal, not a direct appeal against the High Court ruling. Part of the grounds of appeal, which we eventually agreed on with Bia Tosha was that the application for contempt of the status quo orders was undetermined by the Court of Appeal. It is this contempt application that we proceeded to determine. In doing so, we, however, appreciated that this is a factual contest and that no responses were filed or considered by the Court of Appeal, as the application was neither heard nor determined, the court opting, instead, to deal with the merits of the appeal. We were limited to what was before us, cautioning ourselves that the main dispute among the parties was still live at the High Court. At the same time, it was not lost to us that there was a contempt application pending before the High Court in which responses had been filed. We stated as much.
42.
In our judgment, we were emphatic that the place of contempt proceedings in the administration of justice cannot be downplayed. It is on this basis that we remitted the matter back to the High Court which is seized of the issue to contemporaneously address the contempt application on merit, in view of our findings on contempt. We left it to the High Court, to, not only establish what the status quo was but also punish for contempt, and expect the same to be purged before the contemnors could be allowed audience, in the event that the High Court was satisfied of the nature and extent of the contempt. A perusal of the final orders issued reminisces our deliberate intention to allow the High Court the liberty to address any disobedience, without falling into the same error as the Court of Appeal, of procrastinating such a serious matter of disobedience of court orders. We therefore see no reason to infringe, at this stage, on the High Court’s jurisdiction to competently address the issues before it.
43.
With the backdrop of the above position, we now proceed to address the issues as we framed them.
Competency of the respective applications.
44.
Each of the applications filed has come under attack on the dual issues of competency and on the merits. It is therefore incumbent upon us to determine whether each of the applications can surmount the respective challenges.
45.
In regard to Application No E005 of 2023 – Cogno Ventures Limited v Bia Tosha Distributors Limited & 6 others and Application No E006 of 2023– Andrew Kilonzo & 2 others vs Bia Tosha Distributors & 7 Interested Parties, the main argument proffered for their striking out is that the applicants are in contempt of this court’s proceedings and ought to purge their contempt before being granted audience. In addition, Bia Tosha urges that since the submissions by Cogno were struck out at the hearing, it no longer enjoys standing before court. Additionally, that Andrew Kilonzo, Jane Karuku and Andrew Cowan, having not been direct parties to the matter and the appeal before the Supreme Court lack standing to file an application.
46.
In Application No E005 of 2023, Cogno is a party having joined before the High Court as an interested party. In Petition No 15 of 2020, Cogno was a substantive respondent who had participated in the appeal, save for late filing of submissions which prompted our striking their submissions out of the record. We did not strike out Cogno as a party to the appeal. It is therefore within its liberties to invoke this court’s jurisdiction to seek review. However, we note that it has instead invoked sections 3, 21(2) and 24(1) of the Supreme Court Act and rule 28(5) which do not readily come to its aid.
47.
Section 3 of the Supreme Court Act sets out the objective of the court and cannot, on its own, form the basis of invoking our jurisdiction. Our jurisdiction is operationalized by a substantive provision. Section 21(2) of the Supreme Court Act grants general powers in any proceedings to make any ancillary or interlocutory orders, including any orders as to costs that it thinks fit to award. Section 24 of the Supreme Court Act on the other hand deals with interlocutory directions. It is therefore surprising that the applicant has not invoked the appropriate statutory provisions in seeking to review the court’s decision.
48.
Having said that, it matters not in our considered view, whether the application was brought by Cogno or by EABL or KBL. The application for review is to be considered on its merits once filed by a party to the decision sought to be reviewed.
49.
Turning to Application No E006 of 2023, brought by Andrew Kilonzo, Jane Karuku and Andrew Cowan, it is a no brainer that they were not parties to the Petition No 15 of 2020 or the resulting judgment sought to be reviewed. To the extent that they have, inter alia, sought a review of our decision under section 21A of the Supreme Court Act, it behoves us to satisfy ourselves as to their capacity to file the application. Section 21A provides:
'
21A. Review of own decision
The Supreme Court may review its own decision, either on its own motion, or upon application by a party in any of the following circumstances.'
50.
The word 'a party' for purposes of an appeal to the Supreme Court presupposes one whose locus standi is not in issue, either as an appellant, respondent, interested party or amicus curiae. In the circumstances, the standing of the three individuals, appearing individually, regardless of their status in any of the corporate litigants in the proceedings before us is something that can only be addressed in a substantive suit and not through an application of this nature. In saying so, we echo the position taken by Lenaola SCJ in Kanjama v Attorney General & 82 others Petition E017 of 2021) [2022] KESC 11 (KLR) (19 May 2022) (Ruling as follows:
'
(3)
b.
The applicant is also seeking a determination of issues regarding who may file an appeal to this court generally and the issue of whether the Deputy Registrar should always communicate reasons for rejecting an appeal and how that communication should be made. It is my finding that such matters relate to substantive issues which cannot be decided in an otherwise straight forward interlocutory application seeking an order of review.'
It matters not, in our view, that they consider themselves personally affected by the decision or that they are principals of any of the corporate parties before us.
51.
Application No E012 of 2023 by Bia Tosha is also under challenge. Like Cogno, they are entitled to approach this court, having been parties to the appeal that resulted in the judgment that it now seeks to have the court mete out punishment for disobedience of by way of contempt of court proceedings. However, the extent of what they can seek before the court under the circumstance can only be addressed when dealing with the specific prayers sought in their application. We note that Bia Tosha in this application primarily seeks to enforce this court’s orders, something that we shall address at the opportune moment.
52.
It has also not escaped our attention that the matter before us in Petition No 15 of 2020 had a total of eight litigants. This application has dropped two of the litigants namely Kamahuha and Four Winds by unilaterally relegating them to interested parties and at the same time expanded the respondents to twelve by introducing Matonyok, Manara Limited, Tony West Limited, Outlook, Jane Karuku, Andrew Kilonzo and Andrew Cowan as respondents/ contemnors. It has gone further to introduce twenty-five individuals who are termed as contemnors. This restructuring of litigants, in our view, stands on all fours with what Bia Tosha complained of against Application No E006 of 2023. Introducing parties to this court at the first instance in an application of this nature is untenable in law.
53.
On the basis of the correct parties to the respective applications as permitted under our rules, only Application No E005 of 2023 meets the threshold. Application No E006 of 2023 has to be and is hereby struck out. Similarly, Application No E012 of 2023 is struck out to the extent that the parties introduced for the first time through the application have to be and are hereby struck out. All the pleadings filed by and on behalf of such parties that have been struck out from the proceedings have to suffer the same fate and are hereby struck out. Only the original litigants can process the application.
Whether to strike out Nairobi High Court Civil Suit No Comm Misc E127 of 2023 – Ngong Matanyok Wholesalers Limited & another v Kenya Breweries Limited & another and Nairobi High Court Civil Suit No Comm E075 of 2023 – Tony West & another Limited & another vs Kenya Breweries Limited & another
54.
The main grievance by Bia Tosha in this regard is that the said suits before the High Court are premised on contract allegedly granted to the plaintiffs therein in contravention of the Court of Appeal status quo order and the reinstated High Court order of June 29, 2016. Further, that the said suits purport to supervise the jurisdiction and judgment of the Supreme Court of Kenya herein, and violate the provisions of article 163(7) of the Constitution of Kenya, 2010 on the binding nature of the decisions of the Supreme Court to the lower courts. It is faulted by the 8th and 9th respondents who have raised an objection on the grounds that the High Court cannot concurrently be seized of the same matter for the applicant who seeks to join proceedings in Civil Suit No E075 of 2023; Tony West Limited & another v Kenya Breweries Ltd & another seeking the High Court to discharge its orders issued on March 6, 2023 while in this application the applicant seeks this court to strike out the High Court orders.
55.
In view of our finding by which we struck out all the parties that were not part of Petition No 15 of 2020, the prayer to strike out High Court proceedings remains superfluous. In any event, this court is not seized of matters that are pending before the High Court, another competent forum under our constitutional architecture. This being an appellate apex court, such decisions of superior courts below can only ascend through the litigation hierarchy to this court subject to satisfying our narrow jurisdictional threshold and not in the manner proposed by the applicant. We think we have said enough on this issue.
c.
Whether to review, vary and/or set aside our judgment made on February 17, 2023 and if so in what manner
56.
The authority of this court to review its own decision was set out in Fredrick Otieno Outa case wherein, we found that as a general rule, this court has neither jurisdiction to sit on appeal over its own decisions nor to review its decisions other than in the manner enunciated therein. This is now codified by section 21A of the Supreme Court Act. The circumstances under which this court may review its own decision, either on its own motion, or upon application by a party accrues in any of the following conditions, that is where:
a.
The judgment, ruling or order is obtained through 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 the belief that the parties have consented; and
d.
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.
57.
Based on our earlier finding hereinabove, we are only left with the review prayer in Application No E005 of 2023. The applicant’s ground for the application is that this court fell into error in failing to consider other distribution agreements entered into by the 2nd and 3rd respondents when reinstating the status quo orders of June 29, 2016.
58.
At the onset, the applicant seeks that we 'review, vary and set aside the judgment', without proposing the exact nature and extent of review, variation or setting aside of our judgment of February 17, 2023. With respect to Cogno, this court did not make any new orders in regard to the High Court ones of June 29, 2016 beyond what had been issued by the High Court, the basis for the appeal. The only logical consequence upon setting aside the Court of Appeal judgment was to reinstate the orders as had been issued by the High Court, which we did and no more. The said orders issued by the High Court were made following inter partes hearing in which Cogno had participated as an interested party.
59.
The applicant does not point us to the specific conditions enumerated under section 21A of the Supreme Court Act upon which it grounds its application. As rightly noted, the amended petition before the High Court is still pending. The issues of non-exclusive distribution agreements and restrictive trade practices under section 21(3) of the Competition Act or whatever else is pending thereat are things that can only be articulated at the High Court, for a determination based on a factual contest and evidence. These issues were not before us on appeal as we were constricted in determining whether the dispute, based on the conservatory orders issued by the High Court, should be determined by the High Court as the constitutional court or by an Arbitrator as a commercial contract.
60.
A cursory perusal of the orders of the High Court, now reinstated, reveals that any and all contested issues of exclusivity are the purview of the High Court where the matter still pending in a full hearing. We perceive Cogno’s argument to be an invitation to revisit a highly contested factual finding as to the position obtaining at the time of issuance of the High Court orders. We have to decline that invitation at the earliest as it would result in our exercising a jurisdiction we lack, that to appeal or relitigate the questions which this court has settled with finality. (see Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others (applicants’)Application 7 (E013) of 2022) [2023] KESC 1 (KLR) (January 18, 2023) (Ruling) .
61.
It has not been demonstrated by the applicant to our satisfaction that the impugned ruling was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its ruling on review under a mistaken belief that the parties had consented. The application fails the dictates of section 21A and the principles in Fredrick Otieno Outa case and is ripe for dismissal.
62.
We are also not available to address ourselves to the potential conflicting orders as urged by Bia Tosha. We can only determine what is before us and the parties are at liberty to pursue their rights before the High Court to avert any arising conflicting decisions, as it deals with the factual contests.
d)
Whether the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents/contemnors are in contempt of the judgment and order of this honourable court dated February 17, 2023 and if so the appropriate punishment and /or consequences for such conviction
63.
The 6th to 9th respondents having been struck out from the proceedings, leaves the consideration of the prayers against the 1st to 5th respondents. The application is based on section 28(4) and (6) of the Supreme Court Act. Section 28(4) of the Act grants this court the power and authority similar to that bestowed upon the High Court, to punish for contempt. The competence of this court to punish for contempt was affirmed in our ruling made on March 15, 2019 in Republic v Ahmad Abolfathi Mohammed & another SC Petition No 39 of 2018; [2019] eKLR as follows:
'
(27)
We have taken note that the functioning of the reparatory aspect of the Contempt of Court Act (s 24A), at the moment, and with regard to the operations of the High Court and the Court of Appeal, admits of uncertainty quite apart from the fact that we are not applying them here but we affirm such not to be the case as regards the Supreme Court’s competence, which is founded upon the Supreme Court Act, 2011 (Act No 7 of 2011), Section 28(1), (3), (4) and (5).'
64.
The starting point is to first determine whether there was contempt of our court orders. Our final orders were very specific in so far as we remitted the matter back to the High Court which was directed to deal with consequences of any disobedience of the orders. To rehash, we directed that:
'(iv). The High Court orders of June 29, 2016 be and are hereby reinstated and the court do consider the consequences of any disobedience of those orders.'
In reinstating the orders of June 29, 2016, we were mindful that the High Court contempt application is still pending determination and it is only proper that it be allowed to proceed with it to its logical conclusion. The allegations of non- disclosure, concealment and misrepresentation of facts is best dealt with by the High Court in line with the directive of this court as it is a question of fact and evidence.
65.
Our above order was informed by various factors. The first and paramount consideration was that, our judgment was final and not in the nature of a structural interdict. This is to say, once we delivered the judgment, we became functus officio and nothing was expected of us in terms of supervised compliance with any of the orders. Secondly, we invoked section 22 of the Supreme Court Act to remit the proceedings to the High Court which has jurisdiction to deal with the matter. As already noted in section 28 of the Supreme Court Act, the High Court has similar powers to those of this court to deal with the issue of contempt including punishment. Thirdly, we held that this court does not have supervisory jurisdiction over subordinate courts below. In our words:
'
(79)
This is because, unlike the High Court which has express supervisory jurisdiction over the subordinate courts, we do not, under the existing constitutional structure, enjoy similar powers over other superior courts. This is notwithstanding the apex nature that the court is placed under the Constitution and our decisions being binding under the doctrine of stare decisis.'
Finally, but importantly, the decisions of this court are enforced by the High Court. Section 27 of the Supreme Court Act provides:
'
27.
Decisions of the court may be enforced by the High Court.
A judgment, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court.The Supreme Court may also, under section 22 of the Supreme Court Act, remit proceedings that began in a court or tribunal to any court that has jurisdiction to deal with the matter.'
In this regard, it is not the first time that the High Court is being called upon to enforce the orders of this court. In David Pkosing v National Super Alliance & 13 others [2017] eKLR, Mwita J stated:
'55. I must admit however, that this court has power to enforce decisions of the Supreme Court. Section 27 of the Supreme Court Act (No 7) of 2011 provides that a judgment, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court. For this to happen, there must be a judgment or decree capable of being enforced if this court were to call into operation section 27 of the Supreme Court Act.'
In John Harun Mwau case (supra) we also noted an instance where we had declined to assume jurisdiction over a matter relating to our earlier judgment in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others(JudgmentPetition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (April 16, 2013) . We observed:
'
(193)
This court declined to hear the matter on the basis that it had no jurisdiction, directing the deponent to the High Court. In the High Court, Mativo J rendered a decision in Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others [2017] eKLR, the effect of which was to order the inclusion of the deponent, as well as all the candidates who had participated in the August 8, 2017 elections, if they had not formally withdrawn.'
66.
In our view, the applicant is not seeking a review of our decision but rather, attempting to enforce our orders as it understood them. This is untenable. Our jurisdiction over such a matter can only arise in the course of proceedings before judgment is issued. In this instance, the matter is already concluded and any attempt to argue the present application can only be through a separate appeal being presented before us, taking into account our jurisdiction and other imponderables. This, just like in the David Pkosing case (supra) is not the case for our assumption of jurisdiction, more so, not in a manner where the non-compliance remains highly disputed.
67.
Furthermore, a finding that results in the potential deprivation of personal liberty by way of civil jail should leave the parties with an avenue for appeal in the event either of them is dissatisfied. Undertaking such an exercise at the appellate and final stage of the litigation process before the apex court does not augur well for the right to access justice including, exhaustion of appellate mechanisms. For these reasons, this application should, for this reason, fail and it so fails.
68.
The award of costs is discretionary. As determined by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR, costs follow the event. However, since the substantive matter is still live before the High Court, we order that costs shall abide the outcome of the proceedings now pending before the High Court.
69.
In the result, and having remitted the dispute to the High Court, we reiterate that the parties are at liberty to raise all their issues for determination by the High Court, which is competently seized of the dispute. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/33/eng@2023-05-26 |
Petition 17 (E021) of 2022 | Mohammed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) v Rai Plywood (K) Limited & 5 others (Petition 17 (E021) of 2022) [2023] KESC 34 (KLR) (26 May 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim | 26 May 2023 | 2,023 | Nairobi | Civil | Mohammed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) v Rai Plywood (K) Limited & 5 others | [2023] KESC 34 (KLR) | null | Brief facts
The instant matter emanated from two interrelated appeals in which the Deputy Registrar of the Supreme Court had directed the parties to file submissions. The 3rd respondent contended that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application to adduce more evidence. Subsequently the Deputy Registrar barred the 3rd respondent from filing submissions. Aggrieved the 3rd respondent filed the instant application to review and discharge the decision of the Supreme Court Registrar requiring the filing of submissions.
Issues
What considerations should a court’s registrar make in imposing sanctions against a party who failed to comply with the registrar’s directions?
Whether the actions of the 3rd respondent to not file submissions in compliance with the registrar’s directions on grounds that they had sought leave to file an application to adduce more evidence that would be relevant in the submissions was contemptuous.
| Upon perusing the notice of motion by the 3rd respondent dated January 27, 2023 and filed on February 3, 2023, anchored on section 31, 32, 33 of the Supreme Court (General) Practice Directions, 2020 as read together with rules 6 (2), (3), 31 & 32 of the Supreme Court Rules, 2020 seeking the following orders:
a.
The court be pleased to review and discharge the decision of the Honorable Registrar issued on January 13, 2023 barring the 3rd respondent/ applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.
b.
The 3rd respondent/applicant be allowed to file submissions in the two interrelated appeal both emanating from the impugned judgement of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.
c.
The costs of the application be in the cause.
2.
Upon considering the grounds on the face of the application and the supporting affidavit sworn on January 24, 2023 by David K Chelugui, the legal representative of the estate of the 3rd respondent, contending that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application dated January 13, 2023 seeking to adduce further evidence before filing submissions, which needed to be determined first. Further, that despite that clarification, the Hon Deputy Registrar barred them from filing their submission in the two interrelated appeals; that this was despite the Hon Deputy Registrar giving directions for the disposal of their application dated January 13, 2023 seeking to adduce additional evidence, which outcome would affect their submissions; that the Hon. Deputy Registrar’s decision subverts the 3rd respondents’ right to fair hearing enshrined in article 50(1) of the Constitution, their equality before the law under article 27 of the Constitution and breaches the court’s duty to among other things protect and promote the rights of every party before it pursuant to article 21 of the Constitution. Additionally, that the 3rd respondent is a key party to the proceedings, defending its right to property with about one billion Kenya Shillings at stake, thus barring them from filing submissions would result in an unfair and unjust determination of the appeals; and
3.
Upon perusing the 3rd respondent’s written submissions dated January 27, 2023 and filed on February 3, 2023 wherein in addition to the grounds in the application, it is contended that the decision of the Hon Deputy Registrar barring the 3rd respondent from filing submissions would be to give all of its opponents a platform while denying them a chance to present their side of the story; that the non-compliance was not out of negligence, ignorance or disobedience, rather abundant caution to adduce additional evidence that would fortify the 3rd respondent’s position that the decisions of the lower courts were correct. They rely on the decisions in Judicial Service Commission v Gladys Boss Shollei & Another Civil Appeal No 50 of 2014; [2014] eKLR, Justice Amraphael Mbogholi Msagha v Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No 1062 of 2004; [2006] eKLR, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR, to urge that the decision by the Deputy Registrar goes against the principles of natural justice, violate the 3rd respondent’s right to fair hearing as enshrined under article 50 (1), as well as violate their right to access justice pursuant to article 48 and the right to equal benefit of the law as espoused under article 27 (1). They cite Okiya Omtatah Okoiti v Attorney General & Another, SC Application No 1 of 2019; [2019] eKLR to urge the need for judicial officers to ensure due process of the law is followed while having due regard for the affected parties’ interests and consequences of their decisions.
4.
Upon considering the petitioner’s replying affidavit dated February 10, 2023 sworn by the petitioner averring that from the chronology of the events, the same demonstrated that the 3rd respondent not only chose to disrespect this court but also willfully disobeyed the orders and directions of the court; that the filing of the application to adduce additional evidence did not vary or defeat the mandatory orders of this court concerning the filing of written submissions; that the 3rd respondent invokes the constitutional safeguards on fair trial but he conveniently ignores the fundamental obligation of every party to aid in the dispensation of justice by complying with the orders and directions issued by the court in furtherance of an expeditious disposal of matters; and that the use of coarse language and choice epithets hurled at the Deputy Registrar for performing the judicial duties not only threatened the integrity and judicial authority of this apex court but also engenders the malaise of anarchy and brazen impunity in the administration of justice.
5.
Upon perusing the petitioner’s written submissions dated February 10, 2023 and filed on February 15, 2023 wherein relying on the Supreme Court of India in TN Godavarman Thirumulpad via the Amicus Curiae v Ashok Khot & Ane AIR 2006 SC 2007 and Wildlife Lodges Ltd v County Council of Narok & Anor [2005] 2 EA 344 (HCK) it is urged that compliance with court orders is not a discretional matter, neither is it a favour to be doled out to the Judiciary; rather, it is a crucial matter of constitutional and civic obligation. Further, that this court’s discretion should be exercised judiciously and cannot avail when a party is contumeliously acting in defiance and that the circumstances of the Okiya Omtatah Okoiti case (supra) are entirely different from those of the present case submitting that the Deputy Registrar’s decision in this instant case cannot be said to be unreasonable and arbitrary.
6.
The 1st respondent resolved to resonate with the reply and submissions made by the petitioner. the 4th to 6th respondents never made any response to the application.
I now pronounce as follows, bearing in mind all these submissions:
7.
Appreciating the role of a Registrar to impose sanctions or orders costs against a party who fails to comply with the directions of the court pursuant to section 10 of the Supreme Court Act and rule 6(1)(c) of the Supreme Court Rules, 2020 and this court’s authority to review the decision of the Registrar under section 11 of the Supreme Court Act as read with rule 6(2) of the Supreme Court Rules 2020.
8.
Restating the principles in Okiya Omtatah Okoiti (supra) where this court expressed itself that prudence and precaution must be observed to ensure that the reasons proffered by the Deputy Registrar would clearly and specifically distinguish a decision on the merits of the pleadings as opposed to mere administrative action. A decision in which the law and rules are merely restated without justification may result in injustice.
9.
Similarly, restating this court’s decision in Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) while addressing itself on discretion to extend timelines stated:
“
It may be argued that the Supreme Court ought to apply the principle of substantial justice, rather than technicalities, particularly in a petition relating to Presidential election, which is a matter of great national interest and public importance. However, each case must be considered within the context of its peculiar circumstances. Also, the exercise of such discretion must be made sparingly, as the law and Rules relating to the Constitution, implemented by the Supreme Court, must be taken with seriousness and the appropriate solemnity. The Rules and time – lines established are made with special and unique considerations.” (Emphasis provided).
10.
Noting from the record that directions to filing of submissions to the petition were first issued on August 1, 2022. The petitioner filed its submissions to the petition on October 27, 2022. On October 28, 2022, the respondents were directed to file their Submissions. As at December 2, 2022 only the 4th and 5th respondents had filed their submissions. On December 2, 2022 the 3rd respondent sought leave to finalize its submissions and prayed for leave to file an application to adduce more evidence. On January 13, 2023 the 3rd respondent had only filed the application seeking to adduce further evidence, noting that they would first await the determination of the application prior to filing its submissions.
11.
Accordingly, this court finds that the 3rd respondents actions were not in any way contemptuous. It is my considered view that the reasons afforded by the 3rd respondent are cogent and valid. It is fair and reasonable for the application to adduce further evidence be heard and determined first before the 3rd respondent files its submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.
12.
For the aforestated reasons I come to the conclusion that the 3rd respondent’s application dated January 27, 2023 has merit.
13.
Consequently, I make the following orders:
a.
The court hereby reviews and discharges the decision of the Honorable Deputy Registrar issued on January 13, 2023 barring the 3rd respondent/ applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.
b.
The 3rd respondent/applicant be and is hereby allowed to file submissions in the two interrelated appeal both emanating from the impugned judgement of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.
c.
Costs to be in the appeal herein. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/34/eng@2023-05-26 |
Petition 8 (E010) of 2021 | Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Dina Management Limited v County Government of Mombasa & 5 others | [2023] KESC 30 (KLR) | null | A. Introduction and Background
1.
The appellant, Dina Management Limited, vide the petition of appeal dated 1July 5, 2021 challenges the decision of the Court of Appeal in Civil Appeal No 150 of 2021 which affirmed the judgment of the Environment and Land Court (A Omollo J) in ELC Petition No 8 of 2017 consolidated with Petition No 12 of 2017. The appeal invokes article 163(4)(a) of the Constitution, sections 15(2), 21(1) and (3) of the Supreme Court Act, No 7 of 2011 and rules 12, 38 and 39 of the Supreme Court Rules, 2020.
2.
The genesis of the appellant’s grievance is that on various dates in September, 2017, the 1st respondent, County Government of Mombasa, without prior notice forcefully entered the property known as MN/1/6053 situated in Nyali Beach, Mombasa County, registered to the appellant (hereinafter ‘the suit property’) demolished the entire perimeter wall facing the beachfront and flattened the whole property to be at the same level as the beach. It was urged by the 1st respondent that the entry and demolition was an enforcement action to create a thoroughfare to the beach as the suit property was public land and not private.
3.
Prior to the filing of the above petition, a suit had been filed and determined in favour of the appellant in HCCC No 131 of 2011, Elizabeth Karangari Githunguri v Dina Management Limited (HCCC No 131 of 2011) which the appellant avers, settled the issues concerning the ownership and validity of title over the suit property and had conclusively addressed the issue whether there was a public road through the said property.
B. Litigation History
(i) Proceedings at the Environment and Land Court
4.
Aggrieved by the 1st respondent’s actions, the appellant filed Environment and Land Court Petition No 8 of 2017 (ELC Petition No 8 of 2017) dated September 27, 2017 against the 1st respondent. The appellant sought a total of fifteen orders, asserting its ownership to the suit property. Among the orders sought were declarations that the 1st respondent’s actions were in violation of its rights under article 40, 27(1) & (2), 29, 47(1) & (2) of the Constitution; a permanent injunction against the 1st respondent to restrain it from interfering with the suit property; the 1st respondent be compelled to meet the costs of its actions assessed at Kshs 10,102,774.08; compensation for malicious damage to property; damages for trespass, interest and costs of the petition.
5.
The 1st respondent filed a separate petition, ELC Petition No 12 of 2017 dated November 15, 2017 against the appellant and the 2nd – 6th respondents wherein it sought declarations that the suit property is public land forming part of the beach property within the high and low water marks of the Indian Ocean; that the subsequent acquisition by the appellant was from inception null and void ab initio; an order that the Chief Land Registrar be compelled to revoke the title over the suit property and the Director Surveys to cancel and expunge all survey plans, computations, field notes, deed plans and survey records over the suit property including an order for the eviction of the appellant from the suit property, general damages for trespass and costs.
6.
The appellant opposed the 1st respondent’s petition on the grounds that the suit property was previously unalienated government land which was lawfully alienated as private property in 1989; that the suit property was 30 meters above the high water mark as per the law at the time of alienation and regulation 110 of the Survey Regulations 1994 which established that all land within the 60 meters from the high watermark was public land was not in force at the time; that no evidence was presented to support the assertion that the suit property was a road reserve; that the suit was time barred as allocation was done close to 30 years from the date the suit was filed; that the appellant was not guilty of any illegalities or irregularities; and that the suit was res judicata as the subject matter was determined by Mukunya J in HCCC, No 131 of 2011.
7.
The 2nd-6th respondents on the other hand urged that the suit property was initially an open space and the alienation of the suit property to HE Daniel Arap Moi was lawful and all procedures followed, however the letter of application to the Commissioner of Lands seeking to be allocated the suit land and the Part Development Plan (PDP) showing the suit property in relation to the neighbouring parcels of land were missing.
8.
The two petitions, ELC Petition No 8 and 12 of 2017, were consolidated by consent of the parties and proceeded to hearing by way of affidavit evidence. The court framed the issues for determination as; whether the suit property was a public utility and there was a public access road through it to the beach; whether the suit property was within 60 metres of the high water mark; were illegalities or faults committed by those responsible for alienating the suit property and whether the appellant should suffer the faults of those third parties (if any); whether the 1st respondent’s suit is res judicata and/or an abuse of court process; whether the suit was time barred and/or the 1st respondent guilty of latches and indolence; and whether the appellant was the lawful owner of the suit property and entitled to the orders sought. In a judgment dated 10th September, 2019 the trial court dismissed the appellant’s petition and partially allowed the 1st respondent’s petition.
9.
The trial court determined that: the alienation of the suit property was unprocedural and unlawful for lack of an approved PDP from the Director of Physical Planning and Central/Regional Authority in compliance with the provisions of the Land Planning Act, cap 303 (repealed by the Physical Planning Act cap 286); there existed an access road through the open space to the sea, which was later blocked by the allotment of the suit property in disregard of the provisions of section 85 of the Government Lands Act (repealed) (hereinafter referred to as “GLA”); the 1st respondent acted within the law in removing the wall which blocked the said access road; the 1994 regulations relied on by the 1st respondent to urge that the suit land was within 60 meters from the high-water mark were not in operation in September 1989 when the property was alienated; the 1st respondent’s suit was not res judicata; the 1st respondent’s suit was not time barred as it related to constitutional violations of a continuing nature; the appellant could not be protected as an innocent purchaser without notice as it failed to demonstrate that it was diligent before purchasing the suit property; and the appellant’s rights were not violated and it was not entitled to the reliefs sought.
(ii) Proceedings at the Court of Appeal
10.
Aggrieved by the judgment, the appellant moved the Court of Appeal vide Civil Appeal No 150 of 2019 premised on a total of 22 grounds of appeal. The 2nd to 6th respondents filed a cross appeal challenging the court’s jurisdiction on the grounds that the dispute between the County Government of Mombasa and the National Government, to wit, Ministry of Lands and Physical Planning, the Chief Land Registrar, the Land Registrar, the Director of Survey, and the Director Physical Planning was inter-governmental in nature and hence contrary to articles 6, 159(c) and 189(3) and (4) of the Constitution as read with Sections 30 to 35 of the Inter-Governmental Relations Act No 2 of 2012 (hereinafter IGR Act).
11.
The 1st respondent filed a notice of grounds for affirming the decision and urged that the suit property was trust land, and such land was not government land available for alienation and any alienation thereof contravened section 117 of the repealed Constitution, section 13 of the Trust Land and section 82 of the Government Lands Act (repealed).
12.
The appellate court framed seven issues for determination. On the first issue, the appellate court held that the appeal did not relate to an inter-governmental dispute. This is because the mere introduction of the 2nd to 6th respondents by the 1st respondent to the suit could not convert the dispute into an intergovernmental dispute as the ultimate objective of the dispute was to determine the status of the suit property as against the appellant who had moved the court to assert its ownership, the appellant not being a party to any of the levels of government.
13.
On the second issue, the appellate court found that the claim of res judicata was devoid of merit as the matter before it went to the root of the ownership of the title. On whether the dispute was statute barred under the Limitation of Actions Act it was held that since the suit was framed as a constitutional petition seeking to enforce fundamental rights and freedoms which violations were of a continuing nature, the doctrine of limitations did not apply. Further, that sections 41 and 42 of the Limitation of Actions Act excludes application of the Act on matters concerning government land, including proceedings towards recovery of government land.
14.
On the nature of the suit property including the road, the court held that it was not trust land, but an open space and the applicable law when the purported alienation took place is the GLA, thus under the realm of the 2nd to 6th respondents. The suit property being within the municipality of Mombasa, the land was to be allotted in accordance with section 10 of the GLA, which is to the effect that “Leases of town plots may be granted for any term not exceeding one hundred years.”
15.
On whether the title to the suit property was lawfully acquired and whether the appellant was an innocent purchaser for value without notice, the appellate court agreed with the trial court, holding that the appellant cannot enjoy protection under the doctrine of innocent purchaser and that where property is acquired through a procedure against the law, the title cannot qualify for indefeasibility. It held that the title subsequently issued was invalid having been acquired illegally and irregularly. The appellate court found that the suit property was public land reserved for a public utility and that there was a road leading to the beach through the open space that was the suit property. The suit property thus remained a public utility incapable of giving rise to a private proprietary interest capable of being protected by a court of law. The appellate court thus dismissed the appeal and the cross appeal and affirmed the trial court’s decision including awarding costs to the 1st respondent. | E. Analysis and Determination
(i) Whether the appeal meets the constitutional threshold under article 163(4)(a) of the constitution Constitution?
39.
The 1st respondent challenges this court’s jurisdiction to hear and determine the appeal. It urges that none of the grounds in the appeal relate to interpretation or application of the Constitution. Indeed, jurisdiction is a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court is obligated to down its tools. It therefore follows that we must first address the issue whether we are clothed with requisite jurisdiction under article 163(4)(a) of the Constitution pursuant to which the appeal has been brought.
40.
A court’s jurisdiction emanates from either the Constitution or legislation or both, as we stated in Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 others, Civil Application No 2 of 2011 as follows:
“
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
41.
Article 163(4)(a) of the Constitution states that:
“
(4)
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.”
This court has stipulated the limits of its jurisdiction under article 163(4)(a) of the Constitution in several of its decisions. In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others [2020] eKLR we stated as follows:
“
(i)
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
ii.
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfaction of the court and with precision those aspects/ issues of his matter which in his opinion fall for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of constitutional interpretation and application.
iii.
A 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).
iv.
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).
v.
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
42.
Each case must however be evaluated on its own facts. To enable us resolve the question whether the matter concerns the interpretation and application of the Constitution, we must establish whether each of the issues raised falls under the court’s jurisdiction.
43.
The appellant seeks a determination on whether its rights under article 27(1) and 50(1) of the Constitution were violated by the appellate court’s application of the doctrine of res judicata, in the alternative, issue estoppel. The 1st respondent submits that the doctrine of issue estoppel is concerned with issues of facts and not law, and this does not call for the interpretation or application of the Constitution.
44.
We note that this is an issue that arose before the ELC, whereby the appellant argued, albeit unsuccessfully, that the 1st respondent’s petition, ELC Petition No 12 of 2017 was res judicata as the issues raised had been determined in HCCC No 131 of 2011. This issue was also taken up by the appellate court and now finds its way in this appeal. Is res judicata a factual matter devoid of the application of the Constitution?
45.
This court in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another, Motion No 42 of 2014 [2016] eKLR stated as follows concerning the doctrine of res judicata:
“[52] Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights….[55]..Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept...”
46.
The question the appellant seeks this court to determine is not on the principle of res judicata per se, but whether the petitioner’s rights under article 27(1) and 50(1) of the Constitution were violated by the court’s application of the doctrine of res judicata thus bringing it within this court’s jurisdiction. This is in tandem with its argument that decisions in rem by courts of concurrent jurisdiction are binding on each other to facilitate access to justice, rule of law and afford equal protection before the law. As seen above, res judicata is not just a factual contest but rather an issue of substantive law. In the context before us, we are persuaded that the issue is worth our input as a matter involving the interpretation and application of the Constitution as regards violations of the cited articles above.
47.
The second issue the appellant seeks determination of is whether the appellate court’s interpretation of bona fide purchaser amounted to unjustifiable and unreasonable limitation of the right to property under article 40 and in violation of articles 19(3)(c), 20(1), 21(3) and article 23 of the Constitution. The 1st respondent urges that the crux of the decision by the superior courts was on the status of the suit property as a public utility and being so, article 40 of the Constitution does not apply; that there is no such provision under article 40, protecting an innocent purchaser for value without notice. Having not been particularized under the article, it urges that it cannot be for determination as a matter of either interpretation or application of the Constitution.
48.
The 1st respondent urges that the appellant’s complaint, instead, relates to the manner in which the courts below applied the provisions of statute, being the Physical Planning Act (repealed) and the Government Lands Act and that a question of statutory interpretation and common law are not matters that fall for determination by this court under article 163(4)(a) of the Constitution.
49.
The appellant urges us to find that the initial allotment was legally and regularly undertaken under the then prevailing legal regime, the Government Land Act and further that the Physical Planning Act’s date of commencement was in 1998 while that of the Survey Regulations was in 1994, which was after the initial allotment of the suit property to the first registered owner. It is clear that the appellant seeks to have the court make a determination on the application of these statutory provisions, and more so, on the findings of fact upon which the applicable constitutional argument if any, can be applied.
50.
To interrogate this issue, the court inevitably has to descend into the factual contestations pitting both sides of the ownership divide. Allotment and allocation of land is a matter that is governed by Statute, be it Government Lands Act, Surveys Act, Physical Planning Act or any such legislation for that matter. Both the High Court and the Court of Appeal, as superior courts enjoined to look at the evidence and make factual findings, undertook their mandate appropriately arriving at the same conclusion relating to the proprietorship of the suit property.
51.
We are careful to note that this court has no jurisdiction to revisit the factual findings of the superior courts, and we are limited to the court’s jurisdiction under article 163(4)(a) of the Constitution. In Paul Mungai Kimani & 20 others (supra) we stated as follows:
“
Not every issue that was before the superior courts is open for this court’s determination in exercise of its appellate jurisdiction under article 163(4)(a). Matters of fact that touch on evidence without any constitutional underpinning are not open for this court’s review on appeal in exercise of its article 163(4)(a) jurisdiction. The same is also true of matters that purely dealt with interpretation and application of statutory provisions.”
52.
Similarly, in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae) [2021] KESC 34 (KLR) we stated:
“This court has no jurisdiction to revisit the factual findings of either the High Court or Court of Appeal on this issue. We have already answered the four critical questions in exercise of our jurisdiction under article 163(4)(b) of the Constitution… We may however not delve into the factual findings of the trial court and Court of Appeal…Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a)”
53.
From the record and pleadings, the appellant asserted its rights to property under article 40 of the Constitution. It averred that it was a bona fide purchaser and the registered owner of the suit property and thus the actions of the 1st respondent amounted to unjustifiable and unreasonable limitation of the right to property under article 40 in violation of articles 19(3)(c), 20(1), 21(3) and 23 of the Constitution. On the other hand, the 1st respondent asserted its rights both as public property on the beach and on the basis of article 40(6) of the Constitution not to protect illegally acquired property. The question for interpretation and application of the Constitution is therefore the extent of the protection, if any, to the suit property. In doing so, we shall interrogate whether the appellate court’s interpretation of bona fide purchaser amounted to a violation of the appellant’s right to property under article 40 of the Constitution. We therefore find that we have jurisdiction to hear and determine the matter.
54.
Thirdly, the appellant urges this court to determine whether the enforcement actions by the 1st respondent violated the appellant’s right to property under article 40, right to equal protection before the law under article 27(1) and the right to fair administrative action under article 47 of the Constitution. The 1st respondent counters that by arguing that there was no specific complaint pleaded under article 47 and this was not for discussion and never for determination by the courts below. Further, it urges that the modalities of raising complaints under article 47 are set out in the Fair Administrative Actions Act, 2015 which actualized the article 47 of the Constitution.
55.
From the record, we note that one of the prayers sought before the trial court was, ‘a declaration that the respondent’s actions are unconstitutional and a violation of the petitioner’s rights under article 27(1) and (1), article 29 and articles 47(1) and (2) of the Constitution.’ The appellant framed six issues for determination which the trial court adopted. None of these issues included a determination as to whether the rights cited were violated. Similarly, a perusal of the appellant’s memorandum of appeal lodged at the Court of Appeal, wherein it raised twenty-two grounds of appeal, does not reveal any fault being attributed to the trial judge for not addressing this issue. As it appears, they were not issues considered by the superior courts. Can they therefore come up at this juncture, on appeal? Hardly.
56.
This court has held in several of its decisions including in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another; SC Pet No 3 of 2021 [2012] eKLR and Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others SC Petition No 3 of 2020 [2020] eKLR that to bring an appeal pursuant to article 163(4)(a) of the Constitution, it must be demonstrated that the issues of contestation involve the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. It is that interpretation or application of the Constitution by the appellate court that forms the basis of a challenge before this court.
57.
The interpretation or application of articles 27(1) and 47 of the Constitution having not been a question for determination before the superior courts, this court would have no jurisdiction to entertain an appeal brought under article 163(4)(a). Accordingly, this court has no jurisdiction to establish whether the 1st respondent’s “enforcement actions” violated the appellant’s right to property (article 40), right to equal protection before the law (article 27(1)) and the right to fair administrative action under article 47 of the Constitution as this would amount to converting the court into a court of first instance. In our view, the appellant is no more than seeking compensation and/or damages both liquidated and special, matters that are not in the purview of consideration by this court.
58.
Lastly, the appellant seeks a determination on whether the appellate court erred by failing to consider the provisions of Part V of Chapter 11 of the Constitution on the relationship between devolved government and the national government, specifically Article 189 of the Constitution in relation to resolution of disputes between the national government, its agencies and devolved government.
59.
The 1st respondent submits that the issue for determination before the superior courts was the ownership of the suit property which was registered in the name of the appellant in July, 2006. Its case is that the law applicable at the time for a person to assert rights, liabilities and remedies was the Registration of Titles Act, which was repealed by the Land Registration Act. Further, neither the Constitution 2010 nor the derivative Act under Article 189 of the Constitution were in existence including the two levels of government for the intergovernmental relations dispute mechanism to apply.
60.
We note that this question neither arose nor was it determined by the trial court. It is only at the Court of Appeal vide the Attorney General’s cross appeal that the court’s jurisdiction to hear and determine the matter was first questioned on this ground. Whether the dispute is intergovernmental in nature is a jurisdictional issue. Indeed, jurisdiction is a pertinent question for determination. A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it. In Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR we held that jurisdiction is a legal question and it can be raised at any time and by any party. The Nigerian Supreme Court in the case of Alhaji Bello Nasir v Kano State Civil Service Commission & 2 others, SC 144/2003 per Ogbuagu, JSC in his concurring judgement held as follows:
“
It is now firmly settled that issues of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of court, cannot dictate when and how, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this court” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/30/eng@2023-04-21 |
Application E004 of 2023 | Gaciani & 11 others v Kimanga & another (Application E004 of 2023) [2023] KESC 23 (KLR) (Civ) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Gaciani & 11 others v Kimanga & another | [2023] KESC 23 (KLR) | null | Ruling of The Court
1.
Upon perusing the notice of motion application dated February 17, 2023 and filed on February 23, 2023 pursuant to rule 15(2) of the Supreme Court Rules, 2020, seeking to be granted extension of time to file and serve the notice of appeal and seeking leave and certification as a matter of general public importance;
2.
Uponperusing the grounds on the face of the application; the supporting affidavit of Mary Muthoni Karinga sworn on February 17, 2023 and submissions dated February 17, 2023, the applicants contend that: the delay in filing and serving the notice of appeal is inadvertent; there is no inordinate delay; and the intended appeal raises a matter of general public importance;
3.
Upon further considering the applicants’ grounds in support of the application that: being dissatisfied with the decision of the Court of Appeal, they instructed the firm of CM Kingori & Co Advocates to seek leave to appeal to the Supreme Court; that the advocate filed the requisite application dated July 16, 2021 but failed to update them on the progress; that upon perusal of the file at the Court of Appeal registry on February 14, 2023 they discovered that the application for leave and certification was withdrawn by their advocate without the applicants’ instructions and knowledge; and a notice of appeal was never filed, and this was caused by the negligence on the part of the advocate;
4.
Noting the applicants’ submissions that the intended appeal raises matters of public interest which transcend the present litigation with substantial, broad based consequences stated as: whether in determining a customary trust in land the court has power to formulate its own class of beneficiaries or mode of sharing without regard to intentions of the trust; whether the court has power to apply constitutional and statutory dictates to alter intentions of the creators of a customary trust; whether in determining a customary trust over land the court should apply the terms of the subject trust existing at the time of creation of the trust; and whether as held by the Court of Appeal in Mwongera Mugambi Rinturi & Ano v Josephine Kaarika & 2 others [2015] eKLR, in determining customary trust over land,
“a child is a child none being lesser on account of gender or the circumstances of his birth”
and that each has a distinct share of the trust land regardless of what the applicable customary law may dictate, such as children born after a widow remarries, those born after a wife divorces or those of a levirate union such as the respondents herein;
5.
Upon perusing the respondents’ replying affidavit sworn by the 1st respondent on March 6, 2023 and their submissions of even date, they contend that: the applicants’ advocates withdrew the notice of motion application dated July 16, 2021 filed at the Court of Appeal, on November 29, 2022 in order to seek extension of time to file an appeal to the Supreme Court; the Environment and Land Court at Kerugoya in ELC No 220 of 2013 issued orders to facilitate the implementation and/or execution of the judgment dated November 21, 2016; the application is bad in law as certification ought to be determined at the Court of Appeal in the first instance; the grounds introduced to support certification in the submissions should be struck out; the matter concerns private ownership of property and not one of general public importance under article 163(4)(b) of the Constitution, and they cite the decisions of Patel v Lagat Civil Application No E046 of 2021 [2022] KECA 509 (KLR) and Hermanus Phillipus Steyn v Giovanni Gnechi-Ruscone [2013] eKLR to buttress their arguments;
6.
Bearing in mind the provision of section 15(2) of the Supreme Court Rules, 2020 which gives this court discretion to extend time limited by the Rules or by any decision of the court.
7.
Taking into account this court’s decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where we stated that the notice of appeal is a jurisdictional prerequisite and signifies the intention to appeal for purposes of this court’s Rules and further set out the guiding principles for extension of time as follows:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.… we derive the following as the underlying principles that a court should consider in exercising such discretion:
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 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.
where there is a reasonable cause for the delay, the same should be expressed to the satisfaction of the court;
5.
whether there will be any prejudice suffered by the respondents, if 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”
8.
Further noting that the instant application has been filed 18 months after the delivery of the Court of Appeal judgment, which delay is explained by the applicants as caused by the negligence on the part of their advocate;
9.
| Having considered the application, affidavit in response and submissions filed, we now opine as follows:
(i)
Rule 36(1) of the Supreme Court Rules is couched in mandatory terms and requires that a person intending to appeal to the Supreme Court shall within 14 days of the decision of the Court of Appeal, file the notice of appeal. Rule 36(4) further states that 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;
(ii)
Whereas mistakes of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated any efforts or due diligence, through evidence or correspondence of the follow up with the advocates or to pursue their rights as we found in George Kang’ethe Waruhiu v Esther Nyamweru Munene & another Civil Application No 18 of 2020 [2021] eKLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
(iii)
The delay in filing the instant application is inordinate and has not been satisfactorily explained.
(iv)
Under section 15B of the Supreme Court Act, and rule 33(1) an application for certification shall be filed before, and determined by the Court of Appeal at the first instance. This renders the prayer for leave to appeal and certification herein premature.
10.
Consequently, for reasons aforesaid, we make the following orders:
(i)
The notice of motion application dated February 17, 2023 be and is hereby dismissed; and
(ii)
The applicants shall bear costs of this application for the respondents herein.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/23/eng@2023-04-21 |
Petition 18 (E025) of 2021 | Judicial Service Commission v Oduor & 5 others (Petition 18 (E025) of 2021) [2023] KESC 32 (KLR) (21 April 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Judicial Service Commission v Oduor & 5 others | [2023] KESC 32 (KLR) | null | A. Introduction and Background
1.
The promulgation of the Constitution of Kenya, 2010 on August 27, 2010 signaled the beginning of a transformative path in Kenya. The new constitutional dispensation brought with it a new wave of reforms across governance structures and public institutions. To enhance confidence in the Judiciary, chapter 10 of the Constitution contained provisions on judicial authority, independence of the Judiciary, judicial offices and officers, system of courts, appointment of Chief Justice, Deputy Chief Justice and other judges including their tenure, establishment of the Judicial Service Commission as well as the establishment of the Judiciary Fund. To facilitate the transition of the institution from the previous constitutional design of the Judiciary, there had to be mechanism to ensure that judges and judicial officers inspired confidence and were fit to continue serving under the new regime.
2.
This paved way for the enactment of the Vetting of Judges and Magistrates Act No 2 of 2011 (hereinafter the Act) pursuant to section 23 (1) of the sixth schedule to the Constitution. The object of the Act was to provide for the vetting of judges and magistrates pursuant to section 23 of the sixth schedule to the Constitution; to provide for the establishment, powers and functions of the Judges and Magistrates Vetting Board, and for connected purposes. The Act established the 5th respondent, the Judges and Magistrates Vetting Board (hereinafter the Board) whose function was to vet judges and magistrates in accordance with the provisions of the Constitution and the Act. The Board was tasked with the responsibility of establishing the suitability of judges and magistrates serving at that the time to continue serving.
3.
The 1st to 4th respondents, who were all serving magistrates at the time, were vetted by the Board and found unsuitable to continue serving as such. Their attempt to have the Board review its decision was dismissed. As a result, the Judicial Service Commission, the appellant herein, removed the 1st to 4th respondents from office, in line with the Board’s decision.
4.
This appeal, pursuant to section 15(2) of the Supreme Court Act and rule 39 (1) of the Supreme Court Rules 2020 stems from the ensuing litigation initiated by several magistrates challenging their removal by the Board. The appeal invokes this court’s jurisdiction under article 163(4)(a) of the Constitution and primarily seeks the interpretation of section 23(2) of the sixth schedule to the Constitution and its applicability to magistrates.
| E. Analysis and Determination
30.
At the onset, we need to satisfy ourselves of our jurisdiction over any matter before us, taking into account our limited jurisdictional contours. This arises from the well settled edict that a court can only exercise jurisdiction as circumscribed in the Constitution or statute or both.
31.
We note that none of the parties objected to our jurisdiction in this matter. The appellant has nevertheless specified with precision that it invokes this court’s jurisdiction, as of right, under article 163(4)(a) of the Constitution. The constitutional question identified by the appellant relates to the interpretation and/or application of section 23(2) of the sixth schedule to the Constitution in relation to magistrates. We have made numerous pronouncements including, Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012 [2012] eKLR and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR where we have enunciated that where issues of contestation revolve around the interpretation or application of the Constitution the same ought to have been canvassed in the superior courts and 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.
32.
The present appeal easily meets the requisite jurisdictional threshold since it involves the interpretation of section 23(2) of the sixth schedule to the Constitution vis-à-vis its applicability to magistrates which issue has been subject of the litigation and transcended through the superior courts to this court. In any event, the said constitutional provision has previously been before this court through JMVB 1 and JMVB 2 the effect of which is partly in issue in the present appeal. Having dispensed with the court’s jurisdiction, we now move to the crux of the dispute.
i. Whether section 23(2) of the sixth schedule to the Constitution applies to magistrates
33.
To get its proper perspective and context, section 23 of the Sixth Schedule to the Constitution provides:
"(1)
Within one year after the effective date, Parliament shall enact legislation, which shall operate despite article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in articles 10 and 159.
(2)
A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.”
34.
The appellant; the 5th and 6th respondents contend that section 23(2), which cannot be read in isolation of section 23(1), is an ouster clause that applies to the Board’s decisions relating to both judges and magistrates. This is firmly opposed by the 1st to 4th respondents who aver that there is a clear difference between judges and magistrates and that the drafters of the Constitution were aware and could not have used the term ‘judge’ to refer to both judges and magistrates. For this reason, it is the 1st and 4th respondents’ contention that the absence of the word magistrate in section 23(2) was not intentional as the said section was not intended to apply to magistrates.
35.
It is appreciated by all the parties, following our decision in JMVB 1 and JMVB 2 that section 23(2) of the sixth schedule to the Constitution ousted the jurisdiction of the courts. Indeed, the majority judgment, appreciating the binding nature of this court’s findings on superior courts below, alluded to the same position in the following manner:
“
31
Regarding the 1st issue, there is no dispute that the applicability and efficacy of article 23(2) of the 6th schedule has been conclusively determined by the Supreme Court… It is enough that the Supreme Court declared the ouster clause valid.”
The bone of contention which is subject of litigious contestation and remains alive in the present appeal is whether the ouster applies to magistrates or was only limited to judges. The applicable provision which extended ouster of the Board’s decision to magistrates is section 22(4) of the Act which provides:
“
22
Review
(4)
A removal or a process leading to the removal of a magistrate from office under this Act shall not be subject to question in, or review by, any court.”
This provision is buttressed by the provision of section 22(5) which states that “the decision by the Board under the review provision shall be final.”
36.
The proponents of the ouster clause applying to magistrates argue that this was the import of the decision in JMVB cases and that section 23(2) of the sixth schedule cannot be read in isolation of section 23(1) thereof but rather in a manner that sustains both. On the other end of the argument comes the 1st to 4th respondent who maintain that the magistrates are excluded from the ouster set out in section 23(2). This is because the drafters of the Constitution were very deliberate in differentiating the judges from the magistrates in the different provisions such as article 160, 167 and 168; that in the JMVB cases decisions, the Supreme Court did not address itself to the ouster of magistrates as none of them was party to the case and that extending section 23(2) to include magistrates amounts to amending the Constitution, a jurisdiction that the court is not clothed with. Peripheral to these arguments is the constitutionality of section 22(4) of the Act which the 4th respondent urged us to find as unconstitutional.
37.
In unravelling this contestation, we have to address ourselves to these three questions: a) What is the import of JMVB 1 and 2 in so far as they apply to magistrates? b) is section 22(4) of the Act unconstitutional? and c) Does the ouster in section 23(2) apply to magistrates?
a. The JMVB 1 and JMVB 2
38.
The superior courts below took divergent views with the High Court and appellate court arriving at different conclusions on the finality of the Board’s decisions under section 23(2) in relation to magistrates. Considering the binding nature of the said decisions on the courts below as dictated by article 163(7) of the Constitution, we thought the dragon was slayed and would not have foreseen that there would arise fundamental differences as to the import of the said decisions. The present case presents the proverbial phoenix that resurrected the discussion surrounding section 23(2) of the sixth schedule. This makes it imperative for us to restate our position on the said decisions, notwithstanding the fact that magistrates were never part of the litigants.
39.
In JMVB 1, the main issue before us was “whether section 23 (2) of the sixth schedule to the Constitution of 2010 ousts the jurisdiction of the High Court to review the decision of the Judges and Magistrates Vetting Board declaring a judge (or magistrate) as being unsuitable to continue serving as such”. In our determination we stated as follows:
“
[200]
… We would clarify that by the terms of the Constitution itself, the High Court’s general supervisory powers over quasi-judicial agencies, and its mandate in the safeguarding of the fundamental rights and freedoms of the Constitution, by no means qualify the ouster clause which reserves to the Judges and Magistrates Vetting Board the exclusive mandate of determining the suitability of a judge or magistrate in service as at the date of promulgation of the Constitution, to continue in service. The basis of the said ouster clause is found in the history attending the Constitution; in the requirement of the Constitution for essential transitional arrangements; and in the express terms of the Constitution, by virtue of which the Vetting Board was established to determine the suitability of certain judicial officers, for the purposes of the values and principles declared in the Constitution itself.”
40.
Having set out the applicable parameters under the Constitution, our historical perspective including the views of the citizens as collected and collated leading to the referendum and eventual promulgation of the Constitution, we appreciated the disruptive potential of litigation against the decisions of the Board in the wake of the transitional provisions that bestowed upon the High Court, supervisory jurisdiction over bodies or authority exercising judicial or quasi-judicial functions. The Board by its function fell under such body that would, but for the ouster provided in the transition clause, be subject to the jurisdiction of the High Court, presided over by Judges. Underscoring the centrality of the vetting process we concluded as follows:
“
[202]
For the avoidance of doubt, and in the terms of section 23(2) of the sixth schedule to the Constitution, it is our finding that none of the superior courts has the jurisdiction to review the process or outcome attendant upon the operation of the Judges and Magistrates Vetting Board by virtue of the Constitution, and the Vetting of Judges and Magistrates Act.”
41.
Appreciating the exclusive mandate of the Board in determining the suitability of a judge or magistrate in service at the date of promulgation of the Constitution, we directed the superior courts below to dispose of the pending matters against the board in line with our decision.
42.
The 1st to 4th respondents argue that our decision in JMVB cases was obiter dictum. The 4th respondent goes a step further to argue that our decision was made per incuriam rendering it non-binding on the courts below. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others SC Petition No 4 of 2012 [2013] eKLR we expressed ourselves as follows:
“It is a general rule that the court is not bound to follow its previous decision where such decision was an obiter dictum (side-remark), or was given per incuriam (through inattention to vital, applicable instruments or authority). A statement that is obiter dictum is one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law.”
43.
In the JMVB case, the focus of our decision was the mechanism contemplated under section 23 of the sixth schedule. This mechanism revolved around the operations and functions of the Board as per the legislation enacted under section 23(1). To us, it did not matter whether the judges, magistrates or any other litigant, considering the expanded scope of access to justice that the Constitution brought with it, were challenging the decisions or mechanisms of the board in relation to vetting. That explains why in framing the issue in JMVB 1, the focal point was the ouster of the jurisdiction of the court to review the decision of the Board arising out of the vetting exercise. Our position was further manifested in our finding affirming that the process or outcome attendant upon the operations of the Board were not subject to review by the superior courts.
44.
However, noting that the board would sometimes stretch the vetting exercise to consider matters beyond the promulgation of the Constitution, it was necessary to clarify the effect of our decision in JMVB 1. In JMVB 2 we not only affirmed our position in JMVB 1 regarding the frontiers of section 23(2) of the sixth schedule, but also reiterated the obtaining legal position as follows:
"39.
Having extensively considered the frontiers of section 23(2) of the sixth schedule to the Constitution, this court (at paragraph 202) stated categorically as follows:
…
40.
In other words, this court consciously articulated the state of the law, in accordance with the Constitution: the removal of a judge or magistrate, or a process leading to such removal by virtue of the operation of the Judges and Magistrates Vetting Act by the Vetting Board, cannot be questioned in any court of law. That remains the valid position, under the law." [Emphasis added]
45.
However, to avert the potential excesses by the board in the vetting of magistrates and judges, it was necessary to clarify and delineate the time zone within which the board was to consider its activities. The board having been established as a transitional institution was expected to consider the conduct of the serving judges and magistrates as at the effective date of the promulgation of the Constitution. Any consideration beyond that date would turn it into what we equated to the “unruly dog” as espoused by Lord Mersey. To rehash our position, we stated as follows:
“
(63)
We find and hold that the Judges and Magistrates Vetting Board, in execution of its mandate as stipulated in section 23 of the sixth schedule to the Constitution of 2010, can only investigate the conduct of judges and magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date, and not after the effective date. To hold otherwise would not only defeat the transitional nature of the vetting process, but would transform the Board into something akin to what Lord Mersey once called “an unruly dog which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be” (Lord Mersey in G & C Kreglinger v New Patagonia Meat & Cold Storage Co Ltd (1913). Lord Mersey used the analogy of “a dog” to refer to the “Equity of Redemption” in the law of mortgages. Here, we use it to refer to “a jurisdictional mandate” within our constitutional set-up; and not, the Board per se.”
46.
Before concluding this aspect, it is incumbent upon us to address the assertion that magistrates were not represented in the JMVB cases before us. It is also not entirely accurate to proclaim that magistrates were not represented in the JMVB cases. Indeed, while the JMVB cases pitted at least 7 judges, serving at the time, amongst the litigants were the appellant and the Kenya Judges and Magistrates Association (KJMA) – the umbrella body dealing with the welfare of judicial officers to which magistrates comprise a large constituency. The KMJA was at all times capable of articulating the position of magistrates alongside those of judges.
47.
Flowing from above, our findings in JMVB cases on the interpretation of section 23(2) of the sixth schedule was adequate. In arriving at the said decision, we considered the tenets of the interpretation of the Constitution, the history, purpose, objective and unique circumstances of our country. As the apex court, we want no more than undertake our constitutional and statutory duty in settling the legal position surrounding the dictates of the people of Kenya, on whose behalf we exercise judicial authority.
48.
To our minds therefore our findings in JMVB cases were neither per incuriam nor obiter dictum. As explained, the alleged absence of magistrates among the direct litigants did not overshadow the constitutional imperative which shielded the operations of the Board itself under which both the judges and magistrates fell. We note that the mandate of the Board itself is not at the moment under challenge and the respondents willingly submitted to its jurisdiction both at the first instance and in appellate capacity when they sought a review of the Board’s decision.
b. Is section 22(4) of the Act unconstitutional?
49.
We note that this is an issue that was brought up by the 4th respondent in his submissions. Considering the nature of our jurisdiction, we appreciate that this is not an issue that was at the centre of the arguments and court determination by the superior courts below. As set out in Lawrence Nduttu case (supra) this issue does not qualify to attract our resolution under article 163(4)(a) of the Constitution. As stated above, the constitutionality of section 22(4) of the Act was not framed by either of the superior courts as an issue for determination. At the heart of the dispute now on appeal was the interpretation of section 23(2) of the sixth schedule of the Constitution and whether the ouster contemplated under section 23(1) of the sixth schedule extended to magistrates.
50.
We point out that, as already stated, we considered the import of section 22(4) of the Act in JMVB 1. Undeniably, the first issue for determination as framed in JMVB 1 was:
“
78
. . .
i)
whether section 23(2) of the sixth schedule to the Constitution and section 22(4) of the Vetting of the Judges and Magistrates Act oust the jurisdiction of the High Court to review the decision of the Judges and Magistrates Board; and” (Emphasis ours)
It is our painstaking view that the court, in interrogating the provisions of section 23(2) of the sixth schedule was mindful of not only its application to magistrates but of the enabling statutory provision contained in section 22(4) of the Act. Undoubtedly, the constitutionality of this statutory provision would only be weighed against the provisions of section 23(2) of the sixth schedule, something that has already received sufficient judicial consideration.
51.
Moreover, in Nairobi High Court Petition No 146 of 2011, Dennis Mogambi Mong’are v Attorney General & 3 others, the petitioner unsuccessfully sought a declaration that Section 23 of the Sixth Schedule to the Constitution together with the Vetting of Judges and Magistrates Act are unconstitutional. This position was affirmed by the Court of Appeal and we took cognisance of this fact in JMVB 1.
52.
It therefore serves no further purpose to spend judicial time and resources in answering a peripheral question by way of unconstitutionality of section 22(4) of the Act, the main constitutional provision of section 23(2) of the sixth schedule to the Constitution having already been addressed by this court. In any event, the 4th respondent never put a spirited attempt to make his argument around the constitutionality of this statutory provision as to try to persuade us otherwise.
c. Does the ouster in section 23(2) of the sixth schedule to the Constitution apply to magistrates?
53.
The crux of the appeal is whether section 23(2) of the sixth schedule to the Constitution apply to magistrates. The appeal calls for our interpretation of the said constitutional provision in light of the arguments before us. We remain alive to the previous decisions and positions taken by this court in the JMVB cases. We also remain alive to the fact that this court is not bound by its previous decisions. To this end, article 163(7) of the Constitution provides that:
“
(7)
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”
The 1st to 4th respondents hinge their argument in favour of an interpretation against the ouster of the jurisdiction of the High Court, on the main fact that we are dealing with magistrates and not judges, unlike the JMVB cases. To them, any other interpretation of the provision amounts to equating magistrates to judges contrary to the other provisions of the Constitution.
54.
Jaclyn L Neo (ed) Constitutional Interpretation in Singapore; Theory and Practice (Routledge, 2017) at page 1, states that constitutional interpretation introduces additional factors for consideration as compared to the interpretation of statutes. With that in mind, a holistic reading of the Constitution is imperative to give it a purposive and contextual interpretation taking cognizance of other provisions as well as Kenya’s historical context with the view of protecting and promoting the purpose, effect, intent and principles of the Constitution. In In the Matter of Kenya National Commission on Human Rights SC Advisory Opinion Reference No 1 of 2012 [2014] eKLR we expressed ourselves as follows:
“But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”
55.
In construing the Constitution, article 259 posits that interpretation ought to be in a manner that promotes its purpose, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the bill of rights; permits the development of the law; and contributes to good governance. Being the court of final judicial authority, this court is tasked with asserting the supremacy of the Constitution and sovereignty of the people of Kenya by providing an authoritative, impartial and ultimate interpretation of the Constitution having due regard to circumstances, history and cultures of the people of Kenya. This results in development of rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth. This court appreciates its solemn duty and clear obligation to provide firm and recognizable reference-points, devoid of contradictions, that lower courts can rely on when called upon to interpret the Constitution, see In the Matter of the Speaker of the Senate & another SC Advisory Opinion Reference No 2 of 2013 [2013] eKLR.
56.
The context of our decision in JMVB cases remains and there is no argument about it. And in order to put the dispute in context, various proposals were made to the Committee of Experts (hereinafter “CoE”) on how to shepherd the intended transformation from the old to the new constitutional dispensation. The Final Report on the Committee of Experts on Constitutional Review categorized the proposals by Kenyans into two. One, that the entire judiciary be reappointed (with the judicial officers or at least all judges being treated as having lost their jobs but permitted to reapply); and two, the judicial officers remain in office but be required to take a new oath and undergo a vetting process. On careful consideration, the CoE decided that a wholesale reappointment was not appropriate. Instead, some form of vetting was proper, similarly, as it was done in Bosnia-Herzegovina, East Germany, the Czech Republic and elsewhere in Eastern Europe.
57.
The main aim of the vetting process was to ensure that any serious complaints against sitting judicial officers were properly considered. Even though CoE’s recommendation on vetting was limited to judges, it was alive to the fact that most of the public’s experiences of the justice system were at the magistracy level. However, the challenge faced was that the magistracy was large and would pose implications in the operations of subordinate courts; and by reason of judges having stronger protection, their removal being a rare occurrence. Nevertheless, before the draft Constitution was submitted to the people of Kenya in the ensuing referendum, the vetting process was extended to cover both judges and magistrates who were in office on the effective date of August 27, 2010. Resultantly, it led to the transition clause contained in section 23 of the sixth schedule of the Constitution as promulgated.
58.
As previously observed, the suitability of a judicial officer to continue in service under the new constitutional dispensation, is a matter reserved by law to the Board. Hardly any cogent argument has been advanced before this Court, that the Judges and Magistrates Vetting Act, which implemented the ouster clause, is not indeed the legislation contemplated under section 23(1) of the sixth schedule to the Constitution; and as there is no other legislation such as would claim that status, we have come to the conclusion that there is nothing out of harmony in the common purpose of the Constitution, section 23 of its sixth schedule, and the relevant statute – the Judges and Magistrates Vetting Act.
59.
It follows that a contest to the decision of the Judges and Magistrates Vetting Board, insofar as such a decision affects particular judges involved in the vetting process, is in effect, a collateral challenge to the Board’s authority: and this would be inconsistent with the terms of the Constitution. This is what we held in the JMVB cases. We have not been persuaded to alter our position in the JMVB Cases. Nothing has been tabled before us to warrant a review of our own decision as settled in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (App) No 4 of 2012; [2013] eKLR, Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No 6 of 2014 [2017] eKLR and contemplated by section 21(A) of the Supreme Court Act.
60.
Shielding the vetting process by the Board from the review jurisdiction of the courts in our view represents the unique situation that we found ourselves in as a country that was transitioning from the old order. In any event, the transition only operated in a specific time frame and historical context of our country. Moreover, this transition between the old Constitution and the new one was more people centric having accrued from a referendum. It is within this prism that we went for the broader consideration of the vetting exercise in the transition context. The only logical conclusion out of the vetting exercise by the Board was to either recommend suitability of judges and magistrates to continue serving or unsuitability with the latter resulting to removal. There was no expectation that the judges and magistrates would expect different treatment before the Board undertaking a similar vetting exercise.
61.
This by no means amounted to a reading in of the specific provisional Constitution in section 23(2) of the sixth schedule, or equating magistrates to judges. The vetting or judges and magistrates was a constitutional requirement that was time bound under article 262 of the Constitution. Any legislative enactments made to effect the sixth schedule to the Constitution, including section 23 thereof had to be sustained.
62.
On the contention by the 1st to 4th respondents that the drafters of the Constitution knew the difference between magistrates and judges and used the words in the Constitution deliberately, nothing could be further from the truth. In the transition context, articles 160, 167 and 168 are inapplicable, and are thus unavailable for comparative purposes. The issue, as we see it, appears to be more of grievances regarding the outcomes for the specific respondents who did not agree with the decisions of the Board.
63.
In the end, and having clarified JMVB 1 and JMVB 2 in so far as it applies to magistrates, we find merit in the appeal and reiterate that section 23(2) of the sixth schedule, in so far as it implicates the function of the Board in the vetting of judges and magistrates, is not subject to the review jurisdiction of the High Court. This leads us to the consideration of the appropriate reliefs in the circumstances.
ii. What are the appropriate available reliefs
64.
Apart from urging us to allow the appeal by setting aside the judgment of the Court of Appeal and upholding that of the High Court, the appellant seeks declaratory reliefs on the interpretation of section 23(2) of the sixth schedule to the Constitution as an ouster clause and that no court is clothed with jurisdiction to review the determination and the process leading thereto of the now defunct Board. The appellant further seeks a declaration that the Board is no longer in existence and as such the vetting process can neither be reopened nor can its decisions be revisited.
65.
The 1st to 3rd respondents oppose these proposed declarations on the basis that the unavailability of the remedies cannot be a ground that would lead a court to fail to consider a matter on merit. They contend that the Board’s jurisdiction to give magistrates a hearing and entertain review applications was done and completed. Hence, once the matter is before the High Court, the existence of the Board becomes irrelevant and nothing can go back there. That the court is to determine the matters before it conclusively, therefore, existence of the Board becomes irrelevant.
66.
It is apparent that the appellant seeks declarations with regard to a process that was time bound as it was to conclude not later than December 31, 2015 and the Board be subsequently dissolved within thirty (30) days as per the Act. As it stands, the Board is non-existent. Moreover, the declarations the appellant seeks were not matters that were before the superior courts for their determination. Can a party contend that the unavailability of the remedies is ground that would result in a court’s failure to consider a matter on merit?
67.
Clearly the issues raised in the appeal do no more than seek clarity on a legal position that we have previously provided. We do not see any purpose to be served by making declarations touching on the defunct Board in light of our findings. We nevertheless add that it matters not that the term of the Board may have lapsed. That is to say, lapse of time is not a factor that contributes towards the interpretation and/or application of the Constitution when the jurisdiction is properly invoked and more so, found to have merit.
68.
On the issue of costs, in Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (Civ) (17 June 2022) (Judgment) we opined that public bodies and organizations which ordinarily exist to serve a country’s government and who are acting within their mandate need not be condemned to pay costs where such an entity has brought or defended proceedings while acting purely in that regulatory capacity. Therefore, award of costs against such entities should only be made where such an entity has acted unreasonably or in bad faith. That said, to us the appellant being an independent commission and having filed the petition in that capacity undoubtedly did so with no ill intent but rather to clarify the position in relation to the litigants. Similarly, we cannot punish the respondents, particularly the 1st to 4th respondents for pursuing their legitimate right to access justice under the Constitution. Thus, we are not persuaded to make any order for costs for or against any of the parties.
69.
We thank all the counsel for their input, research and presentation in the course of this matter.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/32/eng@2023-04-21 |
Application 11 (E020) of 2022 | Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v Kenya Ports Authority Pension Scheme & 8 others (2nd - 9th Respondents - Sued on their own behalf and on behalf of their predecessors and/or successors in title in their capacity as the Registered Trustees of the Kenya Ports Authority Pension Scheme) (Application 11 (E020) of 2022) [2023] KESC 29 (KLR) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v Kenya Ports Authority Pension Scheme & 8 others (2nd - 9th Respondents - Sued on their own behalf and on behalf of their predecessors and/or successors in title in their capacity as the Registered Trustees of the Kenya Ports Authority Pension Scheme) | [2023] KESC 29 (KLR) | null | Brief facts
The application sought the review and setting aside of the ruling of the Court of Appeal declining to certify the questions raised by the applicant as matters of general public importance and refusal of grant of leave to appeal to the Supreme Court on issues identified and proposed as involving matters of general public importance. The applicants contended that the appeal raised substantial matters of general public importance that transcended the parties and that the judges of the Court of Appeal delivered contradicting judgments.
The applicants stated that the mode of assessment of advocates' fees after certification of costs in a party and party bill of costs did not arise directly in the appeal as it was not one of the grounds of appeal. Further, that by requiring the taxing master to use Kshs 201,981,424.00 as the value of the subject matter without any appeal the Court of Appeal reduced the fees by more than 90% thereby interfering with property rights already accrued and without applying the doctrine of res judicata and that the general public and specifically the legal profession would benefit from determination of those issues.
Issues
Whether the allegation that the Court of Appeal delivered a judgment without reading the record of appeal and that the judges did not read each other’s draft judgments were matters of general public importance appellable at the Supreme Court.
Whether taxation of advocate-client bill of costs was a matter of general public importance appellable at the Supreme Court.
| Upon perusing the originating motion application dated November 3, 2022 and filed on November 8, 2022 pursuant to article 163(4)(b) of the Constitution, section 15 and 16 of the Supreme Court Act and rule 33(2) of the Supreme Court Rules, 2020 seeking, inter alia: the review and setting aside of the ruling of the Court of Appeal delivered on October 21, 2022 declining to certify the questions raised by the applicant as being matters of general public importance; and refusal of grant of leave to appeal to the Supreme Court on the thirteen (13) issues identified and proposed as involving matters of general public importance;
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on November 3, 2022 and the supplementary affidavit sworn on November 9, 2022 both by DT Muyaa, Advocate; and the submissions dated November 4, 2022 in which the applicants contend that: the appeal raises substantial matters of general public importance that transcend the parties; the Judges of Appeal delivered contradicting judgments whose drafts were amended before they were re-circulated; and that the complaint concerned the wider question of administration of justice in the Court of Appeal;
3.
Upon considering the applicants’ further grounds that the mode of assessment of advocates fees after certification of costs in a Party & Party Bill of Costs did not arise directly in the appeal as it was not one of the grounds of appeal; that by requiring the Taxing Master to use Kshs 201,981,424.00 as the value of the subject matter without any appeal the Court of Appeal reduced the fees by more than 90% thereby interfering with property rights already accrued and without applying the doctrine of res judicata; and that the general public and specifically the legal profession will benefit from determination of these issues;
4.
Upon perusing the respondents’ replying affidavit sworn on November 30, 2022 by Vincent Oweya, the respondents’ Legal Officer; and their submissions dated December 14, 2022, which oppose the application on the grounds that the application does not raise any matter of general public importance to warrant the review and certification being sought; that the sole question is on the subject value principle of taxation of the Bill of Costs; that there is no contradiction in the judgment of the Court of Appeal; that the issues raised have no bearing on the public interest transcending the parties. The respondents rely on this court’s decision in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013]eKLR and Christopher Onyango & 23 others v Heritage Insurance Company Limited [2021] eKLR to buttress their arguments;
5.
Bearing in mind the provisions on this court’s jurisdiction under article 163(4)(b) of the Constitution, which grant this court jurisdiction to hear appeals from the Court of Appeal on matters of general public importance, and section 15B of the Supreme Court Act and rule 33(1) and (2) of the Supreme Court Rules, 2020 which provide for the right to review the Court of Appeal’s decision on certification of a matter as one of general public importance;
6.
Taking into account this court’s guiding principles on certification of a matter as one involving general public importance arising from the decision in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra); and
7.
Noting that the genesis and the main contention by the applicants in the initial suit is the taxation of their advocate-client bill of costs and specifically, the value of the subject matter, the Court of Appeal in its judgment having set aside the ruling of the Employment and Labour Relations Court for failure by the taxing officer to compute the instruction and getting up fee, respectively, as provided in the Advocates Remuneration Order resulting in an excessive award of Kshs 87,139,560.45, almost half the decretal sum of Kshs 201,981,424.50;
8.
We have considered the application, affidavits, submissions filed and the issues proposed to be certified as involving great public importance and now opine as follows:
i.
On whether the Court of Appeal may deliver a judgment without reading the record of appeal and whether judges did not read each other’s draft judgments, we find this to be a matter of apprehension and/or speculation, and not a matter of general public importance;
ii.
On the Court of Appeal’s delivery of three separate contradicting judgments, we have perused the appellate court’s judgment and the resulting orders and fail to see any contradiction as argued by the applicant, and none was pointed to us;
iii.
On the questions whether the Court of Appeal can hear an appeal in the absence of a notice of appeal; whether parties have a right to equal protection, enjoyment and benefit of the law; and the doctrine of res judicata, this court, just like superior courts below it has addressed and indeed settled those issues;
iv.
As for the manner in which advocates’ fees are to be determined after a Certificate of Costs is given in a Party & Party Bill of Costs, there is apparent discordance between increasing the certified party and party costs by one half or filing and taxing an Advocate-Client Bill of Costs. The Court of Appeal appreciated this dilemma and proposed, rightly so, that the appellate court should, through an expanded bench, have the first opportunity to resolve the issue, before escalating to this court. We agree with the Court of Appeal that this was not a matter that directly arose out of the appeal.
v.
The applicants’ taxation of their advocate-client bill of costs and specifically, the value of the subject matter, was a contest between the parties and cannot be a matter of general public importance that would transcend the parties; A mere apprehension of a miscarriage of justice, is a matter most apt for resolution in the lower superior courts, and is not a proper basis for granting certification for an appeal to the Supreme Court.
vi.
We are satisfied that the Court of Appeal correctly interrogated the applicants’ proposed issues under the threshold set by this court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) in arriving at its decision. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/29/eng@2023-04-21 |
Application E001 of 2023 | Kenya Agricultural Research Institute v Kariuki & 16 others (Application E001 of 2023) [2023] KESC 25 (KLR) (Civ) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Kenya Agricultural Research Institute v Kariuki & 16 others | [2023] KESC 25 (KLR) | null | Brief facts
The instant notice of motion application sought the extension of time within which to file and serve a notice of appeal. The applicant was aggrieved by two related decisions of the Court of Appeal and preferred an application for review. The applicant being dissatisfied with the decision of the Court of Appeal in dismissing its review application filed a notice of appeal dated May 11, 2022, on May 17, 2022, five (5) days late and served the same on the respondent on May 20, 2022.
The applicant claimed that the delay was inadvertent as it was due to the complexity of the issues as well as seeking approval following its internal protocols being a State corporation. Further, that the failure to file and serve the notice of appeal within time was also not intentional but due to counsel’s failure to advise the court clerk of the urgency of the matter and the deadline of May 12, 2022.
Issues
What were the guiding principles in extension of time and whether a delay of 7 months in filing an application for certification without explanation was reasonable.
| Upon perusing the notice of motion by the applicant dated January 20, 2023 and filed on January 26, 2023, anchored on rule 15(2) of the Supreme Court Rules, 2020 seeking for extension of time within which to file and serve a notice of appeal and costs of the application; and
2.
Upon considering the grounds on the face of the application and the two supporting affidavits both sworn on January 20, 2023 by Albert Wafula Munyakho, the applicant’s learned counsel and the learned counsel’s court clerk Onesmus Kisinga together with written submissions dated January 20, 2023 and filed on January 26, 2023, we note that the applicant was aggrieved by two related decisions of the Court of Appeal in Civil Appeal No 271 of 2015 Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute and Civil Appeal No 315 of 2015 Kenya Agricultural Research Institute v Peter Wambugu Kariuki & 16 others delivered on October 18, 2018 and December 21, 2018 respectively and preferred an application for review. The applicant being dissatisfied with the decision of the Court of Appeal delivered on April 28, 2022 in dismissing its review application, filed a notice of appeal dated May 11, 2022, on May 17, 2022, five (5) days late and served the same on the respondent on May 20, 2022. Applicant’s counsel contends that it was upon receiving instructions in January, 2023 to proceed with seeking certification in order to pursue an appeal that they noticed the error. Counsel relies on the cases of Seventh Day Adventist Church East Africa Ltd & 2 Others v Masosa Construction Company [2006] eKLR and Commissioner of Police & 2 others v Joseph Mburu Gitau & 641 others [2019] eKLR by the Court of Appeal to urge that the delay was inadvertent as it was due to the complexity of the issues as well as seeking approval following the applicant’s internal protocols being a state corporation. Further, that the failure to file and serve the notice of appeal within time was also not intentional but due to counsel’s failure to advise the court clerk of the urgency of the matter and the deadline of May 12, 2022.
3.
The applicant contends that the intended appeal raises grounds of general importance as the impact of the two conflicting decisions of the Court of Appeal arising from the same subject matter create huge public interest in the certainty, consistency and overall resolution of the disputes within the Judiciary. Further, relying on the decision in John Ochanda v Telkom Kenya Limited; SC Motion No 24 of 2014 [2014] eKLR, it is contended that the respondents, having been served with the notice of appeal on May 20, 2022, have been aware of the applicant’s intention to appeal to the Supreme Court and will not suffer any prejudice which cannot be adequately compensated by an order of costs.
4.
Upon perusing the respondents’ replying affidavit sworn by Peter Wambugu Kariuki, the 1st respondent, on February 3, 2023 and filed on February 7, 2023 together with submissions dated February 6, 2023 and filed on February 7, 2023, we note that the respondents contend inter alia that if the applicant found the two decisions of the court not to be legally sound, it should have appealed rather than sought to review the same; that contrary to its allegation, by the time the applicant elected to seek review, it had understood the import and purport of the two judgments; that the issues raised in the two Judgments are straightforward and not complex. Further, that the period between delivery of the judgments in the two related appeals in late 2018, filing and serving the notice of appeal on May 20, 2022 to January 2023 is too inordinate and has not been adequately explained; that no official of the applicant has sworn an affidavit to explain the delay and the allegation of the applicant’s internal approval protocols; and that it is mischievous for the applicant in the draft application for certification to seek to appeal both against the ruling delivered on April 28, 2022 and against the Judgment delivered on December 21, 2018 as an alternative prayer.
5.
The respondents further contend that the mere existence of conflicting judgments does not qualify a matter to be of general public importance; filing of documents in the Court of Appeal are done online and nothing stopped the applicant from filing its notice of appeal on the e-filing portal within the prescribed time. Further, the respondents point out that the decretal sum of Kshs 6,942,616.70 deposited in a joint interest-earning account pending determination of the applicant’s application for review, by a letter dated August 2, 2022, the parties agreed to have it released to the respondents, which means the judgment of the Court of Appeal has been fully executed rendering the intended appeal a mere academic exercise. Further, that whether or not an appeal is arguable is not one of the principles which a court must consider when dealing with an application for extension of time; and that the judgment of the Court of Appeal having been executed the applicant will not suffer any loss as it has paid the decretal sum save for costs.
We now pronounce as follows, bearing in mind all these submissions:
6.
Appreciating that the court, under rule 15(2) of the Supreme Court Rules, 2020 has unfettered discretionary powers to extend the time limited by the rules or by any of its decisions; that any person intending to appeal to the court is required by rule 36(1) of the Supreme Court Rules, 2020, to file a notice of appeal within fourteen days from the date of the decision intended to be challenged;
7.
Restating the guiding principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC Application No 16 of 2014; [2014] eKLR enunciated 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.
8.
Further restating the principles in the case of County Executive ofKisumu v County Government of Kisumu & 8 others SC Civil Application No 3 of 2016; [2017] eKLR where we emphasized the need for the applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the court; as well as the case Base Titanium Limited v County Government of Mombasa & another SC Petition (App) No 22 of 2018 [2019] eKLR, was echoed in GEO Chem Middle East v Kenya Bureau of Standards [2020] eKLR where we held that the principles for grant of an order of extension of time are that an applicant must give sufficient reasons for any delay and that the period of delay is nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
9.
Noting that in spite of the respondents’ contentions, the initial delay of five days in filing the notice of appeal is not inordinate and has been sufficiently explained by counsel. Be that as it may, the delay that concerns us is from service of the notice of appeal on May 20, 2022 to January 18, 2023 when the applicant elected to pursue an appeal before the Supreme Court, and in noting the error filed the instant application; a period of over seven (7) months. Though the Supreme Court Rules, 2020 do not prescribe a timeline within which a party must seek certification, a period of over seven(7) months without explanation cannot be termed as reasonable. Rule 38 of the Supreme Court Rules, 2020 requires the institution of an appeal within thirty (30) days from either the date of filing the notice of appeal or after the grant of certification, demonstrating the need to move with speed in pursuing an appeal before this court.
10.
Further noting that the applicant asks the court to apply the decision in Seventh Day Adventist Church East Africa Ltd & 2 others v Masosa Construction Company [2006] eKLR to find that the applicant, being a state corporation, had to follow its internal protocols before arriving at the decision to pursue an appeal and delays in making such decisions would be inevitable; that this was coupled with the time taken to understand and appreciate the effect of the two Judgments of the Court of Appeal;
11.
Bearing in mind that the respondents were served on May 20, 2022, they have been aware all along of the applicant’s intention to appeal. We however, also take note that by a letter dated August 2, 2022, the parties agreed to have the sum of Kshs 6,942,616.70 deposited in a joint interest-earning account pending determination of the applicant’s application for review, released to the respondents in fulfilment of the Judgment of the Court of Appeal.
12.
Considering that extension of time is an equitable remedy, the grant of which involves the exercise of judicial discretion and that equity aids the vigilant and not the indolent, we have great difficulty reconciling a party that lodges its notice of appeal on May 17, 2022, on August 2, 2022 releases funds to its opponents in fulfilment of the Judgment of the Court of Appeal yet waits another five (5) months before arriving at a decision to pursue an appeal to this court by way of certification. Reiterating our finding in Hassan Nyanje Charo v Khatib Mwashetani & 3 others; SC Application 15 of 2014[2014] eKLR the concept of timelines and timeliness is a vital ingredient in the quest for efficient and effective governance under the Constitution which must be adhered to.
13.
For the aforestated reasons we find that the applicant’s explanation in the circumstances is neither reasonable nor satisfactory and great prejudice will be occasioned to the respondents if the application was to be allowed.
14.
Accordingly, we are persuaded that in the circumstances, the instant application lacks merit and hereby make the following orders:
a.
The notice of motion dated January 20, 2023 and filed on January 26, 2023 seeking to extend time within which to file a notice of appeal be and is hereby dismissed.
b.
The applicant to bear the costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/25/eng@2023-04-21 |
Petition 8 of 2020 | Law Society of Kenya v Communications Authority of Kenya & 10 others (Petition 8 of 2020) [2023] KESC 27 (KLR) (21 April 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 21 April 2023 | 2,023 | Nairobi | Civil | Law Society of Kenya v Communications Authority of Kenya & 10 others | [2023] KESC 27 (KLR) | null | A. Introduction
1.
The subject matter of this appeal is the proposed installation of a device management system on mobile networks by the 1st respondent, Communication Authority of Kenya.
2.
The Law Society of Kenya, the appellant herein, has challenged the decision of the Court of Appeal in its judgment of April 24, 2020, which allowed the 1st respondent to continue developing the Device Management System hereinafter referred to as DMS on condition that the guidelines or regulations on its installation be subjected to public participation.
3.
The appellant instituted the appeal pursuant to article 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act 2011 and rule 9(1), 33 (2) of the Supreme Court Rules 2020. The appellant also alleges infringement of rights as provided under articles 10, 22 (3) (b), 24, 31, 46 and 47 of the Constitution.
B. Background
4.
In 2011, the East Africa Communications Organization, in a bid to counter the global theft of mobile devices and the proliferation of counterfeit or illegal devices recommended that the mobile service operators in the member countries would implement an Equipment Identification Register (EIR) which is an International Mobile Equipment Identification (IMEI). Following various stakeholder consultations, the 1st respondent implemented the first phase of its strategy to deal with stolen and counterfeit devices. Consequently, Mobile Service Providers, handset vendors and the 1st respondent entered into a memorandum of understanding on verification of genuine mobile handsets in Kenya which resulted in the switch off of 1.89 million illegal mobile handsets by September 30, 2012.
5.
Despite the initial phase’s success, counterfeit phone vendors grew more sophisticated and according to the submissions of the 1st respondent, this necessitated a more robust strategy to deal with the issue. In 2016, the 1st respondent rolled out steps towards the implementation of the Device Management System (DMS) which is a centralized Equipment Identification Register that would have access to the International Mobile Equipment Identification database by mobile network operators.
6.
In undertaking the implementation of the Device Management System, the 1st respondent engaged with Mobile Network Operators on various dates and had a series of meetings to discuss the process of implementation. Following the meetings, there were a series of letters issued by 1st respondent to the Mobile Network Operators which included the 7th, 8th and 9th respondents. By letters dated January 31, 2017 and February 6, 2017, the 1st respondent requested the Mobile Network Operators to provide it with access to information on the International Mobile Equipment Identification (IMEI), International Mobile Subscriber Identity (IMSI) which is the number assigned by the 1st respondent for uniquely identifying the subscribers and Mobile Station Integrated Subscriber Directory number (MSISDN), a number assigned to each subscriber by a mobile service provider. The purpose of the request was for 1st respondent’s technical team to conduct a survey and installation of the Device Management System. This precipitated the filing of a constitutional petition before the High Court and subsequently an appeal to this court.
| D. Preliminary Objection: Submissions
24.
When this matter came before the court for formal hearing of oral submissions on October 19, 2022, Counsel for the 1st respondent Prof Githu Muigai raised a preliminary objection on the issue of jurisdiction. Having heard the submissions of all parties, it is the opinion of the court that the preliminary matter ought to be disposed of at this stage, before going into the merits or otherwise of the appeal itself.
25.
The 1st respondent has stated that appellant has wrongfully invoked the jurisdiction of this court, stating it is not a proper party before this court and that even where the appellant claimed it is exercising its statutory mandate, a reading of the Supreme Court Act and regulations show that the appellant does not constitute ‘a person’ who has locus. The 1st respondent made reference to relevant case law, including, Elijah Sikona and George Pariken Narok, on Behalf of Trusted Society of Human Rights Alliance v. Mara Conservancy and Five Others [2014] eKLR and the case of Mumo Matemu & Trusted Society of Kenya Rights Alliance [2014] eKLR. The 1st respondent urged that the appellant had filed a fresh petition and not an appeal from the Court of Appeal; and further that it did not meet the requirements of article 163(4) of the Constitution as in any event it required certification.
26.
The appellant has opposed the preliminary objection and filed written submissions on the same. The appellant submitted that article 22 and 258 of the Constitution was not only applicable to the High Court but also to the Supreme Court. The appellant argued there was a wide-ranging locus provided for in rule 36 of the Supreme Court Rules, that allowed for its participation in the appeal. Additionally, the appellant submitted that no law forbids a non-party like the appellant from appealing from a judgment in rem in public interest litigation. Counsel for the appellant further asserted that the petition which challenges the rights to privacy, is admissible under article 163(4)(a) of the Constitution. In support of its submissions, the appellant cited the case of Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 others [2014] eKLR.
27.
The appellant further distinguished this court’s decision in the cases of Jeniffer Koinante Kitarpei v Alice Wahito Ndegwa & another [2015] eKLR and Board of Management Visa Oshwal Primary School v Shree Visa Oshwal Community Nairobi Registered Trustees & 4 others [2022] eKLR which neither involved an appeal as of right under article 163(4)(a) of the Constitution nor invoked article 22 and 258 of the Constitution or rule 36 of the Supreme Court Rules unlike in the instant appeal. The appellant further submitted that its mandate, under section 4 of the Law Society of Kenya Act, is to uphold the Constitution of Kenya and advance the rule of law and the administration of justice, and to protect and assist the members of the public in Kenya in matters relating to or ancillary or incidental to the law.
E. Finding
28.
Upon considering the preliminary objection raised in limine by the 1st respondent and upon hearing the oral arguments by the parties in court, and the submissions in opposition filed by the appellant, the issue for determination is whether this court has jurisdiction to hear and determine this appeal and whether the appellant is a proper party before this court and has locus standi in this appeal. This court in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR held that the issue of locus standi raises a point of law which touches on the jurisdiction of the court, and it should be resolved at the earliest opportunity.
29.
In filing the instant appeal, the appellant invoked the court’s jurisdiction under article 163(4)(a) of the Constitution and rule 36 of the Supreme Court Rules. The appellant further invoked article 22 and 258 of the Constitution to give it a legal standing in this matter. We now turn to consider the jurisdictional ambit invoked by the appellant in filing the instant appeal.
30.
Firstly, appeals raising constitutional issues and filed by the appellant as a matter of right under article 163(4)(a) of the Constitution must meet the constitutional threshold on jurisdiction of this court. In the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR the court’s jurisdictional test was underscored giving rise to following principles for consideration. The principles being, whether an appeal raises a question of constitutional interpretation or application, whether the constitutional issues were canvassed in the superior courts and whether the determination of the constitutional issues has progressed through the normal appellate mechanism so as to reach this court by way of an appeal filed under article 163(4)(a) of the Constitution.
31.
Additionally, in the cases of Gitirau Peter Munya vs Dickson Mwenda & 2 others [2014] eKLR and Lawrence Nduttu & 6000 others v Kenya Breweries Limited & another [2012] eKLR this court determined the question of jurisdiction and pronounced itself as follows:
‘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.’
32.
The crux of the appellant’s case before us is that it challenges the determination of the judgment of the Court of Appeal on the grounds that the learned judges erred in applying the wrong standard of review in appeals requiring constitutional interpretation and application. The appellant maintained that the Court of Appeal made inferences, findings and conclusions that were inconsistent with the evidence on record while ignoring pleadings, evidence and submissions. The appellant further challenged that the Court of Appeal failed to find that the DMS to be rolled out by the 1st respondent limits the right to privacy and faulted the finding of the court that it was premature for the 1st respondent to adjudicate public participation.
33.
Gleaning from the record, we find that the issues for determination before the superior courts and more so the Court of Appeal relate to the application of the Constitution in relation to the installation of a Device Management System by the 1st respondent which will affect millions of mobile phone subscribers. And with this, came the challenge of the intent, utility, procurement and usage of the system. Be that as it may, the question that arises now before us, is whether the party adjudicating this matter is properly before this court.
34.
The appellant relied on rule 36 of the Supreme Court Rules which provides wide locus for any party to institute an appeal before this court. Rule 36 stipulates that; ‘A person who intends to make an appeal to the Court shall file a Notice of Appeal within fourteen (14) days from the date of judgment or ruling is which is the subject of appeal.’ The scope of who ‘a person’ is, should mirror the jurisdiction of this court. Article 163(3)(a) and (b) of the Constitution provides that the jurisdiction of the court shall be exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the President and appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
35.
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts. A person in this context should therefore be a party with locus standi in the matter.
36.
The Court of Appeal in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR held as follows on the sanctity of a suit in court:
‘A suit in court is a solemn process, owned solely by the parties. This is why there are laws and rules, under the Civil Procedure Code, regarding parties to suits, and who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined to a suit as an interested party, this new party cannot be heard to seek to strike out the suit on the grounds of defective pleadings.’
37.
Further, in the case of Kingori v Chege & 3 others [2002] 2 KLR 243 the High Court described a proper party in a suit as follows; ‘A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognisable in the court of law being an interest, which the court will enforce.’ We agree with these observations of the superior courts regarding this issue of who can be a proper party before a court. Therefore, while we recognise the objectives of the appellant as provided for in section 4 of the Law Society of Kenya Act, 2014, we find that it is not and cannot be a proper party in this appeal.
38.
Lastly, the appellant invoked the provisions of articles 22 and 258 of the Constitution in preferring the appeal. Article 22 of the Constitution provides that ‘every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.’ The Court of Appeal in Mumo Matemu cited above described that ‘a person’ in this regard, includes one who acts in the public interest. Be that as it may, we find that while article 22 of the Constitution provides a pathway for parties to contest the denial, violation or infringement of a right or fundamental freedoms, the proper avenue is at the High Court which grants that court jurisdiction to determine questions of denial, violation or infringement of a right or fundamental freedom.
39.
In view of the above, we determine that this court does not have jurisdiction to hear and determine the instant petition of appeal. Similarly, the cross appeal finds itself with no legs to stand on. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/27/eng@2023-04-21 |
Application E008 of 2023 | Megvel Cartons Limited v Diesel Care Limited & 2 others (Application E008 of 2023) [2023] KESC 24 (KLR) (Civ) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Megvel Cartons Limited v Diesel Care Limited & 2 others | [2023] KESC 24 (KLR) | null | Upon reading the notice of motion by the applicant dated February 28, 2023 and filed on March 2, 2023, brought pursuant to article 163(4)(a) of the Constitution, sections 21 (1)(a) and 24 of the Supreme Court Act, 2011 as well as rules 3(5), 31 and 32 of the Supreme Court Rules, 2020 for orders that;
1.
Spent…
2.
Spent…
3.
Spent…
4.
Pending the hearing and determination of Petition No E003 of 2023 (the Appeal) this court be pleased to issue an order of injunction restraining the 1st respondent herein whether by themselves, their agents, servants, employees, invitees and/or otherwise whomsoever from entering upon or trespassing, disposing of, dealing, alienating, occupying or in any way whatsoever interfering with the applicant’s proprietary rights including the right to quiet possession and enjoyment over all that piece of land known as LR 25064 (IR 85088) (Formerly known as LR No 1504/11 (IR 85400)) situate in Mavoko Township, Machakos County (the suit property), before its surrender for change of user;
5.
Pending the hearing and determination of the appeal this court be pleased to stay execution of the judgment and decree of the ELC (Angote, J) delivered on January 26, 2018 in Machakos ELC No 166 of 2011 as affirmed by the Court of Appeal decision on February 17, 2023 in Civil Appeal No 70 of 2018; and
6.
Costs of and incidental to this application do abide the outcome of the main appeal.
2.
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn on February 28, 2023
3.
Upon considering the applicant's submissions dated February 28, 2023 and filed on March 2, 2023, to the effect that, this court has jurisdiction to determine the appeal under article 163(4)(a) of the Constitution as it raises important arguable constitutional issues on account of breach of the applicant’s property rights under article 40; that the Court of Appeal breached the applicant’s right to fair hearing under article 50(1) as read with article 25(c) of the Constitution; that the Court of Appeal’s findings were in contravention of the principle of stare decisis under article 163(7); and that the Court of Appeal abdicated its duty under article 164(3) to re-evaluate the evidence on record and arrive at its own independent conclusions; and
4.
Further, noting the applicant’s submission that it is faced with two significant immediate threats of eviction from the suit property being, the application by the 1st respondent to forcefully evict the applicant and criminal charges proffered against the applicant’s director for the offences of forgery and forcible detainer in Criminal Case No 238 of 2019 Republic v Prasul Jayantilal Shah; that the applicant has been in occupation of the suit property where it has been operating a factory for the past 12 years and it has made significant investment therein to the tune of Kshs 1.2 billion and presently employs over 700 Kenya citizens; that should it be evicted from the suit property, it stands to suffer irreparable loss as well as the loss of livelihood of its employees; and that it is in the interest of justice and in public interest to grant the orders sought; and
5.
Also noting the 1st respondent’s grounds of opposition and submissions dated March 10, 2023 and filed on even date wherein it contends that;
i.
The single core issue before the ELC and Court of Appeal was which of the two titles of the suit property was the genuine one, whether that held by the applicant or that of the 1st respondent. Both superior courts below held that the applicant’s title was a forgery. For this reason, the applicant did not plead and/or argue any constitutional issues for interpretation and/or application in the ELC or in the Court of Appeal.
ii.
This court lacks jurisdiction to hear and determine both the application and the appeal for the reason that the appeal does not meet the jurisdictional threshold of the Constitution under article 163(4)(a) as read with section 15(2) of the Supreme Court Act as it is not an appeal involving the interpretation and/or application of the Constitution.
iii.
The application and appeal are, in the result improperly before this court and incurably defective as there is no automatic right of appeal and leave to appeal has not been sought therefore the petition ought to be struck out.
iv.
Since the petition upon which the application is premised is fatally flawed, according to the 1st respondent, the application lacks merit and the applicant has failed to satisfy the principles for the grant of the relief of interlocutory injunctive orders and stay of execution.
6.
Bearing in mind that the 2nd and 3rd respondents have not filed any responses to both the application and the petition; and | Having considered the application, grounds of opposition, and submissions before us, we now opine as follows:
i.
This being an application for stay of execution, it is well established 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 that, it is in the public interest that the order of stay be granted. See Gatirau Peter Munya v Dickson Mwenda & 2 others, SC Application No 5 of 2014, [2017] eKLR.
ii.
The instant motion was filed in a separate file being No E008 of 2023 from the petition of appeal which is in No E003 of 2023 and which we have taken the liberty to peruse, to satisfy ourselves as to its arguability.
iii.
We emphasized the need to do this in Kenya Hotel Properties Limited v Attorney General & 5 others, SC Application No 27 of 2020; [2020] eKLR, as follows:
“
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.” [our emphasis]
iv.
We reiterate the well-known line, that jurisdiction is everything and that without it, a court has no power to make one more step; that a court’s jurisdiction flows from either the Constitution or legislation or both; and that jurisdiction cannot be expanded through judicial craft or innovation. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR.
v.
It follows that we must, in limine, be satisfied that the applicant has properly invoked the jurisdiction of this court; and
vi.
Guided by the principles set out by this court in numerous cases, we restate, first, that an appeal within the ambit of article 163(4)(a) of the Constitution is to be one founded on cogent issues of constitutional controversy; second, that the mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within article 163(4)(a); third, that for an appellant to bring an appeal under this article, it must be shown that the issues determined by the Court of Appeal arose from the High Court or any court below it and involved the interpretation or application of the Constitution; and lastly, that 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 this court under the provisions of article 163(4)(a). See Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR; and Erad Suppliers & General Contractors Limited v National Cereals & Produce Board, SC Petition No 5 of 2012; [2012] eKLR.
vii.
We note in the above context that, the applicant’s case before the two superior courts below did not involve the interpretation and application of the Constitution. The gravamen of the case before those courts was the validity of the two titles held by the applicant and the 1st respondent; and the question to be answered was which one of the two was the genuine legitimate title. A perusal of the judgment of the Court of Appeal would indeed show that save for the introductory statement that “The right to property is a right enshrined in the Constitution under article 40.”, at no point did the court venture to address any constitutional question, because there was none. Likewise, the Judgment of the ELC, did not address any constitutional issues.
viii.
In the petition before this court, the applicant now faults the Court of Appeal for allegedly violating articles 25(c), 50(1), 163(7) and 164(3) of the Constitution. Among the issues the applicant proposes to be determined in the petition is whether a surrender for purposes of a change of user transmutes private land into public land under article 62(c) of the Constitution making it available for allocation by the government to third parties.
ix.
Even though the applicant now alludes to infringement of constitutional rights, no such claim was made before both superior courts below. The issue of the validity of the titles, which involved a factual examination of the origin of the two titles, cannot mutate at this stage into a constitutional question, without the benefit of arguments by the parties and determination before the courts below.
x.
In the circumstances, we come to the conclusion that the first limb for the grant of the relief of stay of execution has not been satisfied and further that the court’s jurisdiction under article 163(4)(a) of the Constitution has improperly been invoked.
xi.
For the foregoing reasons, we must find that we have no jurisdiction to determine the appeal and must down tools as the three conditions precedent laid in Gatirau Peter Munya v Dickson Mwenda & 2 others have not been met.
xii.
In view of the circumstances of this case, we follow the course we adopted in Trattoria Limited v Joaninah Wanjiku Maina & 3 others, SC Petition (Application) No E029 of 2022, where the court’s power under section 18 of the Supreme Court Act to summarily dismiss a petition, reference or an application, which are wholly defective was restated. Like in that application, we have found here that the court lacks jurisdiction to entertain both the application and the appeal.
xiii.
We take this course fully alive to the well-known principle that the question of jurisdiction can be raised at any point in the proceedings, on appeal and even suo moto. The foundation of the petition of appeal is indeed built on quicksand. Its fate, no matter how long it is delayed, is inevitable. Consequently, we find that the notice of motion dated February 28, 2023 lacks merit and is hereby dismissed for want of jurisdiction. Likewise, and for that very reason, the petition of appeal is incompetent and is also struck out.
xiv.
As costs follow the event and are awardable as a matter of discretion, we direct that costs in this application shall be paid by the applicant to the 1st respondent.
8.
Accordingly, we make the following orders:
a.
The notice of motion dated February 28, 2023 is hereby dismissed.
b.
The petition of appeal No E003 of 2023 dated February 27, 2023 is hereby struck out for want of jurisdiction.
c.
The applicant shall bear the costs of this application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/24/eng@2023-04-21 |
Petition (Application) 2 (E002) of 2021 | Okoiti & 2 others v Attorney General & 14 others (Petition (Application) 2 (E002) of 2021) [2023] KESC 31 (KLR) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Okoiti & 2 others v Attorney General & 14 others | [2023] KESC 31 (KLR) | null | Brief facts
The instant application sought the review and vacation of the order on costs against the applicant in the ruling delivered by a single judge of the court and an order that there be no costs whatever the outcome of the application. The applicant claimed that the judge awarded costs against the applicant purely on the ‘costs follow the event' rule and without any finding of bad faith, ill motive, misconduct or frivolity on its part. The applicant further claimed that the single judge’s determination on costs was infirm because the judge failed to consider all relevant factors necessary to the determination of costs payable by a losing party. The applicant also claimed that the judge awarded costs to the 13th and 14th respondent who had, through their advocates, decided not to participate in the proceedings and instead left the matter entirely in the hands of the court.
Issues
Whether public interest litigants should seek costs should they succeed in the litigation.
What was the primary consideration in constitutional litigation when awarding costs?
Whether costs could be awarded to a party that had not spent time or resources in prosecuting or defending a matter.
Whether a larger bench of the Supreme Court could review the decision of a single judge of the Supreme Court where an injustice was apparent in the decision.
| 1.
Upon perusing the notice of motion by Katiba Institute, the applicant, dated February 28, 2023 brought pursuant to section 23(3C) (sic) for review and to vacate the order on costs against the applicant in the Ruling delivered by a single judge of this court (Mwilu DCJ & VP) onFebruary 17, 2023 and an order that there be no costs whatever the outcome of this application; and
2.
Upon considering the grounds in support of the application and the supporting affidavit of Christine Nkonge, the Executive Director of the applicant, wherein the applicant claims that:
i.
the applicant understands that a single judge’s determination of an application seeking review of a decision made by the Registrar- under rule 6(3) of this Court’s Rules is final but that the applicant is only aggrieved with the order on costs and not the substantive decision;
ii.
the single judge awarded costs against the applicant purely on the ‘costs follow the event rule’ and without any finding of bad faith, ill motive, misconduct or frivolity on its part;
iii.
the single judge’s determination on costs is infirm because the Judge failed to consider all relevant factors necessary to the determination of costs payable by a losing party and failed/and or improperly exercised her discretion by failing to take into account relevant past judicial determinations on costs;
iv.
that the single judge awarded costs to the 13th and 14th respondent who had, through their advocates, Messrs Nderitu & Partners, decided not to participate in the proceedings and instead left the matter entirely in the hands of the court; and
3.
Also noting the applicant’s submissions dated February 28, 2023 and filed on March 1, 2023 wherein it is contended that this court can review its decision undersection 23(3C) of the Supreme Court Act irrespective of the finality clause in rule 6(3) of the Supreme Court Rules; its submission that the single judge’s decision is one for review as the decision on costs was exercised improperly; further, that this court has in past decisions, found that though costs follow the event, public interest matters are exempted from the rule with reliance placed on Jasbir Singh Rai v Tarlochan Singh Rai, SC Petition 4 of 2012 [2014] eKLR (the Rai case) as well as Mumo Matemu v Trusted Human Rights Alliance & 5 others, SC Civil Application No. 29 of 2014 [2014] eKLR and Kenya Revenue Authority v Export Trading Company Ltd, SC Petition 20 of 2022 [2022] to buttress that point and lastly; that the applicant has argued that the matter was filed in the public interest, presented a momentous issue and that awarding costs against a bona fide public interest litigant without evidence of bad faith on its part is also inconsistent with this court’s stated policy and practice.
4.
In the above context, we now opine as follows:
i.
The sole issue before thiscourt is whether the single judge exercised her discretion judiciously in finding that the applicant should bear the costs of the 1st, 2nd ,3rd 13th, 14th and 15th respondents and that the said decision should be reviewed. We note in that regard that this court has jurisdiction under section 23(2C) of the Supreme Court Act, 2011 to review the decision of a single judge. Section 23(2C) reads in part:
“
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.”
ii.
We are also alive to rule 6(3) of the Supreme Court Rules, 2020 which provides that:
“
A determination by the single judge on the decision of the Registrar shall be final.”
iii.
In Parliamentary Service Commission v Martin Nyaga Wambora & others, SC Application No 8 of 2017 [2018] eKLR we came up with guiding principles for application (s) for review of a decision of the court made in exercise of discretion with one of the principles listed to be:
“The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise (sic) 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.
In the Rai case we addressed the issue of award of costs and specifically in public interest matters in the following terms:
“
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously- exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior- to, during, and subsequent-to the actual process of litigation.” [Emphasis ours]
v.
Njoki SCJ’s finding in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, SC Application No 29 of 2014 [2014] eKLR is also relevant to the determination of the present application as she explained the essence of public interest litigation by stating:
“Public interest litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation…In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the court has discretion on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it…”
vi.
The Constitutional Court of South Africa in Biowatch Trust v Registrar Genetic Resources and others (CCT 80/08) [2009] ZACC 14 in addressing costs in matters filed in the public interest and alleging constitutional violations was of the view-and we agree-that:
“
Equal protection under the law requires that costs awards not be dependent on whether the parties are acting in their own interests or in the public interest. Nor should they be determined by whether the parties are financially well- endowed or indigent... The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice.”
vii.
Public interest litigation aims to address genuine public wrongs where legal action is initiated for the enforcement and advancement of constitutional justice and public interest. While doing so, public interest litigants must not themselves fall into the temptation of seeking for costs should they succeed in the litigation because by doing so, self-interest, and not public interest, will be apparent and they would in such situations be amenable to an adverse order on costs should they not succeed. Again, as we have stated above and reiterated the finding by the Constitutional Court of South Africa in Biowatch, the primary consideration in public interest constitutional litigation should always be seen to be the need to promote access to justice and not self-interest per se.
viii.
Turning to the present application, we have to address section 23(2C) as well as rule 6(3) aforesaid as the application in which costs were awarded against the applicant arose from a decision by the Registrar and under rule 6(3) the decision of the single judge ought to be final. Would section 23(2C) be applicable in the circumstances? Two issues have been raised by the applicant as the basis for review of the single judge decision; the public interest litigation issue and the apparent erroneous grant of costs to the 13th and 14th respondents.
ix.
The grant of an order of costs to the 13th and 14th respondents portends no difficulty as it is obvious to us that they did not participate in any meaningful way and which would entitle them to costs. Costs are not awarded to a party that has not spent time or resources in prosecuting or defending a matter and the ‘costs follow the event’ principle would in the circumstances not be applicable. We are in the circumstances satisfied that, under section 23(2C) we have the jurisdiction to overturn the exercise of discretion by the single judge.
x.
On the award of costs to the remaining respondents, and whether the public interest litigation argument can be sustained, we have read the record as well as the single judge ruling. The nature of the litigation between the parties did not feature at all as the substance of the ruling was the timeline for filing of a notice of appeal to this court. The single judge found that the applicant had failed to adhere to that timeline without a plausible explanation. In the present application, it is argued that the intended appeal as well as proceedings before the superior courts below related to a public interest matter and so costs should not follow the event as ordered by the single judge. What was the public interest matter? The appointment of members of the National Land Commission and whether the Constitution was followed in that process. Furthermore, the Court of Appeal also directed the parties to bear their own costs and it would therefore be unjust for this court to penalize the applicant in any proceedings before us.
xi.
We are satisfied that the principle in the Rai case is applicable to the present application-that where an injustice is apparent in the single judge decision, a larger Bench can undo the injustice and the finality clause in rule 6(3) would not be a bar to a review of that decision more so on the narrow issue of costs. The public interest element in the case before the superior courts below is obvious and so the costs follow the event order was made in error by the single judge. In stating so, we are not in any way invalidating that rule because it serves a useful purpose in proceedings before this court.
xii.
In the circumstances, we are in agreement with the applicant that the proper order to have been made by the single judge is that there would not have been reason to order the applicant to pay costs to the respondents, and in the present application, the applicant is also not to benefit from an award of costs.
5.
Accordingly, we make the following orders:
a.
The notice of motion dated February 28, 2023 is hereby allowed.
b.
There shall be no order as to costs.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/31/eng@2023-04-21 |
Petition 18 (E020) of 2022 | Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Petition 18 (E020) of 2022) [2023] KESC 28 (KLR) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others | [2023] KESC 28 (KLR) | null | Brief facts
The instant application sought to have the record of appeal dated April 19, 2022 and lodged on July 29, 2022 be struck out and the appeal dismissed. The applicants contended that the appellants had omitted pleadings/documents from their record of appeal that the court required to determine the appeal in the unlikely event the court went beyond the two certified questions of law and interrogates the factual findings by the Court of Appeal. The applicants further contended that they would have no legal avenue to introduce the omitted documents into the record, denying them a right to a fair trial, necessitating striking out of the record of appeal as the appropriate remedy.
The respondents argued that the notice of appeal was not one of the documents required to be included in the record of appeal; that the judgment of the Court of Appeal having been rendered on April 4, 2019, the respondents duly filed their notice of appeal as acknowledged by the Deputy Registrar on April 18, 2019; that the same was transmitted to the court on the same day;
Issues
Whether it was mandatory for an appellant to precede an application for review of certification by the filing of a notice of appeal.
What was the purpose of a notice of appeal?
What were the contents of a record of appeal to the Supreme Court?
Whether failure to submit a notice of appeal that was stamped or endorsed by the Court of Appeal to the Supreme Court was fatal.
| .Upon perusing the notice of motion by the 3rd and 4th respondents dated December 2, 2022 and filed on December 5, 2022, pursuant to rules 3(5), 31, 36 (3), and 40(1)(i)(d) of the Supreme Court Rules, 2020 seeking to have the Record of Appeal dated April 19, 2022 and lodged on July 29, 2022 be struck out and the appeal dismissed; and
2.
Upon considering the grounds in support of the application; the supporting affidavit sworn on December 2, 2022 by Ateet Dinesh Jetha, written submissions dated December 5, 2022 and filed on even date; and rejoinder submissions dated December 19, 2022 and filed on even date; wherein the applicants contend that contrary to rule 40(1) of the Supreme Court Rules, 2020 the appellants have omitted pleadings/documents from their record of appeal that this court requires to determine the appeal in the unlikely event the court goes beyond the two certified questions of law and interrogates the factual findings by the Court of Appeal; that the appellants chose not to file the said documents despite this omission having been brought to their attention; that the respondents will have no legal avenue to introduce the omitted documents into the record, denying them a right to a fair trial, necessitating striking out of the record of appeal as the appropriate remedy;
3.
Upon considering the applicants’ further argument that this court lacks jurisdiction to determine the appeal as the notice of appeal filed by the appellants is fatally defective as it was neither stamped as received/filed by the Court of Appeal, endorsed by the Deputy Registrar of the said court nor transmitted to the Registrar of this court as required under rule 36 (3) of the Supreme Court Rules; that in any event since the title of the notice of appeal is indicated as relating to the application for certification and leave to appeal to this court, the same does not relate to the judgment delivered on April 4, 2019. The applicants rely on the Court of Appeal decision in Salama Beach Hotel Ltd v Kenyariri & Associates [2016] eKLR and this court’s decision in Bookpoint Limited v Guardian Bank Limited & another [2021] eKLR;
4.
Cognisant that the applicants had filed a notice of preliminary objection dated November 24, 2022 and filed on November 25, 2022 based on the same grounds and the 1st and 2nd respondents did not respond to the application though they had filed a replying affidavit to the main appeal;
5.
Upon considering the 5th and 6th respondents’ written submissions dated December 14, 2022 and filed on December 16, 2022 in support of the application, where they reiterate the averments by the applicants and affirm that the exclusion of the documents would be highly prejudicial to the respondents taking into account that the appellants failed to take advantage of rule 40(4) of the Supreme Court Rules to file the documents;
6.
Upon considering the appellants’ replying affidavits of Arvind Shah, Grace Odhiambo Odongo and Fredrick Kinyua Kamundi sworn on December 9, 2022 and filed on December 13, 2022 and the written submissions dated December 9, 2022 and filed on December 13, 2022 where they contend that the Record of Appeal presented in this matter contains all the documents as stipulated under rule 40 (1) of the Supreme Court Rules, 2020; that they are required to annex all documents relevant to determine the appeal and not to annex every document that has ever been filed since the dispute started; that in any case, exclusion ought not to warrant striking out of the entire appeal; in the alternative, if this court desires to obtain information that was part of the superior court’s record it may on its own motion call upon such files for its perusal; that the respondents having filed their responses by November 17, 2022 neither one of them raised any allegation that there are material documents that were missing which would be prejudicial upon them for it was an afterthought; and
7.
Upon further consideration of the appellants’ argument that the notice of appeal is not one of the documents required to be included in the record of appeal; that the judgment of the Court of Appeal having been rendered on April 4, 2019, the appellants duly filed their Notice of Appeal as acknowledged by the Deputy Registrar on April 18, 2019; that the same was transmitted to this court on the same day through this court’s sub-registry in Mombasa; that the impugned notice of appeal in comparison with the one they have now produced is similar despite the former missing the Deputy Registrar’s stamp; that the impugned notice mistakenly refers to it being filed in respect to an application for leave to appeal to this court but it is clear in the body that the appeal is against the judgment of the Court of Appeal. The appellants cite Lemanken Aramat v Harun Meitamei Lempaka & 2 others SC Petition No 5 of 2014 [2014] eKLR to assert that the allegations raised by the applicants are unmeritorious since the imperfections in the impugned Notice do not prejudice the parties;
8.
Taking into account the ruling made on July 8, 2022 by this court, reviewing the ruling of the Court of Appeal and certifying this matter as one of general public importance and framing two issues the basis upon which leave was granted; and the fact that the respondents had raised objections to our jurisdiction, inter alia, on the very ground of defective Notice of Appeal.
9.
Having carefully considered the application, responses, submissions put forth and the record, we now opine as follows:
a.
Rule 36 of the Supreme Court Rules mandates the appellant to file a notice of appeal within fourteen (14) days from the date of judgement and transmit a copy to the registrar of this court. In our ruling of July 8, 2022, we noted that it was not mandatory for the appellant to precede the application for review of certification by the filing a notice of appeal. Rule 36(4) provides that 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.
b.
We have previously held that a notice of appeal is a jurisdictional pre- requisite whose filing signifies the intention to appeal (see Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; SC Application No 16 of 2014, [2014] and University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020] eKLR, respectively). From the record, we are satisfied that the intention to appeal was signified vide the notice of appeal filed on July 29, 2022 as submitted alongside the petition of appeal filed in this matter. We are also satisfied that the notice of appeal was filed before the Court of Appeal within the timelines stipulated.
c.
Even though the title of the notice of appeal filed herein 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 appellants’ 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 this court, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal. We do not see the need to entangle ourselves in the filing and administrative processes by the Court of Appeal, as to the stamping and signing by the registrar of that court as we are satisfied that the notice of appeal was duly lodged before the Court of Appeal.
d.
Rule 40 (1) of the Supreme Court Rules lists the contents of the record of appeal as: (i) a certificate, if any, certifying the matter as of general public importance; (ii) the judgment or ruling of the Court of Appeal being appealed from; (iii) a judgment or ruling of the High Court or a court of equal status; and (iv) the relevant pleadings required to determine the appeal. As per the applicants, the documents stated to be excluded thereby making the record of appeal incomplete are the consent order of the agreed issues in the High Court which is quoted in verbatim in the High Court judgment, notification of sale by Dolphin Auctioneers, valuation report by Tysons Ltd, copies of cheques, banking slips and bank statements. This being a matter of general public importance that raises specific questions as framed, we think these documents are only useful in interrogation of findings of facts which does not fall within the purview of this court. We do not find them relevant or necessary in determination of this appeal.
e.
Article 159 (2) (d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. Therefore, even though the respondents submitted a notice of appeal not stamped or endorsed by the Court of Appeal, the same is not fatal. The notice of appeal did fulfil its purpose of conferring the appellants’ intention to appeal.
f.
Let this matter be determined on the framed issues. Costs to abide the outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The notice of motion dated December 2, 2022 and filed on December 5, 2022 by the 3rd and 4th respondents be and is hereby dismissed.
ii.
Costs shall abide the outcome of the appeal.
Upon perusing the notice of motion by the 3rd and 4th respondents dated December 2, 2022 and filed on December 5, 2022, pursuant to rules 3(5), 31, 36 (3), and 40(1)(i)(d) of the Supreme Court Rules, 2020 seeking to have the Record of Appeal dated April 19, 2022 and lodged on July 29, 2022 be struck out and the appeal dismissed; and
2.
Upon considering the grounds in support of the application; the supporting affidavit sworn on December 2, 2022 by Ateet Dinesh Jetha, written submissions dated December 5, 2022 and filed on even date; and rejoinder submissions dated December 19, 2022 and filed on even date; wherein the applicants contend that contrary to rule 40(1) of the Supreme Court Rules, 2020 the appellants have omitted pleadings/documents from their record of appeal that this court requires to determine the appeal in the unlikely event the court goes beyond the two certified questions of law and interrogates the factual findings by the Court of Appeal; that the appellants chose not to file the said documents despite this omission having been brought to their attention; that the respondents will have no legal avenue to introduce the omitted documents into the record, denying them a right to a fair trial, necessitating striking out of the record of appeal as the appropriate remedy;
3.
Upon considering the applicants’ further argument that this court lacks jurisdiction to determine the appeal as the notice of appeal filed by the appellants is fatally defective as it was neither stamped as received/filed by the Court of Appeal, endorsed by the Deputy Registrar of the said court nor transmitted to the Registrar of this court as required under rule 36 (3) of the Supreme Court Rules; that in any event since the title of the notice of appeal is indicated as relating to the application for certification and leave to appeal to this court, the same does not relate to the judgment delivered on April 4, 2019. The applicants rely on the Court of Appeal decision in Salama Beach Hotel Ltd v Kenyariri & Associates [2016] eKLR and this court’s decision in Bookpoint Limited v Guardian Bank Limited & another [2021] eKLR;
4.
Cognisant that the applicants had filed a notice of preliminary objection dated November 24, 2022 and filed on November 25, 2022 based on the same grounds and the 1st and 2nd respondents did not respond to the application though they had filed a replying affidavit to the main appeal;
5.
Upon considering the 5th and 6th respondents’ written submissions dated December 14, 2022 and filed on December 16, 2022 in support of the application, where they reiterate the averments by the applicants and affirm that the exclusion of the documents would be highly prejudicial to the respondents taking into account that the appellants failed to take advantage of rule 40(4) of the Supreme Court Rules to file the documents;
6.
Upon considering the appellants’ replying affidavits of Arvind Shah, Grace Odhiambo Odongo and Fredrick Kinyua Kamundi sworn on December 9, 2022 and filed on December 13, 2022 and the written submissions dated December 9, 2022 and filed on December 13, 2022 where they contend that the Record of Appeal presented in this matter contains all the documents as stipulated under rule 40 (1) of the Supreme Court Rules, 2020; that they are required to annex all documents relevant to determine the appeal and not to annex every document that has ever been filed since the dispute started; that in any case, exclusion ought not to warrant striking out of the entire appeal; in the alternative, if this court desires to obtain information that was part of the superior court’s record it may on its own motion call upon such files for its perusal; that the respondents having filed their responses by November 17, 2022 neither one of them raised any allegation that there are material documents that were missing which would be prejudicial upon them for it was an afterthought; and
7.
Upon further consideration of the appellants’ argument that the notice of appeal is not one of the documents required to be included in the record of appeal; that the judgment of the Court of Appeal having been rendered on April 4, 2019, the appellants duly filed their Notice of Appeal as acknowledged by the Deputy Registrar on April 18, 2019; that the same was transmitted to this court on the same day through this court’s sub-registry in Mombasa; that the impugned notice of appeal in comparison with the one they have now produced is similar despite the former missing the Deputy Registrar’s stamp; that the impugned notice mistakenly refers to it being filed in respect to an application for leave to appeal to this court but it is clear in the body that the appeal is against the judgment of the Court of Appeal. The appellants cite Lemanken Aramat v Harun Meitamei Lempaka & 2 others SC Petition No 5 of 2014 [2014] eKLR to assert that the allegations raised by the applicants are unmeritorious since the imperfections in the impugned Notice do not prejudice the parties;
8.
Taking into account the ruling made on July 8, 2022 by this court, reviewing the ruling of the Court of Appeal and certifying this matter as one of general public importance and framing two issues the basis upon which leave was granted; and the fact that the respondents had raised objections to our jurisdiction, inter alia, on the very ground of defective Notice of Appeal.
9.
Having carefully considered the application, responses, submissions put forth and the record, we now opine as follows:
a.
Rule 36 of the Supreme Court Rules mandates the appellant to file a notice of appeal within fourteen (14) days from the date of judgement and transmit a copy to the registrar of this court. In our ruling of July 8, 2022, we noted that it was not mandatory for the appellant to precede the application for review of certification by the filing a notice of appeal. Rule 36(4) provides that 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.
b.
We have previously held that a notice of appeal is a jurisdictional pre- requisite whose filing signifies the intention to appeal (see Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; SC Application No 16 of 2014, [2014] and University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020] eKLR, respectively). From the record, we are satisfied that the intention to appeal was signified vide the notice of appeal filed on July 29, 2022 as submitted alongside the petition of appeal filed in this matter. We are also satisfied that the notice of appeal was filed before the Court of Appeal within the timelines stipulated.
c.
Even though the title of the notice of appeal filed herein 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 appellants’ 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 this court, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal. We do not see the need to entangle ourselves in the filing and administrative processes by the Court of Appeal, as to the stamping and signing by the registrar of that court as we are satisfied that the notice of appeal was duly lodged before the Court of Appeal.
d.
Rule 40 (1) of the Supreme Court Rules lists the contents of the record of appeal as: (i) a certificate, if any, certifying the matter as of general public importance; (ii) the judgment or ruling of the Court of Appeal being appealed from; (iii) a judgment or ruling of the High Court or a court of equal status; and (iv) the relevant pleadings required to determine the appeal. As per the applicants, the documents stated to be excluded thereby making the record of appeal incomplete are the consent order of the agreed issues in the High Court which is quoted in verbatim in the High Court judgment, notification of sale by Dolphin Auctioneers, valuation report by Tysons Ltd, copies of cheques, banking slips and bank statements. This being a matter of general public importance that raises specific questions as framed, we think these documents are only useful in interrogation of findings of facts which does not fall within the purview of this court. We do not find them relevant or necessary in determination of this appeal.
e.
Article 159 (2) (d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. Therefore, even though the respondents submitted a notice of appeal not stamped or endorsed by the Court of Appeal, the same is not fatal. The notice of appeal did fulfil its purpose of conferring the appellants’ intention to appeal.
f.
Let this matter be determined on the framed issues. Costs to abide the outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The notice of motion dated December 2, 2022 and filed on December 5, 2022 by the 3rd and 4th respondents be and is hereby dismissed.
ii.
Costs shall abide the outcome of the appeal.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/28/eng@2023-04-21 |
Petition (Application) 26 of 2019 | Wamwere & 5 others v Attorney General (Petition (Application) 26 of 2019 & Petition 34 & 35 of 2019 (Consolidated)) [2023] KESC 26 (KLR) (21 April 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, W Ouko | 21 April 2023 | 2,023 | Nairobi | Civil | Wamwere & 5 others v Attorney General | [2023] KESC 26 (KLR) | null | Brief facts
On January 27, 2023 the Supreme Court delivered a judgment holding that the applicants’ freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya and awarded each of the applicants’ damages of Kshs 2,500,000. The court however, did not make an order on the payment of interest notwithstanding that the applicants had prayed for interest on the damages awarded in the consolidated appeal. Aggrieved the appellants filed the instant application for review in which they sought for the orders to be amended to include an award of interests on the damages.
The respondents did not file a response to the motion.
Issues
Whether the jurisdiction of the Supreme Court to correct oversight or clerical errors in its own judgements extended to reviewing a judgment in which it had awarded damages to include an award of interests on the damages which it had omitted.
| Considering that on January 27, 2023 this court delivered a judgment holding that the applicants’ rights and freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya and awarded each of the applicants damages of Kshs 2,500,000; the court however, did not make an order on the payment of interest notwithstanding that the applicants had prayed for interest on the damages awarded in the consolidated appeal; and
2.
Noting that on February 14, 2023 the applicants filed a notice of motion dated February 6, 2023 under section 21(4) of the Supreme Court Act, 2011 and rule 31 of the Supreme Court Rules, 2020 seeking-
a.
That the honourable court do amend its order (e) in its judgment delivered on January 27, 2023 and award the applicants interest on the award of Kshs 2,500,000 to each of the applicants at court rates from the date of filing the High Court petition on April 15, 2013 until payment in full.
b.
The costs of this application be costs in the cause.
3.
Upon considering the affidavit in support of the motion sworn by the applicants’ advocate, James H Gitau Mwara, on February 6, 2023 and the applicants’ submissions; to the effect that this court on January 27, 2023 entered judgment in the applicants’ favour and awarded them damages of Kshs 2,500,000 each; that despite the applicants having prayed for interest on the damages awarded in the consolidated appeal, the judgment was silent on the same; that the court ought to consider reviewing its judgment and grant the applicants interest on the grounds that claimants in similar cases such as, Irene Wangari Gacheru & 6 others v Attorney General, HC Petition No 376 of 2014; [2017] eKLR and Kennedy Kinuthia & 3 Others v Attorney General, HC petition No 375 of 2014; [2017] eKLR, were granted interest on the damages awarded; that it is trite law and a rule of practice that costs and interest follow the event in a monetary judgment; that an award of interest would act as mitigation against all delays (either intentional or due to bureaucratic long drawn processes) by the government in payment of the assessed damages; and that the court has inherent powers to amend its judgment and award interest as sought; and
4.
Noting that despite being served with the motion, the respondent has not filed any response thereto; and
5.
Cognisant that section 21(4) of the Supreme Court Act provides as follows:
“
The court may, on its 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.”
6.
Bearing in mind that the scope of the court’s jurisdiction to review its judgment under section 21(4) of the Supreme Court Act which embodies the “slip rule” is circumscribed as aptly appreciated in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, SC Petition No 6 of 2014; [2017] eKLR -
“
By its nature, the slip rule permits a court of law to correct errors that are apparent on the face of the judgment, ruling, or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the judgment or alter the clear intention of the court. 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. Indeed, as our comparative analysis of the approaches by other superior courts demonstrates, this is the true import of the slip rule.”
7.
Appreciating that the court at paragraph 97 of its judgment and in particular, under limb (e) of its orders held as follows:
“
e)
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal.”
Further, from the reading of the judgment there is no indication that the court intended to deny the applicants interest on the damages awarded; and
8.
Acknowleding that the omission to award interest falls within the bounds of the error(s) contemplated under section 21(4) of the Supreme Court Act; and that review of the judgment in issue to award interest would not alter the substance thereof rather it would give effect to the court’s intention. See Musembi & 13 others (suing on their own behalf and on behalf of 15 residents of Upendo City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co Ltd & 3 others, SC Application No E019 of 2021; [2022] KESC 19 (KLR).
9.
We hereby pronounce that the motion has merit and invoke our jurisdiction under section 21(4) of the Supreme Court Act to review the judgment to include an award of interest on the damages at court rates from the date of the judgment of this court being; the January 27, 2023 until payment in full.
10.
Consequently and for the reasons aforestated we make the following orders:
i.
The notice of motion dated February 6, 2023 and filed on February 14, 2023 is hereby allowed.
ii.
Consequently, the judgment dated January 27, 2023 is hereby reviewed and in particular order (e) at paragraph 97 which shall now read as follows:
e)
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal. The appellants shall also have interest on the damages at court rates from the date of the judgment being January 27, 2023 until payment in full.”
iii.
There having been no opposition by the respondent, we make no orders as to costs in regard to this motion.
It is so ordered | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/26/eng@2023-04-21 |
Petition 7 (E009) of 2021 | Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 31 March 2023 | 2,023 | Nairobi | Civil | Ingang’a & 6 others v James Finlay (Kenya) Limited | [2023] KESC 22 (KLR) | null | A. Introduction
1.
The appellants moved this court vide petition of appeal dated August 12, 2021 and lodged on August 13, 2021 pursuant to article 163(4)(a) of the Constitution and rule 33 of the Supreme Court Rules, 2020. They are challenging the Judgment of the Court of Appeal (Nambuye, Karanja and Kantai JJA) in Civil Appeal No 297 of 2019 delivered on May 21, 2021.
B. Background
2.
The appellants were either serving or former employees of the respondent, who owned and managed tea estates including Tiluet– Chomogonday factory, Marinyn, Kaproret and Kapsongoi Kitumbe factory all situated in Kericho County. The respondent is a company incorporated under the Companies Act of Scotland with its registered office at Swire House, Souter Head Road Altens, Aberdeen, Scotland.
3.
The appellants filed seven suits at the All-Scotland Sheriff Personal Injury Court (hereinafter referred to as the “Scottish Court”) at Edinburgh in Scotland, Court Ref No PLC PN 1055, 1056, 1057, 1058, 1052, 1053 and 1051 in respect of each appellant. The appellants were claiming to have suffered work related injuries while at work in the respondent’s various tea estates and factories in Kericho, Kenya. They alleged breach of duty to provide a safe working environment on account of negligence on the respondent’s part.
4.
The Scottish court was asked, inter alia, to issue locus inspections orders (hereinafter referred to as “locus inspection orders”) for a site visit of the respondent’s tea estates and factories in Kericho for the purpose of observing the following activities: tea pickers picking tea manually and with equipment, taking measurements of the tea plants and areas where workers were required to work, including distance workers are required to walk to weigh tea; photocopying and videoing work undertaken by the workers; considering Personal Protective Equipment (PPE) available to the workers; weighing the tea baskets when full of tea; observing and videoing picking, transporting and weighing of the tea; observing medical facilities available to the workers, and, weighing mechanical harvesting equipment for one, two and three users.
5.
In an order dated November 22, 2018 and amended on December 18, 2018, the Scottish Court granted the locus inspection orders, in respect of the seven appellants for the respondent’s premises in Tiluet Chomogonday Factory, Marinyn, Kaproret and Kapsongoi Kitumbe Factory in Kericho County. It is those orders that the respondent sought to halt their execution.
C. Litigation History | E. Analysis and Determination
43.
The following issues emerge for the court to determine
i.
Whether this court is clothed with the requisite jurisdiction to determine this appeal?
ii.
Whether the locus inspection orders issued by the Scottish Court could be executed in Kenya without intervention by Kenyan authorities
iii.
Who should bear the costs of the appeal?
i. Does this court have the requisite jurisdiction to determine this appeal?
44.
Before embarking on determining the merits of any appeal, the court must assess whether its jurisdiction is properly invoked. As was held in the celebrated case of Owners of the Motor Vessel “Lillians” v Caltex Oil Kenya Limited [1989] KLR 1, without jurisdiction a court has no power and must down tools in respect of the matter in question. Equally, as this court held in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Constitution exhaustively provides for the jurisdiction of a court, the court must operate within those limits. It cannot expand its jurisdiction through judicial craft or innovation.
45.
In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another Sup Ct Petition No 3 of 2012; (2012) eKLR, we delineated this court’s jurisdiction under article 163(4)(a) of the Constitution that it must be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It is the interpretation or application of the Constitution by the Court of Appeal that forms the basis of a challenge to this court. So that, where the dispute has nothing or little to do with the interpretation or application of the Constitution, this court under article 163(4)(a) will have no jurisdiction to entertain the appeal.
46.
These principles are reiterated in the cases Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Pet No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014 [2014] e KLR, Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013]eKLR, Daniel Kimani Njehia v Francis Mwangi Kimani & another [2015] eKLR, Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR, Nasra Ibrahim Ibren v Independent Electoral Boundaries & 2 others [2018] eKLR and National Rainbow Coalition Kenya (NARC Kenya) v. Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Party), SC Petition 1 of 2021; [2022] KESC 6 (KLR) (Civ) (17 February 2022). It is against this background that we examine whether the Petition raises issues of Constitutional interpretation and application.
47.
The appellants’ have filed the present petition of appeal pursuant to article 163(4)(a) of the Constitution and rule 33 of the Supreme Court Rules, 2020. The appellants contend that there are two main issues for this court to determine; whether their right to fair trial under article 50 was infringed by the trial court and Court of Appeal and whether execution of the orders from the Scottish Court is a matter affecting the sovereignty and national security of Kenya as expressed in articles 1 and 238 of the Constitution and concerning the judicial authority of Kenyan courts as prescribed by article 159(1) of the Constitution.
48.
Having perused the record, we note that it is the manner of enforcement, application or compliance of the orders from the Scottish Court that has been in contention right from the trial court and progressed by way of appeal to ultimately reach this court. We also take note that it is articles 1, 50, 159 and 238 of the Constitution that have been the subject of construction and interpretation. Accordingly, we arrive at the conclusion that the appeal falls squarely within the ambit of article 163(4)(a) of the Constitution. We therefore find that we have jurisdiction to consider it.
ii. Can the locus inspection orders issued by the Scottish Court be executed in Kenya without intervention by Kenyan authorities?
49.
The appellants submit that the locus inspection orders which they assert as self-executing by the trial court do not require a process of execution. All they require is compliance by the parties. They take the position that the enforcement of the orders did not touch on the sovereignty of the people, national security to the Republic of Kenya, or threatened the judicial authority of Kenya’s courts. They base this argument on the submission that there was nothing in their activities together with their legal counsel or the work the experts intended to carry out on the respondent’s private property that could be construed as touching or affecting the national security of Kenyans. They also faulted the trial court and the Court of Appeal for invoking public policy consideration as a basis for declining to allow them enforce the orders while they failed to disclose the specific public policies they were relying on.
50.
The respondent argues that it is only through subjecting foreign decisions to scrutiny through the established procedures like judicial intervention that these decisions can be ascertained not to be a risk to the sovereignty of the people. It is further urged that superior courts identified the public policies they based their decisions on. It is argued that the mere fact that the Scottish court is not one of the courts clothed with judicial authority over the people of Kenya as required byarticle 159 is a matter of public policy that the judicial authorities need to intervene to ascertain such orders are in the interest of the people of Kenya. Furthermore, legislative enactments like Part VII of the High Court (Practice and Procedure) Rules, the Civil Procedure Act, order 5 rule (29) and order 28 of the Civil Procedure Rules are themselves embodiment of public concern in dealing with foreign judicial orders. The respondent also pointed out that pursuant to articles 1 and 2 of the Constitution and by virtue of article 159, supremacy and sovereignty was donated to the Kenyan judicial system as opposed to the Scottish Court. Therefore, any judicial order by the Scottish Court was void unless sanitized by Kenyan authorities before execution.
51.
One of the cornerstones of international law is the principle of territoriality, under which, sovereign states have sole authority over their own territory. As this court found in the case of 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), article 2(5) and (6) of the Constitution, recognizes international law (both customary and treaty law) as a source of law in Kenya. It is why Kenya being as a member of the international community is bound by the provisions of the UN Charter. The centerpiece of the United Nations is the sovereign equality of the Member States as enshrined under article 2(1) to (4) of the United Nations Charter provides:
1.
The Organization is based on the principle of the sovereign equality of all its Members.
2.
All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3.
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
52.
Due to the territorial nature of jurisdiction, laws of one state do not apply to other states. And rightly so, as different states have different laws in place depending on the state’s history, culture and priorities. Sovereignty and the principle of territoriality prevents foreign judgments from having direct operation in other countries. The effect of this principle is ultimately, no judgment of a court of one country can be executed proprio vigore (of or by its own force independently) in another country.
53.
This has been the subject of interpretation and application, more so by the English Courts and within the Commonwealth countries, that dates as far back as the 19th Century. One such decision is that of Raja of Faridkot v Gurdyal Singh (1895) ILR 22 Cal 222 by the High Court in Calcutta. Here the court firmly reinforced the concept of territorial jurisdiction of nations and stated as follows:
“
6.
All jurisdiction is properly territorial, and "extra territorium jus dicenti, impune non paretur." Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over moveables within the territory.
…..
7.
In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a Foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by International Law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the courts of every nation, except (when authorized by special local legislation) in the country of the forum by which it was pronounced.”
54.
To allow universal recognition and enforcement of foreign decisions would result in recognizing that foreign courts are superior to the national courts, thereby infringing on the sovereignty of a country. Further, due to the diversity of laws, automatic recognition may result in enforcement of decisions that go against the laws or public policies of the enforcing country. It is for this reason that there must be adequate safeguards in place. The citizens or residents of the country where the decision is sought to be enforced should not be left without protection in respect to arbitrary measures which might be taken against them in foreign countries.
55.
How then do foreign decisions gain recognition and force of law? Which government office or agency is tasked with scrutinizing foreign decisions?
56.
It is our considered opinion that Parliament enacted various statutes to deal with different scenarios. For instance, in Extradition proceedings, we have the Extradition (Commonwealth Countries) Act (cap 77) and Extradition (Contiguous and Foreign Countries) Act (cap 76). In the case of Director of Public Prosecutions v Okemo & 4 others (Petition 14 of 2020) [2021] KESC 13 (KLR) where the court found that extradition cases, being criminal in nature the appropriate office to initiate extradition proceedings was the Director of Public Prosecutions. The Attorney General however retains the Executive Authority to receive Requests for Extradition and to transmit the same to the Director of Public Prosecutions for necessary action before a Magistrates Courts in Kenya. In the case of foreign judgments, Parliament enacted the Foreign Judgments (Reciprocal Enforcement) Act (cap 43) for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya. We shall be shortly be unravelling the conundrum of how judicial assistance is accorded to interlocutory decisions. However, what is evident, is that the courts have an active role to play where foreign decisions are concerned.
57.
Under the Constitution, it is in the courts and Tribunals established in Kenya through article 159, that the people of Kenya vested judicial authority. This is what informs our considered view that, of the three arms of government, the Judiciary is the better suited authority to scrutinize the decisions of a foreign court. It is also at the juncture of such scrutiny that the courts of an enforcing country examine a decision by the foreign court or tribunal to determine if the same adheres to the Constitution and laws of the country. It is here that the country’s public policy becomes crucial, as decisions that go against the enforcing country’s public policy considerations would not gain recognition.
58.
Castel, Jean-Gabriel in "Recognition and Enforcement of Foreign Judgments in Personam and in Rem in the Common Law Provinces of Canada" (1971), 17 McGill L.J. 11 writes that the concept of recognizing foreign decisions developed around the 18th century due to growth in English colonies world-over as well as the growth of English foreign trade. Kenya being a former colony and now a member of the Commonwealth, our history is intricately tied to the United Kingdom. This need for recognizing and enforcing decisions by foreign courts or tribunals was anchored upon the doctrine of comity. The Black’s Law Dictionary, 9th Edition defines comity as follows:
“
A practice among political entities (as nations, states, or courts of different jurisdictions) involving esp mutual recognition of legislative, executive and judicial acts.”
59.
The application of the doctrine of comity means that the recognition of foreign decision is not out of obligation, but rather out of convenience and utility. One of the more influential statements of the doctrine of comity still applicable today was made in Hilton v Guyot, 159 US 113, 143 (1895) where Justice Gray of the Supreme Court defined comity as follows:
“
No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent of which the law of one nation... shall be allowed to operate within the dominion of another nation, depends upon... the "comity of nations"... "
Comity in the legal sense is neither a matter of absolute obligation, on one hand, nor a mere courtesy and goodwill, on the other; it is the recognition which one allows within its territory to the legislative, executive or judicial act of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under protection of its laws…”
60.
This approach prioritizes citizen protection while taking into account the legitimate interests of foreign claimants. This approach is consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.
61.
The Supreme Court of Canada in the case of Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 highlighted the fact that the meaning and tenor of the doctrine of comity has evolved over the years to facilitate the flow of wealth, skills and people across boundaries. This has become ever more crucial with the globalization trend in which the world's economies, cultures, and populations are highly interdependent due to cross- border trade in goods and services, technology, and flows of investment, people, and information. Mehren and Trautman have observed in "Recognition of Foreign Adjudications: A Survey and A Suggested Approach" (1968), 81 Harv L Rev 1601, at p 1603: "The ultimate justification for according some degree of recognition is that if in our highly complex and interrelated world each community exhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted." The Supreme Court of Canada in the of Morguard Investments Ltd v De Savoye, [supra] held as follows:
“
Modern states, however, cannot live in splendid isolation and do give effect to judgments given in other countries in certain circumstances. Thus a judgment in rem, such as a decree of divorce granted by the courts of one state to persons domiciled there, will be recognized by the courts of other states. In certain circumstances, as well, our courts will enforce personal judgments given in other states. Thus, we saw, our courts will enforce an action for breach of contract given by the courts of another country if the defendant was present there at the time of the action or has agreed to the foreign court's exercise of jurisdiction. This, it was thought, was in conformity with the requirements of comity, the informing principle of private international law, which has been stated to be the deference and respect due by other states to the actions of a state legitimately taken within its territory. Since the state where the judgment was given had power over the litigants, the judgments of its courts should be respected.
But a state was under no obligation to enforce judgments it deemed to fall outside the jurisdiction of the foreign court. In particular, the English courts refused to enforce judgments on contracts, wherever made, unless the defendant was within the jurisdiction of the foreign court at the time of the action or had submitted to its jurisdiction. And this was so, we saw, even of actions that could most appropriately be tried in the foreign jurisdiction, such as a case like the present where the personal obligation undertaken in the foreign country was in respect of property located there. Even in the 19th century, this approach gave difficulty, a difficulty in my view resulting from a misapprehension of the real nature of the idea of comity, an idea based not simply on respect for the dictates of a foreign sovereign, but on the convenience, nay necessity, in a world where legal authority is divided among sovereign states of adopting a doctrine of this kind.
For my part, I much prefer the more complete formulation of the idea of comity adopted by the Supreme Court of the Unites States in Hilton v Guyot, 159 US 113 (1895).”
62.
Turning back to the dispute before the court, these principles of territoriality and sovereignty are reflected in various articles of the Constitution of Kenya. Pursuant to article 2(1), the Constitution of Kenya is the supreme law of the land and binds all persons and all State organs at both levels of government. Pursuant to article 2(4) of the Constitution, any law that is inconsistent with the Constitution is void, and any act or omission in contravention of the Constitution is invalid. It goes without saying, that any foreign decision that is not consistent with the Constitution is void and would not be recognised.
63.
Article 1 of the Constitution of Kenya lays out the expression of sovereignty of the people of Kenya as follows:
“
Sovereignty of the people
(1)
All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
(2)
The people may exercise their sovereign power either directly or through their democratically elected representatives.
(3)
Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—
a.
Parliament and the legislative assemblies in the county governments;
b.
the national executive and the executive structures in the county governments; and
c.
the Judiciary and independent tribunals.
4.
The sovereign power of the people is exercised at—
a.
the national level; and
b.
the county level.”
64.
Article 4(1) declares Kenya to be a sovereign republic. The people of Kenya exercise this sovereign power themselves and through the delegated state organs such as the Judicial arm of government. Article 159(1) provides that judicial authority of thecourts ‘is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.’ While article 160(1) provides that ‘in the exercise of judicial authority, the Judiciary, as constituted by article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.’
65.
This court in Peter Odiwuor Ngoge t/a O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni t/a Namada & Co Advocates & 725 others, SC Petition No 13 of 2013 stated that judicial authority in Kenya derives from and is exercised pursuant to the Constitution. The domestic courts therefore exercise donated power that the people democratically consented to. The legal philosopher Martin Loughlin in ‘The Idea of Public Law’ (Oxford University Press, 2003) at pages 84-85 argues that sovereignty as power is an essential precondition of any legal order. This is based on the fact that it is the people who are the ‘repository of sovereignty in those regimes that adopt formal constitutions and allocate legal authority to designated organs of government’. Democratic self-rule will therefore be threatened where foreign courts, to whom the people have not donated judicial authority, can directly exercise influence within the polity without intermediation with domestic bodies.
66.
We have no difficulty finding that decisions by foreign courts and tribunals are not automatically recognized or enforceable in Kenya. They must be examined by the courts in Kenya for them to gain recognition and to be enforced. Consequently, it is also our finding that Kenya as a sovereign state cannot automatically allow citizens, individuals or officers of a foreign state to carry out upon its own territory the decisions of a foreign court, without authorization from the Kenyan Government upon recognition of the decision of the foreign court or tribunal. Such an action would violate the principle of sovereignty enshrined in our Constitution. It is therefore our finding that the appellants’ experts/examiners cannot enter the country to execute the locus inspection orders without authorization.
67.
It is for the aforementioned reasons that one of the avenues Kenya has for the recognition and enforcement of decisions from foreign courts and tribunals is the Foreign Judgments (Reciprocal Enforcement) Act, cap 43 Laws of Kenya. This is our first port of call. This preamble of the statute provides that the Act serves ‘to make new provision in Kenya for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith’.
68.
Section 3(1) of this Act stipulates which judgments the act applies to and lists the following:
“
(a)
a judgment or order of a designated court in civil proceedings whereby a sum of money is made payable, including an order for the payment of a lump sum as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another;
(b)
a judgment or order of a designated court in civil proceedings under which movable property is ordered to be delivered to any person, including an order for the delivery of movable property as part of a scheme for the provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another;
(c)
a judgment or order of a designated court in criminal proceedings for the payment of a sum of money in respect of compensation or damage to an injured person or for the delivery of movable property by way of restitution to an injured person;
(d)
a judgment given in any court on appeal against a judgment or order of a designated court referred to in paragraphs (a) to (c);
(e)
a judgment of a designated superior court for the costs of an appeal from a subordinate court, whether or not a designated court, or from an award referred to in paragraph (f); and
(f)
an award in arbitration proceedings, if the award has, under the laws in force in the country where it was made, become enforceable in the same manner as a judgment given by a designated court in that country.”
69.
Section 3(2) complements (1) aforesaid as it stipulates the two conditions that the judgments above must meet. It provides as follows:
“
2)
This Act applies to a judgment referred to in sub section (1) if it—
a.
requires the judgment debtor to make an interim payment of a sum of money to the judgment creditor; or
b.
is final and conclusive as between the parties thereto,
but a judgment is deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.”
70.
Section 3(3) lists out the nature of judgments that the Act does not apply to. These are the following:
“
This Act does not apply to a judgment or order—
a.
whereby a sum of money is payable or an item of movable property is deliverable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty;
b.
to the extent to which it provides for the payment of a sum of money by way of exemplary, punitive or multiple damages;
c.
for the periodical payment of money as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of the person against whom the order was made;
d.
in a matrimonial cause or matter, or determining rights in property arising out of a matrimonial relationship, not being a judgment referred to in paragraph (a) or (b) of subsection (1), whereby a sum of money is payable or item of movable property deliverable;
e.
in proceedings in connection with the custody or guardianship of children;
f.
in proceedings concerning the administration of the property or affairs of a person who is incompetent or incapable of managing and administering his property and affairs;
g.
in a matter of succession to, or administration of, estates of deceased persons whereby a sum of money is payable or movable property is deliverable;
h.
in a matter of social security or public assistance whereby a sum of money is payable by or to a public authority or fund;
i.
in bankruptcy proceedings or in proceedings for the winding-up or re-organization of a corporation or in proceedings for judicial arrangements, compositions or similar matters;
j.
in proceedings relating to damage, death or injury caused by occurrences involving nuclear matter or the emission of ionising radiation;
k.
of a designated court in any proceedings if—
(i)
the bringing of those proceedings in that court was contrary to an agreement, or to an instrument in respect of which the proceedings were instituted, whereby the dispute, or the proceedings, were to be settled otherwise than in the courts of the reciprocating country; and
(ii)
those proceedings were not brought in that court by, or with the agreement of, the person against whom the judgment was given;
(iii)
that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of the court;
l.
which is regarded for the purposes of its enforcement as a judgment of a designated country but which was given in another country;
m.
given by a designated court in proceedings founded on a judgment of a court in another country and having as their object the enforcement of the latter judgment.”
71.
Scotland is one of the constituent countries of United Kingdom, and therefore is one of the reciprocating countries under the Foreign Judgments (Reciprocal Enforcement) Act. However, as is already evident from the aforementioned provisions, interlocutory orders such as the impugned locus inspection orders issued by the court in Scotland do not fall within the parameters of the statute for two reasons. First, they are not on the list of decisions that the Act applies to and second, the locus inspection orders are not final and conclusive.
72.
The need for decisions to be final and conclusive is founded on two principles, the conclusiveness rule and res judicata. These two concepts are interlinked and are consistent with two maxims interest reipublicae ut sit finis litium meaning it is interest of the state that there should be a limit to litigation and nemo debet bis vexari pro eadem causa meaning no person should be punished twice for the same offence. Marussia Borm-Reid in her article ‘Recognition and Enforcement of Foreign Judgments’ International and Comparative Law Quarterly, Vol 3 No 1 (1954) pp 49-92 cited Smith’s Leading Cases, (1929) 13th ed, ii 717-18 where one of the justifications for the need for conclusiveness was that ‘facts can never be enquired into so well as on the spot where they arose, laws never administered so satisfactorily as in the tribunals of the country governed by them’.
73.
The conclusive judgment reached by the foreign court or tribunal creates an indefeasible right in favour of the judgment debtor and is to be exercised against the judgment creditor. It is not the judgment but the right vested under that judgment which is recognized and enforced. This position is reiterated by Jean Gabriel Castel’s article where she quotes HE Read’s Recognition and Enforcement of Foreign Judgments in the Common Law Unity of the British Commonwealth (1934), pp 52-53, 125. Dr Read stated as follows:
“
a foreign judgment is recognized because it establishes the existence of a foreign judicially-created substantive fight. A right which has been duly acquired under the law of any civilized country by virtue of the judgment is to be recognized and enforced by the forum. He states that the true basis of the recognition of a foreign judgment, lies in the fact that:
... a vested right has been created through the judicial process by the law of a foreign law district. This basis not only supports and explains the finality requirement and conclusiveness rule; it is implicit in the doctrine of territoriality of law. This however, is not to say that the Anglo-Dominion common law of foreign judgments gives effect to the so-called vested rights doctrine of conflict of laws to the extent of recognizing every right created by a foreign-territorial law through the judicial process.
To be recognized as an operative fact the right must have been created by the law of a district which had judicial jurisdiction in the international sense and have satisfied other requirements.” (Emphasis added)
74.
In the Canadian case of Laferriere v Gariepy (1920) 62 Can SCR 557, the Supreme Court held that the doctrine of res judicata is based on a presumption that the conclusion reached by a judge is true and having become absolute can longer be questioned and is a bar to any further action between the same parties regarding the same matter. It therefore follows that as a matter of law and international comity, the receiving state should allow a foreign judgment its full effect, without trying the merits of the case afresh, as on a new trial or appeal.
75.
The test of finality was settled in the old English case of Re Henderson, Nouvion v. Freeman (1889) LR 15 AC 1 where the Court of Appeal, Lindley LJ held that
“
The test of finality and conclusiveness of any judgment is to be found in the view taken of it by the tribunals of the country in which it is pronounced and if a judgment leaves the rights of the parties uninvestigated and undetermined and avowedly leaves those rights to be determined in some other proceedings the judgment cannot be treated here as imposing some obligations which our tribunals ought to enforce.”
On appeal to the House of Lords, Lord Herschell held as follows:
“
In order to establish that a (final) judgment has been pronounced it must be shown that in the court by which it was pronounced it conclusively, finally and forever established the existence of the debt of which it sought to be made conclusive evidence in this country, so as to make it res judicata between the parties.”
76.
The principle of res judicata resonates with our Kenyan laws as it is codified under section 7 of the Civil Procedure Act which provides as follows:
“No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
77.
It has also been the subject of interpretation and application by the courts including by this court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another, SC Motion No 42 & 43 of 2014 Consolidated [2016] eKLR held as follows regarding the doctrine of res judicata:
“
Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights.”
78.
This is not to say that when acourt is presented with a foreign judgment for recognition and enforcement it proceeds to rehear the same on merits or as an appeal on the correctness or otherwise of the judgment. The issues for considerations for thecourts in Kenya when examining a foreign decision are outlined insection 9 of the Civil Procedure Act, cap 21 Laws of Kenya and include the following:
9.
When foreign judgment not conclusive
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title, except—
a.
where it has not been pronounced by a court of competent jurisdiction;
b.
where it has not been given on the merits of the case;
c.
where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable;
d.
where the proceedings in which the judgment was obtained are opposed to natural justice;
e.
where it has been obtained by fraud;
f.
where it sustains a claim founded on a breach of any law in force in Kenya.
Additional considerations on the jurisdiction of the foreign court are set out in sections 4 and 5 of the Foreign Judgments (Reciprocal Enforcement) Act. Broadly they are considerations on whether there was opportunity for full and fair trial, whether the court was competent to hear and determine the matter, whether the defendant had notice of the trial, whether the legal system was one that ensured impartial justice and was devoid of fraud in procuring the judgment.
79.
From the foregoing, it is manifestly clear that the locus inspection orders issued by the court in Scotland do not meet the finality test and therefore do not fall within the ambit of the Foreign Judgments (Reciprocal Enforcement) Act.
80.
Be that as it may, we take note of the fact that the superior courts found that our procedural laws contemplated judicial assistance. The superior courts made reference to various sections of the Civil Procedure Act, cap 21 Laws of Kenya and rules, 2010, as well as provisions of the Judicature Act.
81.
As rightly noted by the trial court, the locus inspection orders are part of the discovery process in litigation. Discovery at the very basic level entails a pre-trial procedure to ascertain facts to be presented at the trial, and as noted by the High Court (Gikonyo J) in Eliud Muturi Mwangi (practicing in the name and style of Muturi & Co Advocates) v LSG Lufthansa Services Europa/Africa GMBH & another, HC Civil Case No 154 of 2014 [2015] eKLR, it has constitutional underpinning in the right to access information enshrined in article 35.
82.
Section 22 of the Civil Procedure Act, cap 21, empowers a court, either on its own motion or application by the parties, to make any orders as may be necessary for discovery. Section 22 provides as follows:
“
22.
Power to order discovery and the like
Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—
a.
make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
b.
issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
c.
order any fact to be proved by affidavit.
83.
Some of the provisions the trialcourt referred to were sections 54 and 55 of the Civil Procedure Act. These fall under part IV of the Civil Procedure Act which deals with ‘Incidental Proceedings’, more specifically commissions. Section 52 therein makes provision for the power of the court to issue commission. It provides as follows:
“
52.
Power of court to issue commission
Subject to such conditions and limitations as may be prescribed, the court may issue a commission—
a.
to examine any person;
b.
to make a local investigation;
c.
to examine or adjust accounts; or
d.
to make a partition.”
84.
The word ‘commission’ is not defined in the Civil Procedure Act or Rules. In the Black’s Law Dictionary, 9th edition it is defined as follows:
“
1.
A warrant or authority from the government or a court, that empowers the person named to execute official acts. 2. The authority under which a person transacts business for another. 3. A body of persons acting lawful authority to perform certain public services.”
85.
Sections 54 and 55 of the Civil Procedure Act are pertinent to the present appeal as they empower the High Court to issue commissions for the examination of witnesses outside Kenya and require the commissions from foreign courts for examination of witnesses be approved by the High Court before execution respectively.
86.
For us this is a demonstration that the trial court was correct in its supposition that the procedural provisions are a demonstration that judicial assistance is a prerequisite in enforcing interlocutory orders. In tandem with this, there is a procedure to be followed when a foreign court or tribunal issues orders geared towards discovery of evidence.
87.
Order 28 of the Civil Procedure Rules, 2010 on ‘Commissions and references’ further activates sections 52 to 55 of the Civil Procedure Act. We take note that order 28 rule 4 makes provision for the courts in Kenya to make a request for commission of taking evidence of a witness outside Kenya. While conversely, order 28 rule 5 is on the courts in Kenya receiving commissions from foreign courts and tribunals for the examination of a witness. These provisions, provide as follows:
“
4.
Request to examine witness abroad [order 28, rule 4]
Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not in Kenya is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.
5.
Court to examine witness pursuant to commission [order 28, rule 5]
Every court in Kenya receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/22/eng@2023-03-31 |
Petition 45 of 2019 | Law Society of Kenya v Attorney General & 4 others (Petition 45 of 2019) [2023] KESC 19 (KLR) (31 March 2023) (Judgment) (with dissent - N Ndungu, SCJ) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 31 March 2023 | 2,023 | Nairobi | Civil | Law Society of Kenya v Attorney General & 4 others | [2023] KESC 19 (KLR) | null | A. Introduction
1.
At the heart of this appeal is the interpretation and application of articles 171, 248 and 250 of the Constitution; specifically to answer these three narrow but related questions; whether a member of the Judicial Service Commission (the JSC/Commission) elected and or nominated under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment; whether section 15(2) of the Judicial Service Act (the Act) is unconstitutional to the extent that it gives the President a role in the appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g); and finally, whether the section is unconstitutional for failure to require that all persons elected and or nominated as JSC Commissioners to be subjected to approval by the National Assembly.
2.
Article 171 establishes the JSC, an independent body consisting of eleven (11) members; the Chief Justice, who is the chairperson; the Attorney-General; representatives of the Supreme Court, Court of Appeal, High Court, the Magistracy; the legal profession (2); the public (2); and the Public Service Commission (PSC). The Chief Registrar is the secretary to the Commission. The JS Act declares, in part, that it is an Act of Parliament that makes “further provision with respect to the membership and structure of the Judicial Service Commission”, with section 15 providing for the procedure of appointment of members of the Commission.
3.
The constitutionality of section 15(2) of the the JS Act has also been raised as one of the issues for determination in a separate appeal before this court in Petition No 17 of 2020, Katiba Institute v Attorney General & 9 others, which was heard on June 15, 2022.
B. Background
4.
On March 9, 2018, Justice Mohammed Warsame, a justice of Court of Appeal (the 3rd respondent) was re-elected by the Justices of that court to serve a second term as their representative to the JSC in accordance with article 171(2)(c) as read with article 171(4) of the Constitution and section 16 of the JS Act. Thereafter, his name was forwarded to the President pursuant to section 15(2) of the JS Act for appointment as a member of the JSC. Instead, the President, in turn, dispatched the name to the National Assembly (the 2nd respondent) for approval before appointment pursuant to article 250(2)(b) of the Constitution. This action was the gravamen in the original grievance; whether Parliament can vet for approval a member of the JSC who has been democratically elected by his or her peers.
5.
By notices published on 21st and March 22, 2018 in the People Daily and the Daily Nation newspapers, respectively, the 2nd respondent invited views from the general public on the 3rd respondent’s suitability for the office of Commissioner of the JSC. The notices were unequivocal that the approval hearing was in accordance with the provisions of article 250(2)(b) of the Constitution as read with sections 3 and 5 of the Public Appointments (Parliamentary Approval) Act No 33 of 2011.
6.
As a consequence, the JSC and the Law Society of Kenya (the appellant) by separate letters dated 21st and March 22, 2018, respectively, objected to the intended exercise, pointing out that it was not only unconstitutional but also an interference with the independence of the nominating institution, the Judiciary (the Court of Appeal). The 2nd respondent, by a letter dated March 29, 2018 responded comprehensively but insisted that the scheduled hearing would proceed, precipitating the action before the High Court, which has culminated in this appeal after the Court of Appeal dismissed the first appeal. | F. Analysis and Determination
Jurisdiction of this court
41.
This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
42.
The appeal was brought as of right pursuant to article 163(4)(a) of the Constitution. From the petition filed in the High Court, the memorandum of appeal in the Court of Appeal, the arguments before and the judgments of the two courts below, as well as the pleadings and arguments in this court, we entertain no doubt that the subject matter in controversy involves the interpretation and application of articles 171, 248 and 250 of the Constitution. The appeal, we are satisfied, meets the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Pet No 3 of 2012; [2012] eKLR. Further, on the question of constitutionality of section 15(2) the JS Act, taking a cue from our decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, SC Application No 5 of 2014; [2014] eKLR, we note that the JS Act is a normative derivative of the principles embodied in the Constitution under articles 171 and 172 and in interpreting the JS Act, the court cannot disengage from the Constitution. Furthermore, this court has previously invoked its appellate jurisdiction as of right on matters involving the constitutionality of a statutory provision in Hussein Khalid and 16 others v Attorney General & 2 others, SC Application No 32 of 2019 [2019] eKLR.
We turn to the first issue,
i.
Whether a member of the JSC elected and or nominated under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment;
43.
Two questions arise from this ground, whether the nomination of the 3rd respondent by the President was ultra vires article 171(2)(c) of the Constitution; and whether the intended approval of the 3rd respondent by the National Assembly was a violation of article 171(2)(c).
44.
The resolution of these questions will depend on the construction and application of all the relevant articles of the Constitution. By article 259, courts are enjoined in construing the Constitution to promote its purpose, values and principles; advance the rule of law, human rights and fundamental freedoms in the Bill of Rights; permit the development of the law; and contribute to good governance.
45.
This court; In the Matter of Interim Independent Electoral Commission, SC Application No 2 of 2011; [2011] eKLR and; In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No 2 of 2012 [2012] eKLR, among other decisions, has affirmed that, in interpreting the Constitution and developing jurisprudence, the court will always take a purposive and holistic interpretation of the Constitution as guided by the Constitution.
46.
The concept of holistic interpretation of the Constitution was explained in In the Matter of Kenya National Commission on Human Rights, SC Reference No 1 of 2012; [2014] eKLR, by the court as follows:
“But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
47.
To construe the import and tenor of any provision of the Constitution, the entire Constitution has to be read as an integrated whole, because the Constitution embodies certain fundamental values and principles which require that its provisions be construed broadly, liberally and purposively to give effect to those values and principles. Where words used in any provision of the Constitution are precise and unambiguous then they must be given their natural and ordinary meaning. The words themselves alone in many situations declare the intention of the framers because, to borrow the words of Burton, J in Warburton v Loveland, (1832) 2 D & Cl 480, the language used “speak the intention of the legislature.”
48.
Those values and principles reflect our historical and political realities and the people’s aspirations for a democratic State, built on the rule of law and respect for human rights.
49.
To apply these principles to the arguments before us, we reproduce the entire composition of the JSC in article 171(2) (a) to (h), as it is important for the determination of the question whether, the nomination by the President of the 3rd respondent, a member of the JSC, elected by his colleagues in the court was ultra vires article 171(2)(c) of the Constitution. The article is equally critical in answering the second issue, whether elected or nominated commissioners of the JSC ought to be approved by the National Assembly before appointment.
50.
The article 171(2)(c) reads as follows:
“
The Commission shall consist of –
a.
the Chief Justice, who shall be the chairperson of the Commission;
b.
one Supreme Court judge elected by the judges of the Supreme Court;
c.
one Court of Appeal judge elected by the judges of the Court of Appeal;
d.
one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
e.
the Attorney-General;
f.
two advocates, one a woman and one a man, each of whom has at least fifteen years' experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
g.
one person nominated by the Public Service Commission; and
h.
one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.” [our emphasis]
51.
It is apparent from this provision that membership to the JSC is four- pronged; by virtue of office, for example, the Chief Justice and the Attorney-General, who remain Chairperson and member, respectively, despite the term of five years and a further one term of five years applicable to other members. There are those members who are elected by peers, namely representatives of the Justices of the Supreme Court, Court of Appeal, High Court, the Magistracy and the advocates. The third category comprises a member nominated to represent the PSC and the final category are two members, one woman and one man, not being lawyers, appointed by the President to represent the public.
52.
It is common factor that the name of the 3rd respondent was forwarded to the 2nd respondent for approval hearing ostensibly on the force of articles 132(4) and 250(2), as well as section 15(2) of the JS Act. Article 132(4) embodies the specific function of the President to-
“
(4) (a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission;” (Our emphasis).
53.
This, to our mind, cannot be the basis upon which the President acted when he forwarded the 3rd respondent’s name to the 2nd respondent. Similarly, the plain language of section 15(2) does not vindicate the action, as we shall demonstrate when considering the second issue. That leaves article 250, which must be read together with article 248.
54.
Article 250 is contained in chapter fifteen. The ten commissions in the article are collectively and generally referred to as chapter fifteen commissions. Article 250 prescribes the composition of commissions, appointment and terms of office of the commissioners as follows:
“
250.
(1)
Each commission shall consist of at least three, but not more than nine, members.
2.
The chairperson and each member of a commission, and the holder of an independent office, shall be—
a.
identified and recommended for appointment in a manner prescribed by national legislation;
b.
approved by the National Assembly; and
c.
appointed by the President.
3.
To be appointed, a person shall have the specific qualifications required by this Constitution or national legislation.
4.
Appointments to commissions and independent offices shall take into account the national values referred to in article 10, and the principle that the composition of the commissions and offices, taken as a whole, shall reflect the regional and ethnic diversity of the people of Kenya.
5.
A member of a commission may serve on a part-time basis.
6.
A member of a commission, or the holder of an independent office—
a.
unless ex officio, shall be appointed for a single term of six years and is not eligible for re-appointment; and
b.
unless ex officio or part-time, shall not hold any other office or employment for profit, whether public or private.
…”. (Our emphasis).
55.
Article 248, which is also in chapter fifteen, on the other hand stipulates that:
“
(1)
This chapter applies to the commissions specified in clause (2) and the independent offices specified in clause (3), except to the extent that this Constitution provides otherwise.
(2)
The commissions are —
a.
the Kenya National Human Rights and Equality Commission;
b.
the National Land Commission;
c.
the Independent Electoral and Boundaries Commission;
d.
the Parliamentary Service Commission;
e.
the Judicial Service Commission;
f.
the Commission on Revenue Allocation;
g.
the Public Service Commission;
h.
the Salaries and Remuneration Commission;
i.
the Teachers Service Commission; and
j.
the National Police Service Commission.
3.
The independent offices are—
a.
the Auditor-General; and
b.
the Controller of Budget.”
(Our emphasis).
56.
We stress that chapter fifteen which contains articles 248 and 250 applies to all the ten commissions, including the JSC, save only “to the extent that this Constitution provides otherwise”.
57.
The Constitution provides otherwise in article 171. We have seen in paragraph 50 above, that article 171 is fully self-executing. From a plain reading of the three articles, 171, 248 and 250, it is apparent that the former was intended to apply exclusively and specifically to the establishment of the JSC, its composition, mode of appointment and term of office of its members, while article 250 was to regulate and guide on the composition, appointment and terms of office of commissions and independent offices generally. The proviso in article 248(1) acknowledges the existence of other constitutional provisions, specific to other commissions which may differ from the provisions of chapter fifteen. Chapter fifteen, for this reason, makes provisions of general application to fill in the gaps in respect of composition, appointment and terms of office of any commission.
58.
We are fortified in our conclusion by sub-article (2)(a) of article 250 which directs that, in those constitutional commissions where the procedure and manner of identification and recommendation for appointment of the chairpersons and commissioners are not provided for in the Constitution, recourse will be to national legislations. Examples of such commissions, are the Kenya National Human Rights and Equality Commission established under article 59 of the Constitution; National Land Commission under article 67 of the Constitution; Ethics and Anti- Corruption Commission under article 79 of the Constitution; Independent Electoral and Boundaries Commission under article 88 of the Constitution; and Teachers Service Commission under article 237 of the Constitution. In contrast, by article 171, the Constitution itself provides for the means of identifying and methods of appointment of each of the four categories of membership of the JSC, occasioning no need to resort to either article 250 or national legislation for this purpose.
59.
It is the lacuna in some of these commissions that article 250 seeks to fill. Where no particular provision of the Constitution specifies the number of members to a commission, the answer will lie in article 250 which, as a general guide limits such membership to “at least three, but not more than nine”. If the manner of identification and recommendation for appointment of the chairperson and each member of a commission is not specified elsewhere in the Constitution, reference must be made to article 250. In all such instances of lacuna, article 250 was intended to fill the same by directing that the appointment of the chairperson and each member shall be subject of approval by the National Assembly; and thereafter appointment by the President. The Article directs further that save for ex officio members, the rest of the member shall be appointed for only a single term of six years. Because article 171 is self-executing, these conditions do not apply to its members.
60.
To further buttress our view that article 250(1) is a general provision article, it provides that membership to each commission “shall” not consist of more than nine members, yet pursuant to article 171(2), the JSC consists of eleven (11) members. Secondly, article 250(6)(a) stipulates that a member of the commission shall be appointed for a single term of six years and is not eligible for re-election. In respect of the JSC, article 171(4) provides that members of the JSC, apart from the Chief Justice and the Attorney-General shall hold office for a term of five years and shall be eligible to be nominated for one further term of five years.
61.
Another demonstration of the divergent nature of the commissions, is in the composition of the Parliamentary Service Commission established under article 127. The membership is wholly drawn from Parliament, apart from two, one man and one woman appointed by Parliament from among persons who are experienced in public affairs, but are not members of Parliament. The mode of appointment and terms of service of its members which are distinct from those of the other commissions, are laid out in details in the Constitution itself. Like the JSC, the membership is not tied to “at least three, but not more than nine” in article 250. It has ten (10) members. In the identification, nomination and appointment of members, there is no involvement at all of the Executive, the President, or the other commissions in the process. There is also a category of commissions which, apart from merely being listed in the Constitution, are entirely left to legislations on their composition, appointment and mandate as discussed in paragraph 89 of this judgment.
62.
These are examples of how the framers expressed their intention to effectuate the doctrine of separation of powers, the hallmark of our Constitution. The direct involvement of the President in the appointment of two members to represent the public in the JSC can only be explained on the basis of the nature of the expanded functions of the JSC, including its role to advise the national government on ways of improving the efficiency of the administration of justice (See article 172(1)(e). Moreover, it is in line with the provisions of article 10 and the centrality of public participation and transparency at all levels of administration of justice. The inclusion of the PSC nominee in the JSC, on the other hand, can be explained away by the long history of the two commissions. This history is aptly captured in the Final Report of the Constitution of Kenya Review Commission (2005).
From the pre-independence era, the PSC and the JSC have been joined at the hip. The PSC has always traditionally had two nominees, and lately one in the JSC.
63.
The point we are making is that the commissions are far from being homogeneous, contrary to the submissions that they all draw from article 250. There are no typical common features between the commissions. The principle of checks and balances, the doctrines of separation of powers and independence of the three branches of Government from each other are highlighted in the deliberate distinct provisions.
64.
Having come to the conclusion that article 171 is a self-executing provision; and that it is drafted in precise and unambiguous language, then it can only be given its natural and ordinary meaning. The words used in the article speak the intention of the legislature. The intention was to have the constituents in the Court of Appeal to determine for themselves, through the ballot, the person to represent them in the JSC, without the involvement of third parties who have no interest in affairs of that court.
65.
Had the people of Kenya or the Legislature intended that all elected members of the JSC be first approved by the National Assembly before being appointed, nothing would have been easier than to expressly state so, the same way they have done for the two members representing the public. In the case of the two, article 171(2)(h) unequivocally declares that, before their appointment, the National Assembly must give an approval. As far as we can recall, since the promulgation of the Constitution, all past elected members of the JSC, except in one instance, have never been subjected to approval hearing by the National Assembly. As a matter of fact, in his first term, the 3rd respondent did not go through it, because there has never been any constitutional or legal imperative to do so. The resolve to subject him, this time round to parliamentary approval was not only in bad faith, but amounted to a breach of his legitimate expectation and a fundamental contravention of the Constitution.
66.
To suggest, as has been expressed in this appeal, that the 3rd respondent was bound to be vetted and could only qualify for appointment after approval by the National Assembly, is to attack the spirit and letter of articles 1(3) and 2(2); that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person may claim or exercise State authority except as authorised under the Constitution. The Constitution does not permit the 2nd respondent to vet and approve an elected member of the JSC.
67.
There can be no better vetting of a representative’s suitability to a position than by peers or those whose interest he is expected to represent than in a transparent and democratic election. The electorates base their choices on considerations relevant to their needs; the needs they alone appreciate in a manner no other body can replace or replicate.
68.
Purely, by the fact of his election by the Justices of the Court of Appeal, the 3rd respondent, without more, became a member of the JSC, only awaiting the administration of the oath under article 74 of the Constitution as read with section 40(1) of the JS Act before assuming the functions of the office of Commissioner of the JSC.
69.
Our answer to the first issue, it must follow from these reasons, like the two superior courts below, is that there is no basis, constitutional or legal for a member of the JSC elected or nominated under article 171(2)(b), (c), (d), (f) and (g) to be vetted and approved by the National Assembly before appointment.
70.
We turn to the second and final issue,
ii
Whether section 15(2) of the Judicial Service Act is unconstitutional to the extent that it gives the President a role in appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g), and for failure to require that all persons elected and or nominated as JSC Commissioners be subject to approval by the National Assembly.
71.
The JS Act was enacted in 2011 “to ……make further provision with respect to the membership and structure of the Judicial Service Commission;……and for connected purposes”. See the long title to the Act.
72.
Section 15(1) and (2) state that:
“
15. (1) Where the members are to be appointed by the President under article 171(2)(h) of the Constitution, the following procedure shall apply—
(a)
until after the first elections under the Constitution, the President shall, subject to the National Accord and Reconciliation Act, 2008 (No 4 of 2008) and after consultation with the Prime Minister, within seven days of the commencement of this Act, submit the names of the nominees to the National Assembly;
……
2.
Where the nominations are to be made by bodies specified under article 171(2)(b), (c), (d), (f) and (g) of the Constitution—
a.
the respective nominating body shall submit the name of its nominee to the President; and
b.
the President shall, within three days of receipt of the names, appoint the nominees as members of the Commission.” (our emphasis)
73.
The procedure of appointment set out above is divided into sub-section (1) and (2). The former is specific to appointment by the President with the approval of the National Assembly of two members under (h), one woman and one man to represent the public.
74.
Sub-section (2) on the other hand relates to members appointed in accordance with article 171(2) (b), (c), (d), (f) and (g), who are elected or nominated. The nominating bodies envisaged do not include the JSC, but are the judges of the superior courts, the Magistrates, the Law Society of Kenya and the PSC. By this sub-section those bodies are required to submit the names of their nominees to the President; and the President, in turn is expected, within three days of receipt of the names, “to appoint the nominees as members of the Commission.” Because the categories of the nominees are those elected or nominated, sub-section (2) does not require parliamentary approval, unlike those in sub-section (1). Is the omission to vet nominees in sub-section (2) unconstitutional? and what does it entail for the President “to appoint the nominees”?
75.
Before we settle these questions and the arguments proffered on this ground, it is apposite to stress two settled principles on constitutionality of a statute and the rules of interpretation of statutes. The first principle is that there is a general rebuttable presumption that every Act of Parliament is constitutional and the burden of proof lies on the person who alleges otherwise. See the decision of the Supreme Court of India in Dawakhana (Wakf) Lal Kuan, Delhi & another v Union Of India & others, (1960) AIR 554, 1960 SCR (2) 671, which has received endorsement by courts in this country, including this court in the case of Law Society of Kenya v Attorney General & another, SC Petition No 4 of 2019; (2019) eKLR. The second principle requires that in determining whether a statute is constitutional or not, the court must ascertain the object, purpose and effect of that statute; to discern the intention expressed in the Act itself. A statute cannot make provision whose effect contradicts the Constitution or places additional requirements above those set out by the Constitution.
76.
On statutory interpretation of a statute, it is emphasized that the function of the courts is to interpret the law, not to make it. A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is, in the first place, to seek to understand the intention of its maker. Where the meaning of a provision is plain and unambiguous, no question of interpretation or construction arises. It is the duty of the judges to apply such a law as it is. But if it is open to more than one interpretation, then the court has to choose the interpretation which represented the true intention of the legislature, the legal meaning of the statutory provision. This has been underscored by this court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014; [2014] eKLR.
77.
Having set out these principles to guide us in the determination of this ground and because the answer to the second limb of the ground is simple, we shall start with it. The 1st and 2nd respondents contended that, to the extent that section 15 takes away the powers of the National Assembly to vet and approve the elected members of the JSC, it is contrary to the provisions of article 250(2) of the Constitution and therefore invalid. We dispose of this argument by restating that the language of article 171 is unambiguous in so far as vetting and approval by the National Assembly is concerned. The only members who, according to article 171(2)(h), must be approved by the National Assembly after appointment by the President, are one woman and one man to represent the public. All the other members are either elected under (b), (c), (d), (e), (f) and (g), or nominated under (h) of article 171(2). An endorsement of a candidate through an election is another form of vetting by those he or she will be serving. In the instant case, it is only the judges, magistrates and lawyers who can choose for themselves their representatives. Parliament has no part to play, except to the limited extent explained earlier, in respect of the two members.
78.
The powers of Parliament to vet and approve any constitutional and statutory appointments are circumscribed as follows by section 3 of the Public Appointments (Parliamentary Approval) Act, 2011:
“An appointment under the Constitution or any other law for which the approval of Parliament is required shall not be made unless the appointment is approved or deemed to have been approved by Parliament in accordance with this Act”.
79.
Parliament will only exercise its powers to vet and approve candidates for appointment to a public office if, and only if the Constitution or any other law requires the approval of Parliament. Section 15(2) of the JS Act does not contain any requirement for approval by Parliament. Because there is no such requirement in article 171, except for (h), the arguments by the 1st and 2nd respondents that all commissioners of the JSC ought to be approved by Parliament must fail for lacking constitutional or legal foundation.
80.
We have explained elsewhere in this judgment that, it is only where the composition, appointment and terms of office of members of a commission are not provided for, that article 250 will be turned to for the answer. It is in that context that the words “approved by the National Assembly” in article 250(2)(b), must be read. Where approval by Parliament is made a condition precedent for appointment under article 171, express provision has been made. If the framers’ intention was to have all members of the JSC approved by Parliament they would not have made it as condition for some and not for other members. This ground fails.
81.
Is section 15(2) inconsistent with the Constitution for requiring that the names of the nominees under article 171(2)(b), (c), (d), (f) and (g) to be submitted to the President to; appoint the nominees as members of the Commission”? The answer to this question depends on the meaning to be ascribed to the word “appoint”, in the context in which it is used in that sub- section.
82.
The appellant, together with JSC, have maintained that sub-section (2)(b) is unconstitutional to the extent that it gives the President a role in the appointment of JSC commissioners who are elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g). On the other hand, the 3rd respondent has maintained that the section cannot be construed to be unconstitutional simply because of that reason. According to him, the appointment envisaged in that sub-section is only ceremonial and anchored on article 132(2)(f) of the Constitution.
83.
But, what did the drafters mean when they wrote in the Constitution that the names of the nominees under article 171(2)(b), (c), (d), (f) and (g) shall be submitted to the President for appointment as members of the Commission?
84.
The history leading to the promulgation of the Constitution in 2010 leaves no doubt that the intention of the drafters was to have an independent JSC and Judiciary. We made reference in paragraph 62 above, to the Final Report of the Constitution of Kenya Review Commission and how it traced the evolution of the JSC from the pre-independence era to the period preceding the promulgation of the 2010 Constitution. The theme running through the Report, in so far as the JSC is concerned, is the protection of the independence of the Judiciary and by extension, the JSC which, was charged with the task of appointing judges. Once appointed, the judges could not be dismissed except as determined by a committee of Commonwealth judges, and only on the grounds for misconduct or inability to discharge their functions. It is debatable if full independence of the two institutions (the Judiciary and the JSC) was indeed realized through those provisions. The Report is, however, concerned with the Constitution and laws at the time and the intention of the drafters to insulate the two institutions.
85.
With the making of the independence Constitution in 1963, the intention seemed to have shifted to one where the Executive appeared, from the composition of the JSC to have had a measure of control over the Commission, and going into the future, the JSC and the Judiciary were no longer regarded as truly independent of the Executive. Nothing demonstrates this capture more clearly than the composition of the JSC in section 68(1) of the former Constitution, as follows:
“
68.(1) ……
a.
The Chief Justice as chairman
b.
The Attorney-General
c.
Two persons who are for the time being designated by the President from among the puisne Judges of the High Court and the Judges of the Court of Appeal
d.
The chairman of the Public Service Commission”.
86.
From its composition, the pre-2010 JSC was more Executive than Judicial. This changed following the clamour for constitutional review, to address among other concerns, a truly independent Judiciary and its institutions. Today, the judges and not the President, decide who among them represents those courts. Any interpretation of the Constitution, whose effect is to negate these gains, would in itself be invalid. Kenyans expressed themselves clearly that they did not want to repeat history. They wanted the role of the President in the affairs of the JSC to remain minimal. Today, article 249(2) proclaims this independence of chapter fifteen commissions by declaring that they—
“
a.
are subject only to this Constitution and the law; and
b.
are independent and not subject to direction or control by any person or authority”.
87.
Article 251 guarantees true independence of the JSC, not only by re-stating its independence from direction or control by any person or authority, but by securing the tenor of the Commissioners, who can be removed only in accordance with that article. Its financial autonomy, with a separate vote is equally assured.
88.
Based on the foregoing historical background, it is our considered view that a purposive interpretation of all the above-mentioned articles will lead to the inevitable conclusion that there was no intention of the framers to subject the 3rd respondent or, for that matter, any of the elected members of the JSC to an “appointment” by the President. It is a contradiction in terms and an inherent absurdity to suggest that members elected by their peers or nominated by a state organ can, at the same time be “appointed” by a different person or authority.
89.
There can be no justification for the invocation of article 250(2) as the basis for the requirement of appointment by the President of the 3rd respondent as a member of the JSC. Where the framers intended to vest in the President the power to appoint members of the Chapter Fifteen commissions, they expressly provided for it. For example, the Constitution in various articles authorises the President to appoint members of four of the ten Chapter Fifteen commissions, namely, the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; and the National Police Service Commission. Two commissions, the Parliamentary Service Commission and JSC are created by articles 127 and 171, respectively, as self-executing commissions, with clear mode of identification, qualification, appointment and terms of their commissioners independent of a third party. The Constitution does not make provision on the composition, appointment and terms of office of commissioners of the remaining four commissions, the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; and Teachers Service Commission. The appointments envisaged in article 250 relates to the first and the last four categories of commissions, namely, where there is express power to the President to appoint members or where no express provision has been made, national legislation provides.
90.
In view of the foregoing background, analysis and conclusion, we do not accept the 3rd respondent’s argument that the power of the President to “appoint” him under that section is only ceremonial and anchored on article 132 (2)(f) of the Constitution. Unfortunately, our reading of article 132(2) does not yield this conclusion. The article provides that:
“(2) The President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss—
a.
the Cabinet Secretaries, in accordance with article 152;
b.
the Attorney-General, in accordance with article 156;
c.
the Secretary to the Cabinet in accordance with article 154;
d.
Principal Secretaries in accordance with article 155;
e.
high commissioners, ambassadors and diplomatic and consular representatives; and
f.
in accordance with this Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss.” (our emphasis)
91.
This article applies to State or public officers, who are named in (b), (c), (d), (e) as well as those to whom the Constitution empowers the President to appoint or dismiss (f). The JSC commissioners are not such officers. We believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in the appointment of elected and nominated commissioners of the JSC.
92.
To “appoint”, according to Black’s Law Dictionary, 9th Ed at page 116, means;
“
the designation of a person, such as a non-elected public official, for a job or duty; especially naming of someone to a non-elected public office” (our emphasis).
93.
As an act of assigning a position to an elected public official, then appointment in section 15 by the President of elected or nominated members of the JSC would offend article 171 of the Constitution.
94.
The two past elections of the representative of the Court of Appeal in 2013 and 2018 were conducted by the Independent Electoral and Boundaries Commission, pursuant to article 88(4) of the Constitution, section 4 of the Independent Electoral and Boundaries Commission Act and later rule 3.1 of the Court of Appeal of Kenya Election Rule, 2013. Upon declaration of the 3rd respondent as duly elected representative of the court, the IEBC issued him with a certificate to confirm his election. This has been the practice with respect to elections of all members of the JSC under article 171(2)(b), (c), (d) and (f).
95.
To complete the process, like in all cases where it conducts elections, the IEBC issues the elected member with a certificate of election and further publishes a gazette notice confirming the outcome of the elections of those members. This is followed by the taking of oath of office before the Chief Justice, in accordance with article 74 as read with section 40(1) of the JS Act before the members assume the functions of the office of Commissioner of the JSC.
96.
Traditionally as a practice carried over from the old constitutional order, the President has always issued a gazette notice to signify the appointment of elected or nominated representatives in the JSC. With the new order, it is our view that this role ought to be played by the IEBC but certainly not the President. Article 260 of the Constitution defines gazette as “the Kenya gazette published by the authority of the national government, or a supplement to the Kenya Gazette.” This court considered the significance of a gazette notice as a medium of general public information in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR.
97.
In the context of chapter fifteen commissions, there are instances where national legislations specifically impose a duty on the President to publish in the official gazette the names of the chairpersons and members. Examples of such legislations are the PSC Act, the IEBC Act, the National Police Service Act, and the Salaries and Remuneration Act, all of which provide in nearly identical terms that:
“The President shall, within seven days of the receipt of the approved nominees from the National Assembly, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly”.
98.
While there is no similar provision in the JS Act in respect of the JSC nominees, the Parliamentary Service Act donates this function to its secretary. Rule 5 of the First Schedule of the Parliamentary Service Act provides:
“
If both Houses of Parliament approve a person recommended under paragraph 3, the Secretary shall, within seven days after the approval, publish the name of the person in the Gazette”.
That is why we have stressed in the previous paragraph that with the new constitutional order, it is our view that this role ought to be played by the IEBC or even the commission’s secretary, as is the case in the Parliamentary Service Commission, but certainly not the President.
99.
We reiterate, in conclusion, that under article 171(2) the scope of the President’s power to appoint members of the JSC is limited to two persons, a man and a woman, who are not lawyers, to represent the public. The Constitution does not require that the names of nominees, other than the representatives of the public, be submitted to the President for appointment. Contrary to this, section 15(2)(a) and (b) requires nominating bodies to submit nominees’ names to the President for appointment as members of the Commission. To that extent, section 15(2)(a) and (b) is contrary to article 171(2)(b), (c), (d), (f) and (g) which insulates the process of appointment of nominated and elected members of the JSC and undergirds the independence of the Judiciary and JSC from manipulation by the Executive. There is nothing in article 131(a) or 132 of the Constitution to suggest that the President as the Head of State and Government can appoint elected members of the JSC.
100.
To give the President power to appoint or even to “appoint” by mere gazettement of names is to forget our history and the mischief article 171 was intended to cure.
101.
In the result, and to the extent that section 15(2)(b) of the JS Act donates to the President the power to appoint elected and nominated members of the JSC, it is void for being inconsistent with article 171 of the Constitution which does not recognize such power. We restate that section 15(2) goes against the letter and spirit of articles 1(3) and 2(2) which stipulates that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person may claim or exercise State authority except as authorised under the Constitution.
102.
The appeal is accordingly allowed.
G. Costs
103.
Costs follow the event and is a discretion of the court. Being a matter of public interest, we direct each party to bear its own costs.
Dissenting Opinion of Njoki Ndungu, SCJ
104.
I have had the advantage of reading the majority decision in this appeal and I find that I can only agree with them that this court has jurisdiction and is properly seized of the appeal. I am however, with profound respect, of a different opinion on their findings in response to the following issues:
i.
Whether a member of the JSC elected under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment;
ii.
Whether section 15(2) of the Judicial Service Act is inconsistent with the Constitution to the extent that it gives the President a role in appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g) or for failure to require that all persons elected and or nominated as JSC Commissioners be subject to approval by the National Assembly.
I proceed to explain why.
105.
In my view, to determine whether section 15(2) of the JS Act is inconsistent with the Constitution, three questions that come to the fore must be answered. Namely, does the President have a constitutional obligation to appoint JSC Commissioners? If the answer is in the affirmative, can the President do so without approval of the National Assembly? And, in appointing elected JSC Commissioners, will the President interfere with the independence of the JSC? | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/19/eng@2023-03-31 |
Petition 9 of 2019 | Ngugi v Commissioner of Lands; Owindo & 63 others (Interested Parties) (Petition 9 of 2019) [2023] KESC 20 (KLR) (31 March 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | SC Wanjala, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 31 March 2023 | 2,023 | Nairobi | Civil | Ngugi v Commissioner of Lands; Owindo & 63 others | [2023] KESC 20 (KLR) | null | A. Introduction
1.
Land as a resource is one of the most important means of livelihood for many people in developing countries and remains an emotive issue. It has been cited as an obstacle to social cohesion and economic growth in Kenya since independence. That should explain why Kenya’s Vision 2030 (2008) identified the absence of a national land policy as the reason the country has had weak land administration, which in turn has led to historical land injustices amongst some communities. Today, the Constitution devotes the entire chapter 5 to matters relating to land and environment, and directs that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. It guarantees equitable access to land; security of land rights; as well as transparent and cost- effective administration of land.
2.
The Constitution further outlines definitions of land and land systems in Kenya and sets out a land legislative obligation on Parliament, to revise, consolidate and rationalise existing land laws. Pursuant to this edict, Parliament has enacted new land laws to replace some of the past land law regimes.
3.
One of such repealed laws is the Government Lands Act (cap 280), which conferred powers upon the President of Kenya to make grants or dispositions of any estates, interests or rights over unalienated government land. The powers were delegated in specified cases to the Commissioner of Lands.
4.
At the heart of this appeal is a controversy concerning proprietary interest over unalienated government land which was allocated to Dickson Ngigi Ngugi, the appellant under the Government Lands Act (repealed).
B. Background
5.
Sometime in 1969, the appellant’s application for grant of unalienated government land in Nakuru was approved by the then Minister for Lands and Settlement. Subsequently, the Commissioner of Lands (the respondent) issued him with a letter of allotment dated June 7, 1977 to an unsurveyed parcel of land described as LR No 519/223 (the suit land) located in Njoro Township and comprising 118 hectares (approximately 291 acres). The grant was subject to a number of conditions. For example, the appellant was required to accept the offer contained in the letter of allotment and to pay allotment fees in the sum of Kshs 6,484.15/-; the land was to be used for agricultural purposes only; the allocation was initially for a period of three years; payment of annual rent of Kshs 2,354 within the first three years; and upon expiration of the three years, the appellant was entitled to a free hold title provided that he had developed the land to the satisfaction of the District Agricultural Officer and paid a purchase price of Kshs 235,400/-.
6.
The appellant accepted the offer and paid the allotment fees. Consequently, the respondent directed the Director of Surveys to undertake the survey of the suit land. However, the surveyor, by a letter dated January 10, 1978 to the Director of Surveys expressed his inability to complete the exercise due to interference by the District Commissioner of the area through the police. The matter was escalated to the Provincial Surveyor, who upon consulting the District Commissioner, directed the suspension of the survey.
7.
It was the Clerk of the then County Council of Nakuru who in his letter of July 20, 1981 explained to the appellant that at the time the suit land was allotted to him, the people of Njoro had been cultivating it with the authority of the Government for several years; and that as a matter of fact, the District Commissioner of Nakuru had in the past encouraged the people in the area to continue utilising the suit land until they were otherwise instructed by the Government.
8.
A new development arose in 1982 when the Rift Valley Provincial Planning Officer submitted to the respondent for approval a part development plan (PDP) with respect to a portion of the suit land which was set apart for the construction of Egerton College (now Egerton University) staff residential houses. Initially, the request was declined by the respondent. However, after exchange of numerous letters and being satisfied that the proposed PDP did not encroach on any private property, the respondent approved it and the sub-division of portions of the suit land began in 1984 with local residents seeking to benefit from the sub-division exercise.
9.
So as not to be left behind, the appellant too approached the Provincial Commissioner of the former Rift Valley Province with a request to be considered afresh for allocation of a portion of the suit land disclosing his long-running interest over it. This time round, the Provincial Commissioner supported his bid by writing to the respondent on May 21, 1984 to consider allocation of a portion of the suit land to the appellant, justifying this intervention on the ground that the appellant was unable to fully benefit from the initial allocation of the suit land due to occupation by local people who had been authorized to cultivate it.
10.
To support the appellant’s application, the District Agricultural Officer also wrote to the respondent on December 10, 1985 to confirm that the appellant had developed and utilized about 48 of the 50 acres of the suit land by planting sunflower; and that he had paid Kshs 40,500 being the purchase price for this portion. It was on that basis that the appellant was granted a lease over 50 acres out of the said land.
11.
It would appear that the appellant was still aggrieved by the respondent’s decision allocating part of the suit land to other parties and ignoring the letter of allotment it had itself issued to him.
| F. Analysis and Determination
Jurisdiction under article 163(4)(a) of the Constitution
36.
Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1,
“jurisdiction is everything. Without it, a court has no power to make one more step”.
37.
It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated. Because the question of jurisdiction is so fundamental, a limitation on the authority of the court, it can be raised at any stage of the proceedings by any party or even by the court suo motu. As a matter of practice, this court has a duty of jurisdictional inquiry to satisfy itself that it is properly seized of any matter before it.
38.
It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.
39.
Applying these principles to this appeal, we have in the previous paragraphs noted that both the respondent and interested parties in their respective submissions have questioned our jurisdiction to determine this appeal since it does not raise any issue or issues involving the interpretation or application of the Constitution.
40.
Article 163(4) has been the subject of interpretation by this court in a long line of decisions as we are shortly to demonstrate. By those authorities, it is now firmly settled that appeals from the Court of Appeal will lie as of right to this court under article 163(4)(a) and (b) of the Constitution, if they involve constitutional interpretation and application, or upon certification, by either the Court of Appeal or this court, that they involve matters of general public importance.
41.
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 an issue of constitutional interpretation or application.
42.
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 and 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). These considerations are constant and have to be satisfied whether a matter is originated as a judicial review application or a constitutional reference.
43.
These are the ratio decidendi to be extracted from our decisions in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd, SC Petition No 3 of 2012; [2012] eKLR, Hassan Ali Joho & another v Suleiman Said Shahbal & others, SC Petition No 10 of 2013; [2014] eKLR, Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others, SC Petition No 28 of 2014; [2015] eKLR and Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 32 of 2018; [2018] eKLR.
44.
The appeal before us is expressed to be brought pursuant to the provisions of articles 2(4) and 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act, 2011, rules 30 and 32 of the Supreme Court Rules, 2011. This is so even though the events giving rise to the cause of action took place before the promulgation of the Constitution in 2010. The appellant has been categorical that his appeal falls squarely within article 163(4)(a).
45.
The genesis of the dispute is a letter of allotment dated June 7, 1977 granting the appellant an unsurveyed agricultural land, whose terms he admittedly did not fulfill, with the result that it reverted to the government, which in turn allocated it to third parties, including the interested parties in 1984. The appellant himself was a beneficiary of 50 acres in the second phase of allotment. He went to court in 1993 to challenge the new allotments, way before no one imagined there would be constitutional reforms which would culminate in the passage of the 2010 Constitution.
46.
The High Court (Dulu, J) dismissed the application on January 19, 2010, seven months before the promulgation of the Constitution. The first appeal to the Court of Appeal was determined on February 8, 2019, and the instant appeal lodged on March 18, 2019. These dates are significant to show that, although the cause of action arose during the former constitutional order, violations committed in that period can be redressed under this Constitution. Indeed, the court has consistently entertained appeals from the Court of Appeal arising from decisions on violations of the former Constitution. For example, Hon Gitobu Imanyara & 2 others v The Honourable Attorney General, SC Petition No 15 of 2017 and Monica Wangu Wamwere & 5 others v The Honourable Attorney General, SC Petition No 26 of 2019 (Consolidated with Petition Nos 34 & 35 of 2019), in a long list of others. In entertaining all those appeals, the court had to be satisfied that they met the strictures of article 163(4).
47.
The question before us, is whether this appeal meets the criteria for invocation of article 163(4)(a) as enunciated in Lawrence Nduttu (supra), Hassan Ali Joho (supra), Peninah Nadako Kiliswa (supra), among other decisions. In other words, does this appeal involve constitutional interpretation or application; if the grievance presented before this court is one involving a question or questions of constitutional interpretation or application, is it the same question or questions that engaged the two courts below, and upon which both courts based their respective decisions?
48.
The cause was presented to the High Court as a judicial review application for prerogative orders of mandamus and prohibition. In Peninah Nadako Kiliswa (supra), the court proclaimed that whether a matter is originated as a judicial review application or a constitutional reference, the considerations of article 163(4)(a) are the same.
49.
We have studied the entire record and observe that in the motion for judicial review, the appellant was concerned, not with breach of any of his constitutional rights and fundamental freedoms but with the respondent being directed to issue to him a lease of the entire suit land and to be prohibited from proceeding with the sub-division of the suit land or alienating it to the interested parties. In the entire motion, the statement and affidavit there is no mention of even a single provision of the Constitution.
50.
The two reasons for the dismissal of the application by the High Court were to do with the appellant’s failure to comply with the requirement of developing of the suit land within 3 years from June 1977. Secondly, the court held that an order of prohibition was infective to deal with third parties who had been allotted parts of the suit land. The appellant, the court concluded, ought to have applied for cancellation of those allotments by an order of certiorari but failed. In other words, there was no determination of any question of constitutional nature.
51.
There having been no constitutional question before the High Court, none was expected to arise in the Court of Appeal, which affirmed the decision of the High Court. The Court of Appeal confined its consideration of the first appeal to the inordinate delay of over 15 years to institute the judicial review proceedings; that at the time the appellant moved the High Court, the land had been allocated to third parties and character changed. The court also held, in agreement with the High Court, that in the absence of a registrable lease and having failed to fulfill the mandatory conditions for grant of lease, the appellant had no legal or equitable proprietary interest in the suit land which could be enforced by an order of mandamus; and that without an order of certiorari to quash the fresh allotments, an order of mandamus would not be efficacious or appropriate. For these reasons, the Court of Appeal too found no substance in the application and dismissed it. Again, it is important to note that in the entire judgment there is no reference to any provision of the Constitution.
52.
Before this court however, the appellant expressly cites article 163(4)(a) of the Constitution on the face of the petition but proceeds to ask the court to determine whether his right to property within the meaning of section 75 of the former Constitution was violated in so far as the government failed to allocate to him the entire 118 Hectares of the suit land, despite issuing to him a letter of allotment; that he had a right not to be subjected to arbitrary exercise of public power under section 82 of the repealed Constitution; and that he had a right to redress under Section 84 of the repealed Constitution.
53.
From the decisions of the two superior courts below which we have summarized above, no such question was presented or determined. As a matter of fact, the appellant has referred to sections 75, 82 and 84 of the retired Constitution for the first time in his pleadings before this court. The mere citation of constitutional provisions in the pleadings itself does not bring an appeal within the scope of article 163(4)(a) of the Constitution.
54.
We come to the inevitable conclusion, on this issue, 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 the matter turned on purely factual issues as applied to a statute, the Government Lands Act (repealed), for which reason this court lacks jurisdiction to determine this appeal.
55.
Having arrived at this conclusion, and as intimated earlier, we can only consider the second issue in this appeal, if in our opinion the appeal presents exceptional circumstances or distinctive opportunity for the court to provide interpretive guidance on the question, as was the case in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2013] eKLR; In the Matter of the Speaker of the Senate & another, Advisory Opinion Reference 2 of 2013; [2013] eKLR; and Sonko v Clerk, County Assembly of Nairobi City & 11 others, SC Petition 11 of 2022; [2022] KESC 26 (KLR).
56.
This is another of those cases where we must down tools at this stage, as no purpose will be served in considering the merits of the appeal beyond what we have said on the jurisdiction, which is sufficient to dispose of the appeal.
57.
We accordingly dismiss this appeal for want of merit. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/20/eng@2023-03-31 |
Petition 2 (E003) of 2022 | MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (2 March 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 2 March 2023 | 2,023 | Nairobi | Civil | MAK v RMAA & 4 others | [2023] KESC 21 (KLR) | null | A. Introduction
1.
This appeal raises fundamental legal issues pertaining to parental access of a child, custody of a child, best interest of the child, parental rights after a child has attained the age of eighteen (18), and the application of foreign judgments in our jurisdiction. This case also involves the protracted dispute between the appellant and the 1st respondent over the custody, upbringing, and welfare of their child.
2.
The appeal challenges the decision of the Court of Appeal (Kiage, Sichale, and J Mohammed JJA) delivered on June 4, 2021 which affirmed the decision of the High Court (Muchelule, J). Both courts dismissed the appellants case for child custody and access.
B. Background
3.
The appellant and the 1st respondent got married on August 2, 2002 under the African Christian Marriage and Divorce Act cap 151 (Repealed) and were blessed with a son, FKA (the child), born on February 12, 2004. The marriage between the appellant and 1st respondent broke down and the appellant petitioned for its dissolution in Milimani Chief Magistrate’s Divorce Cause No 75 of 2008 .The marriage was dissolved on October 9, 2008.
4.
Prior to the dissolution, the parties had entered into a Parental Responsibility Agreement (PRA) on May 15, 2008 before the Milimani Children’s Court in Misc Case No 36 of 2008. The terms of the PRA were that:
a)
Both parents were to have joint legal custody of the child;
b)
The appellant was to have actual custody of the child, with the 1st respondent having unlimited access rights to the child with notice, and such access not being unreasonably denied;
c)
The 1st respondent was to secure the schooling needs of the child and be responsible for the child’s school fees and all school-related expenses, and the decision as to which school the child would attend was to be agreed upon after mutual consultation;
d)
The 1st respondent was to provide the child with a medical cover with a reputable medical provider for both in-patient and out-patient, and was to further deposit Kshs 300,000/=being security to cover any medical and emergency and incidental case, and such money was to be in the petitioner’s account;
e)
The 1st respondent was to pay Kshs 115,000/= monthly for maintenance, beginning July 1, 2008;
f)
The 1st respondent was to cause the transfer of a Flat at Zenith Gardens, Brookside LR No [particulars withheld] into the appellant’s name and complete the payment by the remaining installments of the loan on the said property to Central Bank of Kenya; and
g)
The parties agreed to abide by the terms of the agreement and act in the best interests of the child.
5.
In the year 2014, the appellant, who was living with the minor in Kenya, moved to York in the United Kingdom to pursue a Masters degree in Law. The 1st respondent gave the appellant his consent for her to be accompanied by the child to the United Kingdom. The situation turned murky at this point because the parties turned on one another. It was the appellant’s case that the 1st respondent, who comes from an allegedly influential family which is highly revered and respected, used his influence in London and falsely accused her of having intentions to injure the child with the aim of having her arrested.
6.
On the other hand, in his sworn testimony, the 1st respondent deposed that, as a consequence of complaints made to him by the child, he contacted the National Society of Prevention of Cruelty to Children in the United Kingdom and they sent social services to speak to the minor. During all these incidents, the appellant averred that she succumbed to illness causing her to relocate back to Kenya.
7.
What is clear from the record is that the appellant applied for a Child’s Arrangement Order, in the United Kingdom, dated December 22, 2014 for the child to live with her. The 1st respondent cross applied for a Child Arrangement Order that the child would live with him. He also applied for a prohibited steps order to prohibit the appellant from removing the child from the jurisdiction of England and Wales.
8.
On August 7, 2015, the Family Court in United Kingdom High Court of Justice Family Division 2017 EWHC 2048 (Fam) Family Court Cause No YO14P00779 at York determined that it had jurisdiction to determine these applications. Heaton QC made several declarations key among them that: the minor was habitually resident in England and Wales, the minor was not habitually resident in any other jurisdiction, whilst the child continued to be habitually resident in England and Wales, the English Courts retained jurisdiction to determine any issue in respect of parental responsibility, and any application for the enforcement, clarification or in respect of contact between the child and the mother was to be made to the English Court and in particular HHJ Heaton QC or to the High Court Judge sitting in the Family court.
9.
The English Court also recorded that the appellant had on at least one occasion hit her son causing him physical harm; the minor had made allegations that the appellant repeatedly hit him; the appellant had been charged with the criminal offence of child cruelty and a criminal trial was pending; the appellant had failed to attend two hearings in respect of the criminal charges and a warrant had been issued for her arrest.
10.
The record reveals that, meanwhile, the appellant filed Nairobi High Court Misc Suit No 124 of 2015 seeking for the PRA to be adopted as an order of the court with the High Court (Muigai, J) granting the order on December 17, 2015. At this point, the 1st respondent had moved from the United Kingdom and was now residing in Tanzania, but the child was still in boarding school in the United Kingdom.
11.
Armed with the order from the High Court adopting the PRA, the appellant went to the High Court at Dar-es-Salaam in Tanzania in Civil Application No 404 of 2016 seeking to have the order dated December 17, 2015 enforced under the Reciprocal Enforcement of Foreign Judgments Act (cap 8, RE 2002). The appellant obtained an ex parte order on August 3, 2016 to register the order for purposes of enforcing the order against the 1st respondent, who was living in Tanzania at the time. The 1st respondent made an application in the High Court of Tanzania being Civil Application No 516 of 2016 asking the court to set aside this ex parte order.
12.
We note that, at some point during the pendency of the Tanzanian proceedings, the appellant instituted proceedings at the Kenyan High Court.
13.
The High Court of Tanzania meanwhile concluded the case before it and rendered its decision on July 22, 2017. It held that for a foreign judgment to be enforced in Tanzania under section 3(1) of the Reciprocal Enforcement of Foreign Judgments Act (cap 8) of the Laws of Tanzania as read with order 2 of the Reciprocal Enforcement of Foreign Judgments (Extension of Part II) Order, GN No 9 of 1936, the country from which the said judgment originated must be a country which is listed in the first column of the schedule of the order as one of the countries which have an agreement of enforcing their judgments with Tanzania and that Kenya did not have such an agreement with Tanzania. The court also found that, under section 2 of the Judgment Extension Act (cap 7, RE 2002), decrees from Kenya that can be executed in Tanzania are only those that relate to debts, damages or costs and that the parental responsibility agreement did not fall in either of those categories. | E. Analysis
(i) Whether this court has jurisdiction under article 163 (4) (a) of the Constitution to hear and determine this appeal.
37.
The 1st respondent contends that this court has no jurisdiction to entertain this matter as it neither raises issues of constitutional interpretation or application as provided for under article 163(4)(a) of the Constitution nor falls under the ambit of a matter of general public importance under article 163(4)(b) of the Constitution.
38.
This court’s decisions, as to whether the jurisdictional threshold set out under article 163(4)(a) of the Constitution has been met, are legion. See Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Anor, SC Petition No 3 of 2012; [2012] eKLR; Hassan Ali Joho and Anor v Suleiman Said Shalabal & 2 Others [2014] eKLR; Erad Supplies and General Contractors Ltd v NCPB, SC Petition No 5 of 2012, [2012] eKLR and Aviation and Allied Workers Union of Kenya v Kenya Airway Ltd & 3 others, SC Petition No 4 of 2015; [2017] eKLR.
39.
In particular, in Rutongot Farm Ltd v Kenya Forest Service & 3 others, SC Petition No 2 of 2016; [2018] eKLR this court held at paragraph 18:
“
(18)
As can be deduced from the above quoted cases, 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?”
40.
In this context, as outlined in earlier parts of this judgment, in the High Court, the appellant invoked articles 27, 28, 29, 43, 45, and 53 of the Constitution in alleging that her constitutional rights and freedoms and that of the child had been contravened. She has consistently claimed, in both superior courts, that the 1st respondent caused the child to be admitted as a ward of the United Kingdom Court which infringed on the child’s right to Kenyan nationality and citizenship.
41.
However, in as much as the learned Judge in the trial court ‘was not satisfied that the amended petition was precisely framed to disclose the facts relied on, and the injury suffered, to support the constitutional provisions alleged by the petitioner as having been violated and infringed’, the learned Judge delved into the issue of the best interests of a child as enshrined in article 53 (2) of the Constitution. The learned judge at paragraphs 25 and 26 of his judgment stated:
“
25.
The primary subject of this dispute is a child. The case involves the protracted dispute between the petitioner and the 1st respondent over the custody, upbringing and welfare of their child. Under article 53(2) of the Constitution and section 4(3) of the Act, this court is commanded to treat the best interests of the child as the first paramount consideration.……
26.
The best interests of the child herein will be served where the court adopts a course of action that safeguards and promotes his rights and welfare. The court will ensure that he has shelter, food, clothing, education and medical care. His best interests will be served where he has parental guidance, and where such guidance is provided by, as much as it is possible, both parents. The child is entitled to be allowed a suitable, conducive and loving environment in which to grow and develop.”
42.
On this basis, learned trial judge determined what was in the best interests of the child according to article 53 of the Constitution but nevertheless concluded that the 1st respondent had not infringed or violated any of the fundamental rights and freedoms pleaded, either against the appellant or against the child. He was also of the view that it had not been shown that any such rights and freedoms were likely to be infringed or violated against the appellant or the child.
43.
On its part, the appellate court though primarily focusing on the PRA, spoke on the best interests of the child in the following terms:
“
It is certainly not in the best interest of the minor that he should be left in the care of a mother who causes him physical and mental harm……. Moreover, courts are enjoined to consider the ascertainable wishes of a child when deciding on what is in his or her best interest.”
44.
It is evident that the running theme in both superior courts was the enforcement of parental rights vis a vis children’s rights. This is still the case in the matter before us where the issues of parental rights and the child’s best interests pursuant to article 53 of the Constitution are largely in issue. In addition, the appellant claims that her right to a fair hearing has been breached in both superior courts and she has been condemned, as an unfit mother, unheard. All these facts bring this matter within our jurisdiction under article 163 (4) (a) of the Constitution.
(ii) Whether the High Court and Court of Appeal properly applied the decisions issued by the Family Court in the United Kingdom in arriving at their determination.
45.
The appellant was emphatic that the superior courts deferred to the English Court’s judgment when they applied its decision and orders in the instant matter. She contended that the trial court proceeded on the premise that the English Court is superior to the High Court which, she argues, cannot be. She maintained that the High Court was bound by its determination and orders on parental responsibility. She urged that the superior courts could not abandon their responsibility to another foreign court. The 1st respondent on the other hand argued that the minor was residing in the United Kingdom all along thus it was proper for the English Courts to make its judgment which was the basis of the trial court finding that the parental agreement was no longer reflective of the child’s legal or factual position.
46.
The question that arises is whether the superior courts deferred to the English Court by disregarding Kenyan Law as well as a High Court order that was in force while determining the matter that was before them. In other words, were the superior courts bound by the English Court judgment?
47.
At the High Court, the learned judge delivered himself as follows:
“
(34)
I reiterate that the child was heard by the Family Court in London. He was categorical that he had been physically and emotionally abused by the petitioner, and did not want any contact with her. I find that in particular circumstances of this case, the best interests of the child will be served by the parties obeying the orders that were granted by the Family Court in London in the United Kingdom on May 11, 2017. These orders, I find, were in line with the protection afforded to a Kenyan child under the Constitution, the Children Act and the international instruments that Kenya is party to.”
48.
The learned judges of the Court of Appeal in determining the appeal before them held as follows;
“
We further observe that based on the Cafcass Family Court report, the United Kingdom High Court made the minor a ward of the court, “until his 18th birthday or until further order to the contrary”. The court further held that the parental responsibility agreement was not reflective of the child’s current legal and factual position. The court directed that the appellant should not have direct contact with the minor. And it is these findings that largely informed the learned Judge’s conclusions that the appellant’s petition was unmeritorious.
With respect, we concur with and affirm the learned Judge’s conclusions as being based on the evidence availed and reflective of a proper exercise of discretion. It is noteworthy that fundamental changes have occurred in the lives of the parties and the minor since the recording of the parental responsibility agreement dated 2008, including the fact that the parties and the minor are no longer resident in Kenya. The assault accusation made by the appellant, an which the United Kingdom High Court found true, is especially critical in this matter and not one to be taken lightly.’ (emphasis ours)”
49.
It is evident that the determinations made by the learned judges of the superior courts relied on the findings by the English Court. However, the English Court did not consider the significance of the PRA and the consequences of its violation.
50.
We have also considered the provisions of the Evidence Act, chapter 80, Laws of Kenya on matters which the court can take judicial notice of and judgments from foreign courts do not fall within the purview of the issues for consideration on judicial notice.
51.
We are therefore constrained to fault the learned judges of the Court of Appeal in placing credence on the findings of the family court in English Court which largely disregarded the PRA; an agreement that could not be violated without consequence. In addition, the PRA, a binding agreement between both the appellant and the 1st respondent could only be terminated by the High Court.
iii) What is the status of the PRA?
52.
The English Court (Mrs Justice Parks in Family Court Cause No XXXX) on May 11, 2017, stated as follows at paragraph 30 of her judgment:
“
I shall make a declaration as to habitual residence in terms of paras. 1, 2 and 3 of the initial declarations. I shall record that the Kenyan parental responsibility agreement reached by the parties in 2008 is no longer reflective of the child’s legal or factual position and was not at the time when the mother issued her application in the Kenyan High Court for registration of that agreement on 1 September 2015, in that the child was no longer in the care of the mother.”
53.
Both superior courts adopted this finding on the PRA. It is curious that although the trial Judge, in his judgment, referred to how PRA’s are vacated, he ended up deferring to the English Court’s declaration that the PRA was no longer reflective of the child’s legal or factual position.
54.
The Children Act, 2001 (No 8 of 2001) (repealed) provided in section 26 as follows:
“
26.
Parental responsibility agreement, etc.
(1)
A parental responsibility agreement shall have effect for the purposes of this Act if it is made substantially in the form prescribed by the Chief Justice.
(2)
A parental responsibility agreement may only be brought to an end by an order of the court made on application by—
a.
any person who has parental responsibility for the child; or
b.
the child himself with the leave of the court.
3.
The court may only grant leave under subsection (2)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.” (emphasis ours)
55.
While it is clear that there were express provisions on the procedure to follow to vacate a PRA, the PRA undoubtedly attained more force when it was adopted as an order of the court by Mungai, J in Misc Suit No 124 of 2015 on December 17, 2015. The 1st respondent argues that the order issued by Mungai, J was invalid and unenforceable because it was done without his knowledge.
56.
However, a thorough perusal of the record does not reveal this to be so. This notwithstanding, we note that the PRA was entered into voluntarily by both the appellant and the 1st respondent and neither of them has ever made any steps towards vacating it. A perusal of the record shows that the English Court alluded to the PRA and dismissed it ever so casually, without taking into account the Kenyan legal regime surrounding the PRA. Specifically, it ignored our very progressive Constitution’s article 53 of the rights of Children, the Children Act and case law with regard to PRA’s. Most importantly, it overlooked the fact that there was a legally binding court order on the PRA. These liberties, however, could not be taken by our superior courts.
57.
We are of the view that the English Court made orders on the PRA that disregarded the sovereignty of the Kenyan legal system over its own nationals.
Since there was a binding decision of the Kenyan High Court pertaining to the parties on similar issues on which it was called to adjudicate upon, the English Court ought to have given more prominence to the PRA, the Kenyan Constitution which provides for the rights of children under article 53, the Convention on the Rights of a Child which the United Kingdom is a party to, and the African Charter on the Rights of a Child. It ought to have deferred to the High Court’s order already in place; an order of a competent court of law. We find it quite strange that the English Court overturned a valid and legally competent PRA without hearing the parties to it. This, in our view, negates the expectation of a fair trial and is contrary to our constitutional prescriptions of the non-derogable right to a fair trial.
58.
The Superior Courts ought not to have succumbed to the same temptation. They should have paid mind to section 26 of the Children Act (repealed). It was imperative for them to interrogate the status of the PRA seeing that Mungai, J had adopted it as an order of the court. Once adopted as an order of the court, it could not be violated without consequences. In other words, if one parent violated the agreement, then they were liable to legal proceedings. Not being vacated, we are of the view that the PRA remained a binding order of the High Court until the child attained eighteen years of age.
59.
The superior courts therefore erred by accepting and relying on the English Court’s decision on the PRA. The error of their finding on this issue was compounded by the fact that the Children’s Act had specific provisions on how a PRA is vacated. Indeed, in NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another, HC Petition No 17 of 2014 [2019] eKLR, Njagi, J observed at paragraph 49:
49.
Section 26 provides for parental responsibility agreements which agreements I find can only be vitiated like any other contract. I see nothing wrong in having parental responsibility agreements in so far as they are not in conflict with the constitution and relevant statutes.
60.
We reiterate that it was improper for the superior courts to rely on the English’s Court determination which made no reference to our laws, the CRC, and the African Charter on the Rights and Welfare of the Child. This is the legal regime by which the PRA ought to have been considered. At the very least, the trial court ought to have heard the parties to the PRA before invalidating it. For the avoidance of doubt, the English Court orders of August 7, 2015 does not supersede the PRA.
(iv) Whether parental rights and responsibilities could be extinguished in this case.
61.
It was the appellant’s contention that the rights of a child to parental care are innate and cannot be extinguished. She urged that the character and conduct of a parent are immaterial and do not extinguish parental rights unless the parent has been proven not desirous of acting in the best interest of the child. The 1st respondent on his part urged us to find that the Appellate Court assessed the evidence before it and made a finding that it would not be in the best interest of the minor to be left in the care of a parent who causes him physical and mental harm. The Constitution guides us on the rights of children.
62.
Article 53 of the Constitution provides that:
53.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/21/eng@2023-03-02 |
Petition (Application) 29 (E033) of 2022 | Kithinji v Director of Public Prosecutions & another (Petition (Application) 29 (E033) of 2022) [2023] KESC 18 (KLR) (Civ) (24 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 24 February 2023 | 2,023 | Nairobi | Civil | Kithinji v Director of Public Prosecutions & another | [2023] KESC 18 (KLR) | null | Brief facts
The applicant contended that he was aggrieved by the decision of the Court of Appeal which declined to grant stay of proceedings at the Magistrates Court (where the appellant was facing criminal charges); that his appeal pending before the Court of Appeal was arguable and raised triable issues involving a clear misapplication of the law.
The appellant sought an interim order staying all further proceedings in Kibera Criminal Case No. 743 of 2018 (Magistrates Court) pending the hearing and/or determination of the instant application; an order setting aside the ruling of the Court of Appeal; and an order staying all further proceedings in Kibera Criminal Case No. 743 of 2018 pending the hearing and final determination of the applicant’s pending appeal at the Court of Appeal.
Issues
What were the circumstances in which the Supreme Court acting as an appellate court could grant ancillary or interlocutory orders?
What were the circumstances in which an appellate court could grant an order for stay in criminal proceedings?
Whether the Supreme Court had the jurisdiction to issue an order of stay for proceedings before the the Magistrate’s Court. | Upon perusing the notice of motion dated December 2, 2022 and filed on even date, pursuant to articles 159, 163(4)(a) and 259 of the Constitution, sections 3, 3A, 15A, 21(1), 23A(1)(a) and 24(1) of the Supreme Court Act and rules 31 and 32 of the Supreme Court Rules, 2020 seeking: an interim order staying all further proceedings in Kibera Criminal Case No 743 of 2018 pending the hearing and/or determination of this application; an order setting aside the ruling of the Court of Appeal delivered on October 7, 2022; and an order staying all further proceedings in Kibera Criminal Case No 743 of 2018 pending the hearing and final determination of the Applicant’s pending appeal at the Court of Appeal; and
2.
Upon perusing the grounds on the face of the application; the supporting affidavit of the applicant sworn on December 2, 2022; submissions dated December 2, 2022; and supplementary submissions dated December 28, 2022, we note that the applicant contends that he is aggrieved by the decision of the appellate court which declined to grant stay of proceedings at the Magistrates Court; that his appeal pending before the Court of Appeal is arguable and raises triable issues involving a clear misapplication of the law apparent on the face of the ruling of the Court of Appeal as it failed to appreciate section 8(2) of the Magistrate Courts Act which ousts jurisdiction of the criminal trial court to determine redress of violation of the right to a fair trial; disregarding binding precedent from the Supreme Court and Court of Appeal consequently denying him the ability to challenge admissibility of the P3 Medical Report evidence pursuant to article 50(4) of the Constitution; and
3.
Upon considering the applicant’s further argument that unless the orders of stay are granted, the defence proceedings will commence, fatally defeating his rights under articles 25(c), 50(1),50(2) and 50(4) of the Constitution rendering the appeal nugatory as he has been found to have a case to answer on the basis of disputed evidence obtained pursuant to his disputed unlawful arrest; that he satisfies the test of exceptional circumstances for this court to exercise its jurisdiction arising from an interlocutory ruling by the Court of Appeal as per this court’s decisions in Attorney General v Kenya Ports Authority & 7 others Civil Application No 15 of 2020 [2020]eKLR, and Deynes Muriithi & 4 others v Law Society of Kenya & another Civil Application No 12 of 2015 [2016]eKLR;
4.
Noting that the 1st and 2nd respondents did not file any responses to the application despite service and further noting the 1st respondent’s court attendance on 16th January, 2023 wherein its counsel indicated that he had filed responses to the application; and
5.
Furthermore noting that the 1st respondent in opposition to the application only filed submissions dated December 21, 2022 urging that, allowing the application is tantamount to determining the petition which is frivolous, has no probability of success and is neither arguable nor raises questions of constitutional application or interpretation; and that the applicant at the trial court did not demonstrate the manner in which the proceedings were in violation of his rights under articles 25(c) and 50 of the Constitution to warrant the granting of stay of proceedings;
6.
Taking into account the 1st respondent’s submission that this court lacks jurisdiction to grant the orders sought as there is no substantive subject matter of appeal before this court for determination that needs to be safeguarded. The 1st respondent cites this court’s decisions in Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014 [2014] eKLR and Board of Governors, Moi High School Kabarak & another v Malcolm Bell [2013] eKLR in support of that submission; and
7.
Bearing in mind this court’s inherent power to grant any ancillary or interlocutory orders as may be necessary for the ends of justice or prevent abuse of the process of the court under section 21(2) of the Supreme Court Act, rule 3(5) of the Supreme Court Rules 2020 and this court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra) which set out the criteria for grant of interlocutory relief to wit that the appeal must be arguable and not frivolous; that if stay is not granted the appeal will be rendered nugatory; and if it is in the public interest that the order of stay is granted; and
8.
Cognisant that an order for stay of criminal proceedings is not granted as a matter of course but upon the sparing exercise of judicial discretion and only in exceptional circumstances as enunciated in Dande & 3 others v Director of Public Prosecutions & 2 others Petition 4 of 2022 [2022] KESC 23 (KLR) where we held that:
“
[15]..it is fairly elementary that this court can only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrate’s Court, as sought in this application; and that reference to “any other court or tribunal as prescribed by national legislation” in article 163(3 )(b)(ii) is definitely not reference to the Magistrate’s Court.”
9.
We now opine that the notice of motion lacks merit as it not only seeks to set aside a ruling of the Court of Appeal at the interlocutory stage but also seeks to stay proceedings before the Magistrate’s Court contrary to the limited jurisdiction granted to the Supreme Court under article 163(3)(b) and (4) of the Constitution and the decision in Dande & 3 others v Director of Public Prosecutions & 2 others (supra).
10.
Consequently, for reasons aforesaid, we make the following orders:
i.
The notice of motion application dated December 2, 2022 be and is hereby dismissed; and
ii.
Costs of the application shall abide the outcome of the appeal.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/18/eng@2023-02-24 |
Petition 16 of 2019 | NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) (Constitutional and Human Rights) (24 February 2023) (Judgment) (with dissent - MK Ibrahim & W Ouko, SCJJ) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 24 February 2023 | 2,023 | Nairobi | Civil | NGOs Co-ordination Board v EG & 4 others; Katiba Institute | [2023] KESC 17 (KLR) | null | A. Background
1.
The petition of appeal before court is dated May 6, 2019 and lodged on even date. The appeal challenges the Judgment of the Court of Appeal (Waki, Nambuye, Koome, Makhandia and Musinga, JJA) at Nairobi in Civil Appeal No 145 of 2015 delivered on March 22, 2019, which dismissed the appeal in the High Court decision EG v Non-Governmental Organisations Co-ordination Board & 4 others, petition No 440 of 2013. The Court of Appeal (by a majority of 3:2) affirmed the decision of the High Court that had declared that the Non-Governmental Organizations Coordination Board (NGO co-ordination board) had contravened the provisions of article 36 of the Constitution in failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice.
2.
This matter can be traced to a letter from the NGO co-ordination board dated March 25, 2015 refusing to reserve any of the 1st respondent’s proposed names to register a non-governmental organization (NGO) seeking to champion the rights of (lesbian, gay, bisexual, transgender, queer or questioning (LGBTIQ) persons in Kenya. The 1st respondent sought to reserve for registration of an NGO in any of the names: Gay and Lesbian Human Rights Council; Gay and Lesbian Human Rights Observancy; Gay and Lesbian Human Rights Organization; Gay and Lesbian Human Rights Commission; Gay and Lesbian Human Rights Council and Gay and Lesbian Human Rights Collective.
3.
However, the appellant’s executive director declined to approve any of the proposed names on the grounds that sections 162, 163 and 165 of the Penal Code criminalizes gay and lesbian liaisons. The 1st respondent’s efforts to request for a review of the decision from the NGO coordination board bore no fruit.
4.
Aggrieved by the appellant’s decision, the 1st respondent filed High Court petition No 440 of 2013 alleging that the appellant’s refusal to register the intended NGO not only contravened the provisions of articles 20(2), 31(3), 27(4), 28 and 36 of the Constitution, but also those of the Non-Governmental Organizations Co-ordination Act (the NGO Coordination Act).
5.
The trial court (Lenaola, J (as he then was), Ngugi, J (as she then was), and Odunga, J (as he then was) delineated two main issues and several other collateral issues for determination. The primary issues for determination were:
i.
whether LGBTIQ have a right to form associations in accordance with the law; and
ii.
if the answer is in the affirmative, whether the decision of the board not to allow the registration of the proposed NGO because of the choice of name is a violation of the rights of the 1st respondent under articles 36 and 27 of the Constitution.
6.
On April 24, 2015, the court rendered its determination. Before tackling the main issues, the court addressed itself on the issue of whether there was failure by the 1st respondent to exhaust any internal remedies before approaching the court. In this regard, the trial court observed that in rejecting the names, the appellant was not dealing with registration of the proposed NGO but with the question of whether the name(s) that the 1st respondent sought to reserve for the proposed NGO were acceptable. Therefore, the court held that the refusal to reserve the proposed names was not “a decision” contemplated under section 19 of the NGO Coordination Act under which an appeal to the Minister lies. The trial court also found that the impugned decision was purely administrative and was made pursuant to the NGO Regulations, and not the NGO Coordination Act. To this end, the court concluded that there was no statutory prescribed internal remedy that was available to the 1st respondent, and that the court could not close its doors on him for failure to exhaust an internal remedy that did not apply to his circumstance.
7.
Further, the trial court held that the state is restricted from determining which convictions and moral judgments one can hold, and that as per the Constitution, the right to freedom of association is not selective, but is guaranteed to, and applies to everyone. The learned judges also, observed that it did not matter if the views of certain groups or related associations are unpopular or unacceptable to certain persons outside those groups or members of other groups. Moreover, the court observed that if only people with views that are popular were allowed to associate with others, then the room within which to have a rich dialogue and disagree with the government and others in society would be thereby unreasonably limited.
8.
The trial court observed that it was apparent that the appellant took issue with both the name, and the objects and purposes, of the 1st respondent’s proposed NGO because it deemed the name to be furthering an illegality. Therefore, the court concluded that whatever mode the Board wished to place in rejecting the name sought to be used by the 1st respondent, its effect was to reject the 1st respondent’s application to register an association to advocate for the rights of LGBTIQ. Ultimately, the court found that the appellant’s action constituted an infringement of the 1st respondent’s right to freedom of association.
9.
On the issue of whether the limitation of the 1st respondent’s right to freedom of association was justifiable in a free and democratic society, the trial court recognized that the right to freedom of association is not absolute and can be limited. However, such limitation must be in accordance with article 24 of the Constitution. Accordingly, the court faulted the appellant’s reliance on sections 162 and 163 of the Penal Code to justify its decision, as those sections do not criminalize homosexuality or the state of being homosexual; the law only refers to certain sexual acts which are ‘‘against the order of nature.’’ Likewise, the learned judges observed that the fact that the state does not prosecute people who confess to being lesbians and homosexuals in this country, is a clear manifestation that such sexual orientation is not criminalized. To that end, the court found that the Penal Code does not criminalize the right to freedom of association of people based on their sexual orientation nor does it contain any provision that limits the freedom of association of persons based on their sexual orientation. The court concluded therefore that the appellant’s reliance on the provisions of the Penal Code to limit the 1st respondent’s freedom of association was untenable.
10.
With regard to the right to non-discrimination, the trial court noted that both the board and the High Court are constitutionally mandated when applying the Constitution to give effect to the non-discrimination provisions in article 27. Further, it observed that an interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non- discrimination.
11.
Finally, the trial court found the petition had merit and declared the words ‘every person’ in article 36 of the Constitution to include all persons living within the Republic of Kenya despite their sexual orientation. The court further declared that the appellant had contravened the provisions of article 36 of the Constitution and, that the 1st respondent was entitled to exercise his constitutionally guaranteed right to freedom of association. Consequently, the High Court issued an order of mandamus directing the board to strictly comply with its constitutional duty under article 27 and 36 of the Constitution, and the relevant provisions of the NGO Co-ordination Act.
12.
Dissatisfied with the judgment of the High Court, the appellant lodged an appeal at the Court of Appeal in Nairobi, Civil Appeal No 145 of 2015, challenging the whole judgement and decree of the High Court. The appellant raised eleven grounds stating that the learned judges erred in law and in fact:
i.
By identifying lesbian, gay, bisexual, transgender and queer as innate attributes of various persons without any or any sufficient evidence in support, and by failing to recognize that these attributes were the consequences of behavioral traits which the society has a right and duty to regulate for the sake of the common good;
ii.
When they held that the refusal to register the 1st respondent’s proposed NGO was not a decision contemplated under section 19 of the NGO Act for which an appeal lies to the minister;
iii.
In failing to recognize the limits of the right to freedom of association and the fact that the right is enjoyed by persons and not based on any attribute they may determine for themselves;
iv.
In finding that the right to freedom of association extended to the proposed NGO of the 1st respondent;
v.
By adopting and applying ratio from South Africa without recognizing the distinct and divergent constitutional background of the said country;
vi.
By disregarding the religious preference in the Constitution and the preambular influence that must be applied in interpreting and applying the various constitutional provisions in issue;
vii.
By failing to uphold the provisions of the Penal Code that outlaw homosexual behavior, as well as any aiding, abetting, counselling, procuring and other related and inchoate crimes;
viii.
By effectively reading into the Constitution’s non-discrimination clause the ground of sexual orientation;
ix.
By misunderstanding and misapplying the limitation clause in article 24 of the Constitution;
x.
By rejecting the legitimate role of the moral purpose or public policy test in determining whether to accept registration or proposed applications for associations of persons; and
xi.
By granting the declarations sought and the order of mandamus in the decree appealed against.
13.
Having considered the issues for determination, the Court of Appeal on March 22, 2019, by a majority of 3-2, dismissed the appeal, affirming the judgment of the High Court. The issues for determination delineated by the court were whether the 1st respondent had an obligation to exhaust the remedies available under the NGO Coordination Act or whether the 1st respondent’s petition before the High Court was premature; whether in rejecting the reservation of the name, the director of the appellant violated article 36 on the 1st respondent’s right to freedom of association and from discrimination and equality under articles 36 and 27 of the Constitution respectively, and whether the right under article 36 is a limited right pursuant to article 24.
14.
On the issue of the exhaustion of internal remedies, the majority (Waki, Koome and Makhandia JJA) agreed with the reasoning of the High Court. In that regard, the learned judges observed that the NGO Coordination Act and Regulations therein had not provided for an internal appeal mechanism for applicants to follow when a name is refused for the reservation to register an NGO. Therefore, the court found that requiring the 1st respondent to exhaust internal remedies would have been an exercise in futility given that there was none. The court further agreed with the trial court that courts are the ultimate bastion and custodians of the Constitution and that appellant’s decision not only transcended a mere administrative act, but also touched on matters of constitutional interpretation.
15.
On the other hand, the minority (Nambuye and Musinga JA) in finding that the petition before the High Court was premature, observed that the genesis of the 1st respondent’s petition was purely an administrative action executed by the director on behalf of the appellant, declining registration of his NGO with no constitutional underpinnings at that point in time. Therefore, the procedures set out in section 19 of the NGO Coordination Act ought to have been invoked and exhausted before seeking the court’s intervention.
16.
With regards to the violation of the right to freedom of association and limitation thereof, the majority (Waki, Koome and Makhandia JJA) found that the director of the appellant was in breach of article 36 of the Constitution. The learned judges noted that there was no contestation from any side that there are people in this country who answer to any of the descriptions in the acronym LBGTIQ; these are ‘persons,’ and are therefore protected under article 36 of the Constitution. The court observed that just like everyone else, they have a right to freedom of association which includes the right to form an association of any kind. They further held that the LBGTIQ, just like other citizens, are subject to the law including sections 162, 163 and 165 of the Penal code, and would be subject to sanctions if they were to contravene such law. The court concluded that by refusing to register the NGO, the 1st respondent was convicted before contravening any law, and that such action was retrogressive. The Court of Appeal, by majority, also found that the only limitation to the right of freedom of association as provided under article 36 of the Constitution is that the activities of the association must be in accordance with the law. If they are not, then the proposed NGO would not be protected by the Constitution and the law would take its cause. They further observed that it was arbitrary to speculate and categorize LGBTIQ, as persons who have the propensity to destroy society by contravening the provisions of the Constitution or the Penal Code, or as a group bent on ruining the institution of marriage or culture.
17.
On the other hand, the minority (Nambuye and Musinga JJA) held that the director of the appellant’s action of rejecting the proposed names did not discriminate against the LGBTIQ. They observed that the right to freedom of association as guaranteed under article 36 of the Constitution was not absolute, and subject to the limitation in terms of article 24(1) of the Constitution. Further, the learned judges found that article 27 (4) prohibits discrimination on the basis of a person’s sex (gender) and not sexual orientation. They observed that the law, as it currently stands, does not permit homosexual and lesbian sexual practices, and the freedom of association of gays and lesbians in Kenya may lawfully be limited by rejecting registration of a proposed NGO, if the country’s laws do not permit their sexual practices.
18.
Dissatisfied with the Court of Appeal’s decision, the appellant filed an appeal before us presumably under article 163(4) (a) of the Constitution. The appellant seeks the following orders from the court:
a.
The appeal be allowed with costs.
b.
The judgment and decree of the Court of Appeal given on March 22, 2019 disallowing the appeal be reversed and set aside.
c.
An order do issue affirming the right and duty of the appellant to refuse registration to any association intended to be established contrary to public the interest, or public policy, or to advance an agenda or directly or indirectly promoting conduct that is impugned under the laws of this country, including the advancement of any homosexual agenda.
19.
The appellant contends that the Court of Appeal through its majority decision erred in law in dismissing the appellant’s appeal against the decision of the High Court on the following grounds:
a.
That the learned judges erred by failing to recognize that the actions of the executive director under the NGO Regulations were made under the delegated authority of the board whose decision was subject to appeal to the minister.
b.
That the learned judges erred in law in failing to recognize the limits of the right to freedom of association as provided for under article 36 of the Constitution of and the fact that the freedom is enjoyed by persons and not based on any attribute, they may determine for themselves.
c.
That the learned judges erred in law in conflating the freedom of association under article 36 of the Constitution with-
a.
An absolute right to associate any desired label or name.
b.
An unfettered right to pursue any particular activity, objective or policy.
d.
That the learned judges erred in law in finding that the freedom of association provided for under article 36 of the Constitution extended to the 1st respondent’s proposed NGO.
e.
That the learned judges erred in law by disregarding the religious preference in the Constitution and its preamble, which influence should be applied in interpreting and applying the various constitutional provisions.
f.
That the learned judges erred in law by effectively reading into the Constitution non-discrimination clause, article 27 the ground of sexual orientation.
g.
That the learned judges erred in law by finding that morals and public policy have no legitimate role in the appellants determination on the acceptance of the registration of the proposed NGOs, contrary to articles 24(5)(a), 36(3),19(2) ,11(1) & (2) of the Constitution and sections 162, 163 and 165 of the Penal Code.
h.
That the learned judges erred in law by disallowing the appeal before it. | D. Analysis and Determination
33.
With regard to this court’s jurisdiction to entertain the appeal before us, we find that it is filed as of right pursuant to article 163(4)(a) of the Constitution. We have perused the judgments of the superior courts and noted that both courts interrogated the decisions of the executive director of the NGO Coordination Board in view of article 36 and 27 of the Constitution. We have also considered article 163(4)(a) of the Constitution, section 15 of the Supreme Court Act, and the guiding principles set by this court in the case of Lawrence Nduttu & 6000 other v Kenya Breweries Ltd & another, SC Pet No 3 of 2012, and it is our finding that this matter is properly before us.
34.
Before determining the issues listed above, we find it necessary to emphasize that the matter before us is not about the legalization or decriminalization of LBGTIQ, or the morality of same-sex marriage but revolves around the question of whether refusal to register an organization of persons who fall within the LGBTIQ contravened the fundamental rights and freedoms of association guaranteed in the Constitution and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered were infringed upon.
35.
Having so clarified, we now proceed to deal with the issues for determination as follows;
(i) Whether the 1st respondent was required to exhaust the internal dispute resolution mechanism under the NGO Coordination Act?
36.
The appellant supported by the 2nd and 5th respondents argued that there exists an internal dispute resolution mechanism under the NGO Coordination Act and theNGO Organizations Regulations, 1992. Therefore, they urged that the 1st respondent ought to have exhausted the internal dispute resolution mechanism before filing a petition in court. Citing section 19 of the NGO Act, it was submitted that the rejection of the name by the NGO Coordination Board should have resulted in an appeal to the minister under section 19 (3) of the Act. In that context, they maintained that the petition before the High Court was premature. They urged the court to affirm the dissenting decision of Musinga, JA, who observed that name reservation and application for registration of an NGO cannot be separated.
37.
On his part, the 1st respondent supported by the amicus curiae argued that the appellant, having refused to reserve the names brought before it by the 1st respondent, directed that the matter be heard in a court of law. The 1st respondent’s counsel also submitted that the matter was at the early stages of reservation of names and not the registration of the NGO, and that reservation falls under regulation 8 of the NGO Co-ordination Regulations, 1992 and not section 19 of the NGO Act as proposed. Therefore, they urged that there was no remedy available to the 1st respondent under regulation 8.
38.
According to article 159 (1) of the Constitution, judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. In that regard, the Constitution encourages use of alternative means of dispute resolution mechanism.
39.
According to Gelpe, Marcia R, "Exhaustion of Administrative Remedies: The Lesson from Environmental Cases" (1985). Faculty Scholarship. Paper 81, exhaustion of administrative remedies aids in protecting administrative autonomy, preserving the separation of powers, gaining judicial economy, avoiding administrative inefficiency, and permitting courts to benefit from an administrative body’s determination of facts and exercise of discretion.
40.
The doctrine of exhaustion of administrative remedies was settled by this court in the case of 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. This court stated as follows at paragraph 118:
“
……. Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi- judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute".
41.
In the persuasive case of R v National Environmental Management Authority, CA No 84 of 2010; [2011] eKLR the Court of Appeal observed as follows:
“
The principle running through these cases is where there was an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it…". [Emphasis added]
42.
We are also persuaded by the High Court’s reasoning in Anthony Miano & others v Attorney General & others, HC petition No E343 of 2020; [2021] eKLR where the court made reference to the doctrine of exhaustion (by citing a 5-judge bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 (2020) eKLR which had elaborately dealt with the doctrine of exhaustion.) The court stated at paragraph 35:
“
…………What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved – including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…. [Emphasis added.
43.
From the foregoing decisions, this court is invited to interrogate whether an internal dispute resolution mechanism was available to the 1st respondent, and the suitability of the internal appellate mechanism to determine the issue. In this context, while the appellant urged that there existed an internal dispute resolution mechanism stipulated under section 19 of the NGO Coordination Act, the 1st respondent submitted to the contrary. He also submitted that the executive director advised that the matters raised were constitutional in nature therefore, beyond his ambit.
44.
Section 19 of the NGO Coordination Act provides as follows:
“
19.
1.
Any organization which is aggrieved by the decision of the board made under this part may, within sixty days from the date of the decision, appeal to the minister.
2.
On request from the minister, the council shall provide written comments on any matter over which an appeal has been submitted to the minister under this section.
3.
The minister shall issue a decision on the appeal within thirty days from the date of such an appeal.
3A.
Any organization aggrieved by the decision of the minister may, within, twenty-eight days of receiving the written decision of the minister, appeal to the High Court against that decision and in the case of such appeal—
a.
The High Court may give such direction and orders as it deems fit; and
b.
The decision of the High Court shall be final."
45.
Concerning reservation of names, part II of the NGO Coordination Regulations, 1992 regulation 8 provides as follows:
“
1.
An applicant for the registration of any proposed organization shall prior to such application seek from the director approval of the name in which the organization is to be registered.
2.
The application for approval under paragraph (1) shall be in form 2 set out in the schedule and accompanied by the fee specified in regulation 33.
3.
The director shall, on receipt of an application and payment of the fee specified in regulation 33, cause a search to be made in the index of the registered organizations kept at the documentation centre and shall notify the applicant either that—
a.
such name is approved as desirable; or
b.
such name is not approved on the grounds that—
i.
it is identical to or substantially similar to or is so formulated as to bring confusion with the name of a registered body or organization existing under any law; or
ii.
such name is in the opinion of the director repugnant to or inconsistent with any law or is otherwise undesirable.
4.
A name which has been approved under paragraph (3)(a) shall be entered in the register of reserved names on behalf of the applicant for a period of thirty days or such longer period, not exceeding sixty days, as the director may allow, and such period shall commence from the date of notification of such approval to the applicant.”
46.
In the instant case, the administrative action concerned was the “refusal to approve the 1st respondent’s name.” So then, does the relevant statute, that is the NGO Coordination Act, provide for a dispute resolution mechanism for the administrative action concerned? The answer is in the negative. Unlike the Companies Act, the NGO Coordination Act does not anticipate that the reservation of names is an administrative action which will attract the dispute resolution mechanism provided for under section 19. In other words, there are no substantive provisions on approval of names under the NGO Coordination Act. In addition, from the provisions of regulation 8, it is obvious to us that there are no administrative mechanisms to which the 1st respondent ought to have exhausted, following the director’s decision under the said regulation.
47.
We therefore agree with the position taken by the two superior courts that neither the NGO Coordination Act nor the NGO Regulations provide for any internal dispute resolution mechanism for a party aggrieved by the decision made by the director when exercising its mandate under regulation 8. We also find it necessary to emphasize that an Act of parliament must clearly provide for an internal dispute resolution mechanism before an aggrieved party can be bound by such a mechanism.
48.
The above finding, notwithstanding, we note that the petition before the trial court concerned interpretation and application of the Constitution, a jurisdiction bestowed upon that court. The “minister” therefore, did not have the jurisdiction to entertain issues such as the constitutionality of the decision taken by the director and the NGO Coordination Board. Therefore, it is our finding that the suit before the High Court was proper. In conclusion, we affirm the decision of the Court of Appeal that there was no internal dispute resolution mechanism under NGO Coordination Act and the NGO Coordination Regulations, 1992 to challenge the impugned decision.
(ii) Whether the decision of the executive directive of the NGO Coordination Board violated article 36 of the Constitution.
49.
The core issue for determination between the parties herein is whether the decision of the executive director of the NGO Coordination Board violated article 36 of the Constitution. In this regard, the appellant argued that in refusing to reserve the names for the proposed NGO, it had formed the opinion that the names and the objects offended public policy as their registration would stand in conflict with sections 162, 163 and 165 of the Penal Code which provisions outlaw homosexual liaisons. Furthermore, the appellant faulted the two superior courts for failing to appreciate the proper context under which the appellant’s reason for rejecting the names proposed by the 1st respondent fell. It was argued that the superior courts disregarded majority interests, the moral principle that is enshrined in the Constitution.
50.
In opposition, the 1st respondent argued that article 36 of the Constitution expressly provides for the registration of an association of any kind, and that the only group limitations on the freedom of association envisioned by the Constitution are restricted to persons serving in the Kenya Defence Forces or the National Police Service in accordance with article 24 (5) (b) of the Constitution. It was also submitted that if the drafters of the Constitution intended to restrict the freedom of association of LGBTIQ persons or any other group of persons, they would have expressly included that group in article 24(5) of the Constitution.
51.
Article 36 of the Constitution states that:
“
1.
Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
2.
A person shall not be compelled to join an association of any kind.
3.
Any legislation that requires registration of an association of any kind shall provide that—
a.
registration may not be withheld or withdrawn unreasonably.
b.
there shall be a right to have a fair hearing before a registration is cancelled”
52.
This court notes that the right to freedom of association is also recognized in international and regional human rights instruments which Kenya has ratified. The right to freedom of association is provided for under article 22 (1) of the International Covenant on Civil and Political Rights (ICCPR). It states:
“
Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests"
53.
Similarly, article 1(1) of the African Charter on Human and Peoples Rights provides inter alia:
“
Every individual shall have the right to free association provides he abides by the law"
54.
Furthermore, article 260 of the Constitution defines a “person” to include a company, association, or other body of persons whether incorporated or unincorporated. The question we have asked ourselves is whether in the instant case, the person(s) referred to in the above provisions also include LGBTQ? Our literal reading of article 36 of the Constitution is that the LGBTQ group is not excluded from the definition under article 36. Sub-article (3) requires that any legislation that requires registration of an association of any kind shall provide that registration may not be withheld or withdrawn unreasonably. The right to form an association is an inherent part of the right to freedom of association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status.
55.
The right to freedom of association cannot be limited unless as provided for under the Constitution. In that regard, article 24 (1) provides as follows:
“
A right or fundamental freedom in the bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--
a.
the nature of the right or fundamental freedom;
b.
the importance of the purpose of the limitation;
c.
the nature and extent of the limitation;
d.
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
e.
the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose".
56.
The parameters of legislative limitation with regard to the right to associate has engaged the minds of judges in other jurisdictions, in both international and domestic courts. In the case of Sidiropoulos and Others v Greece (57/1997/841/1047), the European Court of Human Rights held that:
“
The court points out that the right to form an association is an inherent part of the right set forth in article 11, even if that article only makes express reference to the right to form trade unions. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly, states have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the convention and subject to review by the convention institutions".
57.
Furthermore, the Supreme Court of Canada in the case In R v Oakes [1986] 1 SCR 103 developed principles for consideration when determining whether a limitation of a right is justifiable, namely; a) there has to be a pressing and substantial objective for the law or government’s action; b) the means chosen to achieve the objective must be proportional to the burden on the rights of the claimant; c) the objective must be rationally connected to the limit on the charter right; d) the limitation must minimally impair the charter right; and d) there should be an overall balance or proportionality between the benefits of the limit and its deleterious effects.
58.
According to the Siracusa principles on the limitation and derogation provision in the International Covenant on Civil and Political Rights, clause 3 and 4 in the general interpretative principles relating to the justification of limitations section, provides that “all limitations shall be interpreted strictly and in favour of the right at issue and in the light and context concerned.” The burden of justifying a limitation upon a right guaranteed under ICCPR lies with the state.
59.
In S v Makwanyane and another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1, Chaskalson, observed in his lead opinion at paras 103 & 104:
“
The criteria prescribed by section 33(1) for any limitation of the rights contained in section 11(2) are that the limitation must be justifiable in an open and democratic society based on the freedom of equality, it must be both reasonable and necessary and it must not negate the essential content of the right… The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. The fact that different rights have different implications for democracy, and in the case of our Constitution, for 'an open and democratic society based on freedom and equality', means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question."
60.
In the present case, the appellant submitted that it declined to approve any of the names as proposed by the 1st respondent on the ground that sections 162, 163 and 165 of the Penal Code criminalize gay and lesbian liaisons as the same goes against the order of nature. So, is the right to freedom of association absolute under article 25? Can it be limited? Did the impugned legislation, the Penal Code, provide for the limitation of the right to freedom of association of LGBTQ? Was the limitation of the 1st respondent’s right necessary in a democratic society? Was the limitation proportionate to the aim sought? Moreover, there was no evidence placed before the 1st appellant to demonstrate that persons who profess to be LGBTQ are criminals or that it is only they who are capable of committing the offence of “unnatural acts”. This was a mere assumption which was not born out of evidence when indeed it is confirmed by empirical data that even heterosexuals commit such offences more often than not most callously.
61.
This court takes cognizance that not all rights are absolute, and that some rights are subject to limitation. In that context, article 36 (3) of the Constitution contemplates that the right to freedom of association is subject to limitation. However, any limitation on any fundamental rights and freedom is subject to article 24 of the Constitution.
62.
Sections 162, 163 and 165 of the Penal Code upon which the director’s decision was premised on provides as follows:
“
(162)
Any person who—
a.
has carnal knowledge of any person against the order of nature; or
b.
has carnal knowledge of an animal; or
c.
permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years:
Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if—
i.
the offence was committed without the consent of the person who was carnally known; or
ii.
the offence was committed with that person’s consent, but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act
(163)
Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.
(165)
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/17/eng@2023-02-24 |
Application 22 of 2016 | Attorney General v Halal Meat Products Limited (Application 22 of 2016) [2023] KESC 9 (KLR) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 17 February 2023 | 2,023 | Nairobi | Civil | Attorney General v Halal Meat Products Limited | [2023] KESC 9 (KLR) | null | Brief facts
The applicant filed the instant application seeking review of the decision of the Deputy Registrar delivered on September 7, 2016 declining to admit the applicant’s record of appeal and that should such review be granted, the court should permit the applicant to file its record of appeal within a specified time. The applicant claimed that the Deputy Registrar lacked the power to reject a record of appeal, as his powers were only limited to rejecting pleadings and that the Deputy Registrar erred in declining to allow the record of appeal by claiming that the applicant was not entitled to file its appeal as of right but should have instead sought certification before the Court of Appeal.
The respondent averred that the intended appeal did not involve a matter of constitutional interpretation or application and that the applicant’s application was unmeritorious as it sought to undermine the principle of finality in legal proceedings. The respondent further averred that the Deputy Registrar was vested with power under rule 4A(2) of the Supreme Court (Amendment) Rules 2016 to reject pleadings and therefore acted judicially. | 5.
In the above context, I now opine as follows:
i.
Rule 4A(1)(b) of the Supreme Court (Amendment) Rules, 2016 (repealed), which is also provided for under rule 6(1)(b) of the Supreme Court Rules, 2020 provides that:
“
The role of the Registrar shall be to−
a.
…
b.
decline to admit pleadings that are not in accordance with the Constitution, the Act, the relevant rule or the court’s practice directions for filings”
ii.
Rule 4A(2) of the Supreme Court (Amendment) Rules, 2016 (repealed) which is also found under rule 6(2) of the Supreme Court Rules 2020 then reads:
“
Any party aggrieved by a decision of the Registrar made under this rule may apply to a single judge of the court for a review of the decision.”
iii.
I note, in that regard, that the Deputy Registrar had the opportunity to review and consider the record of appeal that the applicant intended to be admitted and proceeded to issue reasons that were explanatory as to why the intended appeal could not be admitted. Furthermore, the Deputy Registrar then proceeded to restate the applicable law in declining to admit the applicant’s record of appeal.
iv.
It is my view that, by restating the relevant rules and by giving reasons as to why the applicant’s pleadings were declined, the Deputy Registrar was cogent and I reiterate that this was explanatory enough and he did not run afoul of any law. He also correctly exercised his jurisdiction and I see no reason to fault his decision. I therefore decline to grant the orders sought.
6.
Accordingly, I make the following orders:
a.
The notice of motion dated November 16, 2016 is hereby dismissed.
b.
There shall be no order as to costs.
7.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/9/eng@2023-02-17 |
Petition 15 of 2020 | Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020) [2023] KESC 14 (KLR) (17 February 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 17 February 2023 | 2,023 | Nairobi | Civil | Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others | [2023] KESC 14 (KLR) | null | A. Introduction
1.
The petition of appeal herein is dated August 20, 2020 and was lodged on August 21, 2020. The appellant, Bia Tosha Distributors Limited, seeks to set aside the judgment of the Court of Appeal in Civil Appeal No 163 of 2016 delivered on July 10, 2020 which allowed the appeal against the High Court’s (Onguto, J) ruling in Constitutional Petition No 249 of 2016 delivered on June 29, 2016.
B. Background
2.
In the year 1997, the appellant was appointed as a distributor for the 1st respondent’s products within Gachie, Mwimuto, Kanunga, Kiambaa, Banana, Karura, Gathanga, Ndenderu, Ndumberi, Tinganga, Riabai, Kanguya, Wangige, and Ridgeways. Subsequently, in the year 2000, vide a letter dated July 20, 2000 the appellant was offered new distribution areas namely: Baba Dogo, Kariobangi North, Dandora I, and Dandora II on the condition that the appellant would pay a non-refundable goodwill of Kshs 6,630,000/- to the 1st respondent.
3.
In the year 2005, the appellant was offered a larger distribution area comprising of Namanga, Bissil, Kajiado, Kitengela, Athi River, Industrial Area, South B, Nairobi West, Kenyatta, Langata, Rongai, Kiserian, Magadi, Upperhill, Ngong Road, Hurlingham, Kawangware, Satelitte, Dagoretti, UDV A, UDV B, and UDV C. For these territories the appellant was asked to pay goodwill amounting to Kshs 31,668,000/- out of which it paid Kshs 27,300,000/-.
4.
Sometime thereafter, the 1st respondent re-possessed Baba Dogo, Dandora I and II, and Kariobangi North, from the appellant to enable the appellant to serve the new areas whereupon the appellant requested to be refunded the goodwill for the territories that were repossessed. This, the 1st respondent declined, indicating that the amounts were non-refundable, and further claimed that it was within their discretion to appoint other distributors as the agreement was non-exclusive. Furthermore, based on world practices, the 1st, 2nd, 4th and 5th respondents’ implementation of goodwill payments were terminated as being irrational, illegal and improper scheme to lock out competing international beverage manufacturers. The 4th respondent owns majority shareholding in the 3rd respondent who wholly owns the 1st and 2nd respondent.
5.
The appellant paid goodwill for the routes it operated along and this amount was appropriated directly to the 1st respondent. The refusal by the 1st respondent to refund the goodwill paid by the appellant, coupled with the former’s repossession of most distribution areas initially allocated to the appellant and which were then reallocated to other distributors, triggered this dispute. | H. Orders
134.
Consequently, upon our conclusion, we order that:
i.
The appeal dated August 20, 2020 be and is hereby allowed;
ii.
The judgment and orders of the Court of Appeal in Civil Appeal No 163 of 2016 delivered on the July 10, 2020 be and are hereby set aside in entirety;
iii.
The High Court orders of June 29, 2016 be and are hereby reinstated and the court do consider the consequences of any disobedience of those orders;
iv
The matter be and is hereby remitted to the High Court for disposal of the amended petition dated June 20, 2016 pending before the High Court on priority basis; considering the age of this matter;
v
Costs in the Court of Appeal and in this court are awarded to the appellant as against the 1st and 2nd respondents.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/14/eng@2023-02-17 |
Petition 17 (E024) of 2021 | Kenya Electricity Transmission Co Limited (KETRACO) v Instalanciones Inabensa SA (Petition 17 (E024) of 2021) [2023] KESC 10 (KLR) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 17 February 2023 | 2,023 | Nairobi | Civil | Kenya Electricity Transmission Co Limited (KETRACO) v Instalanciones Inabensa SA | [2023] KESC 10 (KLR) | null | Brief facts
In the instant appeal, the Supreme Court had already issued a ruling and declared itself of not having jurisdiction to deal with the instant matter. The only thing to be determined was matter of costs.
Following the ruling that the court lacked jurisdiction, and six days before the hearing to determine who was to bear the costs, the parties sought leave to enter a consent to withdraw the suit. Subsequently the appellant contended that since the respondent had already been awarded costs in the ruling absolving the court of jurisdiction, that they bore no further burden of costs. The respondent contended that the appellant's claim that it should not be granted costs since it was awarded expenses in the ruling on jurisdiction was unfounded because the two proceedings were separate and the respondent was entitled to costs for both. The respondent further contended that an application's expenses could not be the same as or equal to the costs of a challenge to an appeal. | 12.
Consequently, we make the following orders:
a.
The notice of motion dated January 24, 2022 and filed on January 25, 2023 seeking to withdraw the petition of appeal dated November 26, 2021 be and is hereby allowed in the following terms:
i.
The consent dated January 27, 2023 and filed in court on January 30, 2023 granting the appellant leave to withdraw the petition of appeal dated November 26, 2021, be and is hereby adopted as an order of the court.
ii.
The appellant shall bear the costs of the appeal.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/10/eng@2023-02-17 |
Petition (Application) 27 (E031) of 2022 | Mwambora & 9 others v Spire Properties (K) Limited & 50 others (Petition (Application) 27 (E031) of 2022) [2023] KESC 12 (KLR) (Civ) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 17 February 2023 | 2,023 | Nairobi | Civil | Mwambora & 9 others v Spire Properties (K) Limited & 50 others | [2023] KESC 12 (KLR) | null | Brief facts
The instant application sought among others the extension of time for lodging an appeal against the judgment and orders of the Court of Appeal delivered on July 29, 2022 in Mombasa Court of Appeal Civil Appeal No 135 of 2018 as consolidated with Civil Appeal No 139 of 2018 and that the petition of appeal and record of appeal, both dated September 13, 2022, filed as Supreme Court Petition No E031 of 2022, subsequent to the notice of appeal dated August 15, 2022 be deemed to have been filed in time.
The applicant averred that the delay in filing the notice of appeal was occasioned by the applicants’ counsel’s involvement in offering legal services with regard to election preparedness, election management, and election results transmission; that the counsel’s mistaken computation of time arose from the erroneous view that July had thirty (30) days as opposed to thirty-one (31) days; and that the apparent mistake only occurred to counsel once it was pointed out to him in the replying affidavit of the 1st respondent. The applicant submitted that the delay in filing the notice of appeal was due to the applicants’ counsel’s mistaken belief that the deadline for filing the notice of appeal was August 15, 2022 instead of August 12, 2022. | Accordingly, we order as follows:
a.
The notice of motion dated October 17, 2022 is hereby dismissed.
b.
The petition of appeal dated September 13, 2022 is hereby struck out.
c.
The applicants shall bear the costs of this application.
9.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/12/eng@2023-02-17 |
Petition 2 (E002) of 2021 | Okoiti & 2 others v Attorney General & 14 others (Petition 2 (E002) of 2021) [2023] KESC 13 (KLR) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu | 17 February 2023 | 2,023 | Nairobi | Civil | Okoiti & 2 others v Attorney General & 14 others | [2023] KESC 13 (KLR) | null | Brief facts
The applicant filed the instant application seeking the review and vacation of the Registrar’s decision of January 22, 2021 declining to lodge and admit for filing the petition and records of appeal for failure to submit the notice of appeal and the judgment of the Court of Appeal. The applicant contended that it filed and served the notice of appeal within four days of the Court of Appeal decision. The appellant further submitted that they filed the appeal on January 20, 2021, within the 30 days of filing the notice of appeal by which time it had not received the certified judgment and signed notice of appeal from the Court of Appeal which fully operated virtually.
The petition of appeal and record of appeal were lodged in court on January 27, 2022 by the Deputy Registrar without any formal review of the Registrar’s ruling paving way for compliance before the Registrar. It was only upon the matter being escalated to the court to consider the issue of representation that the issue of the Registrar’s ruling was brought to the attention of parties prompting the instant application seeking to review the Registrar’s decision.
The applicant stated that having omitted some documents, it filed a supplementary record of appeal containing the judgment and notice of appeal and that the fifteen (15) day window envisaged under the rule 40(4) of the Supreme Court Rules, 2020 was curtailed by the Registrar’s decision. The applicant argued that the Registrar’s decision was unfair and against the rules of natural justice, the applicant not having been allowed any opportunity to explain the circumstances of the filing. | 10.
Having carefully considered the record, arguments and submissions by all the parties, I now opine as follows:
a)
Rule 6(1)(b) of the Supreme Court Rules allows the Registrar to decline pleadings that are not in accordance with the Constitution, the Act, the rules, or the court’s practice directions for filings. The Registrar’s impugned ruling made under this provision was on account of failure to include the judgment and the absence of a notice of appeal. However, the Deputy Registrar, in admitting the lodging of the petition and record of appeal referred to in the impugned ruling, impliedly reviewed the said ruling, albeit un- procedurally in the absence of a formal review application.
b)
It is acknowledged that the applicant, in line with rule 36(1) of this Court’s Rules, filed at the Court of Appeal a notice of appeal on December 22, 2022 and served it on the parties. This was four days after delivery of the Court of Appeal judgment within the 14-day period. Notwithstanding the assertion that the Court of Appeal operates 100% virtually, resulting in notices of appeal being filed electronically, signed and returned to the parties, the signed Notice of Appeal by the Registrar of the Court of Appeal was never transmitted to the Registrar of this court within the said timelines as stipulated under rule 36(3) or at all.
c)
The applicant did not serve upon the respondents the transmitted copies of the notice of appeal in compliance with rule 37(1) of the Court’s Rules but served an un-transmitted copy thereof.
d)
The thirty days’ timeline for institution of appeal run from the date of filing of the notice of appeal and for purposes of this court, transmission of the same to the court. As held in University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020]eKLR:
“
(36)
Rule 36 of the Supreme Court Rules 2020 provides for the filing of a notice of appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal is founded. The filing of a notice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a notice of appeal signifies the intention to appeal.” (Emphasis mine)
I reiterate that the notice of appeal is a jurisdictional pre-requisite without which the court cannot infer the intention to appeal for purposes of this Court’s Rules.
e)
While the Court of Appeal judgment could be contained in the record of appeal under rule 40(c) or a supplementary record under rule 40(4), the same cannot be said of the notice of appeal which has to be transmitted to the court before service upon the parties.
f)
The notice of appeal in this matter, having been availed to the court at the first instance by being mentioned as a schedule in the petition of appeal and as part of the supplementary record filed before this court on January 27, 2021, the same was already way out of the fourteen (14) day period of delivery of the judgment, despite having been filed on time.
g)
Though the applicant has exercised it’s right to seek a review of the decision by the Registrar as provided under rule 6(2) of the Supreme Court Rules, the request has neither been accompanied by an application for extension of time nor an explanation for the lack of compliance offered as the mundane step in the first place, the issue being brought to the attention of the parties by the court. I am not satisfied as to the merit of the application and decline to exercise discretion to review the Registrar’s decision.
h)
On the issue of costs, I stand guided by the decision of this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others; SC Petition No. 4 of 2012 [2014] eKLR where this court observed that the basic rule on attribution of costs is: costs follow the event. On this account, the applicant shall bear the costs of the respondents who opposed, to wit, the 1st 2nd and 3rd respondents on the one hand and the 13th, 14th and 15th respondents on the other hand.
11.
Consequently, I make the following orders:
(i)
The notice of motion dated July 23, 2022 be and is hereby dismissed.
(ii)
The applicant shall bear the costs of this application for the 1st 2nd and 3rd respondents on one hand and the 13th 14th and 15th respondents on the other hand.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/13/eng@2023-02-17 |
Petition 19 (E027) of 2021 | Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021) [2023] KESC 7 (KLR) (Civ) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, W Ouko | 17 February 2023 | 2,023 | Nairobi | Civil | Senate & 3 others v Speaker of the National Assembly & 10 others | [2023] KESC 7 (KLR) | null | Brief facts
The 1st, 2nd and 4th respondents sought leave of the court to enlarge time for filing of a notice of cross-appeal; they also sought prayers that their notice of cross-appeal annexed to the application be deemed as duly filed, served and properly on record; and that upon grant of the foregoing prayers, the 1st and 2nd respondents be permitted to rely in support of their cross-appeal, on the record of appeal lodged by the appellants.
The appellants and the 3rd respondent were opposed to the application on the grounds that the right to appeal was not absolute; that under the Supreme Court Rules, 2020 a party was permitted to file a cross appeal either 30 days after the main appeal has been served on that party or 30 days before the hearing of the appeal.
Issues
Whether the public interest nature of a dispute could warrant the Supreme Court to exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the court’s stamp of approval to deem the documents to be regularly on record. | We Now therefore Opine as Follows:
7.
Restating the principles governing applications for extension of time as enunciated by the court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others; SC Application No 16 of 2014; [2014] eKLR; that time is extended at the unfettered discretion of the court based on the unique circumstances of each case; that the burden is upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there will be any prejudice suffered by the opposing parties if the extension is granted, among other considerations; and
8.
Upon applyingthese strictures to the rival submissions; on the one hand that the delay was inordinate and without any justifiable reasons, and on the other hand that the changes in the administration of the National Assembly was reason enough in explaining the delay; and
9.
Upon examiningrule 47(2)(b) of the Supreme Court Rules, 2020, on the lodgement of a memorandum of appeal and record of appeal, and being satisfied, in the given circumstances, that the delay involved does not qualify to be described as inordinate and the reasons given are plausible; and
10.
Further, the public interest nature of this dispute militates against shutting out or throwing out of the seat of justice any party in the resolution of this dispute, and being satisfied that no party will be prejudiced if the time is extended;
11.
In the circumstances, we are minded to consider granting the application, while reminding the 1st and 2nd respondent that, by rule 47(2)(b) aforesaid, they are required to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties’ pleadings as they have prayed.
We also reiterate the caution we issued in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra), that it is highly irregular and presumptive in this court to file documents out of time without leave and thereafter seek court’s stamp of approval to deem them to be regularly on record.
It is in the same spirit that we reject the submissions filed out of time and without prior leave by 1st and 2nd respondent on January 20, 2023 as well as those of the 4th respondent filed on January 26, 2023. They are, in our words in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra), “a nullity and of no legal consequence”. We follow the course we adopted in that case, and expunge those sets of submissions from the record.
12.
Reiterating the public interest nature of this dispute, we exercise our inherent powers under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the foregoing infractions by the 1st 2nd and 4th respondents. They are instead granted leave to exchange and file afresh their written submissions.
13.
Since the award of costs is discretionary as this court explained in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, no party, in the instant case, is at fault hence we make no orders as to costs.
14.
In the circumstances, we allow this application and make the following orders;
a.
The application dated January 30, 2023 and filed on the January 31, 2023 is hereby allowed.
b.
The 1st and 2nd respondents will file and serve the notice, memorandum and record of appeal in compliance with rule 47 of the Supreme Court Rules within thirty (30) days from the date hereof.
C.
The 1st, 2nd and 4th respondents will file and serve afresh their written submissions within fourteen (14) days from the date of this ruling.
d.
There shall be no orders as to costs.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/7/eng@2023-02-17 |
Application 10 (E016) of 2022 | Shollei v Judicial Service Commission & another (Application 10 (E016) of 2022) [2023] KESC 8 (KLR) (Civ) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 17 February 2023 | 2,023 | Nairobi | Civil | Shollei v Judicial Service Commission & another | [2023] KESC 8 (KLR) | null | Brief facts
The applicant sought for the Supreme Court to enlarge time for compliance with Supreme Court orders which the court had issued after having conclusively determined the instant matter. | Consequently, we find that this court does not have jurisdiction to extend the timeline granted to the 1st respondent to publish and publicize procedures for all its disciplinary and investigative processes through the Kenya Gazette.
On clarity of this court’s orders relating to instruments under section 47 of the Judicial Service Act;
13.
We find that the draft manual attached to the 1st respondent/applicant’s notice of motion application is the requisite legal instrument anticipated under section 47 of the Judicial Service Act which empowers the 1st respondent to make regulations for the better carrying out of its purpose, we can say no more than to state that the 1st respondent would be well advised to stand guided by the structure and format of the already published regulations provided for and gazetted in the third schedule of the Judicial Service Act and comply accordingly in form and content.
[14]
Consequently, we dismiss the 1st respondent’s application with no order as to costs.
[15]
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/8/eng@2023-02-17 |
Criminal Petition E032 of 2022 | Wafula v Director of Public Prosecution & 149 others (Criminal Petition E032 of 2022) [2023] KESC 16 (KLR) (Crim) (17 February 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | W Ouko | 17 February 2023 | 2,023 | Nairobi | Criminal | Wafula v Director of Public Prosecution & 149 others | [2023] KESC 16 (KLR) | null | Brief factsThe instant application was brought erroneously pursuant to the provisions of rule 4A(2), 31(2) and 38(4) of the Supreme Court Act, 2011 instead of section 11(1) of the Supreme Court Act and rules 6(2) of the Supreme Court Rules, 2020 in which the applicant, who was unrepresented by counsel sought, among other reliefs, an order of review and setting aside of the decision of the Deputy Registrar declining to lodge his pleadings. The applicant submitted that the Deputy Registrar denied him his right of appeal guaranteed by the Constitution of Kenya, 2010. The court further submitted that he had challenged the decision of the Court of Appeal to take out of the hearing list of February 1, 2022 Criminal Application No. E018 of 2021 and that that action was actuated by corruption within the Judiciary. | I, Now Opine as Follows:
3.
Appreciating that this application though brought under the wrong provisions of the law and rules, seeks reliefs under section 11(1) and rules 6(2) aforesaid, under which this court has jurisdiction to review the decision of the Deputy Registrar.
4.
Affirming the decision of this court in Okiya Omtatah Okoiti v Attorney General & another, SC Application No 1 of 2019; [2019] eKLR, that under rule 6 aforesaid, one of the roles of the Registrar is;
(b)
to decline pleadings that are not in accordance with the Constitution, the Act, these rules, or the court's practice directions for filings”. [my emphasis]
A party aggrieved by a decision of the Registrar may apply for a review to a single judge whose determination of the question is final.
5.
Therefore, having read the impugned ruling of the Deputy Registrar, to the effect that the petition has not been framed in the manner prescribed by the court’s rules and further that the decision of the Court of Appeal to take out the applicant’s appeal from the hearing list did not constitute a determination to warrant invocation of the court’s jurisdiction under article 163(4)(b) of the Constitution, I am satisfied that the Deputy Registrar properly and judiciously exercised his discretion in declining to lodge the applicant’s petition.
6.
Bearing in mind the principles enunciated in our decision in the case of Teachers Service Commission v Kenya National Union of Teachers & 3 others, SC Application No 16 of 2015; [2015] eKLR, that;
“
(35)
….Moreover, the appeal before the Court of Appeal is yet to be heard and determined.…. 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, and for which the priority date of September 22, 2015 has already been assigned. 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.…”
7.
Consequently, I agree with the findings of the Deputy Registrar that the petition of appeal is not framed in compliance with the Supreme Court Rules, 2020 and further that the Court of Appeal has not made any determination to require the intervention by this court.
8.
Accordingly, I decline to review the order of the Deputy Registrar dated November 4, 2022 and instead order that:
i.
The notice of motion dated November 16, 2022 and filed on November 21, 2022 is hereby dismissed.
ii.
As costs are awarded at the discretion of the court, parties shall bear their own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/16/eng@2023-02-17 |
Petition 19 (E022) of 2022 | Wanjigi v Chebukati & 2 others (Petition 19 (E022) of 2022) [2023] KESC 15 (KLR) (17 February 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 17 February 2023 | 2,023 | Nairobi | Civil | Wanjigi v Chebukati & 2 others | [2023] KESC 15 (KLR) | null | A. Introduction and Background
1.
This is a petition of appeal dated July 29, 2022 and filed on August 1, 2022 by the appellant, Jimi Richard Wanjigi, pursuant to article 163(4)(a) of the Constitution. The appeal challenges the entire judgment and orders of the Court of Appeal (Makhandia, M’Inoti & Omondi, JJA) in Civil Appeal No E404 of 2022 delivered extempore on July 12, 2022 and whose reasons were rendered on July 29, 2022.
2.
The appellant was the nominated Safina political party presidential candidate for the August 9, 2022 general elections. On June 6, 2022 he presented his nomination papers before the 1st respondent, the duly gazetted returning officer for the presidential election, for registration as candidate pursuant to regulation 16 of the Elections (General) Regulations. Among the documents he submitted were: a letter from Daystar University indicating that he was pursuing a degree of Bachelor of Arts in International Relations and Security Management and had completed his coursework; copies of his transcripts; a letter from the Commission for University Education confirming that Daystar University was accredited and its degree is recognized in Kenya; and lists of voters from 24 counties who had nominated him for his presidential bid.
3.
Upon examining the documents, the 1st respondent ruled that the appellant was unqualified to be nominated to contest in the presidential election and rejected his candidature based on the following reasons: lack of a university degree as required by section 22 (2) of the Elections Act; lack of nomination by at least 2,000 voters each from at least 24 Counties as required by section 23(1)(d) of the Elections Act; and lack of a nomination certificate by Safina Political Party for the appellant’s running mate. | E. Analysis and Determination
i. Whether this honourable court has jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution
41.
The respondents argue that the appeal does not raise any matter involving the interpretation or application of the Constitution as stated under article 163(4)(a) of the Constitution. They aver that the articles cited by the appellant were neither in issue nor decided by the superior courts and that the appellant has made mere allegations and does not present any grounds that can clothe this court with jurisdiction. It is their averment that the appeal does not qualify as an appeal as of right to invoke this court’s jurisdiction under article 163(4)(a) of the Constitution. Then again, the 3rd respondent asserts that the appellant also fails the criteria for certification as a matter of general public importance under article 163(4) (b) for the reason that this matter has not been certified as such.
42.
On the contrary, it is the appellant’s position that the present appeal is proper before this court as it involves questions of interpretation and application of the Constitution since it touches on the enforcement of his political rights enshrined under article 38 and actualized under articles 83(3), 137(1), 99(1)(b) and 148(1) of the Constitution. The appellant submits that the appeal challenges the application of articles 10, 25, 38, 47, 50, 83, 88, 99, 137, 148 and 249 of the Constitution as well as section 22(2) of the Elections Act.
43.
Jurisdiction is a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court is obligated to down its tools as it does not have the power to adjudicate upon the proceedings before it. A court’s jurisdiction normally emanates from either the Constitution or legislation or both. This court stated so in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others SC Application No 2 of 2011 [2012] eKLR as follows:
“
(68)
A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law”
44.
The Supreme Court’s appellate jurisdiction is set out in article 163(4) of the Constitution of Kenya which states:
“
(4)
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 Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5)
A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
45.
This court has stipulated the confines of its jurisdiction under article 163(4)(a) of the Constitution in a plethora of its decisions. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, Sup Ct Petition No 3 of 2012; [2012] eKLR, a two-judge bench of this court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
“
(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).”
46.
Further, in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Sup Ct Petition No 10 of 2013 this court stated as follows:
“
(37)
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. …”
47.
In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others Sup Ct Petition 45 of 2018 [2020] eKLR we held that it is not enough to invoke constitutional provisions in order to sustain an appeal to this court. We stated:
“
(62)
We cannot over-emphasize the specialized nature of article 163(4)(a)’s appellate jurisdiction of this court. That jurisdiction is not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone is not enough for one to invoke and sustain an appeal before this court. A party has to steer his appeal in the direction of constitutional interpretation and application. He/she should directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues. Thus, the following attributes are imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:
i.
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
ii.
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfaction of the court and with precision those aspects/issues of his matter which in his opinion falls for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of Constitution interpretation and application.
iii.
A 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).
iv.
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).
v.
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
48.
In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Sup Ct App No 5 of 2014 [2014] eKLR we emphasized that at the very least where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, an appellant should demonstrate that the appellate court’s reasoning and 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.
49.
It is therefore evident that the issues that this court would exercise its jurisdiction over pursuant to article 163(4)(a) of the Constitution are only issues involving the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. A question identified as involving interpretation or application of the Constitution thus must be one that was argued in the court of first instance and canvassed through the hierarchy of courts, at the Court of Appeal and finally in this court. Mere allegation by a party that a question of constitutional interpretation or application is involved does not automatically bring the appeal within the ambit of article 163(4)(a) of the Constitution, unless the party can show that the matter by virtue of the court’s determination took a constitutional trajectory of interpretation and application.
50.
The appellant is aggrieved by the decision of the 1st respondent, as affirmed by the 3rd respondent, rejecting his application to be registered as a presidential candidate in the elections scheduled for August 9, 2022 on account of failure to meet the requisite qualifications. His judicial review application was subsequently dismissed by the High Court and his appeal disallowed by the Court of Appeal.
51.
Having perused the record before us, we note that at the High Court, the grounds set out in support of the Judicial Review Application were illegality, irrationality, unreasonableness, and bias. The appellant submitted that the 1st and 3rd respondents’ actions were contrary to section 22(2) of the Elections Act, and that he had legitimate expectation that the respondents would apply the law and the Constitution including binding precedent. The trial Judge dismissed the application holding that judicial review does not concern itself with the merits of the decision but only on the decision-making process. For that reason, the learned judge found he had no jurisdiction to hear the matter as he could not look into the correctness or otherwise of the 3rd respondent’s conclusion that the appellant had not satisfied the requirements to contest as a presidential candidate.
52.
At the Court of Appeal, the issues framed for determination by the court were whether the appellant’s application disclosed grounds for judicial review in the context of the nature of judicial review proceedings and whether, properly considered, the appellant’s complaints were meritorious enough to warrant interfering with the decision of the 1st and 3rd respondents in finding the appellant as unqualified to contest in the elections scheduled for August 9, 2022.
53.
In its determination, the Court of Appeal faulted the trial court for strictly constricting judicial review to the pre-2010 constitutional dispensation and for failing to see that the appellant’s application revealed in sufficient detail grounds for judicial review which necessitated a decision from the court. The appellate court identified and determined the issues based on the grounds raised by the appellant for judicial review, and proceeded to make a determination on whether the complaints were meritorious enough to warrant interference by the court, specifically whether the appellant was qualified for registration as a presidential candidate in the elections scheduled for August 9, 2022.
54.
Having identified that the genesis of the appeal is from a judicial review application at the High Court, we note that this court in Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others; SC Petition No 28 of 2014 [2015] eKLR stressed that by no means is this court an open forum for all cases from the appellate court on judicial review matters and that each appeal is to be considered on its merits on a case-to-case basis. We enunciated that only causes bearing a real constitutional issue can be heard by this court and a plain claim that a matter raises issues of interpretation or application of the Constitution does not suffice. We set out principles a party should comply with when appealing to the Supreme Court in a matter which has originated in the High Court by way of judicial review, as follows:
i.
Not all Judicial Review matters are appealable to the Supreme Court, as of right;
ii.
It is open to the party concerned to move the court on appeal under article 163(4)(b) of the Constitution, in which, the normal certification process applies;
iii.
Where such an appeal comes under article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
iv.
The party concerned should demonstrate that the superior courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
55.
Based on the foregoing, the appellant having moved this court under article 163(4)(a) of the Constitution, we have to interrogate whether this appeal meets the criteria set out under the Constitution and the decisions set out above. The first question to answer therefore is whether the appellant has identified particular issues of constitutional interpretation and application, and secondly whether the issues were canvassed at the superior courts which progressed through the normal appellate mechanism so as to reach this court by way of appeal as of right and or demonstrated that the superior courts misdirected themselves in relation to prescribed constitutional principles. All these have to be further looked at in the context that not all appeals from judicial review satisfy this court’s jurisdictional prerequisite.
56.
The appellant is adamant that his appeal is as of right under article 163(4)(a) of the Constitution as it involves the interpretation and application of the Constitution and specifically articles 10, 38, 47, 27, 83, 88 and 249 of the Constitution. He avers that the decision of the Committee was challenged at the High Court seeking its intervention pursuant to its supervisory powers under articles 1, 2, 3, 10, 25, 27, 38, 47, 48, 50, 81, 88, 136, 137, 138, 165, 258 and 259 of the Constitution. It is the appellant’s submission that the Court of Appeal in making its determination considered the provisions of articles 10, 38, 47, 50, 88, 137, 148 and 249 of the Constitution. He submits that application of article 10 was core in the determination of the dispute before the 3rd respondent. He adds that the appeal relates to the application of articles 10, 50, 88 and 249 of the Constitution as canvassed before the court.
57.
To him, the key determination of the dispute is the application of the right to contest for public office under article 38 including article 83(3) of the Constitution which provides for the facilitation rather that denial of an eligible citizen of the right to vote or stand for election. He faults the Court of Appeal for failing to consider the import and effect of section 22(2) of the Elections Act and regulation 47 of Elections (General) Regulations 2012 as amended in 2017 as well as binding precedent.
58.
As we noted in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law, and the Constitution should be interpreted broadly and liberally so as to capture the principles and values embodied in it.
59.
Evaluating the record, we discern that the appellant was partly successful with his argument on the extent of the jurisdiction of the court in relation to judicial review applications. This paved way for the appellate court to proceed to analyse the merits of the decision by the 1st and 3rd respondents, in exercise of its powers as the first appellate court to reprise the evidence. In addressing itself to the crux of the appellant’s contention relating to his qualification to contest as a candidate, the appellate court addressed itself to the import of the previous decisions in Janet Ndago Ekumbo Mbete v IEBC & 2 others (supra) rendered on March 15, 2013 based on section 22(2) of the Elections Act as read with regulation 47(1) of the Elections (General) Regulations as they stood in 2013. The court also took into account the decision in Mable Muruli v Wycliffe Ambetsa Oparanya & 3 Others [2013] eKLR and the amendment of regulation 47(1) by Legal Notice No 72 of 2017 and the more recent judgment rendered on June 30, 2022 in Walter Onchonga Mongare v. Wafula Chebukati & 2 (supra).
60.
In addition, on the mismatch of the appellant’s supporters and their identities, inconsistency between the electronically submitted copy and the hard copy and had illegible copies of identification documents, the Court of Appeal found that:
“
There is no dispute that article 137(1) of the Constitution and section 23 of the Elections Act expressly demand that to be qualified for nomination, a presidential candidate’s bid must be supported by not fewer than 2,000 voters in a majority each of the 47 counties. It is absolutely clear to us that read together, the concern of article 137(1), section 23 and regulation 23, is not a mere list of names of supporting voters. In addition to the list of names of supporting voters, the list must contain their signatures, identity card or passport numbers, in both hard and electronic copies. The lists are also required to be serially numbered and accompanied by copies of the identification documents of the supporting voters…
We are not persuaded that this argument has any merit. A reading of article 137(1), section 23 and regulation 18 leaves no doubt in our minds that the purpose of these provisions is to ensure that a presidential candidate is supported by the prescribed number of genuine and verifiable voters in the prescribed number of counties. The concern is not production of a mere numerical list of names, even if they are just ghost voters. The law seeks to avoid manufactured list of non-existent supporters and that is why it requires, in addition to names of the supporters, their signatures and copies of identification documents. …”
61.
On the issue of the appellant’s running mate’s nomination certificate, the appellate court held:
“
76.
Article 137(1)(c) is clear enough and does not require further elucidation. To qualify for nomination for election as President, and therefore as a running mate, the running mate must be nominated by a political party.
77.
The second noteworthy feature about article 148 is that of the four qualifications set out in article 137(1), it exempts from application to the running mate only the requirement in article 137(1)(d) for nomination by not fewer than 2000 voters from each of a majority of the counties. The express exclusion of article 137(1)(d) means that to qualify for nomination by the presidential candidate as a running mate, the running mate must satisfy the other three requirements in article 137(1), namely, be a citizen by birth, be qualified to stand for election as a member of Parliament and be nominated by a political party or be an independent candidate.”
62.
Lastly, on the issue of bias, the Court of Appeal’s finding was that the appellant’s allegations relating to articles 88 and 249 of the Constitution on the functions and independence of the 2nd respondent was no more than a bland assertion unsupported by material evidence.
63.
On our part, it is evident that the Court of Appeal addressed each of the appellant’s grievances. The main grievance, in our view, is the qualification of the appellant based on section 22(2) of the Elections Act and as read with regulation 47(1) of the Elections (General) Regulations. The court also made reference to article 137(1), section 23 and regulation 23, regulation 18 ad article 148. While the said provisions and grievances by the appellant are underpinned on article 38 and 83(3) of the Constitution, the gravamen of the dispute in our view had nothing to do with the interpretation or application of the Constitution but rather a factual exercise by the superior courts below to evaluate the appellant’s compliance. None of the provisions of statute are by themselves under challenge.
64.
Although the appellant cites several provisions of the Constitution, he has not set out, to any extent and to our satisfaction, the manner in which the superior courts interpreted and applied the Constitution one way or the other. It cannot thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to this court under article 163(4)(a) of the Constitution. The appellant seems to be inviting us to reprise the evidence and be persuaded as to make a conclusion that resonates with his. This is an invitation that we must decline.
65.
As we held in Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others, [2017] eKLR, and Petition No 4 of 2015 and Paul Mungai Kimani & 2 others v Kenya Airports Authority & 3 others [2021] eKLR, it is not granted that whenever the Court of Appeal mentions a provision of the Constitution in its decision, the matter under consideration automatically invokes this court’s appellate jurisdiction under article 163(4)(a) of the Constitution. In any event, the Constitution is the supreme law of the land and all decisions have to abide by and follow it. Hence, a mention of the Constitution by the court when making a determination will not always clothe the matter with constitutional issues.
66.
Echoing our position in Rutongot Farm Ltd v Kenya Forest Service & 3 others SC Petition 2 of 2016 [2018] eKLR, the appellant having not sustained a case that raises any constitutional issues, their interpretation or application, the court is not vested with the jurisdiction to hear and determine the present appeal pursuant to the provisions of article 163(4)(a) of the Constitution.
67.
Consequently, it serves no purpose to address ourselves to the remaining issues. Despite asking us to determine this matter for the sake of posterity, the appellant has not shown of the existence of any constitutional moment to be seized and the extent of such moment. The provisions of the Constitution not being in contention, qualifications and nomination of candidates will continue to be addressed as and when they arise based on peculiar circumstances obtaining.
68.
On the issue of costs, we are not persuaded to make any order for costs against any of the parties in this matter, the matter in issue is of the nature of public interest.
69.
We thank all counsel for their input, research and presentation in the course of this matter.
ii) Orders
69.
In the end, we make the following orders:
1.
The 1st and 2nd respondents’ preliminary objection dated August 2, 2022 is upheld.
2.
The petition of appeal dated July 29, 2022 and filed on August 1, 2022 is hereby struck out.
3.
Each party shall bear their own costs.
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/15/eng@2023-02-17 |
Petition 16 (E023) of 2021 | Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) (17 February 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 February 2023 | 2,023 | Nairobi | Civil | Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others | [2023] KESC 11 (KLR) | null | Brief facts
The appellant was dissatisfied with the order of the Court of Appeal that required it to deposit the sum of Kshs 20,000,000 in court as security for costs, failure to which the appeal at the Court of Appeal would stand struck out. Aggrieved, the appellant unsuccessfully sought leave from the Court of Appeal to appeal to the Supreme Court. Further aggrieved, the appellant filed the instant application challenging both the Court of Appeal's orders on security for costs and its refusal to grant certification for leave to appeal. The appellant sought the order for security for costs be declared to be in contravention of articles 48, 50 and 159 of the Constitution.
Issues
What were the guidelines to be considered by courts before issuing an order for security for costs?
Whether imposition of additional security for costs in itself, and as a condition to hearing a matter, was unconstitutional.
Whether the use of the word ‘fee’ in the wording of the right to access to justice extended to both filing fees and costs (inclusive of applications for additional security for costs). | E. Analysis and Determination
35.
The court defined one issue for determination pursuant to its ruling dated October 8, 2021 as follows:
“
Whether an order for security for costs is unreasonable as it impedes a litigant’s access to justice by imposing a condition precedent before the latter can be heard, contrary to articles 48, 50 and 159 of the Constitution.”
36.
Jurisdiction of the Court of Appeal to award security for costs and specifically in regard to the nominal amount is provided for in the law. The requirement for security for costs including additional security is not strange. Rule 107(3) of the Court of Appeal Rules, 2010 Court of Appeal Rules, 2010 states:
“
(3)
The court may at any time if it thinks fit, direct that further security for costs be given and may direct that security be given for the payment of past costs relating to the matters in question in the appeal.”
37.
This legislation gives the Court of Appeal authority to exercise its discretionary jurisdiction in determining whether to award further security for costs above the set nominal amount, which is set at Shs 2,000/-. This discretion ought not to be exercised whimsically but in a manner that would not impede a party’s access to justice. In Marco Tools & Explosives Ltd v Mamujee Brothers Ltd, [1988] KLR 730 it was stated that in exercising this discretion, it depends upon the circumstance of each case with the final result being reasonable and modest.
38.
Moreover, courts stand guided by established principles set out in two jurisprudential cases to which the appellate court directed its mind in this matter. In Sir Lindsay Parkinson and Company Limited v Triplan Ltd, [1973] 2 WRR, Lord Denning MR set out the parameters that should guide a court in determining whether to order security for costs as follows:
i.
Whether the claimant’s claim was bona fide and not a sham;
ii.
Whether the claimant had a reasonably good prospect of success;
iii.
Whether there was admission by the defendant on the pleadings or elsewhere that money was due;
iv.
Whether there was a substantial payment into court or an “open offer” of a substantial amount;
v.
Whether the application for security was being used oppressively, for example so as to stifle a genuine claim;
vi.
Whether the claimant’s want of means had been brought about by the conduct of the defendant’s, such as delay in payment or doing their part of the work;
vii.
Whether the application for security was made at a late stage in the proceedings.
Also, in Keary Development v Tarmac Construction (1995) 3 All ER 534, guidelines were laid down to guide a court while exercising discretion on whether to order a plaintiff, which is a limited liability company, to provide security for costs to a defendant in a suit as follows:
1.
The court has complete discretion whether to order security, and accordingly it will act in the light of all the relevant circumstances.
2.
The possibility or probability that the plaintiff company will be deterred from pursuing its claim by an order for security is not without a more sufficient reason for not ordering security. It is implicit that a company may have difficulty meeting an order.
3.
The court must balance the injustice to the plaintiff prevented from pursuing a proper claim against the injustice to the defendant if no security is ordered and at the trial the plaintiff’s claim fails and the defendant finds himself unable to recover his costs. The power must neither be used for oppression by stifling a claim particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff’s impecuniosity, nor as a weapon for the impecunious company to put pressure on a more prosperous company.
4.
The court will look to the prospects of success, but not go into the merits in detail.
5.
In setting the amount it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount.
6.
Before refusing security the court must be satisfied that, in all the circumstances, the claim would be stifled. This might be inferred without direct evidence, but the court should also allow that external resources might be available.
7.
The lateness of the application can properly be taken into account.
39.
On that account, there being no contention as to the court’s power to grant orders of security for costs as laid down in legislation, guided by the principles stated in the foregoing cases; also taking into account that this matter arises from a first appeal from the appellate court based on its discretionary pronouncements, falling outside the set of questions appealable to this court (see Daniel Kimani Njihia v Francis Mwangi Kimani & another; SC Civil Application No 13 of 2014; [2015] eKLR); what then warrants this court’s intervention on this matter of security for costs as a matter of general public importance?
40.
In answering this question based on what this court established as an issue for determination as a matter of general public importance, three issues arise: is imposition of additional security for costs in itself unconstitutional? What about imposing security for costs as a condition precedent to the hearing of the matter? And when does it become unreasonable and/or stifling to impose security for costs? We now proceed to address the said issues.
(a) Is it unconstitutional to impose an order for security for costs?
41.
In regard to interpretation of the Constitution, article 259(1) of the Constitution lays down the rule of interpretation 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 human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” In interpreting the Constitution and developing jurisprudence therefore, a court ought to take a purposive interpretation as guided by the Constitution. This was expressed by this court in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No 2 of 2012 [2012] eKLR as well as In the Matter of Interim Independent Electoral Commission, SC Const Application No 2 of 2011 [2011] eKLR.
42.
Courts being the entities empowered with the duty to adjudicate disputes and dispense justice, are required to be mindful of the spirit, values, and principles of the Constitution; and stand guided by the principles prescribed under article 159 of the Constitution while exercising their judicial authority. This ensures that justice is done to all irrespective of status and in a manner that protects and promotes the purpose and principles of the Constitution. The Constitution safeguards a person’s right to have any dispute resolved by the application of law decided in a fair and public hearing as provided under article 50 of the Constitution, thereby, ensuring a party’s access to justice is not violated.
43.
Article 48 states that “the State should ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice”. (emphasis ours) A person as defined under article 260 of the Constitution includes a company, association or other body of persons whether incorporated or unincorporated. A perusal of the CKRC Final Report shows that it was the intention of the drafters of the Constitution to have a properly functioning judicial system that is accessible to all persons to ensure and promote equality of all persons before the law. In their views, Kenyans stated that access to courts could be improved by reducing court fees or paying fees in instalments. The significance of the provision in article 48 is that “poverty is no bar to litigation” and therefore, courts should consider the issue of a litigant’s impecuniosity when ordering security for costs.
44.
While there is a distinction between filing fees and costs, the use of ‘and’ in the constitutional provision indicates that every citizen first and foremost is entitled to access to justice. However, if any fees are required to facilitate the access to justice, then the fee should be reasonable and not impede access to justice. Hence, we can construe the fees contemplated under the Constitution to encompass any monetary payment made as a condition to access justice. This, in our view, extends to both filing fees and costs inclusive of the application for additional security for costs which is payable in the course of proceedings in the wider context of access to justice.
45.
Security for costs is defined in the Black’s Law Dictionary Ninth Edition at page 1478 as money, property, or a bond given to a court by a plaintiff or an appellant to secure the payment of court costs if that party loses. The purpose of security for costs order is to alleviate the concerns of potential difficulties in seeking to recover costs. An applicant of such an order, is required to establish that the respondent, if unsuccessful in the proceedings will be unable to pay costs. The objective is to protect a party from circumstances where one is dragged to court and made to incur costs due to litigation. It is meant to prevent frivolous and vexatious litigation.
46.
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others: Civil Appeal(Application) 38 of 2013; [2014] eKLR, the Court of Appeal gave the rationale for security for costs which is to ensure firstly, that a party is not left without recompense for costs that might be awarded to him in the event that the unsuccessful party is unable to pay the same due to poverty; secondly, it ensures that a litigant who by reason of his financial ability is unable to pay costs of the litigation if he loses, is disabled from carrying on litigation indefinitely except on conditions that offer protection to the other party. Further, the court stated that in an application for security for costs, the applicant ought to establish that the respondent, if unsuccessful in the proceedings, would be unable to pay costs due to poverty. It is not enough to allege that a respondent will be unable to pay costs in the event that he is unsuccessful. In Kibiwott & 4 others v Registered Trustees of Monastery of Victory Nakuru, HCCC No 146 of 2004 the court there observed that for a party to succeed in an application for security for costs has to prove that the opposing party will not be able to pay the costs to be awarded in the event of the suit filed by such a party being dismissed.
47.
The rationale for security for costs therefore is aimed at balancing the overarching objectives in the administration of justice as expressed under articles 48, 50 and 159 of the Constitution, that courts should aim to dispense justice. As such, the costs protect the defendant or a respondent against the risk that a costs order made in its favour may be rendered ineffective by the plaintiff’s impecuniosity. An order for security for costs will normally affect the interest of plaintiff’s access to the court system, regardless of their financial status; shield a successful defendant from litigation costs; and conserve the courts processes: costs and security for costs may discourage frivolous claims, and encourage the parties to conduct litigation in a manner that is proportional to the matters at issue.
48.
On balancing the right to access to justice and the right to security for costs, article 24(1)(d) of the Constitution, provides: -
“
24 (1)
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-
a.
......
d.
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others ”
49.
Beyond articles 48 and 24, what is the law governing security for costs in Kenyan courts? Does the same impede access to justice?
50.
In our judicial system, the legal position on the subject of security for costs is inexplicit. In certain instances, the amount payable is provided for in legislation or Regulations, in other cases the same is left to the discretion of the concerned court.
An example is section 78(1) of the Elections Act which specifically provides that a person who presents a petition to challenge an election shall deposit security for costs of: one million shillings, in the case against a presidential candidate; five hundred thousand shillings, in the case of a petition against a Member of Parliament or a County Governor; or one hundred thousand shillings in the case of a petition against a member of county assembly. The Act also provides that “where a petitioner does not deposit security as required, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent's costs.”
51.
In civil proceedings before subordinate courts and the High Court, the Civil Procedure Act provides that costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge has full power to determine by whom, and out of what property and to what extent such costs are to be paid, and shall follow the event unless the court or judge shall for good reason otherwise order under section 27. However, order 26 of the Civil Procedure Rules 2010, provides that in any suit the court may order for the whole or any part of the costs any defendant or third party be given by any other party. In any suit brought by a person not residing in Kenya, if the claim is founded on a bill of exchange or other negotiable instrument or on a judgment or order of a foreign court, any order for security for costs shall be in the discretion of the court. If the security for costs is not given within the time ordered and if the plaintiff is not permitted to withdraw the suit, the court shall, upon application, dismiss the suit. If a suit is dismissed and the plaintiff proves that he was prevented by sufficient cause from giving the required security of costs, the court may set aside the order dismissing the suit and extend the time for giving the required security. Here we see the Rules giving an option to have a dismissed suit reinstated if the plaintiff shows cause that he was prevented from giving the required security for costs.
52.
At the Court of Appeal, under Order 42, rule 14, at any time after the memorandum of appeal has been served, in its discretion, the court may order the appellant to give security for the whole or any part of the costs of such appeal. If the appellant is not ordinarily resident in Kenya and has no sufficient property in Kenya (other than the property to which the appeal relates) the court shall order the giving of security for the whole or part of the costs of the appeal within a time to be limited in the order. If security for costs is not given within the time ordered the court may dismiss the appeal.
53.
Rule 107 of the Court of Appeal Rules provides that, subject to rule 115, there shall be lodged in court on the institution of a civil appeal as security for the costs of the appeal the sum of two thousand shillings. Where an appeal has been withdrawn under rule 96 after notice of cross-appeal has been given, the court may, on the application of any person who is a respondent to the cross-appeal, direct the cross-appellant to lodge in court as a security for costs the sum of two thousand shillings or any specified sum less than two thousand shillings, or may direct that the cross-appeal be heard without security for costs being lodged.
54.
Rule 115 provides that if in any appeal from a superior court, in its original or appellate jurisdiction in any civil case the court is satisfied on the application of an appellant that he lacks the means to pay the required fees or to deposit the security for costs and that the appeal is not without reasonable possibility of success, the court may by order direct that the appeal may be lodged without prior payment of fees of court, or any payment of any specified amount less than the required fees; without security of costs being lodged, or on lodging of any specified sum less than the amount specified by rule 107.
55.
The approach in other jurisdictions is different. In New South Wales, procedural regulations provide for security for costs and the factors a court has to consider before making such an order. In that regard, r 42.21 of the Uniform Procedure Rules 2005 makes provision on security for costs as follows:
1.
If, in any proceedings, it appears to the court on the application of a defendant-
a.
that a plaintiff is ordinarily resident outside Australia, or
b.
that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or
c.
that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or
d.
that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or
e.
that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or
f.
that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. (1A) In determining whether it is appropriate to make an order that a plaintiff referred to in sub-rule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant--
a.
the prospects of success or merits of the proceedings,
b.
the genuineness of the proceedings,
c.
the impecuniosity of the plaintiff,
d.
whether the plaintiff's impecuniosity is attributable to the defendant's conduct,
e.
whether the plaintiff is effectively in the position of a defendant,
f.
whether an order for security for costs would stifle the proceedings,
g.
whether the proceedings involves a matter of public importance,
h.
whether there has been an admission or payment in court,
i.
whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,
j.
the costs of the proceedings,
k.
whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,
l.
the timing of the application for security for costs,
m.
whether an order for costs made against the plaintiff would be enforceable within Australia,
n.
the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.
(1B)
If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.
2.
Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.
3.
If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed.
4.
This rule does not affect the provisions of any Act under which the court may require security for costs to be given.”
56.
We are also persuaded by the finding of the Family Court of Australia in Stapleton & Bryant (Security for Costs) [2009] FamCAFC 63; (28 April 2009) where the court found that in considering whether or not to make an order for security for costs, matters which maybe relevant include the following: the means of an applicant to satisfy an order for costs if he or she is unsuccessful (ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should not be a bar to justice; however, the financial weakness maybe relevant, for example, if the applicant is a company); the prospects of success is a relevant matter to take into consideration(ordinarily, the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure); whether the applicant's claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham; whether or not an order for costs would be oppressive or stifle the litigation; whether or not the litigation may involve a matter of public importance; whether or not there has been delay in bringing the application; and any difficulties of enforcing an order for costs and the amount of costs to be incurred.
57.
In Canada, rule 56 of the Civil Procedure Chapters, the court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that, the plaintiff or applicant is ordinarily resident outside Ontario; the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere; the defendant or respondent has an order against the plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay costs of the defendant or respondent; or a statute entitles the defendant to security for costs.
58.
In Ontario Inc v Ross, 2017 ONSC 1295, (SCJ), Justice Henderson stated that when making an order for security for costs, the initial onus is on the defendant to satisfy the court that it appears there is good reason to believe that the matter comes within one of the circumstances enumerated in rule 56.01…;
once the first part of the test is satisfied, the onus is on the plaintiff to establish that an order for security for costs would be unjust…; the plaintiff can meet the onus by demonstrating that: (a) the plaintiff has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any order of costs made in the litigation; (b) the plaintiff is impecunious and the plaintiff’s claim is not plainly devoid of merit… or (c) if the plaintiff cannot establish that it is impecunious, but the plaintiff does not have sufficient assets to meet a costs order, the plaintiff must satisfy the court that the plaintiff’s claim has a good chance of success on the merits.
59.
In Cigar500.com inc v Ashton Distributors (2009), 2009 CanLII 46451 (ON SC), 99 OR (3d) 55, (SCJ), the court observed that when making an order for security for costs, the court should be guided by two principles namely, everyone should be able to have their day in court; and defendants need reasonable protection from claims that have no merit.
60.
Furthermore, r 56 of the Canadian Civil Procedure Chapter, makes provision for the amount and form of security for costs in that a court has discretion in determining the amount of security, form of security, and timing for having any funds paid into court. Typically, security for costs orders are made as “pay-as-you- go” orders, providing that a certain amount is to be paid up until a given stage of the proceedings. In Websports Technologies v. Cryptologic Inc, [2005] OJ No 1320 (SCJ, Ont master) it was observed as follows:
“
For at least the last 20 years, the court has responded to motions for security for costs with "pay as you go" orders…Thus, if the motion is brought at an early stage in the proceedings, the quantum of costs to be posted generally does not include all costs incurred and to be incurred up to completion of trial. Instead, the quantum awarded usually covers the cost of what has been done to-date and the anticipated cost of the next step or the next few steps in the litigation process. As a result, if, after the completion of that event, the parties are unable to agree, they can return to court, via motion, in order to revisit the issue of quantum. If the plaintiff's financial position has not improved since the initial motion, the quantum of security to be posted is usually increased to take the parties through the next event or series of events. It is also open to the plaintiff, at the return of the motion, to demonstrate that they are now financially stable, such that no further security is required and that which has been posted may be ordered released. As a result, it is well understood that orders for security for costs are not, and cannot, be final. Circumstances change and it is therefore appropriate to revisit the issue of whether security is merited, and, if so, in what amount, from time to time (see rule 56.07).”
61.
In Spot Coffee Park Place Inc v Concord Adex Investments Ltd, 2021 ONSC 978 (SCJ Ont master) the court set principles and factors to apply to a motion for increased security for costs under rule 56.07 as follows:
i.
a second motion for security for costs will not succeed unless there is an unforeseen and material change in circumstances since the first order for security. An example of an unforeseen and material change in circumstances might be where a plaintiff has come into a sum of money sufficiently large that they could no longer make an impecuniosity argument;
ii.
the defendant seeking increased security bears the onus of demonstrating a significant gap between the security ordered and the actual expenses which were not foreseeable and that in hindsight the original request for security for costs was based on an assessment of the complexity of the case which hindsight has established was not realistic;
iii.
the jurisdiction to increase or decrease the amount of security already ordered should not be exercised lightly or be used to second guess the court that made the original order, whether on consent or otherwise, unless the gap between what was ordered and what later appears to be necessary is significant…”.
62.
Having considered the various legal provisions in Kenya and noting the jurisprudence elsewhere, this is what we make of it: the imposition of security for costs by a court is in itself constitutional; there are no clear guiding principles on what a court considers when making an order for security for costs; at times the amount payable is left to the discretion of the court; in other times, the amount payable is set out in statute or regulations; in other times, although the amount payable is prescribed by legislation or regulation, the court has the discretion of reducing or enhancing the same or even waiving payment of the same; a suit maybe dismissed for non-payment of security for costs; and a dismissed suit may be reinstated upon the appellant or plaintiff showing cause for the non-payment of ordered costs. We are also cognizant of the fact that different courts in our judicial system have crafted their own rules of procedure to govern them including those of security for costs. However, there are no standard guidelines on factors to be considered whilst making an order for security for costs.
63.
In the result, and conscious of this court’s core mandate under section 3 of the Supreme Court Act as the court with final judicial authority, we deem it fit to set guiding principles which will assist courts below when considering an application by a defendant or respondent for security for costs. Thus, in determining whether it is appropriate to make an order that a party gives security for costs, the court may have regard to the following matters and such other matters as it considers relevant in the peculiar circumstances of each case: –
i.
the prospects of success or merits of the proceedings,
ii.
the genuineness of the proceedings,
iii.
the impecuniosity of the plaintiff,
iv.
whether the plaintiff's impecuniosity is attributable to the defendant's conduct,
v.
whether the plaintiff is effectively in the position of a defendant,
vi.
whether an order for security for costs would stifle the proceedings and/or impede access to justice,
vii.
whether the proceedings involve a matter of public importance,
viii.
whether there has been an admission or payment in court,
ix.
whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,
x.
the costs of the proceedings,
xi.
whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,
xii.
the timing of the application for security for costs,
xiii.
whether an order for costs made against the plaintiff would be enforceable within the republic of Kenya,
xiv.
the ease and convenience or otherwise of enforcing a Kenyan court judgment or order in the country of a non-resident plaintiff or appellant.
xv.
if the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.
xvi.
security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.
xvii.
if the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed.
xviii.
the provisions of any Act under which the court may require security for costs to be given such as the Elections Act.
xix.
a second motion for security for costs will not succeed unless there is an unforeseen and material change in circumstances since the first order for security. An example of an unforeseen and material change in circumstances might be where a plaintiff has come into a sum of money sufficiently large that they could no longer make an impecuniosity argument.
xx.
the defendant seeking increased security bears the onus of demonstrating a significant gap between the security ordered and the actual expenses which were not foreseeable and that in hindsight the original request for security for costs was based on an assessment of the complexity of the case which hindsight has established was not realistic.
xxi.
the jurisdiction to increase or decrease the amount of security already ordered should not be exercised lightly or be used to second guess the court that made the original order, whether on consent or otherwise, unless the gap between what was ordered and what later appears to be necessary is significant.
64.
We agree with the jurisprudence from other jurisdictions that a court ought to take into consideration several factors before making an order for security for costs.
b. The constitutionality of imposing a condition precedent
65.
The Court of Appeal in granting the order for additional security for costs of Kshs.20,000,000 added a condition precedent in its impugned ruling. It directed as follows:
“
Accordingly, we order the said sum be deposited in court as security for costs in this appeal within 45 days of this ruling, failing which the appeal will stand struck out with costs to CBK.”
This in essence affirmed what the respondent had sought in the application before the appellate court. Is it constitutional to impose a condition precedent to an order for security for costs?
66.
Rule 107 of the Appellate Jurisdiction Act which was relied upon does not expressly provide for any condition to be imposed when the court makes an order for security for costs. We have had occasion to peruse the Appellate Jurisdiction Act, chapter 9 of the Laws of Kenya and note that the same does not expressly make provision for the limitation of the right to access justice on the basis of security for costs. The same is, however, as demonstrated elsewhere in this judgment extensively provided for in the Rules guiding the court. We reiterate our finding in the case of Gladys Shollei v Judicial Service Commission & another, SC Petition 34 of 2014; [2022] eKLR, that a right or fundamental freedom cannot be limited through regulations, in this case rules.
67.
This is in contradistinction with, for instance, rule 7 of the Supreme Court (Presidential Election Petition) Rules 2017 which stipulates that before filing a petition a petitioner shall deposit a sum of one million as security for costs. This is a prerequisite before filing a presidential election petition arising from an election as mandated under article 163(3)(a) of the Constitution over which this court has original and exclusive jurisdiction. However, it is important to point out that in these circumstances, the statute expressly fixes an amount payable as security, as it does for matters challenging elections arising out of an election held under the Constitution. It is therefore not left to the court to determine the costs to be deposited as security for costs.
68.
Imposition of a condition precedent to a court order is an ‘unless’ order which is defined in the English case of Marcan Shipping (London) Ltd v Kefalas & another [2007] EWCA Civ 463 as:
“
Unless” orders have a long history, dating back well into the nineteenth century and it was recognized at an early stage that once the condition on which it depended had been satisfied, the sanction became effective without the need for further order. In Whistler v Hancock (1878) 3 QBD 83 the defendant obtained an order that unless the statement of claim were delivered within a week the action should be at an end.”
69.
To that end, we are of the considered view that a court may impose a condition precedent when imposing an order for security for costs in special and exceptional circumstances such as extraordinary and important cases, for instance, election petitions. The same should, however, be done in a manner that is reasonable and not to punish or subdue a genuine claim. In that regard, imposing a condition precedent is not in itself unconstitutional provided it is not unreasonable to the extent that it impedes a party’s access to justice. The question then becomes, when does the condition precedent become unreasonable?
c. When then does it become unreasonable?
70.
In the Supreme Court of Uganda Goodman Agencies Ltd v Attorney & another (Constitutional Application 1 of 2012) [2014] UGSC 124 (03 July 2014) stated as follows:
“
If the Supreme Court were to turn away an appellant who is dissatisfied with a decision of the constitutional court and to strike out a constitutional appeal without hearing its merits merely because the appellant has not deposited further security for costs as was ordered by the court in this case, this would be contrary to not only the spirit, but also the letter of the Constitution, as clearly provided for under article 132(3). Access to the Supreme Court of Uganda, sitting as a final appellate court to determine constitutional appeals or applications, should not depend on how deep a constitutional appellant’s pocket is. Otherwise, it would mean that those who are loaded with cash will have their constitutional appeals heard by this court because they can overcome the financial barriers imposed by an order of the court requiring payment of further security for costs of the other party.”
71.
Equally, the issuance of bail and bond in criminal matters is not a tool that is to be used to punish an accused person who is regarded innocent until proven guilty; but to secure the attendance of an accused person in court. In the same way, security or further security for costs should not be used (a) to discriminate; (b) to punish; (c) to castigate; and (d) as a penal measure against a party in a manner that would deter such a party to pursue its claim as a result of failure to deposit the prerequisite costs. Instead, it should be used as an instrument that ensures that there is a balance of interests between parties in the suit. Any directive by the court that places a barrier on the path to justice obstructs the right to access justice and defeats the purpose to have the dispute determined on its merits. Such an order would be contrary to the spirit and letter of the Constitution.
72.
From the foregoing, reasonability is a matter to be determined on a case to case basis based on judicious parameters embodied elsewhere in this judgment.
73.
Turning to the case at hand, was the order for further costs by the appellate court unreasonable? It is the appellant’s submission that the appellate court failed to balance the parties’ interests because it ordered the appellant to pay Kshs 20,000,000 before the appeal could be heard yet the appellant had already paid Kshs 185,000,000 to the 1st respondent, which amount is the subject of the dispute before court. However, according to the 1st respondent, the appellant has no locus standi as it was wound up and does not exist. What’s more, the appellant’s purported agent, Jasmine See, is a foreign national. It is for this specific reason that an order for security was issued.
74.
The appellate court in awarding further security for costs of Kshs 20,000,000/- was of the preliminary view that the appellant was wound up and in their view its state of affairs placed anxiety on the 1st respondent in its ability to recover costs in the event that the appeal was unsuccessful; Jasmine See’s identity, place of abode, and ability to guarantee the payment of costs remained questionable; the amount in dispute; and the fact that there are other costs that were ordered to be paid in the High Court. The appellate court noted that it was not drawing into the merits of the appeal.
75.
This matter having been filed in October 1998, has been in the corridors of justice for over twenty years. By the time it was being reinstated by the Court of Appeal in 2013, the appellant was already wound up as it is alleged to have been wound up on May 21, 2002. Also, Jasmine See was already the holder of powers of attorney for both the appellant and Lynwood from October 23, 2001. Bearing that in mind, no order for further security for costs was issued at the High Court when it was reinstated and heard on merit in 2013 and the time of the filing of the application for security for costs before the Court of Appeal. Therefore, the status was the same when the matter proceeded to the appellate court on appeal. Secondly, the 1st respondent alleged that Kshs 87,620,000/- was the approximate costs payable at the High Court. However, the same has not been taxed. Thirdly, the sum of Kshs 185,000,000/- which is the subject matter of the suit is already in the possession of the 1st respondent, whether as part payment of debt or as deposit towards purchase price. Lastly, the appellate court did not elaborate how it came up with the figure of Kshs 20,000,000.00 which is one million times above the set nominal amount of Kshs 2,000.00 already paid at the time of filing the appeal.
76.
We are conscious of the fact that the Central Bank of Kenya, the main respondent herein, is an institution established under Article 231 of the Constitution, to which the alleged sum of money the appellant is claiming was deposited. Likewise, we cannot close our eyes to the issue of public interest while endeavouring to give the appellant access to the court system. This is a fundamental aspect of our democracy which is recognized in our Constitution.
77.
Towards that end, it is our finding, that this is a perfect example where an order of security for costs would stifle the proceedings and completely lock out the appellant out of the doors of justice. The Court of Appeal’s order put an end to the appellant’s litigation journey before being heard on merit thereby denying them opportunity to secure their legal rights. We must fault the Court of Appeal’s finding on security for costs in this regard. Of particular interest is paragraph [12] where the court states as follows:
(12)
Having considered all the foregoing guidelines and constitutional underpinnings, we do not wish to be drawn into the merits of the appeal, as that would prejudice or embarrass the Bench that will deal with it save to state that the issues raised regarding the winding up of Westmont which is the appellant and the multiple identities of Jasmin See who is the named agent/attorney are weighty matters in regard to the issue at hand that is security for costs. We do not think this application was brought on the basis that the appellant or its agent were merely impecunious. It is predicated on the fact that Westmont who is the appellant does not exist in law and this being a common ground counsel for CBK submitted quite strongly that in the event the appeal is dismissed, public tax payers’ money will have been expended in pursuing an appeal filed by a phantom. This argument that Westmont was wound up was not discounted by counsel for the appellant, save to state that there was an amendment whereby Westmont was substituted by Lynwood Developers Ltd. Whereas those are matters for merit determination within the appeal itself, our preliminary view of the matter is, this appeal, as it appears in this record of appeal, is filed in the name of Westmont who is the appellant; it is undisputed that Westmont was wound up and in our view this state of affairs lends credence to CBK’s anxiety regarding its ability to recover costs in the event that the appeal was unsuccessful. [Emphasis added]
78.
Despite acknowledging that the substitution and winding up of the appellant and their subsequent substitution by Lynwood Were matters for determination on merit in the pending appeal, the Court of Appeal still proceeded to determine the same itself, an unfortunate embarrassment to the eventual trial bench.
79.
We also take issue with the Court of Appeal’s finding at paragraph 13 where it is stated as follows:
“
(13)
We have also considered the second line of argument that the only disclosed agent/ attorney is one Jasmin See who was given the power of attorney by Westmont to act on its behalf in this matter. In the event that Westmont lacks capacity would the said Jasmin See pay the legal costs? or whose agent is she, who is the appellant or the beneficiary of the appeal proceedings? Unfortunately, those questions were not answered by the appellants as no replying deposition was filed but only grounds of opposition. Going by the information given in the affidavit in support of the application, part of which is reproduced here above, which was not controverted by Westmont, it is obvious to us that Jasmin See’s identity, place of abode, and ability to guarantee the payment of costs remained questionable. It is the way Jasmin See described herself variously in the proceedings and documents before the High Court and the fact that she is a foreigner with two nationalities and multiple passports that brings into question her identity and ability to pay the costs should the appeal be un- successful and she is ordered to pay the costs.”
80.
In the instant application, the burden of proving the appellant’s inability to pay any awardable costs should the appellant fail in their appeal, was on the 1st respondent. However, in the foregoing paragraph, it is obvious to us that the 1st respondent did not discharge their burden of proof that is why, to us, the pertinent questions “In the event that Westmont lacks capacity would the said Jasmin See pay the legal costs? or whose agent is she, who is the appellant or the beneficiary of the appeal proceedings?” remained unanswered. The learned Judges of appeal did not consider the fact that the appellant’s impecuniosity if any, may have been contributed to by the 1st respondent’s action who, if proved, could be holding lien of Kshs 185,000,000/- which the appellant alleges to have deposited to it.
81.
In our view, there ought to be a balance for the two competing rights that is, the right to access to justice and the right to security for costs. Unlike the right for security for costs, the right to access to justice is guaranteed in the Constitution and as demonstrated in article 24 above, can only be limited by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
82.
Borrowing from these constitutional tenets above, it is our view that the grant of the said costs was unreasonable to the extent that it impacted against the appellant’s appeal in the negative and sought to punish it, considering it is allegedly wound up and substitution of the appellant with its principal Lynwood is in contention. With the inability to pay the security for costs, the appellant, despite being entitled to pursue an appeal from the decision of the High Court, no longer had recourse to litigate for the court’s ultimate determination of the issues raised. Resultantly, the order for further security for costs did impede its right to access to justice contrary to articles 48, 50 and 159 of the Constitution as the appeal stood struck out in the failure of the payment of the security for costs as ordered.
83.
We have shown that it is the duty of the court to balance the injustice to the plaintiff pursuing a proper claim. We state that the final result in such a balance must be reasonable and modest. An order for additional security must neither impede access to justice nor stifle genuine claims and most definitely must not be oppressive. A court is not bound to make an order of a substantial amount. It is paramount that the order be just and not impede access to justice. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/11/eng@2023-02-17 |
Petition 11 of 2020 | JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 27 January 2023 | 2,023 | Nairobi | Civil | JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another | [2023] KESC 4 (KLR) | null | Brief facts
The appellant and respondent’s union was formalized under the repealed Marriage Act. The appellant and the respondent later moved into their matrimonial home located at Tassia Estate within Embakasi in Nairobi. The respondent claimed that the appellant and herself proceeded to construct rental units on the property. The respondent added that during the construction of the rental units, she successfully applied for a loan of Kshs 200,000 which she gave to the appellant to enable him to complete the construction of the units. The respondent further claimed that, during the subsistence of their marriage, the appellant proceeded to acquire more assets.
In 2008, the marriage irrevocably broke down and the appellant applied for its dissolution. A decree absolute was subsequently issued on October 15, 2015. It was the irrevocable breakdown of the marriage that led to the respondent commencing the division of matrimonial property proceedings at the High Court. The court found that the only property that amounted to matrimonial property was the matrimonial property located at Tassia Estate. The court also held that the respondent had failed to prove her case on the claim that she directly contributed to the acquisition of that property which was registered in the appellant’s name. The court however recognized that the respondent made an indirect non-monetary contribution towards the family’s welfare in the form of upkeep and welfare. The court for that reason proceeded to award the respondent 30% of the share in the matrimonial property and a 20% share of the rental units constructed within that property.
Aggrieved by the decision of the High Court, the respondent filed an appeal at the Court of Appeal while the appellant filed a cross-appeal. The Court of Appeal found that the respondent, having been married to the appellant for 18 years, 15 years of which were spent in gainful employment, constantly took loans and helped acquire the matrimonial home jointly with the appellant. The court also found that the respondent thus acquired a beneficial interest in the matrimonial property and further that, the High Court erred in awarding the respondent a 30% share of the house and a 20% share in the rental units. The Court of Appeal proceeded to set aside the High Court’s findings and ordered that the matrimonial property and the rental units built were to be shared equally between the appellant and respondent at the ratio of 50:50.
Dissatisfied by the Court of Appeal judgment, the appellant filed the instant appeal. | F. Orders
110.
Flowing from above, the final orders are:
i.
The petition of appeal dated and filed on July 3, 2020 is hereby dismissed.
ii.
The appellant shall bear the respondents’ costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/4/eng@2023-01-27 |
Petition (Application) 34 (E035) of 2022 | Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 1/27/2023 | 2,023 | Nairobi | Civil | Kampala International University v Housing Finance Company Limited | [2023] KESC 5 (KLR) | null | Brief facts
The applicant received an adverse arbitral award for the statutory sale of its properties valued at USD. 12,767,508.33 by the respondent. Aggrieved the applicant unsuccessfully contested the arbitral award at the High Court.
Further aggrieved the applicant filed an appeal before the Court of Appeal where It was contended that the High Court dismissed the contest without affording the applicant an opportunity to highlight its submissions. The appellate court dismissed the appeal which led to the instant application before the Supreme Court.
Further aggrieved at the Court of Appeal decision, the applicant filed the instant appeal/application in which it sought conservatory orders staying the arbitral award pending the hearing and determination of the instant appeal. The applicant contended that the Court of Appeal failed to consider the questions relating to the right to be heard, denying the applicant the right of access to justice; that the appellate court prematurely embarked on evaluation of material evidence. It also contended that should the arbitral award be executed, the loss of USD. 12, 767, 508.33 was irreparable.
The applicant hinged its appeal on the question of interpretation or application of the Constitution on grounds, inter alia, that its right to fair hearing as envisaged under the Constitution 2010 was hindered when at the High Court it was not given an opportunity to highlight its submissions, which right was not addressed by the Court of Appeal. There is also contention on whether the court has jurisdiction
The respondent filed a preliminary objection in which it contended that the Supreme Court lacked jurisdiction in the instant matter as the ruling of the Court of Appeal did not involve the interpretation or application of the Constitution, neither was the appeal certified as a matter of general public importance. That the only issue that was for consideration by the Court of Appeal was whether the applicant had met the threshold for leave to appeal against the decision of the High Court on setting aside an arbitral award under Section 35 of the Arbitration Act. | 8.
We now opine as follows:
a)
on arguability of the appeal, we enunciated in Tanad Transporters Limited & 2 others v Laiser Communications Limited & 2 others, SC Petition No 7 (E009) of 2022 and George 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 that this question does not call for the interrogation of the merit of the appeal and the court, at this stage, must not make any definitive findings of either fact or law. An arguable appeal is not one which necessarily must succeed but one which ought to be argued fully by the court. The applicant hinges his appeal on the question of interpretation or application of the Constitution on grounds, inter alia, that its right to fair hearing as envisaged under the Constitution 2010 was hindered when at the High Court it was not given an opportunity to highlight its submissions, which right was not addressed by the Court of Appeal. There is also contention on whether the court has jurisdiction in light of its previous decisions in Nyutu Agrovet Limited v Airtel Networks Kenya (supra), Synergy Industrial Credit v Cape Holdings Limited (supra) and Geo Chem Middle East v Kenya Bureau of Standards (supra), it is our view that the appeal is arguable.
b)
On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible. The respondent seeks to recover USD 12, 767, 508.33 through the statutory power of sale of properties known as Kajiado/Kaputiei North/1209, Kajiado/Kaputiei North/1210 and Kajiado/Kaputiei North/1211. The amount in contention is considerably large and there is imminent danger on the applicant being evicted from the said properties as a result of the impugned ruling by the Court of Appeal. Bearing that in mind, we are of the view that this would occasion irreparable harm upon the applicant.
c)
Lastly, on public interest, we believe that there is sufficient public interest element in the appeal as it touches on an inalienable right, that is the right to a fair trial as stipulated under article 25 of the Constitution, the applicability of the doctrine of stare decisis and the exercise of jurisdiction by the various institutions ranging from the arbitrator, the High Court and the Court of Appeal in the dispensation of justice.
9 .
Consequently, for reasons aforesaid, we make the following orders:
(i)
The notice of motion application dated November 16, 2022 and filed on November 22, 2022 be and is hereby allowed to the extent that conservatory orders of injunction restraining the respondent whether by themselves, servants, agents, or any other person claiming under them from in any way alienating or selling the parcels of land known as Kajiado/Kaputiei North/1209, Kajiado/Kaputiei North/1210 and Kajiado/Kaputiei North/1211 in exercise of statutory power of sale and/or enforcement of the final arbitral award made and published by the arbitrator, Hon Mr Collins Namachanja on the September 27, 2019 pending the hearing and determination of this appeal;
(ii)
Costs of the application shall abide the outcome of the appeal.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/5/eng@2023-01-27 |
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