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Petition 9 of 2021 | MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (27 January 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 1/27/2023 | 2,023 | Nairobi | Civil | MNK v POM; Initiative for Strategic Litigation in Africa | [2023] KESC 2 (KLR) | null | Brief facts
The respondent instituted Nairobi High Court Civil Suit No 6 of 2012, POM vs MNK, by way of an originating summons dated November 5, 2013, against the appellant whom he claimed to be his wife. The respondent invoked the provisions of section 17 of the repealed Married Women's Property Act, 1882 (MWPA) on the claim for division of matrimonial property. The respondent contended that he and the appellant began to cohabit as husband and wife sometime in 1986. It was his case that from joint savings, they purchased the suit property. He asserted that he belonged to the Kisii tribe and that the seller who belonged to the Kikuyu tribe was not comfortable selling the parcel of land to a non-Kikuyu therefore, the parties resolved to have the property registered in the appellant’s name although they had both contributed to its acquisition.
The High Court dismissed the suit and found that although there was long cohabitation between the parties, the principle of presumption of marriage, was inapplicable under the circumstances seeing that the appellant was already married to KM. The court held that the appellant could not marry the respondent, that the relationship between the parties was adulterous and the resulting cohabitation could not be deemed a marriage. In the absence of a marriage, the court held that the respondent could not rely on the provisions of MWPA (repealed) whose reliefs were based on proof of marriage.
Dissatisfied, the respondent approached the Court of Appeal which held that the High Court erred in finding that there was long cohabitation but declined to presume marriage because of a one KM, whose existence the Court of Appeal found was not proved. The appellate court presumed the existence of a marriage and allowed the appeal, and ordered the suit property to be divided into two halves, a share for each party.
Aggrieved the appellant filed the instant appeal. The appellant argued that parties to a marriage must have the capacity to enter into a marriage and that she did not have the requisite capacity for the relationship between her and the respondent to be presumed a marriage as she was married to KM and had three children out of that relationship. The appellant also argued that a long-term relationship that resembled a marriage was not a marriage. The appellant further argued that she solely contributed to the acquisition of the suit property. | E. Analysis and Determination
29.
Before delving into the issues as framed by this court, we note from the record that the cause of action in this matter arose in 2011 and the matter was filed in 2012 before the enactment of the Marriage Act, 2014, and Matrimonial Property Act, 2013. This court in the case of Samuel Kamau Macharia & Ano v Kenya Commercial Bank Ltd & 2 Others SC Application No 2 of 2011[2012] eKLR we held as follows regarding retrospective application of legislation:
“
As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless by express words or necessary implication it appears that this was the intention of the legislature.” [emphasis added]
30.
Flowing from the above, it is our considered view that the Marriage Act, 2014 and Matrimonial Property Act No 49 of 2013 are not applicable in this matter as the cause of action arose before the said statutes were enacted into law and cannot be applied retrospectively. We now turn to the issues as framed.
(i) Whether parties to a union arising out of cohabitation and/or in a marriage unrecognized by law can file proceedings under the Married Women's Property Act (repealed)?
31.
While it is the appellant’s case that the existence of a marriage recognized in law remains the central status that grants a party locus standi under section 17 of MWPA (repealed), the respondent contends that the correct interpretation of the term marriage in the MWPA (repealed) should be that it applies to all marriages recognized or unrecognized in law.
32.
In that context, the MWPA (repealed) was enacted in England in 1882. It found its way into the Kenyan legal regime when it was inherited as a statute of general application pursuant to the Judicature Act. This made the MWPA (repealed) applicable in Kenya but that was until January 16, 2014 when our own statute, the Matrimonial Property Act, 2013 (MPA) commenced. However, as earlier stated we will not delve into the MPA.
33.
The MWPA (repealed) reads that it is “An act to consolidate and amend the acts relating to the property of married women.” Lord Morris of Borthy-Guest in Pettit v Pettit [1970] AC 777 stated:
‘One of the main purposes of the act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept separate.’
34.
Section 17 of the MWPA (repealed) states as follows;
‘In any question between husband and wife as to the title to or possession of property, either party ……… may apply by summons or otherwise in a summary way to any judge of the High Court of justice ……and the judge ….. may make such order with respect to the property in dispute, and to the costs of and consequent on the application as he thinks fit.’
35.
Accordingly, and in answer to the question posed above, it is clear to us that the MWPA (repealed) applied only to ‘parties to a marriage; husband and wife.’ It is worth noting from the onset that the MWPA (repealed) only refers to ‘parties to a marriage’ and ‘married women’. It does not go into details as to how the marriage came to be or how it was contracted. To our minds therefore, we are of the view that parties to a union arising out of cohabitation and/or in a marriage unrecognized by law could file proceedings under the MWPA (repealed) upon the basis that the MWPA (repealed) does not distinguish between marriages recognized or unrecognized in law. In other words, the MWPA (repealed) applies to all marriages recognized or unrecognized in law. The question that then arises in the matter before us, is whether or not, the parties to this dispute were married.
36.
The appellate court in this matter had determined that ‘the appellant was, by presumption married to the respondent.’ It is this determination that falls to us for examination. Presumption of marriage is a well-settled common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted marriage. However, a presumption of marriage is a rebuttable presumption and can disappear in the face of proof that no marriage existed.
37.
According to Halsbury’s Laws of England, Matrimonial and Civil Partnership Law (Volume 72) 5th Edition 2015:
“
Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”
38.
Similarly, Bromley Family Law 5th Edition provides that:
“
If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married.”
39.
Section 119 of the Evidence Act, cap 80 Laws of Kenya is also instructive. It provides as follows:
“
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
40.
From the foregoing, courts are permitted to make a prima facie legal inference that certain facts exist without proof, regard being taken to the common course of natural events and human conduct, in relation to the facts of a particular case.
41.
The presumption of marriage was first applied in Kenya in Hortensia Wanjiku Yawe v The Public Trustee Nairobi [1976] eKLR. The principles distilled from this former Court of Appeal (Wambuzi P, Mustafa VP and Musoke JA) for East Africa decision were outlined in Mary Njoki v John Kinyanjui Mutheru & 3 Others, (Mary Njoki) [1985] eKLR by Kneller JA as follows:
i.
The onus of proving customary law marriage is generally on the party who claims it;
ii.
The standard of proof is the usual one for a civil action, namely, ‘on the balance of probabilities;
iii.
Evidence as to the formalities required for a customary law marriage must be proved to that standard; (Mwagiru v Mumbi, [1967] EA 639, 642)
iv.
Long cohabitation as a man and a wife gives rise to a presumption of marriage in favour of the party asserting it;
v.
Only cogent evidence to the contrary can rebut the presumption (Toplin Watson v Tate [1937] 3 All ER 105
vi.
If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage. (Sastry Veliader Aronegary v Sembecutty Vaigalie (1880-1) 6 AC 364; Shepherd George v Thye, [1904] 1 Ch 456)
42.
The judge went on to state:
“
Cohabitation and repute do not always constitute a marriage. They can be part of a mode of proving one in that they are substituted for some missing element or elements. One of the earliest put it this way. Cohabitation, with habit and repute, in the absence of countervailing proof to the contrary, establish a marriage on the ground that the cohabitation as husband and wife is proof that the parties have consented to contract that relationship.” [Emphasis ours]
43.
Nyarangi JA in the same judgment delivered himself as follows;
“
In my judgment, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently. Performance of some ceremony of marriage would be strong evidence of the general repute that the parties are married. To sum it, there has to be evidence that the long cohabitation is not close friendship between a man and woman, that she is not a concubine but that the cohabitation has crystallized into a marriage and that it is safe to presume that there is marraige. To my mind, these features are all too apparent in the Yawe and in Mbiti (supra). To my mind, presumption of marriage, being an assumption does not require proof, of an attempt to go through a form of marriage known to law.”
44.
Our courts have subsequently applied the doctrine of presumption of marriage in several cases. In Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR the Court of Appeal stated as follows:
“
Before presumption of marriage can arise a party a needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is ot a mere concubine that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed.
45.
In Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR Bosire JA held as follows:
“
The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by along cohabitation or other circumstances evinced an intention of living together as husband and wife.”
46.
More recently, Ngaah J, in CWN v DK[2021] eKLR was of the view that;
“
as far as presumption of marriage is concerned, it is a status of relationship that turns much on evidence as much as it is a presumption of law.”
47.
Bearing in mind the above case law, did the instant relationship possess the constitutive elements of presumption of marriage, that is, long cohabitation and repute of marriage absent cogent evidence to the contrary? In other words, is it safe in the circumstances of this case to presume a marriage?
48.
The appellant argued that parties to a marriage must have the capacity to enter into a marriage and that she did not have the requisite capacity for the relationship between her and the respondent to be presumed a marriage as she was married to KM and had three children out of that relationship. The appellant further contended that she was married to KM in the 1980s, therefore, she did not have the capacity to enter into another marriage with the respondent, and that lack of capacity, consent, and intention to marry rebuts any presumption of marriage. This was interrogated by the High Court and the learned judge found as follows at paragraphs 26 and 27:
“
26.
I note that the plaintiff sued the defendant as MNK. Indeed, in all the other suits between the parties hereto, that is to say Milimani CMCCC No 4364 of 2011 and Milimani CMCCC No 454 of 2011, she is referred to as such. It would appear to me that that is her official name; it is the one appearing in her national identity card serial number[xxxx]. There is also material, procured by the plaintiff, indicating that her father was called M W. That then should raise the question as to where she could have gotten the surname K from. I feel inclined to agree with the defendant, and to conclude that she had contracted marriage with the said KM which led to her adopting his name as part of her name.”
27.
“…..It is a cardinal principle of the civil process that he who alleges must prove. It is the plaintiff who came to court claiming that the defendant was his wife; it was therefore incumbent upon him to prove that assertion. When the defendant countered the claim by asserting that she was a spouse of a KM, the plaintiff ought to have sought to disprove that,especially given that the defendant had the K name as her surname, yet that could not possibly have been her maiden surname. He failed to adduce any evidence to disprove the defendant’s assertions that she had no capacity to marry him at the time. I will therefore find that the marriage between the defendant and KM was not terminated until 2011 when he was alleged to have died. That would then mean that the defendant had no capacity at the time to marry the plaintiff. It is a notorious fact that polyandry is not practiced in Kenya, whether under statute or customary law. The relationship between the parties hereto was no doubt adulterous, and the resulting cohabitation could not be deemed to have brought forth a marriage.”
49.
The Court of Appeal on the other hand determined as follows;
“
The learned judge placed much weight on the appearance of the name “K” on MNP’s identity card and drew the conclusion without evidence being led, that the name appeared because she was married to him. In fact, it would seem that beyond that fact, no other cogent evidence existed as to the said marriage. We are not ourselves prepared to accept as correct a proposition that the appearance of a name on the identity card of a woman, without more, proves that the owner of that name, whoever he be, is the woman’s husband. It is also troubling that the issue of the appearance of that name in the identity card did not feature in MNP’s testimony so that the determinative conclusion the learned Judge reached was not preceded by any jural testing and was founded on the learned judge’s own untested theorizing or extrapolation.
50.
Case law guides us on the issue of capacity. In Machani v Vernoor [1985] KLR 859, the Court of Appeal held that:
“
The presumption covers two aspects, that the parties must have capacity to enter into a marriage and that they did so in effect. During the continuance of a previous marriage, the already married party would have no capacity to enter into the new marriage, and the new marriage would be null until the previous marriage had been brought to an end by a final decree or divorce.”
51.
Indian case law is also persuasive on the issue of capacity. The Supreme Court of India in Gokal Chand v Parvin Kumari AIR 1952 SC 231 held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them. Polygamy, that is, a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.
52.
In Indra Sarma v VKV Sarma (2013) 15 SCC 755 the Supreme Court of India held that:
“
There is no necessity to rebut the presumption since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of section 2(f) of the DV Act, which is restrictive and exhaustive.”
53.
On analysis and guided by the record, we are unconvinced that the appellant had capacity to contract a marriage with the respondent. Before the High Court,the appellant urged that her father gave her the name ‘P’ upon her baptism in 1979. She produced her baptism card before the court and also averred that she added the name ‘P’ on the suit property because she was having a dispute with her now deceased husband. She urged that although she had other properties, the suit property was the only one with the name “P.’
54.
It is also not disputed that her father was MW and his name did not appear in her identity document. We find that the Court of Appeal disregarded the appellant’s evidence regarding her name and the reasons for use of the name ‘P’ and ‘K.’ Without the benefit of having sight of the baptism card produced during the hearing, we have perused the record and find that the respondent did not controvert the production of the baptism card.
55.
Furthermore, the appellant claimed she was married to ‘KM’. Her evidence was her identity card, her official national identification document which bears this name. We find that by parity of reason, the learned High Court judge was well within his bounds to determine that K was her husband’s name bearing in mind that Kenyan adult women have their father’s or husband’s names as their surnames in their official identification cards. We also find that the appellate court, inclined to disbelieve the appellant, did not thoroughly interrogate this issue. In our considered view, the appellant has sufficiently proved that her name is MNK and the name K is attributable to the deceased man ‘KM’.
56.
The appellant also argued that a long-term relationship that resembles a marriage is not a marriage, and the person who alleges the existence of such a marriage must prove it.
57.
On the issue of long cohabitation, the High Court held at paragraph 21 & 22 as follows:
“
So what do I make of the material that was placed before me with regard to the alleged relationship between the plaintiff and the defendant? From the documents annexed to the affidavits to the parties and the oral testimonies of the witnesses called by both sides, I am satisfied that the plaintiff and the defendant were indeed living together on a plot within Dagoretti/Riruta/xxx. It would appear that some people might have at that time considered them to be husband and wife, going by the oral testimonies and the documents, particularly the minutes of the meetings held with respect to the issues concerning the subdivision and excision of the plots from Dagoretti/Riruta/xxx.
22.
What should be of concern is whether that cohabitation could lead to a presumption that the two parties had between them a marriage… From the material placed before me, I would be persuaded that there was a long cohabitation of the parties, from 1986 according to the plaintiff and 1992 or thereabout from the other witness, terminating in 2011 or 2012 when the plaintiff was allegedly locked out of the premises by the defendant. There is also material to suggest that there was a general repute within that period that the two were a married couple.”
58.
From the evidence on record, we agree with both the High Court and the Court of Appeal that there was long cohabitation between the appellant and the respondent. However, did the long cohabitation and repute as husband and wife raise a presumption of marriage?
59.
The first issue to note here is that from the record, it is evident that when the respondent filed the suit in the High Court, he was not claiming to be the husband of the appellant. The issue of the presumption of marriage through long cohabitation was not specifically pleaded. Indeed, it was only during the proceedings that the respondent asserted that they were married by repute. This assertion was vehemently denied by the appellant and she claimed that she was married to another man and known by his name. We have already made a finding on this issue and will say no more on it.
60.
In addition, is trite law that he who alleges the existence of certain facts must prove its existence. Accordingly, section 109 of the Evidence Act provides:
“
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”
61.
The respondent, having claimed that he was married to the appellant, ought to have adduced cogent evidence to prove the marriage. However, in his own testimony in the record, he had a first wife and the appellant was allegedly his second wife. He also confirmed that he had not paid dowry for the appellant. We are therefore not convinced that his cohabitation with the appellant was sufficient to prove his marriage to the appellant.
62.
We are thus in sync with the High Court that the respondent did not controvert the evidence by the appellant that she was married to KM until 2011 when he died. In this regard, she only had the capacity to marry from 2011. This evidence was in the form of her identity card. This was not disproved by the respondent. As such, we are of the view that the appellant’s evidence that she was married to KM under Kikuyu customary marriage was uncontroverted.
63.
Uncontroverted evidence is weighty and courts will rely on it to prove facts in dispute. Considering the facts as pleaded and the evidence as tendered in this matter, in particular the existence of the first marriage and failure by the respondent to prove the presumption of marriage and/or controvert the appellant’s evidence, we must return a finding that this is not one of the safe instances where a court can rightly presume a marriage. We must respectfully find, which we do, that the appellate court erred in presuming a marriage between the parties. We agree with the High Court that the relationship between the parties and the resulting cohabitation cannot be deemed to have brought forth a marriage. Consequently, a presumption of marriage cannot apply in the instant case.
64.
We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:
1.
The parties must have lived together for a long period of time.
2.
The parties must have the legal right or capacity to marry.
3.
The parties must have intended to marry.
4.
There must be consent by both parties.
5.
The parties must have held themselves out to the outside world as being a married couple.
6.
The onus of proving the presumption is on the party who alleges it.
7.
The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
8.
The standard of proof is on a balance of probabilities.
65.
The above notwithstanding, we are of the view, that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it.
66.
In the same breath, we would be remiss if we did not point out that marriage is an institution that has traditional, religious, economic, social and cultural meaning for many Kenyans. However, it is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intention to be within the confines of matrimony. This court recognizes that there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage. In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today.
67.
For instance, a person may have been in a marriage before and the marriage is no more due to death of a spouse or divorce. Due to their prior experiences, such persons may choose to have an interdependent relationship outside of marriage. For others, it may just be their desire never to marry but have a partner without the confines of marriage. Where such situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.
68.
In addition, in our ever-changing society, current statistics reveal that a man and a woman can choose to cohabit with the express intention that their cohabitation does not constitute a marriage. The pervasiveness of having interdependent relationships outside marriage over the past few decades means that no inferences about marital status can be drawn from living under the same roof. ‘Interdependent relationships outside marriage’ is not a new concept.
69.
In Alberta, Canada, since 2003, adult interdependent relationships have been recognized and protected through the Adult Interdependent Relationships Act. This creates a specific type of relationship, called an adult interdependent relationship (“AIR”). This term is used in place of the ‘common law relationship’. The act gives rights and obligations to couples in qualifying long-term relationships. In this regard, perhaps, it is time for the National Assembly and the Senate, in collaboration with the Attorney-General to formulate and enact statute law that deals with cohabitees in long-term relationships; their rights, and obligations.
70.
To conclude on this issue, we find that the circumstances in which presumption of marriage can be upheld are limited. In other words, a presumption of a marriage is the exception rather than the rule.
ii) What relief is available to the present parties?
71.
Since the presumption of marriage does not exist in this case, is the respondent entitled to a share of the suit property?
72.
Although the respondent urges that at all material times, the two parties contributed to its acquisition and development of the suit property, on analysis of the evidence before the High Court, the appellant’s and respondent’s financial contribution in purchasing and developing the property was not ascertained.
73.
The Court of Appeal in evaluating the proprietary rights relating to the ownership of the suit property together with the developments thereon held that the respondent had jointly contributed to the acquisition, building and development thereon and awarded each of the parties a 50% share.
74.
We now turn to the history of how the suit property was purchased. From the record, the respondent alleged that the suit property was the subject of a succession matter which upon conclusion was available for transfer but not to someone who was not ‘Kikuyu’. The respondent averred that the purchase price was Kshs 250,000.00 and they jointly contributed Kshs 200,000.00 and obtained financing of Kshs 100,000.00 from the appellant’s sister one EN. Upon cross-examination, the respondent averred that he contributed Kshs 60,000.00. That after the sale, the property was registered under the name MKP. The respondent urged that the utility bills were registered in his name. It is not in dispute that rental rooms were developed on the property and that the respondent operated a bar and butchery business on the premises. The respondent urged that the tenancy agreements were registered in his name as the landlord and that he collected rent which was utilized for his upkeep together with the appellant.
75.
The appellant urged before the High Court that she solely contributed to the acquisition of the suit property. She confirmed that although she had other properties it is only the suit property where she added the name P to her name for registration purposes. The appellant urged that she had allocated the respondent a shop to operate his business and had also appointed him as an agent for purposes of rent collection.
76.
The learned judge of the High Court downed his tools on determination of proprietary rights after making a finding that no marriage could be presumed. The Court of Appeal on the other hand made a finding that the High Court erred in failing to make a finding regarding the proprietary rights of the parties and proceeded to make a determination on the legal issue which was the gravamen of the suit filed. We agree with the learned judges that it was crucial to make a finding on the parties’ proprietary rights, whatever the nature of the relationship.
77.
Wheareas the appellate court in evaluating the evidence made a finding that the purchase and development of the property was a joint effort and proceeded to apportion a 50% share to each party. The court further held that the true purchaser was the respondent but due to prevailing circumstances regarding tribe, the property was registered in the appellant’s name. We disagree as we find there is insufficient evidence on record to make this finding.
78.
On our part, on evaluating the evidence, we are convinced that the two parties contributed to the acquisition and development of the suit property which led to their proprietary rights. These proprietary rights arose out of a constructive trust. The Black’s Law Dictionary 9th Edition at pg 1649 defines a constructive trust as “the right, enforceable solely in equity, to the beneficial enjoyment of property which another person holds the legal title.”
79.
England and Wales Court of Appeal’s Lord Justice Browne in Eves v Eves [1975] 1 WLR 1338 quoted with approval the decision in Cooke v Heard [1972] WLR 518 where it was held;
“
... whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the property in trust for them both. This trust does not need any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too.”
80.
Likewise, we are persuaded by the decision of the Supreme Court of Queensland in Barker v Linklater & Another [2007] QCA 363 quoted with Baumgartner v Baumgartner [1987] 164 CLR 137 where the court held:
“
Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.’
81.
According to Bromley’s Family Law 10th Edition, disputes between cohabitants or former cohabitants over ownership, occupation, or use of the property must be resolved, generally speaking by applying ordinary legal rules applicable to strangers. This is due to the fact that legislation that enables courts to allocate or reallocate beneficial interests in the assets following a divorce does not apply to cohabiting couples.
82.
Kenya, just like many other countries, does not have laws to protect parties to cohabitation in case of a dispute relating to property acquired during the subsistence of such cohabitation. However, the issue of cohabiting couples’ property has increasingly become a social problem due to the high number of people resorting to cohabitation and in the process of acquiring properties, upon separation there is no legislation governing the division of property.
83.
While we acknowledge the difficulties of resolving such disputes, a laissez fair approach can result in injustice for parties to a relationship who might be more vulnerable or who contribute less in financial terms than their partners. Conversely, we do note that the interventionist approach risks creating uncertainty, and attaching a monetary value to the party’s actions within this type of relationship is often highly complex as is in the present case.
84.
The difficulty was aptly captured in Walker v Hall [1984] FLR 126 where Lord Lawton observed as follows:
“
During the past two decades the courts have had to consider on a number of occasions the division of property between men and women living together without being married……. courts have been able to make an equitable division of property between spouses when a marriage breaks down and a decree of divorce is pronounced. No such jurisdiction exists when the cohabitees are unmarried. When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are such disputes to be decided? They cannot be decided in the same way as similar disputes are decided when there has been a divorce. The courts have no jurisdiction to do so. They have to be decided in accordance with the law relating to property… There is no special law relating to property shared by cohabitees any more than there is any special law relating to property used in common by partners or members of a club. The principles of law to be applied are clear, though sometimes their application to particular facts are difficult. In circumstances such as arose in this case the appropriate law is that of resulting trusts. If there is a resulting trust (and there was one in this case) the beneficiaries acquire by operation of law interests in the trust property. An interest in property which is the consequence of a legal process must be identifiable. It must be more than expectations which at some later date require to be valued by a court…”
85.
In England, courts have long recognized that common intention of the parties at the time of purchase is sufficient to give rise to a constructive trust, which can be inferred from conduct other than making financial contributions to cohabitees.
86.
In defining constructive trusts, the Court of Appeal in the case of Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR the court held that;
“
In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing . … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such aswould demand the equity treats the legal. owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit _ (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment ." [emphasis added]
87.
We however note that even though constructive trust is premised on section 38 of the Land Act, 2012 the same has not been applied in solving disputes relating to cohabitees.
88.
In the case of Elayne Marian Teresa Oxley v Allan George Hiscock [2004] EWCA 546 the Court of Appeal of England and Wales quoted with approval Lord Diplock in Gissing v Gissing [1971] AC 886 where the guidelines to consider when interrogating constructive trust were laid down as follows:
“
. . . the first deals with the nature of the substantive right; the second with the proof of the existence of that right; the third with the quantification of that right.
1.
The nature of the substantive right
If the legal estate in the joint home is vested in only one of the parties ('the legal owner') the other party ('the claimant'), in order to establish a beneficial interest, has to establish a constructive trust by showing that it would be inequitable for the legal owner to claim sole beneficial ownership. This requires two matters to be demonstrated: (a) that there was a common intention that both should have a beneficial interest; and (b) that the claimant has acted to his or her detriment on the basis of that common intention.
2.
The proof of the common intention
a.
Direct evidence , it is clear that mere agreement between the parties that both are to have beneficial interests is sufficient to prove the necessary common intention. Other passages in the speech point to the admissibility and relevance of other possible forms of direct evidence of such intention.
b.
Inferred common intention , Lord Diplock points out that, even where parties have not used express words to communicate their intention (and therefore there is no direct evidence), the court can infer from their actions an intention that they shall both have an interest in the house. This part of his speech concentrates on the types of evidence from which the courts are most often asked to infer such intention, viz contributions (direct and indirect) to the deposit, the mortgage instalments or general housekeeping expenses. In this section of the speech, he analyses what types of expenditure are capable of constituting evidence of such common intention: he does not say that if the intention is proved in some other way such contributions are essential to establish the trust.
3.
The quantification of the right
Once it has been established that the parties had a common intention that both should have a beneficial interest and that the claimant has acted to his detriment, the question may still remain 'what is the extent of the claimant's beneficial interest?' This last section of Lord Diplock's speech shows that here again the direct and indirect contributions made by the parties to the cost of acquisition may be crucially important.” [emphasis added]
89.
The court further observed as follows:
“
I have referred, in the immediately preceding paragraphs, to "cases of this nature". By that, I mean cases in which the common features are: (i) the property is bought as a home for a couple who, although not married, intend to live together as man and wife; (ii) each of them makes some financial contribution to the purchase; (iii) the property is purchased in the sole name of one of them; and (iv) there is no express declaration of trust .” [emphasis added]
90.
Applying the above guidelines we reiterate that common intention of the parties at the time of purchase of the suit property gave rise to a constructive trust between the appellant and the respondent. From the evidence on record that the appellant and respondent had been cohabiting since 1986 and that in 1991 the suit property was bought by the two parties and registered in the name of the appellant. The respondent was present during the drafting and signing of the sale agreement and was in fact a witness. The parties lived in one of the rooms from 1993 and ploughed the proceeds of rent to construct more rental units. It was proved that the meters were in his name and operated a bar on the same premises. In these circumstances, we conclude that there was a common intention for the appellant and respondent to have beneficial interests in the suit property.
91.
However, in 2011 when the parties herein separated the appellant evicted the respondent from the matrimonial home and from the business premises contrary to the common intention, they had at the time of purchasing the property. Thereby, unjustly enriching herself with a property meant to be of benefit to her and the respondent.
92.
It is in evidence that the respondent paid for the water and electricity connection charges and bills from when the property was constructed to 2011 when he was evicted from the property and that jointly the parties have made several improvements on the suit property. It is, therefore, our finding that the common intention can be inferred from the appellant and respondent’s conduct during the existence of their relationship.
93.
Having established that there was a common intention and that both the appellant and the respondent should have a beneficial interest in the property, it follows that we need to proceed and quantify the beneficial interest to the parties.
94.
In assessing the beneficial interests due to the parties, we cannot only be primarily focused on the direct financial contribution to the acquisition of the property but also interrogate other forms of contribution such as actions of the parties in maintaining and improving such properties.
95.
The record shows that the appellant and the respondent jointly contributed to the acquisition and the construction of the suit property and the two jointly invested in the property for more than 20 years. Therefore, we are of the view that the respondent did prove his case on a balance of probabilities that the suit property was acquired and developed through joint efforts and/or contribution of the parties. We therefore make a finding that the share of the parties is apportioned as 70% for the appellant and 30% for the respondent based on their respective contributions.
96.
This being a matter of public interest, each party shall bear their own costs.
E. Orders
97.
Having considered the issues delineated by this court for determination, the final orders are as follows:
a.
The appeal dated August 12, 2021 partially succeeds.
b.
A presumption of marriage between the appellant and the respondent does not exist.
c.
Both parties having a beneficial interest in the property, the share is 70% for the appellant and 30% for the respondent.
d.
Each party to bear their own costs.
98.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/2/eng@2023-01-27 |
Petition 39 of 2019 | Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 27 January 2023 | 2,023 | Nairobi | Civil | Saisi & 7 others v Director of Public Prosecutions & 2 others | [2023] KESC 6 (KLR) | null | Brief facts
The appellants were employees of Geothermal Development Company (GDC). GDC was fully owned by the Government of the Republic of Kenya as a state corporation carrying on the business of geothermal exploration. GDC issued an advertisement for tender No. REF. GDC/HSQ/086/2011-12 (tender) for the provision of rig move services for the Menengai Geothermal Project. The tender was awarded to Bonafide Clearing and Forwarding Company Limited (hereinafter referred to as the “BCFCL”) for Kshs. 42,746,000 per rig move. The appellants were members of GDC’s Tender Committee that procured the provision of the rig move services.
The Ethics and Anti-Corruption Commission (EACC/2nd respondent) asserted that it received a complaint regarding the failure of GDC’s Tender Committee to comply with procurement law in the procurement of rig move services tender. The complaints were based on the conduct of the appellants in their capacity as members of the GDC Tender Committee for the acquisition of rig moves in tender No. Ref. GDC/HQS/086/2011-2012. More specifically the difference in the procurement of the rig-move services for the year 2011/2012 at a cost of Kshs 42,746,000/= from BCFCL while the previous year the same services were tendered at a cost of Kshs 19,550,000/= to the same company, BCFCL, at a cost of per rig move. The difference in price in the procurement of the rig-move services was considerably higher than comparable similar rig-move services by the same provider, BCFCL, by other government institutions more specifically KenGen for rig-move services at Olkaria and Eburru Geothermal fields vide tender no. KGN-OLK-179-2012 resulted in an agreement dated February 5, 2014, at a cost ranging between Kshs. 13,565,040 and Kshs. 24,429,600.
Due to that, DPP on the recommendation of EACC, elected to charge the appellants with various offences including wilful failure to comply with the law relating to procurement contrary to section 45 (2) (b) as read with section 48 of the Anti-Corruption and Economic Crimes Act and inappropriate influence on evaluation contrary to section 38(1)(b) as read with 38(2)(a) of Public Procurement and Disposal Act and abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act.
Before the said criminal case could be heard and determined, the 1st appellant, pursuant to leave of the court filed judicial review proceedings which inter alia sought an order of certiorari to quash EACC’s decision recommending her prosecution for the aforesaid anti-corruption offences; and DPP’s decision directing her prosecution. The High Court granted an order of prohibition barring the DPP from prosecuting. Aggrieved the respondents appealed and the Court of Appeal held that the judicial review application did not merit the exercise of the High Court’s discretion and found that the High Court misdirected itself in deciding to issue orders of certiorari and prohibition.
Aggrieved, the appellants filed two appeals which were consolidated. Their grievances were distinctively similar. They both contended that the charges preferred against them were non-existent and that the DPP failed to holistically interpret and understand the repealed Public Procurement and Disposal Act, 2005 and the Public Procurement and Disposal Regulations, 2006. | C. Analysis and Determination
i. Whether the character and scope of the judicial review has evolved/changed post Constitution 2010? And if so, in what way?
60.
The 1st appellant submitted that the Court of Appeal interpreted her case from the shackles of common law doctrine rather than constitutional imperatives. She contended that the judicial review application not only required a consideration of the decision-making process of the DPP but also an application and interpretation of the Constitution especially the equilibrium between her rights to fair hearing and the DPP’s prosecutorial power under article 157(6) and (11) of the Constitution. She submitted that this court in the case of Communication Commission of Kenya v Royal Media Services & 5 others; SC Petition 14 consolidated with Nos. 14A, 14B & 14C of 2014; [supra] recognized the elevation of judicial review to a pedestal that transcends the technicalities of common law. As such, it was her view that judicial review is entrenched in article 23 of the Constitution and is no longer under the common law prerogative jurisprudence and strictures. She therefore urged the court to find that her case before the High Court was squarely within the confines of the judicial review jurisdiction under the Constitution.
61.
The 2nd to 8th appellants submitted that the Court of Appeal erred in holding that the High Court looked into matters that it ought not to have looked into by embarking on analysing the sufficiency and quality of evidence gathered by the respondents. In their view, the charges against them were largely dependent on documentary evidence and most of the facts were not in controversy as the charges were based on a non- existent provision of the law. It was their position that the High Court was called upon to find out whether or not the omissions allegedly committed, prima facie constituted the alleged criminal offences under the procurement law, which decision could not have been made without embarking on a scrutiny of the documents. As such, they maintained that the learned Judge of the High Court was well within his mandate under article 165(3)(d) as read with article 157(11) of the Constitution to curtail their prosecution.
62.
DPP submitted that the High Court failed to appreciate that judicial review is about the decision-making processes and not the decision itself. Further, that an order of prohibition cannot quash a decision that has already been made, it can only prevent the making of a contemplated decision.
63.
Judicial review establishes the court's authority to hold the government as well as the subordinate courts and bodies exercising quasi-judicial authority accountable to the law. Michael Fordham in his book Judicial Review Handbook, 6th edition, Hart Publishing, 2012, defines judicial review as “…. The court’s way of enforcing the rule of law: ensuring that public authorities functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not ‘above the law’”
Black’s Law Dictionary, 9th Edition, pg 924 defines judicial review as; 1. A court’s power to review the actions of other branches of government; esp, the court’s power to invalidate legislative and executive actions as being unconstitutional. 2. The constitutional doctrine providing for this power 3. A court’s review of a lower court’s or an administrative body’s factual or legal findings”.
64.
Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom. The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The basis of judicial review in Kenya was derived from the Law Reform Act (cap 26) Laws of Kenya and order 53 of the Civil Procedure Rules, 2010 as better developed by case law on the area. Section 8 and 9 of the Law Reform Act provided the substantive basis while order 53 provided the procedural basis. The remedies in judicial review were three, namely; certiorari, prohibition and mandamus. The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality, procedural impropriety and proportionality.
65.
The law in this regard was fairly settled as the High Court in Keroche Industries Limited v Kenya Revenue Authority & 5 others, Misc Civ Appli 743 of 2006; (2007) eKLR had set out what a party needed to demonstrate in order to prove illegality, irrationality, procedural impropriety and proportionality. The Court of Appeal in the case of Commissioner of Lands v Kunste Hotel Limited, Civil Appeal No 234 of 1995; [1997] eKLR had settled that judicial review was only concerned with the decision-making process. In doing so, the court was paying homage to the words of Lord Hailsham of St Marylebone in Chief Constable of the North Wales Police v. Evans (1982) 1WLR 1155:
“
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court.”
66.
All appeared to be in order until the Kenyan Constitution arrived. Judicial Review was no longer a common law prerogative, but was now entrenched in the Constitution to safeguard the constitutional principles, values and purposes. In particular, article 23 (3)(f) provides for the orders of judicial review as one of the available remedies concerning the enforcement of the bill of rights. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In 2015, Parliament in adherence to article 47 of the Constitution enacted the Fair Administrative Action Act, No 4 of 2014, Laws of Kenya (FAA Act).
67.
Also instructive to the application of judicial review, is that article 10 of the Constitution sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.
68.
Due to this codification of the law on judicial review, two schools of thought have emerged. The first believes that since the promulgation of the Constitution 2010 2010, judicial review has shifted from the “process only approach” to merit review in appropriate cases. This is evident in decisions from the Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR; Child Welfare Society of Kenya v Republic & 2 others ex-parte Child in Family Focus Kenya, Civil Appeal 20 of 2015; [2017] eKLR; Joshua Sembei Mutua v Attorney General & 2 others, Civil Appeal 93 of 2015; [2019] eKLR, Super Nova Properties Limited & another v District Land Registrar Mombasa & 5 others, Civil Appeal No 98 of 2016; [2018] eKLR; Josephat Kiplagat v Michael Bartenge, Civil Appeal 357 of 2013; [2016] eKLR to name a few.
69.
The second school of thought has maintained the traditional approach that believes that judicial review proceedings involve a “process only approach” limited to the interrogation of the process and not the merits of the decision being challenged. This is evident in the case by the Court of Appeal in Kenya Revenue Authority & 2 others v Darasa Investments Limited, Civil Appeal No 24 of 2018; [2018] eKLR; Captain (Rtd) Charles Masinde v Augustine Juma & 8 others, Civil Appeal No 1 of 2014; [2016] eKLR; Ransa Company Ltd v Manca Francesco & 2 others [2015] eKLR; and Republic v Chairman Amagoro Land Disputes Tribunal & another ex-parte Paul Mafwabi Wanyama, Civil Appeal No 41 of 2013 [2014] eKLR.
70.
This court in its previous decisions has touched on judicial review. The ones pertinent to the issue before the court are as follows. In the case of Communication Commission of Kenya v. Royal Media Services & 5 others; SC Petition 14 consolidated with Nos 14A, 14B & 14C of 2014; [supra] the Court observed that following the promulgation of the Constitution and upon the enactment of the Fair Administrative Action Act, there has been a shift from the traditional approach to the scope of judicial review. The court however did not say more on the shift. It held as follows:
“
[355]
However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law.…”
71.
In SGS Kenya Limited v Energy Regulatory Commission & 2 others, SC Petition No 2 of 2019; [2020] eKLR this court held that judicial review is limited to the interrogation of the process and not the merits of the decision being challenged. The court held as follows:
“
[45]
…We have, however, observed that the appellate court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the order of Mandamus, since the 1st respondent did not owe any delimited statutory duty to the petitioner.” [Emphasis Added]
72.
In John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others, SC Petition 17 of 2015; [2021] eKLR in rendering a determination pertaining tores judicata, the court compared the scope of determination of judicial review juxtaposed against constitutional petitions. However, while analyzing the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [supra] this court made a determination on the considerations to be made in judicial review when it held as follows;
“
102.
Despite the shift from common law to codification in the Constitution and the Fair Administrative Actions Act, the purpose of the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision–making process itself. This finding is further reinforced by the fact that though the court in determining a judicial review application may look at certain aspects of merit and even set aside a decision, it may not substitute its own decision on merit but must remit the same to the body or office with the power to make that decision.” [Emphasis added].
73.
The present case offers the court an opportunity to render itself on the issue more authoritatively. The Fair Administrative Actions Act provides the parameters of judicial review to be the power of the court to review any administrative or quasi-judicial act, omission or decision of any person, body or authority that affects the legal rights or interests of an aggrieved person. The judicial review court examines various aspects of an act, omission or decision including whether the body or authority whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. These parameters are better set out extensively in section 7 of the Fair Administrative Actions Act (FAAA). We quote it verbatim as follows:
“
(2)
A court or tribunal under subsection (1) may review an administrative action or decision, if–
a.
the person who made the decision–
i.
was not authorized to do so by the empowering provision;
ii.
acted in excess of jurisdiction or power conferred under any written law;
iii.
acted pursuant to delegated power in contravention of any law prohibiting such delegation;
iv.
was biased or may reasonably be suspected of bias; or
v.
denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;
b.
a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
c.
the action or decision was procedurally unfair;
d.
the action or decision was materially influenced by an error of law;
e.
the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;
f.
the administrator failed to take into account relevant considerations;
g.
the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;
h.
the administrative action or decision was made in bad faith;
i.
the administrative action or decision is not rationally connected to–
i.
the purpose for which it was taken;
ii.
the purpose of the empowering provision;
iii.
the information before the administrator; or
iv.
the reasons given for it by the administrator;
j.
there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;
k.
the administrative action or decision is unreasonable;
l.
the administrative action or decision is not proportionate to the interests or rights affected;
m.
the administrative action or decision violates the legitimate expectations of the person to whom it relates;
n.
the administrative action or decision is unfair; or
o.
the administrative action or decision is taken or made in abuse of power.
74.
It is our considered opinion that the framers of the Constitution when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer-employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi- judicial functions. We further take the view, that this approach is consistent with realizing the right of access to justice because justice can be obtained in other places besides a courtroom.
75.
In order for the court to get through this extensive examination ofsection 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & another v Lucy Muthoni Njora, Civil Appeal 486 of 2019; [2021] eKLR there is nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against article 259 of the Constitution which requires us to interpret it in a manner that inter alia advances the rule of law, permits the development of the law and contributes to good governance.
76.
Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
77.
For the avoidance of doubt, we see no reason to depart from our findings in SGS Kenya Limited v Energy Regulatory Commission & 2 others [supra] and John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [supra].
ii. Whether the Court of appeal erred in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.
78.
The appellants' grievances are distinctively similar. They both contended that the charges preferred against them were non-existent and that the DPP failed to holistically interpret and understand the Public Procurement and Disposal Act (2005) and the Public Procurement and Disposal Regulation 2006. They also argued that the DPP’s prosecutorial discretion is not absolute, but rather it is limited by article 157(11) of the Constitution which specifies the mandatory considerations that underlie the exercise of its discretion. The Appellants particularly fault the Court of Appeal’s finding that the High Court only needed to have a bare reading of the charge sheet without analysing the factual foundation presented before him.
79.
The learned judge in his Judgement in Misc Civil Application No 502 of 2015 and Miscellaneous Civil Application No 198 of 2016 found that the charges facing the appellants were untenable. The learned Judge held that the DPP owes the court a duty of placing before it material upon which the court can feel that the DPP justified in mounting the prosecution; that based on the admitted factual scenario the charges leveled against the appellants were far- fetched it would not be permissible for the court to permit the Appellants face the charges simply because they would have had an opportunity of defending themselves.
80.
The Court of Appeal in finding that the learned Judge misdirected himself in arriving at the decisions to issue the orders of certiorari and prohibition held that the trial court must be accorded an opportunity to thoroughly interrogate the material before it through viva voce evidence and through cross-examination of witnesses so as to determine issues such as which procurement laws, as argued by the parties, supersede the other; the interpretation and consequence of the phrase ‘market price’ where the Market Price Index does not provide for specific goods or services; and on the general and specific obligations of the tendering committee but in relation to Tender No Ref GDC/HSQ/086/2011-12.
81.
Article 157(6) of the Constitution empowers the DPP to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. Being one of the independent Constitutional offices established, article 157(10) of the Constitution safeguards this independence by decreeing that the DPP shall not require the consent of any person or authority before commencement of proceedings, neither shall he be under the direction or control of any person. That is not to say that this power is absolute. Article 157(11) requires the DPP in exercise of his duties to have regard for public interest, interests of administration of justice and to prevent or avoid abuse of the legal process.
82.
Stemming from these provisions of the law, the courts have consistently held that whenever it seems that the DPP is utilizing criminal proceedings to abuse the court process, to settle scores or to put an accused person to great expense in a case which is clearly not otherwise prosecutable, then the court may intervene. These decisions include Commissioner of Police & the Director of Criminal Investigation Department & another v. Kenya Commercial Bank Ltd & 4 others, Civil Appeal No 56 of 2012 2013] eKLR by the Court of Appeal. It also includes the case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others, SC Petition No 38 of 2019; (2021) eKLR where this court held that although the DPP is not bound by any direction, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of article 157(11) have not been met, then the High Court under article 165(3)(d)(ii) can properly interrogate any question arising and make appropriate orders. The court found the following guidelines read alongside article 157(11) of the Constitution to be a good gauge in the interrogation of alleged abuse of prosecutorial powers:
i.
Where institution/continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
ii.
Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings, eg. want of sanction;
iii.
Where the allegations in the First Information Report or the complaint take at their face value and accepted in their entirety, do not constitute the offence alleged; or
iv.
Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
83.
We are also minded of this court’s decision in Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others, SC Petition No 42 of 2019; (2021) eKLR where the court upheld the High Court’s position to the effect that in matters involving exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised. Further that the only exception where a court can compel a public agency to implement a recommendation is where “there is gross abuse of discretion, manifest injustice or palpable excess of authority” equivalent to denial of a settled right which the petitioner is entitled, and there is no other plain, speedy and accurate remedy.
84.
The following facts of the present Appeals are not contested. The appellants charges are hinged on their conduct in their capacity as members of the GDC Tender Committee for the acquisition of rig moves in tender No Ref GDC/HQS/086/2011-2012. More specifically the difference in the procurement of the rig-move services for the year 2011/2012 at a cost of Kshs 42,746,000/= from BCFCL while the previous year the same services were tendered at a cost of Kshs 19,550,000/= to the same company, BCFCL, at a cost of per rig move. It is also not controverted that the price was considered higher than comparable similar rig move services by the same provider, BCFCL, by other government institutions more specifically KenGen for rig move services at Olkaria and Eburru Geothermal fields vide tender no. KGN-OLK-179-2012 resulted in an agreement dated 5th February 2014 at a cost ranging between Kshs 13,565,040 and Kshs 24,429,600.
85.
Due to this, DPP on the recommendation of EACC, elected to charge the appellants with various offences including wilful failure to comply with the law relating to procurement contrary tosection 45(2)(b) as read withsection 48 of the Anti-Corruption and Economic Crimes Act No 3 of 2003 and Inappropriate influence on evaluation contrary to section 38(1)(b) as read with 38(2)(a) of Public Procurement and Disposal Act and Abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act No 3 of 2003.
86.
The 1st appellant’s defence against the charges preferred against her in count III and IV consists of contentions that she merely witnessed the signature of the accounting officer on whom section 27(3) of the Public Procurement and disposal Act 2005 and regulation 7(c) of the Public Procurement and Regulations 2006 places the duty to sign the contract.
87.
The 2nd to 8th appellants contend that count II was premised on a non- existent law. It is a well-known tenet of the Constitution pursuant to article 50 (2)(n) of the Constitution, that a person cannot be convicted of an offence unless it is an offence in Kenya. However, that is not the case here. For clarity, their contention is not that the offence does not exist in statute, but rather it is an issue of interpretation. They argue that the respondents wrongly interpreted the provisions related to an open tender specifically section 30(3) of the Public Procurement and Disposal Act and regulation 10(2)(e) which they submit would not apply to an open tender. That from a reading of section 52(3)(i) of the Public Procurement and Disposal Act, 2005 (repealed) the tender set out the procedures and the evaluation criteria. They also argue that by section 66(2) of the Act the evaluation and comparison shall be done using the procedures and criteria set out in the tender document and no other criteria shall be used. They submit that the rig-moving services are not standard services and works within the known market prices. It was not a function of the Tender Committee to make comparisons for a service not contemplated by section 30(3) of the Public Procurement and Disposal Act 2005 (repealed). It is on this ambit that they submitted that Count I was premised on a non-existent law.
88.
It is our considered opinion that these are not issues concerning the propriety or otherwise of the decision by the DPP to charge them. These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction. InHussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR this court held that it was not for the High Court as a constitutional court to go through the merits and demerits of the case as that is the duty of the trial court. Similarly, and as we have held hereinabove, it not for the judicial review court to undertake the merits and demerits of a matter based on controverted evidence and contested interpretations of the law.
89.
We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court inHussein Khalid and 16 others v Attorney General & 2 others[ supra ] as follows;
“
[105]
It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added]
90.
From the circumstances of this case, we agree with the determination of the Court of Appeal that a distinction of the applicable procurement laws and whether the appellants participated in the tender process hence liable to prosecution is a determination best arrived at upon consideration of viva voce evidence and through cross examination of witnesses. We therefore come to the conclusion that the Court of Appeal did not err in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.
iii. Whether the DPP violated the Appellant’s rights and fundamental freedoms under Articles 10, 25(c), 27, 28, 29, 41 and 50 of the Constitution in preferring the charges contested by the Appellant.
91.
Article 10 of the Constitution relates to national values and principles. article 27 is on equality and freedom from discrimination. Article 25(c) and 50 related to the right to fair trial, article 29 is on freedom and security of the person while article 41 relates to labour relations. The appellants submit that a criminal trial premised on unfair and questionable partisan investigations or a decision to charge arrived at unfairly and without any reasonable basis would open a door to an unfair trial.
92.
The right to fair hearing is broad and includes the concept of the right to fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. See; Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR, Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition 7 of 2018 consolidated with Petition 9 of 2018; [2018] eKLR; John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others, SC Petition 17 of 2015; [supra].
93.
As we have found hereinabove, judicial review looks at the decision-making process. The court in judicial review cannot adequately canvass issues of controverted facts and whether those facts satisfy the ingredients of offences under which the accused are charged. More so, before a trial has taken off. As we stated in the case ofHussein Khalid and 16 others v Attorney General & 2 others[supra] theappellants put the wagon before the horse by asserting that their right to a fair trial was violated at the time of their arraignment in court. By refusing to submit to the jurisdiction of the trial court where their innocence may be upheld or their guilt established, the appellants removed themselves from the protections of article 50(1). Whatever the case, the criminal justice system is required to protect against the abuses claimed by the appellants, which the trial court is competent to resolve when challenged by an accused person, properly, during the trial.
94.
This court having already demonstrated that there was nothing untoward in relation to the charges levelled against the appellants; the allegations of malice and discrimination having not being properly canvassed/demonstrated by the appellant, it follows that the claim for constitutional rights violations equally falls by the wayside. It is our considered opinion that it would be pragmatic that the appellants let the trial commence and conclude, during which trial they may raise all the issues they have as against the law under which they are charged. If successful, it is only then that they will pursue their rights on appeal.
95.
For the foretasted reasons we find no merit in the consolidated appeals and dismiss the same.
iv. Who shall bear the costs of the appeal?
96.
This court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, made the following determination on the award of costs;
“
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 added]
97.
We have taken into account the industry of the parties, the purpose and intent of the appellants and the issues canvassed in the appeal. We have also considered that the issues raised by the appellant are issues that had to be seriously interrogated by the superior courts in their interpretation. We are cognizant of the fact that, the criminal charges have been in abeyance since institution of these proceedings. It is also not lost on us that various stay orders have been issued by this court and the superior courts in relation to these proceedings.
98.
We find it just in the circumstances that each party bears its own costs.
Orders
99.
Consequent upon our conclusion above, we finally order that;
a.
The 1st appellant’s petition of appeal dated October 25, 2019 and lodged on even date and the 2nd to 8th appellants’ petition of appeal dated October 25, 2019 and lodged on October 29, 2019 are hereby dismissed.
b.
Anti-Corruption Case No 20 of 2015 before the Chief Magistrates’ Court in Milimani to proceed and be heard on priority basis.
c.
Each party to bear its own costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/6/eng@2023-01-27 |
Petition 26 of 2019 | Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (27 January 2023) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, W Ouko | 27 January 2023 | 2,023 | Nairobi | Civil | Wamwere & 5 others v Attorney General | [2023] KESC 3 (KLR) | null | Brief facts
On February 28, 1992, a group of women, mostly relatives of political prisoners, gathered at Uhuru Park to participate in a hunger strike, demanding the release of those imprisoned for politically instigated offences. The appellants claimed they were among the demonstrators and alleged that on March 3, 1992, they were violently attacked by over 100 police and GSU officers. They continued their protest at All Saints Cathedral Church until January 19, 1993, when the last political prisoners were released. The appellants further alleged that between March 4, 1992, and January 19, 1993, they faced repeated assaults by police. The 1st appellant claimed that police had previously destroyed three of her houses between 1986 and 1988, with one parcel of land being re-allocated to a senior government official. They did not seek judicial redress at the time due to a lack of confidence in the judiciary but, following the 2010 Constitution, they filed petitions in the High Court, asserting that their rights to freedom from torture, arbitrary deprivation of liberty, and protection from violence were violated by police and GSU officers.
The High Court found that the appellants had not given any reasonable explanation or justification for the delay in filing their petitions and that they had not established their allegations of torture; and more so, since there were no medical records or treatment notes to substantiate their claim of being tortured over a long period. The court also held that the 1st appellant had not proved ownership of the properties she claimed had been demolished. Aggrieved, the appellants filed appeals in the Court of Appeal. The Court of Appeal dismissed the appeals and held that the appellants had not adduced any tangible evidence to support the allegations of torture or violation of the 1st appellant’s right to property. Further aggrieved the appellants filed the instant consolidated appeals. | D. Analysis
35.
It is well settled that the mere invocation by a party that an appeal to this court is premised on article 163(4)(a) of the Constitution does not automatically clothe the court with jurisdiction to entertain the same. A litigant must demonstrate how such an appeal involves interpretation and application of the Constitution; and that the issue(s) relating to the interpretation and application was subject of adjudication before the superior courts below. At the very least, where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, a litigant must demonstrate that the Court of Appeal’s reasoning and the conclusion(s) which led to the determination of the issue in dispute took a trajectory of constitutional interpretation and application. See Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, SC Petition No 2 of 2014; [2014] eKLR. Having appraised ourselves of the matter at hand, we are satisfied that the consolidated appeal does involve matters of constitutional interpretation and application. In other words, the consolidated appeal, as we stated in the opening paragraph, revolves around the interpretation and application of the bill of rights.
36.
Upon deliberation on the consolidated appeal, it is our view, that its determination will turn on four issues namely:
i.
Whether there is limitation of time in filing claims for human rights violation.
ii.
Whether there was unexplained inordinate delay by the appellants in filing their petitions in the High Court.
iii.
Whether the appellants proved on a balance of probabilities that their fundamental rights and freedoms were violated.
iv.
If the answer to (iii) is in the affirmative, what is the appropriate remedy in the circumstances of the consolidated appeal?
We now turn to the determination of these issues.
i. Whether there is limitation of time for filing claims of human rights violations.
37.
Perhaps, the starting point under this issue should be a consideration of whether the two superior courts below in their impugned decisions imposed limitation of time as alleged by the appellants. Having perused the decisions in question, we are satisfied that the two courts did not impose the limitation alluded to. In point of fact, the two superior courts affirmed the position that the Limitation of Actions Act, cap 22 Laws of Kenya does not apply to causes founded on violation of rights and freedoms. We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case by case basis.
38.
Nonetheless, it is well settled that a court is entitled to consider whether there has been inordinate delay in lodging a claim of violation of rights. See the persuasive decision of the Court of Appeal Safepak Limited v Henry Wambega & 11 others, Civil Appeal No 8 of 2019; [2019] eKLR. It is on that basis that the two superior courts held that claims of violation of human rights must be filed in court within reasonable time. Where there is delay, a petitioner ought to explain the reasons for the delay to the satisfaction of the court. This takes us to the consideration of the next issue.
ii. Whether there was unexplained inordinate delay by the appellants in filing their petitions in the High Court
39.
The appellants’ urged that their claims related to questions of ‘transitional justice’; and as such, the two superior courts should have found there was no unexplained delay in filing the petitions. The appellants were also troubled with what they perceived as an unequal protection and benefit of the law given that the High Court had adjudicated petitions by other similarly situate persons without raising concerns over undue delay in lodging the said petitions. Crucial to the determination of the framed issue, the appellants’ explanation for the delay before the two superior courts was that they lacked confidence in what they referred to as the ‘old judiciary’ under the previous constitutional dispensation. The appellants also proffered an additional explanation of impecuniosity for the first time in this court.
40.
The determination of this issue demands that we interrogate whether the subject claims are in the nature of “transitional justice” claims. Therefore, the appropriate starting point is to understand what is meant by transitional justice. The idea of transitional justice has been described in Jeremy Webber, ‘Forms of Transitional Justice’ (2012) 51 Nomos 98 thus:
“
Transitional justice is about situations in which a society is moving from a state of injustice to justice, from oppressive government to government that respects the rule of law, from authoritarianism to democracy.”
41.
Similarly, Colleen Murphy in ‘The Conceptual Foundations of Transitional Justice’ (Cambridge University Press, 2017) at page 1 notes as follows:
“
The term transitional justice is generally taken to refer to formal attempts by post-repressive or post-conflict societies to address past wrongdoing in their efforts to democratize.”
42.
What emerges from the foregoing is that the idea of transitional justice connotes the broad range of mechanisms, means or mode through which a society confronts the wrongdoings from its past. Its objective being to obtain truth and justice regarding the past so as to ensure promotion and protection of the rule of law and durable peace going into the future.
43.
The need to confront and silence the ghosts of past wrongs or historical injustices is relevant in the Kenyan context. This is in light of Kenya’s history which is littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post- independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period. In this regard, an official report of the Government of the Republic of Kenya, Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Government printer, 2003) at page 19 records as follows:
“
The political history and governance of the Kenyan state is a catalogue of gross human rights violations, the arrogance of power, and the commission of mind-boggling economic crimes. Constitutionalism and the rule of law, which are the central features of any political democracy that respects human rights, have been absent in Kenya’s history… Since its creation by the British in 1895, the Kenyan state has largely been a predatory and illiberal instrumentality, an ogre defined by its proclivity for the commission of gross and massive human rights violations. Little need be said of the colonial state, which was specifically organized for the purposes of political repression to facilitate economic exploitation… The post- colonial state has engaged in the most abominable human rights violations and economic crimes known to humanity. Not even the re-introduction of multi-partyism in 1991, and the two general elections in 1992 and 1997, the first of their kind in decades, brought relief from state-directed human rights violations and the wanton and shameless theft of public coffers and property, evils that became the trademark of the Kenya government.”
The report lists the incidences of gross abuse of human rights in the pre-2003 period to include torture, detention, and persecution of the critics of the government of the day, amongst others.
44.
The golden thread that connects the appellants’ claims of violation of their rights is that they are alleged to have taken place during a period which has been recognized as repressive. In that, during the period in question the state grossly abused the rights and freedoms of the critics of the government of the day. By their nature, these claims are founded on alleged past wrongs that call upon the law and courts to provide a transformative response. We therefore have no hesitation in finding that the appellants’ claims qualify as falling within the category of transitional justice claims.
45.
What then is the implication of transitional justice claims on the question of the delay of over twenty (20) years in filing the claims in court? We have taken note of the fact that the Court of Appeal endorsed the High Court’s view that the appellants had not offered a reasonable explanation for the delay in filing their claims in court.
46.
In considering whether the delay of twenty (20) years was inordinate, we are of the considered opinion that transitional justice claims are context sensitive. It follows that courts ought to be particularly sensitive to the reasons adduced for the delay. At the same time, courts should balance the reasons for delay with the likely prejudice a respondent may face in defending the claim in line with the right to fair trial. Such an approach emerges from the comparative lesson as can be gleaned from jurisprudence from Kenya’s superior courts and other jurisdictions.
47.
In Mutua & others v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB), a group of elderly Kenyan victims of human rights abuses, including torture, inflicted by colonial administration on prisoners in Kenya between 1952 and 1960 filed a case before the High Court of Justice, Queen’s Bench Division on June 23, 2009. The United Kingdom’s government in objecting to the competency of the suit argued that the survivors’ claims were time-barred under English law, and thus should be struck out. The other issues raised were whether a fair trial was still possible notwithstanding the unavailability of material witnesses; and whether there were compelling reasons for the court to exercise its discretion by allowing the claims to proceed for hearing and determination. In dismissing the objection to the suit, Justice McCombe held that the “public interest in the claims being tried out” and “what is fair” in the circumstances of the case are relevant considerations in the exercise of the court’s discretion as to whether the subject claim should be heard on its merit. The court found that the claimants had established a proper case for the exercise of its discretion in their favour.
48.
In another English decision, arising from allegations of historic sexual abuse perpetrated upon children in an institutional setting, the House of Lords in A v Hoare [2008] 1 AC 844, observed that the court ought to take into account the fact that the alleged abuse might have contributed to the delay in pursuing justice. In particular, Baroness Hale of Richmond noted at para 60 of the judgment that:
“
Then the injustice to a claimant who may be deprived of his claim, perhaps as a result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event when important evidence may no longer be obtainable. I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffmann. The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.” [Emphasis added]
49.
With respect to the consolidated appeal, the decisions of the two superior courts largely turned on the failure by the appellants to file their claims immediately after two critical transitional moments in Kenya’s recent democratization history. This being after the 2002 transition when President Moi left office or immediately after the 2010 transition to a new constitutional dispensation. The two superior courts observed that as a matter of fact many other similarly situate victims of past abuses filed their claims in court immediately after these transitional moments. This leads us to pose the question; given the nature of transitional justice claims, was it fatal for the appellants to have filed their claims in 2013?
50.
It has been recognized that transitional moments can be long-drawn and there are no clear-cut dates when a transition can be said to have run its full course. Especially, taking into account the tendency for re-irruptions in the form of renewed quests for justice. This is poignantly brought out in Cath Collins, ‘Post-Transitional Justice: Human Rights Trials in Chile and El Salvador’, (The Pennsylvania State University Press, 2010) at pages 21 and 22 as follows:
“
… the persistence of the justice question into the post- transitional period, or periodic “re-irruptions” of it in the form of renewed accountability pressure, can be viewed as positive signs of democratic institutional health rather than as crises or breakdowns of transition. It is not only conceivable but logical to expect that private actors and even future democratic governments might pursue accountability more vigorously than transitional administrations … certain dimensions of post-transition polities can be expected to particularly affect the emergence of post-transitional justice activity. One is the quality and depth of subsequent democratization, particularly progress toward rule of law. The health and vigor of civil society organization in general and its ability to access the justice system, in particular, will also be relevant… The passage of time is a factor that can have varied and sometimes counter-intuitive effects. It may seem set to eventually consign the memory of victims and the concerns of survivors to irrelevance or even oblivion, but a look at the currently observable cases of post- transitional justice change suggests that other outcomes are also possible. The passage of time can serve to make the addressing of accountability more possible, perhaps less politically costly, even as it sometimes reduces both the personal (victim/survivor) and institutional (social) benefits.” [Emphasis added]
51.
What we deduce from the above is that late or recurring pursuit for justice are a distinctive motif of the quest for justice in transitional contexts. In other words, renewed or late quest for accountability and justice after the initial burst of efforts for justice is a phenomenon that is inherent in transitions. It follows that the persistence of the appellants and other litigants to get justice after other claimants had lodged similar claims is not something that is unique to the appellants herein as it is a universal phenomenon that is evident in the quest for transitional justice and accountability.
52.
The appellants claim that they did not have faith in the pre-2010 judiciary, ought to be interrogated from the overarching context of the transition from the repressive to the post-2010 era. It is important to take into account the fact that courts during the repressive era were generally notorious for their abject failure to provide protection to victims of human rights violations. Though the process of judicial reforms and making the Kenyan state human rights friendly began in 2003, this process was not concluded until the constitutional reforms in 2010. This included the process of vetting of Judges and Magistrates which was a transitional justice mechanism to make the Judiciary fit as a custodian of the rule of law, democracy and human rights. Indeed, this partly explains why the clamour for judicial reforms was part of the larger constitutional reform package.
53.
An additional factor to take into account is the fact that the Constitution explicitly envisages redress for historical injustices that occurred during the repressive era. For instance, article 67(2)(e) vests the National Land Commission with functions that include
“
to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress”.
Section 15 of the National Land Commission Act No 5 of 2012, as amended vide the Land Laws (amendment) Act No 28 of 2016, operationalized the above constitutional directive for redress for historical land injustices. It gave the National Land Commission the mandate to admit, investigate and recommend appropriate redress for historical land injustice complaints received within a five-year timeline/period. In light of the dictate of article 27(1) of the Constitution on equal protection and equal benefit of the law, we are inclined to the view that all victims of historical injustices must be treated equally and afforded an equal opportunity for redress. This chimes with the demands for harmonious interpretation of the Constitution as already endorsed by this court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC Appl No 4 of 2012; [2013] eKLR where we held at para 33 that:
“
... One of the fundamental rights under the Constitution is access to justice for all, and non-discrimination. Consequently, all litigants are to be accorded equal right of access to the court.”
54.
In that regard, Lenaola, J, as he then was, held the following persuasive view in Gerald Juma Gichohi & 9 others v Attorney General, HC Petition 587 of 2012; [2015] eKLR at paras 94-95:
“
The history of this country would lead a reasonable man to state that it was almost impossible a few years ago to sue the regime and get away with it especially on matters of human rights. In that regard, the recent public apology by President Uhuru Kenyatta for violations of human rights by past regimes is an affirmation of that fact. In the same breath, it was also the petitioners’ claim that the Judiciary has affirmed that it is vindicating past violations of fundamental rights and freedoms in order to secure the country’s future…
[It] is true that the State today in a reconfigured Kenya, cannot shut its eyes from the failings of the past neither can it claim innocence for the excess of past regimes. It must pay, the price for its historical faults and I must also agree with the petitioners submission that the instant petition should be approached in the context of transitional injustices especially now that there is a new dispensation under the Constitution 2010. Time is ripe for addressing past injustices that included gross violations of fundamental rights and freedoms as witnessed in the past and the citizenry must not fault the courts for doing justice, albeit belatedly because delayed justice is indeed justice denied.”
55.
Based on the context of Kenya’s democratic transition, we find, unlike the two superior courts below, that the appellants’ explanation for the delay to the extent that it was attributed to lack of faith in the pre-2010 judiciary plausible. This is because the 2010 transition required the Kenyan state and society to undertake a great transformation, involving the creation of new institutions and anchoring them in a new set of values and principles, which were in total contrast to those that so far had prevailed. The scope of this transformation, including with respect to institutional reforms, was arguably deepened due to the fact that the earlier transition in 2002 to a new government was largely seen as not ‘deep and far reaching’ enough. Indeed, with respect to the Judiciary, the institution had to undergo a transitional justice process in the form of the vetting of Judges and Magistrates, to restore public confidence in its ability to act as a custodian of the rule of law and human rights. Therefore, the appellants’ contention that they had no faith in the pre-2010 judiciary to render justice regarding alleged violation of rights attributed to the state cannot be faulted in light of this history. As for the additional explanation of impecuniosity, we are unable to entertain the same since it was raised for the first time before this court and the superior courts below did not have an opportunity to address their minds on the same.
56.
In our view, there is also a public interest element in allowing victims of alleged past gross human rights violations to access courts; that is, serving justice is the most effective insurance against future repression. To us, a judicial trial serves to send strong expression of formal disapproval of gross abuse of human rights. It also functions to re-commit state institutions and persuade the general citizenry of the importance of human rights in a polity. On the other hand, failure to ensure access to justice could send the wrong signal that judicial imprimatur has been given to these historical wrongs. Such a stance will encourage not deter potential violators of rights. It would also send the signal to the public that they can be complicit in violation of rights without consequences attaching to the perpetration of such atrocities. This is informed by the reality that failure of enforcement of freedoms and rights vitiates their authority, sapping their power to deter proscribed conduct.
57.
We find support for the above approach in the persuasive jurisprudence by the Inter-American Court of Human Rights in the case of Barrios Altos v Peru, Merits, Judgment, Inter-Am Ct HR (ser C) No 75, (Mar 14, 2001). The case was about the infamous Barrios Altos massacre of fifteen civilians during one single incident by members of the Peruvian army; and the subsequent attempt by the Fujimori regime to enact amnesty laws to shield the perpetrators from prosecution. In emphasizing the need to allow victims of gross human rights abuses to access justice, the Inter-American Court of Human Rights held that all amnesty laws and provisions designed to prevent the identification, investigation, and punishment for human rights abuses violate non-derogable human rights. This is because they obstruct victims’ access to justice, prevent victims from knowing the truth, and block victims’ access to adequate reparations.
58.
Before concluding on this issue, we must also address another limb of argument by the appellants relating to unequal protection and benefit of the law. Their claim is to the effect that other similarly situate claimants who filed their claims after more than twenty (20) years were granted their day in court. In particular, they made reference to Milka Wanjiku Kinuthia & 2 others v Attorney General (supra), Irene Wangari Gacheru & 6 others v Attorney General (supra) and Kennedy Kinuthia & 3 others v Attorney General (supra) relating to the freedom corner incident.
59.
Save for Milka Wanjiku Kinuthia & 2 others v Attorney General (supra), in the other two cases, the Attorney General, who was the respondent therein, urged that there had been inordinate delay in lodging the same. Both cases had been filed 22 years after the alleged violation. Our reading of the High Court’s decisions reveals that the court was alive to the fact that there is no time limitation for filing claims for violation of human rights. Nevertheless, the High Court in the said cases appreciated that it was required to look into whether there was unreasonable delay in lodging the cases in question. Equally, the High Court properly addressed its mind by holding that whether or not there is inordinate delay is dependent on considerations such as, the explanation proffered and whether justice will be served in entertaining such a claim. In both cases, the High Court was convinced with the explanation advanced and took into account the dictates of transitional justice in finding that there wasn’t inordinate delay in lodging the same.
60.
The position taken by the High Court in the above-mentioned cases is what has generally been adopted by the courts of this country and which we approve as the correct position in law. It follows therefore that whether a claim for violation of rights has been instituted within a reasonable time is to be determination based on the peculiar circumstances of each case.
61.
In the end, we find that the delay in filing the appellants’ claims was understandable given the circumstances of the matter as discussed above.
iii. Whether the appellants proved on a balance of probabilities that their fundamental rights and freedoms were violated.
62.
The issue as framed gives rise to a number of sub-issues, being:
a.
Which Constitution is applicable to the circumstances of the consolidated appeal?
b.
Whether violation of the 1st appellant’s right not to be arbitrary deprived of property was proved.
c.
Whether violation of the appellants’ rights and freedom from torture, and inhuman and degrading treatment was proved.
a. Which Constitution is applicable to the circumstances of the consolidated appeal?
63.
It is noteworthy that the appellants in contending violation of their fundamental rights and freedoms cited both the current and repealed Constitution. In particular, they urged violation of their rights and freedom not to be subjected to torture, inhuman and degrading treatment, and arbitrary deprivation of property under articles 25(a), 29(a), (c), (d), (f), 40(1)(a) and (b); and that the said rights were also protected under sections 74 and 75 of the repealed Constitution. Equally, it is important to point out that the allegations in the consolidated appeal relate to events that are said to have occurred in 1986, 1987, 1988 with regard to the 1st appellant; and between March 3, 1992, and January 19, 1993 with regard to all the appellants.
64.
Constitutions, like other legal instruments, are generally prospective in application unless there is a clear textual marker indicating that retrospective application of a provision is contemplated. See Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, SC Appl No 2 of 2011; [2012] eKLR. Consequently, since the events in issue are alleged to have taken place before the current Constitution came into force, we find that it is the repealed Constitution which is applicable. Moreover, the rights and freedoms alleged to have been infringed are protected in both the repealed and current Constitution albeit with some minor variations in formulation. It follows that we will proceed to determine the question as to whether the appellants proved violation of their fundamental rights and freedoms to the requisite standard based on the repealed Constitution.
b. Whether violation of the 1st appellant’s right not to be arbitrary deprived of property was proved
65.
Section 75 of the repealed Constitution provided protection from deprivation of property except where stipulated conditions for compulsory acquisition were satisfied. This constitutional provision embodied the fundamental principle that a person’s property could not be expropriated or taken away arbitrarily. In addition, as we held in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae), SC Petition No 3 of 2018; [2021] KESC 34 (KLR) the right to property also extends to protection of the structures erected in land regardless of the ownership status of the land.
66.
The two superior courts below were of the unanimous view that a petitioner bears the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which is on a balance of probabilities. We affirm this juridical standpoint bearing in mind that such claims are by nature civil causes. See Deynes Muriithi & 4 others v Law Society of Kenya & another, SC Application No 12 of 2015; [2016] eKLR.
67.
In this case, the onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties; and secondly, that state agents interfered or deprived her of the subject properties. This, as was aptly appreciated by the superior courts, is the import of section 107 of the Evidence Act on the burden of proof. The provision stipulates:
107.
(1)
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2)
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
In addition, section 109 of the Evidence Act elaborates on the onus of proof by stipulating that:
“
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
68.
Unfortunately, aside from bare allegations, the 1st appellant did not adduce even an iota of evidence to back her claims. We particularly agree with the observation by the High Court that this limb of the 1st appellant’s claim was pursued in a context of an “evidential vacuum”. The trial court aptly observed thus:
“
Regarding the allegation that various parcels of land belonging to the petitioner were taken by the state, no evidence was produced pertaining to her ownership of the said parcels of land. In fact, nothing was placed before this court to indicate that she indeed owned or had claim to the alleged parcels of land. How then can … the petition be interrogated in such a [sic] evidential vacuum.”
69.
It is also imperative to take note of the fact that even in situations where a respondent does not file or tender evidence to counter the petitioner’s case, the petitioner still bears the burden of establishing his/her allegations on a balance of probabilities. As to whether such standard is met will depend on whether a court based on the evidence is satisfied that it is more probable that the allegation(s) in issue occurred. See Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others, SC Petition No 12 of 2019; [2020] eKLR.
70.
All in all, the 1st appellant’s evidence or lack of it, for that matter, could not be the basis of a finding that it was more probable than not that her right not to be deprived of property was infringed. To put it differently, in the words of Lord Denning J in Miller v Minister of Pensions [1947] 2 All ER 372 –
“
Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, … the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
We therefore see no reason to interfere with the superior courts’ findings on this issue.
c. Whether violation of the appellants’ rights and freedom from torture, and inhuman and degrading treatment was proved
71.
On this issue, we begin our consideration from the premise of uncontested historical facts. On February 28, 1992 mothers of political prisoners, who had been detained by the then regime, together with their supporters convened at freedom corner. They went on a hunger strike protesting the incarceration and seeking the release of the political prisoners. It is common ground that on March 3, 1992 police officers stormed freedom corner and dispersed the demonstrators. This incident drew widespread press coverage nationally and internationally as well as condemnation across the globe. It is a matter that we can comfortably take judicial notice of as a matter of general notoriety.
72.
For instance, the distinguished historian, Prof Tabitha Kanogo of the Department of History of the University of California Berkeley, in her book ‘Wangari Maathai’, (Ohio University Press, 2020) at pages 128 – 135 captures the material events at freedom corner elaborately. We quote her at length:
“
Maathai adopted novel methods to deal with the concerns raised by the mothers of political prisoners. Significantly, a segment of Uhuru Park dubbed “freedom corner”
became the site for anti-government rallies demanding the release of the fifty-two detainees and imprisoned political dissenters. The struggle lasted for close to one year, from February 28, 1992, to early 1993. Maathai’s ideas and strategies for moving forward included the use of a hunger strike …
The hunger strikers drew large crowds of supporters but did not change official thinking. On the fourth day of the strike, March 3, 1992, the government moved to break the strike, unleashing a violent assault on the strikers and their supporters …
Smoked out of the freedom corner, the protestors moved to the basement of a church adjacent to Uhuru Park the All Saints Cathedral of the Anglican Church of Kenya where they remained holed up and were joined by many supporters from all walks of life, ...”
See also Daniel Branch, Kenya: Between Hope and Despair, 1963- 2011 (Yale University Press, 2011) at page 189.
73.
In taking the above approach, we are fortified by the provisions of sections 59 and 60 of the Evidence Act which stipulate circumstances in which courts can take judicial notice of facts requiring no proof. Section 60(1)(o) of the Evidence Act stipulates that:
“
The courts shall take judicial notice of the following facts–
…
(o)
all matters of general or local notoriety.”
[Emphasis added]
Section 60(2) of the Evidence Act proceeds to stipulate that:
“
In all cases within subsection (1) of this section, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.”
74.
Further, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Petition 23 of 2014; [2015] eKLR this Court observed at paras. 71-75:
“
The Oxford Dictionary of Law (Ed Jonathan Law and Elizabeth A Martin), 7th Ed (Oxford University Press, 2009) (at page 306) thus defines “judicial notice”:
‘The means by which the court may take as proven certain facts without hearing evidence. Notorious facts…may be judicially noticed without inquiry.’
Judicial notice is important to the effective discharge of the judicial mandate, as contemplated by the Constitution of Kenya, 2010. Vindication of this perception is crystal-clear, from the case-law experience worldwide.
In Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191 at p 210, Lord Sumner in the English House of Lords thus observed:
“
Judicial notice refers to facts which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer."
…
There are many cases in which judicial notice has commended itself to Kenya’s courts. Here is a typical example. In Republic v Simon Wambugu Kimani & 20 others, HC Criminal Revision No [2015] eKLR, the learned Judge observed:
“
In my view, the court was fully entitled to take judicial notice of notorious prevailing facts in the public domain, even where the same were not formally brought to the attention of the court by either the prosecution or the defence.”
75.
Based on the foregoing historical accounts, there is no doubt that the freedom corner incident took place. A fact which in no way was disputed by the two superior courts. Nonetheless, the burden of proof still lay with the appellants to prove on a balance of probabilities that they were not only at freedom corner but were also subjected to torture, inhuman and degrading treatment during the demonstrations.
76.
Looking at the evidence before the trial court, the record shows that the 1st appellant adopted her affidavit as her evidence in chief. During cross- examination by learned counsel, Mr Moimbo, she maintained that she was at freedom corner on the material day. It is noteworthy that the Attorney General closed his case without calling any witness. Indeed, the trial court in its judgment found that “there is no doubt from the evidence before me that she was at freedom corner on that day”.
77.
Similarly, the 2nd, 3rd and 4th appellants adopted the contents of their affidavits as their evidence in chief. What stands out from their cross- examination is that it focused on three concerns: whether they had permission to hold the subject protest/assembly; whether they had records of their arrest; and whether they had medical records for their alleged injuries. In all these areas of focus, the appellants conceded that they did not have permission to hold the subject meeting; they did not have records of their arrest (the 2nd appellant indicated that she was not arrested); and they did not have medical records proving the injuries they allegedly sustained. Yet again, the Attorney General did not call any witness and proceeded to close his case.
78.
Lastly, the 5th and 6th appellants on cross-examination by learned counsel, Mr Obura, were adamant that they participated in the demonstrations at freedom corner. Despite alleging, they had suffered injuries they conceded that they did not have any medical documents to that effect. Like in the other matters, the Attorney General did not call any witness.
79.
Having painstakingly gone through the record of the proceedings before the trial court, we note that the appellants’ evidence of having been at freedom corner was not displaced during cross-examination. In addition, the Attorney General did not call any witness(es) to challenge the evidence of their participation in the subject protest/assembly. Consequently, weighing the evidence adduced before the trial court, we come to the conclusion that the appellants’ proved their participation in the subject protest/assembly at freedom corner to the requisite standard. See Miller v Minister of Pensions (supra)
80.
Section 74(1) of the repealed Constitution provided as follows:
“
No person shall be subject to torture or to inhuman or degrading punishment or other treatment.”
As a starting point, the court has to interrogate the normative content and the obligation that the provision imposed on duty bearers. This entails construing the meaning of the concepts of “torture” and “inhuman or degrading punishment or other treatment”.
81.
It has been the position of this court that we should strive to interpret and develop constitutional concepts from an indigenous prism based on our country’s historical experience. However, sight cannot be lost of the fact that we are interpreting prohibitions recognized in international human rights law and other comparable constitutions. Therefore, we can draw valuable insight from their interpretation in the body of international human rights law and comparative jurisprudence.
82.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), offers the following authoritative definition of the concept of “torture” at article 1(1):
“
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Therefore, the ‘essential elements’ of what constitutes torture as can be identified from article 1 of “CAT” include: a) the infliction of severe mental or physical pain or suffering; and b) for a specific purpose, such as gaining information, punishment or intimidation.
83.
Likewise, article 16 of “CAT” is relevant in determining the contours of ‘prohibition against inhuman or degrading punishment or other treatment’. It provides:
“
Each state party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
84.
It is evident that the exact boundaries between ‘torture’ and other forms of ‘inhuman or degrading punishment or other treatment’ are often difficult to identify; and may depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms cover mental and physical ill-treatment that has been intentionally inflicted by or with the consent or acquiescence of state authorities.
85.
The European Court of Human Rights (ECHR) has in the Ireland v United Kingdom, judgment of January 18, 1978, Ser A, No 25 held that the intensity of the pain or suffering inflicted upon the victim is the decisive criterion in distinguishing torture from cruel, inhumane, and degrading treatment. It was that court’s opinion that cruel, inhuman or degrading treatment or punishment requires a lower threshold than severe pain or suffering.
86.
We find that “inhuman or degrading punishment or treatment” refers to ill- treatment which does not have to be inflicted for a specific purpose. However, an intention to expose individuals to conditions which amount to or result in the ill- treatment has to exist. Exposing a person to conditions reasonably believed to constitute ill-treatment will entail responsibility for its infliction. Further, degrading treatment may involve less severe pain or suffering than torture; and will usually involve humiliation and debasement of the victim. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to the intentional exposure to significant mental or physical pain or suffering.
87.
Having fleshed out the normative requirements of section 74(1) of the repealed Constitution, did the appellants establish that they were subjected to either severe or significant mental or physical pain or suffering?
88.
The determination of the above question by the two superior courts below largely turned on evidential assessment. In particular, the two superior courts’ position was that the appellants neither produced any medical reports proving physical or psychological torture nor records for their arrest. Moreover, the appellants seemed to be in good health when they appeared before the High Court. In addition, the two superior courts found that the reports in the society magazine which they sought to rely on were inadmissible.
89.
On our part, we agree with the two superior courts below to the extent that there was an evidential gap which was not surmounted by the appellants regarding whether they were arrested and subjected to torture.
90.
However, taking into account the violent nature of the disruption of the subject protest/assembly, it is more likely than not that the whole episode had a psychological traumatic effect on the appellants, who we have held were at the locus in quo. Although the appellants did not exhibit any physical injuries or medical reports, we are persuaded that the whole incident had a psychological/traumatic effect on them. This in our view can be equated to inhuman treatment which was a violation section 74(1) of the repealed Constitution. This is because the respondent did not give any justifiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protests by the appellants who were harmless. To that extent and unlike the two superior courts below, we find that the appellants’ right to freedom of association and assembly was interfered with and due to the violent methods employed by the police, this amounted to a violation of their human rights which were duly protected under section 74(1) of the repealed Constitution.
iv. What is the appropriate remedy in the circumstances of the present appeal?
91.
Crafting of remedies in human rights adjudication goes beyond the realm of compensating for loss as it is principally about vindicating rights. Though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it is important for the court to vindicate and affirm the importance of the violated rights.
92.
The foregoing rational is buttressed by the reasoning of the Supreme Court of Canada in City of Vancouver v Ward [2010] 2 SCR 28. In that matter, the court held that damages may be awarded if at least one of three objects is served: individual compensation; vindication, in the sense of addressing harm to ‘society as a whole’; and deterrence, in the sense of ‘influencing government behaviour in order to secure state compliance with the charter in the future’, which would promote ‘good governance’. At para 30 the court recognized that:
“
… the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award.”
93.
In awarding damages, courts exercise a very broad, open-ended remedial discretion taking into account what is just, fair and reasonable in the circumstances of the case. In the present case, we are of the view that the damages we award should not only serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of this case. We have considered comparable awards previously awarded in the cases we cited in the opening paragraphs of this judgment involving other persons who were at the freedom corner, which awards were made several years ago ranging from Kshs 750,000 to 3,000,000. We have also taken into account the circumstances of each case bearing in mind the violations that were proven in those cases and our findings in this matter and the fact that counsel for the appellant urged us to award Kshs 3,000,000/= to each of the appellants. In our considered view, we assess damages of kenya shillings two million, five hundred thousand (Kshs 2,500,000/-) payable to each of the appellants as an appropriate remedy.
94.
Before we conclude, the appellants’ counsel alluded to the fact that the learned trial Judge exhibited bias or prejudice against the appellants. We cannot help but note that this issue was neither raised at the Court of Appeal nor did it form the grounds of appeal to this court. It was raised for the first time in counsel’s oral submissions before the court. As such, this court is devoid of jurisdiction to entertain the sameG. Orders
97.
In the premise, the consolidated appeal is allowed to the following extent:
a.
The judgments of the Court of Appeal dated June 28, 2019 and August 6, 2019 in Civil Appeal Nos 188, 189 and 190 of 2017 are hereby set aside.
b.
The judgments of the High Court dated April 15, 2018 in HC Petition Nos 196, 197 and 209 of 2013 are hereby set aside.
c.
A declaration hereby do issue that the appellants’ petitions in the High Court were lodged without inordinate delay due to the historical context under which the violations claimed occurred.
d.
A declaration hereby do issue that the appellants rights and freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya through the actions of its agents and/or servants (police officers and GSU officers).
e.
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal.
f.
The Government of Kenya shall bear the costs in the High Court, Court of Appeal and this court.
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/3/eng@2023-01-27 |
Application 7 (E013) of 2022 | Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others (Application 7 (E013) of 2022) [2023] KESC 1 (KLR) (18 January 2023) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 18 January 2023 | 2,023 | Nairobi | Civil | Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others | [2023] KESC 1 (KLR) | null | Brief facts
The 1st, 2nd, 3rd and 4th applicants filed the instant application seeking to review, vary and/or set aside the ruling and order of the court delivered on June 3, 2022 in Application No. 4(E010) of 2022; Senate of Kenya & Others v National Assembly & Others, which orders allowed an application for review and set aside the orders of stay issued by the court. The applicants argued that the court erred in allowing the respondents’ application by failing to consider the effect of the same on the legality of the Bills that the National Assembly had been given latitude to enact.
The applicants further argued that the impugned ruling had given the National Assembly latitude to pass Bills without the concurrence between the two houses, an issue that was the subject of the main petition before the court. The 1st and 2nd respondents contended that the Supreme Court Act did not make provisions for a review of a decision which was the subject of another application for review as that would amount to inviting the court to sit on appeal of its own decision. | 10.
In the circumstances, we make orders as follows:
a.
The notice of motion application dated July 1, 2022 is hereby dismissed;
b.
Each party shall bear its costs.
11.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/1/eng@2023-01-18 |
Petition 20 (E023) of 2022 | Aluochier v Independent Electoral and Boundaries Commission & 17 others (Petition 20 (E023) of 2022) [2022] KESC 77 (KLR) (20 December 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 20 December 2022 | 2,022 | Nairobi | Civil | Aluochier v Independent Electoral and Boundaries Commission & 17 others | [2022] KESC 77 (KLR) | null | Brief facts
At the High Court, the appellant’s concerns were that the 2nd to 16th respondents’ conduct, in changing their political party while still holding office as Member of County Assembly (MCA), was in violation of national values and principles of governance; that they did not satisfy the moral and ethical requirements to continue serving in the County Assembly after being cleared as independent candidates; and that they were deemed to have resigned from the sponsoring party. The appellant pleaded that the respondents were in contravention of sections 2 and 45 of the Anti-Corruption and Economic Crimes Act, section 313 of the Penal Code, and section 13(1)(b) of the Leadership and Integrity Act and therefore did not satisfy the moral and ethical requirements to continue being MCAs.
The Committee did not address itself to any of those grounds, but instead downed tools, finding that it had no jurisdiction to entertain or determine issues involving constitutional interpretation and application; that a similar question was pending determination before the High Court and was, therefore, sub judice; and that it had no criminal jurisdiction to determine the guilt or otherwise of the respondents.
Aggrieved by the Committee’s decision, the appellant sought to review it in the High Court at Kisumu by directly, without leave, lodging a notice of motion. The High Court dismissed the appellant’s application with costs to the respondents. The appellant appealed to the Court of Appeal, and it was dismissed on the same grounds as in the High Court.
Aggrieved, the appellant filed the instant appeal before the Supreme Court. The appellant contended that his application at the High Court was competent as it was anchored on inter alia articles 47 of the Constitution and on sections 7(2) and 11(2) of the Fair Administrative Action Act; and that the procedure contemplated in the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules did not apply to his application. Furthermore, he faulted the High Court for failing to pronounce itself on the conduct of the 2nd to 16th respondents, which amounted to resignation from the Assembly in accordance with Article 194(1)(e) of the Constitution. | D. Analysis and determination
25.
The 2nd, 5th, 7th, 8th, 9th, 11th, 12th, 13th, 14th and 16th respondents had prayed that the question of jurisdiction of the court to entertain this appeal be determined in limine litis without arguments on merit. Though we heard arguments on the appeal, as a matter of practice, this court before considering the merits of arguments in any appeal before it, first ascertains if it has properly been moved. This is because, as Nyarangi, JA said in his famous and time-honoured statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. If we find, as we have in previous cases that we do not have jurisdiction, we down tools at that point, save in exceptional circumstances as we shortly shall demonstrate. It is equally now firmly established that a point of jurisdiction can be raised at any time, formally by a notice of preliminary objection, grounds of opposition, viva voce during arguments or by the court suo motu because challenging the jurisdiction of a court is a threshold issue. Jurisdiction can only be conferred on a court by either the Constitution or statute. A court cannot expand its jurisdiction through judicial craft or innovation. See SK Macharia and another v Kenya Commercial Bank Ltd & 2 others, Sup Ct Civil Application No 2 of 2011; [2012] eKLR. Nor can a party confer on a court power it does not have. Similarly, parties cannot by mutual consent confer jurisdiction when there is none.
26.
By defining in specific terms the jurisdiction of the Supreme Court in article 163(4), the Constitution itself makes it clear that the court must not treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process, recalling that not every grievance from the decision of the Court of Appeal lies to the Supreme Court. An appeal from the decision of the Court of Appeal must meet the test under article 163(4)(a) and (b), upon which the court has made several decisions over the years.
27.
Whether or not the jurisdiction under article 163(4) has been properly invoked will depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed or the decisions of the superior courts below, or in some cases, all the four. This requires a party relying on article 163(4)(a), like here, to demonstrate that the grievance he has presented, concerns the application or interpretation of the Constitution. It is not the mere statement in the pleadings or submissions by a party to the effect that the appeal involves constitutional interpretation or application that clothes the court with jurisdiction.
28.
The party must identify precisely the relevant articles of the Constitution, the subject of the impugned decision and further demonstrate that the subject of the appeal was the same issue in controversy and around which both the High Court and the Court of Appeal based their respective decisions on. 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). See Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR. It must, as consequence, follow that the provisions of the Constitution cited by a party as requiring the interpretation or application by this court, must be the same provisions upon which the High Court’s decision was based, and the subsequent subject of appeal to the Court of Appeal; in other words, the article in question must have remained a central theme of constitutional controversy, in the life of the cause. See Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 32 of 2018; [2018] eKLR.
29.
Whether a matter is originated as a judicial review application or a constitutional reference, the foregoing considerations are constant and the strictures of article 163(4)(a) have to be satisfied. See Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others, SC Petition No 28 of 2014; [2015] eKLR.
30.
We have set out these principles to test the objection that we have no jurisdiction to entertain or determine this appeal.
31.
The appellant’s concerns that precipitated a complaint to the Committee was that the 2nd to 16th respondents’ conduct, in changing their political party while still holding office as MCAs, was in violation of national values and principles of governance; that they did not satisfy the moral and ethical requirements to continue serving in the Assembly after being cleared as independent candidates; and that they were deemed to have resigned from the sponsoring party. The appellant specifically cited articles 2(2), 3(1), 10, 193(1)(b) and 194(1)(e) of the Constitution as the foundation of his petition. He also pleaded that, in addition to these constitutional infractions, the respondents were in contravention of sections 2 and 45 of the Anti-Corruption and Economic Crimes Act, Section 313 of the Penal Code and section 13(1)(b) of the Leadership and Integrity Act, and therefore did not satisfy the moral and ethical requirements to continue being MCAs.
32.
The Committee did not address itself to any of these grounds, but instead downed tools, finding that it had no jurisdiction to entertain or determine issues involving constitutional interpretation and application; that a similar question was pending determination before the High Court and was therefore sub judice; and that it had no criminal jurisdiction to determine the guilt or otherwise of the respondents.
33.
Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules.
34.
The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee.
35.
On the first question, the learned judge rendered this statement;
33.
What then is the procedure for bringing Judicial Review application? The submission by Mr Aluochier that this application is under article 47 of the Constitution and therefore not subject to order 53 Civil Procedure Rules and section 8 and 9 of the Law Reform Act cannot hold water. Judicial Review is a special jurisdiction. In so far as no rules have been made under article 47 of the Constitution, there can be no vacuum in law. A party approaching court for Judicial Review orders of certiorari, mandamus and Prohibition must comply with the procedure under order 53 of the Civil Procedure Rules. He must seek the court’s leave first through a chamber summons application supported by a statement of facts and a verifying affidavit and annexures in support of the prayers. In this case, the applicant should have annexed the impugned decision. It is after grant of leave, that an applicant is allowed to file the notice of motion application within 21 days. Seeking of leave is meant to expedite the process and weed out any frivolous applications.
34.
The applicant has done none of that. What is before the court is neither a Judicial Review application nor a petition. If the applicant wanted to file a petition to seek any constitutional remedies available including Judicial Review orders, he should have done so under the rules under the Constitution (Mutunga Rules). Article 23(3) of the Constitution outlines the remedies a person can seek in a constitutional petition which includes Judicial Review orders. If it was a petition, then the applicant would have not needed to seek leave of court to file the petition.
…
42.
Secondly, the prayers which the applicant is seeking are not in the nature of Judicial Review writs (sic) of mandamus, certiorari and prohibition. If at all this was a Judicial Review Application which it is not, those are the only appropriate orders and/or prayers a party can seek. Looking at the prayers, the applicant wants this court to review the decision of the 1st respondent. This is an appellate court. A person aggrieved by the decision of the 1st respondent can only approach this court by way of an appeal and Judicial review of the decision of the 1st respondent”.
36.
Reference in this passage to articles 23 and 47 of the Constitution is only in relation to the scope of judicial review in terms of the Constitution, a totally different cause from the initial complaint before the Committee, where articles 193(1)(b) and 194(1)(e), among others, were alleged to have been breached.
37.
On the second matter, the learned Judge accepted that it was common ground that a similar issue was pending determination before the High Court even as the appellant filed a complaint with the Committee; that in the circumstances it would have been sub-judice for the Committee to entertain a matter the High Court was already seized of. The court was also not convinced that the claim, as framed reposed jurisdiction in the Committee. Any consideration of the original dispute in the judgment of the High Court was wholly gratuitous after the court found that the Committee lacked jurisdiction and, in any case, the Committee did not express any opinion on the complaint that would have given rise to a consideration by the High Court.
38.
It is the foregoing conclusions that were once more challenged in the Court of Appeal on a whopping 24 grounds. In summary, the appellant complained that his application was competent as it was anchored on inter alia articles 47 of theConstitution and on sections 7(2) and 11(2) of the Fair Administrative Action Act; and that the procedure contemplated in the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules were not applicable to his application. Furthermore, he faulted the High Court for failing to pronounce itself on the conduct of the 2nd to 16th respondents which amounted to resignation from the Assembly in accordance with article 194(1)(e) of the Constitution.
39.
The original arguments morphed from the qualification of the 2nd to 16th respondents to contest elections for the office of MCA before the Committee into the nature and scope of judicial review under the 2010 Constitution before the High Court and the Court of Appeal. Premium was put on and heavy weather made of issues that did not aggrieve the appellant when he set out to challenge the conduct of the respondents. From the High Court, matters turned on whether the character and scope of judicial review under the Constitution and the Fair Administrative Actions Act has changed from one limiting the court’s consideration to the decision-making process only to one where the court can now interrogate the merits as well as the process; whether the rules of procedure promulgated in 2013,Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, were to be applied in the absence of rules under section 10 (2) of the Fair Administrative Actions Act; and whether, after the enactment of the Fair Administrative Actions Act, the requirement for leave to apply for judicial review under section 9 of the Law Reform Act and order 53 of the Civil Procedure Rules, 2010 were still relevant.
40.
Looking at the nature of the pleadings, proceedings, reliefs before the Committee, and on the other hand, the decisions of the two superior courts below, we cannot say that the grievance presented to this Court concerned the application or interpretation of the Constitution. The cause in the High Court was distinctly short on the interpretation or application of the Constitution. The lengthy arguments about articles 23 and 47 of the Constitution had nothing to do with the original grievance. Their citation, per se cannot be the basis for our assumption of jurisdiction.
41.
The instant appeal having emanated from the High Court in a judicial review application, must be considered under the parameters set out by this court in Peninah Nadako (supra). By those parameters, the appellant is required to identify the particular(s) of constitutional character that were canvassed at both the High Court and the Court of Appeal; and to demonstrate that both superior courts below 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.
42.
The appellant having properly identified precisely the relevant articles of the Constitution which in his view were violated by the 2nd to 16th respondents, was expected to convince us that the subject of the appeal was the same issue in controversy and around which both the High Court and the Court of Appeal based their respective decisions. The decision being challenged in this appeal has nothing to do with the interpretation or application of articles 23 and 47 of the Constitution.
43.
We come to the conclusion that, for the reason that the court lacks jurisdiction, this appeal fails. We down tools at this stage. It presents neither exceptional circumstances nor opportunity for the court to provide interpretive guidance on the Constitution. See Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; In the Matter of the Speaker of the Senate & another, Advisory Opinion Reference 2 of 2013 and Sonko v Clerk, County Assembly of Nairobi City & 11 others, SC Petition 11 (E008) of 2022.
The appeal lacks merit and is accordingly dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/77/eng@2022-12-20 |
Petition 11 (E008) of 2022 | Sonko v County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 76 (KLR) (5 December 2022) (Reasons) | Reasons | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 5 December 2022 | 2,022 | Nairobi | Civil | Sonko v County Assembly of Nairobi City & 11 others | [2022] KESC 76 (KLR) | null | Brief facts
The appellant, the former County Governor of Nairobi, had filed a petition challenging his impeachment. His petition at the High Court was dismissed, and so was his subsequent appeal. Aggrieved, the appellant filed an appeal before the Supreme Court where he challenged the impeachment on grounds that it was unconstitutional as it violated the sovereignty of his constituents and undermined the vote at the ballot box, on grounds that the impeachment was done without due process and that he was not accorded a fair trial.
The respondents filed a preliminary objection on grounds that the Supreme Court did not have the jurisdiction to determine the appeal owing to failure to cite which provision the appeal was based on. | E. Analysis and Determination
84.
There were four counts of impeachable charges brought against the appellant as follows;
i.
Gross violation of the Constitution and law,
ii.
abuse of office,
iii.
gross misconduct, and
iv.
committing crimes under national law.
85.
Having carefully re-evaluated the arguments in this appeal, the pleadings and the unanimous decisions of the two superior courts below, we answer each of the seven framed issues and set out in paragraph 53 sequentially as follows;
i. whether the court’s jurisdiction was properly invoked
86.
In Nyarangi JA’s time-honoured words in the Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [1989] KLR 1, which were themselves originally penned by the United States of America Supreme Court in 1915 in the case of McDonald v Mabee, 243 US 90,91 (1915); without jurisdiction, a court has no power and must down tools in respect of the matter under review.
87.
The County Assembly and the Attorney-General have objected to the jurisdiction of the court to entertain the appeal on the grounds that the court was improperly moved by invocation of the wrong constitutional and/or statutory provisions that do not clothe it with jurisdiction; and that the issues in the appeal did not involve any question of interpretation or application of the Constitution within the meaning of article 163(4)(a) of the Constitution and sections 3 and 15 of the Supreme Court Act. Further, they have contended that this being a second appeal, the court was constrained to confine itself to matters of law, yet the appeal was replete with questions of fact. These objections were supported by the 1st, 2nd, 4th, 5th, 6th and 10th respondents.
88.
It is elementary knowledge on account of a legion of decisions of this court that appeals from the Court of Appeal lie to this court pursuant to articles 163(4) or 163(4)(b) of the Constitution as a matter of right or upon certification that a matter of General ublic importance (GPI) is involved; and that an appeal shall not lie to this Court, unless brought within the compass of either of the two jurisdictional limbs.
89.
We can confirm from the onset that the petition of appeal dated April 1, 2022 but filed on May 20, 2022 is expressed to be brought pursuant to two repealed rules, 9 and 33 of the Supreme Court Rules, 2012, which essentially dealt with contents of a petition and institution of appeals. Rules 9 and 33 of the 2020 Rules, on the other hand relate to “sealing of court documents” and “application for certification”, respectively. All these provisions clearly cannot be the basis for invoking the court’s jurisdiction. As far as appeals from the Court of Appeal are concerned, a party moving this court must bear in mind the limits of its jurisdiction and must decide, either to seek a certification as a matter of general public importance under article 163(4)(b) of the Constitution or come as a matter of right under article 163 (4)(a) thereof. Even when a party invokes the latter, it is upon that party to identify and specify how the appeal concerns interpretation and application of the Constitution.
90.
It can never be the role of the court to wander around in the maze of pleadings and averments to ascertain by way of elimination which of the two limbs of article 163(4) a party intends to rely on. The court has consistently discouraged this kind of impetuous presentation of pleadings before it. For example, in Suleiman Mwamlole Warrakah & 2 others v. Mwamlole Tchappu Mbwana & 4 others, [supra], the court restated the frontiers of its appellate jurisdiction and emphasized that an appeal to it shall not lie, unless convincingly preferred within the confines of either of the two jurisdictional limbs of article 163(4) of the Constitution. The court said;
“
(53)
In this appeal, what counsel for the petitioners is asking us to do is to assume jurisdiction by way of elimination. This court is being called upon to hold that, because certification was not sought by the intending appellant, then it must follow that the said appellant, is invoking the court’s jurisdiction as of right, under article 163(4)(a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do, as it would make a mockery of our past pronouncements on the matter…”
91.
To this clear articulation, we can only add that, given the strict limit of jurisdiction of the Supreme Court under article 163(4) of the Constitution, it is paramount for any party moving it for any relief under that article to identify which one of the two limbs, (a) or (b) is being invoked. These prerequisites were recapitulated in Nasra Ibrahim Ibren v Independent Electoral Boundaries & 2 others, SC Petition No 19 of 2018; [2018] eKLR, as follows:
43.
… parties seeking to appeal to the Supreme Court have a duty to outrightly state the particular jurisdiction of the court that they invoke. Jurisdiction is thus so fundamental that it should not be left to conjecture. The court, and other parties in a matter, should not be left agonizing under what appellate jurisdiction a matter is filed. Consequently, we are surprised by the appellant’s approach to this court and fault her for not having outrightly disclosed under which appellate jurisdiction she moved this court. She left this fundamental indicator far late in the day during her submissions when she mentions that this court has jurisdiction to hear this appeal under article 163(4)(a) of the Constitution”.
92.
The justification behind the requirement of specifying the limb of article 163(4) should be obvious, but one of them is that the applicable considerations and principles for each of the limbs are different. In an adversarial system like ours, rules of pleading also serve to ensure that parties define succinctly the issues for determination so as not to take the rest of the parties by surprise. On the other hand, courts adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings.
93.
There has been sufficient guidance from the court on the need to specify the jurisdiction being invoked and we hoped that the infractions identified in this appeal would not be encountered ever in this court. We were wrong. What is constant, however, so far as the court is concerned, is that each failure to align an appeal to those guidelines, will meet the ultimate fate suffered by the appellants in Suleiman Mwamlole Warrakah & 2 others [supra], Nasra Ibrahim Ibren v Independent Electoral Boundaries & 2 others [supra] and Daniel Kimani Njihia v Francis Mwangi Kimani & another [supra], in a long line of others.
94.
We will not stop there. counsel intending to represent parties before the court must recognize that, like any appearance before any apex court in the world, practice of law before this court as Kenya’s court of last resort must truly represent and reflect strict standards of professional responsibility. As an officer of the court upon whose shoulders rest, in part, the responsibility for the administration of justice, counsel must, before bringing an action to the court, identify the elementary legal foundation and ascertain as a minimum, whether the court has jurisdiction, because as a general proposition, the relief available to a party depends not only on the pleadings but more significantly on the jurisdiction. That is why, as a matter of practice, the pleadings must always carry, at the very top, reference to the relevant provisions of the Constitution, the law and rules relied upon and specify at the end, the relief claimed. In addition, it cannot be stressed enough that, counsel is expected, indeed, required to be fully abreast with the jurisprudence of the court.
95.
In an apex court, there is no room for indolent and lackadaisical approach to preparation and presentation of cases. We expect nothing but precision, diligence and above all, professionalism. It is for these reasons that the court has repeatedly cautioned in several decisions such as Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC Applic No, 4 of 2012; [2013] eKLR, Daniel Kimani Njihia v Francis Mwangi Kimani & another [supra], Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [supra], and National Rainbow Coalition Kenya (NARC Kenya) 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), against sloppiness in the invocation of the court’s jurisdiction.
96.
In any case, the appellant has failed to demonstrate as directed by the court in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR, how the appeal involved application or interpretation of the Constitution and the manner in which the Court of Appeal erred in determining those very questions. We can do no better now than we did in Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others, SC Petition No 45 of 2018; [2020] eKLR, but to re-state the jurisprudence around article 163(4)(a) of the Constitution with these words:
“
(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 explained further that;
“
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 satisfactory 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.”
97.
We find, for these reasons, that the preliminary objection meets the threshold in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors ltd (1969) EA 696 and sustain it.
98.
That conclusion would, in strict application of Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [supra], have been sufficient to dispose of this appeal in its entirety, and the Court would have to down tools. However, in view of the public interest and nature of the dispute, the broad interests of the parties, the need for due guidance to the judicial process and to the courts below; for the sake of posterity and development of jurisprudence and in terms of the court’s decisions in, among other cases, Jasbir Singh Rai & 3 others v Tarlochan Singh Rai and 4 others, SC Petition No 4 of 2012; [2013] eKLR, In the Speaker of the Senate & another v Attorney- General & 4 others, SC Advisory Opinion No 2 of 2013; [2013] eKLR (paragraph 156), Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR, (paragraph 52), Anami Silverse Lisamula v Independent Electoral & Boundaries Commission & 3 others, SC Petition No 9 of 2014; [2014] eKLR and Lemanken Aramat v Harun Meitamei Lempaka & 2 others, SC Petition No 5 of 2014; [2014] eKLR, we are of the considered view that the right course is for us to determine all the pertinent questions raised in the appeal. It is not the first time we are doing this as should be evident in the number of times it has been done in the above decisions.
99.
By the very nature of its position in the hierarchy of courts, the Supreme Court has a constitutional obligation to develop jurisprudence and guide the courts below it on matters of general public interest, as well as on those involving the interpretation and application of the Constitution. This duty cannot be curtailed by a decision of any court, just the way Justices of this court cannot be rendered superfluous, or their work made perfunctory and mechanical. The function of the court in resolving questions of interpretation and application of the Constitution is to remove any doubts and ambiguities in the law; mitigating hardships and correcting wrongs and not avoiding them. This was succinctly expressed in the following passage in the concurrent decision of Mutunga, CJ & President of the court, In re the Speaker of the Senate & another v Attorney-General & four others [Supra] (paragraph 156):
“Each matter that comes [up] before the court must be seized upon as an opportunity to provide high-yielding interpretive guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents [Constitution- making] does not end with its promulgation; it continues with its interpretation. It is the duty of the court to illuminate legal penumbras that Constitutions borne out of long-drawn compromises, such as ours, tend to create.”
The following passage drawn from the court’s judgment in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, [supra] is equally instructive;
“
The immediate pragmatic purpose of such an orientation of the judicial process is to ensure predictability, certainty, uniformity and stability in the application of law. Such institutionalization of the play of the law gives scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marks also other spheres of social and economic relations. Going forward it will be good practice for this court to take every opportunity a matter affords it to pronounce on the interpretation of a constitutional issue that is argued either substantively or tangentially by the parties before it.” [our emphasis]
See also David Ndii & others v Attorney General & others [2021] eKLR BBI Case) per Njoki Ndungu, SCJ.
100.
It must be emphasized, however, that the generally accepted position and widely applied ratio expressed in the wise words of Nyarangi, JA in the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [supra] that “jurisdiction is everything”, and that a court lacking jurisdiction “must down its tools”, holds good and retains validity. All we have expressed here is that, as far as this court, the final court, is concerned, in appropriate cases; we repeat, in appropriate cases and only this final court, will rise to the occasion and not down tools, to resolve disputes that relate to its constitutional mandate. Even where it declines jurisdiction to entertain any particular questions, the court may wish to achieve quality jurisprudence and also to resolve specific issues raised in the particular matter, in order to draw the whole dispute to a meaningful conclusion and to settle the law. It is not in all situations.
101.
This approach is, therefore, not a departure from The Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [supra] but an extended horizon to cater for the [new] Supreme Court, with its specialized and wider jurisdiction than would have been contemplated at the time the decision in “Lillian S,” was made.
102.
In Lemanken Aramat v Harun Meitamei Lempaka & 2 others [supra], the court justified this route by explaining that;
“
[101]
We would make it clear in the instant case that, it is a responsibility vested in the Supreme Court to interpret the Constitution with finality: and this remit entails that this court determines appropriately those situations in which it ought to resolve questions coming up before it, in particular, where these have a direct bearing on the interpretation and application of the Constitution. Besides, as the Supreme Court carries the overall responsibility The Constitution of Kenya, 2010, article 163(7)] for providing guidance on matters of law for the State’s judicial branch, it follows that its jurisdiction is an enlarged one, enabling it in all situations in which it has been duly moved, to settle the law for the guidance of other courts.
……
[106]
Quite clearly, the foregoing provisions affirm that the Supreme Court, as the guardian of the Constitution, and the final arbiter on constitutional dispute-situations, has been entrusted with the mandate to ensure the effectiveness of the binding constitutional norm.
[107]
The Supreme Court’s special jurisdiction merits express recognition. The Constitution’s paradigm of democratic governance entrusts to this court the charge of assuring sanctity to its declared principles. The court’s mandate in respect of such principles cannot, by its inherent character, be defined in restrictive terms. Thus, such questions as come up in the course of dispute settlement (which, itself, is a constitutional phenomenon), especially those related to governance, are intrinsically issues importing the obligation to interpret or apply the Constitution – and consequently, issues falling squarely within the Supreme Court’s mandate under article 163(4)(1)(a), as well as within the juridical mandate of the court as prescribed in article 259(1)(c) of the Constitution, and in section 3(c) of the Supreme Court Act, 2011 (Act No 7 of 2011)
…
[111]
From the principles thus stated, it is clear to us that this court ought to maintain constant interest in the scheme and the quality of jurisprudence that it propounds over time, even where it is constrained to decline the jurisdiction to deal with any particular questions. Whatever option it takes, however, this court ought always to undertake a methodical analysis of any issues it is seized of, and ought always to draw the whole dispute to a meaningful conclusion, bearing directions and final orders, in the broad interests of both the parties, and of due guidance to the judicial process and to the courts below.” [our emphasis]
103.
But above all, we are fortified in our decision to consider the remaining six grounds in this appeal by the fact that, whether we down tools at this stage or go to the end, the inevitable result is that the decision of the Court of Appeal stands upheld. For these reasons, there are exceptional circumstances and proper justification not to down tools but to consider and determine the main grounds before the court.
104.
In view of the position we have adopted in the foregoing paragraphs, we emphasize that, not all the six grounds involve the interpretation or application of the Constitution or are matters of general public importance, the two permanent and defined coordinates of the court’s jurisdiction in respect of appeals arising from the decisions of the Court of Appeal. Matters of fact that touch on evidence without any constitutional underpinning are not open for this court’s review on appeal. See Paul Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others [supra] and Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR).
In the latter decision, the court stressed that;
“
It is to be recalled that the appellants herein, had already been evicted from their settlements, in an operation they contend was not only illegal, but which violated their right to housing and dignity. 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)”
105.
Of the twenty-four (24) grounds of appeal alluded to in paragraph 53, twenty (20) urge us to find that the learned Judges of the Court of Appeal “erred in law and fact” in arriving at the impugned judgment. All these grounds, though framed partly as matters of law, are not constitutional or matters of law but of fact, as we intend to demonstrate shortly.
106.
The duty to re-evaluate evidence is the function of a first appellate court as enunciated in the celebrated case of Selle v Associated Motor Boat Company Ltd [1968] EA 123. A first appellate court should accord deference to the trial Judge’s conclusions of fact and only interfere with those conclusions if it appears to it, either that the trial judge has failed to take into account any relevant facts or circumstances or based the conclusions on no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions. (See also Nkube v Nyamuro [1983] KLR, 403-415, AT 403).
107.
Jurisdiction, we repeat, reveres judicial hierarchy so that
“
the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law” or we may add, matters of fact; “and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court”.
See Peter Oduor Ngoge v Francis Ole Kaparo & 5 others [supra].
We shall bear in mind these qualifications of the court’s jurisdiction as we consider each of the remaining six grounds. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/76/eng@2022-12-05 |
Petition (Application) E029 of 2022 | Trattoria Limited v Maina & 3 others (Petition (Application) E029 of 2022) [2022] KESC 75 (KLR) (Civ) (25 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 27 November 2022 | 2,022 | Nairobi | Civil | Trattoria Limited v Maina & 3 others | [2022] KESC 75 (KLR) | null | [1]
Upon reading the Notice of Motion by the applicant dated September 9, 2022 and filed onSeptember 14, 2022, brought pursuant to article 163 (4) (a) of the Constitution, section 23 (A) of the Supreme Court Act, 2011 as well as Rules 31 and 32 of the Supreme Court Rules, 2020 seeking orders that;
1.
Pending the inter-partes hearing and determination of the petition, this Honourable Court be pleased to issue an order staying the execution of the order of Certiorari issued on July 21, 2017 by the High Court in Petition No. 132 of 2014 as consolidated with Petition No. 129 of 2014, which quashed the approvals granted by the County Government of Nairobi for installation of water tanks, smoke extractor, L.P.G gas cylinder and cold storage installed at the fire exit at Town House, Nairobi on L.R No. 209/2362; and
[2]
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Gaetano Ruffo on September 9, 2022 wherein he contends that, following the judgment of the Court of Appeal delivered on July 22, 2022 affirming the decision of the High Court granting an order of Certiorari quashing the approvals granted by the 2nd respondent for the installation of water tanks, smoke extractor, L.P.G gas cylinders, and cold storage at Town House on Nairobi L.R No. 209/2362, the 1st respondent threatened to institute contempt proceedings against it for alleged failure to comply with the decree of the High Court dated July 5, 2018; and that the 1st respondent also confirmed that it had engaged the 2nd respondent with a view to removing from the said premises, the applicant’s L.P.G gas cylinder, water tanks, and smoke extractor; and | [7]
Having considered the application, responses, and submissions before us, we now opineas follows:
i.
In many instances, this court has addressed itself on the question whether its jurisdiction has been properly invoked under article 163(4)(a) of the Constitution. In that regard, we stated thus in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; [2012], eKLR :
“
This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court…
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.”
ii.
Also, we emphasized in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others SC Petition No. 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 others SC Application No. 5 of 2014 [2014] eKLR that an appeal lies to this court under article 163(4)(a) if the issues placed before it revolved around the interpretation and application of the Constitution and that the interpretation or application of the Constitution had formed the basis for the determinations at the superior courts below this court and the same issue had therefore progressed through the normal appellate mechanism to reach this court.
iii.
We note in the above context that, the applicant’s case before the superior courts did not involve the interpretation and application of the Constitution. The gravamen of the applicant’s case before the said courts involved a tenant-landlord dispute concerning the approvals by the 2nd respondent to allow the applicant to store the L.P.G cylinder, water tanks, and cold room in what the 1st respondent alleged to be fire exits and fire assembly points. A perusal of the Judgment of the Court of Appeal would indeed show that at no point did it venture to address any constitutional question and the Judgment of the High Court, while involving some provisions of the Constitution, cannot be of benefit to the applicant as those issues are not presently before us.
iv.
In the circumstances, the applicant has not properly invoked this court’s jurisdiction under article 163 (4) (a) of the Constitution and following the principle enunciated in Lawrence Nduttu supra we must find that we lack jurisdiction to entertain its plea.
v.
The principles for grant of orders of stay was settled in Gatirau Peter Munya v. Dickson Mwenda & 2 others SC Appl. No. 5 of 2014 [2017] eKLR. In that case we held that in such applications, an applicant must satisfy this court that the appeal is arguable and not frivolous; that the appeal would be rendered nugatory if the stay orders are not granted and that it would be in the public interest to do so.
vi.
In Kenya Hotel Properties Limited v Attorney General & 5 others SC Application No 27 of 2020 [2020] eKLR, we furthermore observed:
“
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.”
vii.
In Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR) (Civ) (3 December 2021) (Ruling) we added thus:
“On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.”
viii.
From the foregoing, it is our considered opinion that the application does not meet the criteria set for grant of orders of stay as enunciated in Gatirau Peter Munya (supra) because we lack the jurisdiction to entertain both the appeal and the application before us. Accordingly, we are not persuaded to grant the orders of stay because the appeal itself is founded on quick sand.
ix.
In addition, section 18 of the Supreme Court Act, 2011 grants this court the jurisdiction to make an order for summary dismissal of a petition where it is apparent on the face of it that it is wholly defective. Having found that this court lacks jurisdiction to entertain the appeal under article 163 (4) (a) of the Constitution, we find that the appeal lacks legal foundation. Consequently, we find that the Notice of Motion dated September 9, 2022 is not merited and is hereby dismissed for want of jurisdiction and the petition of appeal is also struck out for want of jurisdiction.
[8]
Having found the application unmeritorious, we order as follows:
a.
The Notice of Motion dated September 9, 2022 is hereby dismissed.
b.
The petition of appeal dated September 5, 2022 is hereby struck out for want of jurisdiction.
c.
The applicant shall bear the costs of this application.
[9]
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/75/eng@2022-11-25 |
Petition 14 (E016) of 2022 | Abdirahman v Mandera County Government & 5 others (Petition 14 (E016) of 2022) [2022] KESC 71 (KLR) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 4 November 2022 | 2,022 | Nairobi | Civil | Abdirahman v Mandera County Government & 5 others | [2022] KESC 71 (KLR) | null | Brief facts
The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicant’s contention that having been aggrieved by the Court of Appeal’s ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources.
The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2nd respondent who filed a notice of preliminary objection.
Issues | [8]
In the circumstances, we make the following orders:
(a)
The notice of motion dated July 22, 2022 and filed on July 26, 2022 seeking to withdraw the petition of appeal dated June 27, 2022 and filed on June 28, 2022 be and is hereby allowed.
(b)
Each party shall bear its costs thereof.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/71/eng@2022-11-04 |
Petition 16 (E019) of 2022 | Abote v Kawaka & 4 others (Petition 16 (E019) of 2022) [2022] KESC 69 (KLR) (Civ) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 4 November 0202 | 2,022 | Nairobi | Civil | Abote v Kawaka & 4 others | [2022] KESC 69 (KLR) | null | Brief facts
The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicant’s contention that having been aggrieved by the Court of Appeal’s ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources.
The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2nd respondent who filed a notice of preliminary objection. | [8]
In the circumstances, we make the following orders:
(a)
The notice of motion dated July 22, 2022 and filed on July 26, 2022 seeking to withdraw the petition of appeal dated June 27, 2022 and filed on June 28, 2022 be and is hereby allowed.
(b)
Each party shall bear its costs thereof.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/69/eng@2022-11-04 |
Petition 21 (E024) of 2022 | Abote v Kawaka & 4 others (Petition 21 (E024) of 2022) [2022] KESC 70 (KLR) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 4 November 0202 | 2,022 | Nairobi | Civil | Abote v Kawaka & 4 others | [2022] KESC 70 (KLR) | null | Upon perusing the petitioner’s notice of withdrawal of application and petition dated 6th October, 2022 and filed on 7th October, 2022 seeking to withdraw the application and the petition both dated 3rd August, 2022; and
2.
Notingthe court’s order of 18th October, 2022 (Lenaola SCJ) wherein the notice of motion dated 3rd August, 2022 was allowed, marking the matter as withdrawn leaving the single issue of costs to be determined by the court;
3.
Further notingthe court’s directions of 11th October, 2022 for parties to file submissions on the issue of costs whereat only the petitioner and the 4th and 5th respondents filed submissions on the issue, counsel for the 3rd respondent having in an earlier appearance before the Honourable Registrar on 8th August 2022 indicated that the 3rd respondent would not file any submissions and would abide by the decision of the court; and | 11.Consequently, the appeal having been withdrawn on 18th October, 2022, we make no order as to costs. Orders accordingly. | Court issues further directions | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/70/eng@2022-11-04 |
Petition (Application) 13 (E019) of 2020 | Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated)) [2022] KESC 68 (KLR) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 4 November 0202 | 2,022 | Nairobi | Civil | Kenya Railways Corporation & 2 others v Okoiti & 3 others | [2022] KESC 68 (KLR) | null | 1.
Uponreading the notice of motion application filed by the 1st petitioner dated June 6, 2022 and filed on June 23, 2022 pursuant to article 159 (2) of the Constitution, Rule 3(5) and Rule 13 (1) of the Supreme Court Rules, 2020 and Rule 12 & 17 (b) of the Supreme Court (General) Practice Directions, 2020 seeking the court to strike out and expunge from the record the 1st respondent’s replying affidavit sworn on May 17, 2022, submissions dated May 18, 2022 and May 26, 2022 and the 1st and 2nd respondents’ cross-appeal dated August 10, 2020; and
2.
Upon reading the supporting affidavit sworn on June 6, 2022 by the 1st petitioner’s Acting Corporation Secretary, Mr. Stanley Gitari; and | 11.
Havingcarefully considered the 1st petitioner and 1st respondent’s notice of motion applications, responses and submissions by the respective parties, we find as follows:
a.
The 1st petitioner’s application dated June 6, 2022 is allowed only to the extent that the 1st respondent’s replying affidavit dated May 17, 2022 is struck off.
b.
The 1st respondent’s application dated July 5, 2022 is dismissed.
c.
There shall be no order as to costs.
12.
It is so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/68/eng@2022-11-04 |
Petition (Application) 21 (E023) of 2020 | Member of Parliament for Mbalambala Constituency v Abdi & 7 others (Petition (Application) 21 (E023) of 2020) [2022] KESC 73 (KLR) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 4 November 0202 | 2,022 | Nairobi | Civil | Member of Parliament for Mbalambala Constituency v Abdi & 7 others | [2022] KESC 73 (KLR) | null | UPON considering the Notice of Motion dated 31st January 2022 brought pursuant to Rules 18(6) and (7) of the Supreme Court Rules, 2020, in which counsel for the 6th respondent seeks leave of this court to cease acting for the respondent aforesaid; and
2.
UPON reading the supporting affidavit in support of the Motion sworn by Mansour Muathe Issa, Advocate on 31st January 2022 and considering the grounds in support therein, mainly that his client has ceased contact and that despite several reminders the 6th respondent has failed to give him proper instructions and he is, therefore, unable to proceed with the hearing of the Petition on 10th November 2022; and | 5.
Accordingly, I now make the following Orders:
i.
The Notice of Motion dated 31st January 2022 be and is hereby allowed and M/S Issa & Co Advocates, are hereby granted leave to cease acting for the 6th Respondent.
ii.
The 6th Respondent shall pay the costs thereof.
6.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/73/eng@2022-11-04 |
Application 3 (E008) of 2022 | Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others (Application 3 (E008) of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 4 November 0202 | 2,022 | Nairobi | Civil | Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others | [2022] KESC 72 (KLR) | null | Brief facts
The 1st - 4th applicants and the 5th and 6th applicants filed two applications both dated July 22, 2022 wherein they sought among others, orders; that pending the hearing and determination of the application inter- parties, the court to stay the ruling, certification, and order issued on July 8, 2022 and any further progression of the main appeal arising from the ruling in Supreme Court Application No. 3 (E008) of 2022; and that the court reviews and/or set aside its ruling of July 8, 2022 in Supreme Court Application No. 3 (E008) of 2022.
The applicants argued that on May 23, 2022, the Deputy Registrar gave directions that the preliminary objection was to be heard and determined first vacating and superseding prior directions given and that by the ruling delivered on July 8, 2022, the court proceeded to determine the preliminary objection as well as the substantive application by the respondents’ seeking review of the decision of the Court of Appeal denying certification, and the application for leave to file a supplementary affidavit to produce a notice of appeal; hence condemning the applicants unheard. The applicants further argued that the court had not taken directions for the applications since the directions issued on May 23, 2022 were limited to the preliminary objection. | 11.
We further opine that section 21(4) of the Supreme Court Act as read with rule 28(5) of the Supreme Court Rules and following our decisions in Fredrick Otieno Outa v Jared Odoyo Okello, SC Petition No 6 of 2014; [2017] eKLR and in Musembi & 13 other (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 (Application EO19 of 2021) [2022] KESC 19 (KLR) (Civ)(19 May 2022) (Ruling)), the applicants have not met the threshold for review of the court’s decision. There is no exceptional circumstance, error apparent on the record, illegality, fraud or deceit to warrant such a decision. Alleged violation of the right to be heard and fair trial as submitted by the applicants, which allegation we dismiss in any event, does not satisfy the criteria for exceptional circumstance to warrant a review of our ruling.
12.
For These reasons, we inevitably conclude that the two notice of motion applications lack merit in their entirety and are for disallowing. As for costs, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal. As we previously noted, the matter is one that requires expedited disposal.
13.
Consequently, we make the following orders:
i.
The notice of motion dated July 22, 2022 filed by the 1st to 4th applicants be and is hereby disallowed.
ii.
The notice of motion dated July 22, 2022 filed by the 5th and 6th applicants be and is hereby disallowed.
iii.
The costs of this application to abide the outcome of the appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/72/eng@2022-11-04 |
Petition (Application) 15 (E022) of 2021 | Muthuuri & 4 others v Attorney General & 2 others (Petition (Application) 15 (E022) of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko | 4 November 0202 | 2,022 | Nairobi | Civil | Muthuuri & 4 others v Attorney General & 2 others | [2022] KESC 74 (KLR) | null | Brief facts
The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. It was their argument that the record of appeal arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 352 of 2019 dated September 23, 2021 was incomplete as the duly sealed notice of appeal and order appealed from had not been filed. It was further their contention that on September 28, 2021 an application was made for the certified copy of the order arising from that judgment, however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules, 2010, which they did by forwarding the draft order to the respondents on September 29, 2021 for approval.
In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the notice of appeal by the Court of Appeal on January 26, 2022. The applicants further contended that the certified order dated September 23, 2021 was issued following further follow up efforts resulting in the filing of the instant application. The respondents argued that the delay was evidently inordinate and offended the principle that there should be an end to litigation and that they would suffer irreparable loss if the orders sought were granted.
Issues
Whether delays caused by courts’ administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party.
What were the principles for grant of an order of extension of time to file a supplementary record of appeal?
Held
Under rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions and any person intending to appeal to the court was required by rule 31(1) of the Rules to file the notice of appeal within fourteen days from the date of the decision intended to be challenged.
From the record, after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021. The applicant’s follow up efforts preceding the issuance of the order were not disputed by the respondents. Delays caused by court’s administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a party’s reach.
The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
In spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, the application met the threshold of extension of time as the delay of two months in the instant matter was not inordinate as it was sufficiently explained, and it was not occasioned by the applicant but by the court. That explanation was reasonable and there was no prejudice to be occasioned to the respondents.
| Upon perusing the notice of motion application dated June 24, 2022 and filed physically and electronically and on July 20, 2022 and June 27, 2022 respectively pursuant to articles 159(2)(d) of the Constitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, rules 15(2) and 38(1)(a) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, we note that the applicants seek the following orders:
1.
That this application be certified urgent and service thereof be dispensed with in the first instance.
2.
That this honourable court be pleased to enlarge time within which the petitioners/applicants should file a supplementary record of appeal being duly sealed notice of appeal dated September 28, 2021 and certified copy of Order dated September 23, 2021 in terms of the draft annexed hereto;
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on June 24, 2022 by Evans Muriuki Muthuuri; and submissions dated July 19, 2022, it is the applicants’ argument that the record of appeal dated October 28, 2021 filed on even date arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No 352 of 2019 dated September 23, 2021is incomplete as the duly sealed notice of appeal and order appealed from have not been filed. It is their contention that on September 28, 2021 an application was made for the certified copy of the order arising from the said judgment; however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules 2010 which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the Notice of Appeal by the Court of Appeal on January 26, 2022;
3.
Upon considering the applicants’ contention that the certified order dated September 3, 2021 was issued following further follow up efforts resulting in the filing of the present application. They affirm that their application is merited and should be allowed as the delay was caused by factors beyond their control as held by this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition (Application) No 47 of 2017 [2020] eKLR; and
4.
Upon perusing the written submissions dated August 1, 2022 and filed on August 4, 2022 on behalf of the respondents and the replying affidavit by Silas Oloo Mc’Opiyo, acting Chief Executive Officer (CEO) of the 2nd respondent, sworn on August 1, 2022 and filed on August 4, 2022 wherein he depones that the applicants having learnt of the ruling on April 20, 2022, ought to have physically followed up with the court registry within reasonable time rather than waiting for two months and following the same via email. It is their other argument that the applicants are not eager to have the said appeal determined as they are dragging their feet in filing the record of appeal considering no reasonable explanation has been rendered. Hence, the delay is evidently inordinate and offends the principle that there should be an end to litigation as held by the Court of Appeal in the case of Aviation Cargo Support Limited v St Mark Freight Services Limited [2014] eKLR; and, they allege that they would suffer irreparable loss if the orders sought herein are granted
5.
Noting 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; and any person intending to appeal to the court is required by rule 31(1) of the Supreme Court Rules, 2020 to file the notice of appeal within fourteen days from the date of the decision intended to be challenged; and
6.
Noting further from the record that after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021; and that the applicant’s follow up efforts preceding the issuance of the order are not disputed by the respondents; and that delays caused by court’s administrative processes to the detriment of a party cannot be visited upon such a party because such a delay is beyond a party’s reach,
7.
We reiterate our finding in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 others Application No 15 of 2014 [2014] eKLR that it would not be in the interests of justice to turn away an applicant who has prima facie exercised all due diligence in pursuit of their cause but is impeded by the slow-turning wheels of court’s administrative machinery; and the guiding principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC Application No 16 of 2014 [2014] eKLR as well as the case of Base Titanium Limited v County Government of Mombasa & another SC Petition (App) No 22 of 2018 which was echoed in GEO Chem Middle East v Kenya Bureau of Standards (supra) 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;
8.
We opine that in spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, we are satisfied that the application meets the above threshold as the delay of two months in this matter is not inordinate as the delay is sufficiently explained, and it was not occasioned by the applicant but by the court. We find that this explanation is reasonable and we see no prejudice to be occasioned to the respondents. Accordingly, we conclude that the application is meritorious and is to be allowed. As for costs, we note that the parties are still engaged in litigation before the court, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The notice of motion dated June 24, 2022 and filed electronically and physically on June 27, 2022 and July 20, 2022 respectively be and is hereby allowed.
ii.
The costs of this application to abide the outcome of the appeal.
It is so ordered.
1.
Upon perusing the notice of motion application dated June 24, 2022 and filed physically and electronically and on July 20, 2022 and June 27, 2022 respectively pursuant to articles 159(2)(d) of the Constitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, rules 15(2) and 38(1)(a) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, we note that the applicants seek the following orders:
1.
That this application be certified urgent and service thereof be dispensed with in the first instance.
2.
That this honourable court be pleased to enlarge time within which the petitioners/applicants should file a supplementary record of appeal being duly sealed notice of appeal dated September 28, 2021 and certified copy of Order dated September 23, 2021 in terms of the draft annexed hereto;
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on June 24, 2022 by Evans Muriuki Muthuuri; and submissions dated July 19, 2022, it is the applicants’ argument that the record of appeal dated October 28, 2021 filed on even date arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No 352 of 2019 dated September 23, 2021is incomplete as the duly sealed notice of appeal and order appealed from have not been filed. It is their contention that on September 28, 2021 an application was made for the certified copy of the order arising from the said judgment; however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules 2010 which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the Notice of Appeal by the Court of Appeal on January 26, 2022;
3.
Upon considering the applicants’ contention that the certified order dated September 3, 2021 was issued following further follow up efforts resulting in the filing of the present application. They affirm that their application is merited and should be allowed as the delay was caused by factors beyond their control as held by this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition (Application) No 47 of 2017 [2020] eKLR; and
4.
Upon perusing the written submissions dated August 1, 2022 and filed on August 4, 2022 on behalf of the respondents and the replying affidavit by Silas Oloo Mc’Opiyo, acting Chief Executive Officer (CEO) of the 2nd respondent, sworn on August 1, 2022 and filed on August 4, 2022 wherein he depones that the applicants having learnt of the ruling on April 20, 2022, ought to have physically followed up with the court registry within reasonable time rather than waiting for two months and following the same via email. It is their other argument that the applicants are not eager to have the said appeal determined as they are dragging their feet in filing the record of appeal considering no reasonable explanation has been rendered. Hence, the delay is evidently inordinate and offends the principle that there should be an end to litigation as held by the Court of Appeal in the case of Aviation Cargo Support Limited v St Mark Freight Services Limited [2014] eKLR; and, they allege that they would suffer irreparable loss if the orders sought herein are granted
5.
Noting 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; and any person intending to appeal to the court is required by rule 31(1) of the Supreme Court Rules, 2020 to file the notice of appeal within fourteen days from the date of the decision intended to be challenged; and
6.
Noting further from the record that after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021; and that the applicant’s follow up efforts preceding the issuance of the order are not disputed by the respondents; and that delays caused by court’s administrative processes to the detriment of a party cannot be visited upon such a party because such a delay is beyond a party’s reach,
7.
We reiterate our finding in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 others Application No 15 of 2014 [2014] eKLR that it would not be in the interests of justice to turn away an applicant who has prima facie exercised all due diligence in pursuit of their cause but is impeded by the slow-turning wheels of court’s administrative machinery; and the guiding principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC Application No 16 of 2014 [2014] eKLR as well as the case of Base Titanium Limited v County Government of Mombasa & another SC Petition (App) No 22 of 2018 which was echoed in GEO Chem Middle East v Kenya Bureau of Standards (supra) 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;
8.
We opine that in spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, we are satisfied that the application meets the above threshold as the delay of two months in this matter is not inordinate as the delay is sufficiently explained, and it was not occasioned by the applicant but by the court. We find that this explanation is reasonable and we see no prejudice to be occasioned to the respondents. Accordingly, we conclude that the application is meritorious and is to be allowed. As for costs, we note that the parties are still engaged in litigation before the court, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/74/eng@2022-11-04 |
Petition 22 of 2017 | County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party) (Petition 22 of 2017) [2022] KESC 66 (KLR) (28 October 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 28 October 2022 | 2,022 | Nairobi | Civil | County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission | [2022] KESC 66 (KLR) | null | A. Introduction
1.
Before the court is a petition of appeal dated December 22, 2017 and filed on even date by the appellant, the County Assemblies Forum. The appeal challenges the entire judgment and decree of the Court of Appeal dated November 10, 2017, made in Nairobi Civil Appeal No 147 of 2017, The Hon Attorney General and another v Andrew Kiplimo Sang Muge, The County Assembly Forum & another (Waki Nambuye & Ouko, JJA).
| F. Analysis and Determination
i. Whether this court is clothed with the requisite jurisdiction to determine this appeal?
49.
This court must address itself on whether it has jurisdiction before proceeding to determine a matter. More so, where the jurisdiction has been challenged. The 2nd respondent asserts that first, pursuant to article 2(3) of the Constitution, no court of law is ordained with jurisdiction to entertain a petition that explicitly or implicitly challenges the validity of a constitutional provision. Second, that the appellant has failed to crystallize with reasonable degree of precision the alleged violation and the manner of infringement. Third, that the issue before the court is an election dispute contemplated under article 87 of the Constitution and as such should have been commenced by way of an Election Petition. The 2nd respondent relies on this court’s decision in Moses Mwicigi & 14 others v Independent Electoral and boundaries Commission & 5 others [2016] eKLR where this court found that contest to an election in any manifestation ought to be by way of an election petition.
50.
Fourth, that the dispute between the appellant and the respective county assemblies is an employment dispute, which jurisdiction is vested exclusively in the Employment and Labour Relations Courts pursuant to article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, No 20 of 2011. It is also contended that the issue of compensation of income for the eight-month gap can only be considered by the Salaries and Remuneration Commission pursuant to article 230 of the Constitution as it is the body mandated to inquire and advise on any salaries and remuneration to be paid out of public funds.
51.
The court’s appellate jurisdiction is set out in article 163(4) of the Constitution, in the following terms:
“
Appeals shall lie from the Court of Appeal to the Supreme Court;
a.
as of right in any case involving the interpretation or application of this Constitution; and
b.
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)”
52.
So as to bring the appeal as of right pursuant to article 163(4)(a) of the Constitution, 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 an appeal brought under that provision.
53.
In the 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 as follows:
“...This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court. The only other instance when an appeal may lie to the Supreme Court is one contemplated under article 163(4)(b) of the Constitution. Towards, this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
54.
We reiterated these principles in the cases Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014 [2014] eKLR. It is against this background that we examine whether the petition raises issues of Constitutional interpretation or application.
55.
We note that the appellant in its petition of appeal invites the court to interpret the provisions of articles 177(1) and 177(4) of the Constitution of Kenya. More specifically, the court is asked to find that there exists a conflict between the two constitutional provisions and if so, whether MCAs elected on March 4, 2013 were entitled to compensation for their term having been cut short by a period of eight (8) months, due to the subsequent elections being held on August 8, 2017. We are of the view that it is evident that this was not a mere electoral dispute arising from or touching on an election as contended by the 2nd respondent. Having perused the record we take cognizance of the fact that the foregoing are the central questions that were canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this court by way of an appeal. That being so, we are inclined to agree with the trial court that joinder of the Salaries and Remuneration Commission was unnecessary as the issues before Court are not on the amount of compensation to be paid to the MCAs for services rendered. Rather, they include questions of interpretation of articles 177(1) and 177(4) as well as whether MCAs are entitled to damages for the reduced term in office as a consequence of the election date in 2017.
56.
On the question of appropriate forum of the dispute, the trial court found that the question of enforcement of rights and fundamental freedoms even touching on the employment and labour is within the competence of the High Court pursuant to article 22. We are inclined to agree with the trial court and add that articles 23 and 165 of the Constitution fortifies this position as they are the provisions that gives the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights or fundamental freedoms in the Bill of Rights.
57.
Consequently, we come to the conclusion that the appeal falls squarely within the ambit of article 163(4)(a) and that we have jurisdiction to entertain this appeal.
ii.The interpretation of articles 177(1) and 177(4) of the Constitution; and whether there is a conflict between the said provisions vis-à-vis the date of the second general elections of MCAs under the Constitution.
58.
Article 177(1) and (4) of the Constitution provides as follows:
“
Membership of county assembly
(1)
A county assembly consists of—
(a)
members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
………..
(4)
A county assembly is elected for a term of five years.”
[Emphasis added]
59.
The first general elections under the Constitution were held on March 4, 2013 wherein the MCAs subject of this matter were elected. Thereafter, on December 10, 2015 the 2nd respondent declared that the second general elections would be held on August 8, 2017. It is this declaration that aggrieved the MCAs who believed that the date in question was contrary to the provisions of the Constitution; and more particularly articles 177(4) of the Constitution which stipulates the term of County Assemblies as five (5) years.
60.
The appellant submits that pursuant to the principle of supremacy of the Constitution as well as harmonious interpretation, article 177(4) warrants enforcement and application like other constitutional provisions. They argue that, article 177(4) provides that the term of MCAs is five years therefore holding of the elections irregularly cut short the term in office of MCAs elected on March 4, 2013.
61.
The 1st respondent agrees with the harmonious principle of interpretation but argues that after promulgation of the Constitution, there was to be transition which resulted in the first election being held on March 4, 2013. The 1st respondent further asserts that it was due to the transition that the MCAs term in office ended up being shorter than the five years, taking into account that the second elections were held on August 8, 2017. It is however urged that after transition, the general elections reverted to the date stipulated in articles 101(1), 102(2), 136(2)(a), 177(1) and 180(1), being the second Tuesday in August in every fifth year. It is for this reason that the 2nd respondent contends that the appellant is precluded from claiming for loss of income or legitimate expectation where the same has been occasioned by the Constitution.
62.
The 3rd respondent on the other hand argues that this line of argument is flawed in light of the transitional provision is clause 2(3) of the sixth schedule of the Constitution
63.
Article 2(3) stipulates that the validity or legality of the Constitution is not subject to challenge by or before any court or other state organ. We also take cognizance of the fact that the Court of Appeal was not determining the constitutionality or otherwise of articles 177(1) and (4) of the Constitution, only on the interpretation and application as regards the context of the present case. We say this, because to purport to question the validity of a constitutional provision is to question the very foundation of authority of the courts is not only contra article 2(3) but also against the will of the people of Kenya.
64.
Article 259 of the Constitution then gives the approach to be adopted in construing it which is
“in a manner that—
a.
promotes its purposes, values and principles;
b.
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c.
permits the development of the law; and
d.
contributes to good governance.
(2)
……
(3)
Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking….”
65.
By this provision therefore, the Constitution calls for its holistic interpretation. This has been our consistent determination in the court’s various decisions. In the case of 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 we stated that the court as “a custodian of the integrity of the Constitution as the country’s charter of governance, is inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for effecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of the Constitution.”
66.
We reiterated this in In the Matter of Kenya National Commission on Human Rights SC Reference 1 of 2012 [2014] eKLR where we found that holistic interpretation of the Constitution means “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.” [Emphasis added]
67.
It is for this reason that we agree with the submissions that no constitutional provision is more superior to the other. They all rank equally and must be all be interpreted and applied together to give them their full tenor and meaning. We are further guided by article 2(1) and (3) of the Constitution which provide for the supremacy of the Constitution over other laws and thereby its validity and legality are not subject to challenge by or before any court or other State organ.
68.
We take cognizance of the fact that the Constitution is very consistent in the date of the general elections in various articles other than article 177(1).
The election date is predicated on the election of MPs which is provided for under article 101(1) as follows:
“
101.
Election of Members of Parliament
(1)
A general election of Members of Parliament shall be held on the second Tuesday in August in every fifth year.”
On the elections for the position of the President and County Governors articles 136(2)(a) and 180(1) of the Constitution provide as follows:
136 2(a)
An election of the President shall be held— on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
…
180 (1)
The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.”
69.
We note that the designated date for general elections is not a set date but rather the second Tuesday in August, in every fifth year. Further, the Constitution provides that all elections for the positions of President, Governor, Senator, MPs and MCA must be held on the day. This much is clear without much contest.
70.
The Country held its third general elections in 2022 since promulgation of the Constitution on August 27, 2010. The 2017 general elections were held on August 8, 2017. While the 2022 general elections were held on August 9, 2022, thereby fulfilling the requirement of holding general elections every five years. It is for this reason that from the outset, we are clear in our view, that there does not exist a conflict between articles 177(4) and 177(1) of the Constitution, apparent or otherwise. If the two were to be put side by side, they can both be given effect at the same time as demonstrated by the continued election cycle.
71.
Having found that there is no conflict in the Constitutional provision of article 177(1) and (4), we must turn to why the Appellant is now before the court. More specifically, why the second general elections are alleged to have failed to follow the constitutional command in articles 177(1) and (4) with regard to the MCA’s term in office following the first general elections of 2013.
72.
After promulgation of the Constitution on August 27, 2010, the first general elections in the Country were held on March 4, 2013. This date was subject to litigation in in John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR and confirmed by the Court of Appeal in Centre for Human Rights Education and Awareness & 2 others v John Harun Mwau [2012] eKLR.
73.
The first elections under the Constitution were significant in the history of the country as we were shifting from the old constitutional order to the new one. In that period of transition, we were also shifting from the old way of carrying out Elections to the new method under the Constitution 2010. We were also, establishing a two-tier form of government, with the founding of the County Governments alongside County Assemblies. We are minded to reiterate the words of this court in Speaker of the Senate & another v Attorney General & 4 others, Sup Ct Advisory Opinion No 2 of 2013; [2013] eKLR as follows:
“
[160]
_The Constitution of 2010 was a bold attempt to restructure the Kenyan State. It was a radical revision of the terms of a social contract whose vitality had long expired and which, for the most part, was dysfunctional, unresponsive, and unrepresentative of the peoples’ future aspirations_. The success of this initiative to fundamentally restructure and reorder the Kenyan State is not guaranteed. It must be nurtured, aided, assisted and supported by citizens and institutions. This is why the Supreme Court Act imposes a transitional burden and duty on the Supreme Court. Indeed, constitutional relapses occur in moments of social transition, when individual or institutional vigilance slackens.
[161]
The Supreme Court has a restorative role, in this respect, assisting the transition process through interpretive vigilance. The courts must patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercise their constitutional mandates, being conscious that their very infancy exposes them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order.” [Emphasis added]
74.
Significant to the case before us was the fact that as a country, we were shifting from an unpredictable election date which was anchored in section 59 of the repealed Constitution. The election date, though it had an outer limit of five years pursuant to section 59(4), was pegged on the dissolution of Parliament by the President.
75.
It is this unpredictability that the Constitution of Kenya Review Commission (CKRC) in its Final Report of 2005 noted as one of the specific concerns by the people of Kenya. The Commission highlighted that the people did not want the President to have the power to determine the election dates. They wanted to see a more predictable, transparent and efficient system. It is for this reason that the Commission recommended that the general elections should be held on the first Tuesday of the second full week of August after every five years. Just like the Court of Appeal, we have also not found debate, discussion or rationale that informed the choice of date other than to accommodate the various religious groups. However, what is clear is that the intention of the framers of the Constitution was to remove the control the President had over the election date.
76.
The framers of the Constitution achieved this predictability of the election date by entrenching in articles 101(1), 136 (2), 177(1) and 180(1) that the general elections would be held on the same date for all the elective positions. They went a step further and designated the date to be “the second Tuesday in August, in every fifth year.”
77.
The first general elections following promulgation of the Constitution were held on March 4, 2013. This date was arrived at following the decision by the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR when it held as follows;
“
The result of the decision of the majority is that the order No 2(b) of the High Court that the elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat which is designated by Legal Notice No 1 of 2008 as January 15, 2008 and the term therefore expired on January 14, 2013 and the election shall be held within sixty days of 15th January, 2013 is confirmed.”
78.
We agree with the appellant’s submissions that this case is distinguishable from the present dispute as the main issue in contention therein was the first general election and not subsequent elections. We also agree that the courts therein were not called upon to make a determination on harmonizing the terms of office of MCAs pursuant to article 177(1) and (4) contrasted with other elective posts.
79.
Turning back to the present case, we note that the date of the first elections, March 4, 2013, was informed by the transition clauses of the Constitution. More specifically, section 9(1) of the sixth schedule of the Constitution which provided that the first elections under the Constitution were to be held within sixty days after the dissolution of the National Assembly. Vide Legal Notice No 1 of 2008, the term of the National Assembly commenced on January 15, 2008 and ended on January 14, 2013. Hence, sixty days later, was March 4, 2013, achieving the first hurdle in transitioning the elections of the country from the old constitutional dispensation to the new.
80.
In the case of Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others, SC Petition Nos 13 A, 14 & 15; of 2013 [2014] eKLR this court endorsed the depiction of the transitional concept by Lady Justice Sichale at the Court of Appeal in that appeal (Civil Appeal No 308 of 2012), as follows:
“When a new Constitution is introduced, a range of provisions [is] needed to ensure that the move from the old order to the new order is smooth and, in particular, …the changes expected by the new Constitution are
…effectively [implemented] [so as to sustain] [the] institutions that are retained under the new Constitution…. [Su ch] transitional provisions…are usually not included in the body of the Constitution because they have a temporary lifespan. Instead they are included in a schedule which is part of the Constitution but, because it is appended at the end….its provisions will not interfere with the permanent provisions of the Constitution in the future.”[Emphasis added]
81.
The transitional provisions of sixth schedule were only for a limited period of time and once they served their purpose, the nation reverted to the permanent provisions of the Constitution. On General Elections, we reverted to the date stipulated in articles 101(1), 102(1), 136 (2)(a), 177(1)(a) and 180(1). This was such that, after the first general elections was held, IEBC then had a constitutional duty to apply these provisions of the Constitution with regard to the future elections.
82.
This was not a simple duty, as IEBC had to decide between holding the elections in August of 2018, five years after 2013 or alternatively in August of 2017. IEBC elected to hold the second general elections on August 8, 2017. As has been evident throughout these proceedings, this date fell short of the five- year mark by eight (8) months. This was not just for the MCAs but for all elective positions.
83.
Perhaps what informed IEBC’s decision regarding the said election date in 2017, was to ensure the terms in office for all elected officials would not fall outside the constitutionally stipulated five years. Holding the election in August 2018 would have meant that the term in elective office for all officials would have been over and above the five-year timeline by approximately five months. We can infer that IEBC was trying to avoid generating a gap whereby the holders of the various elective offices would either not be legally in office, or if they elected to go home, then the elective offices would be vacant for eight months. The ramifications of such scenarios were far greater than that the office of the MCAs, as it cut across all elective positions. One such office being that of the President of the Republic of Kenya. This would have had the resultant effect of placing the country in constitutional crisis. It is our considered opinion that such an effect would not have been the intention of the framers of the Constitution. It would certainly not have been a reflection of the will of the people. As this court stated in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, SC Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated) [2014] eKLR, [par 206];
“
The transition chapter and clauses in the Constitution are meant not only to ensure harmonious flow from the old to the new order, but also to preserve the Constitution itself, by ensuring that the rule of law does not collapse owing to disruptions arising from a vacuum in the juridical order.”
84.
Further, as the Committee of Experts noted in their Final Report, transitional provisions are not contained in the body of the Constitution because they are of a temporary lifespan. Such provisions are usually considered technical, though they may have significant policy implications. Some of the transitional provisions provide that existing obligations, laws and rights will remain in force, until other laws or amendments to laws are enacted; and others provide that existing public offices will continue to function and operate, so as to prevent situations of gaps or vacuums in the discharge of the functions of these offices. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/66/eng@2022-10-28 |
Application 8 (E014) of 2022 | Janmohammed (Suing as the Executrix of the Estate of the Late H.E Daniel Toroitich Arap Moi) v Raiply Wood (K) Limited & 5 others (Application 8 (E014) of 2022) [2022] KESC 67 (KLR) (28 October 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 28 October 2022 | 2,022 | Nairobi | Civil | Janmohammed (Suing as the Executrix of the Estate of the Late H.E Daniel Toroitich Arap Moi) v Raiply Wood (K) Limited & 5 others | [2022] KESC 67 (KLR) | null | Brief facts
The appellant challenged the judgment and orders of the Court of Appeal delivered in Civil Appeal No 159 of 2019 (consolidated with Civil Appeal No 254 of 2019). The applicant sought for the Supreme Court to stay the execution of the Court of Appeal judgment pending the hearing and determination of the appeal.
The 3rd respondent raised a preliminary objection challenging the jurisdiction of the Supreme Court to determine the appeal and the application for stay of execution.
Issues
Whether an appeal on the applicability of the Limitation of Actions Act was applicable on claims of violation of fundamental rights and freedoms; and on the retrospective application of the Constitution met the jurisdictional threshold of the Supreme Court to determine an appeal as of right in any case involving the interpretation or application of the Constitution.
Whether the applicants had met the conditions necessary to warrant the grant of conditional stay. | Upon considering the petition dated July 28, 2022 and filed on August 1, 2022, which is brought pursuant to article 163(4)(a) of the Constitution, section 15 of the Supreme Court Act, 2011, and rules 3(5), 31 and 39 of the Supreme Court Rules, 2020, in which the appellant challenges the entire Judgment and orders of the Court of Appeal delivered on the July 22, 2022 in Civil Appeal No 159 of 2019 (Consolidated with Civil Appeal No 254 of 2019); and
2.
Upon perusing the notice of motiondated July 28, 2022 and filed on August 1, 2022, which is brought pursuant to article 163(4)(a) of the Constitution, sections 21 (1)
(a)
and 24(1) of the Supreme Court Act, 2011 and rules 3(5), 31 and 32 of the Supreme Court Rules, 2020, wherein the applicant seeks a stay of execution of the said Judgment and orders of the Court of Appeal pending the hearing and determination of the application and appeal; and
3.
Upon reading the supporting affidavit and further affidavit in support of the motion sworn by Zehrabanu Janmohammed (SC) on July 28, 2022and August 5, 2022, respectively and considering the grounds in support therein, mainly that the applicant has met the threshold for grant of stay; and
4.
Upon reading the 1st respondent’s replying affidavit sworn by Jaswant Singh Rai on August 4, 2022 and submissions dated August 4, 2022 in support of the application, wherein it is urged that the 1st respondent is equally aggrieved by the said Judgment and is in the process of filing an appeal before this court; and
5.
Upon considering the 3rd respondent’s replying affidavit and supplementary affidavit in opposition to the motion sworn by David K Chelugui on August 5, 2022 and August 31, 2022, respectively; raising a preliminary objection challenging the jurisdiction of this court to hear and determine the appeal and present motion; for the reasons that, no constitutional provisions of relevance or controversy were canvassed before the High Court or the Court of Appeal, and if any, that the two superior courts efficiently pronounced themselves upon them; and
6.
Upon considering the 6th respondent’s replying affidavit sworn by Brian Ikol on August 3, 2022 and submissions dated August 8, 2022, to the effect that no cause of action has been disclosed against it and that for this reason, the applicant should be condemned to bear its costs; and
7.
Further, Uponconsidering the written submissions by the applicant dated July 28, 2022 and further submissions dated August 8, 2022 to the effect that; the applicant is apprehensive that the 3rd respondent will commence execution of the decretal sum of Kshs 1,060,000,000 to the prejudice of the applicant’s estate, who in the event the court finds in its favour would bear an unreasonable burden recovering the decretal sum; and that the appeal is arguable and unless stay is granted, will be rendered nugatory. It is also urged that the court’s jurisdiction under article 163(4)(a) of the Constitution has been properly invoked as the appeal challenges the interpretation and application of articles 24 and 40 of the Constitution by both the High Court and Court of Appeal; and that in any event, by a letter dated August 2, 2022, the 3rd respondent unconditionally conceded the applicant had an automatic right of appeal; and
8.
Uponconsidering the 4th and 5th respondents’ submissions dated August 5, 2022 in support of the motion. Similarly, considering their contention that in order to protect the parties’ competing interests and to ensure justice is done to all the parties; the decretal sum herein be deposited in an interest earning account managed by counsel for the applicant and 1st and 2nd respondent; in the alternative, that the applicant be ordered to deposit in court any other security of equal value; or to issue a professional undertaking for the performance of the decree; or a prohibitory order be directed against the suit property herein; and
9.
Uponconsidering the written submissions by the 3rd respondent dated August 5, 2022, to the effect that the application is premature and frivolous for reasons that; there is no threat of execution against the estate of the late Daniel Toroitich Arap Moi; and that the applicant has failed to meet the threshold for grant of stay. Further, that the 3rd respondent is apprehensive that, if a stay is granted, the decree will be defeated. Consequently, it is his prayer that in the event the court is minded to grant a stay, it should simultaneously order the applicant to deposit the entire decretal sum with his advocates on record or to provide a bank guarantee from a licensed bank securing due performance of the decree; and
10.
Notingthat the applicant has filed Petition No E021 of 2022 as is required by rule 31(2) of the Supreme Court Rules, 2020 and directed by this court in Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others SC Petition No 27 of 2014; [2014] eKLR, and Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 oothers, Election Petition No 38 of 2018; [2019] eKLR.
We Now Opine as Follows:
11.
We have carefully considered the reasoned arguments and submission by all parties in this matter. Regarding the issue as to whether the court has jurisdiction to entertain the appeal, we are guided by the provisions of article 163(4)(a) of the Constitution and our interpretation thereof. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR (Lawrence Nduttu case), we stated the true intent of article 163(4)(a) of the Constitution as follows:
“This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court …. Towards this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.”
…
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. ...” [Emphasis added].
12.
We consequently emphasized in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No 10 of 2013; [2014] eKLR, that in order to transmute itself into the provisions of article 163(4)(a), the constitutional issue must have “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…” [Emphasis added].
13.
In this matter, the 3rd respondent’s case before the Environment and Land Court revolved around the protection of his right in the suit property under article 40 of the Constitution. The applicant on the other hand, contended that article 40 as invoked could not be applied retrospectively. Similarly, before the Court of Appeal, the applicant faulted the trial court for retrospectively applying the provisions of the Constitution, 2010 and for failing to find that the cause of action was barred by section 7 of the Limitation of Actions Act.
14.
In its Judgment, the Court of Appeal considered the question as to whether, claims of violation of rights and freedoms guaranteed under the Constitution, were subject to the Limitations of Actions Act, and secondly, whether the provisions of the Constitution of Kenya, 2010 could apply retrospectively. It consequently interpreted and applied the provisions of articles 24, 40 and 259(1) and dismissed the appeal for being unmeritorious. 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.
15.
On the substantive issue, the applicant’s Executrix has urged that she is apprehensive that the 3rd respondent will commence execution of the colossal decretal sum of Kshs 1,060,000,000, which would render her appeal nugatory. Having determined that we have jurisdiction, we also find that the appellant has demonstrated that the appeal is arguable, and that unless a stay is granted, it will be rendered nugatory. The application thus meets the principles set out in the Board of Governors, Moi High School, Kabarak & another v Malcom Bell SC Petition No 6 & 7 of 2013, [2013] eKLR as affirmed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014, [2014] eKLR on the threshold for grant of stay of execution.
16.
The 3rd, 4th and 5th respondents have also submitted that should the court deem it fit to grant stay, it should further direct the applicant to deposit the entire decretal sum in an interest earning account managed by counsel for the applicant and 1st and 2nd respondent or to provide a bank guarantee from a licensed bank securing the payment of the full Decree sum. The only ground advanced to support this assertion is that there has been perceived intermeddling in the Estate of the late Moi aforesaid and that it would also be in the interest of justice to do so. We find that the respondents have not sufficiently substantiated this allegation to warrant grant of conditional stay.
17.
In any event, the executrix of the estate/ of the late Moi/applicant is a party to these proceedings and is under a legal obligation to among other things collect, and preserve the estate for purposes of satisfying any resultant decree, awarded by this court. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/67/eng@2022-10-28 |
Petition 1 (E026/2021) of 2022 | Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Petition 1 (E026/2021) of 2022) [2022] KESC 65 (KLR) (28 October 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 28 October 2022 | 2,022 | Nairobi | Civil | Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others | [2022] KESC 65 (KLR) | null | Upon considering the Notice of Withdrawal taken out by the 1st to 5th petitioners in which they evinced their intention to withdraw the appeal on June 20, 2022; and
2.
Upon considering that when the matter was mentioned before the Deputy Registrar (Hon. Bernard Kasavuli), all the parties consented to the withdrawal with the 1st and 7th respondents insisting on costs; and
3.
Upon considering that the appeal was placed before a single Judge and marked as withdrawn with the question of costs being referred to a full bench.
4.
Upon considering the 1st respondent’s submissions dated August 4, 2022 concerning costs to the effect that this court, by the provisions of section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2020 has inherent power to award costs; that the filing of the appeal was unnecessary because, having been aggrieved by the decision of the High Court, the Petitioners lodged an appeal to the Court of Appeal, Civil Appeal No E017 of 2021, simultaneously with an application for stay of the High Court’s decision; that after the application was dismissed, and while their appeal was still pending before the Court of Appeal, the Petitioners filed the instant appeal together with an application for stay of execution when it was clearly premature to do so as there was no substantive judgment of the Court of Appeal from which an appeal could arise; and that due to this fact, this court struck out the application and therefore it was inevitable for the petitioners to withdraw the appeal; and
5.
Considering, furthermore, the 1st respondent’s argument that, though the petitioners were aware that it was premature to move to this court without a judgment of the Court of Appeal, they nonetheless proceeded to do so, wasting judicial and other parties’ time and resources; and for that reason, ought to be condemned to pay the 1st respondent’s costs of preparing court pleadings and attending court. | We now opine as follows:
i.
This court, by the cited provisions of section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020, has inherent jurisdiction to make orders as to costs.
ii.
The guiding principles applicable in the exercise of that discretion was enunciated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, in the words reproduced in the passage below:
“[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….
Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”
iii.
Applying these principles, we hold the view that, at the point of the withdrawal of the appeal, only some parties had peripherally participated in the filing of pleadings. For example, only the 1st and 7th respondents had filed separate Notices of Preliminary Objection together with submissions in support thereof. In addition, only the 7th respondent had filed submissions in opposition to the appeal. The rest of the respondents never filed any responses or submissions. That perhaps explains why these respondents have not pressed for costs. We further note that though the 7th respondent prays for costs, it did not file submissions on the issue, but instead only asked the court to exercise its discretion.
iv.
Further, while it ought to have been obvious to all that the appeal was stillborn for want of jurisdiction, we are cognizant of the fact that the petitioners and 1st Respondent are public institutions and the matter in dispute involved allowances for Members of Parliament, who are themselves holders of a public office. Considering that the dispute is one in the public sphere, attracting public interest, we think an order of costs against any of the parties would not, in those circumstances, be a fair exercise of discretion.
7.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/65/eng@2022-10-28 |
Petition 12 (E014) of 2022 | Barclays Bank of Kenya Limited ( Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party) (Petition 12 (E014) of 2022) [2022] KESC 60 (KLR) (7 October 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Barclays Bank of Kenya Limited ( Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party) | [2022] KESC 60 (KLR) | null | Brief facts
The Kenya Bankers Association (the applicant) filed the instant application in which it sought to be enjoined as an interested party and to adduce additional evidence.
The respondents opposed the joinder application on grounds that the applicant had failed to comply with the provisions of rule 24(1) of the Supreme Court Rules, 2020; failed to demonstrate the personal interest it had in the matter; had not shown any prejudice it stood to suffer if joinder was not granted and failed to set out its precise case and that whatever the applicant intended to bring to the petition was properly covered by the parties as the contested issues between the appellant and respondent.
Issues
Whether the applicants would be directly affected by the decision of the court in the instant matter and warranted being enjoined as an interested party in an appeal before the Supreme Court.
Whether the applicant had met the threshold for the introduction of additional evidence in an appeal before the Supreme Court.
Held
The applicant’s members who were also in the banking sector were likely to be directly affected by the outcome of the instant decision. That was an identifiable stake in the matter.
The applicant had not satisfied the threshold in rule 18 of the Supreme Court Rules in that he had failed to show that the additional evidence would, if given, influence or impact upon the result of the verdict or remove any vagueness or doubt within the case. The issues were plain and required no more than the applicant’s participation.
Application partly allowed. |
Order of the Court
1.
On October 7, 2022, this court delivered a ruling allowing the applicant’s notice of motion for joinder as interested party but dismissing the applicant’s prayer to file additional evidence. In the said ruling at paragraph 8, we erroneously indicated that rule 18 of the Supreme Court Rules 2020 is the rule applicable in admission of additional evidence. This was an inadvertent error as the correct rule should read as rule 26 of the Supreme Court Rules 2020.
2.
Section 21(4) of the Supreme Court Act clothes this court with general powers to correct any apparent errors in its judgments, rulings and/or orders as follows:
“
General powers.
(4)
The court may, on its own motion or application by any party with notice to the other or others, correct any oversight or clerical error of computation or other apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the court.”
3.
As a result, we hereby order as follows:
i.
The ruling is corrected by deleting ‘rule 18’ and inserting therein the correct rule being “rule 26”.
4.
This ruling is accordingly amended, and this order shall constitute part of the ruling of the court.
Ruling of the Court
1.
Upon perusing the notice of motion by Kenya Bankers Association, the applicant, dated July 7, 2022 and filed on July 8, 2022 brought pursuant to section 24 of the Supreme Court Act 2011, rule 3(1), (2), (4) and (5) and 24 of the Supreme Court Rules, 2020 and Direction 55(a) of the Supreme Court (General) Practice Directions, 2020 for leave for joinder as an interested party and to submit additional evidence and written submissions on the petition herein; and
2.
Upon considering the grounds in support of the application and the supporting affidavit of Dr Habil Olaka, the applicant’s Chief Executive Officer where the applicant claims to have a direct interest in the petition being the body bringing together banking institutions licensed and regulated by the Central Bank of Kenya; that the question of whether the disputed payments are subject to withholding tax is an important question within the banking industry that would affect all the applicant’s members; that should this court decide in the respondent’s favour, all the applicant’s members will receive assessments from the respondent for payment of withholding tax on interchange and professional fees; that the payment of such taxes will lead to loss of business as the cost will be borne by their customers; and
3.
Upon considering the applicant’s written submissions dated July 7, 2022 contending that it has met the requirements under rule 24 of the Supreme Court Rules, 2020 and that it has demonstrated that it has a stake/ interest in the matter, stands to suffer prejudice should it not be joined, advanced relevant arguments as a proposed interested party relevant to the petition as was determined in Francis Karioki Muruatetu & another v Republic & 5 others, SC Petitions No 15 and 16 of 2015; [2016] eKLR (Muruatetu case) and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, SC Petition No 12 of 2013; [2014] eKLR (Mumo Matemu case);and
4.
Also considering the argument by the applicant that it has met the threshold to be granted leave to adduce additional evidence by way of an affidavit as was set out in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohammad & 4 others; SC Petition No 7 of 2018; [2018] eKLR;
5.
Further considering the consent dated July 28, 2022 and lodged on July 28, 2022 where the petitioner does not oppose the applicant’s notice of motion for joinder as an interested party;
6.
And further considering the respondent’s replying affidavit sworn by Philip Munyao, an officer with the respondent’s Large Taxpayer’s Office (LTO) and written submissions opposing the joinder of the applicant as an interested party contending that the applicant has failed to comply with the provisions of rule 24(1) of the Supreme Court Rules, 2020; failed to demonstrate the personal interest it has in the matter; has not shown any prejudice its stands to suffer if joinder is not granted and failed to set out its precise case as was held in Mumo Matemu and Muruatetu and; that whatever the applicant intends to bring to the petition is properly covered by the parties as the contested issues between the appellant and respondent are largely factual and uncontested; and
7.
Noting the provisions of rule 24 of the Supreme Court Rules, 2020 and the principles set out in this court’s decisions in Mumo Matemu and Muruatetu on the joinder of an applicant as an interested party, we find that the application conforms to the principles laid out in that the applicant’s members who are also in the banking sector shall also be directly affected by the outcome of this decision. This is an identifiable stake in the matter and we so find.
8.
Also noting that the applicant has also prayed and submitted that they be allowed to adduce additional evidence, Upon consideration of rule 26 of this Court’s rules and the principles set out in Mohamed Abdi Mahamad v Ahmed Abdullahi Mohamed & 3 others, it is our finding that the applicant has not satisfied the threshold set out therein by failing to show that the additional evidence would ,‘if given, influence or impact upon the result of the verdict, or removes any vagueness or doubt within the case’. The issues are plain and do not require no more than the applicant’s participation for reasons given above. This prayer therefore fails.
9.
Accordingly, we make the following orders:
a.
The application dated July 5, 2022 and lodged on July 8, 2022 by Kenya Bankers Association for joinder as interested party is allowed. It shall file its affidavit in response to the petition within 14 days of this order. Any party that wishes to file a rejoinder to that affidavit may do so within 14 days of service.
b.
Parties shall bear their respective costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/60/eng@2022-10-07 |
Petition 12(E014) of 2022 | Barclays Bank of Kenya Ltd (Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Retail Trade Association of Kenya (RETRAK) Through its Officials Leonard Mudachi John Muthee and Kenneth Karoki (Proposed Interested Party) (Petition 12(E014) of 2022) [2022] KESC 63 (KLR) (Civ) (7 October 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Barclays Bank of Kenya Ltd (Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Retail Trade Association of Kenya (RETRAK) Through its Officials Leonard Mudachi John Muthee and Kenneth Karoki (Proposed Interested Party) | [2022] KESC 63 (KLR) | null | Upon perusing the Notice of Motion by the Applicant, Retail Traders Association, dated July 7, 2022 and filed on July 8, 2022 brought pursuant to Section 3 of the Supreme Court Act 2011 and Rule 24 of the Supreme Court Rules, 2020 for leave for joinder as an interested party; and
2.
Upon considering the grounds in support of the application and the supporting affidavit by Rosalin Wambui Wamwiri, the Chief Executive Officer of the applicant where the applicant claims to be the central administrative body that conveys the views of the applicant’s members to the Government and relevant bodies; that the applicant plays an important role in the scheme of service that involves payment of goods and services by way of debit and credit cards within the retail industry and; that the applicant intends to guide the Court on the interpretation of Section 35 of the Income Tax Act and its import on imposing tax management and professional fees on interchange fees; and
3.
Also considering the applicant’s written submissions dated July 7, 2022 contending that it has met the requirements under Rule 24 of the Supreme Court Rules, 2020 and that it has demonstrated that it has a stake/ interest in the matter, stands to suffer prejudice should it not be joined and will advance relevant arguments pertinent to the petition if joined as an interested party; | Further considering the respondent’s replying affidavit sworn by Philip Munyao, an officer with the Respondent’s Large Taxpayer’s Office (LTO) and written submissions opposing the joinder of the applicant as an interested party contending that the applicant has failed to comply with the provisions of Rule 24(1) of the Supreme Court Rules, 2020, failed to demonstrate the personal interest in the matter nor any prejudice its stands to suffer if not joined and has also failed to set out its case with precision as was held in Francis Karioki Muruatetu & another v Republic & 5 others, SC Petitions No. 15 and 16 of 2015; [2016] eKLR (Muruatetu Case) and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, SC Petition No. 12 of 2013; [2014] eKLR (Mumo Matemu Case)and; that whatever the applicant intends to bring to the petition is properly covered by the parties as the contested issues between the appellant and respondent are largely factual and uncontested; and
5.
Having considered the provisions of Rule 24 of the Supreme Court Rules, 2020 and the principles set out in this Court’s decisions in Mumo Matemu and Muruatetu on the joinder of an applicant as an interested party, we find that the applicant has failed to clearly identify the precise and specific interest it has in the matter. Its mandate is also peripheral to the issues in contestation and with respect, we do not see what issues of law or fact it will submit to court outside those already on record. Furthermore, we have not been shown any prejudice they stand to suffer in case of non-joinder. We therefore find no merit in the application and we accordingly dismiss it.
6.
There shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/63/eng@2022-10-07 |
Petition 30 of 2019 | Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others (Petition 30 & 31 of 2019 (Consolidated)) [2022] KESC 59 (KLR) (7 October 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others | [2022] KESC 59 (KLR) | null | Brief facts
A complaint had been lodged before the 1st appellant, the Ethics and Anti-Corruption Commission (EACC), alleging Kshs. 280 million had been fictitiously paid into the 1st respondent’s advocate-client bank account. Based on that allegation, the EACC obtained warrants ex-parte to investigate and inspect the bank account. Aggrieved, the 1st respondent filed a constitutional petition contending that the warrants had been issued ex-parte and had been obtained and enforced secretly without notice.
The 1st respondent urged that the EACC’s actions amounted to an infringement of his right to privacy, property, fair administrative action, and fair hearing and contradicted sections 28(1, (2), (3), and (7) of the Anti-Corruption and Economic Crimes Act (ACECA), which required the EACC to issue a notice informing him of its intended application and allowing him to be heard before a court could legitimately issue any warrants.
The High Court held, among others, that the warrants to investigate the bank account breached the 1st respondent’s rights and fundamental freedoms under the provisions of articles 47(1), 47(2), and 50(1) of the Constitution, hence void for all intents and purposes. Aggrieved, the appellants lodged appeals at the Court of Appeal, while the 1st respondent also filed a cross-appeal against part of the judgment. The Court of Appeal upheld the High Court decision and dismissed both the appeals and cross-appeal for lack of merit. The appellants were further aggrieved and thus filed the instant appeal.
Issues
What were the factors to be considered before the issuance of notices by the Ethics and Anti-Corruption Commission to those it intended to investigate?
Whether the Ethics and Anti-Corruption Commission was required to always give prior notice to those it intended to investigate before commencing an investigation.
What was the nature of the Ethics and Anti-Corruption Commission’s mandate in combating corruption and economic crimes in society?
What was the definition and scope of what amounted to an administrative action?
Whether the Ethics and Anti-Corruption Commission’s investigative and arresting powers could be described as administrative actions?
What were the factors to consider when invoking the Supreme Court’s appellate jurisdiction as a matter involving the interpretation or application of the Constitution? | E.Analysis
i.On jurisdiction
42.
The 1st respondent has challenged this court’s jurisdiction under article 163(4)(a) of the Constitution. He contends that the consolidated appeal does not raise any issues involving the interpretation or application of the Constitution, or cogent issues of constitutional controversy. It is argued that all the appellants seek, is the interpretation of statutory provisions. Moreover, he maintains that the appeal is moot as the impugned warrants were issued and effected, hence spent. Conversely, the appellants urge that the appeal raises issues of constitutional interpretation and application, which have arisen through the judicial hierarchy. The 3rd respondent agrees with this contention.
43.
Article 163(4)(a) stipulates:
“
Appeals shall lie from the Court of Appeal to the Supreme Court—
a.
as of right in any case involving the interpretation or application of this Constitution; and
b.
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)” [emphasis added].
44.
This court has settled the law on when an appeal lies to this court under article 163(4)(a) of the Constitution. In Lawrence Nduttu Case the court observed:
“
[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)’’ [emphasis ours].
45.
Subsequently, in the Munya Case, the court in determining whether it had jurisdiction under article 163(4)(a) of the Constitution stated that:
“
The import of the court’s statement in the Ngoge Case}} is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application” [emphasis added].
46.
Flowing from the above, it is settled that for a litigant to invoke this court’s appellate jurisdiction under article 163(4)(a) of the Constitution, it must be demonstrated that the matter in issue revolves around constitutional contestation that has come through the judicial hierarchy, running up to the Court of Appeal and requiring this court’s final input. At the very least, an appellant must demonstrate that the 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.
47.
Upon an extensive examination of the record, it is apparent that the issue before the trial court was whether warrants issued ex-parte infringed the 1st respondent’s rights enshrined in articles 27, 40, 47 and 50 of the Constitution. The 1st respondent sought a declaration, among others, that the impugned warrants breached his rights and fundamental freedoms protected under articles 27, 31, 40, 47 and 50 of the Constitution of Kenya.
48.
The High Court partly found for the 1st respondent. It determined that the 1st appellant’s actions or omission were in breach of the 1st respondent’s right to fair administrative action and fair hearing under articles 47 and 50 of the Constitution. On appeal, the appellate court upheld the High Court. The appeal before us raises inter alia the issue as to whether investigations by the 1st appellant constitute an administrative action subject to article 47 of the Constitution as read with articles 10 and 24 of the Constitution. The superior courts’ finding on violations of the 1st respondent’s rights under articles 47 and 50 of the Constitution is challenged.
49.
From the foregoing, we are convinced that the issues before the High Court and Court of Appeal, leading to the impugned judgments squarely bring the instant appeal within the ambit of article 163(4)(a) of the Constitution. Besides, the 1st respondent having filed a constitutional petition and succeeded before the two superior courts, cannot now claim that the resultant appeal therefrom is not sustainable under article 163(4)(a) of the Constitution. We consequently find that we have the jurisdiction to hear and determine it.
50.
The 2nd respondent also submits albeit tangentially, that this court lacks jurisdiction on ground of mootness. It is his argument, that the impugned warrants which triggered the appeals were sought, issued and enforced in 2015, and as such, there is no justiciable issue between the parties. We find this argument far-fetched given the fact that the enforcement of the impugned warrants did not resolve the grievances that have remained live up-to this day. Indeed, it was the issuance of those warrants that prompted the 1st respondent to move to the High Court seeking to have them quashed. The question of when an issue is to be regarded to have become moot was extensively addressed by this court in Institute for Social Accountability & another v National Assembly & others (Petition No 1 of 2018) [2022] KESC 39 (KLR) (Civ) (8 August 2022) (Judgment).
ii. Whether investigations by the 1st appellant constitute an administrative action within the meaning of article 47 of the Constitution
51.
The appellants contend that the provisions of article 47 of the Constitution and the FAA Act are not applicable as the 1st appellant’s investigative function is not administrative but rather amounts to law enforcement. The appellants therefore urge that they did not act ultra-vires their lawful mandate as the impugned warrants were obtained pursuant to the provisions of sections 27, 28(1), 28(2), 28(3) and 28(7) of ACECA, Section 180 of the Evidence Act and section 118 of the CPC.
52.
In response, it is the 1st respondent’s case that in seeking warrants to investigate his bank account, the appellants violated his rights to fair administrative action. He urges that the 1st appellant’s failure to issue him with a notice in writing of its application to the 5th respondent, was in violation of sections 27 and 28 of ACECA. Therefore, the question before court is whether the 1st appellant’s investigations under the provisions of ACECA can be said to constitute administrative action under article 47 of the Constitution and the FAA Act.
53.
Article 47 of the Constitution protects the right to fair administrative action in the following terms:
“
47. (1)
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2)
If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3)
Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall–
a.
provide for the review of administrative action by a court or, if appropriate, and independent and impartial tribunal; and
b.
promote efficient administration.”
54.
So, what constitutes “an administrative action” within the meaning of article 47(1) of the Constitution? Articles 47 and 260 of the Constitution do not define an “administrative action”. Section 2 of the FAA Act which was enacted to give effect to article 47, defines ‘administrative action’ as follows:
“Administrative action” includes—
i.
the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or
ii.
any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”.
55.
Unfortunately, the foregoing definition does not provide an accurate picture of the meaning of an “administrative action” as it simply addresses the elemental aspects of the phenomenon before describing its nature. On the face of it therefore, any power, function, and duty exercised by authorities or quasi-judicial tribunals constitutes an “administrative action”. Likewise, any act, omission or decision of any person that affects the legal rights or interests of any person to whom such action relates constitutes an “administrative action”. Such definition, without more, would bring within the ambit of an “administrative action” just about anything done, or any exercise of power by an “authority” or “quasi-judicial tribunal”.
56.
A close scrutiny of article 47 of the Constitution gives a glimpse of what an
“
administrative action” entails. Towards this end, the said Article provides that:
…
3.
Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall–
(b)
promote efficient administration.”
57.
By stipulating that the legislation so contemplated has to among other things, promote efficient administration, the Constitution leaves no doubt that an “administrative action” is not just any action or omission, or any exercise of power or authority, but one that relates to the management of affairs of an institution, organization, or agency. This explains why such action is described as “administrative” as opposed to any other action. The Concise Oxford Dictionary (9th Ed) defines the word “administrative” as “concerning or relating to the management of affairs” Black’s Law Dictionary, (11th Ed) defines “administrative action” to mean “a decision or an implementation relating to the government’s executive function or a business’s management”. Burton’s Legal Thesaurus (4th Ed) defines the adjective “administrative” to mean among others, “directorial, guiding, managerial, regulative, supervisory.
58.
Does the 1st appellant’s investigative powers fall within the corners of this definition? Part IV of the ACECA specifically provides for the 1st appellant’s investigative powers. The powers granted therein include powers, privileges and immunities of a Police Officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, these powers when exercised cannot be described as “administrative action” within the meaning of article 47. For example, how can “conducting a house search” or “effecting an arrest” be considered as exercising administrative action? On the contrary, these are special powers conferred by a specific legal regime, to be exercised for a special purpose.
iii. Whether the 1st respondent’s fundamental rights and freedoms were violated by the 1st appellant’s investigative actions against him
59.
In his response, the 1st respondent maintains that by commencing and conducting investigations against him in the manner that it did, the 1st appellant violated his fundamental rights and freedoms guaranteed by the Constitution. In particular, he submits that his right to fair administrative action was violated by the 1st appellant due to its failure to issue Notice before commencing the investigations against him.
60.
Article 20(1) of the Constitution, provides that the Bill of Rights applies to all and bind all State organs and all persons. It entrenches the enjoyment of rights and fundamental freedoms in the Bill of Rights by every person and to the greatest extent consistent with the nature of the right or fundamental freedom. The right to fair administrative action, that is expeditious, efficient, lawful, reasonable and procedurally fair is one such right under the Bill of Rights.
61.
Having already concluded that the investigative actions of the 1st appellant cannot be categorized as “administrative action” within the context of article 47 of the Constitution, we find no basis upon which we can hold, that the 1st respondent’s rights were violated for failure to observe the requirements of the said article. Therefore, in the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of this claim.
iv. Whether the 1st appellant is inflexibly bound to issue prior notice before applying for warrants
62.
It was the Court of Appeal’s finding that the EACC is inflexibly bound to comply with the provisions of sections 26, 27 and 28 of ACECA. This finding is challenged by the 1st appellants on grounds that the omnibus interpretation and application of article 47 of the Constitution renders the EACC ineffective in the discharge of its constitutional mandate. The 2nd appellant also urges that the ex- parte application was in accordance with the principles set out under article 24 of the Constitution. This being the case, he argues, the appellate court misinterpreted the provisions of sections 23(4) vis- à-vis the provisions of sections 26, 27 and 28 of the ACECA. It was the appellants’ argument that the appellate court’s finding departed from its earlier decisions, without giving reasons. The 1st and 3rd respondents support and agree with the Court of Appeal’s finding.
63.
To ascertain the correct legal position, we must interrogate, interpret and apply the provisions of sections 23, 26, 27 and 28 of the ACECA. Section 26 provides:
(1)
If, in the course of investigation into any offence, the Secretary is satisfied that it could assist or expedite such investigation, the secretary may, by notice in writing, require a person who, for reasons to be stated in such notice, is reasonably suspected of corruption or economic crime to furnish, within a reasonable time specified in the notice, a written statement in relation to any property specified by the Secretary and with regard to such specified property—
a.
enumerating the suspected person’s property and the times at which it was acquired; and
b.
stating, in relation to any property that was acquired at or about the time of the suspected corruption or economic crime, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property…” [emphasis added].
64.
Section 27 of the ACECA provides:
“
1.
The Commission may apply ex-parte to the court for an order requiring an associate of a suspected person to provide, within a reasonable time specified in the order, a written statement stating, in relation to any property specified by the Secretary, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property.
2.
In subsection (1), “associate of a suspected person” means a person, whether or not suspected of corruption or economic crime, who the investigator reasonably believes may have had dealings with a person suspected of corruption or economic crime.
3.
The Commission may by notice in writing require any person to provide, within a reasonable time specified in the notice, any information or documents in the person’s possession that relate to a person suspected of corruption or economic crime.
4.
A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
5.
No requirement under this section requires anything to be disclosed that is protected by the privilege of advocates including anything protected by section 134 or 137 of the Evidence Act (cap 80.).”
65.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/59/eng@2022-10-07 |
Petition 17(E024) of 2021 | Kenya Electricity Transmission Co. Ltd (KETRACO) v Instalanciones Inabensa S.A (Petition 17(E024) of 2021) [2022] KESC 64 (KLR) (Civ) (7 October 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Kenya Electricity Transmission Co. Ltd (KETRACO) v Instalanciones Inabensa S.A | [2022] KESC 64 (KLR) | null | Upon perusing the Notice of Motion taken out by the Appellant/Applicant on 6th May, 2022 and filed on 27th May, 2022, pursuant to Sections 21 and 24 of the Supreme Court Act 2011, Rule 31 as well as Rule 32 of the Supreme Court Rules 2020, for the following Orders:
“
i)
…Spent
ii)
…Spent
iii)
That a Conservatory Order do issue maintaining the status quo prevailing prior to the Court of Appeal Ruling delivered on 19th November 2021 and to prevent the Respondent from executing the Arbitration Award dated 30th July, 2019 and recognized as a Decree of the High Court by a Ruling delivered by the High Court on 12th February 2021 (M. Odero, J.) pending the hearing and determination of the Petition of Appeal.
iv)
That costs of this Application be provided for.”
[2]
UPON reading the affidavit by Ms. Lydia Wanja, the Applicant’s Manager Legal Services, sworn on 6th May, 2022 in support of the Motion; and
[3]
Upon considering the applicant’s submissions dated 6th May, 2022 wherein the applicant contends that it has a right of appeal under Article 163(4)(a) of the Constitution; that the Court of Appeal failed to properly invoke its jurisdiction under Article 164(3) of the Constitution to determine whether or not to grant leave to appeal a decision of the High Court under Section 35 of the Arbitration Act in the manner stipulated by this Court in the decisions in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (Interested Party), SC Petition No. 12 of 2016; [2019] eKLR and Synergy Industrial Credit Limited v. Cape Holdings Limited, SC Petition No. 2 of 2017; [2019] eKLR; that the failure has led to infringement of the applicant’s rights under Articles 25(c) and 50(1) of the Constitution; that the appeal has a constitutional trajectory; and that Section 24 of the Supreme Court Act grants this Court the jurisdiction to grant the orders sought herein; and
[4]
FURTHER, that the applicant has an arguable appeal for the reason that instead of applying the threshold enunciated by this Court in the Nyutu Case the Court of Appeal based its decision on the validity of a Notice of Appeal under Section 75 of the Civil Procedure Act, as a result of which the applicant’s rights have been infringed; that the court’s interrogation on the validity of the Notice of Appeal was unlawful as no leave to appeal had been granted. In view of the foregoing, the applicant posits that the appeal will be rendered nugatory because: colossal sums are involved in the dispute and the Respondent is facing financial difficulties following its listing as a debtor in a voluntary petition for Non-Individual filing for Bankruptcy by its affiliate company, Albeinsa Holdings Inc. being cause No.16- 10790 filed in the United States of America Bankruptcy Court of the District of Delaware; that should the appeal succeed after the funds have been paid out to it, the respondent will not be able to make restitution to the applicant; and finally, that the applicant being a public institution, it is in the public interest that the funds be secured from the risk of execution pending determination of the appeal; and
[5]
Upon reading the respondent’s replying affidavit by Mr. Pablo Infante Cossio, the General Manager of the respondent, sworn on 14th June 2022 in opposition to the motion; and
[6]
| Upon reading the respondent’s replying affidavit by Mr. Pablo Infante Cossio, the General Manager of the respondent, sworn on 14th June 2022 in opposition to the motion; and
[6]
Upon considering the respondent’s submissions dated 16th June, 2022 to the effect that the Motion is devoid of merit and is solely intended to deny the respondent the fruits of judgment made in its favour; that it has been over 6 years since the dispute arose on 25th April, 2016 contrary to the fundamental pillars of arbitration that emphasizes on party autonomy, finality of arbitral awards and non- interference by courts; and that the application does not meet the conditions for the grant of conservatory orders, first for having failed to demonstrate that the appeal is arguable in the absence of leave to appeal as set out in the Nyutu Case. On the nugatory aspect, the respondent submits that this being a money decree and in view of the fact that the award can be reversed, the appeal, if successful will not be rendered nugatory; and that, in any case the applicant has not offered security as a condition precedent for the conservatory orders sought. Finally, the respondent submits that the only argument advanced by the applicant is that it is a public institution run on public funds, yet both courts below have found that the dispute was purely commercial and not one relating to public funds; and that it is not enough for the applicant to claim that it is a custodian of public funds for which reason it ought to be shielded from execution without demonstrating the jeopardy likely to be suffered should the funds, the subject of the award be paid to the respondent; and
In the above context, We Now Opine as follows:
[7]
Acknowledging that the applicant did not have an automatic right of appeal to the Court of Appeal from a decision of the High Court under Section 35 of the Arbitration Act, it must, of necessity follow that the question whether or not to grant leave to appeal was a discretionary exercise of judicial power by the Court of Appeal. In an appeal from a decision based on the exercise of discretionary powers, an applicant has to show that the decision was based on a whim, was prejudicial or was capricious and this Court stated in Deynes Muriithi & 4 others v. Law Society of Kenya & Another, SC Application No. 12 of 2015; [2016] eKLR, that, as the ultimate custodian of constitutional integrity, it may interfere with the exercise of discretion by another court where it is satisfied that that court misapplied the law or the orders made by that other courts are in conflict with express provisions of the Constitution and destined to occasion grave injustice.
[8]
Further,we stress, as we did in Daniel Kimani Njihia v Francis Mwangi Kimani & Another SC Application No. 3 of 2014; [2015] eKLR, that not all decisions of the Court of Appeal are subject to appeal to this Court. For example, discretionary pronouncements by the Court of Appeal is one of the categories of decisions falling outside the set of questions appealable to this Court. Such discretionary decisions are by no means the occasion to turn this Court into a first appellate Court.
[9]
Restating the settled position that the mere citing of Article 163(4)(a) and pleading that a question of application and interpretation of the Constitution is involved in an appeal per se would not be sufficient to clothe this Court with jurisdiction to entertain the appeal. See Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012; [2012] eKLR.
[10]
Secondly, for an appeal to lie to the Supreme Court from the Court of Appeal under Article 163(4)(a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination. See Peter Oduor Ngoge v Francis Ole Kaparo & 5 Others, SC Petition No. 2 of 2012 [2012] eKLR. This principle emphasises the limits of the power exercised by the Supreme Court. It cannot extend it beyond its jurisdictional limits prescribed to those of the courts and tribunals below it.
[11]
Bearing in mind that the application seeks a conservatory order, it is important to observe here that in the entire text of the Constitution the phrase “conservatory order” appears only in Article 23 of the Constitution, as one of the instruments available to courts in the protection and enforcement of constitutional freedoms and fundamental rights.
[12]
That being the case, the next and final principles applicable to an application for conservatory order is that, a party seeking the relief must demonstrate that, unless the Court grants the order, there will be real danger of that party suffering prejudice as a result of the violation or threatened violation of the party’s constitutional rights. Therefore, an application for conservatory orders as enunciated in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014; [2014] eKLR, must satisfy the following strictures;
a)
The Appeal or intended appeal is arguable and not frivolous,
b)
Unless the orders sought are granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory, and
c)
That it is in the public interest to grant the conservatory orders sought.
[13]
To determine the question whether or not an appeal is arguable, the Court must not interrogate the merit of the appeal or make definitive findings of either fact or law at this stage as doing so may embarrass the Court when finally called upon to determine the appeal itself. An arguable appeal is, therefore not one which must necessarily succeed, but one which ought to be argued fully on its merits before the court.
[14]
On the nugatory aspect, the court is only concerned with the question whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved. See the decision of the Court of Appeal in Stanley Kangethe Kinyanjui v Tony Ketter & 5 others Civil Application No 31 of 2012; [2013] eKLR.
[15]
Is it in the public interest to grant the conservatory orders? A matter will qualify as one of public interest if it is one in which a class of the community has a pecuniary interest or some interest by which their legal rights or liabilities are affected. See Nubian Rights Forum & 2 others v. Attorney General & 6 Others; Child Welfare Society & 8 0thers (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae), Consolidated HC Petition Nos. 56, 58 & 59 of 2019; [2019] eKLR. A matter is in the public interest if is presented as a means of advancing human rights and equality, or raises issues of broad public concern.
[16]
Guided by all the foregoing principles we consider, first that from the dispute before the arbitrators (Tribunal) was one of breach of contract with the High Court declining to set aside the award and instead recognizing it as binding and enforceable. Before the Court of Appeal, the applicant sought an order to stay the decision of the High Court and leave to challenge it. It is therefore doubtful, for these reasons, that any question of interpretation or application of the Constitution would arise from the determination of the two courts. We do not think it is enough to clothe the Court with jurisdiction to merely make reference in the application before the two courts to the fact that the application was anchored on certain provisions of the Arbitration Act, Civil Procedure Act as well as the Court of Appeal Rules “as read with” certain Articles of the Constitution.
[17]
Consequently we take the view, without conclusively determining the issues in contention, that these principles have not been satisfied and the three conditions precedent for the grant of a conservatory relief have not been met. For the reasons given in paragraph 16 above, the appeal is not arguable. We too are not convinced that the appeal will be rendered nugatory, or that it is in the public interest to grant the conservatory orders sought.
The motion, for these reasons fails and is dismissed with costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/64/eng@2022-10-07 |
Petition 16 of 2020 | Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (7 October 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Kenya Hotel Properties Limited v Attorney General & 5 others | [2022] KESC 62 (KLR) | null | A. Introduction
1.
This petition of appeal dated and lodged on August 28, 2020 is brought pursuant to the provisions of article 163(4)(a) of the Constitution. The appellant seeks to set aside the Judgment of the Court of Appeal (Makhandia, Kiage, and Murgor, JJA) in Civil Appeal No 404 of 2018 delivered on August 7, 2020 which affirmed the High Court (Mwita, J) Judgment in Constitutional Petition No 438 of 2015 delivered on September 28, 2018.
B. Background
2.
The appellant and the 4th respondent have been involved in multiple and endless proceedings around the same dispute involving land ownership for a period spanning over two decades. The origin of the dispute is hereby traced as follows;-
3.
Willesden Investment Ltd, the 4th respondent, as the registered proprietor of LR No 209/12748 IR No 66986 (the property) filed HCCC No 367 of 2000 Nairobi against Kenya Hotel Properties Ltd, the appellant. It sought damages for trespass and mesne profits arising from the appellant’s use of the property as a parking lot, having leased it from the Nairobi City Council to which the appellant was paying rent. In a Judgment delivered on December 14, 2006, the High Court (OK Mutungi, J) awarded the 4th respondent Kshs 54,102,400 in mesne profits; Kshs 10,000,000 in general damages for trespass and; Kshs 6,000,000 for loss of business opportunity plus interest and costs.
4.
The appellant appealed the High Court decision at the Court of Appeal (O’Kubasu, Onyango-Otieno & Aganyanya, JJA) in Civil Appeal No 149 of 2007. In a Judgment delivered on April 2, 2009, the Court of Appeal reduced the award by the High Court to Kshs 22,729, 800 with interest at court rates from January 1994 to the date of payment.
5.
Further aggrieved by that judgment, the appellant filed an application for review of the said judgment before the Court of Appeal. The same bench that had heard the substantive appeal (O’Kubasu Onyango-Otieno and Aganyanya, JJA) delivered its ruling on September 20, 2009 partially allowing the application for review to the effect that interest on court rates would start running from September 15, 1995 and not January 1994.
6.
The appellant’s claim is predicated on the outcome and report by the Judges and Magistrates Vetting Board, (‘The Board’). This Board was established under section 23 of the 6th schedule of the Constitution of Kenya that was vested with power of vetting the suitability of all serving Judges and Magistrates who were in office on the effective date of the promulgation of the Constitution. A complaint was lodged by the appellant against O’Kubasu JA over his handling of Civil Appeal No 149 of 2007 largely alleging bias on the part of the said Judge. In a decision issued on April 25, 2012, the Board made a determination that:
“
At the same time, the judgment, which was principally authored by the judge, contains anomalies evident from the record concerning whether arguments about the existence or otherwise of the trespass had been considered at all in the judgment; the basis on which damages were computed and the manner in which interest was to be calculated. Taken together and coupled with the judge’s resolute refusal to reconsider and reflect upon what appears to be manifest incongruities, they suggest a worrying lack of capacity on the part of the judge for objective and persuasive reasoning.”
7.
It was this finding that partly actualized the Board’s finding of unsuitability of O’Kubasu JA to continue holding the position of a judge. O’Kubasu JA filed an application for review of that decision but the Board dismissed the application on July 20, 2012, and so he stood removed as a Judge.
8.
It is upon that basis of removal of the Judge as one of the members of the bench who determined Civil Appeal No 149 of 2007 that the appellant sought to have the judgment issued in Civil Appeal No 149 of 2007 annulled by claiming that its rights and fundamental freedoms were violated. | E. Analysis and Determination
41.
Having considered the respective parties’ pleadings and submissions in the instant petition, this court is of the considered view that the issues arising for determination are:
i.
Whether the High Court had the jurisdiction to grant reliefs sought by the appellant
ii.
If not, what other remedies are available to the appellant?
42.
We shall determine each issue separately as here below:
i Jurisdiction
43.
Following the above, it is evident that the real issue in controversy before this court is the finding by the High Court that it lacked jurisdiction to grant the constitutional reliefs sought by the appellant in Constitutional Petition No 438 of 2015. The jurisdiction of the High Court to determine the petition was challenged primarily on the premise that the appellant sought to have the High Court annul the decision in Civil Appeal No 149 of 2009 that was delivered by the Court of Appeal which is a court superior to the High Court. It would in that context be best to repeat the reliefs sought before the High Court for emphasis:
1.
A declaration that the Court of appeal judgment dated April 2, 2009 in Nairobi Civil Appeal No 149 of 2007- Kenya Hotel Properties v Willesden Investments Limited is a nullity and should be set aside on account of judicial bias following the removal of the Judge of appeal Emmanuel Okelo Okubasu by the Judges and Magistrates Vetting Board on April 25, 2012 following a complaint over his handling of the appeal.
2.
A declaration that the petitioner’s right to a fair trial under article 50 of the Constitution was infringed by the bias shown by the presiding judge in Nairobi Civil Appeal No 149 of 2007- Kenya Hotel Properties v Willesden Investments Limited.
2.
A declaration that the judgment dated April 2, 2009 in Nairobi Civil Appeal No 149 of 2007- Kenya Hotel properties v Willesden Investments Limited cannot stand following the removal of the presiding judge by the judges and Magistrates Vetting Board on April 25, 2012 and the appeal should be retried de novo by the court of appeal.
44.
The issue faced by the High Court was therefore not on whether the court had jurisdiction to entertain a constitutional petition and its dispensation, but on whether the High Court had the jurisdiction to set aside a Judgment issued by the Court of Appeal as well as to order the Court of Appeal to try an appeal de novo.
45.
The appellant argues that the High Court erred in finding that it lacked jurisdiction to grant the orders sought and erred in failing to determine the petition on the its merits. The appellant also faults the Court of Appeal for upholding the High Court’s judgment, arguing that the supremacy of the courts is subordinate to the citizens’ enjoyment of fundamental rights and freedoms and the same cannot be applied in such a rigid manner and to curtail the guaranteed rights and freedoms under the Constitution.
46.
The High Court, in determining the matter before it, acknowledged the wide powers conferred to the court under articles 239(1) and 165(3) of the Constitution to address violation, infringement and/or a threat to a right or fundamental freedom and stated thus in that regard:
“
38.
Article 165(3) of the constitution confers on this court with very wide jurisdiction to deal with any matter that falls within its jurisdiction. That jurisdiction is not exhaustive given that article 165(3)(e) states that the court can have any other jurisdiction, original or appellate, conferred on it by legislation. In terms of article 165(3)(d)(ii), the court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution. article 23(1) also states that the court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with article 165 of the Constitution. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this court to grant appropriate relief.”
47.
The High Court however noted that such supervisory power is only limited to a jurisdiction over the subordinate courts but not over a superior court. It opined in that context as follows:
“
46.
Turning to the facts of this petition, the judgment sought to be annulled is by the Court of Appeal. It is therefore not in dispute that the impugned judgment is by a court superior to this court in terms of judicial hierarchy. It is a judgment binding on this court in terms of precedent. From the jurisdictional perspective of article 165 of the constitution, this court has wide jurisdiction which is exhaustively provided for by the constitution. However, the constitution itself places a constitutional caveat that this court cannot supervise other superior courts.
47.
Article 165(6) states in plain language that this court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial junction but not over a superior court. Superior courts in terms of article 162(1) of the Constitution are the Supreme Court, the Court of Appeal, the High Court and courts of equal status namely; the Employment and Labour Relations Court and the Environment and Land Court. The edict in article 165(6) is in form of a constitutional limitation imposed on this court not to do anything that would amount to supervising or superintending other superior courts.
48.
Based on the above analysis, can this court answer the petitioner’s grievance in the affirmative and annul a decision of the Court of Appeal taking into account the pecking order of the superior courts in this country? And can this court issue an edict to the Court of Appeal directing that court to reopen a closed appeal and hear it de novo? My answer to the above questions must be in the negative. If what the petitioner asks of this court were to happen, it would certainly amount to under mining the authority of the Court of Appeal by another superior court but inferior to it. It would be against clear words of article 165(6).”
48.
It is on the above analogy that the High Court declined to assume jurisdiction and determine the appellant’s petition.
49.
Similarly, the Court of Appeal in agreeing with the High Court, noted the absurdity of asking a High Court to purportedly re-open a decision of the Court of Appeal, noting that no such jurisdiction exists by holding:
“
Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the court there was being asked to annul, strike out, reverse or rescind a judgment of this court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of article 165(6) is supervise superior courts.
Moreover, under article 164(3) of the Constitution, this court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this court to quash or annul them, or that it could purport to direct this court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.
It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong: without jurisdiction it would be embarking on a hopeless adventure to nowhere.”
50.
On our part, and this is trite law, jurisdiction is everything as it denotes the authority or power to hear and determine judicial disputes. It was this court’s finding in In R v Karisa Chengo [2017] eKLR, that jurisdiction is that which grants a court authority to decide matters by holding;
“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
51.
We have to reiterate at this point that Civil Appeal No 149 of 2007 was conclusively determined on April 2, 2009 and that judgment still stands save for the review judgment issued on November 20, 2009 that altered the dates of interest. Similarly, the High Court judgment in HCCC No 367 of 2000 still stands and the appellant has also not sought any orders to have this judgment impugned. The appellant is therefore asking this Court to make its determination based on proceedings brought under the Constitution where the decision of the Vetting Board is the basis for its main argument that the judgment by the Court of Appeal in Civil Appeal No 149 of 2007 was obtained through alleged bias or impropriety on the part of O’Kubasu JA despite the appellant not having any complaints against the other two Judges of the Court of Appeal who determined Civil Appeal No 149 of 2007 (Onyango-Otieno and Aganyanya JJA).
52.
The appellant in that regard is therefore asking us to make a determination on whether a decision rendered by a Judge removed by the Vetting Board for impropriety should be left to stand or should be overturned. The appellant strongly urges this point by relying on the concurring opinion by Mutunga CJ, in Jasbir Singh Rai that the appellant can obtain the said reliefs sought before the High Court where the right to a fair trial is denied because of the misconduct of Judges who voluntarily or involuntarily left the Bench. The learned Chief Justice had held:
“
Article 10 of the Constitution requires Parliament to be non-discriminatory when it enacts laws. Parliament violated article 10 when it enacted section 14 of the Supreme Court Act because it limited the remedy of a new trial only to those who could prove that the Judge in their case had been removed, retired or resigned on the basis of their complaints. The right to a fair trial, however, applies to everyone, not just those who were denied the right because of the misconduct of Judges who then voluntarily or involuntarily left the bench. It also applies to those litigants whose rights were violated even though their respective Judges had been found suitable by the Judges and Magistrates Vetting Board, or who did not have to be vetted under the Act. If the right to a fair trial belongs to everyone, the remedy must also belong to everyone. Therefore, based on the provisions of article 10 that promote and protect the principle on non-discrimination and the equal protection afforded by article 27, I find no basis for this discrimination and I would have declared section 14 unconstitutional.”
53.
It is on this finding that the appellant strongly argues that the reliefs sought in his constitutional petition can be purportedly issued by the High Court in an attempt to have the High Court overturn a final decision of the Court of Appeal. Needless to say, this cannot be any closer to the truth. Our Constitution cannot by any stretch of imagination mold itself to issue the reliefs sought by the appellant. In the Samuel Kamau Macharia case, this court declared section 14 of the Supreme Court Act unconstitutional, for the sole reason that it sought to confer special jurisdiction to the Supreme Court to review a judgment or decision of a judge who has been removed, resigned or retired from office. The court specifically stated:
“
(65)
In the instant case, we find that a final Judgment by the highest court in the land at the time vested certain property rights in, and imposed certain obligations upon the parties to the dispute. We hold that article 163(4)(b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of Constitution”.
54.
Again, we reiterate that this finding applies emphatically to this case because, though this court categorically found that article 163(4)(b) does not confer the Supreme Court with the jurisdiction to entertain appeals from the Court of Appeal before the coming into force of the 2010 Constitution, the same principle applies in that the High Court cannot and does not have any jurisdiction to reopen cases finalized by the Court of Appeal, which was the apex court at the time. Mutunga CJ, in his concurral opinion in Rai v Rai indeed acknowledged that the Constitution of Kenya 2010 may address any injustice with the High Court having jurisdiction under article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill or Rights. It was his finding that:
“
[110]
As stated above, the Supreme Court of India has the power to redress all violations of fundamental rights. The High Court of Kenya has similar jurisdiction. This jurisdiction has been donated to the High Court under articles 23 and 165(3)(b) of the Constitution:
“
23.(1)
The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
[111]
Therefore, while accepting Senior Counsel Nowrojee’s contentions that there have been injustices in this case, the choice of forum is in question. The Kenyan Constitution has given the High Court the exclusive jurisdiction to deal with matters of violations of fundamental right (articles 23 as read with article 165 of the Constitution). The High Court, on this point, has correctly pronounced itself in a Judgment by Justices Nambuye and Aroni, in Protus Buliba Shikuku v R, Constitutional Reference No 3 of 2011, [2012] eKLR.
[112]
The Shikuku case fell within the criminal justice system; it involved a claim of violation of the petitioner’s fundamental rights by the Court of Appeal, in a final appeal. The trial court failed to impose against the petitioner the least sentence available in law, at the time of sentencing. On the issue of jurisdiction, the learned Judges, relying on articles 20, 22 23 and 165 of the Constitution rightly held that the High court had jurisdiction to redress a violation that arose from the operation of law through the system of courts, even if the case had gone through the appellate level. In so holding, the High Court stated with approval the dicta of Shield J, interpreting the provisions of the 1963 Constitution in Marete v Attorney General [1987] KLR 690:
“
The contravention by the State of any of the protective provisions of the Constitution is prohibited and the High Court is empowered to award redress to any person who has suffered such a contravention.”
[113]
Thus, in answer to Mr Nowrojee’s first two questions posed to the Supreme Court, my answer is this: There is no injustice that the Constitution of Kenya is powerless to redress.”
55.
We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves. Again, we take cognizance of our finding in the Samuel Kamau Macharia case where we held that:
“A court 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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.” (emphasis supplied)
56.
Furthermore, and more fundamentally, we reiterate what we stated in Kenya Hotel Properties Limited v Attorney General & 5 others, SC Application No 27 of 2020; [2020] eKLR on the appellant’s application for stay of execution that the decisions by the Vetting Board cannot and should not be elevated to supra-judicial pronouncements that would have the effect of setting aside every decision made by a judge who was removed for impropriety.
57.
The appellant, having exercised his right of appeal (albeit unsuccessfully) to a higher court, in this case, the Court of Appeal, cannot proceed to launch an attack upon a judgment of the Court of Appeal, by making an application for redress under article 23 of the Constitution to the High Court, another superior court nonetheless, but one inferior to the court that delivered such judgment. To allow such an action, would in the view of this court be quite subversive to the principle of rule of law as enshrined in our Constitution.
58.
The appellant also seeks to rely on the South African decision in Brian Patrick De Lacy & another v South African Post Office [2011] ZACC 17, where the South African Constitutional Court in its judgment held that a complaint of perceived judicial bias is a constitutional matter calling for intervention of the constitutional court as well as the English decision of Marbury v Madison 5 US 137 where the court held that there was no injustice that courts could not cure as there can be no right without a remedy.
59.
The two cases cannot apply in this regard because though the courts found bias to amount to a breach of constitutional rights, the inferior courts were not asked to set aside the judgments made by superior courts, the Vetting Board proceedings notwithstanding and we have explained why.
60.
To our minds, the principle of finality in litigation is relevant, more so in this appeal. There must be an end to litigation and it is intolerable that litigants could be allowed to approach courts to reconsider final orders made in judgments by a superior court in the hierarchy of courts and to have such final judgments re-opened.
61.
In light of this, we find no justifiable fault in the decision of the appellate court affirming the trial court’s decision.
62.
Consequently, the appeal stands dismissed.
ii Appropriate Remedies
63.
As was noted by the Court of Appeal, the issue of jurisdiction and appropriate remedies are one and intertwined. This is so because having found that the High Court lacked jurisdiction to determine the petition, we ask ourselves, what other remedies are available to the appellant at this point? Again, as we have quite succinctly explained above, once the Court of Appeal finalized the review judgment, the matter came to an end, the proceedings from the Vetting Board notwithstanding. Any remedies available to the appellant, lie elsewhere than in this appeal.
64.
In any event the appellant has filed before the Environment and Land Court ELC Suit No 35 of 2010 and the ELC did recognize in an interlocutory ruling that the 5th respondent had raised triable issues regarding the legality of the title issued to the 4th respondent. In our considered view that is where the appellant who claims there was a violation of fundamental rights as persistently agitated can be ventilated. We see no other remedy available to the appellant in the matter before us and we so hold.
65.
On costs, the dispute has come to end before us after decades of incessant litigation before the superior courts below. It is best that we exercise discretion and order each party to bear its cos | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/62/eng@2022-10-07 |
Petition 9 (E011) of 2022 | Macharia & another v Director of Public Prosecutions & 11 others (Petition 9 (E011) of 2022) [2022] KESC 61 (KLR) (7 October 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Macharia & another v Director of Public Prosecutions & 11 others | [2022] KESC 61 (KLR) | null | Upon perusing the 3rd to 11th Respondents’ Notice of Motion dated 6th May, 2022 and lodged on 12th May, 2022 seeking to strike out the Petition of Appeal dated 14th April, 2022 on the grounds that:
i.
The appeal is filed without jurisdiction;
ii.
The appeal does not raise any issues relating to the interpretation or application of Constitution;
iii.
The Petition is fatally defective for the reason that the Petitioners were joined as interested parties before the High Court and therefore their participation was merely ancillary; and
iv.
The Petitioners lack the requisite locus standi to institute the present appeal; and
2.
Upon reading the affidavit by Dr. David Mwaisaka, the Head of Legal Kenya and East Africa Standard Chartered Bank, sworn on 6th May, 2022 in support of the Motion; and
3.
Upon considering the 3rd to 11th respondents’ submissions dated 6th May, 2022 and filed on 12th May, 2022 in furtherance of these grounds, to the effect that: First, the appeal herein does not involve constitutional interpretation or application pursuant to Article 163(4)(a) of the Constitution; that the proceedings before both superior courts below were mainly between the DPP (1st Respondent) on one part and the 3rd to 11th respondents on the other part; that the dispute centred around the DPP’s decision dated 7th April, 2014, by which the DPP re- opened criminal investigations against the Standard Chartered Bank (SCB) into allegations of stealing by directors, thereby reversing an earlier decision made by the Attorney-General on 26th November, 2005, before the establishment of the independent Office of the DPP, not to prosecute SCB and the directors; that upon that decision being challenged, the High Court issued, among other reliefs, an order of prohibition stopping the Kenya Police and the DPP from investigating or prosecuting the 3rd to 11th respondents; and that at no point in the said proceedings was any matter of a constitutional nature raised; and
4.
Further, that the petitioners lack the requisite locus standi to institute the present proceedings for the reason that their participation has at all times been peripheral to the dispute between the principal parties as they were joined as interested parties in the judicial proceedings before the High Court. As such, they cannot institute the instant appeal and seek substantive orders to set aside the judgments of the two superior courts below. Lastly, that the petitioners have proceeded to frame new constitutional issues for determination by this Court which were not the subject of determination before the two superior courts below, contrary to the finding by this Court in the case of Teachers Service Commission v. Simon Makau & 19 Others, SC Application 38 of 2014; [2015] eKLR; and
5.
Upon considering the petitioners’ grounds of opposition to the Motion and submissions dated 24th May, 2022 to the effect that they have approached this Court for the reason that the Court of Appeal misconstrued and misapplied Article 157(4) of the Constitution; that one of the issues framed by the Court of Appeal was “whether the DPP legitimately exercised his power in reviewing the decision not to prosecute Standard Chartered Bank” and; that the Court of Appeal proceeded to make a determination on the powers conferred upon the DPP under Article 157 of the Constitution; and
6.
Furthermore, relying on the dicta by this Court in the case of Joseph Lendrix Waswa v. Republic, SC Petition No. 23 of 2019; [2020] eKLR, the petitioners contend that as victims in the criminal investigations in question, they have the right to be heard throughout the trial process up to the appellate stage; that their capacity to participate in this appeal has been enhanced during the pendency of the suit; and that the 3rd to 11th respondents are the potential suspects who obtained orders of certiorari to quash requisitions issued to them and an order of prohibition to stop investigations which had been set in motion by the DPP. Therefore, in their view, Lendrix Waswa [supra] illustrates the scope of the petitioners’ participation in criminal proceedings and also proceedings which take place before persons are charged; and Considering the foregoing arguments, we now opine as follows:
7.
We acknowledge the fact that jurisdiction is everything and that without it, a court has no power to make one more step; and that a court’s jurisdiction flows from either Constitution}} or legislation or both. It follows that we must, in limine, be satisfied that the petitioners have properly invoked the jurisdiction of this Court. See Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR; and
8.
| Inevitably it must follow that the dispute has always revolved around the re-opening of criminal investigations into SCB and its directors by the DPP, being the primary parties. The requisitions were issued by the latter against the former. Essentially, before both superior courts below, the contest has been the prosecutorial mandate of the DPP vis-à-vis the rights of the 3rd to 11th respondents. The petitioners now want to advance their rights which have never been the subject of judicial determination before this stage. Equally, the rights of the petitioners do not speak to the core issue which has been the exercise of the prosecutorial powers of the DPP. The petitioners’ stake in the proceedings has throughout remained peripheral and cannot override the stake of the primary parties, who appear not to have been aggrieved.
13.
Restating the words in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012; [2013] eKLR that:
“
A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on 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 as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
14.
Ultimately, we respectfully agree that the petitioners, though interested parties before the superior courts below, cannot, at this juncture, have overriding interests above and beyond the primary parties or mutate from having a peripheral stake into central core parties complete with freshly and new formulated constitutional grounds that were not the issues determined by the court appealed from. Just like we stated in Methodist Church in Kenya v. Mohamed Fugicha & 3 others, SC Petition 16 of 2016; [2019] eKLR, this appeal is not properly before us.
In view of all these, we find that the petitioners lacked the locus standi to institute this appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/61/eng@2022-10-07 |
Petition 24 of 2019 | Senate v Council of County Governors & 6 others (Petition 24 & 27 of 2019 (Consolidated)) [2022] KESC 57 (KLR) (7 October 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 7 October 2022 | 2,022 | Nairobi | Civil | Senate v Council of County Governors & 6 others | [2022] KESC 57 (KLR) | null | A. Introduction
1.
Before this court are two appeals, Petition No 24 of 2019 dated July 12, 2019, and Petition No 27 of 2019 dated July 17, 2019 both filed on July 18, 2019. The appeals are brought pursuant to article 163(4)(a) of th Constitution and rule 31(1) of the Supreme Court Rules, 2012, (now repealed), challenging in part the judgment and orders of the Court of Appeal (Makhandia, Musinga, Murgor, Odek & S Ole Kantai, JJA) in Civil Appeal No 204 of 2015. By an order of this court dated February 19, 2020, the appeals were consolidated, with Petition No 24 of 2019 as the lead file. The consolidation of the two appeals, with the former being the lead file, turns the Council of Governors & 6 others, into respondents even though they were initially petitioners.
B. Background
i. At the High Court
2.
On February 8, 2014, the Senate Committee on County Public Accounts and Investments summoned fifteen County Governors to appear before it to answer questions on County financial management. These questions had been raised by the Auditor General in his 2012/2013 financial year report. Several County Governors appeared before the Committee save for four who expressly declined to honor the summons. The four Governors instead filed Petition No 8 of 2014, International Legal Consultancy Group v the Senate and the Clerk of the Senate before the High Court in Kerugoya challenging the Senate’s summons. On April 16, 2014, the trial court found that the Senate was well within its constitutional mandate to issue the summons.
3.
Consequently, the Senate issued fresh summons to the Governors, requiring them to appear before the Committee on August 26, 2014. However, Governor Isaac Ruto of Bomet County, William Kabogo of Kiambu County, Mwangi wa Iria of Murang’a County and Jack Ranguma of Kisumu County declined to honor the summons despite the Court Orders. This prompted the Senate to pass a resolution, in accordance with section 96 of the Public Finance Management Act, recommending that, the Cabinet Secretary, Treasury halts the transfer of funds to the concerned County Governments and the Controller of Budgets withholds the approval of withdrawal of public funds by the said County Governments.
4.
Aggrieved, the Governors filed a second Petition, No 413 of 2014, Council of Governors & 6 others v the Senate, seeking the following declarations: that,
a.
Under article 6(2) of the Constitution, the Senate could not exercise its powers under article 125 in a manner that cripples County Governments;
b.
The Senate is bound by the provisions of article 189(1) of the Constitution and must perform its functions and powers in a manner that respects the County functional, institutional and constitutional status;
c.
Under articles 96 and 226(2) of the Constitution and section 148 of the Public Financial Management Act 2012, the Senate could not summon governors to personally appear before it to answer questions of County government finances;
d.
The Senate is bound by the procedures and requirements of the Public Finance Management Act in the discharge of its oversight powers;
e.
Under articles 96 and 226(2) of the Constitution and section 148 of the Public Financial Management Act, only members of the Executive Committee or the Chief Officers responsible for finance can appear before the senate or any of its Committee to answer any county government finances queries;
f.
Under articles 6(2), 96, 174, 185(3) and 226(2) of the Constitution, the senate cannot summon a County accounting officer to answer questions of county financial management, at the first instance, but must first allow the oversight and legislative mechanisms at the County level as the two levels of government are separate and distinct;
g.
The intention of articles 6(2), 96, 174,185(3), and 189 of the Constitution, within the meaning of articles 226(2) and 96(4) of the Constitution, the Senate’s oversight role over nationally collected revenue to counties is not identical to the county assembly’s oversight over the executive;
h.
The intention of articles 96(4), 185(3) and 226(2) of the Constitution, the senate’s power is limited to oversight over national agencies which manage national revenue allocated to counties such as the National Treasury;
i.
Articles 6(2), 189(I), 174 and 96(4) of the Constitution, as read with the article 185(3) of the Constitution, the County Assembly is the sole organ that undertakes an oversight authority over the County Executives;
j.
The Senate can only exercise its powers under article 125 of the Constitution to scrutinize county financial and other records for purposes of determining an impeachment, intervention, suspension, or for purposes of developing national legislation necessary for more prudent management of finances at the county level;
k.
The Senate does not have sole constitutional powers to direct National Treasury and Controller of Budget not to release funds to Counties without following the provisions of article 225 of the Constitution;
l.
Stoppage of funds to a county public entity can only in accordance with article 225 of the Constitution;
m.
Permanent injunctions restraining the Senate from summoning County Governors to appear before it to answer questions on county public financial management;
n.
Permanent injunctions restraining the Senate from summoning accounting officers at the County level to appear before it to answer questions on county public finance management; and
o.
an order of certiorari to quash the Senate’s Resolution issued on August 7, 2014 directed to the National Treasury and the Controller of Budget.
5.
The court framed five issues for determination: whether the petition was competent and whether the court had jurisdiction to determine it; whether the Senate has the mandate to summon County Governors to answer queries raised by the Auditor General; whether the resolution to the National Treasury and the Controller of Budget by the Senate withdrawal of public funds by Counties was/is constitutional; whether Governors can be lawfully held accountable for transactions in the financial years during which the defunct local authorities together with the Transition Authority (in line with the Functions under section 7 of the Transition to Devolved Governments Act 2012) were in-charge of County Resources; and what reliefs (if any) are available to the parties.
6.
In a judgment delivered on June 4, 2015, the High Court (Lenaola, M Ngugi & Odunga, JJ (as they then were)) granted the following declarations:
a.
Resonating the intention of article 96 of the Constitution and 226(2) of the Constitution of Kenya and section 148 of the Public Finance Management Act, 2012, it is proper, legal, and constitutional for Members of the Executive Committee responsible for finance and the Chief Officers responsible for finance to appear before the Senate or any of its Committee to answer on County Government finances and to generally provide information that helps the Senate to undertake its oversight functions as stipulated in article 96 of the Constitution.
b.
The Senate does not have sole constitutional powers to direct the National Treasury and Controller of Budget not to release funds to Counties without following the provisions of article 225 of the Constitution;
c.
Stoppage of funds to a County public entity can only be done by following the provisions of article 225 of the Constitution; and
d.
An order or certiorari to quash the resolution of the Senate issued on August 7, 2014 that purports to direct the National Treasury and the Controller of Budget not to release funds to Kiambu, Bomet, Kisumu and Murang’a Counties.
7.
On the issue of the competency of the petition, the court relied on article 156(1) of the Constitutionand section 5(1) of the Attorney General Act to determine that Constitution allows the Attorney General the right to represent the National Government in court proceedings where it has been sued, but does not stipulate that the Attorney General must be joined in all instances where any organ of the National Government has been sued. The court noted that section 12(1) of the Government Proceedings Act was enacted under the retired Constitution, is subject to the Constitution as the supreme law of the land, and any inconsistency could not stand to the extent of that inconsistency. On the issue of failure to issue 30 days’ notice of the intention to sue to the Attorney General, it was the court’s finding that no prejudice had been suffered as the Senate had entered appearance in its own name and the failure did not impair or impede the cause of justice. The court noted that any rule of procedure that violates a party’s fundamental right and freedom was not sound.
8.
On whether the Privileges Act and Senate immunity to legal proceedings limits the court’s jurisdiction, it was opined that the Constitution binds all persons and all State organs at all levels of Government. It was the court’s further finding that it had the power to enquire into the constitutionality of the actions of the Senate notwithstanding the privilege accorded to its members. That finding was fortified by the principle that the Constitution is the supreme law and the Senate must function within the limits prescribed by the Constitution. The trial court determined that under the doctrine of separation of powers, Parliament as a distinct and independent organ is entitled to exercise its mandate without undue interference from other arms of Government, however, when any of the State organs steps outside its mandate, the courts would not hesitate to intervene in exercise of its powers to interpret the Constitution, and to safeguard, protect and promote its provisions in exercise of its supervisory powers under article 165(3) of the Constitution.
9.
As to the place of the privileges and immunities provided for under article 117 and sections 12, 14, 15 and 29 of the Privileges Act, the court determined that the sections were enacted under the repealed Constitution. Section 7 of the sixth schedule to the Constitution provides that any law in existence before the promulgation of the Constitution 2010 must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution 2010. In that regard, the court determined that the provisions of the Privileges Act are applicable to the Senate to the extent stipulated by section 7 of the sixth schedule.
10.
On the issue as to whether the appeal wasres judicata, the court reasoned that the parties in the petition were different from those in Kerugoya HC Constituional Petition No 8 of 2014; that although the main issue for determination by the courts was whether the summons issued by the Senate were constitutional, new issues had been placed before it for determination; and that the general rule was that res judicata is applied sparingly in constitutional matters. The court determined that the question of the Senate’s powers to question Governors with regard to financial management, as well as the constitutionality of the Senate’s resolution directing the Controller of Budget to suspend withdrawal of funds had not been settled.
11.
On the role of Senate, the court held that under the provisions of article 95(4)(c) of the Constitution, the National Assembly has the mandate to exercise oversight over national revenue and expenditure. It held that the Senate is the organ that relates with the National Government at the national level over County interests, and therefore has oversight powers over national revenues allocated to Counties. As to the County Assemblies’ power to exercise oversight over County funds under article 185(3) of the Constitution, it was determined that this mandate is limited in scope and its application to the County Executive Organs and does extend to the national revenue as provided under articles 95(4)(c), 96(3) and 226(2) of the Constitution.
12.
On the scope, extent and nature of the Senate’s oversight role, the court determined that the oversight entails a procedural and substantive function. Procedural oversight involving the process leading to division and sharing of national revenue between the National and County Governments as envisaged under articles 202 and 203 of Constitution and substantive oversight ensuring that the revenue so allocated has been disbursed to the Counties and spent in accordance with the law.
13.
As to whether the Senate can summon Governors to answer questions on County Public Finance Management, the trial court found that the Senate’s mandate and role under section 8 of the Public Finance Management Act, is wide in scope including, receiving reports, examining the financial statements and documents as submitted to it, and thereafter taking appropriate action including recommendations on the accountable expenditure of public finances from the national revenue allocated to each County.
14.
It determined that pursuant to article 125 of the Constitution, in examining these financial statements and documents, the Senate or its Committees has the power to summon any person to appear before it for purposes of giving evidence or providing information. It reasoned that as the Chief Executive Officer, the role of the Governor under section 30(3)(f) of the County Governments Act is critical in fiscal management at the County level. However, it was clarified that governors may appear with such officers as they deem necessary to answer questions under consideration.
15.
Consequently, the court determined that the resolution passed by the Senate directing the National Treasury and Controller of Budget not to release funds to Counties was unconstitutional. It however held that by virtue of article 225 of the Constitution and section 96 of the Public Finance Management Act, the Cabinet Secretary responsible for matters of finance has the mandate to stop the transfer of funds to a State organ or a public entity, with the approval of Parliament and in accordance with the circumstances and the procedure established under section 92 to 99 of the Public Finance Management Act. The court further held that the Senate, in exercise of its oversight role, lacks the power to direct the Cabinet Secretary to stop the transfer of funds. It was the court’s further finding that the Controller of Budget under article 228(4) of the Constitution cannot approve any withdrawal from a public fund unless satisfied that the withdrawal is authorized by law, and conversely, it was held that the Controller of Budget cannot stop a withdrawal unless such stoppage is also authorized by law.
16.
On the last issue as to whether governors can be held accountable for transactions in the financial year during which the defunct local authorities together with the Transition Authority were in charge of County resources, the court determined that there was no evidence that any of the four County Governments had taken over assets and liabilities of the defunct local governments. The court opined that to call upon any Governor to answer questions on the financial affairs of local authorities during the financial year 2012/2013 which fell in Phase One of the transition period, would be an error on the part of the Senate. It directed that such questions ought to be addressed to the transition authority which had however not been joined as a party.
| D. Analysis
46.
After considering the parties’ respective cases, based on their pleadings,submissions and list of authorities, we have identified three issues whose determination will conclusively dispose of this appeal. The said issues are as follows:
i.
Whether the Senate is constitutionally mandated to summon County Governors in exercise of its oversight role pursuant to article 96(3) of the Constitution
ii.
Whether the Senate’s role of oversight is limited to the counties’ nationally allocated revenue or extends to locally generated revenue
iii.
Whether a County Assembly oversight role is limited to the County’s locally generated revenue or extends to the nationally allocated revenue.
a. On Senate’s Power to Summon Governors
47.
Both the Court of Appeal and High Court held that the Senate, is vested with powers to summon a County Governor either directly or through one of its Committees, to answer any question or provide any information regarding the expenditure and management of County revenue. The two superior courts based their decisions on the premise that being the County’s Chief Executive, the Governor is responsible for the management of County revenue and all other resources. It is therefore only logical that he or she is accountable to Senate, which is mandated to oversight such revenue under article 96 (3) of the Constitution.
48.
The role of the Senate is addressed by article 96 of the Constitution. Towards this end, sub-article (1) thereof provides that:
“
the Senate represents the counties, and serves to protect the interests of the counties and their governments.”
Sub-article (2) further provides that:
“
the Senate participates in the law-making function of Parliament by considering, debating and approving bills concerning counties, as provided in articles 109 to 113”.
Critically, sub-article (3) provides that:
“the Senate determines the allocation of national revenue among counties, as provided in article 217, and exercises oversight over national revenue allocated to the county governments.”
49.
The foregoing constitutional provisions as read together with articles 110 to 112, leave no doubt that the Senate is established to perform fundamental roles of governance concerning Counties. These are legislative, budgetary, and oversight. It has been granted considerable latitude in ensuring that County Governments operate at optimal and within accountability standards, if the objectives of devolution are to be realized. There is no way by which the Senate can perform such an important role without having the powers to summon a Governor and to require him/her to provide answers and offer explanations regarding the management of the County finances and related affairs. Without such power, the Senate would not be able to “protect the interests of the Counties”, nor would it be able to exercise effective oversight over national revenue allocated to Counties”
50.
Article 96(3) of the Constitution is buttressed by section 8 of the Public Finance Management Act No 18 of 2012, which provides for the responsibilities of the Senate Budget Committee in public finance matters as follows; (inter-alia)
“
(1)
The Committee of the Senate established to deal with budgetary and financial matters has responsibilities for the following matters, in addition to the functions set out in the Standing Orders—
…
c.
examine financial statements and other documents submitted to the Senate under Part IV of this Act, and make recommendations to the Senate for improving the management of government’s public finances; and
d.
monitor adherence by the Senate to the principles of public finance set out in the Constitution, and to the fiscal responsibility principles of this Act.”
51.
For the Senate to perform its functions as stipulated in section 8 of the PFMA Act, it must incorporate the input of the respective Chief Finance Officers of the Counties, who are in turn appointed by the Governor. The office that is ultimately answerable to the Senate, is that of the Governor. In view of the foregoing, we have little difficulty in agreeing with the Court of Appeal, in its conclusion that the Senate is constitutionally empowered, to summon Governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. Having said that, we hasten to add that in appearing before Senate, there is nothing to stop a Governor from going with his/her technical team from the County Executive. By the same token, if the Senate is of the view that the questions to be answered or information to be provided do not need the personal input of the Governor, it may restrict its summons to the relevant County official or Executive Committee.
b. Whether the Senate’s oversight role is limited to the Counties’ Nationally Allocated Revenue or whether it extends to Locally Generated Revenue
52.
Regarding the extent of Senate’s oversight role, the Court of Appeal held that the same is limited to the nationally allocated revenue in view of article 96(3) of the Constitution. The appellant however submits that its oversight role is not limited to the nationally allocated revenue, but extends to revenue that is locally generated by Counties. The gist of its argument is that article 207 of the Constitution establishes only one depository for County revenue, which is the County Revenue Fund. This being the case, argues the appellant, it would be constitutionally impossible to separate the two types of revenue for purposes of oversight. Therefore, in its view, both the Senate and County Assemblies have the constitutional mandate to oversight all County revenue, whether nationally allocated or locally generated.
53.
On the other hand, the respondents submit that the Senate’s oversight role does not extend to locally generated revenue. According to them, such oversight role regarding this type of revenue, is the exclusive preserve of County Assemblies. They base their contention on the premise that to involve the Senate in the oversight of County generated revenue, would offend the doctrine of separation of powers. It is their submission that the devolved structure of Government under the 2010 Constitution jealously guards the local autonomy of Counties. As such, if Senate were to have powers of oversight over locally generated revenue, that would amount to an unconstitutional intrusion into the local affairs of Counties. The respondents also argue that given the fact that it is the County Assemblies that approve County budgets, they cannot be excluded from the oversight of nationally allocated revenue. We note that the appellant holds the same view regarding this particular issue.
54.
It is our view that in order to answer the question before us, it is necessary to revisit a number of constitutional provisions that address the related questions of County revenue, legislation concerning County finances, and the management of County finances. This exercise should enable us to develop a holistic construction and purposive interpretation of the relevant provisions. Towards this end, we have already cited article 96(3) of the Constitution, which clearly confers powers upon the Senate to oversight nationally allocated County revenue. We do not therefore intend to belabour the question whether such oversight role reposes in the appellant.
55.
Also, of relevance is article 185(3) of the Constitution which provides that:
“a County Assembly, while respecting the principle of separation of powers, may exercise oversight over the County Executive Committee and any other County executive organs”
56.
This provision, although permissively framed, clearly confers powers upon County Assemblies, to oversight the County Executive. This therefore means that among other things, County Assemblies can question the County Executives’ management of County affairs, including the use of revenue. What the County Assemblies cannot do, is to usurp the role of the County Executive under the guise of oversight, for that would offend the principle of separation of powers. The County Assemblies cannot for example, take over the role of implementing Government policies and projects. Their role is to provide checks and balances to the County Executives so as to promote transparency and accountability in the manner County affairs are run.
57.
By the same token, article 96(2) of the Constitution, which confers legislative powers upon Senate regarding bills concerning County Government, has to be read together with articles 109 to 113. Article 110 defines “a Bill concerning County Government as meaning:
a.
a Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule;
b.
a Bill relating to the election of members of a county assembly or a county executive; and
c.
a Bill referred to in chapter twelve affecting the finances of county governments.
58.
These provisions entrust the Senate with the mandate of legislating for County Governments in fields that span the entire spectrum of governance. With regard to county finances, it is instructive to note that the foregoing provisions do not limit Senate’s legislative power to the nationally allocated revenue.
59.
Then there is article 207(1) of the Constitution which provides that:
“
there shall be established a Revenue Fund for each county government, into which shall be paid all money raised or received by or on behalf of the county government except money reasonably excluded by an Act of Parliament” [Emphasis added].
60.
Both parties have submitted that this provision makes it impossible for each of them to limit their oversight to either the nationally allocated or the locally generated revenue. It is a submission with which we can hardly disagree. A holistic reading of all the relevant provisions of the Constitution and the law, put in context, leads us to the conclusion that both the Senate and County Assemblies have the power to oversight County revenue whether nationally allocated or locally generated. The fact that County revenue is locally generated does not remove it from the purview of Senate oversight. Such revenue still falls within the rubric of “public finance” whose use must remain under the radar of scrutiny and oversight by the State organs established for that purpose. Similarly, the fact that County revenue is nationally allocated does not place it beyond the oversight of County Assemblies. Otherwise on what basis would the latter approve budgets and scrutinize their implementation?
61.
The purpose of the Constitution is to entrench good governance, the rule of law, accountability, transparency, and prudent management of public finances at both levels of Government. Such grand purpose cannot be served if either the Senate or County Assemblies begin to develop “centres of oversight/influence”. In this regard, the County Assemblies provide the first tier of oversight while the Senate provides the second and final tier of oversight.
62.
Additionally, we do not see how, by exercising its oversight role in the manner we have determined, Senate can be said to be violating the principle of Separation of Powers. Nor do we perceive a potential danger, of encroachment upon the mandate of the independent offices of the Controller of Budget or the Auditor General as contended by the respondents. What Senate cannot do under the guise of oversight, is to usurp the County Executives’ mandates or to purport to supervise County Assemblies.
63.
It is obvious that the foregoing conclusions are at variance with the holding by the Court of Appeal regarding this particular issue. We do not see the need to consider the third issue as the same has been comprehensively disposed of in the nature of our analysis and conclusions deriving therefrom.
E. Orders
64.
The following declarations are inevitable:
i.
In the performance of its oversight role over County revenue, the Senate has powers to summon County Governors to answer any questions or provide any requisite information;
ii.
The Senate’s oversight authority is not limited to nationally allocated revenue but extends to locally generated revenue by the Counties;
iii.
County Assemblies have the power of first tier oversight over County Government revenue, whether nationally allocated or locally generated;
iv.
No orders as to costs. | Allowed In Part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/57/eng@2022-10-07 |
Presidential Election Petition E005 of 2022 | Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 6 September 2022 | 2,022 | Nairobi | Election | Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others | [2022] KESC 56 (KLR) | null | A Intoduction
1.
Every five years, millions of Kenyans cast a ballot for a presidential candidate and five other elective positions. From our history, it is almost inevitable in the course of electoral competition that disputes will arise at all these levels. This calls for effective electoral dispute resolution mechanisms because, again from our past, such disputes may lead to either overt or covert social conflict. Therefore, Kenya’squest for enhancement of democratic governance through electoral reforms has been long and is well documented. The paramount goal of these reform initiatives has been to secure the peoples’ right of franchise and the integrity of the electoral process. It is in this context that the Constitution sets out values, principles, and rules which embody standards aimed at ensuring that elections reflect the will of the people. Towards this end, the Constitution explicitly protects political rights, including the right to vote; stipulates principles of the electoral system; establishes the Independent Electoral and Boundaries Commission (IEBC) as the body vested with the mandate of conducting and supervising elections; and vests courts, including the Supreme Court, with the duty of resolving post-election disputes.
2.
The above constitutional framework is reinforced by an array of legislation whose overall objective is to guarantee fairness, credibility and legitimacy of the electoral process. The standards and norms stipulated in the Constitution and electoral laws are deliberately detailed. They prescribe the system of registration by eligible citizens as voters; how they cast the votes and how the votes are counted. Beyond voting and counting of votes, the laws regulate the mode of transmission of results to the tallying centres, verification, tallying and declaration of the final results.
3.
Despite efforts to reform the electoral process as aforesaid, some of the reactions from segments of the electorate that followed the declaration of the presidential election result on August 15, 2022, remains as a clear indication that IEBC is yet to gain universal public confidence and trust, with regard to its internal management of the Commission and of elections. At the heart of this consolidated Presidential Election Petition (Consolidated Petition), are contestations around one question; whether IEBC complied with the constitutional and legal standards in the conduct of the presidential election held on August 9, 2022. However, sight must not be lost of the fact that election related disputes are an intrinsic part of the electoral process. The credibility, integrity and legitimacy of that process is ultimately determined by the courts. In respect of a presidential election, this duty is reposed by the Constitution in the Supreme Court.
4.
To contextualize the controversy in this petition, the following brief factual basis is essential.
| i. Analysis of Evidence
25.
Needless to state, IEBC is the body constitutionally mandated to conduct elections in Kenya. Elections are considered free and fair when they are held in consonance with the general principles for the electoral system as articulated in article 81(e) of the Constitution as read with section 25 of the Independent Electoral and Boundaries Commission Act, No 9 of 2011 (IEBC Act) that is, if they are, conducted by secret ballot, free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.
26.
At every election, IEBC is thus required by article 86 of the Constitution to ensure that:
“
…
(a)
whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b)
the votes cast are counted, tabulated and the result announced promptly by the Presiding Officer at each polling station;
(c)
the results from the polling stations are openly and accurately collated and promptly announced by the Returning Officer; and
(d)
appropriate structures and mechanisms to eliminate electoral malpractices are put in place including the safekeeping of electoral materials.”
27.
The question, whether or not the 2022 Presidential Election passed constitutional and legal muster, can only be answered upon consideration and with reference to the threshold of the burden and standard of proof borne by the petitioners. It is ultimately therefore, a question of evidence tendered by the petitioners.
28.
The law of evidence complements the existing civil and criminal substantive and procedural laws in this country. The outcome of a case depends on the strength, accuracy and reliability of evidence. In an adversarial court system like ours, the courts and judges are ‘blind’, in the sense that they do not carry out any investigative roles or gather evidence on behalf of the parties before them. They depend on and determine disputes from what parties present. Consequently, cases are won or lost on the evidence placed before the court.
section 2 of the Evidence Act, declares that the statute:
“
(1)
… shall apply to all judicial proceedings in or before any court other than a Kadhi’s court, but not to proceedings before an arbitrator.” [Emphasis added].
Specific on the burden of proof, section 107 of the Evidence Act states as follows:
“
(1)
Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2)
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
29.
On proof of peculiar and particular facts, section 109 of the Evidence Act requires that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
30.
And finally, section 110 provides that:
“
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.”
31.
This court first pronounced itself on these twin issues of burden and standard of proof in a Presidential Petition in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others, SC Petition Nos 5, 3 & 4 of 2013 (consolidated); [2013] eKLR (Raila 2013); and reiterated them in its decisions in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 1 of 2017; [2017] eKLR (Raila 2017) and John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 3 others, SC Petition Nos 2 & 4 of 2017 (consolidated); [2017] eKLR (Harun Mwau case).
32.
Suffice to stress that the court has been consistent that a petitioner who seeks the nullification of elections for alleged non-conformity with the Constitution or the law or on the basis of irregularities and illegalities, has the duty to proffer cogent and credible evidence to prove those grounds to the satisfaction of the court. Once the court is convinced that the petitioner has discharged that burden, then the evidentiary burden shifts to the respondent (who in most election-related cases is IEBC), to present evidence by way of rebuttal of the assertion.
33.
In this context, we reiterate the words of this court as stated in Raila 2013 as follows:
“
[196]
Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.
[197]
While it is conceivable that the law of elections can be infringed, especially through incompetence, malpractices or fraud attributable to the responsible agency, it behoves the person who thus alleges, to produce the necessary evidence in the first place – and thereafter, the evidential burden shifts, and keeps shifting.”
34.
As to the standard of proof, the court’s position rests with its decisions in Raila 2013, Raila 2017 and the Harun Mwau in which it adopted the intermediate standard striking a middle ground between the threshold of proof on a balance of probability in civil cases and beyond reasonable doubt in criminal trials, save for two instances; where allegations of criminal or quasi-criminal nature are made; and where there is data-specific electoral pre-condition and requirement for an outright win in the presidential election, such as those specified in article 138(4) of the Constitution. In those instances, the standard of proof must be beyond reasonable doubt. We are alive to the fact that different standards have been adopted in other jurisdictions across the globe, as demonstrated in the amici briefs in this Petition on behalf of LSK and ICJ-Kenya Chapter but we find no justification and we are not prepared at this point in time to depart from the test now firmly laid and applied in this jurisdiction. We can, in that regard, only reiterate, by way of emphasis, the observation made at paragraph 153 by the court in Raila 2017 that–
“
We recognize that some have criticized this standard of proof as unreasonable. However, as we have stated, electoral disputes are not ordinary civil proceedings hence reference to them as sui generis. It must be ascertainable, based on the evidence on record, that the allegations made are more probable to have occurred than not.”
There are therefore only two categories of proof in relation to election-related Petitions in this country: the application of the criminal standard of proof of beyond reasonable doubt, as explained and the intermediate standard of proof.
35.
With the foregoing clarification, we now turn to the issue under review; whether the Technology deployed by IEBC met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results. There are also two related audit exercises that the petitioners have challenged; the systems audit under regulations 11 and 12 of the Elections (Technology) Regulations, 2017 and the audit of the Register of Voters under section 8A of the Elections Act. Bearing in mind always what we have said in the preceding paragraphs about the burden and standard of proof, the starting point is what the law sets as the yardstick of use of technology in electoral processes, and that is section 44 of the Elections Act. It provides as follows:
“
44.
Use of technology
1.
Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
2.
The Commission shall, for purposes of subsection (1), develop a policy on the progressive use of technology in the electoral process.
3.
The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.
4.
The Commission shall, in an open and transparent manner—
a.
procure and put in place the technology necessary for the conduct of a General Election at least one hundred and twenty days before such elections; and
b.
test, verify and deploy such technology at least sixty days before a General Election.
c.
The Commission shall, in consultation with the relevant agencies, institutions and stakeholders, make regulations for the better carrying into effect the provisions of this section.”
36.
For the reason that one of the complaints against IEBC is that it failed to engage a professional reputable firm to conduct an audit of the Register of Voters, it is apposite to also set out section 8A of the Elections Act which provides for audit of the Register of Voters as follows:
“
8A.
Audit of the Register of Voters
(1)
The Commission may, at least six months before a General Election, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of—
a.
verifying the accuracy of the Register;
b.
recommending mechanisms of enhancing the accuracy of the Register; and
c.
updating the register.
…
(6)
The Commission shall implement the recommendations of the audit report within a period of thirty days of receipt of the report and submit its report to the National Assembly and the Senate.”
37.
There are divergent positions presented by both sides to the present dispute on the issue at hand. On the one hand, the petitioners have argued that the requirements of section 8A of the Elections Act were not met, while on the other, IEBC maintained that, on April 7, 2022, it did engage the firm of KPMG to carry out an audit of the Register of Voters. This exercise was completed and a Report submitted to IEBC on June 16, 2022.
38.
IEBC, however conceded that KPMG in its Report, pointed out several gaps on the state of the register. In addition to disclosing the findings contained in the Report by way of a briefing on June 20, 2022, it embarked on remedial measures aimed at implementing the recommendations ahead of publication of the final Report. Some of the remedial measures it undertook included committing to reviewing in the medium term, its registration processes with a view to strengthening them through the development and implementation, inter alia, of automated data input validation controls and exploring the use of Integrated Population Registration System in the enrolment process. In addition, IEBC committed to conducting periodic comparison of the Register of Voters with data held by relevant Government agencies.
39.
IEBC further confirmed that, by the time of the release of the Audit Report, on June 16, 2022 all transactions relating to the questionable transfer of voters had been reversed. Moreover, it suspended five (5) of its employees for their involvement in this infraction and referred the matter to the Office of the Director of Public Prosecutions for further investigation and action. Having taken all the necessary steps required of it by the KPMG Report, IEBC submitted the Audit Report to the Speakers of the National Assembly and Senate pursuant to section 8A of the Elections Act, and availed copies to political parties and any interested party.
40.
The petitioner’s submissions as supported by the sworn affidavits, regarding the integrity of the Register of Voters, were enough in our view, to shift the evidentiary burden of rebuttal to IEBC. IEBC undertook this burden, by giving a detailed explanation of the remedial measures it had instituted, to address the shortcomings as highlighted in paragraphs 38 and 39 above. Consequently, in the absence of evidence to the contrary, we find merit in IEBC’s explanation. We further take note that, while the Audit Report was released to the public seven days before the 9th August election, the Register of Voters was used at the election as a medium for identification of voters without any apparent anomalies. Likewise, IEBC successfully deployed a Biometric Voter Register (BVR) system which captured unique features of a voter’s facial image, fingerprints and civil data to register and update voter details across the country and in the diaspora.
41.
Furthermore and in compliance with section 6A of the Elections Act, IEBC opened the Register of Voters for verification of biometric data by members of the public for a period of 30 days from May 4, 2022 to June 2, 2022. Thereafter, the Register was revised to address issues arising from the verification exercise. KPMG then audited the Register and we are satisfied that the inconsistencies and inaccuracies identified during the Audit were successfully addressed.
42.
In the context of simplicity of the technology deployed, we note that the electoral system is designed to handle voter registration of over 22 million voters with unique biometric details. Further, in all the 46,231 polling stations KIEMS kits are mapped to the specific geographical area of the polling stations and to specific presiding officers. It is also designed to be as secure as possible to prevent infiltration. The Public Portal, on the other hand, is designed to handle numerous visits to the website to access the transmitted Forms 34A without causing it to crash. Such a system by design cannot be expected to be a simple one in the ordinary sense. Its features are not configured for ordinary everyday use by everyone without suitable training. In any event, there has been no specific complaint by any voter, agent or member of the public over their inability to use or frustrations in the use of this technology.
43.
It is, clearly for this reason that IEBC, rolled out an elaborate training program aimed at building capacity and competence of its staff members and candidates’ agents on the KIEMS system. It also conducted voter education and sensitization activities across the country targeting stakeholders including political parties, civil society and Government agencies through print and electronic media, in fulfillment of the provisions of article 88(4)(g) of the Constitution as read with section 40 of the Elections Act. That was the evidence of its Chairperson, which was never rebutted.
44.
Guided by section 44 (2) of the Elections Act which requires IEBC to
“… develop a policy on the progressive use of technology in the electoral process”,
we note that the KIEMS system was initially created as four different systems operated separately during the 2013 General Election, but since 2017 the said system has been fully integrated. Generally therefore, there is consensus that there has been a gradual but sustained advancement in election technology from pre-2007 and 2013 elections.
45.
Technology, like all human inventions, no matter how advanced, is bound to fail at one point or another, leading to a bad user experience. Hardware breaks, software gets bugs, and connectivity disappears, among many challenges in automation. It is perhaps this realization that led the court in Raila 2013, Raila 2017 and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014; [2014] eKLR (Gatirau Munya case) to state that it is a global truism that no conduct of any election can be perfect. Similar reflections may have informed the insertion of section 44A to the Elections Act directing IEBC to avail, alongside the use of technology required by section 44, a complementary mechanism in the event of technical failure. section 44A provides as follows:
“
Notwithstanding the provisions of section 44, the Commission shall put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of article 38 of the Constitution.”
We restate our position that the practical realities of election administration are such that imperfections in the process are inevitable. Some imperfections may have far-reaching ramifications, which in turn may lead to nullification of an election while others may not reach that level or degree of significance. The nullification of the presidential election of 2017 was partly based on this reality.
46.
The petitioners claimed and IEBC admitted that KIEMS kits failed in certain polling stations. But the latter, guided by the law and the decision of the Court of Appeal in United Democratic Alliance Party case, explained that the complementary mechanisms that it had put in place took two forms; where a voter could not be identified using their biometric data, the presiding officers were to use the alphanumeric search in the presence of agents and once found, the voter was to fill Form 32A. The second complementary system took the form of a printout of the Register of Voters which was used where the KIEMS kits failed completely with no possibility of repair or replacement. Once the details of the voter were confirmed manually, the presiding officer would then allow the voter to cast his/her vote.
47.
Whereas, it is not in dispute that the KIEMS kits failed in 235 polling stations in Kibwezi West Constituency and parts of Kakamega County, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. As such, the failure of the KIEMS kits in the identified polling stations cannot be taken as a yardstick of the performance of KIEMS kits in the whole country. In any case, all affected voters who could have complained were not disenfranchised as they were able to exercise their democratic right to vote manually.
48.
In addition to the above, by dint of section 44(4) aforesaid, IEBC must in an open and transparent manner, procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections. The two limbs to this provision are the open and transparent procurement of the technology and the timelines within which to put it in place. According to Michael Ouma, in his affidavit evidence, on April 14, 2021, IEBC advertised an open international tender for the supply, delivery, installation, testing, commissioning, support and maintenance of the KIEMS, hardware equipment and accessories. At the close of the tender period, it received bids from five firms and upon evaluation, Smartmatic was successful and was awarded the tender thereto. A contract between IEBC and the firm was concluded on November 25, 2021. This award of contract was contested before the Public Procurement Administrative Review Board, the High Court and eventually the Court of Appeal with the ultimate result that the award was upheld. It is not open for any party or even this court to revisit that tender in the circumstances. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/56/eng@2022-09-26 |
Petition 22 (E25) of 2022 | Njiru & 10 others v Ruto & 5 others; Azimio la Umoja One-Kenya Coalition & 3 others (Interested Parties) (Petition 22 (E25) of 2022) [2022] KESC 55 (KLR) (Civ) (6 September 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 5 September 2022 | 2,022 | Nairobi | Civil | Njiru & 10 others v Ruto & 5 others; Azimio la Umoja One-Kenya Coalition & 3 others | [2022] KESC 55 (KLR) | null | Brief facts
The applicants filed a petition at the Supreme Court on August 8, 2022, seeking among others; a declaration that the 2nd respondent was unfit and unsuitable to hold office of Deputy President; and a declaration that the nomination of the 2nd respondent as a running mate by the 1st respondent was invalid, null and void ab initio. The applicants also filed the instant application and sought an order of conservatory injunction to restrain the 1st and 2nd respondents from being sworn into offices of President and Deputy President respectively, in the event they got elected during the general elections then scheduled for August 9, 2022.
The 1st to 5th respondents filed notices of preliminary objection challenging the jurisdiction of the court to entertain the instant appeal and motion. They argued that the court was only clothed with exclusive original jurisdiction pursuant to article 140 of the Constitution of Kenya, 2010 (Constitution) and that the petition failed the test of justiciability and ripeness. The applicants submitted that the court was vested with exclusive original jurisdiction under article 163(3)(a) of the Constitution.
Issues
What was the nature of the exclusive original jurisdiction to determine disputes relating to presidential elections? | We have carefully considered the reasoned arguments by all parties as pertains the jurisdiction of this court, to hear and determine disputes relating to the election to the office of President arising under article 140 of the Constitution. To this end, where jurisdictional questions have arisen, article 163 of the Constitution is the first point of call and the guiding provision. Specifically, Article 163 (3) (a) provides that:
“
The Supreme Court shall have:
exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under article 140” [emphasis added].
9.
Article 140 (1) on the other hand provides that:
“
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” [emphasis added].
10.
The Constitution therefore confers upon the Supreme Court, exclusive original jurisdiction to determine disputes relating to the election of the President, limited only to the circumstances contemplated under article 140 (1). In the case of Okiya Omtatah Okoiti v. Independent Electoral and Boundaries Commission & others; SC Petition No. 18 of 2017, [2020] eKLR, the court has, with finality settled the question of its jurisdiction under article 163 (3) (a) as follows:
“
We hasten to restate the position that, the Constitution confers upon the Supreme Court, exclusive original jurisdiction, to determine disputes relating to the election of the President arising under article 140 only. Though exclusive and original, this jurisdiction is limited to the circumstances contemplated in article 140 (1). It is not a blanket jurisdiction that empowers the Supreme Court, to extend its judicial authority over any and all interpretational questions, touching upon the election of the President. It must be further emphasized that, article 163 (3) of the Constitution does not oust the High Court’s original jurisdiction to interpret the Constitution under article 165 (3) (d). The Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicks in after the declaration of results, following a petition challenging the election.
…
(52)
The Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared. It is one thing for the court to pronounce itself on a constitutional or legal question, but it is another thing to determine the validity of an election. In other words, the Supreme Court cannot anticipate the validity of a presidential election, within the meaning of article 140 (1) of the Constitution” [emphasis added].
11.
It is general knowledge that the Presidential Elections were held on August 9, 2022 and the declaration of results of the Presidential Election made on the August 15, 2022. On the other hand, the petition and motion before us were filed on August 8, 2022, a day before the general elections and seven days before the declaration of the results of the Presidential Election. Therefore, the applicants are inviting the court to assume jurisdiction outside the confines of article 163 (3) as read with article 140 (1) of the Constitution. They are inviting the court to unconstitutionally expand its jurisdiction. To wait until a day to the general elections, before seeking the orders of such magnitude, casts the petitioners/applicants in a cynical scheme of abuse of the processes of this court.
12.
Consequently, applying the settled principles, we find that this court lacks jurisdiction to hear and determine the petition and also the present application. We reiterate that this court’s jurisdiction under article 163 (3) (a) of the Constitution only kicks in after the declaration of the presidential election results and subsequent to a competent petition challenging the election.
13.
Accordingly, we make the following orders:
i.
The objections raised by the 1st to 5th respondents in respect of the notice of motion dated August 5, 2022 and petition dated August 5, 2022 are allowed;
ii.
The notice of motion dated August 5, 2022 and petition dated August 5, 2022, are for the reasons given, incompetent and are hereby struck out;
iii.
The applicants shall bear costs.
14.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/55/eng@2022-09-06 |
Presidential Election Petition E005 of 2022 | Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2022 | 2,022 | Nairobi | Election | Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others | [2022] KESC 54 (KLR) | null | Brief facts
On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.
On August 15, 2017, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1st respondent) the President-elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga as the runner’s up with 6,942,930 votes (48.85% of presidential votes cast).
Aggrieved by the results and the process by which the results were obtained and declared, the 1st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1st petitioners were a group of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.
The 1st, 3rd and 4th petitioners in the consolidated petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. In response, IEBC submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information; and the information was available and could be authenticated through the use of various security features.
The 1st petitioners further alleged that the results of the presidential election were staged. They claimed that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBC’s public portal. IEBC through its chairperson denied staging an unauthorized intrusion of the RTS.
The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution.
Those assertions were denied by IEBC and its chairperson. However, they admitted that they experienced confusion with the printed ballot papers and explained that they only discovered the mix-up on the eve of the election when the ballot papers were being distributed to the polling stations; that as a practice, ballot papers could only be opened on the eve of the election day to avoid any mischief; and that by the time the mix-up was discovered, it was logistically impossible to print and replace the ballots papers in time for the election.
The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off of votes cast.
Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022, 4 commissioners of the IEBC held a press conference and termed the results “opaque” due to the manner in which the chairperson had been conducting the verification and tallying exercise, calling into question the credibility of the entire election. They further submitted that being in the majority out of the seven-member Commission, their view should prevail, and the election should be nullified. It was the petitioners’ argument, therefore, that a dysfunctional Commission could not deliver a credible election.
Issues
Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
Whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal.
Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the polling stations.
Whether the IEBC acted ultra vires their powers in postponing gubernatorial, parliamentary and ward elections in select counties during a general election due to some unforeseen hindrances.
Whether postponement of gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency by the IEBC resulted in voter suppression to the detriment of the petitioners.
Whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC commissioners.
Whether regulation 87(3) of the Elections (General) Regulations was unconstitutional, to the extent that it purported to vest the power of verification and tallying in the chairperson of IEBC.
Whether the discrepancies between the total number of votes cast for presidential candidates vis-à-vis the total number of votes cast for other elective positions by itself was an indicator of fraud.
Which party bore the burden of proof in election petitions?
Whether the IEBC carried out the verification, tallying and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election. | B. Issues for Determination
6.
From the consolidated petition, responses and submissions filed thereto by all the parties, the court crystallised the following issues for determination:
1.
Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results;
2.
Whether there was interference with the uploading and transmission of Forms 34A from the Polling Stations to the IEBC Public Portal;
3.
Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the Polling Stations;
4.
Whether the postponement of Gubernatorial Elections in Kakamega and Mombasa counties, Parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South Constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency resulted in voter suppression to the detriment of the Petitioners in Petition No E005 of 2022;
5.
Whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions;
6.
Whether the IEBC carried out the verification, tallying, and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution;
7.
Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution;
8.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the Presidential Election;
9.
What reliefs and orders can the court grant/issue?
7.
Having considered and deliberated upon the consolidated petition, the attendant responses, submissions and the amici curiae briefs we now make the following determination:
(i) Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results
8.
As noted in the introduction, lack of trust in the electoral system has endured in Kenya for a long time. This led to the introduction of electoral technology following the recommendations made by the Independent Review Commission on the General Elections held on the December 27, 2007 (Kriegler Commission Report). The Report recommended integration of technology into Kenya’s electoral processes for registration, identification of voters and transmission of results. These were enacted in section 44 of the Elections Act, 2011. By this statute, IEBC is enjoined to adopt technology in the electoral process. As a consequence, the IEBC developed a technology known as Kenya Integrated Electoral Management System (KIEMS) making Kenya’s election process hybrid as it employed both technology and manual processes.
9.
The 1st, 3rd and 4th petitioners in the consolidated Petition, challenge the technology used by IEBC during the 2022 General Election. They plead that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. As regards the audit of the Register of Voters, they urge that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they allege, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.
10.
In this report, it was noted that the auditors established serious gaps and risks to the electoral process including; numerous cases of change of voting stations without knowledge or approval of the affected voters; grant of voter update privileges in IEBC IDMS to 14 user accounts unrelated to voter registration;reducing the accountability of user activities in the Register of Voters; presence of 11 active generic accounts on the ABIS application and two ABIS users with the same log in identification; risking unauthorized system users possible transference; change of particulars or deactivation of voters in the system; IEBC’s failure to set up access recertification and user activity review process; and IEBC’s failure to respond to request by auditors for crucial information.
11.
On the integrity of the technology deployed, the 7th petitioner contends that in order to comply with article 86 of the Constitution and section 44 of the Elections Act, the technology deployed must be simple, accurate, verifiable, secure, accountable and transparent. On the simplicity of technology, the 7th petitioner contends that the KIEMS kit failed the test as they were not easily usable by ordinary citizens without expert knowledge. They further assert that IEBC was expected to procure and put in place a technology necessary for the conduct of the General Election at least one hundred and twenty (120) days before the election and ensure consultation with the relevant agencies, institutions and stakeholders.
12.
Furthermore, the petitioners allege that IEBC violated its constitutional duty by delegating the design, implementation and conduct of the KIEMS component of the election to a foreign company-Smartmatic International Holding BV (Smartmatic). As a result, IEBC’s staff and the public did not have full comprehension of the KIEMS component. They conclude therefore that IEBC abdicated and surrendered its role to conduct elections to Smartmatic; and that IEBC vigorously fought any attempt to subject Smartmatic’s activities to accountability and transparency including the safeguards required by regulations 61(4)(a), 69(1)(d), (e)(iii) and 75(6) of the Elections (General) Regulations, 2012.
13.
In response, IEBC has submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information; and the information was available and could be authenticated through the use of various security features.
14.
In further response, IEBC contended that they engaged KPMG on April 7, 2022 to conduct an Audit of the Register of Voters, which was submitted on June 18, 2022. In addition, it issued a briefing on the Report on June 20, 2022, summarizing the thematic areas therein and disclosing its findings as well as actions taken to remedy the issues identified. It also conducted its annual audit in compliance with regulations 11 and 12 of the Election (Technology) Regulations, 2017 and a Certification of Compliance issued to it on August 3, 2022.
15.
IEBC relied on affidavits sworn by Michael Ouma, Moses Sunkuli and Marjan Hussein Marjan on August 26, 2022 to the effect that it published the interim report by KPMG on June 8, 2022 and embarked on remedial measures aimed at effecting the recommendations ahead of publication of the final report. It was asserted that it could not publish the full final Audit Report as doing so would compromise the integrity and security of the electoral technology system, considering the provisions of the Data Protection Act, which imposes a duty to protect the data of Kenyan voters.
16.
On the other hand, the 1st and 2nd respondents urge that even if there was failure of technology, it did not vitiate the result of the Presidential Election.
17.
Upon considering all the pleadings, submissions and the ICT scrutiny and Inspection, tallying and recount Report which fully examined the IEBC’s Result Transmission System (RTS), we are not persuaded by the allegation that the technology deployed by IEBC failed the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency for the following reasons:
(a)
Whereas it is true that the KIEMS kit failed in 235 polling stations, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. This happened successfully in Kibwezi West Constituency and parts of Kakamega County.
(b)
While the Audit Report was released to the public seven days before the 9th August election, the Register of Voters was used at the election without any apparent anomalies.
(c)
Smartmatic was procured to provide the necessary technological infrastructure as IEBC did not have the capacity to do so. No credible evidence meeting the requisite standard of proof of access to the system by unauthorized persons was adduced by the petitioners.
(d)
The Scrutiny Report prepared by the Registrar of this court did not reveal any security breaches of the IEBC’s RTS.
(e)
IEBC successfully deployed a Biometric Voter Register (BVR) system which captures unique features of a voter’s facial image, fingerprints and civil data, to register and update voter details across the country and in the diaspora. These features are unique to each voter.
(f)
In compliance with section 6A of the Elections Act, 2011, IEBC opened the Register of Voters for verification of biometric data by members of the public for a period of 30 days. Thereafter, the Register was revised to address issues arising from the verification exercise. KPMG then audited the Register and we are satisfied that the inconsistencies and inaccuracies identified during the Audit were successfully addressed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/54/eng@2022-09-05 |
Presidential Election Petition E003 of 2022 | Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others (Presidential Election Petition E003 of 2022) [2022] KESC 49 (KLR) (Election Petitions) (30 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,022 | Nairobi | Election | Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others | [2022] KESC 49 (KLR) | null | Brief facts
The 3rd respondent filed the application in which he sought leave to strike out the name of the Attorney General in petition No. E003 of 2022 on grounds of misjoinder, outside the prescribed time limits.
Issues
Whether in determining applications in the presidential election petition, the Supreme Court could determine an application filed out of time. | This application is dated the August 27, 2022 and filed on the August 29, 2022 by William Samoei Ruto, (the 3rd respondent). He seeks leave to strike out the name of the Attorney General in Petition No E003 of 2022 on grounds of misjoinder. It is supported by the affidavit of William Samoei Ruto, sworn on the 27th August, 2022 and filed on the August 29, 2022. It is brought pursuant to rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017.
2.
We have considered the application, affidavit in support, as well as the petitioners’ replying affidavit and submissions in opposition thereto. We find that the application, which was filed on the August 29, 2022 at 4:45 pm was filed out of time, is therefore incompetent and an abuse of the court process. In any event, the court has determined the issue in the said application in its ruling delivered on the August 29, 2022 in Petition E002 of 2022.
3.
Consequently, the application is hereby dismissed with no orders as to costs.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/49/eng@2022-08-30 |
Presidential Election Petition 1 of 2022 | Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party) (Presidential Election Petition 1 of 2022) [2022] KESC 51 (KLR) (Election Petitions) (30 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,022 | Nairobi | Election | Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party) | [2022] KESC 51 (KLR) | null | Brief facts
The applicant filed the instant application seeking to prosecute a draft preliminary objection and counterclaim as a pauper due to lack of funds for payment of court fees totaling to Kshs. 1,004,000. The applicant contended that there was manipulation of the IEBC tallying server by the commanders of the paramilitary Azimio la Umoja One Kenya Kwanza Alliance of Political Parties.
Issues
Whether a party could prosecute a preliminary objection and a counterclaim in a presidential election petition as pauper where the party was neither a petitioner or a respondent.
| Upon perusing the notice of motion dated August 26, 2022 seeking to prosecute a draft preliminary objection and counterclaim as a pauper due to lack of funds for payment of court fees totaling to Kshs 1,004,000; and
2.
Upon reading the supporting affidavit of Benjamin Barasa Wafula sworn on August 26, 2022; 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 supported the government to raise the Pan African Paper Mills EA Company Ltd employees’ salaries, who were underpaid by 32.9%, 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 preliminary objection and counterclaim where he contends there were manipulation of the IEBC tallying server by James Orengo, Charity Ngilu, Stephen Kalonzo and Ali Hassan Joho being the commanders of the paramilitary Azimio la Umoja One Kenya Kwanza Alliance of Political Parties; and
5.
Having considered the Supreme Court (Presidential Election Petition) Rules, 2017 it is evident to us that the applicant is not a petitioner and/or has not been sued as a respondent in any of the Presidential Election Petitions before us, he has also not sought to participate as a friend of the court. Consequently, we find that the application before us is not merited and is therefore, dismissed.
6.
For the foregoing reasons, the final orders of the court are as follows:
Orders:
a.
The application dated August 26, 2022 seeking waiver of fees; and leave to prosecute a preliminary objection and counterclaim is hereby dismissed.
b.
There shall be no orders as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/51/eng@2022-08-30 |
Election Petition E002 of 2022 | Youth Advocacy for Africa (YAA) & 7 others v Independent Electoral and Boundaries Commission & 17 others (Election Petition E002, E003 & E005 of 2022 (Consolidated)) [2022] KESC 42 (KLR) (Election Petitions) (30 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,022 | Nairobi | Election | Youth Advocacy for Africa | [2022] KESC 42 (KLR) | null | Brief facts
The petitioners in Presidential Election Petition No. E002 of 2022 (the applicants) through an application sought court orders to compel the Independent Electoral and Boundaries Commission (IEBC) to give the petitioners or any person or expert engaged by IEBC in relation to the petition, the complete unedited soft copy of the Voters Register; to give the petitioners full and unfettered physical and remote access to electronic device(s) used to capture Form 34A’s and 34B’s on the Kenya Integrated Election Management System (KIEMS) and transmitted to the Constituency Tallying Centre and the National Tallying Centre; to give the applicants full and unfettered physical and remote access to any server(s) at the constituency tallying centre for storing and transmitting voting information and that the servers would be forensically imaged to capture inter alia, metadata such as data files for all Forms 34A and Forms 34B among other orders regarding the technology used in the presidential election that was conducted on August 2022. The petitioners also sought court order for inspection, scrutiny and recount for various polling stations.
Issues
What criteria should courts employ in determining applications for scrutiny and recount of election results?
Whether the Supreme Court in determining the presidential election petition could grant orders to direct the production of contracts with terms of reference between third parties who were not parties to petitions before the court.
Whether an order allowing for the filing of further affidavits arising from the attainment of the information from the scrutiny exercise could issue given the strict timelines applicable to the presidential election petition. | .
Upon reading the grounds in support of the application, the averments in the supporting affidavit sworn by Martha Karua on behalf of the petitioners and their written submissions filed and dated August 26, 2022 where the applicants claim that IEBC conducted and supervised the impugned election of 9th August and on August 15, 2022, the Chairperson purported to announce William Ruto as president-elect and gazetted him in Notice No CXXIV on August 16, 2022; that the impugned declaration of the presidential results were made in flagrant violation of the Constitution and the Electoral Laws; that the electronic transmissions of results from polling stations to the Constituency Tallying Centre were not secure so as to deliver a free, fair, secure, credible, transparent, accurate and verifiable election; that the statutory forms 34 A, B, and C used to declare the results were fraudulently manipulated or altered by compromised staff of IEBC and third parties with the connivance of the Chairperson and senior staff of IEBC in order to achieve a predetermined outcome in favour of the President-elect and further submission that the results transmissions system was demonstrably compromised and there was corroboration with glaring irregularities, inaccuracies, inconsistencies in the physical and public portal result forms as demonstrated to court, with the applicants relying on Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017; [2017] eKLR (The Maina Kiai Case);
7.
We Now opine as follows:
i)
The applicants have in their applications, set out their prayers specifically asking for scrutiny as well as the information they intend to be granted access to. We note that this court, while considering an application for access and scrutiny in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, Presidential Petition No 1 of 2017; [2017] eKLR determined that, while considering a request for scrutiny of either the Forms or the technology used in an election, the request for scrutiny must be made for a sufficient reason and that any prayer that would in effect be a fishing exercise to procure fresh evidence not already contained in the petition must be rejected. Further any prayer couched in general terms, not pleaded with specificity or such request is impracticable in terms of scope and time will also be declined. Furthermore, we noted that, because of the narrow timelines granted by the Constitution to hear and determine a presidential election dispute, only reasonable, practical and helpful orders should be issued in that regard. We shall maintain that criteria in determining the present applications.
ii)
Section 12 of the Supreme Court Act obligates IEBC to submit to the court certified copies of the documents used to declare the results of the Presidential Election including the Forms used to announce the results of the elections at the polling station and the constituency tallying center and to declare the result at the national tallying center. All these documents are already in the custody of the court and are available to the parties upon request.
iii)
Flowing from the above therefore and with regard to prayer 1 in Presidential Election Petition No E002 of 2022 as well as prayer 8 in Presidential Election Petition No. E003 of 2022 on the availing of the soft copy of the voters register as well prayer 8 in Presidential Election Petition No E003 of 2022 seeking scrutiny of the biometric voter register, we see no reason to grant these prayers as the register is already in the public domain and in any event, no justification in the context of the dispute before us has been given why the same should be provided.
iv)
On prayer 2 in Presidential Election Petition No E002 of 2022 which touches on access to all KIEMS kits and servers for all Constituency Tallying Centers, we note that such a request is unrealistic given the short timelines for the hearing and determination of the petitions before us.
v)
With regard to prayers 4,5, 6, 7, 8, and 10 in Presidential Election Petition No E002 of 2022 as well as Prayer 2 in Presidential Election Petition No. E003 of 2022 and Prayers 1 and 2 in Presidential Election Petition No E005 of 2022 which majorly touch on the technological aspects of the presidential election petitions, we note that the orders sought are not practicable, reasonable and helpful to ensure that we reach a just and fair determination of the petitions. They are also couched in general terms and are vague.
vi)
With regard to prayer 1 in petition Presidential Election Petition No E005 of 2022 asking for the terms of reference between Smartmatic International and Local Service Providers, we note that there may be possible legal issues that may arise as this Court cannot blindly grant orders to direct the production of contracts with terms of reference between third parties who are not parties to the petitions before us. Smartmatic International is not a party to these proceedings neither are local service providers and to demand that such terms of reference be accessed by the applicants is impractical and may cause unnecessary delay in the hearing and determination of the election petitions before us.
vii)
Regarding prayer 6 by the applicants in Presidential Election Petition No E005 of 2022 on the filing of further affidavits arising from the attainment of the information from the scrutiny exercise, noting the time left for the hearing and determination of the petition from the date of delivery of this ruling, such an order would only but delay the proceedings and will occasion prejudice to the respondents who will not be able to respond to the issues raised in the affidavits. That prayer is therefore disallowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/42/eng@2022-08-30 |
Presidential Election Petition E005 of 2022 | Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others (Presidential Election Petition E005, E002 & E004 of 2022 (Consolidated)) [2022] KESC 43 (KLR) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 30 August 2024 | 2,022 | Nairobi | Election | Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others | [2022] KESC 43 (KLR) | null | Brief facts
The 9th applicant (HE Dr. William Samoei Ruto) sought to strike out the names of the 3rd to 8th respondents from the presidential election petitions. The applicant contended that the respondents, being members of the 1st respondent (being Commissioners of the IEBC), an independent constitutional and corporate entity, could not be parties to the petitions. The application also sought to strike out the 13th respondent, the Office of the Attorney General, from the presidential election petition on the grounds that the respondent had no role in the petition, unless the instant court granted leave for him to be joined as a friend of the court.
Issues
Whether the inclusion of IEBC commissioners as respondents in a presidential election petition violated section 15 of the IEBC Act which insulated the commissioners from being personally liable for any acts done in good faith in execution of their mandate.
Whether the office of the Attorney General’s role in a presidential election petition was limited to being a friend of the court.
| 1.
William Samoei Ruto, (the applicant) has been named as the 9th respondent in Petitions E002, E004, and E005 respectively. By three separate applications all dated the August 27, 2022, he seeks to strike out firstly, the names of the 3rd to 8th respondents in Petitions E004 and E005 respectively, and secondly, the names of the 3rd to 8th and 13th respondents in Petition E002.
2.
Regarding the 3rd to 8th respondents in the three petitions, the applicant submits that the said respondents, being members of the 1st respondent, an independent constitutional and corporate entity, cannot be sued in their individual capacity. In support, the applicant cites section 15 of the IEBC Act, 2011 which insulates and protects the respondents, from being personally liable for any acts done in good faith and in the execution of the 1st respondent’s powers, functions and duties.
3.
As for the 13th respondent in Petition E002, the applicant submits that the said respondent has no role in this petition, unless this court grants leave for him to be joined as a Friend of the court. Further, the applicant argues that the Supreme Court (Presidential Election) Rules, 2017 do not envisage the 13th respondent as a respondent in a petition challenging the Presidential Elections.
4.
We have considered the applications and written submissions in support thereof. It is not lost on us that one of the main grounds on which the three petitions are based is that the 1st respondent of which the 3rd to 8th are members, failed to perform its functions under article 138(3)(c) of the Constitution. This failure as claimed by the petitioners, was occasioned by the exclusion of the 5th to 8th respondents from the verification and tallying process by the 2nd respondent.
5.
This claim is based on a highly publicized Press statement by these very respondents disowning the declaration of the Presidential Election results by the 2nd respondent. This statement by the four respondents brings them squarely within the ambit of grievance by the petitioners. The latter cannot be faulted for seeking to place before the court any evidence emanating from the four. To use section 15 of the IEBC Act, as a shield, would be tantamount to suppressing evidence by the applicant.
6.
Regarding the application to strike out the 13th respondent from Petition E002, it is also not lost on us that the said respondent is the Attorney General of the Republic of Kenya. The holder of such an office, has more capacity than any other litigant in this Country to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he does not need the aid of the 9th respondent to accomplish such a routine task. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/43/eng@2022-08-29 |
Presidential Election Petition E005 of 2022 | Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 44 (KLR) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others | [2022] KESC 44 (KLR) | null | Brief facts
John Walubengo, Dr. Joseph Sevilla and Martin Mirero, sought leave to be joined as amici curiae in the Presidential Election Petition No. E005 of 2022.
Issues
Whether the applicants met the standard set in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR and Francis Muruatetu & another v Republic & 5 others [2016] eKLR for admission as amici curiae. | This application is dated the August 28, 2022 and filed on even date by John Walubengo, Dr Joseph Sevilla and Martin Mirero, seeking leave to be joined as amici curiae in the Presidential Election Petition No E005 of 2022. It is supported by the affidavit of John Walubengo, sworn on the August 28, 2022 and filed on the August 28, 2022. It is brought pursuant to articles 10, 22, 38, 140, 159 and 163 of the Constitution; sections 3A and 12 of the Supreme Court Act, 2011; and rule 17A of the Supreme Court (Presidential Election Petition) Rules, 2017. The applicants have annexed an Amici Brief to their application for the court’s consideration.
2.
We have considered the application, affidavit in support thereof, and the amici Brief thereto. On the basis of the contents of the said Brief, we are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLR and Francis Muruatetu & another v Republic and 5 others, SC Petition No 15 & 16 of 2015 (Consolidated): [2016] eKLR for admission of Amici Curiae; and the requirements of rule 17 A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
3.
Consequently, the applicants are hereby admitted as amici curiae in Petition No E005 of 2022. The amici will not make oral submissions and shall rely solely on their written Brief.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/44/eng@2022-08-29 |
Presidential Election Petition E005 of 2022 | Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 50 (KLR) (Election Petitions) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya | [2022] KESC 50 (KLR) | null | Brief facts
The instant application was filed by the Law Society of Kenya, seeking leave to be joined as amicus curiae in the Presidential Election Petition No. E005 of 2022. The application was brought pursuant to rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition Rules) 2017 and rule 19 of the Supreme Court Rules, 2020.
Issues
What were the requirements to be met for a party to join a suit as an amicus curiae in a presidential election petition?
Held
On the basis of the contents of the amicus brief, the application satisfied the test established by the court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2015] eKLR and Francis Muruatetu & Another v Republic and 5 Others [2016] eKLR for admission of amici curiae; and the requirements of rule 17A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
Application allowed,
| This application is dated the August 27, 2022 and filed on the August 28, 2022 by the Law Society of Kenya, seeking leave to be joined as amicus curiae in the Presidential Election Petition No E005 of 2022. It is supported by the affidavit of Florence Wairimu Muturi, sworn on the August 27, 2022 and filed on the August 28, 2022. It is brought pursuant to rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition Rules, 2017 and rule 19 of the Supreme Court Rules, 2020). The applicant has annexed an amicus Brief to its application for the court’s consideration.
2.
We have considered the application, affidavit in support thereof, and the amicus brief thereto. On the basis of the contents of the said brief, we are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLR and Francis Muruatetu & another v Republic & 5 others, SC Petition No 15 &16 of 2015 (Consolidated): [2016] eKLR for admission of amici curiae; and the requirements of rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
3.
Consequently, the applicant is hereby admitted as an amicus curiae in Petition No E005 of 2022. The amicus will not make oral submissions and shall rely solely on its written brief. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/50/eng@2022-08-29 |
Presidential Election Petition E005 of 2022 | Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Orenge (Interested Party) (Presidential Election Petition E005 of 2022) [2022] KESC 53 (KLR) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Orenge | [2022] KESC 53 (KLR) | null | Brief facts
The applicant sought to be enjoined as an interested party in the presidential election petition on grounds that he intended to demonstrate electoral fraud arising from voters register on a sufficient scale. He contended that the voter fraud had the effect of a coup d’etat, protest or corruption of democracy.
Issues
Whether a person could be admitted as an interested party in a presidential election petition. | Upon perusing the notice of motion application by the applicant, Julius Orenge, dated August 26, 2022 and filed on the even date, seeking to be enjoined in these proceedings as an interested party; and
2.
Upon reading the supporting affidavit of Julius Orenge, a Kenyan citizen and a registered voter, sworn on August 26, 2022; and
3.
Upon considering the grounds adduced by the applicant in support of the orders to be enjoined as an interested party, wherein he postulates that he shall demonstrate that in a National Election, successful electoral fraud arising from voters register on a sufficient scale can have the effect of a coup d’etat, protest or corruption of democracy; and
4.
Considering that the relevant law in that regard to interested parties is rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules, 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election Petition, we find as follows: | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/53/eng@2022-08-29 |
Presidential Election Petition 5 of 2020 | Odinga & another v Independent Electoral and Boundaries Commission & 8 others (Presidential Election Petition 5 of 2020) [2022] KESC 47 (KLR) (Election Petitions) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 8 others | [2022] KESC 47 (KLR) | null | Brief facts
The application by the 9th respondent, William Samoei Ruto, sought to strike out the affidavits of John Mark Githongo, Benson Wesongo and Martin E. Papa which were sworn in support of the petition. The applicant also sought to expunge paragraphs in the petition that sought to summon the Director of Criminal Investigations into the petition. The applicant contended that the affidavits were inadmissible in evidence as they contained hearsay material and that the impugned paragraphs of the petition sought to expand the purview of a petition contrary to the matters which ought to form a petition under article 140 of the Constitution.
Issues
Whether the Supreme Court could expunge supporting affidavits of a presidential election petition at the preliminary stage of the petition on grounds that the affidavits were inadmissible due to hearsay.
Held
The affidavits contained factual contestations which had been responded to substantively by the 1st respondent and by the applicant. It was only proper that the court be allowed to consider the totality of the evidence before it and as guided by the rules of evidence be able to discern the probative value and evidentiary threshold of the evidence adduced by each party. Striking out of the affidavits at the instant juncture in isolation while leaving the responses on record was premature.
The impugned affidavits could only be dealt with on merits. The court was aware of its circumscribed jurisdiction both under article 140 of the Constitution and as an election court in respect of potential electoral and other offences and therefore it deferred the issue so that it could be dealt with at an appropriate stage. | Upon considering the affidavit dated August 27, 2022 by Josphat Koli Nanok, the Deputy Chief Agent of UDA’s Presidential Candidate at the National Tallying Centre, in support of the application who depones that the request to summon the DCI who is a known proxy of the petitioner and who has publicly avowed bias against the 9th respondent is intended to unfairly advance the petitioners’ case by introducing extraneous matters which are beyond the purview of a petition under article 140 of the Constitution.
4.
Taking into account that no responses to the application were filed by the petitioners and the 1st to 8th respondents within the required timelines.
5.
Noting the nature of the proceedings before the court being one involving the court’s exclusive and original jurisdiction under article 163(3)(a) of the Constitution respondent’s submissions dated December 27, 2021 and filed on January 5, 2022 through his advocates in which the respondent only addresses the first two issues.
6.
We opine that the said affidavits reveal that they contain factual contestations which have been responded to substantively by the 1st respondent and by the applicant including through the affidavits of Martin Wachira Nyaga (on behalf of the 1st respondent) and by Dennis Itumbi who has been directly implicated and Davis Kimutai Chirchir on behalf of the applicant. It is only proper that the court be allowed to consider the totality of the evidence before it and as guided by the rules of evidence be able to discern the probative value and evidentiary threshold of each of the evidence adduced by each party. Striking out of the affidavits at this early juncture in isolation while leaving the responses on record, in our view, is premature under the circumstances.
7.
Regarding the request to expunge specific paragraphs of the petition, again we note that it is an issue that can only be dealt with on merits as and when it is made in each of the impugned instances. In the same vein, the court is aware of its circumscribed jurisdiction both under article 140 and as an election court in respect of potential electoral and other offences and will defer this issue to be dealt with appropriately. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/47/eng@2022-08-29 |
Presidential Election Petition E005 of 2022 | Odinga & another v Independent Electoral and Boundaries Commission & 8 others (Presidential Election Petition E005 of 2022) [2022] KESC 48 (KLR) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 8 others | [2022] KESC 48 (KLR) | null | Brief facts
The application sought for the court to admit on record the replying affidavits of the 5th to 8th respondents being members of the 1st respondent. The applicants argued that the 2nd, 3rd and 4th respondents in their replying affidavits had alleged that all the members of the 1st respondent attended a meeting with a delegation from the National Security Advisory Committee (NSAC) to subvert the will of the people. It was further contended that the 5th to 8th respondents agreed with the proposal from the NSAC delegation to alter the results of the presidential election in favour of one candidate against another. It was contended that unless the 5th to 8th respondents were allowed to file responses to the allegations, they would suffer great prejudice as the court would make adverse findings without hearing the affected respondents.
Issues
What were the circumstances in which the filing of further or other affidavits could be allowed in a presidential election petition? | Upon perusing the notice of motion application dated August 28, 2022 and filed on even date by the 5th respondent, anchored on rule 17 of the Supreme Court (Presidential Election) Rules, 2017 seeking the following orders;
a)
That this honourable court be pleased to admit on record the replying affidavits of Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene Masit, being members of the 1st respondent, attached hereto.
b)
That the costs of this application be provided for.
2.
Upon considering the grounds on the face of the application, the supporting affidavit sworn on August 28, 2022 by Juliana Cherera and filed on even date. It is the applicants’ argument that the 2nd, 3rd and 4th respondents in their replying affidavits have alleged that all the members of IEBC attended a meeting with a delegation from the National Security Advisory Committee (the NSAC) comprising Dr Kennedy Kihara, the Principal Administrative Secretary in the Office of the President, Mr Kennedy Ogeto, the Solicitor General, Mr Hillary Mutyambai, the Inspector General of Police and Lieutenant General Fredrick Ogolla, Vice Chair of the Kenya Defence Forces, to subvert the will of the people. It is further contended that the 5th, 6th, 7th and 8th respondents agreed with the proposal from the NSAC delegation to alter the results of the presidential election in favour of one candidate against another. To contending that unless the 5th, 6th, 7th and 8th respondents are allowed to file responses to the said allegations, they will suffer great prejudice as the court will make adverse findings without hearing the affected respondents. We have also perused the further affidavit sworn on August 28, 2022 and filed on even date by the 5th respondent.
We now opine as follows:
3.
We have considered the application and the given justifications for the admission of the further affidavit sworn by the 5th respondent.
4.
Under rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 there is no provision to allow any further or other affidavits of this nature. However, we have considered the special circumstances where the facts/allegations made by the 2nd, 3rd and 4th respondents are contained in their response to the petition. These events took place during the pendency of this matter. It would only be fair and just, considering the serious nature of the allegations and implications of the same, that the 5th, 6th, 7th and 8th respondents ought to be given the opportunity to be heard regarding the same.
5.
We deem this to be an exceptional circumstance considering all aspects of the matter. We hereby invoke the provisions of the Supreme Court (Presidential Election Petition) Rules, 2017 rule 4(2) as read together with section 3A of the Supreme Court Act (Act No 7 of 2011) on the inherent powers of the court, and allow the further affidavits to be admitted as applied for. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/48/eng@2022-08-29 |
Presidential Election Petition E005 of 2022 | Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga (Intended Interested Party) (Presidential Election Petition E005 of 2022) [2022] KESC 52 (KLR) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga | [2022] KESC 52 (KLR) | null | Brief facts
The applicant filed the instant application seeking joinder as an interested party. The applicant was one of the four presidential candidates in the presidential election held on August 9, 2022 under the Agano Party Ticket. The applicant argued that he actively participated in the elections from the point of campaigns, casting of ballots, tallying and counting of ballot papers, up to the declaration at Bomas of Kenya and that the court needed to take his evidence into account to ensure that the final judgment of the court was based on available evidence.
Issues
Whether one could be enjoined as an interested party in a presidential election petition.
Held
Rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017, provided that an application by any person as an interested party would not be allowed in a presidential election petition. None of the intended interested party’s averments demonstrated the prejudice he would suffer if he was not enjoined. The arguments the applicant proposed to make could be adequately argued by other parties in the petition.
Application dismissed. | Upon perusing the notice of motion dated August 26, 2022 and filed on August 27, 2022, pursuant to rule 2 and 17 of the Supreme Court (Presidential Petition) Rules 2017, seeking joinder of David Waihiga, the party leader of Agano Party as interested party; and
2.
Upon reading the supporting affidavit of Mr David Waihiga Mwaure, the party leader of Agano Party sworn on August 26, 2022; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders to be enjoined as interested party that is, he was one of the four presidential candidates in the presidential election held on August 9, 2022 under the Agano Party Ticket; he actively participated in the said elections from the point of campaigns, casting of ballots, tallying and counting of ballot papers, up to the declaration at Bomas of Kenya; and the court needs to take his evidence into account to ensure that the final judgment of the court is based on available evidence; and
4.
Noting that no party has filed a response to the application; and
5.
Considering the provisions of rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules 2017, which provide that an application by any person as an interested party shall not be allowed in a presidential election petition.
6.
Furthermore, none of the intended interested party’s averments demonstrate the prejudice he will suffer if he was not enjoined. It is also our finding, that the arguments he proposes to make can be adequately argued by other parties in the petition.
7.
For the foregoing reasons, the final orders of the court are as follows: | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/52/eng@2022-08-29 |
Presidential Election Petition E005 of 2022 | Odinga & another v Independent Electoral and Boundaries Commission & 9 others (Presidential Election Petition E005 of 2022) [2022] KESC 45 (KLR) (29 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 29 August 2022 | 2,022 | Nairobi | Election | Odinga & another v Independent Electoral and Boundaries Commission & 9 others | [2022] KESC 45 (KLR) | null | Brief facts
The applicant sought to be joined as an interested party in the presidential election petition on grounds that he had an inherent interest in the outcome of the petition as it raised fundamental issues which were integral to the protection of his rights as enshrined under articles 10, 38, 73, 81, 86 and 140 of the Constitution, and that he had substantial issues to raise about the legitimacy of Forms 34A and 34B, which were central to the petition. No party filed a response to the petition.
Issues
Whether the applicant could be admitted as an interested party in the presidential election petition. | Upon perusing the notice of motion application by Milton Nyakundi Oriku, the applicant, dated August 23, 2022 and filed on August 28, 2022, seeking to be enjoined in these proceedings as an interested party; and
2.
Upon reading the supporting affidavit sworn on August 23, 2022, of the said Milton Nyakundi Oriku, a Kenyan citizen, who is a registered voter and works as a journalist; and
3.
Upon considering the said application together with his written submissions dated August 23, 2022 and filed on August 28, 2022, wherein the applicant argues that he has an inherent interest in the outcome of the petition as it raises fundamental issues which are integral to the protection of his rights as enshrined under articles 10, 38, 73,81, 86 and 140 of the Constitution; and that he has substantial issues to raise about the legitimacy of Forms 34A and Forms 34B which are central to Petition; and
4.
Noting that no party has filed a response to the application; and
5.
We note that the relevant law in this regard is rule 17A (4) of the Supreme Court (Presidential Petition) Rules 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election petition.
6.
Havingcarefully considered the application, responses and submissions by the respective parties herein, we find no merit in the application. We accordingly, dismiss it. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/45/eng@2022-08-29 |
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Petition (Application) 13 of 2019 | Githiga & 5 others v Kiru Tea Factory Company Limited (Petition (Application) 13 of 2019) [2022] KESC 35 (KLR) (Civ) (8 August 2022) (Ruling) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 August 2022 | 2,022 | Nairobi | Civil | Githiga & 5 others v Kiru Tea Factory Company Limited | [2022] KESC 35 (KLR) | null | 1.
UPON perusing the Notice of Motion application dated 1st December 2020 filed online on 7th December 2020 with the physical copy being filed on 27th May 2022 pursuant to Articles 1 (2), 10, 50 (1), 159, and 163 (7) of the Constitution and Sections 3 and 21 (2) and (4) of the Supreme Court Act, No. 7 of 2011 and all enabling provisions of the law seeking the following orders:
1.
THAT on the grounds more specifically set out in the Certificate of Urgency filed herewith this Application be and is hereby certified urgent to be heard and determined in priority to any other step being taken in related matters.
2.
THAT this Court be pleased to enlarge the time within which the application for review/correction of the error apparent at Paragraph 44 and other parts of the Ruling delivered on 29th November 2019.
3.
THAT this Court be pleased for the benefit of case law and principle of stare decisis to review and or correct the error apparent at Paragraph 44 of the Ruling delivered on 29th November 2019 to wit:-
“
These facts lead us to agree with the Court of Appeal decision, that in order to conclusively determine the question of representation, we must first establish the bona fide directors of the respondent. Whereas the CR 12 points to the current directors of the respondent, the same is in our view, inconclusive, owing to the disputed position awaiting resolution by the Companies Registry”. Emphasis
4.
THAT leave be and is hereby granted to the Applicant to file a Supplementary Affidavit and Supplementary Written Submissions in opposition to the Petition dated 3rd April 2019.
5.
THAT the Costs of and incidental to this Application be provided for;
2.
UPON perusing the grounds on the face of the application; the supporting affidavit sworn on 1st December 2020 by Geoffrey Chege Kirundi and submissions dated 14th June 2022 filed online on 16th June 2017 with the physical copy filed on 17th June 2022. It is the applicant’s main argument that the import of this Court’s ruling delivered on 29th November 2019 at paragraph 44 has the possibility of creating uncertainty, unpredictability, and confusion and ultimately wreaking havoc in the corporate world, independent public and private corporate offices by the proposition that Form CR-12 is inconclusive; that this Court accommodates this application for correction despite it not being made within fourteen days from the date of the decision on grounds of public interest as the error was discovered upon reflection and re-reading of the ruling; and that leave be granted to the applicant to file a supplementary affidavit and written submissions to answer various questions set out in rulings of this Court; and
3.
UPON perusing the replying affidavit by the 6th appellant, Dr. John Kennedy Omanga sworn on 28th June 2022 and filed online on 5th July 2022 with the physical copy filed on 18th July 2022 on his own behalf and on behalf of the other appellants, and the written submissions dated 28th June 2022, filed online on 5th July 2022 with the physical copy filed on 18th July 2022 all in opposition to the application. It is contended that the application is incompetent and incurably defective for not being filed within fourteen days of the ruling of this Court but close to one year later to which the applicant has not sought extension of time or given explanation for the delay, hence making the application a non- starter and therefore, the Court should not be persuaded to exercise its discretion in favour of the applicant. Moreover, that the applicant has not established any of the grounds for review as stipulated by this Court in Hussein Khalid and 16 others v Attorney General & 2 others [2020] eKLR; and that the applicant cannot purport to seek leave to file supplementary affi davit and submissions considering that to date, the applicant has not filed its submissions and the applicant cannot purport to bring new issues, the issues for determination being already disclosed in the main petition before the Court. | 4.
NOTING that the Court, under Section 21(4) of the Supreme Court Act 2011 (repealed) as read with Rule 28(5) of the Supreme Court Rules 2020 confers upon this Court power to review its decision based on the following conditions: that the correction can only be sought within fourteen days of delivery of the judgment, ruling or order; that the relevant parties have been notified, and that the substance of review must relate to any oversight, errors of clerical computation, or errors apparent on the face of the judgment, ruling or order, with the aim of giving effect to the intention of the Court. This threshold was articulated by this Court in Musembi & 13 other (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 (Application E019 of 2021) [2022] KESC 19 (KLR) (Civ)(19 May 2022)(Ruling)); while in Fredrick Otieno Outa v. Jared Odoyo Okello, SC Petition No 6 of 2014; [2017] eKLR where the Court spelt out the guiding principles on review of a court’s own decision; and
5.
CONSIDERING that the applicant failed to file its application within the fourteen days of delivery of the ruling and extension of time as sought by the applicant is an equitable remedy involving the exercise of judicial discretion, and the guiding principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the applicant’s argument is unmerited. We say so because, first and foremost the application does not meet the principles set out in Nicholas Kiptoo Salat Case since the delay in filing the application is close to one year the applicant having filed the application dated 1st December 2020 filed online on 7th December 2020 with the physical copy being filed on 27th May 2022 against the ruling sought to be reviewed which was delivered on 29th November 2019. This is an unexplained undue delay which borders on indolence. Secondly, the argument put forth that the error was discovered upon reflection and re- reading of the ruling is unsatisfactory and appears to be an afterthought.
6.
In the same breadth, taking into account Rule 3(5) of the Supreme Court Rules 2020 and guided by the principles enunciated by this Court in Fredrick Otieno Outa case and the argument put forth by the applicant relating to inconclusiveness of the CR-12, we opine that the applicant’s interpretation is misconstrued. This is because, in our view, the appeal before us does not relate to the conclusiveness or otherwise of the CR-12 in issue but rather the ruling of the Court of Appeal arising from the contempt proceedings before the said Court and our reference to the said CR 12 needs to be placed in the proper context. In addition, the review sought does not relate to any oversight, errors of clerical computation, or errors apparent on the face of the ruling. For these reasons, the prayers for extension of time and for review are not merited.
7.
WITH RESPECT to the prayer for leave to file a further affidavit and written submissions to address questions raised by the Court in its ruling, we are of the view that the prayer is unsubstantiated and the applicant has not specified which questions it seeks to address in the additional pleadings, the applicant not having in its earlier decision delineated the issues falling for determination under the Court’s limited jurisdiction. Further considering that the applicant already filed its submissions dated 26th May 2020 on 28th May 2020 in the main appeal and the matter has since been certified ready for hearing, it is only fair and in the greater interests of justice that the parties, rather than extend their duel through the numerous applications, re-route their efforts and focus towards the hearing and disposal of the main appeal which needs to be expedited based on its long and winding nature.
8.
FOR THESE reasons we come to the inevitable conclusion that the application lacks merit in its entirety and is for disallowing. As for costs, we note that the parties are still engaged in litigation before the Court, it is prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The Notice of Motion dated 1st December 2020, filed online on 7th December 2020 and physically on 27th May 2022 be and is hereby disallowed.
ii.
The costs of this application to abide the outcome of the appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/35/eng@2022-08-08 |
Petition 1 of 2018 | Institute for Social Accountability & another v National Assembly & 5 others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, W Ouko | 8 August 2022 | 2,022 | Nairobi | Civil | Institute for Social Accountability & another v National Assembly & 5 others | [2022] KESC 39 (KLR) | null | Brief facts
Aggrieved by the enactment of the Constituencies Development Fund Act, 2013 (CDF Act, 2013) and the Constituencies Development Fund (Amendment) Act (cap 414) (CDF (Amendment) Act, 2013), two petitions, which were consolidated, were filed at the High Court by the appellants. The consolidated petitions challenged the constitutionality of the CDF Act 2013. The High Court determined that the CDF Act, 2013 was unconstitutional and held that the CDF Act, 2013, was passed without the involvement of the Senate. The High Court established that the Constituencies Development Fund (CDF) was not a conditional grant to the county governments within the meaning of article 202(2) of the Constitution of Kenya, 2010.
The High Court also held that the CDF Act, 2013, violated the division of functions between the National and County Government, the court found that in as much as the National Government was free to infiltrate its policies at the county levels, it had to do so through the structures recognized under the Constitution and those that did not run parallel to them. The court also noted that charging the CDF with implementing local development projects under section 22 of the CDF Act, 2013, upset the division of functions between the two levels of government.
Aggrieved with the judgment of the High Court, the 1st and 4th respondents filed appeals at the Court of Appeal. The appellants raised a preliminary objection to the appeals challenging the Court of Appeal’s jurisdiction on the ground of the doctrine of mootness. They urged that the appeals had been rendered moot following the repeal of the CDF Act, 2013, and the enactment of the National Government Constituencies Development Fund, 2015 (NGCDF Act, 2015).
The Court of Appeal partially allowed the appeals by declaring sections 24(3)(c), 24(3)(f), and 37(1)(a) of the CDF Act, 2013 unconstitutional and invalid for violating the principle of separation of powers. The court also overturned the declaration that the CDF Act, 2013, was unconstitutional in its entirety. The Court of Appeal also held that the NGCDF Act, 2015, did not expressly repeal the CDF Act, 2013. Dissatisfied with the Court of Appeal’s decision, the appellants filed the instant appeal. The 1st respondent also filed a notice of cross-appeal. | Held
A matter was moot when it had no practical significance or when the decision would not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court would have no such practical effect on the rights of the parties, a court would decline to decide on the case. There had to be a live controversy between the parties at all stages of the case when a court was rendering its decision. If after the commencement of the proceedings, events occurred changing the facts or the law which deprived the parties of the pursued outcome or relief then, the matter became moot. Where a new statute was enacted that unequivocally addressed the concerns that were at the heart of a dispute then such a dispute would be moot.
Sections 3, 4 and 53 of the NGCDF Act, 2015 contained some of the pertinent issues that were raging controversies before the Court of Appeal for determination even after the coming into force of the NGCDF Act, 2015. The impugned provisions of the CDF Act 2013 had also been re-enacted in the NGCDF Act, 2015, it did not unequivocally settle the issues in dispute between the parties. There was live controversy between the parties and it was in the public interest to have the questions that were raging adjudicated and determined by the Court of Appeal. The appeal before the was not moot.
Applying a purposive interpretation, the amendment in section 2 of the CDF (Amendment) Act, 2013 of the touched on the main object and purpose of the CDF Act, 2013, which was to ensure that a specific portion of the national annual budget was devoted to the constituencies for inter alia community projects and infrastructural development. Essentially, the amendment had the effect of changing the constitutional basis for the fund from being an additional revenue to the county governments from the National Government under article 202(2) of the Constitution; to transforming the CDF into a fund of the National Government under the consolidated fund established under article 206(2) of the Constitution.
The Court of Appeal was at fault for a restrictive approach in interpreting the law to hold that the Bill in its objects indicated that it did not concern county governments. The replacement of article 202 of Constitution with article 206(2) had an effect on the allocation of revenue to the county governments. The CDF (Amendment) Act, 2013 had an effect on the functioning of county governments.
A matter touching on county government incorporated any national-level process bearing a significant impact on the conduct of county government. Some of the functions contemplated by section 3 of the CDF Act, 2013, concerned county governments. Therefore, the CDF (Amendment) Act, 2013 should have been tabled before the Senate in accordance with article 96 of the Constitution for consideration.
While the concurrence of the Speakers of the National Assembly and the Senate was significant in terms of satisfaction of the requirements of article 110(3) of the Constitution it did not by itself oust the power of the court vested under article 165(3)(d) of the Constitution where a question regarding the true nature of legislation in respect to article 110(1) was raised.
The CDF (Amendment) Bill, 2013 involved matters concerning county governments and therefore the Bill should have been tabled before Senate for consideration, debate, and approval in accordance with article 96 of the Constitution. Failure to involve the Senate in the enacting of the CDF (Amendment) Act, 2013, rendered the CDF Act 2013 unconstitutional. The Constitution did not create a federal State but a unitary system of government that decentralized key functions and services to the county unit.
Article 6(2) of the Constitution provided that the governments at the national and county levels were distinct and interdependent and should conduct their mutual relations on the basis of consultation and cooperation. In addition, article 186(1) of the Constitution stated that the functions and powers of the National Government and county governments would be as set out in the Fourth Schedule to the Constitution.
Parliament was one of the arms of the Government under the Constitution. It consisted of the Senate and the National Assembly. The legislative remit of the National Assembly fell under the National Government in the vertical division of powers between the National Government and the county governments. That was evident from article 95 of the Constitution which provided for the roles of the National Assembly.
The Constitution under article 95 did not grant the National Assembly the power to implement projects as a service delivery unit at the county level. Members of the National Assembly were granted the mandate to legislate and oversight the national revenue and its expenditure.
Article 1(4) of the Constitution stipulated that the sovereign power of the people was exercised at the national level and the county level. In addition, the Constitution established the county executive committee as the executive authority in the county government. Article 179(1) of the Constitution stated that the executive authority of the county was vested and exercised by, a county executive committee. It meant that the service delivery mandate, which in its essence was an executive function, relating to functions assigned to the county governments ought to be exercised by the county executive committee.
Members of National Assembly’s legislative mandate was linked or tied to the National Government and not the county governments. Therefore, where a Member of the National Assembly was allowed to play a role related to functions vested in devolved units, then that would compromise the vertical division of powers between the National and County governments.
The determinate phrase of section 22(1) of the CDF Act 2013 which listed the projects for which the Fund was to be deployed, was "community based". Community-based was not defined anywhere in the statute. A look at the Fourth Schedule to the Constitution (pursuant to the terms of article 186(1) of the Constitution) that distributed functions between the National Government and the county governments, showed that it was the county governments that were allocated most of the functions and powers that could be said to be community or local in orientation. Examples of such functions and powers included those relating to county health services, county transport, trade development, county public works and services, pre-primary education, and village polytechnics, amongst others. In contrast, to a large extent, the functions and powers of the National Government with respect to most of those functions related to policy formulation.
The approach in the Fourth Schedule to the Constitution resonated with the principle of subsidiarity, which underpinned the division of powers under devolved systems of government. Subsidiarity was the broad presumption that sub-national governments ought to be assigned those functions and powers which vitally affected the life of the inhabitants and allowed the development of Kenya in accordance with local conditions of sub-national units, while matters of national importance concerning Kenya as a whole and overarching policy formulation were assigned to the National Government.
The implementation of community-based projects envisaged under section 22 of the CDF Act, 2013, and the infrastructural development projects envisaged under section 3 of the CDF Act, 2013, would inevitably cover and target the functions assigned to county governments.
The CDF did not amount to an inter- governmental transfer of functions. The Constitution paid keen attention to ensure that the National Government did not usurp the mandate of county governments by specifying a clear process for the transfer of functions from a county government to the National Government. Article 187(1) of the Constitution stipulated that a function or power of government at one level could be transferred to a government at the other level by agreement between the governments.
The instant dispute subject did not involve the transfer of functions by agreement between governments as contemplated under article 187(1) of the Constitution. Instead, it was a dispute about alleged constitutionally forbidden encroachment by an agency of the National Government onto the terrain of the county governments.
Under article 1(4) of the Constitution, the sovereign power of the people was exercised at the national level and the county level. The functions of service delivery, which were the character and nature of community-based projects targeted by the CDF Act, 2013, were by nature executive functions. Accordingly, by nature, they would be discharged by the executive structures of the appropriate level of Government in terms of article 1(3) (b) of the Constitution which vested executive functions in the National Executive and the executive structures in the county governments.
The constituency as conceptualized in the Constitution was tied to political representation. Throughout the Constitution, the idea of constituency whenever it was used was linked to being an electoral unit for political representation. In its true essence, a constituency was a form of territorial districting that defined how voters were grouped for the election of Members of Parliament and were not conceptually envisaged to be service delivery units.
The role that a constituency as an electoral unit discharged and its place within the constitutional scheme was tied to the functions constitutionally vested in the Member of the National Assembly. That role was legislative and not a service delivery mandate. The constituency under the constitutional scheme was tied to the election of representatives to the Legislature and representation of the people of the constituency at the National Assembly.
The decentralization of service delivery must be undertaken within the confines of the structures of the National Government or county governments, not parallel to the two levels of Government. A third or parallel structure of Government was altering the basic premises of the system of Government created by the Constitution and as distorting the devolved structure of Government. That was more so in a context such as the CDF fund which had the effect of creating structures that were incompatible with the nature of the distribution of functions between the two levels of Government. The CDF Fund which had the effect of creating structures that were incompatible with the nature of the distribution of functions between the two levels of government. The CDF Act, 2013, violated the division of functions between the national and county levels of Government.
A key concern behind the enactment of article 202(1) of the Constitution which stipulated that revenue raised nationally should be shared equitably among the two levels of government, was to ensure the optimal funding and working of the devolved system of government. What was contemplated by articles 202(1) and 218(1)(a) of Constitution was that revenue raised nationally was all the revenue accruing from all the revenue-raising powers of the National Government. Revenue raised nationally was synonymous with what was termed equitable share and was allocated between the two levels of Government. Before allocation, the revenue was not yet available to the National Government to allocate to its agencies. Only after the National Government had received its portion of the equitable share under the Division of Revenue Act as envisaged in article 218(1)(a), would be in a position to allocate funds to agencies and instrumentalities falling under its mandate.
The National Government and county governments were the only entities entitled to participate in the vertical division of the revenue raised nationally. To allow an agency of the National Government or a third structure whose location within the constitutional system was unclear to participate in the sharing of the revenue raised nationally was a violation of not only article 202(1) but also article 218(1)(a) of the Constitution.
Section 4 of the CDF Act, 2013, violated the provisions of the Constitution as it sought to disrupt the revenue sharing formula by directly allocating 2.5% of all the national revenue while the Constitution required that the revenue raised should be shared equitably among the National and County Governments. If at all any monies was to be deducted from the national revenue, the money should be granted from the National Government revenue as a grant but not directly from the national revenue. The CDF Act, 2013, violated the principles of the division of revenue as stipulated in article 202(1) of the Constitution.
Article 201 of the Constitution expressed the idea of responsible governance. It envisaged that the two levels of Government would manage fiscal resources prudently by putting in systems that ensured that the implementation of projects aimed at delivering a public good and service was cost-effective. It also embodied the desire for fiscal efficiency which spoke to the need to eliminate wastages in service delivery and provision of public good and service. It meant that where it was a policy objective of the Government to deliver a particular public good or service then the system for delivery of that policy objective should be designed in a manner that ensured that public funds were not wasted or abused
There was a real threat of the CDF creating confusion as to which project was being implemented by which level of Government. In addition, it created the prospect of duplication of funding for the same project leading to wastage of scarce public resources. It created a state of lack of clarity as to which level of Government was responsible for which particular project therefore compromising on accountability.
There should be clarity in the allocation and assignment of tasks to avoid duplication in the deployment of resources. That would avoid the problem of the two levels of the government ending up directing and spending resources on the same project.
There was a real threat of the Fund creating confusion as to which project was being implemented by which level of government. It created the prospect of duplication of funding for the same project leading to wastage of scarce public resources. It created a state of lack of clarity as to which level of government was responsible for which particular project therefore compromising on accountability.
While the court appreciated the concerns that motivated the creation of the CDF and public support for it, there were more effective ways of decentralizing funding to the local level without compromising on key constitutional principles like those of public finance.
Even though the CDF (Amendment) Act, 2013 provided that the monies under the Act should be considered as funds allocated under article 206(2)(c) of the Constitution, under section 10 of the CDF Act, 2013, the Cabinet Secretary responsible for matters relating to the CDF in allocating the fund for each financial year had to seek concurrence of the relevant parliamentary committee. That violated the principles of accountability and integrity due to likely conflict of interest. That was because a Member of Parliament could not oversee the implementation or coordination of the projects and at the same time offer oversight over the same projects. The CDF as structured under the CDF Act, 2013, violated the constitutional principles on public finance, particularly the principle of prudent and responsible management of public funds as enshrined in article 201(d) of the Constitution.
The doctrine of separation of powers was a fundamental principle of law that required the three arms of Government to remain separate, and that one arm of Government should not usurp functions belonging to another arm. Article 1(3) of the Constitution delegated power vertically and horizontally to State organs namely, Parliament and the legislative assemblies in the county governments, National Executive and the executive structures in the county governments, and Judiciary and the independent tribunals. Therefore, the Constitution required that each level of Government have both institutional and functional distinctiveness from each other.
Modern democracies did not all employ the same form of separation of powers structuring. Separation of powers was never conceived as involving a perfect and hermetically sealed division of responsibility between the three branches of government.
The doctrine must still have an analytical bite and there would be instances when it could be concluded that structuring of governmental powers violated or failed to embody the ethos represented by the doctrine of separation of powers. While modest modifications and deviations from the pure version would not infringe the doctrine of separation of powers, where the Legislature structured a public agency or institution in a manner that deviated too far from the pure version then it was likely that the separation of powers would have been violated. Whilst the pure version of the doctrine of the separation of powers was not adhered to in practice, it still remained true that it represented a bench-mark or an ideal-type.
The Constitution consciously provided for a structure of government consisting of three balanced branches within the framework of a representative democracy. The separation of powers ought not to be treated or viewed as an end in itself but aimed at the fulfillment of the form of governance and vision of the state that Kenyans aspired to as represented in the national values and principles of governance under article 10 of Constitution.
Kenya had a value-based Constitution. The organizational framework of governance served the purpose of furthering the goal of realization of the national values and principles articulated in the Constitution. The values and principles were not self-executing, rather they were realized through the institutional fabric woven throughout the Constitution including through the separation of powers that undergird the organizational structure of governmental power.
The Supreme Court adopted a two-pronged test to be used in assessing whether a particular allocation of mandate, function, or power to a public agency or institution amounted to an unconstitutional intrusion that threatened or violated the separation of powers. The two limbs of the test were:
whether the mandate, functions or powers of the subject state agency, or institution unjustifiably strays into the nucleus, core functions, or pre-eminent domain that were the exclusive competence of another branch of government from a functional point of view.
Whether the exercise of the subject assigned mandate, functions, or powers will harm or threaten the realization of the national values and principles articulated in the Constitution.
The impugned section 22(3)(c) of the CDF Act, 2013, envisaged that the Member of the National Assembly was to appoint eight (8) of the ten (10) members of the constituency development fund committee. That was in addition to section 24(3)(f) of the CDF Act, 2013, which made the Member of the National Assembly an ex-officio member of the committee. The Black’s Law Dictionary defined an ex-officio member as a member appointed by virtue or because of an office and explained that an ex-officio member was a voting member unless the applicable governing document provided otherwise. As the CDF Act, 2013, did not provide otherwise, a Member of the National Assembly who was a member of the committee by virtue of his office as a Member of National Assembly was a voting member.
It was the constituency development fund committee that was vested with the responsibility of initiating the process for identification and prioritization of the projects, employment of staff, allocation of funds to various projects, the tabling of reports and monitoring the implementation of the projects. Two of its members were among the three signatories to the bank account. The projects implementation committee which implemented the projects works under its direction. Those were typical service delivery mandates that fell within the constitutional mandate of the Executive branch.
The power of appointment of the members of the constituency development fund committee and being an ex-officio member of the committee, the Member of the National Assembly was in effective control of the constituency development fund committee and that meant that he/she influenced the selection, prioritization of projects, allocation of funds and also monitored the implementation of the projects. That meant that the fund as conceived under the CDF Act, 2013, vested in the Legislature and its personnel – being the Members of the National Assembly, functions that typically fell within the nucleus, core function, or pre-eminent domain of the Executive branch.
The national values and principles idea of good governance and accountability represented the aspiration that a person in a position of public trust should not make decisions regarding questions on which they had an interest. Put differently, all State and public officers should avoid conflict of interest in the discharge of their mandate.
As conceived and structured under the CDF Act, 2013, Members of the National Assembly would have a personal interest or stake in the determination and implementation of projects by the fund in their constituencies. The perceived failure or success of the fund within their constituency would also influence their prospects of re-election. What that state of affairs did, was that, it created a conflict of interest with the Member of Parliament’s oversight role.
All State and public officers should avoid conflict of interest in the discharge of their mandate. As conceived and structured under the CDF Act 2013, Members of the National Assembly would have a personal interest or stake in the determination and implementation of projects by the Fund in their constituencies. The perceived failure or success of the Fund within their constituency will also influence their prospects of re-election. That state of affairs created a conflict of interest with the Member of Parliament’s oversight role.
The very fact that the success or failure of the CDF Fund would be linked to the Member of the National Assembly created a perverse incentive of self- interest in the Members of the National Assembly not to undertake the robust oversight mandate envisaged by the Constitutionover the Fund thus inimical to the national values and principles of accountable and good governance.
Given the constitutional edict in article 259(1)(a) and (d) that the Constitution should be interpreted in a manner that promoted its purposes, values, and principles, and contributed to good governance. Adopting an interpretation that allowed conflict of interest undermined the oversight role of the Legislature. Allowing legislators any role, even a merely ceremonial role in discharging a mandate that belonged to the Executive branch at either the national or the county level, would promote conflict of interest and compromise their oversight role. Therefore, the CDF Act, 2013 violated the values and principles of accountability and good governance.
A fund operating outside the strictures of separation of powers and the system of checks and balances would not be constrained given the absence of legislative oversight and therefore would be prone to be abused. In effect, a fund that allowed personnel from the legislative branch to exercise Executive powers was problematic from a constitutional lens. In the context of the case, the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values; that was the maintenance of accountability and good governance. Were the court to adopt a contrary approach, even for the best of policy reasons, those constitutional values and principles would be eroded.
Given the constitutional scheme on separation of powers; members of legislative bodies, being members of the National Assembly, senators, county women representatives, and members of county assemblies ought not to be involved in the implementation of any service-based mandates which were a preserve of the Executive branch. That was the only way to respect the constitutional scheme on separation of powers and ensure that the legislators’ oversight mandate was not compromised through conflict of interest. Tolerating a contrary position would harm the Constitution’s value system, particularly the national values and principles of accountable and good governance. The fund as structured violated the vertical separation of powers.
The fact that the CDF had been operational in Kenya since 2003 was not a good enough answer to the question on the constitutionality of the fund in the post-2010 constitutional dispensation. A fund directed at service delivery mandate could only be constitutionally complaint if structured in a manner that did not entangle members of legislative bodies and legislative bodies in the discharge of the service delivery mandate however symbolic. Such funds ought to be integrated and subsumed within the structures of either the county executive or the National Executive.
Appeal allowed; cross-appeal dismissed.
Orders
Declaration made that the Constituencies Development Fund Act, 2013 was unconstitutional.
Each party to bear their own costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/39/eng@2022-08-08 |
Petition 11 (E008) of 2022 | Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 32 (KLR) (8 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 August 2022 | 2,022 | Nairobi | Civil | Sonko v Clerk, County Assembly of Nairobi City & 11 others | [2022] KESC 32 (KLR) | null | 1.
Upon perusing the Notice of Motion application dated 20th July, 2022 and filed on 21st July, 2022, anchored on Articles 23, 47, 48, 50, 163(1) and (4), 159(2)(d) and (e) of the Constitution, Sections 3 and 21 (2) of the Supreme Court Act (inapplicable) and Rules 3(5) (a) and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all enabling provisions of the law where the applicant is seeking the following orders that:
1.
The Honourable Court be pleased to grant leave to the Applicant to adduce new and additional evidence in the form of:
a.
Videos and Audio recordings pertaining to malpractices by the Presiding Judge of the High Court of Kenya over the conduct and determination of the Applicant’s Petition at the High Court of Kenya in Nairobi High Court Constitutional Petition No. E425 of 2020 (as consolidated with Petition No. E014 of 2021) and Nairobi High Court Constitutional No, E005 of 2021 (as consolidated with Petition No. E433 of 2020; E007 of 2020; E009 of 2020; E011 of 2021; E012 of 2021; E013 of 2021; E015 of 2021; E019 of 2021 and E021 of 2021) in regard to his impeachment.
b.
Communication and correspondence from the Chief Justice; the Judicial Service Commission and various pleadings and evidence filed and lodged at the Judicial Service Commission and the Tribunal pertaining to the disciplinary proceedings in regard to Honourable Justice Juma Said Chitembwe over his conduct in presiding and determining the Applicant’s impeachment proceedings at the High Court of Kenya.
c.
Audio and video recordings by the Honourable Chief Justice Martha Koome in her interview at Spice FM wherein she made utterances and comments pertaining to the present Petition of Appeal on the Applicant’s impeachment wherein she expressed her views on the impeachment process which directly related to the Applicant and the present Petition.
d.
An affidavit duly sworn by Amana Saidi Jirani, nominee and brother to Honourable Justice Said Chitembwe deposing to the existence of an agency agreement between the Honourable Judge and himself and which has a direct bearing on the matter at bar.
2.
The Honourable Court does issue an order to stay the instant proceedings pending the hearing and determination of the proceedings at the Tribunal pertaining to the conduct of Honourable Justice Juma Said Chitembwe, which has a bearing on the instant proceedings and any such orders and further orders to be granted by this Honourable Court.
3.
This Honourable Court be pleased to review/ and or set aside its judgment of 15th July, 2022 in this Appeal.
4.
This Honourable Court be pleased to issue any further orders as it may deem fit in the circumstances as shall meet the ends of justice.
5.
Costs of this Application be provided for. | 2.
Upon examining the grounds on the face of the application; the supporting affidavit of Hon. Mike Mbuvi Sonko, the applicant, deposed on 20th July 2022; further affidavit in response to the grounds of opposition deposed on 26th July, 2022 and submissions dated 21st July, 2022, all to the effect that Chitembwe, J. who was the presiding Judge in High Court Constitutional Petition E425 of 2020, the subject of this appeal, is facing investigations by a disciplinary tribunal over his conduct in the manner he influenced the outcome of the applicant’s Petition challenging his ouster. The applicant explains that he had planned, prior to the hearing of the appeal in this Court to bring the present application to introduce new evidence and stay proceedings before the Court pending the outcome of the tribunal’s determination but for the confusion created by the Court’s registry and the tight timelines, he was not able to do so. In the circumstances, he submits that, it is only fair that the judgment be reviewed and/or set aside along the principles enunciated in the decisions in Cyrus Shakhalaga Khwa Jirongo v. Soy Developers Limited & 9 others [2020] eKLR and Mohamed Abdi Mahamud v. Ahmed Abdi Abdullahi Mohamad & 3 Others [2018] eKLR; and that leave to present the additional evidence be granted.
3.
Upon considering the 1st respondent’s grounds of opposition dated 25th July, 2022, the 2nd, 4th , 5th, 6th, 7th, 8th, 10th, and 11th respondents’ grounds of opposition and submissions, the combined effect of which is that the application offends the provisions of Section 106B of the Evidence Act on admissibility of evidence since the certificates relied on have not particularized what video recordings they intend to produce; that the prayer for recusal of the President of the Court is not only res judicata but was also never an issue for determination in the judgment of 15th July, 2022 and therefore not the subject of an application for review; that the Court being functus officio cannot entertain the instant application or to pronounce itself on the evidence that the applicant seeks to introduce, and particularly after holding that it has no jurisdiction to entertain the main appeal; that the evidence sought to be introduced is irrelevant, not being the subject matter of the removal of the applicant from office, hence their introduction would not have any impact upon the judgment of the Court even if admitted; and that the matters raised in the application are now before the tribunal, where their determination is pending.
In view of the foregoing we now opineas follows:
4.
Noting the omnibus nature of the application in which three reliefs are sought: leave to admit additional evidence; stay of proceedings pending the hearing and determination of the proceedings pending before the tribunal investigating the conduct of Chitembwe, J. and; review and/or setting aside of this Court’s judgment of 15th July, 2022. The latter prayer is indeed the subject of a separate ruling to the applicant’s application dated 18th July, 2022. We say no more on it; and
5.
Regarding the prayer for stay of proceedings pending the outcome of the tribunal’s decision, it cannot be in doubt that the Court delivered its judgment on 15th July, 2022, determining with finality the applicant’s appeal contesting his ouster as Governor. All that remains in the matter are the reasons to be rendered in due course in terms of Rule 28(2) of the Supreme Court Rules, 2020. We do not think the applicant’s intention in this prayer is to stay his own applications which are the only matters pending ruling before the Court. By the provisions of Rule 2 of the Supreme Court Rules 2020, there are no proceedings capable of being stayed that are pending before the Court; and
6.
Considering the prayer for leave to admit additional evidence, the applicant is duty bound to satisfy all the elements under the provisions of Section 20 of Supreme Court Act, Rule 26 of the Supreme Court Rules, 2020 (both of which have not been cited in the application) and as propounded by the Court in Mohamed Abdi Mahamud Ahmed Abdi 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 would 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 made aware of and procured the further evidence in the course of the 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 the 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 the 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.”
These principles have now been enacted in Section 20(1) of the Supreme Court (Amendment) Act No. 26 of 2022.
7.
Applying these principles to the application, it is evident that the material sought to be introduced, videos and audio recordings over alleged malpractices by Chitembwe, J. are the very subject of the tribunal’s investigations. The veracity of audio and video recordings of an interview of the President of the Court was determined in the Court’s ex tempore ruling of 14th July, 2022 followed by detailed reasons on 18th July, 2022. But of great significance is the fact that the applicant has all along been aware of the material he is now seeking to introduce. At the time he lodged the appeal in the Court of Appeal and even in this Court, he was well aware of the gazette notice of 18th May, 2022 in which a tribunal was appointed to investigate the conduct of Chitembwe, J. He has so averred himself in his submissions.
8.
Noting that the applicant has not explained the relevance of the so-called new evidence considering that what was before the Court was his removal from office, whose evidence was quite different from the conduct of Chitembwe, J.; in addition, it is noteworthy that the applicant’s petition before the High Court was heard by a bench of three judges and further that the first appellate court upheld the conclusion by the High Court.
9.
In Conclusion, none of the ten conditions for the grant of leave to bring additional evidence as reproduced in paragraph 6 (a) to (j) above have been satisfied; and therefore,
10.
For these reasons, we find no merit in this application and dismiss it.
11.
Costs follow the event. The applicant shall bear the costs of the 1st, 2nd, 4th, 5th, 6th 7th ,8th, 10th and 11th respondents who participated in this application.
12.
Accordingly, we make the following orders:
i.
The Notice of Motion application dated 20th July, 2022 is hereby dismissed.
ii.
The Applicant shall bear the costs of this application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/32/eng@2022-08-08 |
Petition 11 (E008) of 2022 | Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 38 (KLR) (8 August 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 August 2022 | 2,022 | Nairobi | Civil | Sonko v Clerk, County Assembly of Nairobi City & 11 others | [2022] KESC 38 (KLR) | null | 1.
Upon perusing the Notice of Motion application dated 18th July, 2022 and filed on even date, anchored on Articles 163(1) and (4), 159(2)(d) and (e) of the Constitution, Sections 3 and 21 (2) of the Supreme Court Act and Rule 3 as well as Rule 28(5) of the Supreme Court Rules 2020 and all enabling provisions of the law seeking the following orders
a.
That this Court be pleased to review and/or set aside its Judgment of 15th July 2022;
b.
That the Hon. Chief Justice, Martha Koome be pleased to recuse herself in this matter;
c.
That this Court be pleased to issue any further orders as it may deem fit in the circumstances; and
d.
Costs of this application.
2.
Upon perusing the grounds on the face of the application; the supporting affidavit of Hon. Mike Mbuvi Sonko, the applicant, dated 18th July, 2022; a further affidavit of 21st July, 2022; and a supplementary affidavit dated 26th July, 2022, all in support of the motion; and his submissions dated 26th July, 2022, to the effect that this application meets the strictures set out in the decision of Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others, SC Petition No. 6 of 2014; [2017] eKLR; that the judgment was obtained by fraud or deceit and secondly, that the judgment was a nullity as the Court was not competent to entertain it. According to the applicant, Chitembwe, J. the presiding judge in High Court Constitutional Petition E425 of 2020 which judgment has culminated in this appeal, is under investigations for judicial misconduct by a tribunal appointed under Article 168(5)(b) of the Constitution; that the determination of the tribunal will be crucial in ascertaining whether the Judge was biased against the applicant and whether the judgment of the High Court in Constitutional Petition E425 of 2020 can stand should the tribunal find Chitembwe, J. to have been biased and to be liable for misconduct. These, in the applicant’s view, constitute exceptional circumstances for review of the judgment as provided for under Rule 28 of the Supreme Court Rules.
3.
Further, the applicant submits, in support of the second relief, that the Hon. President of the Court presided over his appeal with a pre-determined mind on the question of his removal; that he has procured and now intends to produce evidence which elaborates on the perception of bias on the part of the President of the Court that could not be availed in the oral application for recusal which he made; and that had the President of the Court recused herself, the applicant submits, the Court would still be properly constituted with a quorum of five judges; and
4.
Upon considering the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 10th and 11th respondents’ separate grounds of opposition and submissions, whose combined effect is that, having rendered the judgment of 15th July, 2022, the Court is now functus officio, unless the applicant demonstrates exceptional circumstances; that the applicant has not done so; that the application has not met the conditions for the grant of an order for review under Rule 28(5) of the Supreme Court Rules; that with the finding that the Court’s jurisdiction was not properly invoked, a review application cannot confer jurisdiction on the Court; that review jurisdiction of the Court does not envisage substantial alteration of the judgment, as sought in this application; that since the Court is yet to release the reasons for the judgment, the application is premature; and that public interest demands an end to litigation on matters the Supreme Court has pronounced; and
5.
Noting further the respondents’ submissions that the application for recusal of the Hon. President of the Court is res-judicata, the Court having considered it and rendered itself on its merit in an ex tempore Ruling of 14th July, 2022 with reasons thereof following on 18th July, 2022. | We now pronounce as follows, bearing in mind all these submissions:
6.
Appreciating the provisions of Section 21A of the Supreme Court (Amendment) Act, No.26 of 2022 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 case (supra), on which nearly all the parties have relied, we can 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 exercise of its inherent powers, the Court may, review its decision(s) “in exceptional circumstances, so as to meet the ends of justice”.
It will do so in instances where:
“
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii.
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii.
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv.
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”
7.
Applying these conditions to this application, we have no hesitation in declaring that as framed, the application falls short of the exceptional circumstances and we decline the invitation to exercise the Court’s limited discretion to review the judgment. A review as envisaged by Section 21A and Rule 28(5) aforesaid, concerns the decision of this Court and not any other court below it. The applicant cannot demonstrate that the judgment of this Court of 15th July, 2022 was obtained by fraud and or deceit or in what way it is a nullity.
8.
Noting that only a summarized version of the judgment, without reasons was delivered on 15th July, 2022, there can be no basis to seek to review it. See Jimi Wanjigi v. Wafula Chebukati & 2 Others, SC Application 6 (E012) of 2022.
But more fundamentally, the Court having found as a main reason that its jurisdiction was not properly invoked, a review application cannot confer on it jurisdiction.
9.
Upon considering the second ground for review for the reason that the President of the Court ought to have recused herself, in a sentence, we reiterate that this question is res judicata, having previously been raised and finally determined in a ruling rendered on 14th July, 2022 culminating in detailed reasons on 18th July, 2022. That ruling, a distinct and separate decision, is not the subject of this application.
10.
Consequently, the conditions for review under Section 21A, Rule 28(5) aforesaid and elaborately explained in the Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others case (supra) have not been met. All this application is intended to achieve is to avail a second bite at the cherry to the applicant. The numerous applications and affidavits are aimed at vexing the rest of the parties in clear abuse not only of the court’s process but also of the constitutional guaranteed access to court.
11.
For reasons given above, the application lacks substance and is disallowed.
12.
Costs follow the event as such, the applicant shall bear the costs of the 1st, 2nd, 10th, 4th, 5th, 6th 7th ,8th and 11th respondents who have participated in this application.
13.
Accordingly, we make the following orders:
i.
The Notice of Motion application dated 18th July, 2022 is hereby dismissed.
ii.
The Applicant shall bear costs of this application in terms of paragraph 12.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/38/eng@2022-08-08 |
Petition 14 of 2020 | Director of Public Prosecution v Okemo & 4 others (Petition 14 of 2020) [2022] KESC 33 (KLR) (29 July 2022) (Reasons) (with dissent - W Ouko, SCJ) | Reasons | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 8 August 2022 | 2,022 | Nairobi | Civil | Director of Public Prosecution v Okemo & 4 others | [2022] KESC 33 (KLR) | null | Brief facts
On May 26, 2011, the Attorney General of Jersey made a request for the extradition of the appellants. The Office of the Attorney General (AG) (Kenya) handed over the Department of Public Prosecutions (then a department in the office of the AG) which later became the Office of the Director of Public Prosecutions (ODPP). The DPP issued an authority to proceed to the Chief Magistrate and filed extradition proceedings.
Aggrieved, the 1st and 2nd appellants via judicial review at the High Court challenged the authority of the ODPP to issue an authority to proceed to institute extradition proceedings. Their position was that Extradition (Commonwealth Countries) Act made no mention of the ODPP, they contended that the relevant authority with the power to institute extradition proceedings was the AG. The High Court held that extradition proceedings were of a criminal in character. The High Court further held that extradition proceedings were properly initiated by the ODPP.
Dissatisfied with the High Court’s decision, the 1st and 2nd respondents lodged their respective appeals in the Court of Appeal. The Court of Appeal overturned the High Court’s decision and held that extradition proceedings fell wholly within the ambit of international law and were sui generis in nature; that it was the AG as opposed to the DPP who was empowered to issue the authority to proceed; and therefore, the extradition proceedings in issue were a nullity.
Aggrieved the ODPP filed the instant appeal in which they contended that the Court of Appeal erred in finding that extradition proceedings were sui generis in nature and were to be instituted by the AG. They sought for the Supreme Court to declare that the function institute and litigate extradition proceedings were vested in the ODPP. | E. Conclusion
174.
It is reasonable to conclude that whilst extradition hearings resemble criminal proceedings they are apart from them. They are accurately described as sui generis because they are unlike any other type of judicial proceeding. They are neither accusatorial nor civil law inquisitorial, nor even an amalgam of both. They do not have the characteristics of a criminal trial. They are also clearly not orthodox civil proceedings. For this reason, there cannot be any justification for the involvement of the DPP whose docket is purely prosecution of crimes within Kenya. Yet extradition is concerned with whether or not the person whose extradition is sought may be extradited in accordance with the provisions of the extradition treaty, international law and municipal law. It is not a criminal proceeding. Even if the potential extraditee is a criminal fugitive, an extradition proceeding is not by its nature and character criminal, for it is not punishment for a crime, even though such punishment may follow extradition. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.
175.
To finally answer the narrow question in this appeal, like the Court of Appeal, I hold the view that “the authority to proceed” issued on July 6, 2011 by the DPP was irregular. He has no such powers or even to institute and process extradition proceedings under the Extradition (Commonwealth Countries) Act.
I would, for all the reasons stated, have affirmed the decision of the Court of Appeal and dismissed this appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/33/eng@2022-07-29 |
Petition 16 (E019) of 2022 | Abote v Kawaka & 4 others (Petition 16 (E019) of 2022) [2022] KESC 36 (KLR) (25 July 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 25 July 2022 | 2,022 | Nairobi | Civil | Abote v Kawaka & 4 others | [2022] KESC 36 (KLR) | null | 1.
UPON perusing the Notice of Motion dated 18th July, 2022 and filed on 20th July, 2022, pursuant to Article 163(4) of the Constitution, Sections 3, 21 and 24 of the Supreme Court Act and all enabling provisions of the law for orders that:
i.
This Application be and is hereby certified urgent and heard ex parte in the first instance and appropriate directions issued;
ii.
The Honourable Court do on a matter of urgency set down this Application and the main petition {for hearing} on a priority and emergency basis;
iii.
Due to the urgency and strict timelines in the electoral process, this Honourable Court do direct immediate hearing of the petition lodged herein by the petitioner;
iv.
The Honourable Court do issue necessary directions to preserve the substratum of the petition including where necessary to stop the printing of ballot papers for Member of County Assembly for South Kabuoch/Pala Ward pending the hearing and determination of the Petition;
v.
Any other or further orders of the court geared towards protecting the dignity and authority of the court; and
2.
Upon reading the applicant’s grounds on the face of the application and the applicant’s supporting affidavit sworn on 18th July, 2022 wherein he deposes that, the Court of Appeal in its impugned judgment in Civil Appeal No. E168 of 2022 erred by allowing the 1st and 2nd Respondent’s appeal and setting aside in entirety the High Court’s judgment in Constitutional Petition No. 1 of 2022 and therefore created a legal crisis by allowing subordinate courts to ignore binding decisions of superior courts in interpreting the law and have the liberty to come up with their own conjured interpretations of the law that differs from prior interpretation made by superior courts; that the Court of Appeal erred in finding that the High Court erred in considering the holistic nature of elections; that the matter relates to the nomination and registration of candidates for the election slated for the 9th August, 2022 hence the need for the matter to be heard expeditiously; that the expeditious hearing and determination of the main petition will enable the applicant’s right to access to justice to be actualized in a meaningful way and; that the matter in dispute relates to and affects the exercise of the free franchise of millions of Kenyans who have a right to choose a leader of their choice in a democratic free and fair election; and
3.
Upon considering the written submissions by the applicant wherein it is submitted that the application is merited and that with the elections being days away, there is need for the appeal to be heard expeditiously as printing of ballot papers is underway in light of the upcoming elections, with time being of the essence hence the need to preserve the substratum of the petition including where necessary, the need to stop the printing of ballot papers for Member of County Assembly for South Kabuoch/Pala Ward pending determination of the appeal; and
4.
Further Considering the 1st and 2nd respondent’s amended preliminary objection and written submissions both dated and filed on 20th July, 2022 claiming that the applicant failed to file a Notice of Appeal, a jurisdictional pre-requisite citing Patricia Cherotich Sawe v. Independent Electoral & Boundaries Commission & 4 Others [2015] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR; that the petition fails to specify under what limb of Article 163(4) that he invokes this Court’s jurisdiction, contending that this Court has held that a party invoking this Court’s appellate jurisdiction must indicate which constitutional provision they seek to move the Court citing Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR as well as Mike Mbuvi Sonko v Clerk County Assembly of Nairobi Supreme Court Petition 11 (E008) of 2022 and that the applicant failed to appeal Political Parties Dispute Tribunal judgment dated 1st May, 2022 before the High Court and the Court of Appeal, hence appealing the Political Parties Disputes Tribunal before the Supreme Court for the first time ever, claiming that the Supreme Court Act does not confer jurisdiction for direct appeals from the Political Parties Disputes Tribunal to the Supreme Court citing the case of Yusuf Gitau Abdalla v. Building Centre (K) Ltd & 4 Others [2014] eKLR ; and
5.
Also Noting the written submissions by the 4th and 5th respondents dated 21st July, 2022 opposing the application where they submit that this Court lacks jurisdiction to entertain the appeal citing the applicant’s failure to specify which limb of Article 163(4) that he has invoked this Court’s jurisdiction hence failing the threshold for jurisdiction test and rely on our finding in National Rainbow Coalition Kenya (NARC Kenya) v. Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Party) (Petition 1 of 2021) [2022] KESC 6 (KLR) (Civ) (17 February 2022) (Judgment), Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR and Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR on the need to invoke this Court’s proper jurisdiction and thus terming the applicant’s petition as incompetent and fatally defective; that the decision by the Political Parties Dispute Tribunal was not in issue before the High Court and Court of Appeal and submit that this Court again lacks jurisdiction under Article 163(4) and; that the appeal is not founded on any grounds of appeal as the Court of Appeal had failed to include reasons for its decision rendering the petition defective and incurable under Article 159 of the Constitution; and
6.
Further Noting the written submissions by the applicant in response to the 1st and 2nd respondents’ preliminary objection contending that the 1st and 2nd respondents were indeed served with a Notice of Appeal but invites the Court to consider that since the appeal involves an election matter, the applicant was constrained by time hence inviting the Court to be guided by the principles under Article 159 of the Constitution as well as pointing out that the appeal raises matters of public importance; and
7.
Taking into account the nature of the dispute and the urgency surrounding the determination of election related disputes and the impending elections to be held on 9th August, 2022, the applicant having sought to contest as a member of a County Assembly, and further taking into account that the judgment by the Court of Appeal sought to be appealed against is a brief judgment made without any reasons, the decision having been rendered pursuant to Rule 34(7) of the Court of Appeal Rules, 2022 and that the petition filed herein is not the subject of our determination under the application before us at this juncture, WE NOW OPINE as follows:
i.
Before addressing the substantive prayers in the nature of conservatory relief, a challenge has been made by all the respondents to the Court’s jurisdiction to determine the application and the petition. The present application is founded on Article 163(4) of the Constitution. The jurisdiction under Article 163(4) is two-fold; the appeal must either be of right under Article 163(4((a) or filed following certification as one raising matters of general public importance under Article 163(4)(b).
ii.
As already settled by this Court in Suleiman Mwamloe Warrakah & 2 other v Mwamloe Tchappu Mbwana & 4 Others, Petition No. 12 of 2018 [2018] eKLR and Daniel Kimani v Francis Mwangi Kimani & Another, SC Application No. 3 of 2014 [2015] eKLR, in seeking to invoke a court’s jurisdiction, a litigant must invoke the relevant constitutional or statutory provisions. We have in that regard often stated that, it is not for this Court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party. An appellant should therefore in an appeal, specify such jurisdiction with clarity to enable both the Court and the parties opposing the appeal to understand and know what type of appeal is before them. As we stated in Cordisons International (K) Limited v Chairman National Land Commission & 43 others, SC Petition No. 14 of 2019; [2020] eKLR without such specificity, such an appeal is one for striking out.
iii.
Furthermore, and in addition to the above, what is on record is a brief judgment without reasons from the Court of Appeal and as we recently held in Jimi Richard Wanjigi v Wafula Chebukati & 2 others, SC Application No.6 of 2022, an appeal must of necessity, be against the outcome of a case based on the reasons for such outcome. In this instant case just as was in Jimi Wanjigi, the reasons for the Court of Appeal judgment are still to be availed to this court. As we stated therein, which finding we do uphold, there is no basis upon which a petition, such as the present one, can be jurisprudentially determined in the absence of reasons for an impugned judgment thus rendering any hearing of an applicant’s appeal, in the absence of the reasons for the Court of Appeal judgment, untenable.
iv.
From the foregoing, we are unable to consider or grant the conservatory relief sought pending the determination of the appeal. | 8.
Having therefore considered the Notice of Motion, Preliminary Objections plus responses thereto, we must Dismissthe Notice of Motion dated 18th July, 2022 and filed on 20th July, 2022.
9.
We shall make no order as to costs.
10.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/36/eng@2022-07-25 |
Petition 11(E008) of 2022 | Sonko v Clerk, Nairobi City County Assembly & 11 others (Petition 11(E008) of 2022) [2022] KESC 27 (KLR) (18 July 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 18 July 2022 | 2,022 | Nairobi | Civil | Sonko v Clerk, Nairobi City County Assembly & 11 others | [2022] KESC 27 (KLR) | null | [1]
Upon this appeal, which was listed for hearing on 14th July, 2022, being called out, Mr. Nyamu who appeared together with Dr. Khaminwa for the appellant indicated that he had a two-pronged application to make.
[2]
Firstly, Mr. Nyamu stated that owing to the manner in which the Court’s directions dated 11th and 12th July, 2022 were issued, it was difficult and nearly impossible for the appellant’s advocates to file comprehensive written submissions and adequately prepare for the hearing. More so, taking into account that at the time the appellant was directed to file his submissions there were no responses from the respondents. In addition, thereafter some of the respondents filed and served their responses as late as the morning of the hearing date. Counsel felt that the foregoing state of affairs was prejudicial to the appellant and so he applied for an adjournment.
[3]
Secondly, Mr. Nyamu submitted that the President of the Court had previously made certain remarks which indicated that she had taken a position with regard to the appellant’s matter which is before this Court. Consequently, the appellant was apprehensive of her impartiality as pertaining to the appeal and sought her recusal from presiding over the matter.
[4]
While opposing the application, Mr. Kokebe who appeared for the 1st and 2nd respondents submitted that some of the issues in the appeal had a bearing on the election cycle hence an adjournment would have a collateral effect on the forthcoming general elections. Further, as pertaining to recusal, he urged that the appellant ought to have made a formal application. Likewise, Mr. Ashioya for the 3rd respondent as well as Ms. Thanji for the 4th, 5th and 6th respondents reiterated the same position. In any event, Ms. Chemutai who held brief for Mr. Kiarie for the 11th respondent, submitted that recusal of the President of the Court would affect the quorum of the Court rendering it incapable of determining the appeal in the event that there was a tie.
[5]
Expounding further, Mr. Nyamodi for the 7th respondent argued that though the appeal was initially filed as an ordinary appeal it had a bearing on the forthcoming general elections. He submitted that the appellant had pleaded in an election matter filed in the High Court at Mombasa that he was eligible to vie for the seat of the Governor of Mombasa County since this appeal was still pending before the Court. As such, Mr. Nyamodi submitted that the determination of the appeal was of utmost urgency. He went on to express that the President of the Court also being the Chief Justice was entitled to comment on constitutional provisions; and in any case, the appellant had not demonstrated or disclosed what was uttered and how the alleged utterance was prejudicial to him or exhibited bias on the part of the President of the Court. As far as he was concerned, the appellant’s application was merely a gimmick by the appellant to stall the determination of the appeal. Counsel was of the view that the adjournment was sought in furtherance of a scheme borne by the fact that earlier on Mr. Nyamu, vide a letter dated 13th July, 2022 addressed to the Registrar of the Court, had indicated that he would be making an application to cease acting for the appellant.
[6]
On his part, Mr. Mukele for the 8th respondent, added that the determination of this appeal would enable the 8th respondent to not only deal with the appellant’s eligibility to vie for a Gubernatorial post but also resolve the dilemma or confusion that had arisen on account of a High Court decision. Furthermore, he added that the delay would also affect the printing of ballot papers for the forthcoming general elections. On the issue of recusal, he indicated he was not aware of the utterance alluded to by the appellant and urged the Court to dismiss the application for adjournment while noting the appeal was filed in April,2022 and the appellant should be able to get on with his case. | [7]
Upon considering the application and the opposition thereto, the Court dismissed the appellant’s application reserving to issue the reasons herein soon thereafter.
[8]
Beginning with the issue of adjournment, the Court does acknowledge that the directions dated 11th and 12th July, 2022 gave a short notice to the parties but that notwithstanding, the parties had albeit late complied and filed their respective submissions. Moreover, the Court took note of the fact that this appeal involves the same matter of impeachment of the appellant that arose from the Nairobi City County Assembly and the Senate. Dissatisfied with the outcome thereto, the appellant unsuccessfully applied to quash the decision before the High Court, the Court of Appeal and eventually, is before this Court. In the Courts view, the issues in dispute in all those proceedings having been crystalized, there is nothing new which would justify the appellant’s advocates’ contention that they needed more time, over and above what they have had from the time the appeal was filed, to prepare for the appeal.
[9]
Besides, it is not lost to the Court that the appellant did himself, play a role in the delay in the finalization of this matter by lodging the hard copy of his appeal on 20th May,2022, that is, over one month after filing the electronic copy thereof on 4th April, 2022 in the Court’s online platform. However, in the interest of justice and despite this delay by the appellant, which the Court deprecated, and due to the nature of the appeal, the Court by a ruling delivered on 11th July, 2022 opted to sustain rather than striking it out.
[10]
Furthermore, all the parties including counsel for the appellant agreed that the appeal was urgent. The Court has a duty to hear matters expeditiously and while noting the public interest implication of this appeal to the forthcoming elections as submitted by counsel for the respondents, we find no merit in the application for adjournment. From the time counsel for the appellant filed the appeal, he ought to have prepared to prosecute it once called upon by the Court.
[11]
On the issue of recusal, apart from the fact that no particulars of the alleged statements made by the President of the Court were provided, the Court has been consistent and resolute that an application for recusal of any Judge of the Court cannot be made from the bar. Rather, such an application must be through a formal written application lodged in the Court. It is common ground that the Court is composed of seven (7) Judges and the probability that the President of the Court would have presided over the appeal was certainly within the appellant’s knowledge. Therefore, the appellant should have filed a formal application for her recusal.
[12]
In the circumstances, there was nothing to demonstrate any prejudice or bias the appellant would suffer. All in all, the application for recusal did not meet the parameters for recusal of a Judge as delineated in this Court’s decision in Gladys Boss Shollei vs. Judicial Service Commission & Another, SC Petition 34 of 2014; [2018] eKLR and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/27/eng@2022-07-18 |
Application 6 (E012) of 2022 | Wanjigi v Chebukati & 2 others (Application 6 (E012) of 2022) [2022] KESC 40 (KLR) (18 July 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 18 July 2022 | 2,022 | Nairobi | Civil | Wanjigi v Chebukati & 2 others | [2022] KESC 40 (KLR) | null | [1]
UPON perusing the Notice of Motion application by the applicant (Petitioner) dated 13th July 2022 and filed on 14th July 2022, pursuant to Article 163(4) of the Constitution, sections, 3, 21, 24 of the Supreme Court Act, and all enabling provisions of the law for the orders that:
i)
This Application be and is hereby certified urgent and heard ex parte in the first instance and appropriate directions issued;
ii)
The Honourable Court do on a matter of urgency set down this Application and the main Petition on a priority and emergency basis;
iii)
Due to the urgency and strict timelines in the electoral process, this Honourable Court do direct immediate hearing of the petition lodged herein by the petitioner;
iv)
The Honourable Court do issue necessary directions to preserve the substratum of the petition including where necessary to stop the printing of ballot papers for the presidential elections pending the hearing and determination of the petition;
v)
Any other or further orders of the court geared towards protecting the dignity and authority of the court. | [2]
UPON perusing the grounds on the face of the application that the Court of Appeal in its impugned judgment in Civil Appeal No.E404 of 2022 dismissing the Applicant’s appeal challenging the decision of the High Court in JR No. E083 of 2022 has inadvertently created a legal crisis by allowing subordinate courts and public administrators to ignore binding decisions of Superior Courts in interpreting the law by conjuring up interpretations different from those of the Superior Courts; that the superior court erred in holding that there can be no merit review in judicial proceedings under Article 47 of the Constitution which position has been affirmed by the Court of Appeal; in creating uncertainty owing to the numerous judgments of the same court affirming merit review in judicial review proceedings; that the matter relates to the nomination and registration of candidates for the presidential elections scheduled for 9th August 2022 and it is imperative that the Court hears the same expeditiously otherwise it will be rendered nugatory; that the expeditious hearing and determination of the main petition will enable the applicant’s right to access to justice to be actualized in a meaningful way; and that the matter in dispute relates to and affects the exercise of the free franchise of millions of Kenyans who have a right to choose a leader of their choice in a democratic free and fair election;
[3]
FURTHER, that the appeal involves and raises substantial points of law of general public importance to wit:- the judgment by the Court of Appeal created bad law and precedent, created conflicting and contradictory position in law from that set out in section 22(2) of the Elections Act which affirms that a degree holder is any person who has completed his university education; created confusion in direct conflict with settled legal position allowing merit review in judicial review proceedings; created wrong precedent in allowing public administrators to breach Article 38 of the Constitution by resorting to unreasonable and irrational parameters to refuse to register an otherwise qualified contestant for elections; and created an erroneous precedent contrary to Article 10 of the Constitution in affirming the violation of the principles of natural justice captured in the doctrine of nemo judex in causa sua.
[4]
UPON considering the affidavit in support of the application by the applicant, Jimi Richard Wanjigi sworn on 13th July 2022 and the submissions dated 13th July 2022 and filed on 14th July 2022, we note that the crux of the application is for the Court to issue necessary directions to preserve the substratum of the petition including, where necessary to stop the printing of the ballot papers by the 2nd respondent for the presidential elections pending the hearing and determination of the petition. The applicant relies on this court’s decisions in Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others [2013] eKLR and Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] eKLR amongst other decisions to assert that the jurisprudence on judicial review is that it permits the court to undertake some merit review in certain circumstances. The applicant submits that he satisfies the twin principles of arguability and nugatory aspect to entitle him to the orders sought. He also submits that the petition of appeal has been filed contemporaneously with the present application and is due for hearing necessitating the prayer to preserve the substratum of the appeal.
[5]
WE HAVE ALSO CONSIDERED the 1st and 2nd respondents’ replying affidavit sworn by Chrispine Owiye, the 2nd respondent’s Director, Legal and Public Affairs sworn on 15th July 2022 on behalf of and with the authority of the 1st and 2nd respondents together with their written submissions dated 15th July 2022. The 1st and 2nd respondents are opposed to the application on two principal grounds - that this Honourable Court lacks jurisdiction to determine the appeal and petition filed herewith and that public interest mitigates against grant of the orders sought.
[6]
On jurisdiction, the 1st and 2nd respondents submit that the applicant does not indicate the specific jurisdiction he seeks to invoke contrary to the holding in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others SC Application No. 2 of 2011 [2012] eKLR rendering the appeal incompetent. In addition, that the issue before the superior courts below was the interpretation of section 22 (2) of the Election Act and the binding nature of the decisions cited in interpreting the said decisions. That the mere fact of citing Articles 38 and 10 of the Constitution without demonstrating its linkage to the Court of Appeal decision does not suffice as the applicant is merely arguing the rejection of his application for registration as a candidate for the presidential election.
[7]
On public interest, the 1st and 2nd respondents submit that the test for grant of conservatory orders is settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR that the applicant needs to satisfy the public interest test. They submit that public interest militates against the grant of the conservatory orders for the reasons that the August elections date is set by the Constitution and cannot be moved or changed, the election has a strict constitutional timeline and granting the orders sought has the possibility of throwing the constitutional order in limbo and that ballot papers have already been printed and for good use of public resources as prescribed under Article 201 of the Constitution, the Court should decline the invitation to grant orders sought. The 1st and 2nd respondents also submit that in any event the applicant does not meet the essence of interlocutory application as held in Board of Governors, Moi High School Kabarak & Another v Malcolm Bell SC Petition 6 & 7 of 2013 [2013] eKLR.
[8]
WE HAVE FURTHER CONSIDERED the 3rd respondent’s Notice of Preliminary Objection dated 15th July 2022 both to the application and to the petition of appeal. The grounds of objection is that the petitioner has failed to invoke the jurisdiction of the Court under Article 163(4) of the constitution; the petition does not raise any issue of constitutional interpretation or application as it is founded on mere allegations of violation of human rights on the presumption that these allegations automatically bring the appeal within the ambit of 163(4)(a) of the Constitution; that the petition has not been certified under Article 163(4)(b) of the Constitution as raising matters of general public importance as required and that having failed to properly invoke this Court’s jurisdiction, the application and petition is incompetent and fatally defective and an abuse of the court process.
[9]
TAKING INTO ACCOUNT the nature of the dispute and the urgency surrounding the determination of election-related disputes and the impending elections to be held on 9th August 2022, the applicant having sought to contest as a presidential candidate, and further taking into account that the judgment by the Court of Appeal sought to be appealed against is a brief judgment made without any reasons, the reasons for judgment having been reserved for 29th July 2022 pursuant to rule 34(7) of the Court of Appeal Rules 2022, and that the petition filed herein is not subject of our determination under the application before us at this juncture, we now opine as follows:
a)
Before addressing the substantive prayers in the nature of conservatory relief, a challenge has been made by all the respondents as to the Court’s jurisdiction to determine the application and petition which merits to be dealt with in limine. It is now settled that our jurisdiction is narrow and this Court is not just another appellate layer of courts to determine all appeals from the Court of Appeal (see Daniel Kimani Njihia v. Francis Mwangi Kimani & Another SC Civil Application 3 of 2014 [2015] eKLR). Our jurisdiction has to be specifically invoked and once that is done, the Court must be satisfied that the threshold for the jurisdiction so invoked is met;
b)
The present application is founded on Article 163(4) of the Constitution. This constitutional provision is two pronged. The appeal must either come as of right under Article 163(4)(a) or following certification as raising matters involving general public importance under Article 163(4)(b) of the Constitution. These jurisdictions are separate and cannot be jointly invoked in the same proceedings. In Hassan Nyanje Charo v Khatib Mwashetani & 3 others, SC Application No.15 of 2014 [2014] eKLR, this Court disallowed counsel’s argument that an intended appeal comprised a blend of “appeal-as-of-right” matters on the one hand, and “appeal-by-certification” matters on the other hand.
c)
We note that in paragraph 6 of the supporting affidavit, Jimi Richard Wanjigi depones as follows:
“
6. THAT my Counsel immediately filed a Notice of Appeal and the same was served upon the Respondents giving them Notice of the intended appeal to the Supreme Court on questions of application and interpretation of the Constitution under Article 163(4) of the Constitution.”
It is not immediately clear which provisions of the Constitution are subject of the appeal. Further, it is evident that the application is also stated as involving and raising substantial points of law of general public importance upon which the applicant raises six grounds (a) to (f) on the face of the application. This is reiterated in paragraph 25 of the supporting affidavit.
d)
As we recently held in Hon. Mike Mbuvi Sonko vs The Clerk County Assembly of Nairobi City County & 11 others SC Petition No. 11 (E008) of 2022, even when a party invokes the jurisdiction as of right, it is upon the party to identify and specify how the appeal concerns interpretation and application of the Constitution.
It can never be the role of the Court to wander around in the maze of pleadings and averments in order to assume jurisdiction by way of elimination. That is what the Court has consistently cautioned in decisions made by it. In Erad Suppliers & General Contractors Ltd v. National Cereals & Produce Board, SC Petition 5 of 2012; [2012] eKLR, we firmly established that, for an appeal to be admissible under Article 163(4)(a), a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to the Court of Appeal and ending in this Court. In the same vein, for our jurisdiction under Article 163(4)(b) to be invoked, the appeal has to be preceded by certification on the basis of the principles set out in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone SC Application 4 of 2012 [2013] eKLR, which is not the case in the present matter.
[10]
FROM THE FOREGOING, the applicants have failed to exhibit that they meet the threshold for invoking our jurisdiction. With the above finding, we are unable to consider or grant the conservatory relief sought pending the determination of the status of the petition of appeal whose jurisdiction is also under challenge by way of preliminary objection. The urgency of the matter not being contested, we can only fast-track the determination thereof.
[11]
We have already stated that what is on record is a brief judgment without reasons from the Court of Appeal. An appeal must of necessity be against the outcome of a case based on the reasons for such outcome. In the instant case, the reasons for the judgment are awaited. There can be no basis, we think, upon which the petition as currently drawn can be jurisprudentially determined in the absence of reasons for judgment. This then renders any hearing of the petition before the 29th July 2022 and/or in the absence of the reasons for the judgment untenable.
[12]
ACCORDINGLY, we make the following orders:
a) The Notice of Motion Application dated 13th July 2022 and filed on 14th July 2022 be and is hereby disallowed.
b) We make no orders as to costs. Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/40/eng@2022-07-18 |
Petition 11 (E008) of 2022 | Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 26 (KLR) (15 July 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 15 July 2022 | 2,022 | Nairobi | Civil | Sonko v Clerk, County Assembly of Nairobi City & 11 others | [2022] KESC 26 (KLR) | null | Brief facts
The appellant was removed from the Office of Governor, Nairobi City County, by way of an impeachment motion initiated by the 2nd respondent (the County Assembly). The decision of the County Assembly was confirmed by the 6th respondent (the Senate). Attempts by the appellant and the 12th respondent to overturn the decision through a challenge both in the High Court and the Court of Appeal were unsuccessful, precipitating the instant appeal.
The judgment of the Court of Appeal was impugned on among other grounds; whether due process was followed by the County Assembly in the removal of the appellant from the office of Governor; whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate; whether it was mandatory to verify the impeachment motion by affidavits or other statements on oath by members of the County Assembly who allegedly supported the motion and whether public participation was undertaken.
The 3rd respondent filed a notice of preliminary objection challenging the jurisdiction of the court to entertain the appeal for the reasons that the court was improperly moved by invocation of the wrong constitutional and/or statutory provisions; that the issues in the appeal did not concern any question involving interpretation or application of the Constitution of Kenya, 2010 (Constitution). Equally, the 7th respondent in its grounds of objection raised the issue of jurisdiction and faulted the appellant for failing to specify the provisions under which he invoked the court’s jurisdiction. | Held
Not every issue that was before the superior courts and which had been raised in the instant appeal was open for the court’s determination in exercise of its appellate jurisdiction. Matters of fact that touched on evidence without any constitutional underpinning were not open for the court’s review on appeal.
A constitutional mandate, which embodied the remit of impeachment, vested in the legislative branches of Government, in the instant case in the County Assembly and the Senate. It was in those two constitutional organs’ exclusive spheres of jurisdiction, that the impeachment of a county governor was reposed. In discharging that function, they had to live by the edict of the Constitution. Where it was alleged that any of them had failed to act in accordance with the Constitution, then the courts were empowered by article 165 (3)(d)(ii) of the Constitution to determine that allegation. Similarly, the court could interfere where it had been demonstrated that there had been a failure to abide by the Standing Orders of either the County Assembly or the Senate, because those Standing Orders had a constitutional underpinning in article 124 of the Constitution.
The impeachment architecture in the Constitution, the law and the Standing Orders left no doubt that removal of a governor related to accountability, political governance and personal responsibility and not necessarily about criminal responsibility. In so far as the process of removal of a governor from office was concerned, the court’s role was confined to deciding whether the governor’s constitutional rights and fundamental freedoms had been breached in the process and whether the procedures for removal from office had been followed, without the court constituting itself into any of the two constitutional organs in whose hands the power to remove was vested.
Without jurisdiction a court had no power and had to down tools in respect of the matter in question. Appeals from the Court of Appeal lay to the instant court pursuant to articles 163(4)(a)or 163(4)(b) of the Constitution and that an appeal would not lie to the instant court, unless brought within the compass of either of the two jurisdictional limbs.
The appellant in his petition of appeal had expressly moved the court under two rules of the Court’s Rules, namely the repealed rules, 9 and 33 of 2012. Properly cited, those two rules related to the contents of a petition of appeal and the time frame for lodging an appeal as well as the documents that formed the record of appeal. They clearly did not give jurisdiction to the court.
In view of the nature of its jurisdiction as far as appeals from the Court of Appeal were concerned, a party moving the court had to bear in mind the limits of its jurisdiction and had to decide either to seek a certification as a matter of general public importance (GPI) under article 163(4)(b) of the Constitution or came as a matter of right under article 163(4)(a) thereof. Even when a party invoked the latter, it was upon the party to identify and specify how the appeal concerned interpretation and application of the Constitution. It could never be the role of the court to wander around in the maze of pleadings and averments in order to assume jurisdiction by way of elimination.
It was incumbent upon the appellant to demonstrate in limine that the grievance he had presented to the court concerned the application or interpretation of the Constitution which the Court of Appeal used to dispose of the matter in question before that court. The appellant had failed to do that. The preliminary objection met the threshold in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors ltd (1969) EA 696 and the court sustained it.
The impeachment proceedings before the County Assembly and the Senate were properly conducted in accordance with article 181 of the Constitution, section 33 of the County Governments Act and Standing Orders of the County Assembly and the Senate.
The appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate considering the timelines stipulated in the law within which the Assembly and the Senate had to conclude their investigations and the prevailing Covid-19 global pandemic restrictions that were in place at the time of the impeachment proceedings. The appellant had adequate time and facility, because he was able to sufficiently respond to the charges brought against him.
Standing order 67(1) of the Nairobi City County Assembly Standing Orders, required that the motion for impeachment had to be signed by the member moving the motion who affirmed that the particulars of allegations contained in the motion were true. In the same vein, each of the members constituting at least a third of all the members in support had to verify that the allegations therein were true of their own knowledge and belief on the basis of their reading and appreciation of information pertinent thereto. Each of them was required to signify that by signing a verification form provided by the clerk for that purpose.
No material had been presented in the appeal to suggest that the Court of Appeal erred in its analysis and conclusion that the mover and all members in support signed the form and included the numbers of their identification cards against their names. That was the form of verification envisaged in the context of an impeachment motion and not an affidavit or any form of disposition.
The two superior courts below in unanimity found uncontroverted evidence that the intended tabling before the County Assembly of a motion for the impeachment of the appellant was not only advertised in a local daily newspaper with wide circulation, in response to which people submitted memoranda, but also a survey was conducted in the county in the form of questionnaires. The proceedings were in public.
Impeachment proceedings, though quasi-judicial were not in the nature of criminal proceedings. A litigant was not required to establish criminal culpability in order to succeed. All that was required was that the allegations be substantiated. But as a constitutional remedy, impeachment served as an important check on the exercise of Executive power regarding violations of law and abuses of power.
There were four counts of impeachable charges against the appellant. The County Assembly, the Senate and the two superior courts below were convinced that the charges were proved to the standard required in such circumstances. The proof of even a single charge would be sufficient. Nothing had been placed before us to warrant the instant court’s departure from the conclusions by the two superior courts.
Under article 1 of the Constitution, all sovereign power belonged to the people of Kenya. That power could only be exercised in accordance with the Constitution. Further, the people could exercise that power either directly or through their democratically elected representatives. Specifically, sovereign power of the people was delegated to State organs such as Parliament and the legislative assemblies in the county governments. In the instant situation, the people exercised their power through the latter to uphold and defend Chapter Six of the Constitution.
The impeachment of the appellant was in compliance with the Constitution and the law. Chapter Six of the Constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a State officer was a public trust to be exercised in a manner that demonstrated respect for the people; brought honour to the nation and dignity to the office and promoted public confidence in the integrity of the office. It vested in the State officer the responsibility to serve the people, rather than the power to rule them.
Appeal dismissed.
Orders
Each party to bear its own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/26/eng@2022-07-15 |
Petition (Application) 11 (E008) of 2022 | Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition (Application) 11 (E008) of 2022) [2022] KESC 28 (KLR) (11 July 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 11 July 2022 | 2,022 | Nairobi | Civil | Sonko v Clerk, County Assembly of Nairobi City & 11 others | [2022] KESC 28 (KLR) | null | Brief facts
The 1st respondent filed the instant application in which it sought for the notice of appeal to be struck out for failure to file an appeal within 30 days of the delivery of the Judgment.
The application was on the grounds that the appellant lodged a soft copy notice of appeal in the Judiciary’s online portal in time but did not file or serve the hard copies in time. Subsequently the 1st respondent sought for the notice of appeal and petition of appeal filed by the appellant to be struck out. | Held
The appellant filed a notice of appeal at the Court of Appeal 4 days after the Court of Appeal Judgment. The appellant filed his petition of appeal on the Supreme Court's online platform on the last day for doing so. Rule 12 of the Supreme Court Rules provided that the printed copy of any pleading, while matching the electronic copy, was to be filed simultaneously with the latter. The rule remained the operative rule in the Supreme Court.
Though the appellant sat on the printed copy for more than one month, once the appellant was directed to file the same, he did so within 2 days and thereafter served the respondents. While the conduct of the appellant in not filing the printed copy timeously had not been explained, the circumstances as outlined above would not lead to any adverse orders against him and although his conduct was nonetheless to be deprecated, the court would focus on the substantive appeal.
Motion dismissed and preliminary objection overruled.
Orders
No orders as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/28/eng@2022-07-11 |
Petition 3 (E004) of 2022 | Dhanjal Investments Limited v Shabaha Investments Limited (Petition 3 (E004) of 2022) [2022] KESC 41 (KLR) (Civ) (8 July 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 July 2022 | 2,022 | Nairobi | Civil | Dhanjal Investments Limited v Shabaha Investments Limited | [2022] KESC 41 (KLR) | null | 1.
UPON perusing the Respondent’s Notice of Preliminary Objection dated 23rd March, 2022 and lodged on 24th March, 2022 challenging this Court’s jurisdiction to entertain the petition on the grounds that:
i.
The appeal is in violation of the Supreme Court’s mandate;
ii.
The appeal does not raise any issues relating to the interpretation or application of the Constitution;
iii.
That the appeal does not involve any matter of general public importance; and
iv.
The appeal has been brought without certification as required by law;
and
2.
UPON considering the respondent’s submissions dated 5th May, 2022 and filed on 9th May, 2022 in furtherance of these grounds, to the effect that the appeal herein does not involve constitutional interpretation or application; that the pleadings filed in both superior courts below only show that the central issue for determination was whether or not interest on balance of purchase price of the suit property was payable to the respondent; that at no point in the proceedings was any matter of a constitutional nature raised; and that the issue of fair hearing raised by the appellant in its submissions at the Court of Appeal was an afterthought well calculated to give this Court jurisdiction; and
3.
UPON considering the appellant’s response to the preliminary objection dated 5th April, 2022 and submissions dated 16th May, 2022 to the effect that the matters being raised in the appeal relate to the right to fair trial under Articles 25(c) and 50(1) of the Constitution and the question of impediment to access to justice contrary to Article 48 of the Constitution; that in ground no 1 of its memorandum of appeal before the Court of Appeal, the appellant raised the issue of fair trial which the Court of Appeal proceeded to make a determination on; that the Court of Appeal also dealt with the question whether the fact that the loss of the original court file was prejudicial to the appellant’s right to access to justice; and that this appeal has been brought as of right pursuant to Article 163(4)(a) and therefore does not require certification; and | In view of the foregoing, We Now Pronounce As Follows:
4.
ACKNOWLEDGING the fact that jurisdiction is everything and that without it a court has no power to make one more step, but to dismiss such a case. Further, cognizant of the decision of this Court in Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR, where it was emphasized that a court’s jurisdiction flows from either the Constitution or legislation or both. We must, in limine, therefore be satisfied that the appellant has properly invoked the jurisdiction of this Court; and
5.
GUIDED by the principles set out by this Court in the case of Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & another, SC Petition 3 of 2012; [2012] eKLR, that to bring an appeal under the ambit of Article 163(4)(a) of the Constitution, an appellant must be challenging the interpretation or application of the Constitution upon which the Court of Appeal disposed of the matter in that forum; that as a bare minimum, an appellant should demonstrate that the Court of Appeal’s reasoning and conclusions which led to the determination of the issue before it related to application or interpretation of the Constitution. See also Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR; and
6.
UPON examination of the record, we note that the appeal is brought, “under Article 163(4)(a) of the Constitution of Kenya 2010, Sections 15(2), 21(1)(3) of the Supreme Court Act and Rules 12, 38 and 39 of the Supreme Court Rules, 2020”. It is, in that sense anchored on the interpretation and application of Articles 25(c), Article 50(1) and Article 47 of the Constitution; and
7.
NOTING that the cause of action before the High Court arose from the performance of a sale agreement between the parties in which the respondent’s claim against the appellant was for;
“
a.
a declaration that the Agreement for sale between the plaintiff and the defendant in respect of the suit property is valid.
b.
payment of Kshs.38, 700,000/= being the balance of the purchase price owed to the plaintiff by the defendant.
c.
interest on (b) at 30% per annum as agreed payable from the date the Defendant took possession of the suit property being the 27th January 1996 until payment in full.
d.
General damages.
e
Mesne profit from the 27th January 1996 being damage for breach of contract at Kshs. 407,891537.56 as at 30th April 2008, until payment in full of the balance of the purchase price inclusive of all interest due and payable herein.
f.
Costs of this suit.
g.
interest …… at court rates”; and
8.
NOTING FURTHER that the parties compromised the suit by recording a consent whereby the appellant agreed to pay the aforesaid balance, leaving only a single issue for determination being the interest payable to the respondent. This fact notwithstanding, before the Court of Appeal, the appellant claimed that due to a delay of nearly 24 years in the conclusion of both the main suit and the appeal, it had been denied the right to a fair trial. It further alleged that, although this issue was urged in the High Court, no determination was made of it; and
9.
NOTING ALSO, that the Court of Appeal in its determination of this question observed that the appellant blamed both the courts and the respondent for the delay but failed to provide evidence of how the respondent, who was only a party to the appeal breached its right to fair trial; and that the appellant did not raise the constitutionality or otherwise of the trial in his counterclaim or as a preliminary issue for determination. For the reason that the claim was raised for the first time in the Court of Appeal, and only in the submissions, the Court of Appeal expressed the view that there was no basis for it to make any findings on the alleged violations of the right to fair trial. With that, the Court of Appeal proceeded to determine four substantive and pleaded issues; and
10.
UPON evaluating the present preliminary objection and the grounds raised in opposition, and after perusing the record as a whole, it is evident to us that the solitary question, following the recording of a consent on 7th September 2012 in the High Court, was one of the interest payable on the Kshs 38,700,000.00 and the costs which were to be mutually agreed upon by the parties, or assessed by the High Court if the parties failed to agree. There was no question of the interpretation and application of the Constitution whatsoever. Yet this Court, in Erad Suppliers & General Contractors Ltd v. National Cereals & Produce Board, SC Petition 5 of 2012; [2012] eKLR, firmly established that, for an appeal to be admissible under Article 163(4)(a), a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to the Court of Appeal and ending in this Court; and
11.
SATISFIED that the question of violation of the appellant’s right to a fair hearing has never been the issue in controversy but was strategically introduced in the Court of Appeal so as to prepare a basis to approach this Court. It was not one of the four questions framed by the Court of Appeal for its determination, namely;
“
…. whether there was any breach of the sale agreement by the Appellant or Respondent, and if so the effect thereof, including on the validity of the sale agreement. Secondly, whether the doctrine of lis pendens applied to the sale agreement, and if so, the effect thereof. Thirdly, whether the Respondent was entitled to payment of interest and if so at what rate and for what period. Lastly, whether the Appellant was entitled to payment of damages, and if so, the quantum.”
The question of violation of the appellant’s constitutional rights not having been argued and determined by the High Court, was not central to the determination by the Court of Appeal. In any case, if the delay amounted to a violation of the appellant’s right to a fair hearing, the respondent was equally affected as it was also denied the fruits of the agreement for the said period of 24 years.
12.
WE NOW reiterate what we said in Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [supra], that the Court’s jurisdiction cannot be expanded through judicial craft or innovation. From the totality of the material before us, it cannot be said that the reasoning which led to the determination of the issues before the Court of Appeal and by extension the High Court, involved the interpretation or application of the Constitution. We conclude here as we did in Lawrence Nduttu [supra], that where the case to be appealed from has had nothing or little to do with the interpretation or application of the Constitution, as is the case in this appeal, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a).
13.
In the end we are satisfied that this appeal does not meet the jurisdictional threshold of Article 163(4)(a), with the result that we decline the invitation to assume jurisdiction to entertain it.
14.
ACCORDINGLY, we make the following Orders:
i.
The Preliminary Objection dated 23rd March, 2022 is hereby sustained.
ii.
The Petition of Appeal dated 7th March, 2022 is hereby struck out.
iii.
As costs follow the event and are in the discretion of the Court we order that the Appellant shall bear the costs of the appeal
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/41/eng@2022-07-08 |
Petition 3 of 2021 | Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR) (8 July 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, W Ouko, I Lenaola | 8 July 2022 | 2,022 | Nairobi | Civil | Karani v Judicial Service Commission | [2022] KESC 37 (KLR) | null | Brief facts
The appellant was a principal magistrate at the time of his dismissal. He delivered a judgment in a matter a day earlier than scheduled and in the presence of the defendant’s counsel who emerged victorious. Counsel for the plaintiff in that case filed a formal complaint against the appellant through a letter addressed to the resident judge at Mombasa and copied to inter alia the Office of the Ombudsman. The Chief Justice instituted disciplinary proceedings against the appellant by interdicting him with immediate effect and forwarded two framed charges: delivery of a decision a day earlier than scheduled without notifying one of the parties and absenteeism.
The Chief Justice also annexed a brief statement of the allegations to the appellant. The appellant admitted to delivering the judgment a day earlier and termed it an honest mistake. On the charge of absenteeism, he gave a detailed account of his time at the station both on duty and off duty. After an oral hearing, the respondent, Judicial Service Commission (JSC) informed the appellant that it had resolved to dismiss him with immediate effect on grounds of misconduct which had been proved on the first charge leveled against him.
Aggrieved, the appellant challenged the decision at the Employment and Labour Relations Court. The appellant claimed that he was condemned unheard and that he was not accorded a chance to cross-examine persons who gave adverse evidence against him. The appellant asserted that the JSC did not have jurisdiction to exercise judicial or administrative authority over judicial officers’ sittings in court while rendering judgments. The appellant contended that the fifteen (15) months it took to hear his disciplinary case violated his right to have expeditious and efficient administrative action. He thus prayed for, among others, the setting aside of his interdiction and eventual dismissal and compensation in damages for violation of his rights. The Court, having found no other breach of the Constitution other than that of the appellant’s right to have an expeditious hearing infringed upon, awarded the appellant damages for that breach to the tune of Kenya Shillings one million (Kshs. 1,000,000).
Aggrieved by the decision of the Employment and Labour Relations Court, the JSC filed an appeal at the Court of Appeal challenging part of the judgment that awarded the appellant damages and costs. The appellant cross-appealed and prayed for reinstatement and payment of all back salaries, enhancement of the damages and costs of the cross-appeal. The Court of Appeal held that the appellant did not prove his case and was therefore not entitled to the compensation awarded to him. The court dismissed the cross-appeal. Aggrieved, the appellant filed the instant appeal as of right in a matter involving the interpretation or application of the Constitution of Kenya, 2010 (Constitution). The JSC filed a preliminary objection contending that the appeal did not raise any matters of constitutional interpretation or application under article 163(4)(a) of the Constitution and thus sought for the same to be struck out. | Held
Article 163(4)(a) of the Constitution had to be seen as laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. The only other instance when an appeal could lie to the Supreme Court was one contemplated under article 163(4)(b).
It was not the mere allegation in pleadings by a party that clothed an appeal with the attributes of constitutional interpretation or application. The appeal had to 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 had to 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 had to 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 could not support a further appeal to the Supreme Court under article 163(4)(a) of the Constitution.
Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate was that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application. The issues before the Employment and Labour Relations Court as well as the Court of Appeal involved the interpretation and application of the Constitution. The instant court had jurisdiction in respect of the appeal.
The right to fair hearing was enshrined under article 50(1) of the Constitution which stated that every person had the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 25 of the Constitution stipulated that certain freedoms were so fundamental that they could not be limited, despite any other provision of the Constitution. The right to a fair trial was one of those fundamental, non-derogable rights under the Constitution. That right was applicable to both judicial and administrative cases.
The principles to guide the courts in considering matters concerning disciplinary proceedings before the JSC were as follows:
The JSC had to comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.
The JSC had to always give an employee reasonable time to defend himself or herself.
An employee had to be informed the basis of complaint(s) or who his or her accusers to enable the employee defend themselves.
The JSC had to furnish an employee with details of allegations against him or her.
The JSC had to always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee had to be accorded fresh notice to prepare his/her defence.
An employee had to be accorded a public hearing if he/she desired to have one. A decision to decline such a request had to be accompanied with reasons which should be given to the employee.
An employee had to be given detailed reasons for any administrative action/decision by the JSC. An employee should access and receive any relevant documents relating to his/her matter. Any decision to the contrary had to be accompanied by a written reason.
An employee had to be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice.
An employee undergoing disciplinary proceedings had to be given an opportunity to call witnesses, be heard; cross-examine witnesses, and request an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.
The court may not have applied the principles to guide the courts in considering matters concerning disciplinary proceedings before the JSC as the JSC heard and determined the appellant’s case before the instant court pronounced those guiding principles.
What was filed before the Employment and Labour Relations Court was not a judicial review application filed pursuant to section 9 of the Fair Administrative Actions Act. Rather, the appellant filed a substantive suit by an employee against his employer challenging the terms of the dismissal. Further, as a first appellate court, the role of the Court of Appeal, pursuant to rule 29 of the Court of Appeal Rules, 2010, was to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.
Article 172(1)(c) of the Constitution provided that one of the JSC’s functions was to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament. The Judicial Service Act No. 1 of 2011 was the statute that was enacted by Parliament pursuant to article 172. The appointment, discipline and removal of judicial officers and staff was governed by section 32 of the Judicial Service Act together with the Third Schedule to the Act.
The Chief Justice was not required to carry out an investigation before framing charges and interdicting the appellant. Rather, as rule 25 of the Third Schedule to the Judicial Service Act provided that the Chief Justice was to carry out an inquiry into allegations made against a judicial officer. Rule 16 of the Third Schedule which empowered the Chief Justice to interdict, made no reference to an investigation, only that the Chief Justice had to be satisfied that public interest required interdiction, provided that proceedings which could lead to their dismissal were being taken or were about to be taken.
The Chief Justice on receiving a reply to charges framed, if not convinced by the defence raised by an officer, then forwarded the charges and reply, if any, to the JSC to determine whether or not to proceed with disciplinary proceedings. If the JSC elected to proceed with disciplinary proceedings, it then appointed a committee or panel. Therefore, it was the committee or panel of the JSC that carried out the investigation into a disciplinary case of an officer. Once the committee concluded its investigation, it prepared a report containing the charge, the evidence, the defence, its proceedings and its recommendations to the JSC to consider. The JSC then elected what to do with the report and if it concluded that a punishment was warranted, it chose appropriate sanctions from those provided under rule 19 of the Third Schedule to the Judicial Service Act. That was pursuant to rule 25(9), (10), and (11) of the Third Schedule.
The principle of nemo judex in causa sua, the duty to reach a decision untainted by bias, was entrenched in the Constitution as the right to fair hearing and the right to fair administrative action, pursuant to articles 50(1) and 47(1) of the Constitution. A critical exception to the principle was where the overlap of functions was a creation of statute and as long as the constitutionality of the statute was not in issue. One of the justifications that legislatures had for allowing overlapping of functions, which in normal judicial proceedings would be kept separate, was to achieve efficiency when such a body had to undertake several activities, both in administrative and adjudicative capacities.
The appellant had not called to question the constitutionality of section 32 of the Judicial Service Act or the Third Schedule to the Act, on the JSC’s functions of disciplining and removing judicial officers. In order to avoid running afoul the nemo judex in causa sua principle, a statutory body had to comply with the requirements of impartiality and independence under article 50(1) and 47 of the Constitution. The mere overlap of roles by a statutory body carrying out quasi- judicial functions was not in itself contrary to the principle of nemo judex in causa sua. Statutory bodies had to always apply and adhere to the requirements of impartiality and independence in carrying out its quasi- judicial duties.
The JSC, through rule 25 of the Third Schedule to the Judicial Service Act, avoided a situation of being the accuser, the investigator, the judge and the appellate body, all rolled into one. Through rule 25, the JSC ensured that different actors took on the different roles: the Chief Justice framed the charges, a committee or panel of the JSC carried out the investigation, the JSC then played the role of judge, and finally an aggrieved party had a right of appeal to the judicial system, either by way of judicial review pursuant to section 9 of the Fair Administrative Act or substantive suit to the Employment and Labour Relations Court. In that way, there were inbuilt safeguards that ensured a judicial officer or staff had their right to fair administrative actions, and right to fair trial observed throughout the entire disciplinary process.
The appellant had throughout admitted to his mistake. The law relating to admissions was found in sections 17 to 24 of the Evidence Act. Admissions in criminal matters were treated very differently from civil matters. Pursuant to section 25A of the Evidence Act confessions and admissions were both inadmissible unless made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of inspector of police, and a third party of the person’s choice.
A confession was a direct acknowledgement of guilt on the part of the accused while an admission was a statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tended to prove his guilt, but which, of itself, was insufficient to found a conviction. Admissions were treated differently in civil matters, whereby pursuant to Order 13 rule 2 of the Civil Procedure Rules, 2010, judgment could be entered on the strength of an admission. Section 24 of the Evidence Act provided that admissions were not conclusive proof of the matters admitted, but they could operate as estoppels under the provisions thereinafter contained.
The appellant had all along admitted to making the mistake of delivery of judgment a day earlier than scheduled and in the presence of only one party who happened to be the victorious party. The circumstances of the appellant’s error were interrogated fairly substantively by the committee of the JSC. The appellant, due to his own admission, was precluded from blaming the JSC for not calling witnesses who accused him or disallowing him from cross-examining them as the same proved unnecessary.
Once the appellant admitted to the error, all that was left was for him to convince the JSC that the circumstances surrounding the mistake were defensible. Further, since admitting to his mistake, when required to explain to circumstances of the mistake, it was not an unfair shifting of the burden of proof. Pursuant to section 112 of the Evidence Act, in civil proceedings when any fact was especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact was upon that party. In the instant case, the circumstances of how the mistake occurred were within the appellant’s knowledge and control as the judicial officer charged with hearing parties and rendering decisions on disputes.
The JSC followed the elaborate laid out procedure set out in article 172, section 32 of the Judicial Service Act and the rules under the Third Schedule to the Judicial Service Act. The appellant was afforded an opportunity for hearing and the same was reasonable. Consequently, the appellant was afforded the right to fair hearing, fair labour practices and fair administrative actions pursuant to articles 50, 41, and 47.
Judicial immunity was meant to protect judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and ensure transparency and accountability. Under the doctrine of judicial immunity, a judicial officer was absolutely immune from criminal or civil suit arising from acts taken within or even in excess of his jurisdiction and the protection or immunity of a judge also went into administrative acts. Judges and judicial officers remained unquestionably immune as long as they did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights.
While a party aggrieved by a judicial officer’s decision or action could not sue them in their personal capacity, in either criminal or civil proceedings, they were not without recourse. Aggrieved parties could institute proceedings before the JSC seeking removal of judges and judicial officers. Which was the case therein. The appellant was not protected by judicial immunity in the circumstances of the case, as the complainant triggered proceedings for the appellant’s removal when they lodged their complaint with the Ombudsman.
It was a long-held practice that parties were precluded from arguing their cases piecemeal. They had to present the entirety of their case at the first instance to allow the courts or administrative bodies to make a full and final determination of all pertinent issues relevant to a case. The appellant should have used every defence in his arsenal at the first instance, being while he was before the committee of the JSC defending himself. When he failed to do so, he was precluded from raising preliminary arguments thereafter, more so on appeal to the Court of Appeal. The proceedings before the JSC were lawful and the determination, following due process, to remove the appellant were well within the confines of the Constitution.
The Judicial Service Act did not prescribe a time within which the JSC had to hear and determine disciplinary cases. The Judiciary’s Human Resource Policies and Procedures Manual also did not specify a time period for the conclusion of disciplinary cases. Delay, on its own did not lead the court to conclude that there was an infringement of rights. Where there was delay, the court had to interrogate whether the same was justifiable and thus excusable or not. In order to do that, the court had to interrogate the circumstances of the case.
The reasons the JSC had put forward demonstrated both external and internal factors, some beyond its control. The JSC was a major employer of one arm of the government, managing numerous judges, judicial officers, and judicial staff stationed all over Kenya. A delay of fifteen (15) months, without knowing whether he would lose his job caused the appellant anguish, despair, and economic distress having half his salary taken away due to being on interdiction. The JSC, as the appellant’s employee, was required to accord him disciplinary administrative action which was expeditious and efficient pursuant to article 47 of the Constitution. Indeed, the JSC owed that duty to each of its personnel, regardless of rank.
The reasons forwarded by the JSC were not insubstantial. Key among them was the exercise of recruiting a chief justice to head the judiciary, which needed to rank exceedingly high on the JSC’s obligations. The circumstances of the appellant’s case were distinguishable from the cases of Dennis Moturi Anyoka v Kenya Revenue Authority & 2 Others and Grace A Omolo v Attorney General & 3 others as the employers in those cases had set timelines as part of their disciplinary policies, unlike the JSC. The appellant’s case could also be distinguished from Judicial Service Commission v Daniel Ochenja as the delay therein was 26 months, which was nearly a whole year more than in the appellant’s case.
The delay in the appellant’s case was not unreasonable as to warrant an award of damages. Due to having the question of its applicable administrative procedure questioned, the JSC should include a prescribed timeline for disposal of disciplinary cases after relooking at its policy on the reasonable period it was likely to take in hearing and expeditiously handling disciplinary cases.
Appeal dismissed; preliminary objection dismissed.
Orders
Each party to bear its own costs at the Employment and Labour Relations Court, Court of Appeal and the Supreme Court. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/37/eng@2022-07-08 |
Application 3 (E008) of 2022 | Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Application 3 (E008) of 2022) [2022] KESC 25 (KLR) (8 July 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 July 2022 | 2,022 | Nairobi | Civil | Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others | [2022] KESC 25 (KLR) | null | Brief facts
The applicant sought a review of a Court of Appeal decision refusing grant of certification and leave to appeal in the Supreme Court on grounds of general public importance. The application was on the basis that the Court of Appeal erred in law in failing to certify matters on whether a court could imply and import the doctrine of trust into land sale transactions and into shareholding of a company as matters of general public importance. | Held
Rule 36(4) of the Supreme Court Rules made it optional to file a notice of appeal either before or after certification in a matter of general public importance. The instant application for review of denial of certification could not be held to be incompetent because it was not preceded by the filing of a notice of appeal.
Rule 12(1) of the Supreme Court Rules, 2020 did not prescribe the order in which physical and electronic documents were to be filed. Rule 14(1) mandated the parties to file the physical documents at the Supreme Court’s registry during working hours specified as 8.30 a.m. to 5.00 pm by rule 10(3). The applicants demonstrated that they were in the registry within the timelines with a view to concluding the filing processes. The applicants made its best efforts to comply with the registration timelines. There was system downtime which was beyond the control of the parties. The applicants were not to be punished for the delay in electronic filing on account of system downtime between uploading and electronic payment of fees that delayed the process for about 20 minutes beyond the working hours, through no fault of theirs.
The applicants were aggrieved by the right to fair trial with the ultimate bearing on the right to own private property among the litigants. The dispute did not end with the vitiation of contracts or the law on the circumstances of resulting or constructive trusts and the lifting of the corporate veil which were settled issues.
The applicants challenged 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 a 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. That was an issue that required the Supreme Court’s intervention and input, as it transcended the applicants, amounted to a substantial point of law determination of which had a significant bearing on the public interest. There was need for the Supreme Court to settle the surrounding jurisprudence as mandated by the Constitution and the Supreme Court Act. The Supreme Court was inclined to review the decision of the Court of Appeal albeit on that limited aspect.
The matter relating to adherence to the procedural timelines before the Court of Appeal was a matter for the Court of Appeal’s consideration in exercise of its jurisdiction and not for the Supreme Court’s consideration and determination.
The court reserved its discretion to grant conservatory relief. Rule 31(2) of the Supreme Courts Rules referred to interlocutory applications, the instant application for review of certification not being such an interlocutory application as contemplated by the said rule.
Application partly allowed.
Orders
The Originating Motion Application dated and filed on April 19, 2022 was allowed to the extent that:
the ruling of the Court of Appeal declining to certify that matter as one of general public importance was set aside.
The applicants were granted leave to appeal to the Supreme Court limited to the following issues which were certified as involving general public importance:
whether a constructive trust could be imported into a land sale agreement to defeat a registered title resulting therefrom; and
whether a constructive trust could be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.
All activities based on previous orders, that interfered with the status of the suit properties, as identified and as were in issue at the High Court and the Court Appeal, were stayed, pending the hearing and determination of the proposed appeal.
The applicants were to file and serve their appeal within 21 days of the ruling.
Once filed the appeal was to be disposed off on priority basis.
The costs of the application were to abide the determination of the appeal. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/25/eng@2022-07-08 |
Petition 7 of 2017 | Kanyuira v Kenya Airports Authority (Petition 7 of 2017) [2022] KESC 30 (KLR) (17 June 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 17 June 2022 | 2,022 | Nairobi | Civil | Kanyuira v Kenya Airports Authority | [2022] KESC 30 (KLR) | null | Brief facts
The appellant had undertaken to construct 24 maisonettes on land adjacent to Wilson Airport. The appellant secured financing in the sum of Kshs. 67,671,000.00 and began construction. No sooner had he commenced the construction than the respondent (Kenya Airports Authority (KAA)), in exercise of its powers under the Kenya Airports Authority Act (the KAA Act) issued a cessation order to stop any construction or development on the ground that the suit property fell within the protected aircraft runway protection zone of the Wilson Airport.
Aggrieved the appellant challenged the cessation order at the High Court via judicial review but the matter was dismissed. Aggrieved by the judgment of the High Court, the appellant filed an appeal at the Court of Appeal which affirmed the finding of the High Court, that the respondent acted within its statutory powers, when it declined to approve the construction of 24 maisonettes by the appellant in a parcel of land adjacent to Wilson Airport, in Nairobi, and; that the respondent’s decision did not amount to compulsory acquisition of the latter’s property to warrant compensation.
Further aggrieved, the appellant filed the instant appeal. The appellant sought a declaration that his right to property had been violated and sought special damages for loss of earnings, a liquidated sum of Kshs. 992,336,004 which he claimed was loss suffered based on violations of his right to property. | Held
Jurisdiction was everything. Without it, a court had no power to make one more step. In its absence, the court could not do anything but to dismiss the case. Without jurisdiction, the court could not proceed to judgment on the merits; if it did, the result was a nullity.
Appeals from the Court of Appeal lay as of right to the Supreme Court under article 163(4) of the Constitution, if they involved constitutional interpretation and application, or upon certification, by either the Court of Appeal or the instant court, that matters of general public importance were involved. However there was the need to invoke the correct constitutional or statutory provision that clothed it with jurisdiction to entertain any matter before it.
The appellant’s claim had throughout been based on the interpretation and application of the Constitution, specifically that his property rights under article 40 were violated by the cessation order and that he was entitled to compensation under article 23 as read with article 24 of the Constitution. The court had jurisdiction under article 163(4)(a) of the Constitution to determine the appeal.
The trial court in R v. Managing Director, Kenya Airports Authority ex-parte Patrick Thoithi Kanyuira, HC Misc. No. 86 of 2009, was right in drawing the distinction between the causes of action in the two suits. In one the appellant had sought the quashing of the cessation order by certiorari, while the petition before the instant court was for compensation for violation of the appellant’s constitutional rights. The cessation order was properly issued by the KAA. To that extent, that issue was res judicata. It was a decision in rem, confirming that one of the bodies whose authorisation had to be obtained before making any development in the vicinity of the airport was the respondent. The appellant ought to have heeded the caution in the execution of the project on the suit property.
The right to own property and develop it to its full potential was a human right, recognized not only by the Constitution but also by international and regional instruments that Kenya was a party to.
The appellant was the holder of a certificate of title to the suit property issued under the repealed Registration of Titles Act, which by section 23 guaranteed its sanctity by providing that the certificate would be conclusive evidence that the person named as proprietor of the land was the absolute and indefeasible owner, only subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed. The terms of the grant of the title permitted the appellant to construct housing units within six months of issue and the suit property was to be used only for residential purposes.
The KAA Act provided the KAA with the power to enter upon any land to conduct a survey, to remove or cause to be removed any obstruction, materials, structures or buildings, including slaughterhouses which were likely to attract birds that may be hazardous to aircraft operations; to enter upon any land to prevent accidents by; cutting down or removing any tree or other obstruction, not being a building; or executing such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident. The KAA or any of its authorized employees could also enter upon any land and alter the position of any pipe, electric, telephone or telegraphic wire after giving reasonable notice. The wide powers exercised by KAA upon private land had the sole aim of making airports adjacent to private land secure and safe.
Section 13(3) of the KAA Act provided that prior approval of the director was a necessary pre-condition and requirement. Only for the purpose of demolition or modification of any building within the proximity of the airport which could pose an aviation risk, was the respondent required to obtain an order of the court. It was precisely because of that that the respondent filed in a suit that sought an order of the court to demolish the structures on the suit property which stood spent after the appellant ingeniously withdrew the suit taking away the forum for hearing of the application.
All the powers vested in the KAA by sections 14, 15 and 16 of the KAA Act were aimed at guaranteeing the safety of aircrafts, vehicles and persons using the aerodrome as well as to prevent danger to the public. There was no logic in the argument that there was no basis for the respondent to stop the construction without evidence of how it would interfere with aviation safety and security.
Prior approval or rejection had to of necessity be based on the independent assessment by the KAA of architectural designs of any proposed construction from which matters like the height of the proposed building could be ascertained. It would be irrational for an investor to put up a building and then seek authorization with the attendant risk of rejection by the authorizing agency.
Since the suit property was adjacent to the airport, it was common factor that the appellant sought approval from the KAA pursuant to the provisions of section 15 of the KAA Act. At no point, in the course of exchanging correspondence did the appellant question the KAA’s authority to control the use of land adjacent to airports.
It was as perplexing as it was disconcerting that the appellant would, after all the exchanges and engagement with the KAA, turn around and claim that the KAA had no role in approving his project and insist that, the Kenya Civil Aviation Authority (KCAA), as the only body, in law from which he required approval, and from which he had in fact obtained such authorization, there was no basis for the KAA to insist on compliance with the cessation order.
It was unfortunate for the appellant to contend that the project having been approved by the then City Council of Nairobi (NCC) and by National Environment Management Authority (NEMA), that he did not require approval from the KAA. By the time the appellant applied to the KAA for approval on January 10, 2008 and even as NEMA gave its approval the appellant had commenced the construction in 2007.
Apart from the KAA, there were other regulatory agencies whose authorization would be necessary and must be obtained before any development could be commenced within the proximity of the aerodrome areas in Kenya, such as the KCAA, NEMA and NCC. It was the approval of each that would give a licence for any proposed development in such areas.
One or two approvals without the concurrence of the other would not do, hence the need for close coordination between all the bodies to avoid anarchy, particularly in such sensitive areas as airports. A disjointed approach would compromise the security and safety of the public.
Section 9 of the repealed Civil Aviation Act which was worded in the same terms as section 56 of the Civil Aviation Act, 2013, provided that despite provisions of any law, or the terms of any deed, grant, lease or license concerning the use and occupation of land, the Cabinet Secretary could, where he considered it to be necessary in the interests of the safety of air navigation, by order published in the Gazette, prohibit the erection within a declared area of any building or structure above a height specified in the order. A declared area was any area adjacent to or in the vicinity of an aerodrome.
In section 10 of the repealed Civil Aviation Act, which was reproduced in section 57 of the Civil Aviation Act, 2013, if the Director-General considered that provisions for civil aviation safety and security or efficiency of air navigation ought to be made, whether by lighting or otherwise for giving aircraft warning of the presence of any building, structure, tree or natural growth or formation on or in the vicinity of an aerodrome; or by the removal or reduction in height of any such obstruction or surface, he or she may by order, and subject to any conditions specified in the order, require or authorise either the owner or occupier of the land on which the obstruction was situated or any person acting on behalf of the Director-General to enter upon the land and carry out such work as was necessary to enable the warning to be given or the obstruction to be reduced in height. Further, the Cabinet Secretary under section 82(2)(x) of the Civil Aviation Act, 2013, could regulate or prohibit in the vicinity of any aerodrome the emission or causing of smoke, soot, ash, grit, dust and any other substance whatsoever which obscured or may obscure visibility.
NEMA was responsible for promoting the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable basis. That in turn ensured the improvement of the quality of human life in Kenya. The approval had to be obtained prior to commencement of a project. It was the duty of the proponent of a project to undertake an environmental impact assessment study and submit a report for consideration by NEMA. The approval of a proposed project by NEMA was subject to approval by any other body authorized to do so by any law; and that approval by NEMA was subject to environmental impact of the project.
The County of Nairobi, the predecessor of the NCC, as a local authority had the sole mandate of physical planning in the city. Under the repealed Physical Planning Act, no development within the city could be carried out without a development permission granted by NCC. It was a punishable offence to contravene that requirement. Therefore, any person that intended to carry out any development in the city could only do so after obtaining what the Act termed development permission from the Director of Physical Planning. Before granting permission NCC was required by section 32(2) of the Act to consult several bodies.
Each of the multi-actor regulatory agencies inevitably involved highly-specialized expertise, with different legal mandate and framework. Their mandates could at times overlap or contradict. That was instead of looking at single institutions. One had to map the full and relevant existing legislative spectrum to appreciate their linkage.
The fragmentation of roles between the regulators only went to blur their jurisdictional boundaries, often making it difficult to decipher when the jurisdiction of one regulator ended and that of the other began. To avoid that, the agencies had to develop and maintain synchrony with each other. Such synergy was created, for instance in section 10(1) of the repealed Civil Aviation Act, where the National Civil Aviation Security Committee responsible for, among other things, co-ordinating security activities between agencies and other organizations, airports and aircraft operators and other entities concerned with or responsible for the implementation of various aspects of the civil aviation security was established. Its membership, appointed by the Minister, included the KAA. Section 32(2) of the repealed Physical Planning Act was another example.
Section 6 of the Physical and Land Use Planning Act, 2019, which repealed the Physical Planning Act established the National Physical and Land Use Planning Consultative Forum, whose functions were, inter alia, to provide a forum for consultation on the national physical and land use development plan; to promote effective co-ordination and integration of physical and land use development planning and sector planning; and to consider national security and advise on strategic physical and land use development projects of national, inter-county, county, or transnational importance.
It was in acknowledgment and appreciation of the need for synergy between the regulating agencies that NEMA gave approvals and that the approval was subject to the appellant complying with all the relevant principal laws, by-laws and guidelines issued for the development of the project by all relevant authorities.
Further evidence showed that the regulatory agencies had to work and that in the instant case they worked in coordination. An example was a letter by the respondent in response to the Director General KCAA’s letter explaining to the latter that it had not approved the on-going developments on the suit property for the reason that it lay within the approach funnel of the main runway of Wilson Airport. It was surprising that there would be an approval by KCAA that the appellant was exclusively relying on to continue with the construction in the absence of one from the KAA. The appellant was on a bad and unhelpful frolic. The KAA lawfully and within the remit of the Constitution issued cessation order in issue.
The compensation contemplated by articles 22 and 23 of the Constitution could only be awarded where there was proof that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened.
A claim in public law for the deprivation of fundamental rights and freedoms, compensation could include loss of earnings. There was nothing in section 33 of the KAA Act that would entitle the appellant to be compensated in the claimed sum of Kshs. 992,336,004. That was because his loss, injury or damage, if any, were as a result of his own subversive actions.
The right to property under article 40 of the Constitution was not an absolute right. In appropriate circumstances it could be limited by the law. The respondent had produced evidence in support of the justification to stop the project pursuant to the KAA Act. The security and safety of flight paths was in public interest which permitted the limitation on enjoyment of the right and freedoms in the Bill of Rights of a private individual.
In determining whether the limitation of a right was justifiable, a court had to consider 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 by one individual did not prejudice the rights of others.
The respondent’s action did not extinguish the appellant’s ownership rights to the suit property nor did it technically amount to acquisition of the suit property by the respondent. The cessation order only sought to restrict the activities that, in the view of the respondent would compromise aviation safety and security.
Appeal dismissed.
Orders
Costs awarded to the respondent. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/30/eng@2022-06-17 |
Petition 20 of 2020 | Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (17 June 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 June 2022 | 2,022 | Nairobi | Civil | Kenya Revenue Authority v Export Trading Company Limited | [2022] KESC 31 (KLR) | null | Brief facts
In the years 2008 and 2009, the respondent imported various consignments of rice from Burma, Vietnam, and Thailand. The appellant, the Kenya Revenue Authority, via its Tradex Simba System, an automated tax collection and import clearance system, levied a duty of 35% on the imported rice, which duty, the respondent paid in full.
Subsequently, in 2013, about four years after the initial tax was assessed, demanded, and paid, KRA conducted a post-clearance audit. The audit revealed that the applicable import duty rate on the consignment was 75% and not 35%. KRA attributed the error to human and system errors in undercollecting import duty at the rate of 35%. Subsequently, KRA demanded payment of short levied duty amounting to Kshs. 378,016,680/- as income due from the respondent for rice imported.
Aggrieved, the respondent filed a constitutional petition challenging the appellant’s second demand for tax, where the High Court held that the demand for taxes by the appellant was unreasonable and a breach of the respondent’s right to fair administrative action. Aggrieved by the decision of the High Court, the appellant filed an appeal at the Court of Appeal. The Court of Appeal upheld the decision of the High Court by finding that the appellant’s actions were irrational, arbitrary, and capricious and holding that the court’s discretion was well exercised.
Further aggrieved, the appellant (KRA) filed the instant appeal in which they sought to overturn the decisions of the Court of Appeal and the High Court on grounds that the courts misapplied the law in finding that its actions were irrational and a breach of fair administrative action. They sought for the Supreme Court to interpret the law as strictly constructed and to hold that legitimate expectation could not operate contrary to statutory provisions and that it was wrong for the Court of Appeal to fail to appreciate that any post-clearance audit would necessarily have follow-up actions. | Held
Section 135(1) of the East African Community Customs Management Act, 2004 (EACCMA) granted the appellant power to conduct a post-clearance audit and demand the short levied duty. The appellant acted unfairly in demanding the alleged short-levied duty almost 4 years after the initial assessment, and payment of the duty so assessed was irrational and did not accord the respondent its right to fair administrative action.
A person could have a legitimate expectation of being treated in a certain way by an administrative authority even though he had no legal right in private law to receive such treatment. The expectation could arise either from a representation or promise made by authority, including an implied representation, or from consistent past practice. A legitimate expectation arose where a person responsible for making a decision induced in someone a reasonable expectation that he would receive or retain a benefit or advantage.
Legitimate expectations could take many forms. It could take the form of an expectation to succeed in a request placed before the decision maker, or it could take the objective form that a party may legitimately expect that, before a decision that could be prejudicial was taken, one was to be afforded a hearing.
The question of whether a legitimate expectation arose was more than a factual question. It was not merely confined to whether an expectation existed in the mind of an aggrieved party, but whether, viewed objectively, such expectation was, in a legal sense, legitimate.
Legitimate expectation would arise when a body, by representation or by past practice, had aroused an expectation that was within its power to fulfill. For an expectation to be legitimate, therefore, it had to be founded upon a promise or practice by a public authority that was expected to fulfill the expectation. The emerging principles of legitimate expectation were that;
there had to be an express, clear, and unambiguous promise given by a public authority;
the expectation itself had to be reasonable;
the representation had to be one that was competent and lawful for the decision-maker to make; and
there cannot be a legitimate expectation against clear provisions of the law or the Constitution.
A legitimate expectation arose since the appellant failed to collect duty at the applicable rate, having applied the rate of 35% in their Tradex Simba System. It was also incomprehensible how the appellant, four years after the assessment of duty, demanded payment of extra duty when it sat on its laurels having itself assessed the duty payable. That act was unreasonable for the reason that, first, it was irrational and unreasonable to require the respondent to carry the burden of being aware of any mistakes made by the Tradex Simba System, a system run by the appellant. It was also incomprehensible how the respondent should be made to suffer the consequences of the actions of the appellant of failing to input the correct rate in a system it had full control over. That line of reasoning was misguided. It missed the point that judicial review is not concerned with the merits of the case but the decision-making process.
The appellant indicated that the respondent had already paid all taxes due to it. From the record, the respondent had also been categorical that it never mis-declared the country of origin of the rice. Even after declaring that the rice was not imported from Pakistan, the system went on to apply the rate of 35%, after which the respondent paid the relevant duty.
The actions of the appellant in failing to respond to the respondent’s letter seeking clarification on the demanded duty amounted to an expectation that the respondent had paid the correct duty. The expectation was not unreasonable. There was absolute reason given to the respondent to expect that there would not be a further claim for the duty they paid almost four years to the date of importation of the rice.
It was unacceptable that the respondent adopted the view that it did not matter whether there was a misdeclaration, underdeclaration, or system error and that the appellant was entitled to demand any levies discovered following the carrying out of a post-audit at any given time. Anyone who decided anything affecting the right or interest of another person if the person, body, or authority against whom it was claimed exercised a quasi-judicial function that was likely to infringe on their right to fair administrative action was entitled to remedies for judicial review.
Ordinarily, costs followed the event. However, costs should not be used to penalize the losing party but to compensate the successful party for the trouble taken in prosecuting or defending a suit.
An award on costs must be judiciously exercised by invocation of the discretion of the court on a case-by-case basis, and it was the practice that, where suits involved genuine public interest, courts were slow to award costs as against the losing party. Condemning an unsuccessful party to pay costs in genuine public interest litigation can act as a deterrent factor preventing parties from instituting proceedings that benefit the public generally for fear of being condemned to pay costs. The general rule on costs was therefore not immutable, and although deeply entrenched, certain specific circumstances and considerations may necessitate non-application of the principle.
Public bodies and organizations such as parastatals, which ordinarily existed to serve a country’s government by participating in proceedings, acted purely in a regulatory capacity. Such government organizations acting within their mandate need not be condemned to pay costs where such an entity had brought or defended proceedings while acting purely in that regulatory capacity. An award of costs against such entities should only be made where such an entity has acted unreasonably or in bad faith.
Public interest litigation exists to serve the purpose of protecting the rights of the public at large. Therefore, public bodies instituting or defending proceedings were performing their public function, which fell under public interest.
The case raised constitutional issues that were public in nature, and while the appellant may have acted unreasonably, no bad faith had been exhibited, and in the totality of matters, discretion would tilt in its favour. In the circumstances and the public interest, each party was to bear its costs.
Appeal dismissed, decision of the Court of Appeal upheld.
Orders
Each party was to bear its costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/31/eng@2022-06-17 |
Petition 43 of 2018 | Moi University v Zaippeline & another (Petition 43 of 2018) [2022] KESC 29 (KLR) (17 June 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 17 June 2022 | 2,022 | Nairobi | Civil | Moi University v Zaippeline & another | [2022] KESC 29 (KLR) | null | Brief facts
The 1st respondent was admitted to Moi Univesity and was placed at its Central Kenya Campus based at Karatina. At the time of admission at the University, the appellant was a bona fide student of Moi University pursuing a degree of Bachelor of Science (B.Sc). While conducting his studies, the Central Kenya Campus went through a process of being elevated to a constituent college of Moi University. Two months before the 1st respondent’s graduation, a charter for the constituent college was granted transforming it into a full-fledged university known as Karatina University (2nd respondent).
On completion of his studies, the 1st respondent wished to be awarded a degree by the appellant and not by the new and relatively unknown Karatina University, the 2nd respondent. That inevitably led to the litigation before the courts. The High Court held that the 1st respondent was a former student of Karatina University College eligible under paragraph 33 of the charter to be conferred a degree of Karatina University. The court further held that if the 1st respondent had any legitimate expectation to be conferred a degree by the appellant, the same was extinguished by operation of law.
Aggrieved, the 1st respondent appealed the decision at the Court of Appeal which allowed the appeal and held that the 1st respondent had no contractual and legal relationship with the 2nd respondent in so far as it related to the award and conferment of its degree to him and that relationship lay with the appellant. The appellate court also held that the doctrine of legitimate expectation was inapplicable to the relationship between the 1st and 2nd respondents and that the appellant could perform the contract between itself and the 1st respondent.
Aggrieved, the appellant, Moi University, filed the instant appeal. The appeal was on grounds that a university could not award a degree to a student who was no longer registered with it and whom it had neither taught nor examined. | F. Disposition and Final Orders
79.
In the end, the appeal herein fails with the result that we affirm the decision of the Court of Appeal rendered on April 14, 2015 at Nyeri in Civil Appeal No 54 of 2014 in the following terms:
i.
In the absence of a proper mechanism set out in the transition legislation to specifically address the fate of the students in a Campus of an existing Public University which transforms to a constituent college and eventually granted a Charter to a fully-fledged University, the students who were initially admitted by a University and posted to its Campus remain the students of that University and entitled to be graduated by the said University;
ii.
The degree awarded to the 1st respondent by the 2nd respondent and issued on November 21, 2014 be and is hereby nullified;
iii.
The appellant to award the 1st respondent the degree for which he was admitted to study, was trained on and qualified in;
iv.
There shall be no order as to costs. It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/29/eng@2022-06-17 |
Application 4 (E010) of 2022 | Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others (Application 4 (E010) of 2022) [2022] KESC 34 (KLR) (3 June 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 3 June 2022 | 2,022 | Nairobi | Civil | Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others | [2022] KESC 34 (KLR) | null | 1.
Before the Court is a Notice of Motion Application dated on May 25, 2022, and filed on May 27, 2022, under Sections 3, 21 (2) and 24 (1) of the Supreme Court Act, and Rules 28(5) of the Supreme Court Rules, 2020 seeking this Court to review/vary and set-aside a Ruling and Orders issued on May 19, 2022 in Application No. 1 (E002) of 2022; The Senate of the Republic of Kenya & Others vs. The Speaker of the National Assembly & Others allowing the application for stay of the Court of Appeal Judgment.
2.
A brief background is that the 1st to 4th applicants/respondents approached this Court vide Petition No. 19(E027) of 2021 appealing against the entire Judgement of the Court of Appeal (Murgor, Nyamweya & Lesiit JJ. A). Before the main suit could be heard, the 1st to 4th applicants/respondents filed Application No. 1 (E002) of 2022 seeking the following orders:
1.
…
2.
Pending the hearing and determination of this application, an order be issued to stay the execution of order 1, 3 and 9 of the Court of Appeal at Nairobi in civil Appeal No. E084/2021; National Assembly & another v. Senate of Kenya & others pending the hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v. National Assembly & others.
3.
Pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v. National Assembly & others, an order be issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others.
4.
The costs of and incidental to this application abide the result of the said appeal.
3.
Upon considering the application and the submissions in support thereof, this Court rendered its Ruling on May 19, 2022 where we held that:
a.
Pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v. National Assembly & others, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others.
b.
The costs of this application shall abide the Court’s decision in the appeal.
4.
Dissatisfied with the Ruling, the 1st and 2nd respondents/applicants filed a Notice of Motion Application dated on 25th May 2022, and filed on 27th May 2022, under Sections 3, 21 (2) and 24 (1) of the Supreme Court Act, and Rules 28(5) of the Supreme Court Rules, 2020 seeking this Court to review/vary and set-aside Ruling and Orders issued on 19th May 2022 in Application No. 1 (E002) of 2022.
5.
The 1st and 2nd respondents/applicants submit that this Court has jurisdiction to set aside and/or review its orders of 19th May 2022. In this regard, reliance is placed in the case of Fredrick Otieno Outa vs. Jared Odoyo Okello & 3 Others, SC Petition No. 6 of 2014 [2017] where this Court held that:
‘‘…… in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice’’.
6.
The 1st and 2nd respondents/applicants argued that there was an error apparent on the face of the record on the ground that this Court stated that the application was unopposed while in fact the application was strenuously opposed by the 1st and the 2nd respondents/applicants on the basis that a detailed affidavit sworn by Michael Sialai, the Clerk of the National Assembly on 28th April 2022. It was further argued that in failing to consider the applicants’ opposition to the application, the Court arrived at an erroneous decision.
7.
In addition, 1st and 2nd respondents/applicants argued that the stay orders issued by this Court on May 19, 2022 are prejudicial to them, in that the Court stayed the enforcement of Orders No. 1, 3 and 9 of the Judgment of the Court of Appeal thereby reinstating orders of the High Court which were pegged on an erroneous interpretation of the provisions of Article 110 (3) of the Constitution and holding that it was a condition precedent for a Speaker of one House of Parliament to seek the concurrence of the Speaker of the other House of Parliament on whether a bill concerns counties. It was submitted that following a determination of the Appeal on its merits, the Court of Appeal held that the concurrence process under Article 110 (3) of the Constitution was only applicable to bills concerning counties and not the national government. Therefore, the orders of this Court have the effect of paralyzing the work of the National Assembly as they reinstate the orders of the High Court resulting in cessation of all Bills pending before it, at an interlocutory stage.
8.
The 1st and 2nd respondents/applicants contended that the National Assembly is scheduled to adjourn sine die from June 9, 2022 while the Senate is scheduled to go on recess sine die on June 17, 2022 ahead of the August 2022 General Elections and unless the stay orders are set aside/varied or reviewed, the National Assembly will not be able to discharge its constitutional mandate to process and pass numerous critical Bills currently before it in different stages, including Bills relating to the budgetary circle and touching on the three arms of government, county government and constitutional commissions leading to a constitutional crisis. Some of the critical Bills pending before the National Assembly are: the Appropriation Bill, 2022, the Finance Bill, 2022, the County Allocation Bill of Revenue Bill, 2022, the Public Finance Management (Amendment) Bill, 2022, the Petroleum Products (Taxes and Levies) Amendment Bill, 2022, the Supreme Court (Amendment) Bill, 2022 and the Children Bill, 2022. In conclusion, the 1st and 2nd respondents/applicants submit that the facts of this case satisfy the criteria for grant of the orders for review sought. | 9.
Two issues arise for determination in this matter, namely:
i.
Whether this Court has jurisdiction to determine this review application; and if yes
ii.
Whether a case has been made to warrant that review?
10.
Section 21(4) of the Supreme Court Act, 2011 provides as follows:
‘‘Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court’’.
11.
Additionally, Section 24(4) of the Supreme Court Act, provides that:
‘‘The judges of the Supreme Court who together have jurisdiction to hear and determine a proceeding may—
a.
discharge or vary an order or direction made or given under subsection (1); or
b.
confirm, modify, or revoke a decision confirmed or modified under subsection (2).’’
12.
This Court settled the question of its jurisdiction to review its own decisions in Fredrick Otieno Outa v Jared Odoyo Okello and 3 Others, Supreme Court Petition No 6 of 2014; [2014] eKLR where it observed that:
‘‘Having reached this Conclusion, based largely on the fact that, neither the Constitution, nor the law, explicitly confers upon the Court, powers to review its decisions, does this render this Court entirely helpless? Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do justice? Of course, litigation must come to an end. But should litigation come to an end, even in the face of an absurdity? The Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice……
However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.’’
[Emphasis added]
13.
Flowing from the above, we do find that this Court has jurisdiction to review any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.
14.
This Court also set the guiding principles for applications for review in the case of Parliamentary Service Commission vs. Martin Wambora & Others, SC. Application No. 8 of 2017 [2018] eKLR as follows:
‘‘(i) A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.
ii.
Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;
iii.
An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.
iv.
In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.
v.
During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review…”
15.
Be that as it may, this Court has inherent powers, if called 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. In this context, it was the applicants’ contention that the stay orders issued by this Court on May 19, 2022 are prejudicial to them, in that the Court stayed the enforcement of Orders No. 1, 3 and 9 of the Judgment of the Court of Appeal thereby reinstating orders of the High Court which were pegged on erroneous interpretation of the provisions of Article 110 (3) of the Constitution and holding that it was a condition precedent for a Speaker of one House of Parliament to seek the concurrence of the Speaker of the other House of Parliament on whether a bill concerns counties.
16.
Furthermore that the National Assembly is scheduled to adjourn sine die from June 9, 2022 while the Senate is scheduled to go on recess sine die on June 17, 2022 ahead of the August 2022 General Elections and unless the stay orders are set aside/varied or reviewed, the National Assembly will not be able to discharge its constitutional mandate to process and pass numerous critical Bills currently before it in different stages, including Bills relating to the budgetary circle and touching on the three arms of government, county government and constitutional commissions leading to a constitutional crisis.
17.
We note the 1st to 4th respondents’/applicants’ opposition to this Application, in which they state that the 1st and 2nd respondents/applicants ought to have filed a response within the timeframe given by the Deputy Registrar and within the parameters of the Rules of this Court. We agree. However, it is also our view that this Court can, in exceptional circumstances, invoke Rule 3(4) and (5) of the Supreme Court Rules, 2020 which state:
“
(4) The Court shall interpret and apply these Rules without undue regard to technicalities and procedure.
(5)
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
18.
Having considered the submissions from all parties, and taking into account the prejudice likely to be suffered by the 1st and 2nd respondents/applicants if the said orders are not reviewed, varied or set aside given the fact that failure to deliberate on some of those Bills might cripple the running of the government, we find that this matter calls for review, variation or setting aside as there would be apparent injustice not only to the applicants but Kenyans as a whole. Consequently, we do find that the application is merited.
Orders
19.
Upon considering the application our final Orders are as follows:
a.
The application for review dated May 25, 2022 is hereby allowed.
b.
The orders of this Court issued on May 19, 2022 staying the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others is hereby set aside and substituted with an order dismissing the said application No 1 (E002) of 2022.
c.
The costs of this application and also No 1 (E002) 2022 shall abide the Court’s decision in the appeal.
20.
It is so, ordered. | Court issues further directions | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/34/eng@2022-06-03 |
Motion 15 of 2021 | Absa Bank Kenya Plc v Domestic Taxes (Large Taxpayers Office (Motion 15 of 2021) [2022] KESC 13 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Absa Bank Kenya Plc v Domestic Taxes | [2022] KESC 13 (KLR) | null | [1]
Upon perusing the Originating Motion dated and filed on 19th November, 2021 brought under the provisions of Rule 33 of the Supreme Court Rule, 2020 seeking a review of the Court of Appeal ruling (Nambuye, Kiage, Mohammed, JJA) declining to certify the Applicant’s intended appeal to this Court as one involving a matter of general public importance; and
[2]
Upon reading the applicant’s supporting affidavit sworn by Peter Mungai on 19th November, 2021 and the applicant’s supplementary affidavit undated but filed on 17th December, 2021 wherein it is averred that the finding in Nairobi Civil Appeal No. 195 of 2017 (Karanja, M’Inoti & Sichale, JJ. A) that interchange fees were management and professional fees and liable to be charged withholding tax and that transaction fees paid by the applicant to card companies constitute royalties and subject to withholding tax is of great public importance as is affects the entire banking industry since banks will have no incentive to issue debit and credit cards if the interchange fees are liable to withholding tax; and that card companies will also be discouraged to issue cards since the cost of card transactions shall increase and framed the issues of public importance as follows:
(a)
The consequence of the decision is that it affects the entire banking industry. All banks in Kenya and internationally issue credit and debit cards and in the event that interchange is subjected to withholding tax, the said banks will have no incentive to issue cards. Following the Court of Appeal’s refusal to certify the matter as one of general public importance, the respondent has sent demands to banks specifically quoting the Court of Appeal’s decision and demanding payment of tax.
(b)
The decision also negatively impacts the card companies who operate the networks that enable payments through the use of credit and debit cards as it increases the cost of card transactions thus discouraging the issuance of use of cards.
(c)
Debit and credit cards are cashless, safe, reliable, convenient and a secure way of making payments.
(d)
In the event that banks in Kenya stop issuing cards, this will negatively impact the more than 11 million individual and institutional members of the Kenyan public who use credit and debit cards. It will also have a catastrophic impact on the Kenyan businesses that accept payment by cards.
(e)
Credit and debit cards provide a secure, efficient and accountable means of effecting payments not only in Kenya but also for members of the Kenyan public who travel abroad. Cards are also utilized by members of the Kenyan public who make online purchases. If cards are no longer accessible as a result of the imposition of tax that has no basis in law or fact, Kenyans will have to carry cash when travelling abroad and will not be able to undertake online purchases.
(f)
The tourism sector in Kenya relies on payments by tourists who use debit and credit cards. The sector is a cornerstone of the Kenyan economy employing millions of Kenyans whose livelihood will be impacted in the event that tourists are unable to utilize their debit or credit cards in Kenya.
(g)
The Court of Appeal judgment thus impacts the card payment system both locally and internationally thereby negating the Government of Kenya’s agenda on ease of doing business as well as promoting tourism.
(h)
Discouraging card transactions for payments in effect imposes a purely cash economy which has been shown to be inimical to public health in light of the domestic and international combat against Covid-19.
(i)
The effect of the Court of Appeal judgment is to give the Court the blanket right to re-write the agreements of contracting parties so as to impose tax. It is a cardinal principal of law that the Courts have no jurisdiction to re-write and impose new contractual news. This is a fundamental principal of law which if breached would have an adverse effect on all commercial transactions.
(j)
The effect of the Court of Appeal judgement is to give the respondent the right to raise tax demands that lack clarity by merely claiming that a payment is ‘management or professional fees’ without specifying the category indicating that a particular transaction falls as required by law.
(k)
The effect of the Court of Appeal judgment is to create uncertainty and unpredictability in business transactions vis a vis taxation. For a business to operate within tax system, it requires certainty and predictability which enables the business to arrange its tax affairs.
(i)
The uncertainty created by the judgment will erode the confidence of Kenyan businesses and foreign investors which will have a devastating effect on the Kenyan economy; and
[3]
Upon considering the applicant’s written submissions dated 24th February, 2022 wherein it is further contended that the decision in Nairobi Civil Appeal No. 195 of 2017 (Karanja, M’Inoti & Sichale, JJ. A) has a direct impact on all banks and consequently the members of the public who are members of the banks; that the decision transcends the circumstances of the intended appeal between the applicant and the respondent and that the dispute between the parties does not simply arise from disputed facts but that there are questions of law to be decided that will impact the public; and
[4]
Upon Reading the respondent’s replying affidavit sworn on 9th December, 2021 by Philip Munyao and the written submissions dated 5th January, 2022 and filed on 6th January, 2022 in which it was deponed that the matter is not one of general public importance, raises no novel issues and that the facts involved everyday issues of computation and assessment of tax peculiar only to the applicant and respondent;
[5]
And which facts it was argued, had no significant bearing on public interest and failed to transcend the circumstances of the case requiring the same to merit this Court’s appellate jurisdiction and citing the principles set out in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, SC Application No.4 of 2012; [2013] eKLR and in Malcolm Bell v. Daniel Toroitich Arap Moi & another, SC Application No.1 of 2013; [2013] eKLR (Malcolm Bell Case); and
[6]
Noting from the record that the applicant further filed an amended originating motion dated 19th November, 2021 and filed on 3rd December, 2021 premised on the provisions of articles 163(4) (b), 163(5) and 210(1) of the Constitution, sections 16(1) and (2) of this Court’s Act and Rule 33(3) of this Court’s Rules seeking determination of the questions:
(a)
Whether the Court of Appeal erred in declining certification of the applicant’s intended appeal to this Court.
(b)
Whether the applicant’s intended appeal transcends the issues between the applicant and the respondent and raises matters of substantial general public importance
(c)
Whether the applicant’s intended appeal raises serious issues of law that are of general public importance and
(d)
Whether the imposition of withholding tax on a payment that is not a royalty and a payment that is not for management or professional services as defined in the Income Tax is a violation of article 210(1) of the Constitution of Kenya; and
[7]
Further Noting the submissions by the respondent opposing the amended originating motion being properly on record for failing to seek leave of this Court, introducing new issues of fact and for failing to follow the relevant rules on amendment without seeking leave as was pronounced by this Court in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 others, SC Petition No.12 of 2013; [2014] eKLR (Mumo Matemu Case). | [8]
In the above context, We Now Opine as follows:
i
Before we review the issue of certification, it is prudent that we address the contention raised by the respondent on whether the amended originating motion filed without leave of the Court is properly before us.
We take note of the respondent’s submissions that the amended originating motion filed by the applicant was done so without leave of this Court. Under Rule 33(1) of this Court’s Rules, a party aggrieved with the finding of the Court of Appeal certifying or declining to certify a matter as one of general public importance may apply to this Court for review within fourteen days. The originating motion dated 19th November, 2021 was filed within 14 days of the date of delivery of the ruling by the appellate Court on 5th November, 2021. We are cognizant of the provisions of Rule 17(1) of this Court’s Rules that provides that:
"A party may only file further pleadings or affidavits with the leave of the Court, and with the consent of the other party.”
ii.
This means that any subsequent filing of any motion after 19th November, 2021 required leave of the Court. No such leave was ever sought and/or granted. It is not in contention that the amended originating motion was filed 14 days after the date of delivery of the ruling by the appellate Court. Accordingly, the application had to be filed with leave of this Court. We are cognizant that there is no application and/or prayer before us by the applicant seeking leave to file its amended originating motion. Hence, we find and hold that the amended originating motion having been filed on 3rd December, 2021, without leave of the Court, is fatally defective. The upshot is that we hereby strike out the amended originating motion dated 1st December, 2021 and filed on 3rd December, 2021.
iii.
Having so said and turning to the merit of the substantive application that is properly before us, at the core of the finding of the appellate Court was that withholding tax is payable by a bank for payments it has made to credit card companies and to other banks that issue credit cards. This finding is the backbone of the questions the applicant submits transcends the parties-cases and constitutes a matter of general public importance. As such, it is argued that whether such taxes are liable to be paid by banks transcends beyond the parties as it entitles the respondent to demand for such payments from all banks, creating a rippling effect that foresees an increase in charges to be borne by consumers of debit/credit cards should banks be required to pay such taxes.
iv.
We have specifically weighed this application against the principles set out in Hermanus and we note that the applicant has to demonstrate satisfactorily that there is a legal question, the subject matter of which transcends the present litigation. The principles to be considered are well set where it was stated:
“Before this Court, ’a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.”
v.
As regards the substantive issues before the Court of Appeal, while the appellate Court rightfully considered the matter within the principles set out in Malcolm Bell, there is a further principle that is applicable in the matter as was set down by this Court in Town Council of Awendo v. Nelson Oduor Onyango & 13 others, SC Misc Application No 49 of 2014;[2015] eKLR where it was held:
"[35] From the content of paragraphs 32 and 34, it emerges that while this Court did, in the Hermanus Phillipus Steyn and Malcolm Bell cases, set out an elaborate set of criteria for ascertaining “matters of general public importance” for the purpose of engaging the Court’s jurisdiction, a further criterion has arisen. It may be thus stated. Issues of controversy that emerge from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, will merit a place in the category of “matters of general public importance.” [Emphasis supplied]
vi.
Having so pointed out, on our part, we note that the issues raised are not frivolous and indeed transcend the specific circumstances of the parties before us. The question of whether such payments made by banks to card companies constitute royalties and whether interchange fees paid by banks are classified as management or professional fees liable to taxation and subject to withholding tax is an important one within the banking industry.
[9]
Having therefore considered the application, we make the following Orders:
(a)
The Originating Motion dated and filed on 19th November, 2021 is hereby allowed.
(b)
Parties shall bear their respective costs.
[10]
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/13/eng@2022-05-19 |
Petition 18 (E025) of 2021 | Commission v Oduor & 4 others (Petition 18 (E025) of 2021) [2022] KESC 10 (KLR) (Civ) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Commission v Oduor & 4 others | [2022] KESC 10 (KLR) | null | [1]
Upon perusing the Notice of Motion dated 28th January, 2022 and filed on 21st February, 2022 for stay of execution against the Judgment and Orders of the Court of Appeal of 22nd October, 2021 in consolidated Civil Appeals No. 457, 458, 466 and 475 of 2018 and that the Court be pleased to extend time within which the applicant can file the sealed Order arising from the Court of Appeal Judgment, which application is predicated on the provisions of Articles 1, 2, 159, 163,258 and 259 of the Constitution and Rules 3, 15 and 32 of the Supreme Court Rules, 2020; and
[2]
Upon reading the applicant’s supporting affidavit sworn by Anne Amadi on 31st January, 2022; and
[3]
Upon considering the written submissions by the applicant dated 11th February, 2022 and filed on 21st February, 2022 wherein it is urged that the applicant has met the threshold for the grant of stay of execution by presenting an arguable appeal with high chances of success; that the intended appeal is not frivolous as it raises issues for determination; that the appeal will be rendered nugatory should stay not be granted and that it is in public interest that the stay orders be granted relying in the findings by this Court in Mary Wambui Munene v. Peter Gichuki Kingara & 2 others, SC Application No. 12 of 2014; [2014] eKLR and Lemanken Aramat v Harun Meitamei Lempanka & 2 others, SC Civil Application No. 8 of 2014; [2014] eKLR; and
[4]
Upon reading the 1st, 2nd and 3rd respondent’s replying affidavit sworn by the 3rd respondent on behalf of the respondents dated 15th March, 2022 and written submissions of even date wherein it is contended that the application fails to meet the threshold for grant of stay of execution; and
[5]
Further Noting the written submissions by the 4th respondent dated 17th March, 2022 and filed on 7th April, 2022 opposing the application and submitting that the intended appeal is not arguable, that the appeal will not be rendered nugatory, that there is no likelihood of a constitutional crisis should stay not be granted and that the applicants stands to suffer no damage, prejudice, irreparable loss or suffering if stay is not granted. | 6.
We now opine as follows:
i.
The principles for grant of orders for stay were enunciated in Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Sup. Ct. Civil Applications Nos.12 and 13 of 2012; [2013] eKLR, the principle objective being to preserve the subject matter of an appeal. The principles were also well established by this Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, Sup. Ct. Application No.5 of 2014; [2014] eKLR, (Gatirau Munya Case). Those principles require that an applicant must satisfy the Court that the intended appeal is arguable and not frivolous and that unless the stay order sought is granted, the appeal or intended appeal would be rendered nugatory.
ii.
Applying this to the facts, there is no doubt that the applicant’s intended appeal is arguable as the applicant seeks to challenge the manner in which the majority in the Court of Appeal arrived at its decision that Section 23(2) of the Sixth Schedule to { the Constitution}} does not oust the jurisdiction of the High Court to review the decisions of the Judges and Magistrates Vetting Board. The issues raised therefore touch on the jurisdiction of the High Court to determine the respondents’ petitions. We find this issue to be pertinent and properly before this Court for determination. As for the consideration on whether the appeal will be rendered nugatory, the applicant is apprehensive that there is a high likelihood that the 1st, 2nd, 3rd and 4th respondents may enforce the Court of Appeal order by re-engaging the Judiciary and seek to draw all previous benefits. In our view, such apprehension is valid and we are of the opinion that the appeal will be rendered nugatory if stay is not granted.
iii.
Turning to the prayer for extension of time, it is trite that this Court has jurisdiction to extend time, which exercise of such jurisdiction being an issue of judicial discretion. Rule 15(2) of the Supreme Court Rules, 2020 is instructive on this. It is our finding that the request for extension of time is merited and warrants exercise of our judicial discretion as the applicant has satisfied the principles set out in Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No.16 of 2014; [2014] eKLR on extension of time by this Court.
7.
Having therefore considered the application, we make the following Orders:
(i)
The execution of the decision of the Court of Appeal (Okwengu, Kiage & Kantai, JJ. A) in consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018 delivered on 22nd October, 2021 be and is hereby stayed pending the hearing and determination of the appeal.
(ii)
The applicant is granted time to file the sealed Order arising from the Court of Appeal Judgment which time is hereby enlarged for a further seven (7) days from the date of this Ruling.
(iii)
The Application dated 28th January, 2022 is hereby allowed in the above terms.
(iv)
Each party shall bear its costs of the Application.
8.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/10/eng@2022-05-19 |
Petition 4 (E005) of 2022 | Dande & 3 others v Director of Public Prosecutions & 2 others (Petition 4 (E005) of 2022) [2022] KESC 23 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Criminal | Dande & 3 others v Director of Public Prosecutions & 2 others | [2022] KESC 23 (KLR) | null | Brief facts
The applicants filed the instant application praying that pending the hearing and determination of Petition No. 4 of 2022, a conservatory order be granted staying the criminal proceedings in Nairobi Chief Magistrates Criminal Case No. 1735 of 2016 Republic v Edwin Harold Dayan Dande & 3 Others. The applicants submitted that; the court had jurisdiction to grant interlocutory reliefs pending the hearing and determination of the appeal; they had an arguable case with a high probability of success; the 1st respondent, in abuse of his prosecutorial powers had instituted charges against them contrary to article 157 of the Constitution of Kenya, 2010 (Constitution); and that unless the criminal proceedings before the subordinate court were stayed, the intended appeal would be rendered nugatory. | Held
1. At the Court of Appeal, the applicants only challenged the exercise of prosecutorial powers of the 1st respondent under article 157 of the Constitution. Being that the appeal before the Court of Appeal and its determination dealt squarely with the interpretation of article 157, the appeal was properly before the court in terms of article 163(4)(a) of the Constitution.
2. The court’s jurisdiction to grant interlocutory orders of stay of proceedings was derived from section 21(2) of the Supreme Court Act which provided that in any proceedings, the Supreme Court could make any ancillary or interlocutory orders, including any orders as to costs that it thought fit to award. Rule 5(2)(a) of the Court of Appeal Rules provided that the consideration was that the applicant could only apply for stay of criminal proceedings upon conviction and sentence either by the subordinate court, or by the High Court.
3. An order for stay of criminal proceedings was not granted as a matter of course but upon the sparing exercise of judicial discretion and only in the most exceptional of circumstances.
4. An order of stay would be granted in the following instances;
the appeal or intended appeal was arguable and not frivolous;
unless the order of stay sought was granted, the appeal or intended appeal, were it eventually to succeed, would be rendered nugatory; and
it was in the public interest that the order of stay be granted.
5. An arguable appeal was not one that had to necessarily succeed, but was simply one that was deserving of the court’s consideration; what had to be avoided was to render the appeal, if successful, nugatory or an academic exercise. The court, in exercising its discretion, balanced between the lower and the higher risks of injustice and no definitive conclusions ought to be made as that could only be in the appeal and not in an application for stay.
6. Under article 163(4) of the Constitution and sections 15, 16 and 17 of the Supreme Court Act, only an appeal from the Court of Appeal could be entertained by the Supreme Court, as of right, if it involved the interpretation or application of the Constitution or where it was certified that a matter of general public importance was involved.
7. It was fairly elementary that the court could 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 the instant application. Reference to any other court or tribunal as prescribed by national legislation in article 163(3)(b)(ii) was definitely not reference to the Magistrate’s Court.
8. The petition filed by the applicants on March 11, 2022 only challenged the decision of the Court of Appeal and not that of the Magistrate’s Court. As a matter of fact, no decision was made by the latter to warrant any challenge in the High Court.
9. Pre-trial directions in the instant matter were issued by the Deputy Registrar on March 11, 2022, therein, the respondent was to be served with the application and was in turn to file a response within 7 days. Unfortunately, parties in defiance of the directions, and after being issued with the ruling notice on May 4, 2022, continued to file responses up to the eleventh hour including as late as May 11, 2022. That practice was irregular and unacceptable. The court did not take into consideration in the instant ruling, submissions irregularly filed.
Application dismissed.
Orders
1st and 3rd respondents to have costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/23/eng@2022-05-19 |
Petition 8 (E010) of 2021 | Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2022] KESC 24 (KLR) (Civ) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Dina Management Limited v County Government of Mombasa & 5 others | [2022] KESC 24 (KLR) | null | 1.
Upon perusing the Notice of Motion taken out by the Petitioner/Applicant on 21st October, 2021 and filed on 3rd November, 2021, pursuant to Section 3 of the Supreme Court Act, Rule 17(1), (2) & (3) as well as Rule 36 of the Supreme Court Rules to be granted leave to file a supplementary record, namely, the stamped and signed Notice of Appeal; and
2.
Upon perusing the affidavit sworn by Dennis Nkarichia, an advocate in the law firm of Mohammed Muigai LLP, on 21st October, 2021 in support of the Motion; and
3.
Upon considering the written submissions by the Petitioner/Applicant dated 27th October, 2021 filed on 3rd November, 2021, wherein the Petitioner/Applicant explains that the Record of Appeal was filed without a signed and stamped copy of the Notice of Appeal; that the delay in filing the Notice of Appeal was occasioned by the delay of the Court of Appeal registry in supplying a signed and stamped copy of the said Notice of Appeal, although they had timeously electronically filed it on 17th June, 2021 in accordance with the Covid-19 Practice Directions on Electronic Case Management; and that the Petitioner/Applicant had made follow up with Court Registry without luck; and
4.
Noting that the 1st Respondent in its relying affidavit and written submissions of 2nd November, 2022, is opposed to the application urging that the Petitioner/Applicant has not invoked Rule 15(2) to seek extension of time to file a Notice of Appeal as they ought to have; that it was the duty of the Petitioner/Applicant to scan and forward duly stamped and signed copies of the Notice of Appeal but failed to do so; that the Petitioner/Applicant has not provided evidence to show that the unsigned Notice of Appeal was lodged at the Court of Appeal registry; further that the Notice of Appeal on record was served outside the seven days of lodgement contrary to Rule 37, which issue has been raised by the 1st Respondent as a ground of objection to the appeal; and that, as a result, there is no valid Notice of Appeal; and
5.
Further noting that the 2nd to 6th Respondents in their written submissions dated 9th December, 2021 filed on 10th of December, 2021, are not opposed to this application urging that the Notice of Appeal is an integral document of the Record of Appeal, that it is mandatory for a party intending to file an appeal to file one within 14 days of the date of the judgment appealed against; that the Petitioner/Applicant, having complied by electronically filing the notice within time, the delay in filing a stamped Notice of Appeal was not fatal; and that, in any case, the delay was occasioned by the Court of Appeal registry and not the Petitioner/Applicant; | We now therefore opine as follows:
6.
Having noted that the impugned Judgment was rendered on 4th June, 2021, the applicant proceeded to electronically file its Notice of Appeal on 17th June, 2021, within the time limited by Rule 36(1) of the Supreme Court Rules; and that subsequent to this, the Record of Appeal was duly instituted on 19th July, 2021, again within 30 days of filing the Notice of Appeal as prescribed in Rule 38; and
7.
Acknowledging that by the provisions of Rule 12(1) of the Supreme Court Rules, pleadings and any other document filed in the Court must be in both printed and electronic form, as explained in the case of Kenya Hotel Properties Limited v. Attorney General & 5 others; Application No. 2 of 2021 (E004 of 2021); [2021] eKLR; and
8.
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 17th June, 2021 which was the same day that the Notice of Appeal was filed.
9.
Because the award of costs is discretionary as the 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.
10.
In the circumstances, we allow this application and make the following orders;
a
a. The Application dated 21st October, 2021, and filed on the 3rd November, 2021 is hereby allowed.
b.
There shall be no orders as to costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/24/eng@2022-05-19 |
Motion 17 (E025) of 2021 | Gitamaiyu Trading Co. Ltd v Nyakinyua Mugumo Kiambaa Co. Ltd & 10 others (Motion 17 (E025) of 2021) [2022] KESC 14 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 19 May 2022 | 2,022 | Nairobi | Civil | Gitamaiyu Trading Co. Ltd v Nyakinyua Mugumo Kiambaa Co. Ltd & 10 others | [2022] KESC 14 (KLR) | null | 1.
Upon perusing the Originating Motion application dated 16th December 2021 and filed on 20th December 2021 by the Applicant, pursuant to Article 163(4)(b) of the Constitution, sections 15, 16 and 17 of the Supreme Court Act, Rule 33 of the Supreme Court Rules, 2012 (sic) and any other enabling provisions of the law seeking to review the refusal by the Court of Appeal (Karanja, Okwengu and Kantai, JJA) to certify that the intended appeal raises matters of general public importance;
2.
Upon perusing the affidavit sworn on 16th December 2021 by Joseph Kamau Kiburu, a director of the applicant, in support of the motion and the grounds on the face of the application: that the intended appeal involves matters of general public importance and that a substantial miscarriage of justice may occur unless the intended appeal is heard;
3.
Upon considering the applicant’s written submissions filed on 20th December 2021 in which, guided by the provisions of Article 163(4)(b) of the Constitution and the principles set out in Hermanus Phillipus Steyn v Giovanni Gnecchi – Ruscone SC Application No. 4 of 2012 [2013]eKLR, the applicant avers that the intended appeal to this Court raises matters of general public importance and in particular on the following three issues:
a.
The upholding by the Court of Appeal that the suit premises was agricultural land in the absence of any evidence transcends the present litigants. That courts should not proceed on the assumption that all property within the general vicinity of Kiambu is agricultural land requiring Land Control Board consent to validate the agreement.
b.
Whether the owner of land can move the registrar to remove a caution without involving the person who procured the registration of the caution. In this case, the Court of Appeal held that simply because Fanros Limited applied for removal of caveat, and on the assumption that the applicant did not have any enforceable right to the suit premises, its removal was proper in law.
c.
Having the backing of a “powerful politician” who managed to get a waiver on stamp duty and consent, can the Registrar of Lands register a deed of Transfer of Land and issue a title when the transfer deed is not executed by the Vendor? That by upholding the said transfer, the Court of Appeal has set a dangerous precedent that can be applied to bind all the courts below it to uphold registration or even compel Registrars of Lands to register deeds that are not executed by the vendor or land owner. That this transcends the litigants and has a direct bearing on future land transactions by the general public and future interpretation of section 3(3) of the Law of Contract Act.
4.
And Upon taking into Consideration the directions issued by the Hon. Deputy Registrar of the Court on 28th December 2021, the applicant was to serve the respondents with the application and the written submissions upon which the respondents were to file their written submissions within seven days. The filing was to be done both electronically and by way of hard copies.
5.
Upon noting that no submissions had been filed by any of the respondents whether physically or electronically;
6.
We have considered the background of the case as stated by the applicant, which is a public limited company with more than 1,000 members and that it purchased 16 parcels of land comprised in LR No.89/4-9 and 11-20 measuring approximately 512 acres from M/s Fanros Limited in 1977, paid the purchase price and took possession of the suit premises. In 1979, the applicant was evicted by the provincial administration and embarked on a process to recover the said premises and obtain a transfer in its favour. It is during the intervening period that the 1st respondent, Nyakinyua Mugumo Kiambaa Co. Ltd, obtained a transfer to itself. That the applicant filed suit in the High Court being HCCC No.4496 of 1994 seeking declarations that it was the legal owner of the property either as purchaser or by adverse possession; that the transfer to the 1st respondent was null and void on account of fraud, injunction and general damages. The suit was dismissed by Muchelule J, in his judgment delivered on 13/2/2012. The applicant lodged an appeal being Civil Appeal No.84 of 2013. By a judgment delivered on 8/2/2019 (Ouko(P), Makhandia & Musinga JJA) the appeal was dismissed. The applicant’s application seeking the grant of certification and leave to appeal to this Court was dismissed prompting the present application. | 7.
In the above context, we opine as follows:
a.
The learned Judges of Appeal thoroughly considered the judgment by the Court of Appeal in relation to the applicant’s grievance against the decision by the High Court. The onus remains on the applicant to satisfy that the Court of Appeal did not adhere to the principles set out in Hermanus Phillipus Steyn case which both the applicant and the Court of Appeal rightly appreciated was applicable to the matter at hand.
b.
The Court of Appeal in its ruling addressed itself to the three issues raised by the applicant. On the first issue relating to the assumption on the land being agricultural land, we note that the appellate court, rightly so, noted that the issue is specific to the land in question and does not transcend beyond the specific litigants. Whether a given parcel of land is agricultural or not is in our view a matter of fact that can be addressed as and when the situation arises and cannot be addressed by the Supreme Court generally. The applicant has not placed any specific matter that calls for this Court’s intervention beyond stating that the court may proceed on assumptions.
c.
On the second issue relating to the removal of the caveat, the Court of Appeal in its impugned ruling found that it is a mundane issue spelt out in the relevant laws. This finding resonates well with our position. The applicant had the option of challenging the removal of caveat as he did before the Court. The mere fact that the applicant disagrees with the decision of the Court does not, in and of itself warrant the appeal to this Court in the proposed manner.
d.
As for the third issue relating to the role of a “powerful politician” in obtaining a waiver of consent of the Land Control Board and the indenture not being signed, the appellate court found that this was peculiar to the specific transaction at hand.
e.
Beyond the context of the three issues framed and addressed above, the applicant did not buttress the argument that there will be a miscarriage of justice. The applicant merely stated that it is a public limited company with more than 1,000 members. The number of members of the applicant, does not in and of itself satisfy the public interest threshold as public interest must be demonstrated in the effect of the decision beyond the applicant and the respondents. In Town Council of Awendo v Nelson Oduor Onyango & 13 others SC Misc. Application No.49 of 2014 [2015]eKLR we stated that:
“[32].
A due consideration and determination of these issues traverses the interests of the respondents, and affects third persons, as well as the public at large. It has been demonstrated that the resolution of the questions of law raised in this case will have a significant bearing on the public interest. These questions of law arose in other superior Courts, and were the subject of those Courts’ determination and, as such, beckon the exercise of this Court’s final, appellate jurisdiction
f.
There is no compelling reason to disturb the finding by the appellate court that the identified issues do not raise any novel issues that have not been determined before nor is there in existence conflicting decisions arising from similar situations which require this Court to address
8.
Consequently, having made the foregoing determinations, we make the following orders:
i.
The Originating Motion Application dated 16th December 2021 and filed on 20th December 2021 is hereby disallowed for lack of merit.
ii.
There shall be no order as to costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/14/eng@2022-05-19 |
Petition 9 (E011) of 2021 | Kangara v Mayaka; Initiative for Strategic Litigation In Africa (Amicus Curiae) ((Being an application by Initiative for Strategic Litigation to be enjoined as Amicus Curiae)) (Petition 9 (E011) of 2021) [2022] KESC 15 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, NS Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Kangara v Mayaka; Initiative for Strategic Litigation In Africa | [2022] KESC 15 (KLR) | null | 1.
Upon perusing the Notice of Motion application by the Applicant, Initiative for Strategic Litigation in Africa dated 17th January, 2022 brought under the provisions of Rule 19, 31 and 32 of the Supreme Court Rules, 2020 and the supporting affidavit sworn by the applicant seeking leave of the Court to appear as amicus curiae in the appeal and to present written and oral submissions by way of an amicus brief and;
2.
Upon considering the applicant’s grounds in support of its application, its intended amicus brief and the applicant’s written submissions dated 17th January, 2022 and filed on 20th January, 2022 where the applicant submits that it has the relevant expertise being a regional non-government organization which works within the African human rights system to advance the rights of women during and at the dissolution of marriage and also running a program that focuses the development of family law and contends that they intend to assist the Court in determining the legal basis for the protection of cohabitation relationships and the division of property upon dissolution of family forming unions and particularly in cohabitation relationships, unrecognized marriages or other unregistered unions that will aid the Court in:
a.
Appreciating the Kenyan legal framework for the recognition of cohabiting relationship;
b.
Determining the basis of the legal protection that the State should accord to all families, include those arising out of cohabitation or otherwise unrecognised marriages. This would protect families despite the manner in which they are formed and affirm that members of such families have rights during and at dissolution;
c.
Demonstrate the international human rights standards and comparative perspectives of the state to extend the principle of equitable sharing of property to property acquired in intimate relationships;
d.
Highlight the application of the right to equality and the gendered impact of division of property in different intimate relationships and;
3.
Upon further arguments by the applicant that this Court under Rule 19(1) of the Supreme Court Rules, 2020 allows for participation of amicus curiae in proceedings if the applicant’s expertise is proven, demonstrated the independence and impartiality of the person and public interest and pointed out the relevant fundamental principles as was determined in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Sup. Ct. Petition No.12 of 2013; [2014] eKLR (Mumo Matemu Case);
4.
And further considering the submissions by the respondent opposing the joinder of the applicant as amicus by submitting that this Court should not exercise its inherent discretionary power to admit the amicus for failure to meet the principles in Mumo Matemu as the intended amicus has failed to demonstrate independence and impartiality and that should the intended amicus be admitted as a friend of the court, their involvement should be confined to the issues before the Court and the material aiding the Court in its determination as was held in Francis Karioki Muruatetu & another v. Republic & 5 others, Sup Ct. Petition Nos. 15 and 16 of 2015; [2016] eKLR (Muruatetu Case) to prevent the intended amicus from overshadowing the participation of the main parties and; | 5.
In the above context, We now opine as follows:
i.
An applicant seeking joinder as amicus has to satisfy this Court that they have satisfied the legal requirements for joinder. The relevant law is Rulen 19 of the Supreme Court Rules, 2020. The said Rule 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.”
ii.
The guiding principles applicable in determining an application to be enjoined in that capacity were settled in Mumo Matemu where the Court, pronounced itself on its inherent power to admit amicus curiae and emphasized that for one to be admitted as amicus curiae, one has to demonstrate their expertise in the subject matter before Court and how they will enrich and help the Court to reach a just determination with the Court giving the guiding principles for admission as amicus curiae as:
“
(i) An amicus brief should be limited to legal arguments.
“(ii) The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
“(iii) An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may, therefore, and on a case-by-case basis, reject amicus briefs that do not comply with this principle.
“(iv) An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law…
(vi) Where, in adversarial proceedings, parties allege that a proposed amicus curiae is biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective parties to be heard on the issue...”
We also affirmed the above guiding principles in Muruatetu.
iii.
The role of amicus in Court is to aid the Court to arrive at a determination based on the law. We take note that the applicant wishes to address the legal framework for the recognition of cohabiting relationships by providing a comparative analysis of other jurisdictions case law and statutes on the steps taken to recognize and protect the interests of parties in cohabiting relationships. There is no doubt that the applicant has substantial knowledge and experience in family law matters. The essence of the dispute turns around property acquired during cohabitation in a marriage not recognized by law and whether proceedings on the sharing of property acquired under such unions may be brought under the Married Women’s Property Act. We perceive from the applicant’s amicus brief that its submissions will be of valuable assistance to this Court in addressing this issue and the applicant has demonstrated expertise in its field relevant to this Court. We therefore find that the Applicant has met the criteria set out in Mumo Matemu on joinder of amicus curiae.
6.
Having therefore considered the application, we make the following Orders:
a.
The application dated 17th January 2022 and lodged 20th January, 2022 on the intended Amicus Curiae is hereby allowed.
b.
The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
c.
Parties shall bear their costs.
7.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/15/eng@2022-05-19 |
Petition E017 of 2021 | Kanjama v Attorney General & 82 others (Petition E017 of 2021) [2022] KESC 11 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 19 May 2022 | 2,022 | Nairobi | Civil | Kanjama v Attorney General & 82 others | [2022] KESC 11 (KLR) | null | [1]
UPON perusing the Notice of Motion dated 2nd February, 2022 brought under Articles 3(1), 22, 159(2), 163, 258(2) & 260 of the Constitution, Section 3 (e) and 11 of the Supreme Court Act and Rule 3(2), 6(2), 32, 40(3) & 55 of the Supreme Court Rules seeking an order of review and setting aside the decision of the Deputy Registrar in his letter dated 13th January, 2021 declining to accept the Applicant’s notice of appeal against the Judgment delivered by the Court of Appeal in Civil Appeals No. E291, E292, E293 and E294 of 2021; a determination of substantial issues of law and procedure on admission of parties to an appeal and that this application be heard prior to the determination of Petitions No. 11, 12 and 13 of 2021 in the Hon. Attorney General v David Ndii & others; and
[2]
UPON reading the applicant’s grounds in support of his application, his supporting affidavit sworn on 2nd February, 2022 and the applicant’s written submissions dated 10th February, 2022 where he contends that Rule 6(1) of the Supreme Court Rules allows a party aggrieved by the decision of the Deputy Registrar to seek a review of the decision; that his application raises fundamental issues for consideration by this Court on the scope of locus standi for litigants to lodge causes on constitutional matters and address the question of who can appeal to the Supreme Court; a determination of the question on the effective date of filing an appeal on the e-filing platform and physical filing of the appeal and; on when the Deputy Registrar of the Court communicates the reasons and decisions for rejecting an appeal to a party; | [3]
AND having considered the application, I FIND as follows:
a.
The notice of appeal upon which the applicant seeks to have filed challenges the Judgment and Orders of the Court of Appeal delivered on 20th August, 2021. Three appeals challenging this Judgment were filed before this Court being The Hon. Attorney General v. David Ndii & Others, Petitions No. 11, 12 and 13 of 2021 which were heard and Judgment delivered on 31st March, 2022. There is therefore no proper notice of appeal that can be filed challenging the consolidated appeal after delivery of judgment in the petition. The application has therefore been overtaken by events.
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.
c.
The upshot of my finding is that the application before me has no merit on substance and in any event, has been overtaken by events.
[4]
I therefore make the following Orders:
i.
The Notice of Motion dated 2nd February, 2022 is hereby dismissed.
ii.
Each party shall bear their own costs.
[5]
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/11/eng@2022-05-19 |
Petition 34 of 2019 | Kimani & 2 others v Attorney General (Petition 34 of 2019) [2022] KESC 12 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Kimani & 2 others v Attorney General | [2022] KESC 12 (KLR) | null | Brief facts
The applicants filed the instant application seeking leave of the court to file a supplementary record of appeal in order to include a certified copy of the order of dismissal of their appeal at the Court of Appeal; consolidation of their appeal, being Petition No. 34 of 2019 with Petition No. 26 of 2019 and Petition No. 35 of 2019 and designation of Petition No. 26 of 2019 as the lead file.
It was the applicant’s case that notwithstanding the order of dismissal being issued on December 16, 2021, a certified copy of the order was served upon the advocate on January 21, 2022. Further, that the three appeals sought to be consolidated were not only founded on alleged violation of constitutional rights that occurred at ‘Freedom Corner’ and All Saints Cathedral Church between March 3, 1992 and January 19, 1993 but were also decided by the same judge in the High Court and Bench of the Court of Appeal and raised similar issues. | Held
In line with the principles set out by the court in Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014; [2014] eKLR, the applicants had provided a plausible and reasonable explanation for the omission of the certified order in question and the delay in filing the supplementary record of appeal.
Taking into account that the certified order was served upon the applicants’ advocates on January 21, 2022 and that the motion at hand was filed on February 1, 2022, about nine days thereafter, the delay could not be termed as inordinate. Equally, the certified order sought to be introduced through the supplementary record of appeal was not prejudicial to the respondent.
Petition Nos. 26, 34 and 35 of 2019 before the court arose from the same set of circumstances, raised similar issues and sought similar orders. Further, they met the threshold for consolidation.
Application allowed; costs of the application to abide by the outcome of the consolidated appeal.
Orders
The applicants were granted leave to file a supplementary record of appeal to include a certified copy of the order of dismissal issued on December 16, 2021 by the Court of Appeal within seven days of the ruling.
Petition No. 34 of 2019, Priscilla Mwara Kimani & 2 Others v Attorney General was consolidated with Petition No. 26 of 2019, Monica Wangu Wamwere v Attorney General, and Petition No. 35 of 2019, Michael Maina Kamami & Another v Attorney General. Petition No. 26 of 2019 being the first in time would be the lead file. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/12/eng@2022-05-19 |
Application 16 (E026) of 2021 | Maulo & another v Oduori (Application 16 (E026) of 2021) [2022] KESC 22 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, N Ndungu, I Lenaola, SC Wanjala, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Maulo & another v Oduori | [2022] KESC 22 (KLR) | null | Brief facts
The applicants sought for the Supreme Court to review the Court of Appeal’s decision declining to grant certification of leave against its judgment. The subject matter of the case was adverse possession. The main grievance by the applicants was that the Court of Appeal in its judgment ignored crucial evidence and facts on record thereby arriving at a decision that would amount to conflicting principles of adverse possession | Held
The application that sought leave to file the application excluding the certified copies of the judgment and ruling of the Court of Appeal was not necessary as there was no provision under the Supreme Court Act or the Supreme Court Rules, 2020 that mandated the inclusion of such documents in an application to review the Court of Appeal’s decision declining to grant certification of leave. Rule 40 of the Supreme Court Rules provided for the contents of a record of appeal from the Court of Appeal under which the Court could on the application of any party direct certain documents to be excluded from the record.
The applicants had fallen short of making any arguments beyond the specific evidence to demonstrate how the questions framed as involving general public importance transcended the instant litigation. Their argument was replete with how the superior courts ignored certain evidence.
The Supreme Court’s jurisdiction under article 163(4)(b) of the Constitution went beyond resolving factual contestations between the parties. In any event, the principles of adverse possession were settled and the applicants had not demonstrated any inconsistency of findings by the Court of Appeal on the doctrine.
The Supreme Court was not convinced that there was any miscarriage of justice or violation of any constitutional provisions as alleged by the applicants or at all. The applicants were merely in disagreement with the ultimate court determination and that did not suffice to invoke the Supreme Court’s jurisdiction or amount to a miscarriage of justice. The applicants failed to exhibit that they met the threshold for certification of the intended appeal which raised a matter of general public importance.
Application disallowed.
Orders
No order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/22/eng@2022-05-19 |
Application EO19 of 2021 | 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 (Application EO19 of 2021) [2022] KESC 19 (KLR) (Civ) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | 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 | [2022] KESC 19 (KLR) | null | 1.
Upon perusing this application brought pursuant to Article 159(2)(d) of the Constitution, Section 3, (d), (e), 14 (5) and 21 (1) (a), (2) (4) 0f the Supreme Court Act and Rule 28(5) and (6) of the Supreme Court Rules 2020, and supported by the annexed affidavit of Mbugua Mureithi, the Applicant’s Advocate sworn on 9th September, 2021, for orders that:
i.
this Court be pleased to review, clarify, rectify and correct the determination at paragraph 81 of the judgment of this Court delivered on 16th July, 2021 (as amended by Court suo moto to correct Order (vi) to read Kshs. 100,000 instead of Kshs.100,0000) to include an order for interest on damages awarded to the applicants/petitioners while upholding and affirming the judgment of the High Court in High Court Petition No 264 of 2013 (as consolidated with Petition No. 274 of 2013);
ii.
In the alternative to prayer (1) above, the Honourable Court be pleased to invoke its inherent power and deem this application as the application filed by the Petitioners on 30th July 2021 in Supreme Court Petition No. 2 of 2018 under section 21(4) of the Supreme Court Act and Rule 28 (5) and (6) of the Supreme Court Rules, 2020 seeking orders for correction and/ or rectification of the judgment by including an order for interest on damages after this Court upheld and affirmed judgment of the High Court;
2.
Uponconsidering the applicants’ submissions to the effect that on 16th July, 2021, this Court delivered judgment explicitly affirming the High Court award of damages to the applicants, after setting aside the judgment of the Court of Appeal, but was silent on the ancillary orders of interest on damages as awarded by the High Court; that from the drift and thrust of the judgment, this Court did not intend to deny the applicants the award of interest; that the omission was inadvertent, an apparent error on the face of the judgment or a slip by the Court and; that had the Court intended not to award interest, it would have explicitly stated so and explained why; and that the review sought in the instant application is minor, as it does not seek to re-litigate the concluded dispute or to alter the substance of the judgment of this Court, but merely to align it with that of the High Court in order to realize the true intention of the Court; and
3.
Furthermore,considering the applicants’ averment that on 30th July, 2021, they filed an application under Section 21 (4) of the Supreme Court Act and Rule 28(5) and (6) of the Supreme Court Rules 2020 to include an order for interest on damages but despite payment of filing fees, the payment has not been acknowledged on the Judiciary portal necessitating the filing of the instant application; and
4.
Noting that the 1st Respondent is opposed to the application, and has placed on record a Replying Affidavit sworn by Paul K. Chemngorem and written submissions, in which they maintain that, while Section 21 (4) of the Supreme Court Act confers upon the Court the limited power to correct a clerical error or slip in any of its judgments, rulings or orders once delivered, this power is subject to the following conditions; that the correction can only be sought within fourteen days of delivery of judgment, ruling or order; that the relevant parties have been notified, and, that the substance of review must relate to any oversight, errors of clerical computation, or errors apparent on the face of the judgment, ruling or order, with the aim of giving effect to the intention of the Court; and
5.
Notingfurther that in view of the foregoing, an omission to award interest on damages does not meet the threshold laid by Section 21(4); that an award for interest is not apparent, but is in fact a substantive issue which has to be computed, varied and involves discretionary consideration and; that the applicants do not deserve to be awarded any interest on the damages as the 1st respondent cannot be said to have kept them out of money owed to them or to have deprived them of the funds; that an award on interest which has accrued for eight years would soar the decretal sum disproportionately and would adversely burden the innocent children who attend the 1st respondent and could prejudice the quality of education offered to them; and
6.
Further Noting that the 2nd, 3rd and 4th Respondents are also opposed to the application and contend that, had the Court intended to award interest on the award to the applicants, it would have done so while suo moto amending the Order on the 19th of July, 2021, and, that by failing to do so, was a manifestation that the Court did not find reason to amend the orders to grant interest. They urge that the applicants do not meet the criteria in the Outa Case as they have neither demonstrated an error or mistake that is apparent on the face of the judgment, neither has the applicant demonstrated that the Court was not competent or that the judgment was obtained by fraud or deceit.
| 7.
Consideringthat this application has been brought pursuant to Article 159(2)(d) of the Constitution which requires courts to administer justice without undue regard to procedural technicalities, Section 14 (5) on the inherent power of the Court to make such orders as may be necessary for the ends of justice to be met or to prevent abuse of the due process of the Court, Section 21 (4) on the general powers of the Court to correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order, Rule 28 (6) of the Supreme Court Rules, 2020, made pursuant to Section 21(4) and sub-rule (5) which deals with the review of any decision of the Court and with formal correction of a judgment, ruling or order; and
8.
Upon considering the circumstances of this case, looking at the grievance, the correct provision should be Section 21 (4) of the Supreme Court Act which provides that:
“
Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court.” [our emphasis]; and
9.
Notingthat this section embodies the “Slip Rule”, which allows the Court to correct errors that are apparent on the face of a judgment, ruling, or order of the Court. Such errors must be obvious, the correction of which does not confer upon the Court any jurisdiction or powers to sit on appeal over its own judgment, ruling or order or, to review such judgment, ruling or order as to substantially alter it; and
10.
Acknowledgingthat this Court can correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the judgment, ruling or order so as to give effect to its intention in terms of its decision in Fredrick Otieno Outa v. Jared Odoyo Okello, SC Petition No 6 of 2014;[2017] eKLR, namely, to steer a judgment, ruling, or order “towards logical, or clerical, perfection”, pursuant to Rule 28(5) of the Supreme Court Rules; and
11.
Therefore,to succeed in an application for the correction of errors, the application must be brought within fourteen days of delivery of the judgment, ruling or order, whether it is the Court itself that wishes to do so on its own motion or upon being moved by a party. Secondly, the applicant or the Court must give notice to the other parties before seeking to make the correction. Thirdly, the error to be corrected must relate to an oversight or clerical error of computation or other error. Finally, the error must be apparent on the judgment, ruling or order in question; and
12.
Satisfiedfrom the uncontroverted averment by the applicants that they had made attempts to notify the Court of the omission in the order of interest on damages in the email correspondence sent to the Court on 22nd July, 2021, which the Court failed to acknowledge receipt of; and further that subsequently on 30th July, 2021, they also unsuccessfully filed an online application on the Judiciary portal seeking orders to correct and rectify the Judgment under Section 21(4) of the Supreme Court Act and Rule 28(5) and (6) of the Supreme Court Rules to include an order for interest on damages; and
13.
Bearing in mind that the present application dated 9th September, 2021 was brought 55 days after the date of judgment and 51 days after the correction of the same; and
14.
Cognizantof the fact that the applicants, having noted the omission made genuine attempts, within the time stipulated, to have the Court correct this error, but for failure by the Court to acknowledge receipt of the application; appreciating that the omission, regrettably was committed by the Court, and guided by the principles enunciated in our own decisions in Martin Wanderi & 106 others v. Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties), SC Application 39 of 2019; [2020] eKLR, and Outa (supra), where in the latter we explained that;
“
(91)
…Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do justice? Of course, litigation must come to an end. But should litigation come to an end, even in the face of an absurdity? The Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice. The Constitution from which this Court, and indeed all Courts in the land, derive their legitimacy decrees that we must do justice to all.”; and
15.
Further, we are guided by Rule 3(5) of this Court Rules which provides
that:
“
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”; and
16.
IN the end, we find that there is exceptional circumstance which requires that we invoke this Court’s inherent powers to review the Judgment in the relevant part as prayed, in order to meet the ends of justice and to give effect to the intention of the Judgment in accordance with Section 21(4) of the Supreme Court Act as read with Rule 28(5) of the Supreme Court Rules.
17.
Consequent, upon our findings above, we review the order to include interest on damages awarded in (v) and (vi) in the Judgment from the date of judgment of the High Court until payment in full.
18.
Accordingly, we make the following Orders:
i.
The Notice of Motion dated 9th September, 2021 and filed on 21st October, 2021, is hereby allowed.
ii.
Consequently, the Judgment dated 16th July, 2021 and amended on 19th July, 2021 is hereby reviewed to include, Order No. vii which shall now read as follows:
“vii. The petitioners shall also have interest on damages in (v) and (vi) above from the date of judgment of the High Court until payment in full.”
iii.
Each party to bear its own costs of this Application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/19/eng@2022-05-19 |
Petition 4 of 2020 | Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR) (19 May 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya | [2022] KESC 16 (KLR) | null | Brief facts
The petition was an appeal against the decision of the Tribunal appointed to investigate the conduct of Justice Martin Mati Muya to recommend the removal of the judge from office. The decision of the tribunal was based on how the judge handled Alfred Kipkorir Mutai & Kipsigis Stores Limited v NIC Bank Limited (HCCC No. 4 of 2016) at the High Court at Bomet.
The case before the High Court centered around hire-purchase agreements between the plaintiffs in the suit (the borrowers) and the NIC Bank (the bank). In the agreements, the bank advanced loan facilities to the former to purchase several motor vehicles. When there was default in the repayment, the bank threatened to repossess all the subject motor vehicles, prompting the borrowers to institute HCCC No. 4 of 2016 to stop the bank by an order of permanent injunction from repossessing the motor vehicles and also to declare that they were not indebted to the bank, claiming that they had fully settled the loan.
An application in which the plaintiffs sought temporary orders of injunction to restrain the bank from seizing, repossessing, advertising for sale, and/or selling some 26 commercial vehicles was also filed, the subject of the hire-purchase agreement. The application was granted ex parte on the same day. The parties had agreed to determine the applications by way of written submissions, but on the date of highlighting the submissions, neither party had filed any submissions. As a result, the court vacated the ex parte orders. Eight days later, the plaintiffs having learned of the vacation of the interim orders, the borrowers immediately filed an application for setting aside the proceedings that set aside the ex parte orders and sought reinstatement of the interim orders and maintenance of the status quo.
The petitioner gave orders to maintain the status quo and reinstated the interim orders. The petitioner, however, did not give reasons for his decision despite having given dates to issue the reasons. He had deferred the matter several times. The court issued reasons five months from the date of the ruling. During the delay, the bank was not able to file due to the lack of a ruling on which they would base their grounds. Subsequently, the bank claimed to have lost around seventeen million Kenya shillings as a result of the delay.
Aggrieved, the bank wrote a letter of complaint to the Chief Justice and copied it to the Judicial Service Commission (JSC), in which they sought the intervention of the Chief Justice by urging the Chief Justice to call for the file, to review the same, and to take the requisite administrative action to remedy the situation.
The Chief Justice forwarded both letters and the reply he had received from the petitioner to the JSC. The JSC, in turn, constituted a committee to consider the complaints. The committee recommended to the JSC to petition the President to appoint a tribunal to further investigate the conduct of the judge. The Tribunal concluded that the delay of five months was inordinate and constituted gross misconduct and recommended the removal of the judge from office. Aggrieved, the petitioner filed the instant appeal. | H. Final Disposition of the Court
262.
In the order the arguments were presented, we dispose of the six grounds by declaring as follows;
a)
On the first ground, we reverse the Tribunal’s decision that the delay in giving reasons was inordinate and amounted to gross misconduct.
b)
We agree that the unavailability of the court file before the Commission and the Tribunal was prejudicial to thepetitioner and amounted to a violation of his right to fair administrative action and hearing.
c)
Though the Tribunal has wide powers in the process of investigating any of the grounds for removal of a judge, it acted in excess of its mandate, in specific situations when it considered issues pending determination in the High Court or introducing matters that were not before the petitioner when he made the decision in question.
d)
There was no proof that the Bank suffered loss or prejudice as a result of the petitioner’s decision.
e)
The Tribunal applied the correct standard and burden of proof, and there are no instances where the burden was unfairly shifted to the petitioner.
f)
The letter initiating the complaint was, by the terms of article 168(3) of the Constitution, a valid petition to the Commission
H. Orders
263.
Arising from the above, the consequential orders to be made are that:
a)
The petition of Appeal dated March 25, 2020 is allowed.
b)
Save for the correct finding that the letter of complaint was a petition, the Tribunal’s finding in respect of all the other grounds, set out above, are quashed and set aside.
c)
We declare that the petitioner’s conduct did not amount to gross misconduct in terms ofarticle 168(1)(e) of the Constitution.
d)
The Tribunal’s recommendation to the President to remove the petitioner from office under article 168(7)(b) of the Constitution is likewise set aside.
e)
We make no orders as to costs.
264.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/16/eng@2022-05-19 |
Application 1 (E002) of 2022 | Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others (Application 1 (E002) of 2022) [2022] KESC 18 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others | [2022] KESC 18 (KLR) | null | Brief facts
The applicants filed the instant application seeking stay of execution of orders 1, 3 and 9 of the judgement of the Court of Appeal at Nairobi in Civil Appeal No. E084 of 2021, National Assembly & others v the Senate of Kenya & others pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021, Senate of Kenya & others v National Assembly & others. The applicants submitted that unless the orders of stay were granted, the appeal would be rendered nugatory. The applicants argued that they had an arguable appeal to warrant the grant of stay orders. | [6]
Upon Considering orders (i) to (vi) both inclusive made by the High Court in Nairobi HC Petition No 284 of 2019 as consolidated with Nairobi HC Petition No 353 of 2019 which read inter alia:
“
i.
A declaration be and is hereby issued that pursuant to article 110(3) of the Constitution, a Speaker of a House of Parliament must first seek the concurrence of the Speaker of the other House of Parliament, as to whether a bill is one that concerns counties, and if it is, whether it is a special or an ordinary bill, before the bill can be introduced for consideration in the originating House.
ii.
A declaration be and is hereby issued that it is mandatory and a condition precedent for any bill that is published by either House to be subjected to a concurrence process to determine in terms of article 110 (3) of the Constitution whether the Bill is special or an ordinary bill and that such determination is not dependent on “a question arising” as to whether the Bill is one that concerns Counties;
iii.
A declaration be and is hereby issued that the provisions of article 110 (3) of the Constitution are couched in mandatory terms and is a condition precedent before any House of Parliament can consider a bill;
iv.
A declaration be and is hereby issued that pursuant to article 110(3) of the Constitution, one Speaker cannot unilaterally make a decision as to whether the Bill does or does not concern counties or whether a question as to whether the Bill is one that concerns counties does or does not arise;
v.
An order be and is hereby issued ordering the immediate cessation of consideration of all bills that are pending before either House, and for which joint concurrence by the Speakers of both Houses as to whether the bills concern counties, has not been demonstrated to allow for such Bills to be subjected to the mandatory joint concurrence process contemplated under article 110(3) of the Constitution.”
[7]
Furthernoting that no party has responded or challenged the application before us despite the pre-trial directions before the Deputy Registrar on January 14, 2022 and March 7, 2022; and
[8]
Considering this court’s finding on its jurisdiction to grant orders of stay of execution of decrees issued by superior courts in the case of Board of Governors, Moi High School, Kabarak & another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR(Malcom Bell Case) and noting 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 Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014 ; [2014] eKLR ( Gatirau Munya Case); and
[9]
Having considered the prayers sought, we find that SC Petition No 19(E027) of 2021, which is already before us is arguable and that the instant application meets the principles set out by this court in the Malcom Bell Case and Gatirau Munya case.
[10]
For the reasons aforesaid, we now make the following orders:
Orders:
a.
Pending hearing and determination of Supreme Court Petition No 19(E027) of 2021; Senate of Kenya & others v National Assembly & others, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No E084/2021; National Assembly another & Senate of Kenya & others.
b.
The costs of this application shall abide the court’s decision in the appeal.
[11]
It is so, ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/18/eng@2022-05-19 |
Petition 19(E027) of 2021 | Senate Of The Republic Of Kenya & 3 others v Speaker of The National Assembly Of The Republic Of Kenya & 10 others; Fund Board (Interested Party) (Petition 19(E027) of 2021) [2022] KESC 20 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Senate Of The Republic Of Kenya & 3 others v Speaker of The National Assembly Of The Republic Of Kenya & 10 others; Fund Board | [2022] KESC 20 (KLR) | null | 1.
Uponperusing the Notice of Motion application dated 31st January 2022, filed under Article 159 of the Constitution, Sections 3, 23 and 24 of the Supreme Court Act and Rules 24 and 32 of the Supreme Court Rules, 2012 where the applicant seeks to be admitted as an interested party to the appeal, and to respond to the application for stay dated 11th January 2022 (application for stay); and
2.
Uponreading the Affidavit in support of Simon Ndweka, the Corporation Secretary of the Applicant, sworn on 31st January 2022; and
3.
Notingthe grounds adduced in support of the application, and the submissions made by the applicant in support of the orders for admission as interested party namely, that the applicant has an identifiable stake in the appeal before us; that the orders sought in the application for stay , if granted, will expose the intended interested party to constitutional challenges to its continued operations; the application for stay will affect the passage of the National Government Constituencies Development Fund (Amendment) Bill, 2021 that is pending before the National Assembly; that the applicant was an active party at the High Court and at the Court of Appeal, only that their appeal has not finalized as those of the appellants herein; that it has a stake in the proceedings herein as its outcome will affect its operations; that there are statutory functions that are being carried out as part of day to day activities in execution of their mandate that will be affected without their input in the appeal; and that the applicant will make submissions related to its constitutive Act; and
4.
Upon Considering the submissions by the 1st and 2nd respondents where they submit that the applicant has identified its interest noting that the outcome of the appeal would affect the Bill pending before the National Assembly; that the applicant should stand assured that the 1st and 2nd respondents will safeguard its mandate to pass legislation within its constitutional limits; that the Bill does not affect counties, that it is squarely within the mandate of the National Assembly and that the 1st and 2nd respondents will articulate that position before us; that the applicant has failed to set out the grounds or submissions it seeks to make and their relevance to the proceedings; and
5.
Noting the submissions by the 3rd respondent urging that the applicant was never a party to the proceedings before the superior courts; that that application is bad in law as it is premised on Rule 24 and 32, 2012 which were revoked by Rule 67 of the Supreme Court Rules, 2020; that the application has not met the threshold set under Rule 24 of the Supreme Court Rules, 2020 and the decisions of this Court; that the applicant has failed to demonstrate its stake in the proceedings before the Supreme Court; that the applicant has failed to disclose the alleged constitutional challenges in a precise manner to warrant its joinder its to the case; that the applicant has not explained its relevance to the proceedings and how it will be useful to the Court in making its determination on the issues raised; and that the applicant has no identifiable stake in this suit that is proximate enough to occasion any prejudice to it because its rationale to be joined in the suit is insufficient; and
6.
Upon Considering the provisions of Section 23 of the Supreme Court Act, Rule 24 of the Supreme Court Rules, 2020, and the principles set out in this Court’s decisions in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No. 12 of 2013, [2014] eKLR (an application by the Law Society of Kenya); Francis Karioki Muruatetu & another v Republic & 5 others Petition No 15 of 2015 as consolidated with petition No. 16 of 2015 [2016] eKLR; and Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR; and
7.
Having perused High Court Petition No 284 & 353 of 2019(consolidated) Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR, and Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR) (Civ) (19 November 2021) (Judgment) and noting that, contrary to the applicant’s submissions, the applicant was never a party before the superior courts; and
8.
Consideringthat the applicant has failed to clearly identify its interest in the appeal, the case it intends to urge, and the prejudice if any, it will suffer if they are not admitted as interested party, by a unanimous decision of this Court, we find that the prayer to have the intended interested party/applicant enjoined as an interested party lacks merit and is consequently disallowed; and
9.
Further,noting that the intended interested party/applicant has also prayed and submitted that the they be allowed to respond to the application for stay; and
10.
Having considered the said prayer, we find that a party yet to be enjoined in a matter such as the present appeal, lacks the capacity to pray for interlocutory orders in it, and that the prayer is therefore disallowed. | 10.
For reasons aforesaid, we now make the following orders under Rule 24 of the Supreme Court Rules, 2020:
Orders:
a.
The Application dated 31st January 2022 and filed on 1st March 2022 seeking joinder of the National Government Constituencies Development Fund Board as Interested Parties to the Reference herein be and is hereby disallowed; and
b.
The applicant shall bear the costs of the 1st & 2nd and the 3rd respondents.
12.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/20/eng@2022-05-19 |
Petition 14 (E021) of 2021 | Sonko v Clerk, County Assembly of Nairobi City & 12 others (Petition 14 (E021) of 2021) [2022] KESC 17 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | Sonko v Clerk, County Assembly of Nairobi City & 12 others | [2022] KESC 17 (KLR) | null | Brief facts
The applicant filed an application to withdraw the appeal and all the parties consented to the withdrawal. The 11th respondent was unable to agree on costs which led to parties being directed to file submissions limited to the question of whether costs should be paid to the 8th respondent upon the withdrawal. The applicant submitted that the petition of appeal was withdrawn at the earliest opportunity and in good faith and any costs incurred thereafter were occasioned by the respondents’ demand for costs.
The applicant submitted that costs fell under the inherent powers of the court and that the issues raised in the appeal were constitutional in nature and a matter of public interest despite having filed it in his individual capacity thus he sought orders that each party bears its own costs. The 8th respondent contended that costs follow the event and that an order for withdrawal was subject to an order for costs to the respondent. The respondent further contended that the applicant filed the appeal in his personal capacity and that he stood to solely benefit from the outcome, hence he ought to shoulder the costs of the 8th respondent; | Held
The court had inherent jurisdiction to make orders on costs, with section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020 being instructive on that. The award of costs would normally be guided by the principle that costs followed the event: the effect being that the party who called forth the event by instituting suit, would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs.
The vital factor in setting the preference was the judiciously-exercised discretion of the court, accommodating the special circumstances of the case while being guided by the ends of justice. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also the motivations and conduct of the parties, prior to, during, and subsequent to the actual process of litigation.
Although there was eminent good sense in the basic rule of costs that costs followed the event, it was not an invariable rule and, indeed, the ultimate factor on award or non-award of costs was the judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
From the record, the petition was withdrawn before the respondents had filed any responses or substantive submissions to the appeal save for the 7th respondent who filed a notice of preliminary objection. The appeal, at the time of withdrawal, was not ripe for hearing. While applying the principle that costs normally followed the event, the event to which costs would follow had not materialized. The applicant’s appeal did not proceed as the occurrence of the event that would have led to the applicant being successful crystallized as the 11th respondent was sworn in as Governor of Nairobi County.
Application allowed.
Orders
Each party to bear its costs of the appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/17/eng@2022-05-19 |
Application E026 of 2021 | The Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Application E026 of 2021) [2022] KESC 21 (KLR) (19 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 19 May 2022 | 2,022 | Nairobi | Civil | The Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others | [2022] KESC 21 (KLR) | null | 1.Upon perusing the Notice of Motion Application by the Applicants dated 21st December 2021 and filed on 26th January 2022 and the Supporting Affidavit sworn by Jeremiah Nyegenye, the Clerk of the Senate of the Republic Kenya and Secretary to the Parliamentary Service Commission; and 2.Uponconsidering the Applicant’s Notice of Motion Application together with its written submissions dated 28th February 2022 in response to the 1st and 7th respondents’ preliminary objections, wherein the applicants contended that this Court has jurisdiction to consider the application and the petition of appeal as the Court has previously held that it has limited jurisdiction in so far as considering appeals arising from Rule 5(2) (b) of the Court of Appeal Rules. 3.Further,noting the applicants’ submission, where the applicants argued that their right to a fair hearing as provided for under Articles 48 and 50 of the Constitution was violated by the Court of Appeal in failing to grant stay to protect the substratum of the appeal before it. Furthermore, that in declining to grant the stay application and giving the applicants only 7 days to recover Kshs. 1.2 Billion which monies had been paid out to the MPs as accommodation facilitative allowance rendered the appeal nugatory. | We Now Determineas follows:i.That the substantive appeal is still pending before the Court of Appeal for hearing and determination; there is no determination of any constitutional question by the Court of Appeal so far; and recalling that this appeal emanates from an interlocutory Ruling and having considered the application, preliminary objections and submissions;ii.This Court settled with finality the question of its jurisdiction to hear and entertain appeals arising from interlocutory orders of the Court of Appeal made pursuant to Rule 5(2) (b) in the case of {{> Teachers Service Commission v Kenya National Union of Teachers & 3 others SC Application No 16 of 2015 [2015] eKLR where it stated:“The application before us contests the exercise of discretion by the Appellate Court, when there is neither an appeal, nor an intended appeal pending before this Court. Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of Article 163 (4) (a) of the Constitution. Any square involvement of this Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, and for which the priority date of 22nd September, 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.In these circumstances, we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by thCourt 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” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/21/eng@2022-05-19 |
Petition 41 of 2018 | Muriithi v Mohammed (as the executrix of the estate of Hon. Daniel Toroitich Arap Moi) & another (Petition 41 of 2018) [2022] KESC 9 (KLR) (9 May 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, N Ndungu, W Ouko | 9 May 2022 | 2,022 | Nairobi | Civil | Muriithi v Mohammed (as the executrix of the estate of Hon. Daniel Toroitich Arap Moi) & another | [2022] KESC 9 (KLR) | null | The instant application sought substitution of the deceased petitioner (deceased) with the applicant as the legal representative of the deceased’s estate. The deceased passed away in June 2021 and had appointed the applicant as the sole executor of his written will hence in September 2021 the High Court issued a grant of probate in his favour being the legal representative of the deceased’s estate. The applicant claimed that he was the proper person in law to substitute the deceased in the instant proceedings and that the substitution was necessary to enable continuation of the petition of appeal to its conclusion. | The sources of law that governed proceedings before the court were; the Constitution of Kenya, 2010, the Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the court or the Chief Justice. The instant motion was erroneously anchored on the Civil Procedure Rules which were not applicable to proceedings before the court. A court of law had to be moved under the correct provisions of the law; and the failure to identify the proper legal framework rendered a motion, such as the instant one liable to be struck out.The court in granting the deceased leave to file the appeal, not only certified but also framed two issues of general public importance arising from the appeal which warranted its consideration. The motion of substitution was lodged within 12 months of the deceased’s demise and the respondents had not filed any response to indicate whether an order of substitution would cause them any prejudice. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/9/eng@2022-05-09 |
Petition 12 of 2021 | Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 31 March 2022 | 2,022 | Nairobi | Civil | Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others | [2022] KESC 8 (KLR) | null | Having considered the seven (7) issues framed by this Court for determination the final Orders are as follows: (i) (a) The basic structure doctrine is not applicable in Kenya. (Ibrahim, SCJ dissenting). (b) In order to amend the Constitution of Kenya 2010, the four sequential steps as pronounced by the two superior courts below are not necessary. (Ibrahim, SCJ dissenting). (ii) (a) The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution. (Njoki Ndungu, SCJ dissenting). (b) The President initiated the amendment process in issue (Njoki Ndungu & Lenaola SCJJ dissenting). (c) Consequently, under Article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional (Njoki Ndungu & Lenaola SCJJ dissenting). (iii) The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution of Kenya 2010 for lack of public participation. (Unanimous). (iv) Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010. (Unanimous). (v) (a) There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. (Unanimous). (b) There was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (Mwilu; DCJ & V-P; Ibrahim and Wanjala, SCJJ dissenting). (vi) IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (Ibrahim, SCJ dissenting) (vii) The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (Njoki Ndungu, SCJ concurring). (viii) Each party shall bear their own costs, this being a public interest matter. 360. Consequently, the consolidated appeal is determined as follows: (1) The appeal is allowed on the issue No 1; The basic structure doctrine is not applicable in Kenya. (2) The appeal is allowed on issue No 4; Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary the Constitution of Kenya, 2010. (3) The appeal is allowed on issue No 5; There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. and there was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (4) The appeal is allowed on issue No 6; The IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (5) The appeal is allowed on issue No 7; The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (6) The appeal is disallowed on issue No 2; The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution; that the President initiated the amendment process in issue. Consequently, under Article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional. (7) The appeal is disallowed on issue No 3; The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution of Kenya, 2010. (8) Each Party shall bear their own costs. | null | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/8/eng@2022-03-31 |
Application 32 (E043) of 2020 | Board of Management Visa Oshwal Primary School v Shree Visa Oshwal Community Nairobi Registered Trustees & 4 others; National Land Commission (Interested Party) (Application 32 (E043) of 2020) [2022] KESC 4 (KLR) (17 February 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 17 February 2022 | 2,022 | Nairobi | Civil | Board of Management Visa Oshwal Primary School v Shree Visa Oshwal Community Nairobi Registered Trustees & 4 others; National Land Commission | [2022] KESC 4 (KLR) | null | The matter was an application for leave to appeal, an extension of time to file and to serve a notice of appeal and the appeal, joinder of an interested party and stay of execution against the judgment and order of the Court of Appeal at Nairobi delivered on February 22, 2019 in Nairobi Civil Appeal No. 126 of 2014. The applicant contended that it only became aware of the Court of Appeal’s judgment and the consequential orders upon service of an eviction notice by the 1st respondent’s Advocate on or about November 11, 2020. | For the Supreme Court’s appellate jurisdiction to be invoked under article 163(4)(a) of the Constitution, the litigant had to demonstrate that the matter in issue was deserving the court’s settlement. It ought to revolve around the constitutional contestation that had come up the judicial hierarchy, running up to the Court of Appeal and requiring the Supreme Court’s settlement as the apex court. In the instant matter, the applicant failed to persuade the court that it properly invoked its jurisdiction.Previously the Supreme Court had found that it was not plausible that its jurisdiction, as enshrined in article 163(4)(a) of the Constitution, contemplated that a person who was not party to the proceedings at the superior Courts below the Supreme Court, would file an appeal. Accordingly, the applicant did not have locus standi to institute a matter under article 163(4)(a) of the Constitution having not properly invoked the instant Court’s jurisdiction.The foregoing notwithstanding, there existed obvious public interest involving the fate of a public school and the 2000 primary school students that the court could not close its eyes to. There was a clear thread, both in the High Court and the Court of Appeal, relating to the existence of a public school on the land whose title was in controversy, and that the decision of the court would impact on that school despite the school not being a party in both superior courts.The foregoing notwithstanding, there existed obvious public interest involving the fate of a public school and the 2000 primary school students that the court could not close its eyes to. There was a clear thread, both in the High Court and the Court of Appeal, relating to the existence of a public school on the land whose title was in controversy, and that the decision of the court would impact on that school despite the school not being a party in both superior courts.The applicant had a legitimate claim and the judgment of the Court of Appeal had affected its interest even though it was not a party to the proceedings at the High Court and the Court of Appeal.The fate of a public school was a matter of public interest and the applicant ought to have been allowed to ventilate its issues albeit in a proper forum. Therefore, the Applicant ought to have pursued its claim by instituting a suit at the Environment and Land. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/4/eng@2022-02-17 |
Petition 15 of 2017 | Imanyara & 2 others v Attorney General (Petition 15 of 2017) [2022] KESC 78 (KLR) (Constitutional and Human Rights) (17 February 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 17 February 2021 | 2,022 | Nairobi | Civil | Imanyara & 2 others v Attorney General | [2022] KESC 78 (KLR) | null | The appellants filed petitions at the High Court seeking among other orders damages for violations of their fundamental rights and freedoms. The appellants alleged that on various dates, between 1985 and 1994 their fundamental rights and freedoms were systematically contravened and grossly violated. It was the appellants’ contention that they were severally arrested, subjected to torture, had trumped-up charges brought against them, were improperly convicted and imprisoned, and held in solitary confinement at the notorious E Block at Kamiti Maximum Prison, where insane prisoners were held. The appellants stated that their sources of livelihood were destroyed by various Government agencies. It was the appellant’s contention that they suffered psychological torture, post-traumatic stress disorder, and economic loss.The appellants recorded a consent with the Attorney General stating that liability was not contested save in respect of any lawful conviction which issue was left for the adjudication by the court on the basis of the parties’ written submissions, evidence, authorities, and highlighting. The High Court awarded the 1st, 2nd, and 3rd appellant general damages of Kshs 15 million, Kshs 10 million and Kshs 7 million respectively. Dissatisfied, the appellants filed an appeal at the Court of Appeal seeking among other orders; a declaration that the awards were grossly inadequate redress for the admitted breaches of the Constitution. The Court of Appeal dismissed the appeal with no order as to costs. Aggrieved, the appellants filed the instant appeal. | The court took judicial notice of the fact that the clamor for the second liberation was marred by extra-judicial repression, in which oppression and suppression of freedoms such as liberty, expression, association and assembly were stifled at every instance. Sedition, treason, foreign exchange restrictions, and other laws were used to subdue the populace into submission. Detention without trial, torture, and prosecutions on trumped-up charges characterized the regime. Through various amendments to the repealed Constitution, presidential declarations and decrees, the President had control over Parliament, Judiciary and the Electoral Commission.That consolidation of power by the Executive weakened institutions such as the Judiciary and the Police Force, thereby eroding the protection and enforcement of human rights. Security agencies backed that system and spying agencies acquired notoriety not only in conducting surveillance in the interest of State security but also using the excuse of State security to harass, apprehend, detain, and torture real or perceived enemies of the Government at that time. The infamous prominence acquired by Nyayo House (torture chambers) and Nyati House in the 1980s and early 1990s was a reflection of how extra-judicial means were used to asphyxiate civil society discourse.The constitutional amendments that began in 1990 marked a paradigm shift from the dark days of struggle for democracy into the culmination of the promulgation of the Constitution of Kenya, 2010. The Constitution enshrined vital elements of democracy such as good governance, integrity, transparency, human dignity, equality, human rights, and non-discrimination among other national values and principles as set out in article 10 of the Constitution. As such, and as the apex court, the court was called upon to interpret the Constitution in a manner that advanced the rule of law, human rights and fundamental freedoms.Under article 163(4)(a) of the Constitution, the court had jurisdiction to entertain appeals as of right in any case involving the interpretation and application of the Constitution. The guiding principles for admitting a matter under article 163(4)(a) of the Constitution were that:An appeal must originate from a Court of Appeal case where the issues in contestation revolved around the interpretation or application of the Constitution.
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.The matter before the court for consideration had progressed through the normal appellate mechanisms to reach the court, and involved interpretation and application of article 23(3) of the Constitution. Therefore, the court was well clothed with jurisdiction to determine the appeal.
Each of the appellants recorded a consent on liability on January 11, 2012. Therefore, the only issue for determination was the assessment of damages for the constitutional violations. The 1st appellant did not specifically plead for the amount of Kshs 146,603,604.15 in the High Court, as enumerated in the instant appeal. Further, he did not specifically claim any reliefs in regard to the losses suffered by the Nairobi Law monthly as a result of the violation of his fundamental rights.
In the absence of specific pleadings, evidence if any, produced by the parties could not be considered. Therefore, KPMG’s report produced by the 1st appellant could not be considered as there was no specific prayer for the award of damages for losses suffered by the Nairobi Law Monthly in the High Court. That claim had not gone through the appropriate appellate mechanisms. Therefore, the court was constrained not to interrogate the same.
The court in addition to exercising its jurisdiction under article 163(4)(a) of the Constitution was also mandated under article 23(3) of the Constitution, and section 21 of the Supreme Court Act to grant the appropriate reliefs to remedy a violation of the fundamental rights and freedoms.
Liability was admitted and a consent recorded. In essence, the Attorney General acknowledged willful and intentional violation of the 1st appellant’s rights. In the circumstances, a remedy, even where it was not considered compensatory and particularly when there was a willful and intentional violation of constitutional rights, needed to meaningfully vindicate the rights and freedoms of a claimant.
The parameters to be considered in assessing damages for constitutional violations were:
The duration of the claimant’s detention.
The level of physical and mental suffering endured by the claimant.
The degree of responsibility of the individual(s) responsible for the suffering caused to the claimant.
The extent of the action or inaction complained of, and any other incidental rights that may have been violated as a consequence of the first breach(es).
Award was discretionary and would depend on the facts and the circumstances of each case.
Award was not compensatory or punitive but a vindication of the violated rights.
The Government, through the Attorney General admitted 100% liability for violating the appellants' fundamental rights and freedoms. In the peculiar circumstances of the case, referring the matter back to the High Court for purposes of assessing general damages while the instant court had the power to grant appropriate reliefs for constitutional violations, would further delay access to justice. The issue of general damages had been the subject of determination by both the High Court and the Court of Appeal and therefore, nothing impeded the court from making such orders for general damages, as it deemed fit.
It was the 1st appellant’s case that he was held at various prisons including Kamiti Prison. Unlike other political detainees, he was held in solitary confinement where insane prisoners were held for about 3 years; denied basic rights for instance lack of proper medical care; tortured at Nyayo House, where he was held in a waterlogged underground cell for ten days, his chest and ears were blocked as a result, the toenails fell off and he was paraded naked before 20 masked security officers. Those extreme circumstances ought to have been taken into account when crafting appropriate remedies.
The amounts awarded to the 1st appellant by the High Court and affirmed by the Court of Appeal were manifestly low to justify interference.
There was no claim for Kshs 799,515, 675.59 and costs of US$77,626.00 at the High Court by the 2nd appellant. The amount subject of determination by the two superior courts was Kshs 95,000,000 and as such, the court limited its analysis to Kshs 95,000,000. The Attorney General admitted liability for the losses suffered by the Finance Magazine as a result of the constitutional violations meted against 2nd appellant. As such, the only duty due to the trial court was to assess quantum.
A company was a separate legal entity from its owners, and had a right to sue and be sued as a separate and distinct personality, and an action for losses and damages suffered by the company should be brought by the company. However, there were circumstances under which a party could claim for losses suffered by the company as a result of constitutional violations visited upon that party.
The 2nd appellant’s claim for special damages suffered by the Finance Magazine was based on violations that constituted an infraction to his own right to property. Further, his claim was not a claim in private law for damages but a claim in public law for compensation for the deprivation of fundamental rights, and freedoms and compensation could include loss of earnings consequent due to the constant police harassment and incarcerations.
The 2nd appellant’s claim was a public law claim for infractions to his rights under the Constitution, and therefore, the principles enunciated in Salmon case did not apply. The 2nd appellant was entitled to damages for loss of income, arising from the losses incurred by Finance Magazine, if he could prove and quantify that his losses were personal and distinct losses which were directly linked to a claim with reference to the loss of income suffered by the company, provided that he did not fall into the trap of regarding the loss to the company as automatically and necessarily equivalent to their personal loss.
To prove his loss, the 2nd appellant sought to rely on a report prepared by KPMG. The High Court made no finding at all on the report, explaining that having disallowed the claim by Finance Magazine, it was of no consequence to interrogate the report. That was a misdirection as the 2nd appellant’s claim was premised on the report. Therefore, the losses suffered by the Finance Magazine was as a result of an infraction of the 2nd appellant’s fundamental rights and freedoms. Consequently, his prayer was allowed but subject to the matter being referred back to the High Court to determine the 2nd appellant’s claim and quantum for special damages based on the evidence on record.
The 3rd appellant failed to specifically claim losses suffered by the Beyond Magazine and the People Daily at the High Court. Therefore, that claim must fail. That was because the claim had not progressed through the appropriate appellate mechanism.
The 1st appellant filed an appeal arising from the conviction and sentence by the Magistrate’s Court being Criminal Appeal Number 1762 of 1984. The 1st appellant’s claim having undergone the rightful appellate channel as anticipated in Kenya’s laws and there being no evidence tendered to show that his trial and the subsequent appeal was unfair or violated his rights, the appellants claim seeking to set aside his conviction was dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/78/eng@2022-02-17 |
Petition 1 of 2021 | National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Parties) (Petition 1 of 2021) [2022] KESC 6 (KLR) (17 February 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 17 February 2022 | 2,022 | Nairobi | Civil | National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others | [2022] KESC 6 (KLR) | null | Following the declaration of the results of the 2017 general election, the petitioner had expected that its candidates would be nominated in Tharaka-Nithi, Mandera, Garissa, Embu, Meru and Nairobi counties (interested parties) in fulfillment of the gender top-up rule in accordance with article 177 of the Constitution of Kenya, 2010 (Constitution). According to the petitioner, to the contrary, the Independent Electoral Boundaries Commission (the respondent) adopted a policy and criteria for gender top-up list that discriminated against the petitioner and favoured certain political parties.Aggrieved, the petitioner approached the High Court with an amended constitutional petition seeking among others, orders that; a declaration is issued that the petitioner was entitled to access to the information upon which the names of the nominated members of the interested parties’ counties were selected, and a declaration be issued that the petitioner was entitled to have its members especially women in its party lists nominated in the county assemblies of the interested parties.In response, the respondent filed a notice of preliminary objection challenging the jurisdiction of the High Court to entertain the petition, on among others the ground that it contravened section 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 which required an election court to be gazetted by the Chief Justice. The High Court sustained the objection. Aggrieved by the High Court’s decision, the petitioner moved to the Court of Appeal, which affirmed the decision of the High Court, hence the filing of the instant appeal at the Supreme Court. | Jurisdiction was everything and without it, a court had no power to make one more step. In addition, where the Constitution exhaustively provided for the jurisdiction of a court, the court had to operate within those limits. It could not expand its jurisdiction through judicial craft or innovationAppeals from the Court of Appeal lay to the instant court under article 163(4) of the Constitution specifically, either on matters of constitutional interpretation and application or upon certification, by either the Court of Appeal or the instant court, on matters of general public importance. The instant appeal was expressed to be brought pursuant to the Constitution, section 15(2) of the Supreme Court Act and other enabling provisions of the law. It, therefore, did not specify the provision of the Constitution upon which it was brought. The court was only properly moved by invoking the correct constitutional or statutory provision that clothed it with jurisdiction.
Given the specialized nature of the jurisdiction of the Supreme Court as far as appeals from the Court of Appeal were concerned in terms of article 163(3) of the Constitution, it was of paramount importance to identify on which one of the two limbs (a) or (b) the court was being moved. The court would not entertain an appeal on an ordinary question in contest.
To admit an appeal under article 163(4)(a) of the Constitution, it was not the mere allegation in pleadings by a party that clothed the court jurisdiction. For the court to entertain an appeal from the Court of Appeal on the question of constitutional interpretation or application, it had to be shown that the issues of contestation in both courts below revolved around the interpretation or application of the Constitution. In other words, an appellant had to 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 had to 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 of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
The impugned decision of the Court of Appeal had no bearing on the merits of the original main cause as laid before the High Court. The preliminary objection raised at the High Court itself did not invoke any issue that would require constitutional interpretation or application. It was brought pursuant to the provisions of the Elections Act and the Rules made thereunder. Naturally, the decisions of the courts below concentrated on the point raised in the preliminary objection and only referred to the Constitution in so far as the jurisdiction of the High Court was concerned.
The only argument around the Constitution raised in the petition was about article 165 of the Constitution; that the High Court erred in failing to find that its jurisdiction to supervise administrative and quasi-judicial functions of the respondent under that article could never be ousted by the provisions of the Elections Act. Clearly, that was not the question presented to the High Court and upon which that court and indeed the Court of Appeal’s determination had been founded.
By failing to observe the well-known practical guidelines on the court’s admission criteria for appeals from the Court of Appeal; by failing to outrightly invoke the particular jurisdiction of the court; by leaving the whole question on the court’s jurisdiction to conjecture; and by failing to show that the issues of contestation in the courts below revolved around the interpretation or application of the Constitution, the petition was incompetent and the court had no jurisdiction to entertain it.
Article 23(3)(f) of the Constitution declared that a court could grant such reliefs as an order of judicial review. Mandamus, by section 8 of the Law Reform Act, was indeed an order. Therefore, including mandamus after the word “order” was merely to create an artificial distinction where in fact or in law no real difference existed.
An order of mandamus would compel the performance of a public duty which was imposed on a person or body of persons by a statute and where that person or body of persons had failed to perform to the detriment of a party who had a legal right to expect the duty to be performed.
The true character of the appellant’s cause, despite being disguised as a constitutional petition, was in fact an election petition, questioning the validity of nomination of elected members of the county assemblies who had been gazetted; and that such a challenge could only be commenced in the election court, in that case, under section 75(1A) of the Elections Act. The gazette notice of party nominees signified the completion of the election by nomination. The process came to an end and the county assemblies were constituted.
The court did not agree with the position that the appellant had two legal pathways to come to court; by invoking the Elections Act or judicial review under the Constitution; that it was open to the court to dismiss a relief not properly brought but consider those that touched on the violations of the Constitution; and that, that way the court would be doing substantive justice without undue regard to procedural technicalities under article 159 of the Constitution. In the circumstances, considering the clear cause of action and the reliefs in the amended petition, there were no two pathways for the appellant. The appellant chose a pathway that could only and inevitably lead it, as it had, to a dead end.
Constitutional remedies were sacrosanct and transcendental in importance to be invoked in all and conceivable situations. They were reserved only for true and verifiable breaches of the Constitution and not for correction of errors which could be resolved by alternative means of redress provided in statute. Though constitutional provisions could be breached in the course of the elections, that per se would not convert the nature of dispute from an election contestation to a constitutional question.
Where there existed an alternative method of dispute resolution established by legislation, the courts had to exercise restraint in exercising their jurisdiction conferred by the Constitution and had to give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. The cause was instituted solely for the purpose of avoiding the necessity of applying in the normal way to the election court for the appropriate remedy under the Elections Act.
Article 159(2)(d) of the Constitution had repeatedly been invoked as a cure-all, a magic bullet even where, as in the instant case, it was inapplicable. It was never the intention of the framers to oust the obligations of litigants and parties to comply with the law or procedural imperatives as they sought justice from the courts.
The proceedings were conducted virtually. Whether in open or virtual court, court proceedings remained dignified and solemn. As part of courtroom customs, etiquette and decorum had to be observed by both the court and counsel, who were officers of the court. The highest standard of behavior was expected of advocates who appeared before the apex court and judges in that court would demand the observance of and adherence to those customs, because arguably, they engendered public respect, authority, and dignity of the court and advocates as representatives of a learned profession. Counsel representing the 4th interested party was, of all the counsel virtually appearing before the court on the morning of the hearing, the odd one out. The court could neither see nor hear him on account of his inappropriate attire. Since the establishment of the court, it had been its tradition that counsel appearing at hearings in open court or virtually before judges who were themselves robed had to be robed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/6/eng@2022-02-17 |
Petition 25 of 2019 | Senate & 2 others v Council of County Governors & 8 others (Petition 25 of 2019) [2022] KESC 7 (KLR) (Constitutional and Human Rights) (17 February 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 17 February 2022 | 2,022 | Nairobi | Civil | Senate & 2 others v Council of County Governors & 8 others | [2022] KESC 7 (KLR) | null | At the High Court, the respondents challenged the constitutionality of section 91A (that established, for each county, a County Development Board (Board), section 91B (that provided for the operational expenses for the Boards), and section 91C (that created an offence for unlawful obstruction, or undermining of the Board from discharging its functions) of the County Governments (Amendment) Act No. 13 of 2014.Both the Court of Appeal and the High Court were in agreement that the impugned amendment did not meet the test of constitutionality and were in violation of articles 1(3)(b), 1(4), 6(2), 10(2), 179(4), 183, 185(1), 189(1) and 225(1)(i) of the Constitution as they were antithetical to the oversight role of the Senate, interfere with the legislative power of the county assembly, violated the functional integrity of county governments and introduced unnecessary penal sanctions. For those reasons, the courts unanimously declared the amendment unconstitutional, void, and invalid.Dissatisfied with the decisions of the High Court and Court of Appeal, the appellants filed the instant appeal, challenging the decisions of the superior courts on the grounds that Kenya was a federal and not a unitary state and that the disputed amendments were constitutional. |
By the design and architecture of the Constitution and by the language of article 1(3) and (4) of the Constitution, the people of Kenya intended that their sovereign power be exercised at two levels of government: the national and county levels. The Constitution also declared that the two levels were distinct but interdependent. They were bound to conduct their mutual relations on the basis of consultation and cooperation. However, to avoid gridlock in their operations, even as they consulted and cooperated, the two levels of government had to perform their functions and exercise their powers in a manner that respected the functional and institutional integrity of each other. At the county level, the county government consisted of a county assembly and a county executive. The executive authority at the county was vested in, and exercised by a county executive committee, consisting of the county governor, the deputy county governor, and members appointed by the county governor, while the county assembly exercised legislative authority at that level. The form, content, and timing of budgets of the national and county governments had to be coordinated through consultations.
A court could not expand its jurisdiction through judicial craft or innovation. Parties could not, by consent or acquiescence, confer jurisdiction upon a court. To bring the appeal to the Supreme Court within the terms of article 163(4)(a) of the Constitution, it had to be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the Supreme Court. Where the dispute had nothing or little to do with the interpretation or application of the Constitution, the Supreme Court under article 163(4)(a) would have no jurisdiction to entertain an appeal brought under article 163(4)(a).
The instant appeal met the frontiers of the appellate regime of the Supreme Court embodied under article 163(4)(a) of the Constitution. From the High Court to the Supreme Court, the central issue had been whether the amendment to the County Governments Act was inconsistent with the principles of the Constitution. The instant appeal fell within the ambit of article 163(4)(a) of the Constitution, and the Supreme Court had the jurisdiction to determine it.
Any law, including customary law, that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission done or not done in contravention of the Constitution was also outrightly invalid. Once declared invalid, a statute or statutory provision, to the extent of the declaration, ceased to be law.
Questions entailing the interpretation and application of the Constitution had to, for good order and efficiency in the administration of justice commence at the High Court, with the effect that the interpretation of the Constitution by both the Court of Appeal and the Supreme Court was limited to the appellate stages.
In construing whether statutory provisions offended the Constitution, courts had to subject the same to an objective inquiry as to whether they conformed with the Constitution. To fully comprehend whether a statutory provision was unconstitutional or not, its true essence had to also be considered. The court had to consider the purpose and effect of such a statutory provision. A purposive interpretation should have been given to statutes to reveal the intention of the legislature and the statute itself.
Both the purpose and effect were relevant in determining whether or not the amendment was constitutional. An unconstitutional purpose or an unconstitutional effect could lead to the invalidation of legislation. The words used and the language of the provision or provisions in question had to be given their literal meaning, and the court had to seek to identify the mischief sought to be remedied by considering the historical background of the legislation.
The provisions of article 259 of the Constitution required the Constitution to be interpreted in a manner that promoted its purposes, values, principles and contributed to good governance.
The County Development Board’s (the Board('s)) membership consisted of, among others, the Senator, the member of the National Assembly, the Woman Representative, the Governor and the Deputy, the Leaders of the Majority and Minority parties in the County Assembly, the Chairperson of the County Assembly Committee responsible for finance and planning and that responsible for budget, the County Commissioner, and the head of a department of the national government or the county government or any other person invited by the Board to attend a specific meeting of the Board. The senator was designated the chairperson of the Board and convener of the Board's meetings, the governor was to deputize him, while the County Secretary was the secretary of the Board. The main object for the establishment of the Boards was expressed in the amendment to be a forum for consultation and coordination between the national and the county governments on matters of development and projects.
The intention was informed by articles 6(2), 10, 174, 220(2)(c) and 232 of the Constitution that stipulated that the governments at the national and county levels were distinct and interdependent and were to conduct their mutual relations on the basis of consultation and cooperation.
The commonality of purpose of the two levels of government and the need to ensure harmony in the discharge of their respective functions, could only be achieved through consultation and cooperation. The two levels were bound by national values and principles of governance espoused in article 10 and guided by the objects of devolution in article 174 of the Constitution. In the process of budgeting and planning, consultation between the national government and county governments was a key requirement under article 220(2)(c). The form and manner of such consultations were provided for in the national legislation. In the process of policymaking, the people had to be involved.
Public participation or consultation were constitutional imperatives. Article 196(1)(b) of the Constitution demanded of the County Assemblies, in their legislative duties, to facilitate public participation and involvement. On the other hand, article 201 required that in all matters of public finance, there had to be openness and accountability, including public participation. Years of deeply entrenched disparities between regions in Kenya; low level of responsiveness and accountability by the government to citizens, had to have led to the enactment of sections 87 to 115, 125, 128, 131 and 137 of County Government Act, sections 47, 91, 99 and 100 of the Public Finance Management Act 2012 and sections 21 and 22 of the Urban Areas and Cities Act, all of which emphasized the need for public participation in national and county planning, budget priorities and accountability. The establishment of the Boards was driven by an honest and noble purpose; to provide a forum, at the county level, for engagement, consultation and coordination of national and county governments’ development programs.
Mere participation of members of Parliament in the boards did not breach the doctrine of separation of powers. The governments at the national and county levels had to conduct their mutual relations on the basis of consultation and cooperation; the two levels of government had to cooperate in the performance of their functions and in the exercise of their powers and, that for that purpose, they could set up joint committees and joint authorities and that the form and manner of consultation between the national government and county governments in the process of preparing plans and budgets was to be prescribed by national legislation. Those were express provisions of articles 6(2), 189(2) and 220(2)(c) of the Constitution.
Section 91(f) of the County Governments Act, before it was amended by section 3 of the Amendment Act provided for modalities, platforms, town hall meetings, budget preparation and validation fora for citizens to participate in the activities of the counties and enjoined the counties to facilitate the establishment of structures for citizen participation including avenues for the participation of peoples’ representatives including but not limited to members of the National Assembly and Senate. Subsection (f) above was deleted by the amendment effectively removing the peoples’ representatives; members of the National Assembly and Senate from the county platforms envisaged by that section. It was informed by the fact that their participation had been moved to a new platform, the Board. With the deletion of (f) above, the modalities and platforms that were to be established under the section were reserved for citizen participation. The entire Part VIII was devoted to citizen participation in counties. The effect of the courts declaring the amendment unconstitutional restored section 91(f).
There was nothing irregular in the members of parliament and national executive engaging, consulting, cooperating, and coordinating with the devolved units for the sake of protecting devolution and achieving its objects. The engagement, consultation, cooperation, and coordination envisaged had to be done in a manner that respected the functional and institutional integrity, constitutional status, and institutions of the county government, as decreed by article 189(1) of the Constitution.
There were many examples of the existence in the law of multi-stakeholder platforms or forums which were set up as vehicles to promote harmonious coexistence between the two levels of government so as to have a holistic edifice. Examples included the National and County Government Coordinating Summit, the Inter-Governmental Budget and Economic Council, the Council of County Governors and the County Budget and Economic Forum. The two levels had to embrace devolution architecture by displaying collaborative coexistence and interdependence so as to avoid any possible constitutional discord. At all times, that arrangement had to maintain a balanced structure, where the national government did not usurp, undermine or interfere with the mandate of or with matters that exclusively fell within the domain of county governments.
The limitations had to be borne in mind even as the special role of the Senate in the devolved governance system was acknowledged. Under article 96(1) of the Constitution, the Senate represented the counties and served to protect their interests. The Senate participated in the law-making function of Parliament by considering and approving Bills concerning counties. It had the power to determine the allocation of national revenue among counties, and to exercise oversight over the use of those resources. To discharge those responsibilities, the Senate was not expected to relocate to the counties to exercise supervisory powers at that level. That would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach. It was not to be involved in the administrative nitty-gritty details of the counties. Its oversight, as indeed its legislative roles, were to be exercised in accordance with the Constitution and the law.
If the presence of members of parliament and representatives of the national executive in the Boards was merely to contribute by way of public participation in matters affecting counties, there would be no concern as their given views per se could not violate the Constitution.
Construing section 91A(2)(b) and (c) of the amendment; that the Board would consider and give input on any county development plans before they were tabled in the county assembly for consideration and to consider and give input on the county annual budget before they were tabled in the county assembly for consideration; the word “before”, taking everything into context, could only connote a condition antecedent, a precondition to the tabling of the county development plans and county annual budget. To that extent, the amendment donated excessive powers to the Board beyond what the Constitution permitted, thereby subordinating county organs.
The second grievance was the role of the governor, vis-à-vis, the Senator for the county. The latter, was the chairperson of the Board and convener of the Board's meetings, according to section 91A(1)(a). The Governor, though the chief executive of the county government, was named as the vice-chairperson, to deputize the Senator in the Board.
The Constitution did not contemplate a situation where the chief executives of the counties, the governors were inferior in rank to senators in the execution of county functions. Section 91A(1)(a) and (d) was antithetical to articles 179(4) (5) and (6) of the Constitution to the extent that it altered the hierarchical structure of the county government. The governor was the chief executive of the county, and the only time someone else besides him could exercise the functions of that office was when he was absent. Article 179(5) of the Constitution permitted the deputy county governor, in the circumstances to step in and act in the office of Governor. Members of the county executive committee, on the other hand were only accountable to the county governor for the performance of their functions and exercise of their powers.
It was inconceivable as it was absurd to have a Senator whose functions were clearly delineated by the Constitution, and who was expected to provide oversight of the county government, at the same time take charge of a Board which was essentially a county organ. That was a legislative overreach that did not honour the constitutional guardrails that donated specific and distinct powers to the Senate and the devolved units.
Article 186 of the Constitution demanded that a function or power not assigned by the Constitution or national legislation to a county was a function or power of the national government, and vice versa. The amendment, in purporting to impose on the Governor a principal, failed to meet the test of cooperation, coordination, and consultation. It failed to respect the functional and institutional integrity of the county government, its institutions, and its constitutional status, as stipulated in article 189. Section 91A of the amendment was inconsistent with and in breach of articles 96 (2) and (3), 179 and 185 of the Constitution, and were, to that extent, void and invalid. Though the intended purpose for the amendment was virtuous, its implementation was bound to produce an unconstitutional effect.
It was an offence under section 91C of the Amendment Act to knowingly and unlawfully obstruct, hinder, undermine or prevent the Board from discharging its functions. The offence was punishable, upon conviction, by a fine not exceeding one million shillings or imprisonment for a term not exceeding one year, or both.
The introduction of criminal penalties and sanctions in civil legislation were an increasingly common feature in Kenya’s legislation today. The Environmental Management and Co-ordination Act No. 8 of 1999, the Leadership and Integrity Act No. 19 of 2012, and the Physical and Land Use Planning Act No. 3 of 2019, were some of the examples of such laws. By imposing penal sanctions upon persons who contravened such laws, the legislature sought to ensure compliance with the key provisions of its statutes. Their presence in civil legislation per se did not invalidate them.
There was no nexus between the offence created by section 91C of the Amendment Act and the amendment which only established the Boards. There was no mischief that the provision was intended to cure. The provision was intended to transform the Board into a decision-making organ whose authority, if undermined or hindered, was punishable in law. That appeared to elevate the Board to a pedestal higher than the Governor, County Executive and County Assembly. So that any action or omission to act in a certain way by any of the county organs would be interpreted to constitute obstruction or hinderance so as to attract criminal sanction. If the Board’s input or advice on the county development plans and the annual budget were not taken on board at the time they were tabled in the county assembly for consideration, those involved including the county assembly and the county executive committees could be in violation of section 91C and risk punishment. That would undermine the constitutional administrative, legislative and decision-making powers and authority of the governors, County Assemblies and the County Executive Committees.
No such outcome was intended by the Constitution when it created different offices in the counties or when it decreed consultation between the national and county governments in the process of preparing plans and budgets. Section 91C not only failed the test of proportionality but was also outrightly excessive, arbitrary, unfair, and based on irrational and unknown considerations. Section 91C of the Amendment Act was inconsistent with article 189(1)(a) of the Constitution.
Whereas there was a duty on all public offices under article 201(d) of the Constitution to use public money in a prudent and responsible way, so long as the establishment and functions of the Boards could be justified, there would be nothing objectionable for the county governments to meet the Boards’ operational expense.
The independence of national and county governments was provided for through a devolution model that rested upon a unitary, rather than a federal system of government. The Senate (which brought together county interests at the national level) and the National Assembly (a typical organ of national government), dealt expressly with matters affecting county government; and certain crucial governance functions at both the national and county levels dovetailed into each other and operated in unity.
The Constitution did not alter Kenya’s constitutional design from unitary to federal. The devolved system in Kenya was based on a unitary system of Government that decentralized key functions and services to the county unit. The Kenyan State model was not federal in nature and did not envisage the workings of a county as a politically and financially independent state. Although Kenya was a constitutionally devolved State, it did not have a federal constitution and that the county governments were not independent but semi-autonomous and an integral part of the unitary state, exercising delegated sovereign power for purposes of governance.
While the court could depart from its previous decision if it was shown that such decision was given per incuriam, it was a serious suggestion that the apex court made a decision through ignorance or was ill informed about the applicable law. The decision of a superior court was not to be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process.
The test of per incuriam was a strict one, the relevant decision having not taken into account some specific applicable instrument, rule or authority. A decision per incuriam was one rendered in ignorance of a constitutional or statutory prescription, or of a binding precedent: but if a decision was such, that, by and of itself, did not, perforce, render it inappropriate, or mistaken, or wrong, for the decision could rest upon its own special merits, and be in every respect sustainable as a matter of principle. It could not be said that the Supreme Court in its previous decisions arriving at the conclusion that the Constitution did not create a federal government, the court did not take into account some specific applicable instrument, rule or authority, or that all those decisions were rendered in ignorance of a constitutional or statutory prescription.
By article 163(7) of the Constitution, all courts, other than the Supreme Court itself, were bound by the decisions of the Supreme Court. Save for the slip rule in section 21(4) of the Supreme Court Act, neither the Constitution, nor the Supreme Court Act conferred upon the Supreme Court, powers, to review its decision. As the final court, the Supreme Court would not review its own judgments, rulings, or orders, except in circumstances contemplated by section 21(4) of the Supreme Court Act, to correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order; that once it makes a final decision, the court became functus officio, and would not entertain requests for further re-consideration of its decision, because litigation had to come to an end.
Notably, in exercise of its inherent powers, the Supreme Court could, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances were to be limited to situations where:
the judgment, ruling, or order, was obtained, by fraud or deceit;
the judgment, ruling, or order, was a nullity, such as, when the court itself was not competent;
the court was misled into giving a judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
the judgment or ruling was rendered, based on a repealed law, or as a result of, a deliberately concealed statutory provision.
Just as it was a serious matter to suggest that the decision of the Supreme Court was made per incuriam, it was equally not a simple matter for the Supreme Court to depart from its decisions that had been, over time applied as ratio decidendi, binding the courts below. For the Supreme Court to reconsider its decision, it had to be not to only appropriately moved but also the grounds upon which it was moved had to be weighty.
The phrase, ‘when properly moved’ entailed that for the Supreme Court to depart from its previous decision, or for it to review its decision, it could only be moved by a formal application.
Questions entailing the interpretation and application of the Constitution had to for good order and efficiency in the administration of justice commence at the High Court, with the effect that such a question could only be raised before the Court of Appeal and the Supreme Court as an appeal from the decision of the High Court and eventually to the Supreme Court as a challenge to the determination of the Court of Appeal. That process was not followed. The issue, though important, was not diligently prosecuted.
To move the court to reconsider its previous decisions, an appropriate formal application had to be made to it. Had the 55th respondent considered that question to be important, it ought to have raised it in the first instance before the High Court, or taken out a motion before the Supreme Court which would have afforded all parties sufficient opportunity to respond comprehensively to the contention. Raising the question for the first time in the Court of Appeal, the Court of Appeal could not overturn Supreme Court decisions which bound it in terms of article 163(7) of the Constitution.
Whereas it was essentially in public interest that a final judgment of the apex Court in the land should not be open to challenge, a departure from that principle could be justified only when circumstances of a substantial and compelling character made it necessary to do so or where to decline a request to reconsider the judgment would be oppressive or occasion irremediable injustice.
No additional material had been presented for the Supreme Court to reconsider the position that the Constitution did not create a federal state. The preamble to the Constitution summed up the true expression of the will of the people of Kenya on the systems of government it created. The Constitution retained its supremacy, the sovereignty and unity of the people, as well as the oneness and indivisibility of the nation.
The County Governments (Amendments) Bill 2021, Senate Bill No. 38 of 2021 (the Bill) was an attempt to address the concerns brought about by the Amendment Act and to comply with the courts' decisions. The Bill, according to the Senate Bill Tracker Portal, after its introduction in the Senate went through the 1st reading and was referred to the Devolution and Inter-Governmental Relations Committee of the Senate. It was scheduled for the 2nd reading. The court did not know the current status of the Bill.
The Bill had renamed the Board, “County Leaders Forum” (Forum.) It made the Governor the chairperson and the senator the vice-chairperson of the Forum. The language used in describing the functions of the Forum were carefully chosen to avoid the impression that the Forum had any executive mandate. The functions were purely advisory. The fate of sections 91B and 91C was unclear as the Bill, in so far as the instant petition was concerned, only amended section 91A of the Amendment Act. Legislative steps were being taken to align the Amendment Act to the Constitution.
Participation permitted citizens to take part in decision-making in matters that affected them. Members of Parliament (National Assembly and Senate) had specific and defined roles in the Constitution and relevant statutes, vis-à-vis, the counties. Senators represented and protected the interests of the counties through their law-making function by considering and approving Bills concerning counties. They also determined the allocation of national revenue among counties, in addition to providing oversight over national revenue allocated to the counties.
Whereas the Senators played those roles in the Senate, at the national level, the county assembly played an oversight role over the county’s fiscal management at the county level. While the two levels of government had to work in consultation and cooperation with each other, the Senators could not oversight the County governments at the county level. That role was reserved for the County Assembly. They could not be involved in the co-ordination of programs that were purely county programs, or county project approvals or actual implementation of county projects as those were county executive functions. It was untenable for Senators, who oversight county resources from the national government, to convene and chair county committees. That was why the Constitution proclaimed that, as between the two levels of government, there had to be respect for the functional and institutional integrity.
Parliament, as the institution with the legislative powers, was constitutionally bound to enact laws that assisted and strengthened the county governments in the discharge of their roles. Laws made pursuant to that power were never to have the effect of undermining the running of the county governments. Conversely, other organs of the national government had to keep to their lanes as drawn by the Constitution and utilize the structures and channels in the Constitution to carry out their legislative and oversight duties and to trust the competence of the county governments’ structures and organs to discharge their functions.
Public participation was encouraged as a constitutional principle and as a national value. It permitted the citizens and their political representatives to take part in decision-making in matters that affected them, like county planning, budget priorities, and accountability. In enacting the County Governments (Amendment) Act, the legislature may have had the noblest of intentions. However, that intention and the effect it produced had not met the constitutional test of validity. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/7/eng@2022-02-17 |
Petition 34 of 2014 | Shollei v Judicial Service Commission & another (Petition 34 of 2014) [2022] KESC 5 (KLR) (17 February 2022) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko | 17 February 2022 | 2,022 | Nairobi | Civil | Shollei v Judicial Service Commission & another | [2022] KESC 5 (KLR) | null | On September 10, 2013, the 1st respondent (the Judicial Service Commission (JSC)) wrote to the appellant inviting her to respond in writing, to allegations about procurement, employment, administration, finance, and corporate governance within 21 working days. The appellant responded to the allegations through an interim and final report. JSC then scheduled proceedings for hearing on October 16, 2013, at which hearing the appellant raised objections based on impartiality, bias, and JSC’s jurisdiction to institute proceedings against her. JSC overruled the objections and set the proceedings for hearing.The appellant's efforts to have the matter adjourned on that date to allow her to further prepare her defense and call witnesses bore no fruit. JSC, vide its letter dated October 18, 2013, resolved to terminate the appellant’s appointment, and removed her from office as the Chief Registrar of the Judiciary. In that letter, JSC stated that following the disciplinary proceedings initiated by itself as per the allegations set out in its letter dated September 10, 2013, it was satisfied that the requirements set out under section 12(1)(b), (c), (d), (f) and (g) of the Judicial Service Act (the Act) had been met.Aggrieved, the appellant filed a petition at the High Court, which was later transferred to the Industrial Court, claiming that JSC in terminating her employment, violated her constitutional rights to fair trial; fair administrative action; public hearing; presumption of innocence; to be informed of charges in sufficient detail and to have adequate time to prepare her defense; to be heard by an impartial tribunal; due process of the law; access to information; and human dignity. The appellant also pleaded that in reaching its decision, JSC exercised powers it did not have. |
The Supreme Court’s appellate jurisdiction was set out under article 163(4) of the Constitution. Section 15(1) of the Supreme Court Act provided that appeals to the court would be heard only with the leave of the court. Section 15(2) specified that section 15(1) would not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution. An appeal had to 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 had to 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 had to be faulting the Court of Appeal based on such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a).
The test to evaluate the jurisdictional standing of the court in handling the appeal was whether the appeal raised a question of constitutional interpretation or application and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the court by way of an appeal as contemplated under article 163(4)(a) of the Constitution.
A perusal of the record (volume iv of the record of appeal age 1919-1923) indicated that the High Court interpreted and applied articles 161, 226(2) 227, and 172(1) (c) of the Constitution to arrive at the conclusion that JSC had jurisdiction to institute disciplinary proceedings against the appellant. On page 1953 Volume IV of the record of appeal, the High Court concluded that JSC not only acted ultra vires the Act and the Regulations thereunder but also violated the constitutional rights of the appellant under articles 27(1), 35(1)(b), 47(1) and (2), 50(1) and (2) and 236(b) of the Constitution.
At the Court of Appeal, from the record (volume v at pages 2127 -2135), the Court of Appeal interpreted and applied several articles of the Constitution such as article 164(3)(b), 162(2)(a), 23(1) and (3), 20(3), 165(3)(b) to arrive to the conclusion that the Industrial Court and the appellate court were conferred with the jurisdiction to determine the matter. The court also interrogated articles 172(1)(c), 259(11) and 252 to decide that JSC had jurisdiction to initiate proceedings against the appellant suo moto without any recommendations or report from any external oversight bodies. Further, the Court of Appeal interrogated articles 27(1), 35(1)(b), 47(1) and 47(2), 50(1) and 50(2) and 236(b) of the Constitution to find that the High Court erred in its findings regarding the violation of the constitutional rights of the appellant. The appeal fell within the realm of article 163(4)(a) of the Constitution and was properly before the court.
The Fair Administrative Action Act No. 4 of 2015 was assented to on May 27, 2015, and came into force on June 17, 2015, almost 2 years after the cause of action. Therefore, the court’s finding was premised on the applicable law as at the time the cause of action arose. Article 47 of the Constitution guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. If a right or fundamental freedom of a person had been or was likely to be adversely affected by administrative action, the person had the right to be given written reasons for the action.
Article 236(b) of the Constitution provided that a public officer would not be dismissed, removed from office, demoted in rank, or otherwise subjected to disciplinary action without due process. Article 240 of the Constitution defined a public officer as any State officer; or any person, other than a State Officer, who held a public office. From the list provided under article 240, the appellant was not a State officer.
A public office was defined under article 240 of the Constitution to mean an office in the National Government, a county government, or the public service, if the remuneration and benefits of the office were payable directly from the consolidated fund or directly out of money provided by Parliament. Although article 236(b) of the Constitution was pleaded at the Industrial Court, the same was not applicable either to the appellant or to JSC.
Section 12(2) of the Judicial Service Act provided that before the removal of the Chief Registrar under section 12(1), the Chief Registrar was to be informed of the case against him or her in writing and was to be given reasonable time to defend himself or herself against any of the grounds cited for the intended removal. From the record of appeal, the appellant was duly informed of the case against her.
In usual judicial proceedings, the reasonable timeline for filling a defense in courts was 14 days unless time was enlarged by a court. The appellant was accorded a period of 39 days to respond to her claim which was reasonable.
Under article 47 of the Constitution, a person against whom an administrative action was being taken had a right to be given written reasons for the action if a right or fundamental freedom of that person had been or was likely to be adversely affected by an administrative action. The “if” in clause 2 of article 47 implied that giving written reasons for an administrative action was not an automatic right, it had to be demonstrated that a person had been or was likely to be affected by an administrative action.
The burden to demonstrate the effect of an administrative action lay with the person against whom the action had been taken, and in the instant case, it was the appellant. The appellant discharged that burden vide a letter from her advocates asking for among other things, reasons for the appellant’s removal. The letter further indicated that the demand was made pursuant to articles 22, 35, 48, 73 and 159 of the Constitution.
The JNR v Judicial Service Commission, Petition 92 of 2019 [2019] eKLR (JNR case) could be distinguished from the instant case, in that, some records in the JNR case were supplied by JSC to the petitioner after the court had given directions unlike in the instant case where there were no such orders. Furthermore, the court found that the right to access to information could be restricted in terms of legislation, and that apart from setting out the impugned regulation, the petitioner did not outline how the regulation was inconsistent with the provisions cited. Therefore, the circumstances in the JNR case were not applicable in the instant case.
In Bildad Rogoncho Kamwele v Judicial Service Commission, Petition 103 of 2019 [2020] eKLR (Bildad Rogoncho case), the court held that the finding of the court in Simon Rotich Ruto v Judicial Service Commission & another [2019] which declared the provisions of regulation 23 of the Third Schedule to the Act unconstitutional did not extend to the provisions of section 6(h) and (i) of the Access to Information Act which limited the right to access of information under article 35 of the Constitution. The Bildad Rogoncho case was distinguishable from the appellant’s case because in that case, the court did not dispute the declaration of section 23 of the Third Schedule as unconstitutional, but stated that notwithstanding the declaration, the petitioner’s right to access to information was limited under section 6(h) and 6(i) of the Access to Information Act. The Access to Information Act came into force on September 21, 2016, way after the cause of action in the instant case. That authority was inapplicable.
The courts below had made contradictory findings on the constitutionality of section 23 of the Third Schedule to the Judicial Service Act. The instant court could exercise its jurisdiction to clarify uncertainty in the law arising from contradictory precedents of the Court of Appeal by either resolving the uncertainty, as it could determine, or referring the matter to the Court of Appeal for its determination. Even though the instant matter was not filed under article 163(4)(b) of the Constitution, it was necessary for the court to settle, with finality, the issue as to whether section 23 of the Third Schedule was constitutional.
Any limitation of the right to access to information under article 35 of the Constitution could only be done by legislation under specific prescribed criteria. The impugned section 23 was a subsidiary legislation found in the Third Schedule of the Judicial Service Act which was enacted in 2011 (after the effective date). The Third Schedule was premised on section 32 of the Act which made provisions for appointment, discipline and removal of judicial officers and staff. Nowhere in the parent Act, and in particular section 32, was it specifically expressed that there was an intention to limit the right to information of an officer in respect of whom disciplinary proceedings were to be held. Neither, was there an explanation of the nature and extent of the limitation.
It was not the intention of the drafters of the Constitution that a vague provision in a schedule, such as the one in section 23 of the Third Schedule to the Act, could limit a constitutional right or fundamental freedom, in a manner that was reasonable and justifiable in an open and democratic society. In view of the set criteria under article 24(2) of the Constitution, section 23 of the Judicial Service Act on its own did not qualify as a legal basis for the purpose of justifying a limitation of a right or fundamental freedom under article 24.
JSC’s reliance of the proviso in section 23 of the Third Schedule to the Judicial Service Act to limit the appellant’s right to access to information guaranteed in the Constitution was unfounded. JSC’s refusal prejudiced the appellant who could not adequately challenge its decision to remove her from office. Section 23 of the Third Schedule was therefore unconstitutional.
The instant court faulted the Court of Appeal’s finding that it would have been impractical for JSC to give specific reasons regarding the 87 allegations in the termination letter and that a press statement issued by JSC on October 19, 2013 gave detailed reasons for the termination of the appellant’s employment. The least that JSC could have done was to enclose its reasons in the removal letter, the same way it enclosed the allegations against the appellant in its letter dated September 10, 2013. Therefore, refusal to give the appellant reason(s) for her removal, was without justification. The appellant’s right to fair administrative action under article 47 of the Constitution, and the right to access information were violated.
Article 50(1) of the Constitution referred to the right to a fair hearing for all persons, while article 50(2) accorded all accused persons the right to a fair trial. Article 25(c) of the Constitution listed the right to a fair trial as a non-derogable fundamental right and freedom that could not be limited. Often the terms "fair hearing" and "fair trial" were used interchangeably, sometimes to define the same concept, and other times to connote a minor difference.
Although the right to a fair trial was encompassed in the right to a fair hearing in the Constitution, a literal construction of article 50(1) and 50(2) of the Constitution could be misconstrued in some quarters to mean that article 50(1) dealt with the right to fair hearing in any disputes including those of a civil, criminal or quasi criminal nature whereas article 50(2) was limited to accused persons thereby arguing that the protection of such right only related to criminal matters. That was not an acceptable interpretation or construction within the parameters of articles 19 and 20 of the Constitution on the Bill of Rights, which called for an expansive and inclusive construction to give a right its full effect.
Fair hearing in principle incorporated the rules of natural justice, which included the concept of audi alteram partem(hear the other side or no one was to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Although JSC’s letter of September 10, 2013 referred to an earlier letter of August 20, 2013, that letter was not part of the record for unknown reasons. The letter of August 20, 2013 would have been useful to enable the court to discern whether the process was without notice and turned from investigatory to disciplinary. Disciplinary proceedings against the Chief Registrar were not restricted to financial mismanagement and hence, need not be preceded by an investigatory process. JSC had jurisdiction to initiate disciplinary proceedings against the appellant suo motu without any recommendation or report from any external oversight bodies.
The right to a public hearing was provided for under article 50(1) of the Constitution. From the wording of article 50(1), the right to a public hearing was only automatic when the matter being heard was before a court, otherwise, any other hearing be it before a tribunal or body, could only be allowed, if appropriate. That being a discretionary power, it could only be exercised by the body or tribunal conducting the proceedings.
The reasons given by the Court of Appeal to uphold JSC’s refusal to accord the appellant a public hearing were not the same as those given by JSC in its ruling of October 16, 2013. If those were JSC’s reasons for denying the appellant a public hearing, they ought to have been reflected in JSC‘s ruling. Consequently, the court faulted the Court of Appeal for arriving at that conclusion. Further, the JSC’s reasons for denying a public hearing on the basis that it was an internal process, that was its common practice in other disciplinary matters was vague, and not sufficient basis to deny a specific request. Without justifiable reasons for the refusal, the appellant’s right to fair administrative action through public hearing under article 47 of the Constitution was violated.
Without the Hansard Reports and minutes of JSC for October 18, 2013 on record, the court was unable to confirm if the request to call witnesses was made. The court was also not able to authenticate the appellant’s allegations that JSC in violating her right to a fair hearing, did not consider the reports and written submissions in reaching the final decision. Even if the court presumed that the issue of the appellant requesting for an adjournment on October 18, 2013 to call witnesses was raised, as it had not been controverted by JSC in its submissions, the court was not able to conclusively determine the same without the copies of those proceedings. In the absence of JSC’s proceedings of October 18, 2013, it was impossible even for the Court of Appeal to conclusively determine the issue, and therefore the instant court faulted its finding on the same.
The tribunal should not have been reconstituted on account of the alleged perceived bias by the named commissioners and the chairman. Counsel for the appellant admitted to JSC by stating that he could not authenticate the emails upon which the allegations of bias were made. In fact, counsel stated that the same could be true or fake. Without authenticating the emails, it was impossible to conclude that there was actual or reasonable apprehension of bias. The appellant’s right to a fair hearing regarding that aspect was not violated.
Article 24 of the Constitution was permissive on limitation of rights and fundamental freedoms. The limitation was permissible on two conditions;
that a right or fundamental freedom in the Bill of Rights should only be limited by law; and
to the extent only that the limitation was reasonable and justifiable in an open and democratic society. Even where the right or fundamental freedom had been limited by law, the yardstick for determining the reasonableness and justifiability of the limitation was whether such limitation was acceptable in an open and democratic society.
The court in considering the limitation under article 24(1) of the Constitution had to bear in mind that there was no superior right and take into consideration factors such as the nature of the right to be limited, the importance and purpose of the limitation, the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by one individual did not prejudice the rights of others. That called for balancing of rights under the principle of proportionality because rights had equal value and therefore maintained the equality of rights.
JSC did not state the importance or purpose for denying the appellant access to the documents requested through her advocate vide a letter dated October 25, 2013. Without the reasons, the appellant could not adequately challenge the decision to remove her from office in a court of law. The burden to justify a limitation of a fundamental right or freedom lay with the person limiting the same. The appellant specified the documents she needed, and the date of the documents. There was no merit in the Court of Appeal’s finding that the appellant’s request for documents vide a letter dated October 25, 2013, was vague. JSC’s limitation of the appellant’s right of information under article 35 of the Constitution was unreasonable and unjustifiable.
The following guiding principles ought to assist the courts when considering a matter concerning disciplinary proceedings before JSC:
the JSC should comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.
JSC should always give an employee reasonable time to defend himself or herself.
an employee should be informed of the basis of the complaint(s) or who their accusers were to enable the employee to defend themselves.
JSC should furnish an employee with details of allegations against them.
JSC had to always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee had to be accorded a fresh notice to prepare his/her defence.
an employee should be accorded a public hearing if they desired to have one. A decision to decline such a request had to be accompanied with reasons which would be given to the employee.
an employee should be given detailed reasons for any administrative action/decision by JSC.
an employee should access and receive any relevant documents relating to their matter. Any decision to the contrary had to be accompanied by a written reason.
an employee should be accorded opportunity to attend proceedings, in person or in the company of an expert of their choice.
an employee undergoing disciplinary proceedings should be given an opportunity to call witnesses, be heard; cross-examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.
In order to achieve compliance with the guidelines, the JSC was directed to publish and publicize procedures for all its disciplinary and investigative processes, and that such publication be undertaken and effected through the Kenya Gazette, within 90 days from the date of the judgment.
The court took judicial notice that the issue of relief was not substantively addressed by any of the superior courts below. A matter coming on appeal to the court had to have first been the subject of litigation before the High Court and risen through the judicial hierarchy on appeal.
Appeal allowed. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/5/eng@2022-02-17 |
Application 11 (E020) of 2021 | Agatha v Azad & 3 others (Application 11 (E020) of 2021) [2022] KESC 1 (KLR) (Civ) (10 February 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko | 10 February 2022 | 2,022 | Nairobi | Civil | Agatha v Azad & 3 others | [2022] KESC 1 (KLR) | null | The applicant sought leave of the court to file the appeal out of time, or to deem the appeal already lodged to have been so lodged with the court’s leave. The applicant had within three (3) days lodged the notice of appeal on of June 7, 2021, and on the same day requested for typed proceedings and even paid the court charges. The proceedings were, however, not availed until September 20, 2021. Nine (9) days later, the instant application was made on September 29, 2021. Time began to run from June 7, 2021, being the date the notice of appeal was lodged. Within 30 days of that date, namely on July 19, 2021, in terms of section 57 of the Interpretation and General Provisions Act, the appeal ought to have been filed. The delay was attributed to the court’s failure to furnish the applicant with a copy of the proceedings. They were subsequently availed on September 20, 2021.The 1st respondent opposed the application on grounds that the whole period of delay had not been declared or explained satisfactorily; and that the applicant had not provided a certificate of delay from the Deputy Registrar of the Court of Appeal, as proof that the delay was occasioned elsewhere, nor has she explained the steps, if any, taken to follow up the proceedings. The 1st respondent also contended that even if time was enlarged, the intended appeal was not arguable as it did not raise matters of general public importance or of novel constitutional nature. |
Under rule 15(2) of the Supreme Court Rules, 2020, the Supreme Court had unfettered discretionary powers to extend time limited by the rules or by any of its decisions. Any person intending to appeal to the court was 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; and that, subsequently, within thirty days of the date of lodging the notice of appeal, an appeal had to be filed. In terms of section 57 of the Interpretation and General Provisions Act, the appeal ought to have been filed. The delay was attributed to the court’s failure to furnish the applicant with a copy of the proceedings. They were subsequently availed on September 20, 2021. The fact that a court had contributed to the delay would not automatically lead to a favourable outcome to an applicant as each case will be determined on its peculiar circumstances.
The proceedings were availed on September 20, 2021. Before that period the applicant could not take any step towards lodging the appeal. So that time could only start running from September 20, 2021. Therefore, the period in contention was between September 20, 2021 and of September 29, 2021, the date this application was made, in total a delay of 9 days.
The following principles guide parties in an application for the enlargement of time:
extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party, at the discretion of the court;
a party who sought extension of time had the burden of laying a basis, to the satisfaction of the court;
whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
where there was a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the court;
whether there would be any prejudice suffered by the respondents, if an extension was granted;
whether the application had been brought without undue delay; and
whether in certain cases, like election petitions, public interest should be a consideration for extending time.
The delay not being inordinate and the applicant having sufficiently explained her predicament, the explanation was consistent with the court’s position that an appeal filed out of time without leave of the court was irregular.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/1/eng@2022-02-10 |
Petition 13 of 2020 | Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 of 2020 (Consolidated)) [2022] KESC 2 (KLR) (10 February 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, W Ouko | 10 February 2022 | 2,022 | Nairobi | Civil | Kenya Railways Corporation & 2 others v Okoiti & 3 others | [2022] KESC 2 (KLR) | null | The applicant filed the instant application seeking leave to file its supplementary record of appeal being the replying affidavit of its then managing director. The applicant claimed that it inadvertently, by omission, failed to include as part of the record the replying affidavit by the then managing director of the applicant and that the omission was only discovered while the applicant was preparing submissions to the petition. Further, that upon realization, the applicant proceeded to file the instant application in good faith. The applicant also claimed that the replying affidavit formed the crux of the interpretation of the law by the Court of Appeal and was integral to the disposition of the Court of Appeal. | Though the applicant had invoked the court’s jurisdiction to extend time under rule 15(2) of the Supreme Court Rules, 2020, the application did not seek any express relief for extension of time. Nevertheless, rule 40 of the Supreme Court Rules, 2020 dealt with the contents of a record of appeal which included the relevant pleadings required to determine the appeal. Under rule 40(4) where a document was omitted from the record of appeal under that rule, the appellant could within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/2/eng@2022-02-10 |
Application 12 (E021) of 2021 | Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko | 10 February 2022 | 2,022 | Nairobi | Civil | Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others | [2022] KESC 3 (KLR) | null | The applicants’ appeal to the instant court was struck out for want of form. The court noted that the appeal did not contain any prayer for any specific relief; further, the appellant had failed to include in the record of appeal, substantial and essential parts of the petition in the High Court. The applicant filed the instant application for leave to extend time to file a fresh notice of appeal or in the alternative, that time to file an appeal out of time be extended. | It was well over fifteen days and indeed over one year between the filing of the record of appeal and the instant application. The applicant’s counsel merely stated in his affidavit that he discovered the absence of the supplementary record of appeal when preparing the submissions for the petition making it difficult to address the question of delay. The applicant had not explained the delay or when he made the discovery. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/3/eng@2022-02-10 |
Petition 1 of 2020 | Attorney General v Zinj Limited (Petition 1 of 2020) [2021] KESC 23 (KLR) (3 December 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko | 3 December 2021 | 2,021 | Nairobi | Civil | Attorney General v Zinj Limited | [2021] KESC 23 (KLR) | null | The appellant challenged the decision of the Court of Appeal which partly allowed an appeal against the decision of the Environment and Land Court (the trial court) on the award of damages. The respondent was the registered owner of the suit property pursuant to a grant issued under the repealed Registration of Titles Act, (Cap 281) Laws of Kenya. The respondent claimed that in 2007, the appellant, without reference to or concurrence of the former, unilaterally issued duplicate title deeds over portions of the suit property in favour of third parties under the repealed Registered Lands Act (Cap 300) Laws of Kenya. It was the respondent’s further claim that among other groups of people, the Department of Defence through the then Permanent Secretary to the Treasury, was granted a duplicate title over a parcel of land which was part of the suit property. Aggrieved, the appellants filed a petition at the trial court and claimed that the duplicate titles were issued to trespassers who had encroached on the suit property. The appellant’s case was that the respondent’s act of issuing titles over the suit property was illegal and amounted to unlawful compulsory acquisition and deprivation of its property. It further claimed that the respondent’s actions amounted to a violation of its rights under article 40 (1) and (3) of the Constitution, and sought two declarations to that effect, and a consequential award of damages. The trial court held that the issuance of duplicate titles over the appellant’s land, in favour of third parties, amounted to unlawful compulsory acquisition, and a violation of its right to property under article 40(3) . The trial court determined that the acreage unlawfully acquired was 51.129 ha and awarded the respondent a sum total of Kshs. 413,844,248.70 as compensation for the land encroached and Kshs. 51,129,000 as general damages for breach of the respondent’s right to property.
The Court of Appeal upheld the trial court’s finding that the respondent’s right to property was violated, and determined that the appellant’s acts amounted to compulsory acquisition of portions of the suit property. Further, the appellate court held that the respondent was entitled to compensation under article 40(3) of the Constitution, on account of the compulsory acquisition. Additionally, the court faulted the trial court for failing to properly exercise its discretion in the computation of damages and determined that the respondent was entitled to compensation for the entire suit property. It found that upon payment of the compensation, the respondent would be deemed to have relinquished its title to the suit property. Finally, the Court of Appeal awarded damages of Kshs. 449, 434, 800 for the compulsory acquisition of the suit property and Kshs. 42, 570, 000 as damages for violation of the appellant’s right to property. Aggrieved, the petitioner filed the instant appeal. | During the proceedings at both the trial and appellate courts, the ownership status of the suit property was never in doubt. It remained an uncontroverted fact that the respondent acquired the suit property pursuant to a grant of lease by the government. By the time the cause of action arose, the lease in favour of the respondent was intact.The only way the Government could lawfully deprive the respondent of part or all of its property, was through a compulsory acquisition, in conformity with the provisions of article 40(3) of the Constitution, and the procedure stipulated in the repealed Land Acquisition Act which was the applicable law at the time. The Government did not acquire the portion of the suit property compulsorily. The facts on record did not point towards compulsory acquisition. Being the custodian of the land register, and the guarantor of titles emanating there-from, the Government was acutely aware that the suit property was privately owned by the respondent.
Any compulsory acquisition process, ought to have commenced with a requisite notice to the respondent, and any other persons claiming an interest in the land. The public purpose for which the land was to be acquired, ought to have been clearly stated. Most critically, the resultant acquisition ought to have been attended with prompt payment in full of a just compensation to the respondent. There was nothing on the record to show, that any of those mandatory processes was followed before a portion of the suit property was acquired. The issuance of titles over a portion of the suit property in favour of third parties was unlawful, un-procedural, and an egregious violation of the respondent’s right to property. The issuance of titles to third parties over a portion of the suit property, amounted to a violation of article 40(3)(a) and (b) of the Constitution.
The trial court and Court of Appeal granted special and general damages. There was no reason to interfere with the findings of the two superior courts in that regard. In arriving at the quantum of special damages, the trial court placed reliance upon a valuation report by a private valuer. The main basis upon which special damages could be granted for the deprivation of property, was the market value of the suit property. In case of general damages, a court of law exercised discretion guided by the circumstances of each case. In granting special damages, the trial court was guided by the valuation report tabled by the respondent. In the absence of a contrary report on record, there was no basis upon which to interfere with the award. Even if there had been one such other report, the Supreme Court’s jurisdiction to interfere would have been largely circumscribed, unless the award had clearly ignored the fundamental principles of valuation as demonstrated by the counter-report.
The principles governing compensation for compulsorily acquired land, could not be applicable to the suit land, as the same had not been so acquired. The most appropriate remedy was an award of damages. The Supreme Court approved of the Court of Appeal’s decision to award compensation in difficulty, not just with regard to a portion of the land, but for the whole of the suit property including the un-acquired portion. Nor could the Supreme Court justify an award of damages that extended to that part of the land that had neither been compulsorily, nor unlawfully acquired. The respondent’s contention that the unlawful acquisition of a portion of its land had resulted in the diminution of the value of the whole of the suit property was a matter of fact, which ought to have been authoritatively established at the trial court. But even if that fact had been established at the trial court, the same would not have constituted a constructive compulsory acquisition, a legal tenet unknown to Kenyan law.
Appeal partly allowed. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/23/eng@2021-12-03 |
Petition 5 (E007) of 2021 | Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR) (Civ) (3 December 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 3 December 2021 | 2,021 | Nairobi | Civil | Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission | [2021] KESC 22 (KLR) | null | null | The principles that guided the Supreme Court in determining applications for conservatory orders were:
the Appeal or intended appeal was arguable and not frivolous.
Unless the orders sought were granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
That it was in public interest that the conservatory orders be granted.
The question whether an appeal was arguable, did not call for the interrogation of the merit of the appeal. The Supreme Court at an interlocutory was not to make any definitive findings of either fact or law. An arguable appeal was not one which had to necessarily succeed, but one which ought to be argued fully before the Court.
In the time it had taken for the appeal to reach the Supreme Court, the world had been rocked by the Covid-19 pandemic which was first identified in December of 2019 and declared a global pandemic in March 2020. The Supreme Court took judicial notice that on March 25, 2020, the President, as part of the Government’s containment and treatment protocols announced a nationwide overnight curfew to take effect from March 27, 2020 between the hours of 7 p.m. to 5 a.m. The night time curfew had been continuously extended with some modifications on the effective hours being reduced but the same had since been lifted by Presidential directive on October 20, 2021. The curfew imposed after the 2015 Garissa University attack, was prompted by security concerns. However, the contested curfew orders in the application were due to the Covid-19 pandemic, which had been declared a public health emergency.
For an appeal to lie to the Supreme Court from the Court of Appeal under article 163(4)(a), the constitutional issue must have had first been in issue at both the High Court and then the Court of Appeal for determination. The Supreme Court recognized and respected the constitutional competence of courts in the judicial hierarchy to resolve matters before them.
The underlying challenge for the curfew orders of 2015 and the curfew orders of 2020 was the constitutionality of sections 8 and 9 of the Public Order Act on which the curfew orders were premised. The facts giving rise to the cause of actions were premised on different aspects; the 2015 curfew orders on security concerns following a terrorist attack and the 2020 curfew orders on a public health emergency following the continuing threat of a global pandemic.
At no point were the superior courts called on or had opportunity to render themselves on the legality and constitutionality or otherwise of the 2020 curfew orders issued with a view to contain the Covid-19 virus as a public health emergency. It would be greatly dishonest for the applicant to seek to introduce that new aspect when on final appeal before the Supreme Court. More so without having argued it before both the High Court and Court of Appeal.
Application dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/22/eng@2021-12-03 |
Petition 17 (E017) of 2020 | Katiba Institute v Attorney General & 9 others (Petition 17 (E017) of 2020) [2021] KESC 25 (KLR) (3 December 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 3 December 2021 | 2,021 | Nairobi | Civil | Katiba Institute v Attorney General & 9 others | [2021] KESC 25 (KLR) | null | Rule 15(2) of the Supreme Court Rules, 2020 granted the Supreme Court the discretion to extend time. The Supreme Court could, in its discretion, extend time for any action under the Rules. The guiding principles for extension of time were:
Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
Whether the Supreme Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis
Whether there was reasonable reason for the delay; the delay should be explained to the satisfaction of the court.
Whether there would be any prejudice suffered by the respondent if the extension was granted.
Whether the application had been brought without undue delay.
Whether in uncertain cases, like election petitions, public interest should be a consideration for extending time.
No prejudice would be occasioned to the respondents if leave was granted as prayed. The purpose of the replying affidavits was to reinforce the grounds of objections already filed. A replying affidavit was the principal document wherein a respondent’s reply was set and the basis of any submissions and/or list of authorities that may be subsequently filed.
Application allowed. | Rule 15(2) of the Supreme Court Rules, 2020 granted the Supreme Court the discretion to extend time. The Supreme Court could, in its discretion, extend time for any action under the Rules. The guiding principles for extension of time were:
Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
Whether the Supreme Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis
Whether there was reasonable reason for the delay; the delay should be explained to the satisfaction of the court.
Whether there would be any prejudice suffered by the respondent if the extension was granted.
Whether the application had been brought without undue delay.
Whether in uncertain cases, like election petitions, public interest should be a consideration for extending time.
No prejudice would be occasioned to the respondents if leave was granted as prayed. The purpose of the replying affidavits was to reinforce the grounds of objections already filed. A replying affidavit was the principal document wherein a respondent’s reply was set and the basis of any submissions and/or list of authorities that may be subsequently filed.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/25/eng@2021-12-03 |
Petition 10 of 2021 | Lelli v Kenya Medical Training College & 2 others (Petition 10 of 2021) [2021] KESC 21 (KLR) (Civ) (3 December 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, W Ouko | 3 December 2021 | 2,021 | Nairobi | Civil | Lelli v Kenya Medical Training College & 2 others | [2021] KESC 21 (KLR) | null | The 1st respondent had previously applied for orders to strike out the petition of the appeal by the petitioner. Following the respondent’s application, the petitioner filed an application to withdraw the petition. | While a party could move the Supreme Court to have an appeal struck out; rule 27(1) of the Supreme Court Rules, 2020, a party could, with the leave of the court, withdraw the proceedings at any time before the delivery of the judgment. A party’s liberty to withdraw a matter could not be taken away. A court had to allow a party who had approached the court to withdraw such a matter if he deemed so fit to do.Since the application to withdraw the petition had been granted, there was no need to delve into the application by the 1st respondent to strike out the petition of appeal because the petitioner on his own motion had moved to withdraw the petition in the appeal. That did not in itself connote bad faith as the appeal stood withdrawn, which was essentially what the 1st respondent sought to have the court do by seeking orders to have the appeal struck out. No prejudice would be caused to the 1st respondent by the petitioner moving the court to have the proceedings withdrawn.
The application was allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/21/eng@2021-12-03 |
Petition 29 of 2020 | Okoiti & another v Attorney General & another (Petition 29 of 2020) [2021] KESC 28 (KLR) (Civ) (3 December 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, PM Mwilu, NS Ndungu, I Lenaola | 3 December 2021 | 2,021 | Nairobi | Civil | Okoiti & another v Attorney General & another | [2021] KESC 28 (KLR) | null | The applicants sought for the Supreme Court findings on the gender principle in Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, be declared unconstitutional. In opposition, the 1st respondent filed a preliminary objection on grounds the applicants lacked locus standi to seek an advisory opinion of the Supreme Court under the Constitution and therefore also lacked the legal standing to seek a review of the Supreme Court’s advisory opinion. | Article 163(6) of the Constitution granted the Supreme Court jurisdiction to issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government. A party that sought an advisory opinion under article 163(6) had to have locus standi.The Supreme Court had to always consider whether the party that sought to move it fell within the categories of parties decreed as having such locus standi by the Constitution. The applicants did not fall within the categories contemplated under article 163(6) of the Constitution and therefore they did not have locus standi to seek a review of orders issued by the Supreme Court in the advisory opinion. The applicants were not parties to the proceedings in Advisory Opinion No. 2 of 2012 and as such, they lacked locus standi to approach the Supreme Court to review and/or vary its orders.
Application dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/28/eng@2021-12-03 |
Application 9 of 2021 | Tawai Limited v Eldoret Express Limited; National Land Commission (Interested Party) (Application 9 of 2021) [2021] KESC 24 (KLR) (3 December 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, N Ndungu | 3 December 2021 | 2,021 | Nairobi | Civil | Tawai Limited v Eldoret Express Limited; National Land Commission | [2021] KESC 24 (KLR) | null | The applicant sought to review, vary and or set-aside the Supreme Court’s ruling that upheld the Court of Appeal’s decision denying certification and to reinstate it for fresh hearing. | The extent of the Supreme Court’s review of certification jurisdiction was provided for in article 163(5) of the Constitution which provided that a certification by the Court of Appeal under clause 4(b) could be reviewed by the Supreme Court, and either affirmed, varied or overturned. Where one applied to the Court of Appeal for leave to appeal to the Supreme Court, and the party was not satisfied by the decision of the Court of Appeal, no appeal lay. The only recourse was for the party to apply for review of the matter to the Supreme Court.The Supreme Court could only vary any of its judgments, rulings or orders under the following instances:
where the judgment, ruling or order was obtained by fraud or deceit.
Where the judgment, ruling or order was a nullity, such as when the court itself was not competent;
where the court was misled into giving judgment, ruling or order under a mistaken belief that the parties had consented;
where the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.
The applicant had not laid any basis, upon which the court should review its ruling. None of the conditions had been demonstrated as prevailing so as to warrant a review or variation of the court’s ruling.
The application for a second review was not merited | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/24/eng@2021-12-03 |
Petition 41 of 2019 | Kenya Revenue Authority & 2 others v Mount Kenya Bottlers Ltd & 4 others (Petition 41 of 2019) [2021] KESC 26 (KLR) (26 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, W Ouko | 26 November 2021 | 2,021 | Nairobi | Civil | Kenya Revenue Authority & 2 others v Mount Kenya Bottlers Ltd & 4 others | [2021] KESC 26 (KLR) | null | The Court of Appeal had overturned the judgment and orders of the High Court in Petition No. 72 of 2011. In dismissing the 1st to 4th respondent’s petition, the High Court had held that the petitioners had acted within the law in demanding payment of excise duty on returnable containers and that there was no breach of any constitutional rights of the 1st to 4th respondents.Aggrieved by the decision of the Court of Appeal, the petitioners filed the instant petition of appeal and the matter was eventually set for hearing. However, before the hearing and upon perusing the filed pleadings and record of appeal, the Supreme Court noted some serious anomalies: that the petition of appeal omitted any prayer for relief, and that the petition filed in the High Court as well as a substantial part of the affidavit supporting it, was missing from the record of appeal. As such, the court found that it was necessary to ascertain the status of these documents before proceeding to hear the matter.
Counsel for the petitioners indicated that their petition of appeal contained the reliefs sought. It was their submission that the court ought to make pronouncements on the principles of taxation in terms of that paragraph. Counsel further urged the court to allow them to ventilate the matter and not strike out the appeal, arguing that such a move was too draconian and that if necessary, the petitioners should then be allowed to amend the petition. On the other hand, counsel representing the respondents submitted that the petition did not contain any reliefs sought. In that regard, he submitted that the petition could not now be amended and urged that the omission was fatal because the arguments to be advanced by the parties had to result in reliefs that the court could properly grant. It was further contended that there being no reliefs sought, proceeding to hear the matter would be undertaking an academic exercise as a court determined issues pleaded and granted reliefs sought by the parties. | There were no actual legally recognized reliefs pleaded by the petitioners for the court to grant, the petition of appeal before the court was fatally defective for lack of reliefs sought and ought to be struck out.The record indicated that the instant matter was severally mentioned before the Deputy Registrar for the petitioners to file a supplementary record of appeal. The mentions culminated into a consent dated October 5, 2020 adopted as a court order on October 8, 2020 where the court directed and ordered that the supplementary record of appeal be filed and served within 14 days from the date of recording the consent. The petitioners filed a supplementary record but it only contained the order and proceedings of the Court of Appeal. Therefore, the defect was not cured as the High Court petition and part of the affidavit were still missing.
Rule 33(4) of the Supreme Court Rules, 2012 (repealed) which rules were applicable at the time of filing stated that for the purpose of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal had to contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub rule (3) and had to further contain the following documents relating to the appeal in the first appellate court being the certificate, if any, certifying that the matter was of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. The petitioners were obligated by law to include all the pleadings and documents relied upon during the hearing in the two superior courts. Failure to comply with section 33(4) of the Supreme Court Rules, 2012 (repealed) was fatal as the window for such compliance was closed. The petition was fatally defective and incurable
The Supreme Court was concerned with the demeanour of counsel appearing for the petitioners. Even when he was aware that essential documents were missing from the record of appeal, he intended to proceed with the matter without duly informing the court or the other parties in the matter. That apparent attempt by counsel to mislead the court, fell short of professional etiquette and conduct that was expected from an advocate and officer of the court. It was improper, dishonest, and discourteous for an advocate to deliberately conceal material facts that were important to arriving at a just and fair decision. The Supreme Court frowned greatly upon such behaviour.
The petition was struck out. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/26/eng@2021-11-26 |
Petition 12 (EO16) of 2020 | Attorney General v David Ndii & 73 others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Attorney General v David Ndii & 73 others | [2021] KESC 17 (KLR) | null | The applicant sought to be joined as an interested party to the suit on grounds that it brought a fresh perspective to the appeal adopting a different view from the Court of Appeal’s finding on the basic structure. The applicant submitted that the alterations to the Constitution’s basic structure had to be subjected to a two-step inquiry that incorporated tiers of the constitutional scrutiny. The 7th, 8th, 9th; 13th and 18th respondents’ opposed the application, urging the court to dismiss it on the grounds, inter alia, that the applicant had no identifiable interest, separate and distinct from those already advanced by the parties on record, and that the application fell short of the elements required for joinder of an interested party. | An applicant for joinder as interested party had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 24 of the Supreme Court Rules, 2020.The guiding principles applicable in determining an application to be joined as an interested party in were:
One had to move the court by way of a formal application. Joinder of a party was not as of right, but was at the discretion of the court; hence, sufficient grounds had to be laid before the court, on the basis of the following elements:
The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.
The prejudice to be suffered by the intended interested party in case of non-joinder, had to also be demonstrated to the satisfaction of the court. It had to also be clearly outlined and not something remote.
A party’s application had to set out the case and/or submissions it intended to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that those submissions were not merely a replication of what the other parties would be making before the court.
The applicant had not met the threshold for admission as an interested party as it had failed to establish a personal interest or stake that was proximate enough to occasion any prejudice to it, if not joined in the proceedings.
Application dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/17/eng@2021-11-09 |
Petition E016 of 2021 | Attorney General v David Ndii & others; Albert & another (Amicus Curiae) (Petition E016 of 2021) [2021] KESC 16 (KLR) (Civ) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Attorney General v David Ndii & others; Albert & another | [2021] KESC 16 (KLR) | null | The applicants sought to be admitted as amici curiae (friends of the court). The applicants contended that they had expertise in constitutional law and sought to present amici briefs on whether the Constitution of Kenya (Amendment) Bill 2020 was best understood as a constitutional amendment or a constitutional dismemberment and on the meaning and importance of constitutional amendments. | An applicant for joinder as amicus curiae had to satisfy the court that they had satisfied the legal requirements for joinder as stated under rule 19 of the Supreme Court Rules, 2020.The guiding principles applicable in determining an application for joinder as amicus curiae were:
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 a reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution’s call for the resolution of disputes without undue delay. The court could on a case-by-case basis, reject amicus briefs that did not comply.
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.
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
The admission of amici curiae was useful for achieving Kenya’s constitutional mandate to develop the law with the assistance of input from parties appearing before the court. The applicants intended to address the court on the issue of constitutional amendments including questions touching on the basic structure, its scope, relevance, and applicability. The applicants' detailed amici briefs were useful to the court. No prejudice would be caused to any party if the applicants were admitted and no partiality expressed in their draft amici briefs.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/16/eng@2021-11-09 |
Petition E016 of 2021 | Attorney General v Ndii & 73 others; Akech (Intended Amicus Curiae) (Petition E016 of 2021) [2021] KESC 20 (KLR) (Civ) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Attorney General v Ndii & 73 others; Akech | [2021] KESC 20 (KLR) | null | The applicant sought to be joined as amicus curiae (friend of the court). The applicant contended that he had the expertise and intended to submit to the court on the history of the making of the Constitution vis-à-vis the basic structure doctrine and its application. | An applicant for joinder as amicus had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 19 of the Supreme Court Rules 2020.The guiding principles applicable in determining an application to be joined as amicus curiae were:
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 tended to compromise their essence as well as the terms of the Constitution of Kenya, 2010’s call for the resolution of disputes without undue delay. The court could, therefore, and on a case-by-case basis, reject amicus briefs that did not comply with the principle of timeous filing.
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.
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
The role of amici in court was to aid the court to arrive at a determination based on the law. The applicant wished to restrict himself to only addressing the history of the making of the Constitution vis-à-vis the basic structure doctrine and its application. The applicant was neutral on the dispute, and he would restrict his submissions to the issues raised in his amicus brief.
The applicant’s amicus brief would be of valuable assistance to the court and the applicant had demonstrated expertise in his field relevant to the Supreme Court.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/20/eng@2021-11-09 |
Petition E016 of 2021 | Attorney General v Ndii & 73 others; Dixon & 2 others (Amicus Curiae) (Petition E016 of 2021) [2021] KESC 19 (KLR) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Attorney General v Ndii & 73 others; Dixon & 2 others | [2021] KESC 19 (KLR) | null | The applicants sought to be joined as amici curiae (friends of the court). The applicants contended that they had expertise and intended to submit to the court on constitutional issues. | An applicant for joinder as amicus had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 19 of the Supreme Court Rules 2020.The guiding principles applicable in determining an application to be joined as amicus curiae were:
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 tended to compromise their essence as well as the terms of the Constitution of Kenya, 2010’s call for resolution of disputes without undue delay. The court could, therefore, and on a case-by-case basis, reject amicus briefs that did not comply with the principle of timeous filing.
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.
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
At the core of the petition was the application and interpretation of articles 255, 256 and 257 of the Constitution on amendment of the Constitution. The applicants had demonstrated scholarly expertise in constitutional law. The submissions advanced by the applicants would be of valuable assistance to the Supreme Court.
The court was not convinced by the arguments by the 20th and 23rd respondents on bias and lack of neutrality as the respondents had not provided anything which pointed to a lack of impartiality on the part of the applicants. With no evidence pointing to lack of impartiality on the applicants, the applicants had met the criteria set out in Mumo Matemu on joinder of amici curiae. Their participation would bring on board the much needed additional material on the subject of the petition; and that would aid the court in arriving at a judicious determination.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/19/eng@2021-11-09 |
Petition E016 of 2021 | Attorney General v Ndii & 73 others; Fombad & another (Amicus Curiae) (Petition E016 of 2021) [2021] KESC 18 (KLR) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Attorney General v Ndii & 73 others; Fombad & another | [2021] KESC 18 (KLR) | null | The applicants sought to be enjoined as amici curiae (friends of the court). They contended that they had scholarly expertise in constitutional matters in the African and international context and that they were authors of several books and numerous articles. Further, they stated that they intended to address the court on whether the implied limitations based on the basic structure doctrine, constitutional un-amenability and eternity clauses doctrines were applicable to the intended amendment of the Constitution of Kenya, 2010. | An applicant for joinder as amicus curiae had to satisfy the court that they had satisfied the legal requirements for joinder as stated under rule 19 of the Supreme Court Rules 2020.The guiding principles applicable in determining an application to be enjoined as amicus curiae were:
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 a reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution’s call for the resolution of disputes without undue delay. The court could on a case-by-case basis, reject amicus briefs that did not comply.
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
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
The admission of amici curiae was useful for achieving Kenya’s constitutional mandate to develop the law with the assistance of input from parties appearing before the court. The applicants intended to address the court on the applicability of the basic structure doctrine and the approach adopted by African countries as well as the amendment of the Constitution, its implied limitations and risks to constitutionalism, rule of law and democracy. In the circumstances, the applicants' detailed amicus briefs were to be useful to the court. No prejudice would be caused to any party if the applicants were admitted. There was no partiality expressed in their draft amicus briefs.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/18/eng@2021-11-09 |
Petition 12 (E016) of 2021 | Attorney General v Ndii & 73 others (Petition 12 (E016) of 2021) [2021] KESC 15 (KLR) (Civ) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Attorney General v Ndii & 73 others | [2021] KESC 15 (KLR) | null | The 21st respondent (applicant) sought the recusal of Honourable Justices Mohammed Khadhar Ibrahim, Smokin Wanjala and Njoki Ndungu Susanna from hearing and determining the petition of appeals arising from the judgment of the Court of Appeal delivered on August 20, 2021 in Civil Appeal No. E291 of 2021 as consolidated with Civil Appeal Nos. E292 of 2021, E293 of 2021 and E294 of 2021.The applicant contended that it had lodged with the Judicial Service Commission a petition on April 6, 2016 for the removal of six judges on account of a breach of the code of conduct prescribed for judges and for gross misconduct which petition was still pending, the Judicial Service Commission being non-responsive leading the applicant to institute Petition No.301 0f 2016 Isaac Aluoch Polo Aluochier v Ahmed Issack Hassan & 24 others [2016] eKLR. The application was opposed on grounds that the application was an afterthought, ill-conceived and intended to convolute and delay the hearing and determination of the petition; that the applicant had not demonstrated and/or adduced any such evidence in support of the allegations on bias by any of the cited judges and that the application was self-defeating for the reason that whereas the applicant cited three judges for recusal he sought recusal of only two of them. Lastly, the application was opposed on grounds that the application offended the doctrine of the duty of a judge to sit. | The instant court established from the Judicial Service Commission the existence of the applicant’s petition against the three judges. The Judicial Service Commission reported that it did not have evidence of ever having received any such petition in its records. The three judges were similarly not aware of the existence of any petition for their removal filed with the Judicial Service Commission by the applicant. The applicant had not adduced any evidence as to the nature and contents of his alleged petition to the Judicial Service Commission against the judges to enable the instant court determine the extent to which the applicant was aggrieved against each of the judges. In the absence of the petition by the applicant against the judges before the court either directly or through the Judicial Service Commission, the possibility of bias or impartiality was farfetched and speculative.The applicant had not spelt out any specific allegation that was likely to impair the judges in dealing with a matter against the applicant as the applicant indicated willingness to have either of the three judges he was accusing to be part of the bench and to have his petition resolved through alternative dispute resolution mechanisms. The applicant having instituted his petition against the judges to the Judicial Service Commission, the same should have been allowed to take its course as the Judicial Service Commission was an independent constitutional body and operated separately from the Supreme Court.
Article 25 of the Constitution protected the right to fair trial under article 50(2) of the Constitution which only applied to accused persons in criminal proceedings. That was distinguishable from fair hearing alluded to by the applicant under article 50(1) of the Constitution. The doctrine of necessity and duty to sit necessitated the instant matter being heard on merits. That was owing to its public interest nature. None of the other parties in the instant matter had supported the instant application. The Supreme Court under article 163(7) of the Constitution and section 3 of the Supreme Court Act was mandated to make authoritative findings and settle points of law such as those raised in the instant appeal.
The issue as to whether the necessity and duty to sit amounted to the derogation of the right to fair hearing under article 50(1) of the Constitution did not arise under the circumstances. The judges having been appointed in their position under the Constitution including satisfying the provisions of article 73(2)(b) and 166(2)(c) of the Constitution, their impartiality and integrity could only be negated following due process which the petitioner alleged to have invoked but which was inconclusive.
Application disallowed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/15/eng@2021-11-09 |
Petition 11 (E015) of 2021 | Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 9 November 2021 | 2,021 | Nairobi | Civil | Omoke v Kenyatta & 83 others | [2021] KESC 27 (KLR) | null | The 71st, 72nd and 73rd respondents (the applicants) sought for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions. They contended that all three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted. | The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2020, which stipulated that the court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time.Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment. Further, the application was not opposed in substance.
The instant application had met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, Attorney General vs David Ndii & 73 Others, encapsulated most of the key grounds common to the rest of the other petitions, in contrast with the appellant’s Petitions No. 11 (E015) of 2021, which raised only one question.
The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court.
Application allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/27/eng@2021-11-09 |
Application 14 (E022) of 2021 | Sonko v Clerk County Assembly of Nairobi City & 11 others (Application 14 (E022) of 2021) [2021] KESC 14 (KLR) (8 November 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | SC Wanjala, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 8 November 2021 | 2,021 | Nairobi | Civil | Sonko v Clerk County Assembly of Nairobi City & 11 others | [2021] KESC 14 (KLR) | null | The applicant filed the instant appeal and contended that the application was squarely within the Supreme Court’s jurisdiction in terms of article 163(4)(a) of the Constitution and sections 3(a) and 3(b) of the Supreme Court Act. Further, that the intended appeal would be rendered nugatory unless a temporary order of injunction was granted as he stood to be unfairly, unlawfully, unprocedurally and oppressively deprived of his position as Governor of Nairobi City County. The 1st and 3rd respondents filed preliminary objections on grounds that the instant application was incompetent and ought to be struck out for the reasons that, neither the petition nor the application raised any question of constitutional interpretation or application as the main dispute was yet to be determined by the Court of Appeal. | The appeal before the Court of Appeal was yet to be heard and determined and was scheduled for arguments. There was no substantive determination of a constitutional question by the Court of Appeal to warrant the invocation of the Supreme Court’s jurisdiction under article 163(4)(a) or of its inherent powers under rule 31 of the Supreme Court Rules, 2020.The appeal before the Court of Appeal was yet to be heard and determined. An application so tangential, could not be predicated upon the terms of article 163(4)(a) of the Constitution. Any square involvement of the Supreme 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.
Without substantive determination of, and in the absence of a judgment of the Court of Appeal in the appeal pending before it, the application was premature and did not meet the threshold of article 163(4)(a) of the Constitution. The court lacked jurisdiction to entertain the application.
Application dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/14/eng@2021-11-08 |
Petition 14 of 2020 | Director of Public Prosecutions v Okemo & 4 others (Petition 14 of 2020) [2021] KESC 13 (KLR) (Crim) (5 November 2021) (Judgment) (with dissent - W Ouko, SCJ) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, MK Koome, SC Wanjala, N Ndungu, W Ouko | 5 November 2021 | 2,021 | Nairobi | Civil | Director of Public Prosecutions v Okemo & 4 others | [2021] KESC 13 (KLR) | null | The Attorney General of Jersey made a request for the extradition of the 1st and 2nd respondents. The Attorney General of Kenya handed over the extradition request to the Office of the Director of Public Prosecutions (DPP) which was then a department in the office of the AG. The DPP after due consideration issued an Authority to Proceed to the Chief Magistrate and filed extradition proceedings.Aggrieved by the decision the applicants filed an application, alleging that in the absence of Authority to Proceed under the hand of the AG, the extradition proceedings were invalid in law. The Chief Magistrate Court (Extradition Court) held that the extradition proceedings were criminal in nature and that the AG had no role to play.
Aggrieved by the Extradition Court’s decision, the appellants appealed to the High Court. The High Court held that the court conferred with jurisdiction to conduct extradition proceedings was the Extradition Court and not the High Court and that it would not usurp the jurisdiction of the Extradition Court. The High Court held that although extradition proceedings had elements of international law, they were not sui generis proceedings but were criminal proceedings. The High Court went on to find that under the Constitution of Kenya, 2010, read with necessary adaptations, it was the DPP who had the legal authority to issue the Authority to Proceed, and thus the extradition proceedings were valid. Aggrieved by the decision the AG filed an appeal at the Court of Appeal where it was held that the Authority to Proceed issued by the DPP was a nullity as the role to institute extradition proceedings was vested in the AG. Aggrieved, the DPP filed the instant appeal. | It was a matter of grave concern to the Supreme Court that a case as fundamental as the instant one, revolving around a critical constitutional question, had been stuck in Kenya’s justice system for over ten years for it to be finally resolved. Such dalliance with the exacting demands of justice was neither testimony to the Judiciary’s judicial rigour, nor to Kenya’s commitment to its international obligations. In view of the unacceptable delay, the Supreme Court decided to deliver the judgment in the instant shortened version, to be followed by detailed reasons, pursuant to rule 20(2) of the Supreme Court Rules 2021, on a date to be notified.A reading of article 157 of the Constitution, the relevant extradition treaties, and other applicable laws, left no doubt that extradition proceedings were criminal in nature. The fact that extradition proceedings were criminal in nature, divested the Attorney General of any authority to involve him/herself in their initiation (that was issuance of Authority to Proceed) and conduct before a court of law. The Attorney General however retained the executive authority to receive requests for extradition and to transmit the same to the Director of Public Prosecutions for necessary action.
Under the Constitution of Kenya, 2010, the powers to prosecute any conduct of a criminal nature were the exclusive preserve of the Director of Public Prosecutions. That was subject to the provisions of article 157(6)(a) regarding a court-martial, and any legislation that could be enacted by Parliament pursuant to article 157(12) of the Constitution.
Concurring Opinion; Per NS Ndungu, SCJ.
Extradition proceedings were quasi-criminal in nature, having elements of both criminal and administrative law. On the one hand, they commenced as foreign policy issues including the execution of international treaties and bilateral agreements between governments. On the other hand, they concluded as criminal processes. Therefore, they gave equal but complementary roles to both the Attorney General and the Director of Public Prosecutions, with each office required to play its part in the sequence of events that in totality amount to an act of extradition. That dual responsibility ought to be properly reflected in national legislation as Kenya’s legal provisions were vague and rather untidy.
Dissenting opinion
Per W Ouko, SCJ.
Extradition proceedings were special international legal proceedings based on reciprocity and originating from bilateral and multilateral treaties and agreements between nations, making them matters of international relations that involved the exercise of ministerial or executive responsibility. That was recognized by, most if not all local statutes, including the Extradition (Commonwealth Countries) Act itself, as well as international instruments that dealt with such matters.
Due to the fact that extradition was a process and not a prosecution undertaken in the jurisdiction of the requested state, it was only the office of the Attorney-General, in Kenya’s case, as the principal legal adviser to the Government that had the authority to commence and undertake such proceedings. Extradition was not criminal in nature but sui generis. The Director of Public Prosecutions had no powers to issue Authority to Proceed or institute extradition proceedings under the Extradition (Commonwealth Countries) Act or any law, as he did in the instant matter.
The delay in deciding which one of the two offices was responsible for matters of extradition was unconscionable and absolutely ludicrous. Whether it was the Office of the Attorney General or that of the Director of Public Prosecutions, the most important thing was that the Supreme Court had brought that circus to an end and the proceedings that had been pending in the subordinate court for over ten years could get going.
Appeal allowed. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/13/eng@2021-11-05 |
Petition 36 of 2019 | Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 22 October 2021 | 2,021 | Nairobi | Civil | Gichuru v Package Insurance Brokers Ltd | [2021] KESC 12 (KLR) | null | The appellant was employed by the respondent on a permanent and pensionable basis as the operations manager. The appellant was diagnosed with a tumour upon which his doctor recommended that he seeks medical attention in India. The appellant proceeded to India for a spinal cord surgery where he underwent successful treatment until January 17, 2014 during which period he continued to receive his full salary.In the course of duty, the respondent became overly concerned with the appellant’s health condition while in office. They noted that the appellant was unable to move around unaided. They requested the appellant to proceed on sick leave until such time when he would be able to move around the office unaided and asked for a medical appraisal of the appellant’s condition in confidence from his medical consultant. The appellant provided the medical report late. As a consequence of the belated medical report, the respondent suspended the appellant and later summarily dismissed the appellant for gross incompetence because of improprieties that arose when the respondent conducted an audit on the appellant’s accounts that revealed a cover up for non-performing accounts contrary to the company's policy and that the appellant had failed to reconcile underwriter accounts in clear violation of his employment contract.
Aggrieved the appellant filed a suit at the Employment and Labour Relations Court (trial court) for unlawful and wrongful termination and for discrimination. The trial court held that the appellant was discriminated against and terminated without being given a chance to be heard. He was awarded Kshs. 5,000,000 as damages for discrimination, 12 months' salary as compensation for unlawful and unfair termination and one month's salary in lieu of notice.
Aggrieved the respondent filed an appeal at the Court of Appeal on grounds that the trial court erred in law and fact in finding that they had discriminated against the appellant and finding that they had unlawfully and unfairly terminated the appellant’s employment. At the Court of Appeal, the court held that although there was no discrimination, the appellant was unfairly terminated. Aggrieved, the appellant filed the instant appeal on grounds that the Court of Appeal erred in law and fact in finding that the appellant was not discriminated against by the respondent. | Discrimination against any employee was provided for under article 27 of the Constitution as well as sections 5 and 47 of the Employment Act. No person should directly or indirectly discriminate against another person on account of health status or disability.The protection of employees against any form of discrimination at the work place was a significant matter and the burden placed upon an employer to disprove the allegations of discrimination was enormous. The employer had to prove that discrimination did not take place as alleged and that where there was discrimination, it was not with regard to any of the specified grounds in section 5(3) of the Employment Act. That however did not automatically shift the burden of proof in cases of discrimination against an employee to the employer.
According to section 5(7) of the Employment Act, an employer alleged to have engaged in a discriminatory practice had to give reasons for taking certain actions against the employee. Where such actions were shown not to have any justification against the protected group, then discrimination against such an employee had to be addressed. The appellant had discharged the burden of proof and it shifted to the respondent who failed to discharge it on their part.
Section 108 of the Evidence Act provided that the burden of proof in a suit or procedure lay on the person who would fail if no evidence at all were given on either side. Section 109 of the Act declared that, the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by any law that the proof of that fact would lie on any particular person. The petitioners bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden.
Discrimination was failure to treat all persons equally when no reasonable distinction could be found between those favoured and those not favoured. Not all cases of distinction amounted to discrimination. Discrimination could be said to have occurred where a person was treated differently from other persons who were in similar positions on the basis of one of the prohibited grounds like race, sex disability or due to unfair practice and without any objective and reasonable justification.
Direct discrimination involved treating someone less favourably because of their possession of an attribute such as race, sex, religion compared to someone without that attribute in the same circumstances. Indirect or subtle discrimination involved setting a condition or requirement which was a smaller proportion of those with the attribute were able to comply with, without a reasonable justification.
In considering claims of indirect discrimination, courts were:
to identify the relevant provision, criterion or purpose, which was applicable;
to determine the issue of disparate impacts, which entailed identifying a pool for the purpose of making a comparison of the relevant disadvantage;
to ascertain whether the provision, criterion or practice also disadvantaged the claimant personally; and
to consider whether the policy was objectively justified by a legitimate aim; and to consider (if the above requirements were satisfied) whether that was a proportionate means of achieving such a legitimate aim.
The salient features of indirect discrimination were that:
in none of the various definitions of indirect discrimination was there any express requirement for an explanation of the reasons why a particular provision, criterion or practice put one group at a disadvantage when compared with others.
The contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly required a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination did not. Instead it required a causal link between the provision criterion or practice and the particular disadvantage suffered by the group and the individual.
The reasons why one group could find it harder to comply with the provision, criterion or practice than others were many and various.
There was no requirement that the provision, criterion or practice in question should put every member of the group sharing the particular protected characteristic at a disadvantage.
It was commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence.
It was always open to the respondent to show that the provision, criterion or practice was justified.
The respondent’s actions to terminate the appellant bordered on outright victimization. The appellant’s medical report was not inconclusive. The appellant was not uncooperative in furnishing the report. Though the report was availed, albeit late, no prejudice would have been suffered by the respondent in considering the recommendations. It was the doctor’s recommendation that the appellant should resume duty in two months’ time subject to periodic review of the appellant’s condition. Furthermore, in the respondent’s letter of April 14, 2014, no specific timeline was given to the appellant to avail the report. It only stated, “as soon as possible”. In that regard, the respondent’s action was drastic, harsh and unwarranted in the circumstances.
The respondent ought to have considered the report or even to have at least conducted its own investigation as to the appellant’s medical condition. The onus was on the respondent to investigate the extent of the incapacity or the injury and all the possible alternatives short of dismissal. The respondent was hell-bent in wanting to get rid of the appellant from employment to an extent that they had to circumvent due process in a bid to find fault by conducting extraneous investigations when in fact prior to that they had given him a salary raise due to his hard work. In addition, there was no evidence that investigations were conducted on all other employees during that period and hence he was subjected to different treatment which emanated from his disability. The respondent also failed to demonstrate that they tried to accommodate the appellant in his current state. The actions by the respondent amounted to indirect discrimination due to differential treatment.
The burden of proving that the appellant was medically unfit to continue serving shifted to the respondent to prove the same using an expert opinion. The respondent never produced any medical assessment to demonstrate that the appellant was not capable of performing his duties any more so by virtue of his physical incapacity. The respondent disregarded the appellant’s medical report and proceeded to not only suspend him on medical grounds but eventually terminate him on grounds of gross incompetence and that was unjust and discriminatory.
The respondent was compassionate to the appellant by facilitating the appellant’s treatment and even increasing his salary a month after he resumed work. The salary increase could not be said to have been a sympathetic act by the respondent as that was done on the basis of his great performance at work. The duty to accommodate ought to have been demonstrated after the fact of his physical incapacity. Seemingly, only when it was clear that he needed assistance to move around that the respondent proceeded to suspend the appellant which eventually led to his dismissal. The respondent had an obligation to consider the medical report and to further accommodate the appellant by devising ways that could ease his movements unless they proved that accommodating the appellant would cause undue hardship to the company.
Section 2 of the Persons with Disabilities Act No. 14 of 2003 defined disability as a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacted adversely on social, economic or environmental participation. The Act was silent on what constituted a temporary or permanent disability. As long as the impairment impacted adversely on social, economic, or environmental participation of an individual, it was deemed to be a disability. A perusal of the record of appeal indicated that the appellant accepted his condition and took steps to register with the National Council for Persons with Disabilities as a Person with Disability (PWD) and was issued with a disability card.
Section 15 of the Persons with Disabilities Act No. 14 of 2003 expressly prohibited discrimination by employers. The Act went further to require employers to put in place special facilities in order to accommodate its employees with disabilities. The respondent failed to demonstrate that there was any undue hardship they would have suffered if they chose to reasonably accommodate the needs of the employee by providing amenities such as a ramp to ease the appellant’s movement or even providing flexible working hours.
The respondent expressly admitted that they did not have the facilities to accommodate the appellant in the office. The fact that the respondent expected the appellant to continue working in the same conditions as the rest of the employees was outrightly unreasonable. The respondent arbitrarily resolved that the appellant was no longer productive by virtue of his inability to walk unaided when in fact they failed to demonstrate what steps they took to accommodate him in his state.
The respondent catered for the medical expenses of the appellant through the medical cover and even continued to pay his salary for the period he was away for treatment. The respondent exhibited indirect discrimination towards the appellant.
The issue of gross incompetence was an afterthought. The respondent’s action of dismissing the appellant was extremely harsh and they had not reasonably demonstrated what measures they took to accommodate the appellant’s condition.
The procedure followed to terminate the contract was in breach of sections 41 and 45 (2)(c) of the Employment Act because the appellant was not accorded a chance to defend himself or respond to the allegations against him. Although the letter of appointment provided for no prior notice when terminating the employment due to gross misconduct, that stipulation of the contract could not be used to oust a mandatory and express statutory provision in section 41 of the Employment Act. The failure to follow fair procedure rendered the termination of the appellant’s employment unfair within the meaning of section 45 of the Act.
Although the Court of Appeal found that the summary dismissal was unfair, the court attributed the dismissal to the appellant’s conduct. They held that the appellant’s transgressions contributed to his dismissal when in fact the respondent had been lenient and compassionate to him throughout his sickness. They only took issue with the fact that he was never afforded an opportunity to be heard. Under the Employment Act, there was no express provision for dismissal on medical grounds. However, the employer was required to demonstrate that medical assessments were conducted and that there were circumstances which rendered the employee incapable of performing. In regard to dismissal in cases of incapacity, the respondent was required to have a hearing under section 41 of the Employment Act.
No hearing was demonstrated to have been conducted. The dismissal was unfair and unlawful for failing to accord the appellant a fair hearing. The respondent was required to facilitate the termination in accordance with section 41(1) of the Employment Act in order to come within the ambit of fairness. The allegations that the appellant faced would have well been explained if an opportunity to respond was granted so as to avoid the harsh sanction of a summary dismissal as contemplated under section 41 of the Employment Act. Moreover, section 44(4) of the Employment Act did not give an employer a blanket right to dismiss an employee at will. However grave the circumstances of the employee’s misconduct, the employee was entitled to be heard before he was dismissed.
The right to be heard was the cornerstone of fair labour practices. Where the circumstances did not allow a hearing before summary dismissal, the duty was upon the employer to set such out. The appellant’s summary dismissal was unfair, unjust and unlawful for want of due process.
An award of damages should not be punitive to one party but at the same time it should act as a deterrent to employers who engaged in discriminatory acts. Employment laws in Kenya had made great strides in ensuring that employees were protected from discriminatory acts by the employer and the onus was therefore on employers to ensure that they set out proper policies to govern their engagement with employees, to avoid falling into dangers of workplace discrimination. The award of Kshs 5,000,000 was inordinately high and disproportionate. The award of 12 months’ salary in compensation as awarded by the trial court was sufficient.
An award of damages was discretionary in nature. The Supreme Court could invoke its inherent powers to ensure that justice should not only be done but should be seen to be done to all litigants.
Appeal partly allowed. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/12/eng@2021-10-22 |
Petition 18 of 2015 | Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested Party) (Petition 18 of 2015) [2021] KESC 10 (KLR) (Civ) (22 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 22 October 2021 | 2,021 | Nairobi | Civil | Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Onyango & 5 others; Attorney General & another | [2021] KESC 10 (KLR) | null | On 5th October 2017, this Court delivered a Judgment in which it dismissed the appeal herein for want of jurisdiction and by a Ruling delivered on 23rd October 2018, the applicant’s Motion for review of that Judgment was similarly dismissed. This being the third time the applicant is having a bite on the same cherry, the facts are not pertinent to the present Ruling.Notwithstanding the finality of our decisions above, the Applicant, on 3rd November 2020, filed yet another application seeking orders to review the Judgment and Ruling on review of the same Judgment. | We have perused that application and can only but agree with the 6th respondent that;The principle of res judicata is squarely applicable to the present Motion as this court has finally and without equivocation settled both the question of the appeal and review thereof. It is an exercise in futility for us to be called upon, again, to determine the same issues – see //John Florence Maritime Services Limited & cnother v Cabinet Secretary, Transport and Infrastructure & 3 others// [2021] eKLR.
ii.
Upon delivery of Judgment and the Ruling on review, this court became {{term{refersTo } functus officio}} and there is no known jurisdiction for it to revisit any aspect of the appeal. Certainly, a review upon a review is completely alien to the Supreme Act and the Rules made thereunder. We settled the issue of functus officio in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR.
iii.
On costs, the same principles above apply save that, as the present Motion is utterly frivolous and vexatious, the applicant shall bear the costs hereof.
4.
In the event and for reasons above:
i.
The Notice of Motion dated 14th September 2020 and filed on 3rd November 2020 is hereby struck out.
ii.
The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.
5.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/10/eng@2021-10-22 |
Petition 2 of 2020 | Waititu v Republic (Petition 2 of 2020) [2021] KESC 11 (KLR) (22 October 2021) (Judgment) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 22 October 2021 | 2,021 | Nairobi | Criminal | Waititu v Republic | [2021] KESC 11 (KLR) | null | The appellant was arrested and charged with three counts of alleged dealing with suspect property and a charge of conflict of interest. The appellant denied the charges and applied for admission to bail and/or bond. The trial court granted bail by ordering that the appellant could either pay a cash bail of Kshs.15,000,000 or a bond of Kshs.30,000,000 with surety of a similar amount. Further, the trial court went on to attach conditions to the grant of the bail terms by stating that the appellant could not access his public office until the hearing and determination of his case and; that the appellant and all his co-accused were also to deposit their travel documents with the court and were not to contact witnesses either directly or indirectly or in any other way tampering with the exhibits or any evidence.Aggrieved by the orders made by the trial court, the appellant filed a revision of the trial court’s order relating to the bail and bond terms. In the revision application, the appellant, inter alia, stated that the bail and bond terms were excessive, issued per incuriam and the terms amounted to a constructive denial of bail and bond without compelling reasons. The appellant further claimed that the bail terms estopped him from attending to his constitutional office and that the trial court’s orders constituted constructive removal from office.
The High Court found that it had supervisory and revisionary jurisdiction over interlocutory issues sought to be determined in the course of trial, such as the one that was before the court. The High Court further found that attaching conditions to the grant of bail was not tantamount to removal of the appellant from office. Aggrieved further by the decision of the High Court, the appellant moved to the Court of Appeal. Upon considering the appeal, the Court of Appeal upheld the High Court’s decision and dismissed the appeal. Aggrieved, the appellant filed the instant appeal. | Article 163(4)(a) of the Constitution of Kenya, 2010, (Constitution) had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals that arose from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. It was not the mere allegation in pleadings by a party that clothed an appeal with the attributes of constitutional interpretation or application.The appeal had to 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 had to be challenging the interpretation or application of the Constitution that the Court of Appeal used to dispose of the matter in that forum. Such a party had to 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 of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a) of the Constitution.
The substantive matter as originally filed was pending before the trial court and what was before the instant court was the subject of an interlocutory appeal. The court generally lacked jurisdiction to entertain appeals from interlocutory decisions. The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file their intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed. They included;
where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
where the decision entailed the recusal of the trial court to hear the cause.
Although what had triggered the appeal was a question on the exercise of judicial discretion in issuing bail terms during the pendency of the trial, the court assumed jurisdiction as the question of whether judicial exercise of discretion had been done in accordance with established principles of law was one which was of sufficient importance in a trial and if not well exercised, provided justification for it to be determined in an interlocutory appeal. In addition, it was possible for bail terms imposed to be final in nature and an accused person, invoking article 49(i)(h) of the Constitution had to ventilate the issue before the close of his trial.
The constitutional right to bail as guaranteed under the Constitution was subject to being granted on reasonable conditions pending trial or unless there were compelling reasons not to do so and did not mean that the right was absolute. The discretion to grant bail and determine the conditions rested with the court. In exercising that discretion, the court however had to seek to strike a balance between protecting the liberty of the accused person and safeguarding the proper administration of justice.
The trial court, at the point of consideration of the application of bail, was not called upon to make a determination on the interpretation of the provisions of section 62(6) of the Anti-Corruption and Economic Crimes Act. Section 62(6) prohibited the suspension of a public officer charged with corruption or economic crime where the Constitution already provided a method for removal, which in the case of a governor, was provided for under article 181 of the Constitution.
Imposing conditions subject to the release of an accused person (in the instant case, the appellant), barring him from accessing his office pending his prosecution for the corruption offences, did not equate to his removal from office, since he remained Governor. There was therefore no need for the application of section 62(6) of the Anti-Corruption and Economic Crimes Act. In addition, the constitutionality or otherwise of section 62(6) could not have been addressed in a bail/bond ruling nor in a revision ruling. Neither could it be properly invoked at both stages of the proceedings.
Article 49(1)(h) of the Constitution provided that an arrested person could be released on bond or bail on reasonable conditions and it entrenched the right of the arrested person to be released on bail subject to the imposition of reasonable conditions. The right to bail was an inalienable right and could only be restricted by the court if there were compelling reasons for an accused not to be released. In granting bail or bond, the trial court was called upon to exercise its discretion and if there were no compelling reasons to deny an accused person bail or bond, the trial court should exercise its discretion in favour of the accused.
When it came to the issue of whether to grant or refuse bail pending the trial of an accused by the trial court, the law had set out some criteria which the trial court should consider in the exercise of its judicial discretion to arrive at a decision. The criteria included among others, the following; -
the nature of the charges;
the strength of the evidence which supported the charge;
the gravity of the punishment in the event of conviction;
the previous criminal record of the accused, if any;
the probability that the accused would not surrender himself for trial;
the likelihood of the accused interfering with witnesses or suppressing any evidence that could incriminate him;
the likelihood of further charges being brought against the accused;
the probability of guilt;
detention for the protection of the accused; and
the necessity to procure medical or social reports pending final disposal of the case.
Limiting the appellant’s access to the county offices of Kiambu County pending the determination of trial did not equate to his removal from office as contemplated under article 181 of the Constitution. Barring a governor from accessing his office pending his trial for corruption charges could not be equated to removal from office. The trial court merely attached a condition to the bail granted for the appellant not to access his office and did not order his removal from office. Removal from office had to be undertaken by the procedure set out in section 33 of the County Governments Act. The procedure was only invoked, not through the ruling of the trial court but by notice to the Speaker of the Kiambu County Assembly which led to the eventual removal of the appellant as Governor.
Discretion by a trial court could be exercised to limit the enjoyment of bail if the accused was likely to interfere with witnesses or suppress the evidence against him. There was no reason to fault the trial court in exercise of that discretion noting the specific circumstances of the case facing the appellant and where his office could be the source of incriminating evidence and staff under him being witnesses. If the appellant was dissatisfied by any condition in the bail ruling, the proper procedure was to seek a review at any stage of his trial and show that the condition was no longer efficacious and ought to be lifted.
The appellant clutched onto the misguided notion of constructive removal, a mirage, when all he had to do was focus on bail terms and conditions and use lawful means to challenge the same. Removal was later conducted, and he was no longer in office. The trial court’s ruling could not therefore be said to be the basis for his eventual removal, and as a basis for challenging the bail ruling.
The trial court considered the nature of the corruption charges and considered the possibility of the appellant interfering with witnesses, who were his subordinates at the time. The need to preserve the integrity of the evidence of the witnesses by finding that it would not be right if the witnesses were to be intimidated by them being suppressed was therefore a valid consideration. The trial court in the event properly considered the usual criteria a court took into account while imposing bail terms. The bail terms imposed were sufficient.
An appellate court should not interfere with the exercise of the discretion of a trial court unless it was satisfied that the trial court misdirected itself in some matter and as a result arrived at a wrong decision, or unless it was manifest from the case as a whole that the trial court was clearly wrong in the exercise of its discretion and that as a result there had been misjustice.
The appellant had not demonstrated how the exercise of discretion was not judicious and how the High Court and the Court of Appeal erred in failing to interfere with the exercise of the trial court’s discretion. There was no reason to interfere with the Court of Appeal’s findings.
Appeal dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/11/eng@2021-10-22 |
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