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Application 5 (E007) of 2021 | Cape Holdings Limited v Synergy Industrial Credit Limited (Application 5 (E007) of 2021) [2021] KESC 4 (KLR) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 October 2021 | 2,021 | Nairobi | Civil | Cape Holdings Limited v Synergy Industrial Credit Limited | [2021] KESC 4 (KLR) | null | The applicant sought a review of a Court of Appeal ruling in which certification and leave to appeal to the Supreme Court were declined. The applicant also sought a stay of execution of the orders of the Court of Appeal. | Where leave and certification were sought for purposes of an intended appeal to the Supreme Court and the Court of Appeal declined to grant it, the recourse that such an applicant had if dissatisfied, was to seek a review and not to appeal.The Court of Appeal had declined to grant leave and certification for an intended Supreme Court appeal and the applicant had filed for a review of the Court of Appeal's decision at the Supreme Court. The Supreme Court had jurisdiction to entertain such a review application.
Arbitration was meant to expeditiously resolve commercial and other disputes where parties had submitted themselves to that dispute resolution mechanism. The role of courts had been greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Arbitration Act. To expect arbitration disputes to follow the usual appeal mechanism in the judicial system to the very end would sound a death knell to the expected expedition in such matters. In conformity with the principle of the need for expedition in arbitration matters, where the Court of Appeal assumed jurisdiction in an arbitration matter and delivered judgment, no further appeal should ordinarily lie therefrom to the Supreme Court.
The Supreme Court lacked jurisdiction to entertain the intended appeal as it was challenging a Court of Appeal judgment after jurisdiction had been assumed by the Court of Appeal in an arbitration matter in accordance with case law.
Application dismissed with costs to the respondent's. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/4/eng@2021-10-08 |
Motion 21 of 2016 | Goldenlime International Limited v Bluesea Shopping Mall Limited & 3 others (Motion 21 of 2016) [2021] KESC 2 (KLR) (Civ) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | October 8, 2021 | 2,021 | Nairobi | Civil | Goldenlime International Limited v Bluesea Shopping Mall Limited & 3 others | [2021] KESC 2 (KLR) | null | Brief factsSometimes in 2008, the City Council of Nairobi (Nairobi City County), the 2nd respondent, invited the public including, private sector players to partner with it in the development of markets in various locations within the City of Nairobi under the auspices of private/public sector partnership strategy. Eastleigh market that was situated on the suit property was among the markets earmarked for development. The applicant was subsequently awarded the contract. Aggrieved by the 2nd respondent’s decision to award the applicant the contract, the 1st respondent filed judicial review proceedings at the High Court seeking certiorari and mandamus orders to impugn the decision to award the contract to the applicant for failing to follow due procedure. The High Court though finding merit in the application, declined to grant the orders and stated that the matter called for exercise of discretion and that even when merited, a court had the discretion to refuse to grant judicial review orders.Aggrieved by the High Court’s decision, the 1st respondent filed an appeal in the Court of Appeal which was allowed. The Court of Appeal found that the factors considered by the High Court in its decision not to grant the orders sought did not justify refusal of the orders. Aggrieved by that decision, the applicant filed an application seeking certification that a matter or matters of general public importance were involved in the intended appeal and asked to be granted leave to lodge an appeal before the Supreme Court. Dissatisfied with the ruling of the Court of Appeal declining to certify the matter as of general public importance, the applicant filed an originating motion praying that the court determines among others; whether the Supreme Court should review the ruling dismissing the application for grant of certification. The applicant also filed a notice of motion application dated October 5, 2016 seeking issuance of a conservatory order restraining any further dealing in the suit property. Subsequently, the application was heard by a single judge of the Supreme Court who issued a conservatory order restraining the 2nd respondent from dealing with the suit property in a manner that rendered the originating motion nugatory to the detriment of the applicant. The orders of the single judge aggrieved the 3rd and 4th respondents, necessitating them to file a notice of motion dated October 24, 2016 seeking among others prayers that the orders of the single judge be discharged, set aside and/or vacated in its entirety and that the originating motion be struck out from the court record. | D. Issues for Determination
38.
Three issues arise for determination in this matter, namely;
i.
Whether this Court has jurisdiction to determine the review application against conservatory orders granted; and if yes,
ii.
Whether a case has been made to warrant that review.
iii.
Whether the Court of Appeal erred in declining to certify the matter as one of general public importance
39.
In framing these issues, we have decided that the application seeking conservatory orders by the applicant no longer requires our intervention in view of the lapse of time since interim orders were granted. Instead, we shall focus on the motion for setting aside of those orders and then determine the originating motion with finality, one way or the other.
E. Analysis
40.
We note that the 3rd and 4th respondent’s in their application, have moved this Court under sections 21 and 24 of the Supreme Court Act No. 7 of 2011 (repealed). The 1st, 3rd and 4th Respondents’ contention in that regard is that the single Judge lacked the requisite jurisdiction to grant conservatory orders. It is also their argument that, by granting the conservatory orders, the single Judge determined the issues in the Notice of Motion with finality rendering the Motion spent without according the Respondents an opportunity to be heard.
41.
The 1st, 3rd and 4th respondents also argue that the single Judge lacks jurisdiction to issue interlocutory orders to a party seeking leave to appeal under article 163(4)(b) of the Constitution. Put in a simple and much clearer form, they argue that the interlocutory orders sought could not be granted when there is no substantive appeal filed for determination before us.
42.
The determination of the above question and not in the convoluted language of Counsel for the 3rd and 4th respondents, shall require us to interrogate whether the single Judge correctly exercised the powers donated by section 24(1) of the Supreme Court Act which provides;
(1)
In any proceeding before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding.
(2)
Any person dissatisfied with the decision of one judge in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of five judges.
(3)
Any judge of the Supreme Court may review a decision of the Registrar made within the civil jurisdiction of the Court under a power conferred on the Registrar by the rules, and may confirm, modify, or revoke that decision as the judge thinks fit.
43.
Subsection (4) then lists the powers of a five-Judge bench in adjudicating on orders granted by a single Judge. The said provision states:
1(4) 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).
44.
Rule 4 (3) of the Supreme Court (Amendment Rules) 2016 provides that:
Without prejudice to the provisions of sub-rule (1) or sub-rule (2), a single Judge of the Court may hear applications and make Orders with regard to-
i.
change of representation;
ii.
admission of consent;
iii.
consolidation of matters;
iv.
dismissal of a matter for want of prosecution;
v.
correction of errors on the face of the record;
vi.
withdrawal of documents;
vii.
review of the decision of the registrar;
viii.
leave to file additional documents;
ix.
admission of documents for filing in the Registry; or
x.
substitution of service.”
It is these provisions we must apply in determining the application for setting aside the conservatory orders issued by Njoki Ndungu, SCJ.
i. Does the Court have jurisdiction to grant interlocutory orders?
45.
This Court in the case of Board of Governors, Moi High School, Kabarak & another vs. Malcolm Bell, Sup. Ct. Petitions 6 & 7 of 2013 [2013] eKLR considered the standing of interlocutory applications before the Supreme Court and the import of Section 24(1) of the Supreme Court Act, 2011 as well as the powers of the Supreme Court to grant interlocutory orders, within the substantive matter of an appeal. The Court held thus:
“
Does the grant of interlocutory relief in the instant matter encroach on the jurisdiction of the Court of Appeal? We do not think so. For interlocutory applications in the nature of injunctions and stay of execution are made within the substantive matter of the appeal; and that is the case, in this instance. The Court has jurisdiction to hear and determine such interlocutory applications with special regard to the circumstances of each case. Where necessary, this Court mayalso exercise its discretion to decline to grant interlocutory relief, if the same may imperil the ultimate function of the Court – to render justice in accordance with the Constitution and the ordinary law." [Emphasis ours]
46.
The Court went on to discuss the Supreme Court’s jurisdiction in respect of interlocutory orders, its origins and the principle behind it. The Court held:
“
In our opinion, the Supreme Court’s jurisdiction in respect of interlocutory orders, such as stay-of-execution orders, firstly, emanates directly from the statute law and the rules; and secondly, rests on the rational principle that the appellate power of “review and possible reversal” of the substantive judgment appealed against, is destined to be lost unless a requisite interlocutory order was made…
It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of the appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”
47.
So then, how does the above finding resonate with the issue of whether a single Judge may give/grant in proceedings, interlocutory directions? What has been the practice and position of this Court in this regard?
48.
The case of Yusuf Gitau Abdallah vs. Building Centre (K) Ltd & 4 others Sup. Ct. Petition No. 27 of 2014 [2014] eKLR, presented a similar situation, in which the single Judge, Ibrahim SCJ, in considering the provisions of Section 24(1) of the Supreme Court Act held thus:
“
As I make the determination herein, I am conscious of the provisions of Section 24(1) of the Supreme Court Act 2011 which provides as follows:-
“ 24. (1) In any proceeding before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding.
The meaning and effect of the said provision is that a single judge in a proceeding or proceedings may give any interlocutory order and give any interlocutory directions as he/she think fit other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceedings.”
49.
Another case where this Court considered the standing of the provisions of Section 24 of the Supreme Court Act 2011, is Kalpana H Rawal & 2 others v. Judicial Service Commission & 2 others Sup. Ct. Application No. 11 0f 2016 [2016] eKLR where a single Judge issued conservatory orders ex-parte. Though the Court, by majority, ruled to vacate the conservatory orders that were granted,the meaning and effect of Section 24(2) of the Supreme Court Act was discussed earnestly. Mutunga, CJ (as he then was) in that regard expressed himself thus;
“
Section 24 of the Act empowers a single judge to make any interlocutory orders and give any directions other than an order or direction which determines the proceedings or disposes of the questions in issue. This provision of the Act has yet to be interpreted by this Court. In my view, the interpretation and application of Section 24 of the Act read together with Rule 4, as I have signalled above must be brought within the ambit of Articles 10 and 20 of the Constitution and must accord with the canons of interpretation established in other decisions of this Court…
Caution must be sounded to all judges of this Court that discretionary powers under Section 24 are not absolute in a similar way that the powers of the Chief Justice under any law are not without limitations. All judges of this Court must appreciate that Section 24 is neither a blank cheque giving room for a relapse into the old jurisprudence of technicalities n0r is it an invitation to non-adherence of constitutional values and principles of governance…”
50.
Counsel for the 3rd and 4th Respondent has, also in adopting the above view, argued that under the provisions of Article 163(2) of the Constitution, a proper Bench before this Court is constituted by five Judges and that a single Judge sitting alone cannot constitute the Supreme Court. It was his argument therefore that a single Judge, cannot in that capacity, issue orders that are interlocutory in nature.
51.
In that context, Article 163(2) of the Constitution provides that:
“
The Supreme Court shall be properly constituted for the purposes of its proceedings if its composed of five Judges.”
52.
Wanjala, SCJ in his Ruling in Kalpana H. Rawal & 2 others v. Judicial Service Commission & 2 others (supra), discussed the powers of a single Judge by reading Section 24(1) of the Supreme Court Act alongside Article 163(2) of the Constitution by holding as follows:
“
It is my view that Section 24(1) of the Supreme Court Act must be read alongside Article 163 (2) of the Constitution…
Strictly speaking therefore, in the light of Article 163(2) of the Constitution, a single Judge sitting before the empaneling of a five-Judge Bench cannot constitute the Supreme Court. A single Judge issues ex parte Orders not in his or her capacity as the Supreme Court, but as an agent of the yet to be empaneled Bench of the Court. This explains why such orders must be very temporary in nature and only last up to and until a five-Judge Bench is constituted by the Chief Justice.”
53.
On reflection, whereas the 3rd and 4th Respondents are correct in their interpretation of Article 163(2), we are inclined to agree with Wanjala, SCJ that, a single Judge, can as a matter of discretion, issue interlocutory orders for a very limited time to ensure that the subject matter of an appeal is not wasted in the intervening period and that the caution expressed by Mutunga, CJ in Kalpana H. Rawal & 2 others vs. Judicial Service Commission & 2 others (supra)must be at the back of each Judge’s mind.
54.
Section 24(1) of the Supreme Court Act occupies a central place in the operations of the Court, and unless orders are issued to declare the same unconstitutional by proper proceedings filed to do so, remains an operative and lawful provisions, the protestations of Counsel for the 3rd and 4th Respondents notwithstanding.
ii. Can this Court review interlocutory orders granted by a single Judge?
55.
The next question for determination before us is; can interlocutory orders granted by a single Judge be reviewed? Section 24(2) of the Supreme Court Act, 2011 and Rule 4(4) of the Supreme Court Rules, 2012 essentially provide that decisions of a single Judge may be reviewed by a bench of five Judges. This Court in the case of Fredrick Otieno Outa v. Jared Odoyo Okello & 3 Others Sup. Ct. Petition No. 6 of 2014 [2017] eKLR addressed the question, in detail, as to whether the Supreme Court has jurisdiction to review its own decisions and the inherent powers and jurisdiction of the Court in that regard. This power is general and is not limited to single Judge matters only. The Court held thus:
“
Taking into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
i.
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii.
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii.
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv.
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. [Emphasis ours]
56.
In the present case, we note that the single Judge exercised her discretion in allowing the Applicant’s Notice of Motion and granted the orders sought albeit for a temporary period. The Respondents could have chosen to respond to the substantive application or seek a review of the single Judge’s orders. They sought the latter. The jurisdiction of this Court on the conditions for grant of a review order was as found in the case of Parliamentary Service Commission v. Martin Nyaga Wambora & Others Sup. Ct. Application No. 8 of 2017. The Court, in the above context discussed whether it can interfere with the exercise of discretion of one or a limited Bench and held:
“
Can this Court, constituted as a five Judge Bench interfere with the exercise of discretion by a Two Judge Bench? The answer is yes. This Court has the power to rise above a decision of one or a limited Bench, where compelling reasons are given that the decision given was erroneous. However, as such a review will entail an interference with the exercise of a judge’s discretion, it is guided by stringent legal principles.”
57.
The Court even as it expressed itself above, went on to caution and draw strong emphasis to the point that, an application for review of a decision is not one to be undertaken in a casual way, since the decision to review is not one falling under the appellate jurisdiction mandate of the Court. The Court expressed itself as follows in that regard:
“
We reiterate that an application for review of a decision of a single or Limited Bench of this Court by a Bench of five or more, is not as a matter of course to be undertaken in a casual way. The provisions in the Act and the Rules allowing review of such a decision before a bench of five or more are not part of the normal appellate jurisdiction mandates of this Court so that any decision made by a limited Bench of the Court will automatically be ‘reviewed’ by a Bench of five Judges or more. That will be tantamount to abuse of Court. The review window is to be exercised sparing and only deserving cases have to be allowed.
This Court notes with concern that if caution is not taken, then in the ultimate, the abuse of Section 24(2) and Rule 4(4) by filing of frivolous applications seeking review will defeat the whole essence and spirit of the legislation and the jurisprudence in Erad suppliers (above), which is the law to date, that procedural matters be handled by a limited Bench. And while these provisions were meant to speed up access to justice, their abuse will in turn inhibit access to justice by allowing all and sundry review applications to clog the system and take up precious judicial time.
58.
The Court then went on to lay down the guiding principles for a review of the decision of the Court made in exercise of its discretion by holding as follows;
“
Consequently, drawing from the case law above,particularly Mbogo and Another vs. Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion 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.
(vi)
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:
(a)
as a result a wrong decision was arrived at; or
(b)
it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.”
59.
Further, in the case of Tom Odhiambo Ojienda vs. Kenya Revenue Authority & another Sup. Ct. Petition No. 6 of 2019 [2019] eKLR this Court pronounced itself as follows in regard to review of decisions of a single Judge and flowing from the general principles above. We stated thus:
“
On our part, we find that Section 24(2) of the Supreme Court Act, 2011 and Rule 4(4) of the Supreme Court Rules, 2012 contemplates that decisions of a single Judge may be reviewed by a bench of five Judges. Further, that the jurisprudence of this Court on the conditions for grant of a review order was well expressed in the case of Parliamentary Service Commission v. Martin Nyaga Wambora & Others Sup. Ct. Application No. 8 of 2017; [2018] eKLR in which we held that in an application for review, the Applicant has to demonstrate how a single Judge erred in making the impugned decision or how the said decision is clearly wrong as a result of which there has been an apparent injustice.”
60.
We reiterate the above decisions as solid and flow from a holistic interpretation of the Constitution and Statute. Nothing, in the scornful submissions of Counsel for the 3rd and 4th Respondents’ have had the effect of swaying our collective mind to the contrary. Instead of focusing on the principles for setting aside a single Judge’s decision, Counsel has instead engaged in an unwarranted rant on prior decisions of the Court on this subject. The rant has been of no benefit to his clients and that is all we have to say on the prayer for setting aside and/or review of the single Judge’s order.
iii. Whether the Court of Appeal erred in declining to certify the matter as one of general public importance
a. Jurisdiction of the Court
61.
Counsel for the 3rd and 4th respondents contests this Court’s jurisdiction to review, set aside or discharge an order of refusal of certification by the Court of Appeal declining to certify a matter as one of general public importance. It is their claim that under the provisions of article 163(4)(b) of the Constitution, only a litigant aggrieved with the grant of certification by the Court of Appeal can apply to the Supreme Court for a review of the certification. It is also Counsel’s argument therefore that an application for review filed before this court only applies in cases where certification has been granted by the Court of Appeal and not in cases where the certification was denied in the literal reading of the provisions of Article 163(5) of the Constitution. To this end, counsel sought to have the Supreme Court declare that this court’s findings in the Sum Model Case and the Hermanus Case were in conflict with the Constitution.
62.
The decision in the Hermanus Case is also the basis of Counsel’s submission that there are two distinct and separate rights of certification for leave to appeal to the Supreme Court; from the Court of Appeal, and directly to the Supreme Court and therefore, the two Courts have concurrent original jurisdiction in the matter. In that regard, he faults this Court’s decision in the Sum Model Case arguing that the Court’s finding that certification should be first sought at the Court of Appeal denies a party the right of choice as provided for under Article 163(4)(b) of the Constitution.
63.
In that regard, article 163(4)(b) of the Constitution provides that appeals shall lie from the Court of Appeal to the Supreme Court ‘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). Article 163(5) goes on to state that ‘a certification by the Court of Appeal under clause 4(b) may be reviewed by the Supreme Court and either affirmed, varied or overturned’.
64.
In the Sum Model case, the court was of the view that the Supreme Court and the Court of Appeal must both be satisfied that a matter of general public importance arises, upon which the courts may issue a certificate for leave to appeal. Further to this, the court found that it would be best practice for the matter to originate before the Court of Appeal, upon which, should an applicant be aggrieved with the Court of Appeal’s decision, a review of that decision by this court is then allowed under article 163(5) of the Constitution. The court held thus:
“
This being an application for leave to appeal against a decision of the Court of Appeal, it would be good practice to originate the application in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. It is the Court of Appeal which has all along been seized of the matter on appeal before it. That Court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties. Accordingly, that Court should ideally be afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not. If the applicant should be dissatisfied with the Court of Appeal’s decision in this regard, it is at liberty to seek a review of that decision by this Court as provided for by article 163 (5) of the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to this court in search of a certificate for leave, would lead to Abuse of the Process of Court.”
65.
Further to the above finding, in the Hermanus case, it was our finding that any party may approach the Supreme Court for review of the decision of the Court of Appeal granting leave or denying leave under article 163(5) of the Constitution, even in instances where an applicant has not been granted leave by the Court of Appeal. The court then went on to acknowledge its mandate under articles 159 and 259 of the Constitution by harmonising its mandate with the fundamental rights under the Constitution on equal right of access to justice for all parties and non-discrimination. The court held as follows;
“
(32)
The second question was in relation to the extent of this review jurisdiction, with the respondent averring that it only lies where a matter has been certified as of general public importance. In answering this question, the court is alive to its mandate under articles 159 and 259 of the Constitution, which provide:
“
259(1)
This Constitution shall be interpreted in a manner that-
e.
promotes its purposes, values and principles;
f.
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
g.
permits the development of the law; and
h.
contributes to good governance.
33)
Hence, in interpreting the review competence of the Supreme Court, the mandate must be harmonised with the Constitution. 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. Either party can approach the Supreme Court for review under article 163(5). A party may come for review of the decision granting leave or denying leave. Hence, we hold that certification under article 163(5) should be broadly read as alluding to certification by the Court that a matter of public importance is involved, or is not involved. Hence, the applicant is rightly before the court, despite seeking a review where there was no leave granted by the Court of Appeal.” [Emphasis ours]
66.
The same submissions by counsel for the 3rd and 4th Respondent were also argued before us in the case of Republic v. Ahmad Abolfathi Mohammed & Another Sup. Ct. Criminal Application No. 2 of 2018 [2018] eKLR where the issue of this Court’s jurisdiction under the provisions of article 163(5) to review a denial of certification by the Court of Appeal is provided for. We reiterated our finding in the Sum Model case and the Hermanus case by finding that under article 163(5) of the Constitution, the Supreme Court has jurisdiction to review a decision by the Court of Appeal granting or declining certification. We also went on to reiterate that to deny a party aggrieved by the decision of the Court of Appeal declining certification audience would amount to violation of the provisions of articles 27 and 50 of the Constitution. We rendered ourselves thus on that issue:
“
(19)
…As this court observed in the Hermanus case, in interpreting the review jurisdiction in article 163(5), regard should be had to the dictum of harmonization under article 259(1) of the Constitution and giving the term “certifies” or “certification” in article 163(4)(b) of the Constitution a broad interpretation. In that regard therefore, and on the facts of this case, the principles of non-discrimination under article 27 and fair hearing under article 50 should never be lost sight of. We therefore find that to deny a party aggrieved by a refusal to grant certification that a matter is one of general public importance is discriminatory and contrary to article 27 and a denial of the right to a fair hearing under article 50(1) of the Constitution.
(20)
In the circumstances, we reiterate this Court’s finding in both the Sum Model and Hermanus cases that article 163(5) of the Constitution vests the Supreme Court with jurisdiction to review the Court of Appeal’s decision to grant or decline certification that a matter is one of general public importance. We therefore also affirm the words of rule 24(2) of the Supreme Court Rules, 2012 that “[w]here the Court of Appeal has certified or has declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.”
67.
We also adopted this position in the case of Kenya Civil Aviation Authority vs. African Commuter Services Ltd & Another Sup. Ct. Civil Application No. 7 of 2015 [2018] eKLR where we were of the view that the Hermanus Case is still good law and with no proper principles invoked to convince the Supreme Court to depart from the findings in the Sum Model Case and the Hermanus Case, then the same stands as good law.
68.
Further, the question on concurrent jurisdiction was settled in the Hermanus case where it was the Court’s finding that we indeed have concurrent jurisdiction and further reiterated our finding above in the Sum Model case that it is in good practice that certification be first sought before the Court of Appeal. This court duly noted thus;
“
The other issue raised was as to the concurrent jurisdiction of both the Court of Appeal and the Supreme Court, in granting leave to appeal to the Supreme Court. The respondent averred that once the concurrent original jurisdiction has been exercised under article 163(4) (b) by the Court of Appeal, it was no longer tenable for the Supreme Court to exercise the same jurisdiction. Adopting the definition in Black’s Law Dictionary on ‘concurrent jurisdiction’: ‘Concurrent jurisdiction. (17c)1. Jurisdiction which might be exercised simultaneously by more than one court over the same subject matter and within the same territory, a litigant having the right to choose the court in which to file the action,’ we would agree with counsel that, indeed, we have concurrent jurisdiction; and when one opts to exercise one’s right under either of the entities with jurisdiction, one cannot again go before the other entity with the same subject matter. This is the reasoning behind the principle of res judicata in civil matters, in choosing the Court (forum) in which to institute a matter. This is the reasoning held sacrosanct in criminal matters under the doctrine of double jeopardy (especially with reference to international crimes like genocide, piracy and war crimes where all nations have jurisdiction)…
The question then is whether, by coming to the Supreme Court, the applicant is invoking the original jurisdiction of the Court. The answer readily emerges from the Sum model Case…
Consequently, it is our decision that, by first proceeding to the Court of Appeal as in this case, and then to the Supreme Court, one does not invoke the original jurisdiction, so as to warrant a question of “res judicata...”
69.
We see no reason to depart from this finding and affirm the provisions of rule 24 (1) and (2) of the Supreme Court Rules 2012 (repealed) that “An application for certification shall first be made in the court or tribunal it is desired to appeal from and (2) Where the Court of Appeal has certified a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.
70.
The said provisions are also provided for under rule 33 (1) and (2) of the Supreme Court Rules, 2020 that (1) An application for certification shall, in the first instance, be made in the court from which the appeal originates and that (2) Where the Court of Appeal has certified or has declined to certify a matter as one of general public importance, an aggrieved party may apply to the Court for review, within fourteen days.
71.
In the circumstances and based on the above findings, we find that we have jurisdiction to hear this application.
b. The Substantive Application
72.
Having affirmed our jurisdiction and that the originating motion dated 5th October 2016 is properly before us, we now proceed to consider the question whether it raises issues of general public importance.
73.
We note that the applicant has not set out the matters of general public importance that require our intervention. Nevertheless, from the Record, the applicant outlined issues which it claimed touched on application of procurement laws and management of Public Private Partnerships, which are;
i.
The parameters and threshold that should govern the Court’s intervention in a concluded contract by a State Organ on the basis of procurement laws noting that the propensity in recent time to so intervene invites the definitive and authoritative pronouncement of the highest Court in the land as to such threshold and parameters.
ii.
The doctrine of the separation of powers between devolved Government and the Judiciary under the 2010 Constitution.
iii.
The applicability of the Transitional Provisions in the 2010 Constitution which constituted the Nairobi City County as a Government and the successor in title to properties and contractual properties and contractual relationships entered into by the former Nairobi City Council in accordance with the then applicable Laws and Regulations.
74.
This court in the Hermanus case held that whether a matter is one of general public importance is an issue to be determined on a case to case basis as guided by its peculiar facts of each case and that for a case to be certified as one involving a matter of public importance;
“
…the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one, the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
ii.
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
75.
From the record, the suit before the High Court and the Court of Appeal was on the exercise of discretion to grant judicial review orders of certiorari and mandamus. The crux of the dispute was on whether the 2nd respondent had complied with the provisions of the Public Procurement and Disposal Act 2005 in awarding the tender to the Applicant. The trial Court found that there was procedural impropriety by the 2nd respondent in awarding the tender but declined to grant the orders sought.
76.
The Court of Appeal, while determining the appeal, noted that the main issue for its consideration was whether the trial Court properly exercised its discretion in failing to grant the orders. In its decision, the Court noted that there were no circumstances that militated against the grant of the orders of certiorari and mandamus, noting that the High Court, having found that the provisions of the Public Procurement and Disposal Act 2005 were not complied with, erred in declining to exercise its discretion by its refusal to grant the orders sought in the judicial review application.
77.
The Court of Appeal, while considering the application for certification noted;
“
(19)
It is also evident the applicant did not frame the issues that are matter(s) of general public importance. However, from the arguments by counsel for the applicant, it appears to us that the matter of exercise of judicial discretion is the only issue as the issue of whether the Court of Appeal held the procurement Rules and Regulations ought to have been followed retrospectively did not stand the test in view of the finding by the Court of Appeal that the Public Procurement and Disposal Regulations were not issued and therefore they could not be applied retrospectively…
(21)
We have gone through the judgment of this court and find this issue of discretion was thrashed to a pulp as the judges gave a very lengthy exposition on why the learned trial judge’s exercise of discretion was patently wrong in the circumstances of the matter… It is therefore not surprising that the applicant was not able to formulate any issues of law that constitute matter(s) of general public importance for certification arising on the said judgment as set out in the case of Hermanus Philipus Steyn (supra) …”
78.
We agree with the Court of Appeal’s observation that the intended appeal does not raise an issue where we need to make a pronunciation on clarification of the law to the benefit of the public as opposed to the parties before us. The Applicant has not demonstrated the uncertainty that we need to adjudicate and clarify on. We are also in agreement with the Court of Appeal that the appeal was based solely on exercise of discretion by the High Court which issue has no public importance attached to it on the discretion of the court. We are in further agreement with the Court of Appeal that whether the guidelines could apply retrospectively does not need any clarification by this court since the effect of such application of the guidelines to a case, would vary depending on the facts of each case.
79.
Even if we were to consider the matter as one of general public importance because the suit property is said to be public land with the 2nd respondent being the lessor, the premises are the subject of various suits in the Environment and Land Court as between the 3rd and 4th respondents and the 2nd respondent and other third parties for determination of its ownership. This was well acknowledged by both the High Court and the Court of Appeal. Our intervention would therefore be in vain.
80.
Accordingly, the application fails to comply with the principles in the Hermanus case and is therefore one for dismissal.
F. Conclusion
81.
Turning back to the issues placed before us for determination, we have declined the invitation to overturn the decision of the single judge and have also declined to certify the originating motion as raising issues involving great public importance. We have also stated that all prior decisions that the 3rd and 4th respondents’ seek to be declared bad law shall remain binding on all parties and the threshold in article 163(7) of the Constitution has not been met. Similarly, we have declined the unprocedural invitation and attempt at declaring section 24 of the Supreme Court Act, unconstitutional. On costs, the 1st, 3rd and 4th respondents’ shall have costs of the originating motion but each party should bear its costs of the review application.
G. Disposition
82.
For the above reasons, the final orders to be made are that:
i.
The 3rd and 4th respondents’ notice of motion dated 24th October 2016 is hereby dismissed.
ii.
The applicant’s notice of motion dated 5th October 2016 is hereby marked as spent.
iii.
The originating motion dated 5th October 2016 by the applicant is hereby dismissed.
iv.
The 1st, 3rd and 4th respondents shall have the costs of the originating motion while each party shall bear the costs of the motion dated 24th October 2016.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/2/eng@2021-10-08 |
Petition 7 of 2017 | Kanyuira v Kenya Airports Authority (Petition 7 of 2017) [2021] KESC 7 (KLR) (Civ) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 8 October 2021 | 2,021 | Nairobi | Civil | Kanyuira v Kenya Airports Authority | [2021] KESC 7 (KLR) | null | A. Introduction
[1]
The principles that a party must bring forward his entire case when instituting an action, and that a party should not be vexed twice, are both exemplified by the Latin maxims, interest reipublicae ut sit finis litium (it is in the interest of the State that there be an end to litigation) and nemo debet bis vexari pro una eteadem causa (no one shall be twice vexed for the same cause). These principles are the foundation of the doctrine of res judicata.
[2]
Put differently, once a party brings before the court his entire case, he will be bound by the resulting decision and will not be permitted to re-open that decision on the basis of matters which could have been raised, but which were not at the trial.
[3]
Typically, after analysing all the evidence, the trial court will determine the controversy based on the evidence before it. In an appeal, the appellate court is concerned with the question whether the lower court has appreciated the evidence properly or not and whether the law has been interpreted correctly. But if, subsequent to the judgment, and before the decision of the appellate court, the appellant wishes to present evidence that he ought to have tendered at the trial but did not, certain prescribed conditions must be satisfied.
[4]
The English Court of Appeal in the case of Ladd v Marshall [1954] 1 WLR 1489 established three-part test, namely, non-availability, relevance and reliability, for the appellate Court to accept fresh evidence in a case on which a judgment has already been delivered. Laying down the definitive rule for the admissibility of new evidence Denning LJ, explained that;
“
In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.
[5]
This criteria, today known as the rule in Ladd v Marshall has been applied in many decisions in this country, for instance, by the Court of Appeal in CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd ) [1978] eKLR and most recently by this Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others , where the original three-part test was refined through the court’s interpretation of rule 18 of the Supreme Court Rules, 2012 (presently rule 26 of the Supreme Court Rules, 2020), as shall be shown shortly.
B. Background
[6]
The cause of action arose when the applicant, who is the registered owner of parcel of land known as LR No 209/11444, adjacent to the Wilson Airport, sought to develop it after securing financing. Upon commencement of the project, the applicant was served with a cessation order issued by the respondent in exercise of its powers under the Kenya Airports Authority Act (KAA Act). The respondent claimed that the suit land falls within the protected airport aircraft runway protection zone.
C. In the High Court
[7]
Aggrieved, the applicant petitioned the High Court in Petition No 83 of 2012, Patrick Thoithi Kanyuira v Kenya Airports Authority, challenging the cessation order. In rejecting the petition, the High Court, Lenaola J (as he then was), found that; the respondent had not compulsorily acquired the property but merely restricted the activities that could be carried out on it, which restriction, strictly speaking, did not extinguish the applicant’s proprietary rights; that the respondent acted well within its statutory powers; and that the applicant ought to have sought the respondents’ prior approval before embarking on the construction.
D. In the Court of Appeal
[8]
This decision was upheld on appeal by the Court of Appeal, where it was reaffirmed that; the applicant had proceeded with construction without the approval of the respondent; that, because of the restrictions imposed on the applicant’s property, the respondent offered to exchange it with another one; and that the respondent’s action in issuing a cessation order was within the law, and did not amount to constructive compulsory acquisition.
| G. Analysis and Determination
[20]
The only question the motion raises is, whether the applicant has met the threshold for the grant of leave to present additional evidence pursuant to rule 18 of the Supreme Court Rules,2012 and in accordance with the strictures established in the Mohamed Abdi Mahamud case (supra).
Rule 18 provides that;
“
18(1)The court may in any proceedings, call for additional evidence.
(2)A party seeking to adduce additional evidence under this rule shall make a formal application before the court.
(3) On any appeal from a decision of the Court of Appeal, or any other court or tribunal acting in the exercise of its original jurisdiction, the court shall have power —
……
(c)in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by the
Registrar”. (Our emphasis).
[21]
Earlier on, in Raila Odinga and 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR, this court cautioned that it will be reluctant to grant leave for the filing of further affidavits and/or admission of additional evidence, if the evidence is such as to make it difficult or impossible for the other party to respond effectively. Therefore, the court must act with abundant caution and care in the exercise of its discretion under this rule.
[22]
In paragraph 79 of our Ruling in the Mohamed Abdi Mahamud case (supra), the court declared the circumstances under which additional evidence may be admitted, expanding three-part test in Ladd v Marshall [supra] as follows;
“
We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya 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.”
The court also stressed that, in exercise of its absolute discretion, it will only allow additional evidence sparingly and with abundant caution on a case-by-case basis.
[23]
Applying these principles to the sole question we have posed for determination, it is apparent from this petition that all the applicant is seeking is the setting aside of the appellate court’s decision, a declaration that it violated the applicant’s rights guaranteed by articles 10(a), 24(1)(2)(3) and 40 of the Constitution and an order allowing his petition in the High Court, No 7 of 2017.
[24]
The central issue at the High Court was whether the respondent in issuing cessation order, acted within the law and in discharge of its powers, and whether that act amounted to compulsory acquisition. Upon losing in the High Court, the point taken in the appellate Court was, once again on the violation of the applicant’s rights and whether the cessation order was appropriation or functional acquisition.
[25]
Since the petition is yet to be argued, we shall be circumspect in our approach as we answer the question, whether the applicant has satisfied the conditions for leave to allow additional evidence.
[26]
The proceedings from the High Court all through to this court, the main question has remained; which body has the authority to approve construction on private land abutting or near an airport. That question was settled in R v Managing Director, Kenya Airports Authority ex-parte Patrick Thiothi Kanyuira, that it is the respondent. It cannot be re-introduced in the guise of some new evidence.
[27]
The original action was instituted in 2012, some ten years ago, while the petition before this court was brought four years ago. There is no explanation for this delay. If this so-called additional evidence was indeed crucial to the applicant’s case, why did he have to wait till the 11th hour to seek to introduce it? The bodies from which the documentary have been obtained have been in existence way before the commencement of the proceedings in the High Court, what prevented the applicant from obtaining this evidence from them in time to present the same to the trial court?
[28]
It is our considered view that the application is an attempt by the applicant to make a fresh case in this petition or fill up omissions or patch up his case. We believe too that if leave is granted for additional evidence, the respondent will suffer prejudice.
[29]
In a nutshell, the application has not met the conditions precedent enunciated in the Mohamed Abdi Mahamud case.
[30]
For all the reasons we have given, the notice of motion dated 5th July, 2021 lacks merit, and is for dismissal.
H. Conclusion
[31]
The overarching consideration in an application for the production of additional evidence is whether it is in the interest of justice to do so, bearing in mind the broader impact of allowing such evidence to be admitted. To achieve this, and to ensure adherence to the objectives of Rule 18 aforesaid, the court will assiduously scrutinize any piece of evidence presented as additional evidence.
I. Orders
(i) The notice of motion dated 5th July, 2021 is dismissed.
(ii) The applicant shall bear the costs of the motion.
It is so Ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/7/eng@2021-10-08 |
Application 6 of 2021 | Kenya National Highway Authority v Cycad Properties Limited & 33 others (Application 6 of 2021) [2021] KESC 8 (KLR) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 October 2021 | 2,021 | Nairobi | Civil | Kenya National Highway Authority v Cycad Properties Limited & 33 others | [2021] KESC 8 (KLR) | null | Brief facts
The applicant sought a review of a Supreme Court’s ruling delivered on March 17, 2021 in Application No. 26 of 2020. The applicant’s main ground for review was that the Supreme Court failed to give reasons for its impugned ruling, and thereof breached its rights to fair hearing and fair administrative action protected by the Constitution and the Fair Administrative Actions Act. The applicant then described how that had occasioned an injustice. In essence, it is the applicant’s argument that the summarized ruling was issued in error on its face, on the whimsical exercise of discretion, inadvertently or as a result of an oversight on the part of the court.
Issues
Under what circumstances would the Supreme Court review its own decisions? | D. Issues for Determination
[16]
On the basis of the pleadings and submissions by the parties herein, we consider that three issues merit this Court’s determination; these are:
i.
Whether an order to expunge the respondents’ pleadings should issue;
ii.
Whether the application meets the threshold for grant of review orders; and
iii.
If the answer to (ii) above is in the affirmative, what remedies are available.
PARA
E. Determination
(i)
Expungement of pleadings
[17]
It is the applicant’s contention that the 1st and 2nd to 30th respondents disregarded this court’s directions and filed their responses and submissions to the application for review out of time and without leave. They urge that the same ought to be expunged. In response, the 1st and 2nd to 30th respondents submit that the delay of one to two days was occasioned by technical challenges with the court’s E-filing portal and delay in obtaining instructions. They submit that the delay was not inordinate, has been satisfactorily explained and has occasioned no prejudice to the applicant. They urge the Court to exercise its discretion and allow the pleadings as properly on record.
[18]
We have considered the application, the affidavits in support thereof, and the submissions by all the parties and support the applicant’s contention that the respondents ought to respect and comply with this court’s directions. Indeed, compliance with directions by this court demand adherence by all litigants at all times to ensure orderly and expeditious conduct and disposal of disputes. However, if the applicant’s prayer to expunge is granted, the 1st and 2nd to 30th respondents will be entirely shut out of justice and will be denied a right to complete and effectual resolution of this matter. We also note that the applicant has not suffered any prejudice and the delay of one to two days has been satisfactorily explained while noting in particular they had a challenge with e-filling. Therefore, in the interests of justice to all parties, we are inclined to invoke our inherent jurisdiction in favour of retaining the pleadings in question on the court record. We therefore decline to grant an order expunging the 1st and 2nd to 30th respondents’ pleadings.
(ii)
Review
[19]
It is the applicant’s contention that, the motion is meritorious, exceptional, is in public interest and meets the criteria for review. It submits that this court failed to give reasons for its finding and as a result breached its right to fair hearing and fair administrative action protected under articles 47 and 50 of the Constitution and sections 4 (3) (d) and 6 of the Fair Administrative Actions Act. It also urges that the impugned decision was arrived at in error on the face of the ruling, on whimsical exercise of discretion, inadvertently or as a result of an oversight on the part of the court. It adds that in the interest of justice and good governance, a court of law must give reasons for its finding. It also argues that there is public interest in ensuring that a party whose constitutional rights have been violated by the court’s failure to give reasons, is not left to suffer an injustice. The 31st to 34th respondents essentially agree with these submissions.
[20]
The 1st and 2nd to 30th respondents on the other hand, contend that the application fails to disclose any ground for review. It is contented that, the applicant’s grounds for review fall outside the purview of section 21 (4) of the Supreme Court Act, and are an invitation to this Court, to without jurisdiction sit on appeal of its decision or to re-litigate the application for extension of time. It is their case that the court properly exercised its discretion, directed itself to the issues and facts in dispute as presented in the parties’ pleadings and properly applied the principles for extension of time. It is also urged that a summarized form of ruling, as was applied by this court in the impugned ruling, does not warrant review and that in any case, a summarized form of ruling has now been adopted pursuant to paragraphs 29 and 30 of this court’s Practice Directions, 2020.
[21]
The legal position as regards this court’s power to review its own decision was settled in the Fredrick Outa Case, [supra], wherein this court found that, as a general rule, the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. Therefore, 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. The exceptional circumstances in which it can vary any of its judgments, rulings or orders, are limited to instances where;
i.
the judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
the judgment, ruling, or order, is a nullity, such as, when the Court itself was not competent;
iii.
the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. [Emphasis added]
[22]
It is clear to us that the applicant’s main ground for review is that this court failed to give reasons for its impugned Ruling, and thereof breached its rights to fair hearing and fair administrative action protected the Constitution and the Fair Administrative Actions Act. The applicant then describes how this has occasioned an injustice. In essence, it is the applicant’s argument that the summarized Ruling was issued in error on its face, on whimsical exercise of discretion, inadvertently or as a result of an oversight on the part of the court.
[23]
We find that this assertion is misplaced and made in disregard of the provisions of Paragraph 30 of this court’s Practice Directions, 2020 which allows the adoption of summarized rulings by the court. We also reiterate this court’s decision in the Parliamentary Service Commission Case [supra] where we stated as follows:
‘[34] We note that the decision of the Two Judge Bench was in a summarized form. This might have erroneously informed the applicant’s assertion that some of its issues were considered. However, that cannot be the case. In their ruling, the learned judges categorically state that they had: ‘perused the application dated 24th May 2016; read the affidavit of Anthony Njoroge sworn on 24th May, 2016, and considered the written submissions of both the Applicant and the respondents.” In the ultimate the application was dismissed for the reasons that: “no compelling reasons have been presented to the Court as a justification for the inordinate delay.’ We find nothing irregular with this decision to warrant review.’
[24]
In any event, we agree with the 1st and 2nd to 30th respondents that this court considered the application before it, the parties’ affidavits and submissions and gave its reasoning at paragraph 13 as follows;
‘[13] ……., we find that on the basis of the principles set out by this Court for extension of time in Nicholas Salat Case, Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, SC Appl 50 of 2014 and Hassan Nyanje Charo Case, the applicant has not satisfactorily explained the inordinate delay in filing the Record of Appeal. The reasons given by the applicant for this delay do not provide a sufficient basis for this court to exercise its discretion in the applicant’s favour. Consequently, the application before us is one for dismissal.’
[25]
Having so found, we conclude that the applicant in this matter has failed to meet the conditions for review set out in the Fredrick Outa case [supra]. The upshot is that the applications for review and expungement are for dismissal. We consequently make the following orders:
(i)
The notice of motion dated 29th March 2021 and filed on 31st March 2021 is hereby dismissed
(ii)
The notice of motion dated 10th April 2021 and filed on 12th April 2021 is hereby dismissed.
(iii)
The applicant shall bear the 1st, 2nd to 30th respondent’s costs
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/8/eng@2021-10-08 |
Petition 8 of 2020 | Law Society of Kenya v Communications Authority of Kenya & 5 others; Privacy International (Amicus Curiae) (Petition 8 of 2020) [2021] KESC 6 (KLR) (Constitutional and Human Rights) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 8 October 2021 | 2,021 | Nairobi | Civil | Law Society of Kenya v Communications Authority of Kenya & 5 others; Privacy International | [2021] KESC 6 (KLR) | null | 1
UPON perusing the Notice of Motion Application by the Applicant, Privacy International, dated 8th October 2020 and filed on 15th October 2020 and the Supporting Affidavit sworn by Ian Hosein, the Executive Director of the Applicant on the 5th October 2020 seeking to be enjoined in these proceedings as amicus curiae and;
2
UPON considering the Applicant’s intended amicus brief dated 8th October 2020 and its written submissions dated 8th October 2020 and filed on 15th October 2020 in support of the Application, wherein the Applicant contends that it intends to assist the Court with regard to the compatibility of the Device Management System (DMS) with international human rights standards in relation to the following matters:
i.
Comparative human rights framework applicable to violations of privacy.
ii.
The intrusive nature of the data captured.
iii.
The unregulated and discriminate nature of privacy interference and;
iv.
Necessary safeguards.
v.
The impact on the right to freedom of expression of human rights defenders, lawyers and journalists and;
3
UPON considering the Applicant’s submission on its expertise in defending the right to privacy around the globe by conducting research and investigation into Government and corporate surveillance activities; is non partisan in the matter and only seeks to aid the Court in arriving at a just determination by providing relevant comparative framework on the issue; that because of the public interest and nature of the appeal, it would be prudent to admit the Applicant as amicus curiae as admission would outweigh any possible prejudice;
4
AND considering the 1st Respondent’s Replying Affidavit deponed on 19th October 2020 contesting the intended admission as amicus curiae and the written submissions dated 19th October, 2020 and filed on 22nd October, 2020 submitting that the Applicant has not satisfied the criteria set out by this Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Sup. Ct. Petition No. 12 of 2013, [2015] eKLR; that the Applicant has not demonstrated any expertise in the matters to be addressed; has not raised any novel point of law; has demonstrated impartiality and bias by taking a partisan stance hence not a neutral party and did not file its application timeously and;
5
FURTHER, noting the 6th Respondent’s Grounds of Opposition and written submissions, both dated 27th October 2020 and filed on 5th November 2020 in opposition to the Application wherein, the 6th Respondent contends that the Applicant does not meet the legal threshold for admission as amicus curiae as set out in the Mumo Matemu case (supra) and the principles set out in Francis Karioki Muruatetu & Another v Republic & 5 others, Sup. Ct. Petition No. 15 as consolidated with Petition No. 16 of 2015, [2016] eKLR; that the Applicant has not established any expertise or knowledge that would aid the Court in determining the Appeal; that the Applicant has not demonstrated neutrality and impartiality and;
6
FURTHERMORE, noting the written submissions by the 11th Respondent dated 19th October 2020 and filed on 23rd October 2020 in support of the Application and wherein they submit that the Applicant has met the criteria for admission as set out in Mumo Matemu as the amicus curiae brief is limited to legal arguments; has demonstrated neutrality and fidelity to the law; the Application has been filed timeously; that the Applicant has presented a novel perspective on the issue of privacy and that it is in the public interest that the Applicant be admitted to lend its global expertise on the issues arising as well as protect the general public from violation of their rights.
| 7
In the above context, WE NOW OPINE as follows:
i.
An Applicant for joinder as amicus curiae has to satisfy this Court that it has met the legal requirements for joinder. The relevant law in that regard is Rule 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.
(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 Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others (supra), where the Court pronounced itself on its inherent power to admit amicus curiae and emphasized that;
“
(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 The Muruatetu Case.
iii.
The Applicant’s knowledge and expertise in the field of privacy in general is not doubted. However, its stance that it will take an impartial stand based on the arguments laid before the Court is debatable. Our perception is that a position seeking to set out the detriment of the DMS system seeks to advance a position favoring the Appellant and is inclined towards sustaining the High Court decision to the detriment of some of the Respondents. We are therefore not convinced that the Applicant has demonstrated impartiality and agree with the 1st and 6th Respondents that the Applicant does not satisfy the threshold for admission as amicus curiae in these proceedings.
8
HAVING therefore considered the Application and submissions by the respective parties, we find no merit in this application and we accordingly choose not to exercise discretion, and accordingly, dismiss it.
9
There shall be no order as to costs.
10
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/6/eng@2021-10-08 |
Petition 21 (E023) of 2020 | Member of Parliament, Balambala Constituency v Abdi & 7 others (Petition 21 (E023) of 2020) [2021] KESC 9 (KLR) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 October 2021 | 2,021 | Nairobi | Civil | Member of Parliament, Balambala Constituency v Abdi & 7 others | [2021] KESC 9 (KLR) | null | Brief facts
The 1st respondent filed a petition at the High Court to challenge the creation of various administrative units in Garissa County on grounds that there had been no public participation. The trial court allowed the 1st respondent's petition and declared that the 2nd respondent (County Commissioner, Garissa) had violated constitutional provisions by purporting to create new administrative units and disregarding a court decision rendered in that regard. The trial court issued an order of certiorari against the 2nd respondent and an order of mandamus against the 2nd and 3rd respondents. The Court of Appeal upheld the trial court's decision prompting the petitioner to lodge a petition of appeal at the Supreme Court against the decision of the Court of Appeal.
The 1st and 8threspondents raised preliminary objections on grounds that the petition of appeal did not raise any matters of constitutional interpretation or application under article 163(4)(a) of the Constitution and that the petition of appeal had not been certified as one involving a matter of general public importance under article 163(4)(b) of the Constitution. | E. Analysis and Determination
[14]
The two preliminary objections before us raise one issue of determination by this court, that is, whether the appeal before us raises a question involving the interpretation or application of the Constitution.
[15]
The basis of the preliminary objections is that the appeal does not raise any constitutional issues hence the same fails to qualify as an appeal filed as of right to invoke this court’s jurisdiction.
[16]
The petitioner and the 5th respondent on the contrary, argue that the appeal is premised upon article 163(4)(a) of the Constitution as it raises issues involving the application and interpretation of the Constitution. The 5th respondent further went on to argue that the appeal revolved around the jurisdiction of the High Court while exercising its power of review under article 89 of the Constitution.
[17]
This court has previously set the guiding principles for bringing an appeal before it under article 163(4)(a) of the Constitution in Gatirau Peter Munya v Dickson Mwenda Kithinji & others where we stated inter alia as follows:
i.
a court’s jurisdiction is regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
ii.
the chain of courts in the constitutional set-up have the professional competence to adjudicate upon disputes coming up before them, and only cardinal issues of law or jurisprudential moment, deserve the further input of the Supreme Court;
iii.
the lower court’s determination of the issue on appeal must have taken a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
iv.
an appeal within the ambit of article 163(4)(a) is to be one founded on cogent issues of constitutional controversy.
[18]
Further, in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, Supreme Court Petition No 3 of 2012; [2012] eKLR (Lawrence Nduttu case), this court held that the mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of article 163(4)(a) of the Constitution. We specifically stated as follows:
“
(27)
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 and/or application of the Constitution can be entertained by the Supreme Court.”
[19]
Furthermore, in Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others, this court found that even in matters originating as judicial review, the issues have to fall under the canopy of article 163 (4)(a). The court then proceeded to set guiding principles which a party must comply with in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review. We stated thus:
“
(33)
It follows that for an appeal to lie to this court, in a matter originated under judicial review, the issues have to fall under the canopy of article 163(4)(a). As judicial review is concerned with process, but for a case where the process is contested as being unlawful, irrational or procedurally unfair – elements falling within the purview of the rule of law (a constitutional principle)
– the matter cannot lie to the Supreme Court. Hence in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review, the party concerned should comply with certain principles, as follows:
i.
not all Judicial Review matters are appealable to the Supreme Court, as of right;
ii.
it is open to the party concerned to move the court on appeal under article 163(4)(b) of the Constitution, in which case, the normal certification process applies;
iii.
where such an appeal comes under article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
iv.
the party concerned should demonstrate that the superior courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.”
[20]
It is clear from the court record that this petition of appeal arose from High Court Constitutional Petition No 238 of 2015 where the 1st respondent had sought a declaration that the actions of 2nd respondent were in breach of articles 10, 47 and 159 of the Constitution. The High Court (Mativo, J) in deciding whether the 2nd respondent had acted within the confines of the law, then considered the provisions of section 4 of the National Government Coordination Act No 1 of 2013 which states that; ‘In fulfilling its mandate, the national government shall act in accordance with the national values and principles of the Constitution in particular, those set out in articles 10, 189, 201(d) and 232.’
The trial judge then went on to analyze whether articles 10, 189, 201(d) and 232 of the Constitution (as the constitutional provisions) and section 4 of the National Government Coordination Act (as the statutory provision) were complied with and found in the negative. In so finding, he noted thus;
“
Regarding the issue whether or not the first respondent acted within the confines of the law while creating the
administrative units, section 4 of the National Government Co-ordination Act[14] offers the guiding principles. It provides in clear terms that:-"In fulfilling its mandate, the national government shall act in accordance with the national values and principles of the Constitution in particular, those set out in articles 10, 189, 201(d) and 232.
Article 10 (1) of the Constitution provides that "The national values and principles of governance bind all State organs, State officers, public officers and all persons whenever any of them—
(a)
applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions.
Sub-article (2) (a) and (c) provides that "The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (c) good governance, integrity, transparency and accountability.
Article 189 (1) provides inter alia that the Government at either level shall— (a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level.
From the averments and arguments rendered by the parties, I am not satisfied that the constitutional and statutory provisions outlined above were complied with. In particular, there appears not to have been proper public participation.
[21]
The Court of Appeal on its part, while determining the appeal, went on to analyze the application of section 4 of the National Government Coordination Act by the trial court and went on to find that the 2nd respondent had contravened the provisions of section 4 of the Act as well as articles 10, 189, 201(d) & 232 of the Constitution. It rendered itself as follows:
“
Articles 1 and 2 of the Constitution states that all sovereign power belongs to the people of Kenya exercisable only in accordance with the Constitution through delegated authority donated to state organs such as the executive, the legislature and the judiciary. Being the Supreme Law, the Constitution binds all persons and all state organs at both levels of government. It follows therefore that if any state organ does or purports to do an act in a manner which does not fall within the constitutional prescription, then that action would be unlawful and or unconstitutional.
Whereas article 10 of the Constitution provides for national values and principles of governance such as devolution of power, the rule of law, participation of the people, good governance, integrity, transparency and accountability, article 47 provides for fair administrative action, in that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair…The learned Judge while relying on the guiding principles in section 4 of the National Government Coordination Act and articles 10(1) & (2)(a)(c) and 189(1) of the Constitution was not satisfied that there was proper public participation and held that “there wasn’t any serious engagement with the public as the public had previously expressed their concerns in JR No 120 of 2012 and the court made a determination which was never reviewed, set aside or appealed against.” Consequently, the court found that the constitutional and statutory provisions were not complied with in the creation of the administrative units.”
[22]
From the above, it is evidently clear that though section 4 of the National Government Coordination Act was the basis upon which the trial court adjudicated on whether the administrative actions of the 2nd respondent were done within the confines of the law, the provisions of section 4 were founded on the provisions of articles 10, 189, 201(d) & 232 of the Constitution, and it is these constitutional provisions that the 2nd respondent was found to be in breach of.
[23]
We therefore find little difficulty in concluding that the issues before the High Court as well as the Court of Appeal involved the interpretation and application of the Constitution. The argument by the 1st and 8th respondents that there was no constitutional issue determined by the courts below is therefore untenable. Having so found, we have no option than to overrule the preliminary objections.
F. Orders
(i)
The preliminary objection by the 1st respondent filed on 25th January 2021 is hereby overruled.
(ii)
The preliminary objection filed on the 3rd March 2021 by the 8th respondent is hereby overruled.
(iii)
Each party shall bear its costs of the objection.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/9/eng@2021-10-08 |
Application 5 of 2019 | Mohamed & another v Mohamed & 3 others (Application 5 of 2019) [2021] KESC 1 (KLR) (Civ) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, SC Wanjala, N Ndungu, I Lenaola, W Ouko | 8 October 2021 | 2,021 | Nairobi | Civil | Mohamed & another v Mohamed & 3 others | [2021] KESC 1 (KLR) | null | A. INTRODUCTION
1.
On 1st July, 2021 Ahmed Abdullahi Mohamed (1st applicant) filed a Notice dated 28th June, 2021 seeking leave to withdraw an application dated 18th February, 2021, which he had lodged together with Ahmed Muhumud Abdi (2nd applicant). In the said application, both applicants had sought an order to review this Court’s judgment (majority) delivered on 15th February, 2019 in SC Petition No. 7 of 2018.
In the said Notice to Withdraw the application, the 1st applicant urged us not to award costs.
B. BACKGROUND
2.
Following the general election held on 8th August, 2017 the 1st respondent was declared the duly elected Governor of Wajir County. Dissatisfied with the outcome, the applicants lodged before the High Court, Election Petition No. 14 of 2017 contesting the said results. By a Judgment dated 12th January,2018 the High Court (Mabeya, J.) nullified the 1st respondent’s election on grounds inter alia; that he lacked the requisite academic qualifications to vie for the gubernatorial seat; and that the irregularities and illegalities by the 3rd & 4th respondents not only affected the credibility of the election but also the results thereof.
3.
Aggrieved by that decision, the 1st respondent filed an appeal in the Court of Appeal, Election Petition Appeal No. 2 of 2018, which was dismissed on 20th April, 2018. Unrelenting, the 1st respondent filed a second appeal in this Court, SC Petition No. 7 of 2018, which was allowed vide a majority Judgment (Ibrahim, Ojwang, Wanjala & Njoki, SCJJ) delivered on 15th February, 2019. In particular, the Court of Appeal Judgment was set aside and the declaration in favour of the 1st respondent as the duly elected Governor of Wajir County upheld.
4.
Subsequently, the applicants filed an application for review (which now they seek to withdraw). However, before the application could be prosecuted the 2nd applicant filed yet another application dated 16th April, 2019 seeking leave to withdraw and to strike out his name from the application for review. He deposed that he was no longer interested in pursuing the application.
5.
Initially, the 1st applicant opposed the 2nd applicant’s application for withdrawal vide grounds of objection filed before this Court on 25th April, 2019. It seems that the 1st applicant had a change of heart as evinced by the notice of withdrawal. | C. ANALYSIS
6.
The notice of withdrawal was placed before a single Judge of this Court on 5th July, 2021 who, upon noting that the notice was not by consent of the parties, directed that the matter be mentioned before the Deputy Registrar. This was to enable the other parties to indicate their respective positions with regard to the said withdrawal and whether they would be pursuing the issue of costs.
7.
Towards that end, the matter was mentioned before the Deputy Registrar on several occasions, that is, 9th July, 2012, 5th August, 2021 and 10th September, 2021.
On all occasions the parties’ advocates were served with mention notices.
Moreover, the parties were directed to file written submissions with respect to the intended withdrawal and costs, which to date none of the parties have complied.
8.
Although the notice of withdrawal is indicated to have been filed pursuant to Rule 19 of the Supreme Court Rules, the applicable provision is Rule 27 of the Supreme Court Rules, 2020. Nonetheless, taking into account the conduct of the parties beginning with both applicants’ intimation of their unwillingness to proceed with application, coupled with the absence of any response by the other parties, we come to the irresistible conclusion that none of the parties has an interest in the review application. In the circumstances, we allow the withdrawal sought.
9.
As for the issue of costs, we are clothed with inherent jurisdiction by dint of Section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020 to issue such orders as to cost as we deem fit. In addition, it is trite that the issue of costs is at the discretion of the Court which discretion must be exercised judiciously.
10.
Ideally, costs ought to follow the event. However, there are circumstances under which this rule is exempted. This Court in Jasbir Singh Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR in discussing such circumstances expressed-
“(18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.”[Emphasis added]
11.
Applying the above principles to the matter at hand, we are convinced that we should not make any orders as to costs. More so, in light of the parties conduct with respect to the notice of withdrawal.
D. ORDERS
12.
In the event, and in exercise of our discretion we order as follows: -
i.
The application dated 18th February, 2019 and filed on 20th February, 2019 is hereby withdrawn with no orders as to costs.
It is accordingly so ordered. | Withdrawn | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/1/eng@2021-10-08 |
Petition 19 (E022) of 2020 | Wamae & 97 others v Barclays Bank of Kenya Limited (Petition 19 (E022) of 2020) [2021] KESC 5 (KLR) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko | 8 October 2021 | 2,021 | Nairobi | Civil | Wamae & 97 others v Barclays Bank of Kenya Limited | [2021] KESC 5 (KLR) | null | Brief factsThe 1st appellant and 104 other former employees of the respondent filed a claim seeking the re-evaluation and award of their exit packages following a declaration of redundancy. In their claim, the appellants' main contention was that, upon subsequent and proper calculation of their expected exit packages, it was found that the respondent had not computed and paid to them their correct dues. In interpreting the provisions of section 40(g) of the Employment Act, 2007, the Employment and Labour Relations Court entered judgment in favour of the claimants in the action. That court also found discrimination in terms of section 5(3) of the Employment Act 2007, in the manner in which the employees were treated. In overturning that decision, the Court of Appeal’s judgment turned on the question whether the Employment and Labour Relations Court properly read and construed the provisions of section 40(1)(g) of the Employment Act.Aggrieved, the appellants filed the instant petition of appeal. The respondents subsequently filed a notice of preliminary objection urging the Supreme Court to dismiss the appeal on among other grounds that: the decision of the Court of Appeal did not involve an issue of interpretation or application of the Constitution of Kenya, 2010 (Constitution) and as a result, an appeal to the Supreme Court as of right did not lie; and in so far as the petition of appeal was based on grounds that the intended appeal raised an issue of general public importance, it was improperly before the Supreme Court, no leave to appeal had been sought or granted by the Court of Appeal and no certification that a matter of general importance was involved had been made in accordance with the law. | E. Analysis and Determination
17
The objection has been taken on the jurisdiction of the court to entertain the appeal, on the ground that it does not meet any or the two limbs of article 163(4)(a) and (b) of the Constitution.
18
The principles established by the time-honoured, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696, cited with approval by this court in Hassan Ali Joho case (supra) are settled that;
“
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
19
We have no doubt at all that the point raised in the objection satisfies the above strictures. But of significance, it raises a jurisdictional question which, if argued successfully, is capable of disposing the appeal. Indeed, the other ingredients are also present.
20
The petition of appeal lodged in the registry on 2nd December, 2020, is expressed to be brought under article 163(4)(a) of the Constitution and identifies two points as the basis; that it raises questions of constitutional interpretation and application and secondly, that there are conflicting decisions of the Court of Appeal on a point of law which would require this court to settle. The case cited to contradict the decision of the Court of Appeal in the matter giving rise to this appeal is Telkom Kenya Limited v John Ochanda [2013] eKLR, where it was held that payment of severance pay must cover each year of an employee’s service. It is incompatible to rely on article 163(4)(a) as the basis of the appeal and in the same breath claim that the appeal raises a matter of general public importance on account of conflicting decisions, because for the latter there has to be a certificate granting leave to appeal under article 163(4(b), while in the former, an appeal is as of right. It is conceded that no certificate was sought or obtained, and that indeed the appeal is premised on article 163(4(a).
21
Having reached that conclusion, we must now consider the principles that guide the court on the delineation of its jurisdiction under that provision, which are now settled by a long line of authorities, such as Hassan Ali Joho, Peter Oduor Ngoge v Hon Francis Ole Kaparo, [2012] eKLR, Gatirau Peter Munya v Dickson Mwenda & 2 Others, [2014] eKLR and Lawrence Nduttu (supra). Those principles were summarized in the latter case as follows;
“
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. 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).”
22
Applying this test to the matter under our review, we entertain no doubt that the appeal does not meet the conditions articulated in these authorities. From ELRC to the appellate court, not a single question on the Constitution was pleaded, canvassed and determined. Indeed, no specific constitutional provisions were presented for interpretation or application.
23.
The case brought before the ELRC, as summarized by the learned judge was simply whether the appellants were entitled to severance pay calculated at every completed year of service following the respondent’s declaration of their redundancy. The only provision of the law whose interpretation was called forth was section 40(1)(g) of the Employment Act . Judgment in their favour was entered pursuant to the interpretation of that provision.
24.
The appellate court, likewise, in setting aside the judgment of the ELRC, based its decision purely under section 40(1)(g) of the Employment Act . We have gone through the entire judgment of the appellate court and confirm that, not once, has the word constitution been mentioned.
25.
Before this court, in the petition of appeal, the appellants have now introduced several provisions of the Constitution, which they argue, fell for interpretation by the two superior courts below. We must remind them that, the mere invocation of articles of the Constitution in the pleading, does not in itself avail those provisions for consideration by this court. We arrive at the inevitable conclusion that there was no issue of constitutional controversy before both courts below for either interpretation or application. The appeal does not meet the jurisdictional threshold under article 163(4)(a) of the Constitution.
F. Final Orders
26.
Consequently, we make the following orders:
i.
The preliminary objection dated 2nd December, 2020 is hereby sustained.
ii.
The Petition of Appeal No 19 (E022) of 2020 is hereby dismissed.
iii.
The petitioner shall bear the costs of the respondent.
It is so Ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/5/eng@2021-10-08 |
Civil Application 10(EO17) of 2021 | Westmont Holdings SDN BHD v Central Bank of Kenya (Civil Application 10(EO17) of 2021) [2021] KESC 3 (KLR) (8 October 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, PM Mwilu, N Ndungu, I Lenaola, W Ouko | 8 October 2021 | 2,021 | Nairobi | Civil | Westmont Holdings SDN BHD v Central Bank of Kenya | [2021] KESC 3 (KLR) | null | Brief facts
The applicants sought a review of a Court of Appeal decision in which an application for the grant of a certificate for leave to appeal to the Supreme Court under article 163(4)(b) of the Constitution was declined.
The applicant sought certification that its intended appeal raised three matters of general public importance and they were: -
Whether the striking out of an appeal on grounds that security for costs was not deposited as directed was an impediment to access to justice and a violation of articles 50 and 159 of the Constitution.
Whether prohibitive costs contravened article 48 of the Constitution on access to justice and particularly, whether it was fair or reasonable to require a party that had been defrauded Kshs. 185,500,000 to deposit a further Kshs. 20,000,000 before being heard in a court of law.
Whether the fact that a respondent was holding money belonging to an appellant, which was in excess of security for costs awarded, was a relevant factor for the court to consider and whether failure to consider that factor was a contravention of articles 50 and 159 of the Constitution.
At the High Court, the applicant together with Mr. Kamlesh Mansukhlal Pattni sought a refund of Kshs. 185,500,000/= being a deposit paid towards the purchase of the Grand Regency Hotel within Nairobi by Lynwood Development Limited (Lynwood). The suit, which was initially dismissed for want of prosecution, was reinstated by the Court of Appeal in a judgment delivered in 2014. Among the preliminary objections raised by the Central Bank of Kenya (CBK) was the contention that the applicant had been wound up on May 21, 2002 and it was incapable of donating any powers or appointing any agent and therefore Lynwood could not be a party to the suit. CBK also argued that the applicant's suit had abated and that any substitution of the applicant as a party ought to have been done within one year as provided for in the Civil Procedure Rules.
As regards the preliminary objection, the High Court made the finding that there had been material non-disclosure as to who the parties were and it had amounted to the applicant stealing a match against CBK and other parties when seeking reinstatement of the suit. The High Court also found that the agency relationship between the applicant and Lynwood was undisclosed with Lynwood being an undisclosed principal. The High Court noted that at the time of the agreement for the sale of Grand Regency, the applicant did not have a power of attorney to enable it to execute the deed for the sale of the hotel. Since Lynwood was held not to be a proper party to the suit, the suit was dismissed as there was no proper plaintiff. Nonetheless, the High Court assessed the claim on merit and dismissed both the plaint and the counterclaim with costs.
The applicant lodged an appeal at the Court of Appeal. CBK then filed a notice of motion seeking security for costs amounting to Kshs. 87,620,000. The Court of Appeal made a ruling in which it ordered the deposit of Kshs. 20,000,000 as security for costs within 45 days of the ruling. The applicant sought to appeal to the Supreme Court against the ruling and sought certification that would grant it leave to file the appeal from the Court of Appeal. The Court of Appeal found that the intended appeal would not raise any issue that had a bearing on public interest or that would warrant the certification sought. | D. Issues for Determination
[30]
Having considered the record of the application before us and the rival submissions of the parties, the single issue for consideration before this court is whether the applicant has made a case to the satisfaction of this court to warrant us to review the denial of certification by the Court of Appeal, set it aside and grant the applicant leave to file its appeal to this Court.
E. Analysis
[31]
During the pendency of the originating motion dated 6th August 2021, CBK through its advocates filed a notice of motion application dated 31st August 2021, seeking two orders namely: that this Court holds an oral hearing of the originating motion dated 6th August 2021; and that the Record of the Court of Appeal in Civil Appeal No 37 of 2017 be made available to us, for consideration during the hearing. The application is premised on the grounds that: the Record will aid the court in finding that no matters of great public importance arise therefrom; the Court of Appeal’s decision and the ruling on certification sought to be appealed from were made on an examination of the entire record; and that the applicant’s narrative is misleading, incomplete, and skewed. Also, in support of CBK’s application is a supporting affidavit sworn by Kennedy Kaunda Abuga, CBK’s General Counsel, on 31st August 2021.
[32]
The procedure for disposing an application for certification is set out under rule 33(5)(b) of the Supreme Court Rules, 2020 which provides inter alia that:
“
an application for certification shall be determined on the basis of written submissions.” Having considered CBK’s application, the grounds in support thereto, and the supporting affidavit, we find no sufficient reason to warrant a departure from the procedure provided for in the rules. Accordingly, the notice of motion application dated 31st August 2021 fails.
[33]
Having considered the application before us, the supporting affidavit, the replying affidavit and the respective parties submissions, we note that the issue of security of costs was subject of determination by the appellate court (not at the High Court) leading to the ruling delivered on 8th December 2017, where the that court found inter alia: “we are satisfied this is a suitable case to order the appellant, be it Westmont or Jasmin See, to deposit security to guarantee the costs of the appeal in the sum of Kenya Shillings Twenty Million (Kshs 20,000,000/=). In arriving at the said sum, we have considered the amount in dispute, the fact that there are other costs that were ordered to be paid by the appellant in the High Court and more importantly, the enormous amount of resources in terms of professional services and attendant costs likely to be incurred in defending an appeal such as this one. Accordingly, we order the said sum be deposited in Court as security for costs in this appeal within 45 days of this ruling, failing which the appeal will stand struck out with costs to CBK.”
[34]
In declining to certify Westmont’s appeal under article 163(4)(b) of the Constitution, the learned Judges of Appeal in a ruling delivered on 23rd July 2021, held that the issue of award of costs or an order directing the payment of security for costs not to be a substantial one. Further that there is no uncertainty in law on that issue as the Court of Appeal Rules are clear on the issue of costs or payment of additional costs or security for costs. It concluded that no issue had been raised for determination which would have any bearing on the public interest, and to warrant certification for determination by the Supreme Court.
[35]
However, in this matter the questions posed by the applicant for determination as matters of general public importance are as follows:
a.
Whether striking out an appeal; or indeed any matter, without its being heard if security for costs is not deposited; is a direction that is an impediment to a party’s access to justice and stands in contravention of articles 50 and 159 of the Constitution for imposing a condition precedent or a stringent qualification to a litigant’s fundamental right to justice.
b.
Whether a prohibitive cost tag to access to justice is in contravention of article 48 of the Constitution which provides that fees to access justice should be reasonable and shall not impede access to justice and whether it is fair or reasonable that a party who has already been defrauded of Ksh 185,500,000/= be required to deposit a further Ksh 20 million in order to be heard by a court.
c.
Whether admissions by a respondent that it is holding an appellant’s monies in excess of the security for costs awarded is a relevant factor to consider and whether failure to consider such relevant factors is a travesty of justice contravening articles 50 and 159 of the Constitution.
[36]
Having considered the issues, the constitutional provisions on the issue of costs and the right to access justice, decisions of the superior courts below, the different laws and regulations on the subject matter it is obvious to us the issue of security of costs is likely to affect any litigant approaching a court of law hence and therefore has a significant bearing on the general public and transcends the facts of this case. We therefore find that it is in the public interest that this court settles this matter by hearing the intended appeal.
[37]
Before granting leave, we wish to state that not all the questions framed by the applicant for determination merits appeal to this court. After looking at all the submissions, we hereby determine and certify the following issue as one of general public importance and which we shall consider in the intended appeal:
“
Whether an order for security costs is unreasonable as it impedes a litigant’s access to justice by imposing a condition precedent before the latter can be heard, contrary to articles 48, 50 and 159 of the Constitution?”
[38]
Consequently, all parties shall submit on this question at the hearing of the appeal and how its determination may affect the impugned decision of the Court of Appeal.
F. Orders
[39]
As a result of the foregoing, we find that this application is for allowing which we do in the following terms:
(i)
The originating motion application dated 6th August 2021 is hereby allowed.
(ii)
The decision of the Court of Appeal delivered on 23rd July 2021 is hereby set aside.
(iii)
It is hereby certified that the intended appeal involves a matter of general public importance.
(iv)
Upon the appeal being duly filed, this matter shall be heard on a priority basis.
(v)
Costs of this application shall be in the cause.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/3/eng@2021-10-08 |
Miscellaneous Application 22 of 2020 | Director of Public Prosecutions v Okemo & 4 others (Miscellaneous Application 22 of 2020) [2021] KESC 40 (KLR) (6 August 2021) (Directions) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, NS Ndungu, W Ouko | 6 August 2021 | 2,021 | Nairobi | Civil | Director of Public Prosecutions v Okemo & 4 others | [2021] KESC 40 (KLR) | null | 1.
Intending to challenge the decision of the Court of Appeal made on 2nd March, 2018, the Director of Public Prosecutions, (the applicant) has, with the Court’s leave, lodged Petition of Appeal No. 14 of 2020. It was declared by that decision that extradition proceedings instituted before the magistrate’s court against Chrysanthus Barnabus Okemo and Samuel Kimunchu Gichuru (the 1st and 2nd respondents) by the applicant were without the authority of the 3rd Respondent (the Attorney General) and therefore a nullity; and that, in law, it is only the latter who is vested with the power to commence and conduct such proceedings.
2.
Aggrieved by that determination and apprehensive that the decision may be executed by the Attorney General before the appeal is heard, the applicant has taken out this Notice of Motion, praying that, pending the hearing and determination of the appeal, this Court be pleased to issue an order to stay the execution of the aforesaid decision of the Court Appeal. | 3.
The application was listed for consideration on the basis of written submissions pursuant to Rule 31 of the Court’s Rules. However, having regard to the nature of the dispute in the pending appeal; bearing in mind that the main appeal has now been listed for hearing on 5th October, 2021, and in order to save on judicial resources, we direct that;
i.
The Notice of Motion dated 12th August, 2020 be and is hereby taken out of the hearing list;
ii.
The Notice of Motion be listed for further directions during the hearing of Petition No. 14 of 2020 on 5th October, 2021;
iii.
We make no orders as to costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/40/eng@2021-08-06 |
Petition 1 of 2018 | Institute of Social Accountability & another v National Assembly of Kenya & 3 others (Petition 1 of 2018) [2021] KESC 30 (KLR) (6 August 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko | 6 August 2021 | 2,021 | Nairobi | Civil | Institute of Social Accountability & another v National Assembly of Kenya & 3 others | [2021] KESC 30 (KLR) | null | Brief facts
The petitioners moved to the Supreme Court vide a Petition of Appeal that sought to overturn the judgment and orders of the Court of Appeal save for the declaration that sections 24(3)(c) and (f) and 37(1)(a) of the Constituencies Development Fund Act, 2013 violated the principle of separation of powers. In essence, they sought to invalidate the Constituency Development Fund Act 2013 as amended by the Constituencies Development Fund (Amendment) Act 2015 for various reasons stated in the petition. On its part, the 1st respondent filed a notice of cross-appeal that sought to uphold the Court of Appeal’s decision.
The petitioners filed an application that sought leave to attach additional evidence, being copies of the Hansard which were not available to them at the time of filing the petition of appeal. The petitioners claimed that the additional evidence removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit and the respondents could easily respond to, and the court could as well take judicial notice of the evidence. Further, the additional evidence fit the issues framed in the petition relating to the Constituency Development Fund Act offending the division of functions, principles of public finance, and division of revenue.
The respondents objected to the application on grounds that the additional evidence was not directly relevant to the matter and that the petitioners should not be allowed to patch up points that they had not raised at the trial court at the appellate court. | C. Issue for Determination
14.
The main issue for determination is whether leave should be granted to the petitioners to adduce additional evidence by way of the National Assembly Hansard of 9th, 11th, 18th, 23rd March, 2021 covering debate on supplementary appropriations to the National Government Constituency Development Fund and the Division of Revenue Bill 2021.
D. Analysis
15.
We have considered the grounds in support of the application and the objections thereto by the 1st and 4th respondents. Rule 26 of our Rules provides for admission of additional evidence. It states:
“
The court may call or admit additional evidence in any proceedings”
16.
All the parties rightly appreciate the principles on admission of additional evidence as set out by this court in Mohamed Abdi case. These are that:
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
(b)
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
(c)
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
(d)
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
(e)
the evidence must be credible in the sense that it is capable of belief;
(f)
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
(g)
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
(h)
where the additional evidence discloses a strong prima facie case of willful deception of the court;
(i)
The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful;
(j)
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
(k)
the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
17.
We note that the respondents raised other grounds that warrant our consideration at the onset. These are:
a)
Whether the proposed additional evidence is admissible
b)
The place of the proposed additional evidence in relation to the pending litigation before the High Court in Milimani Constitutional Petition No.178 of 2016 Wanjiru Gikonyo & others v the National Assembly and others and High Court Petition No E129 of 2021 – Katiba Institute & 2 others v CS, National Treasury & 4 others; Commission on Revenue Allocation (Interested Party).
18.
On the first question, the petitioners contend that the additional evidence is admissible as a public record that the court should in any event take judicial notice of. The 1st respondent is adamant that the additional evidence is inadmissible as it is privileged and that the adduced copy is neither the original nor a certified copy and that the deponent of the affidavit in support of the application has in any event not disclosed the source of this document.
19.
Under section 60(1)(b) of the Evidence Act, the courts shall take judicial notice of the general course of proceedings and privileges of parliament, but not the transactions in their journals. It is not uncommon for courts to make reference to the Hansard in making their determinations as they have done in the past. As elected representatives of the citizens, there is public interest in allowing citizens to access proceedings of parliament which includes broadcast to the public particularly under the 2010 constitutional dispensation. Such proceedings are reduced into a Hansard that is readily accessible to the public which may explain why the petitioners had ready access to it, notwithstanding that it is not an original or a certified copy.
20.
As to whether the contents of the Hansard are privileged, we have previously expressed ourselves on the issue. In Republic v Speaker of the National Assembly & 4 others ex-parte Edward RO Ouko [2017] eKLR, we, inter alia, stated that:
“
Parliament in Kenya cannot enjoy privilege, immunities and powers which are inconsistent with the fundamental rights guaranteed in [Constitution]. Thus, whereas parliamentary privilege is recognized, it does not extend to violation of the Constitution hence Parliament cannot flout the Constitution and the law and then plead immunity; where a claim to parliamentary privilege violates constitutional provisions, the court’s jurisdiction would not be defeated by the claim to privilege; that the concept of statutory finality does not detract from or abrogate the court’s jurisdiction in so far as the complaints made are based on violation of constitutional mandates or non-compliance with rules of natural justice; that whereas the people of Kenya gave the responsibility of making laws to Parliament, and such legislative power must be fully respected, the courts can however interfere with the work of Parliament in situations where Parliament acts in a manner that defies logic and violates the Constitution.”
In essence, the parliamentary privileges and immunities are not absolute in the event of a valid grievance by a litigant based on the violation of the Constitution. The petitioners have brought action against the National Assembly alleging infringement of the Constitution. At this juncture, before the appeal is heard, we cannot say that Parliament has violated the Constitution in debating or expressing itself on any legislative action. That issue must await the hearing and determination of the appeal and parties allowed to respond to the new evidence, if at all it is eventually admitted.
21.
On the second issue, it is evident that the proposed additional evidence is subject to litigation before the High Court in which the petitioners are involved. The petitioners have not addressed this issue. Bearing in mind the hierarchical structure of the courts in Kenya, we do not see any justification for destabilizing the same to enable us render ourselves, as the apex court, on an issue that may otherwise end up before us using the normal litigation and appellate channels. We thus are inclined to agree with the respondents that the evidence sought to be introduced would be best interrogated in those pending litigations before the High Court and subsequently through appeal should it come to that.
22.
Turning back to the principles on admission of additional evidence, the petitioners argue that they meet the set threshold while the respondents argue otherwise. It is common ground that the Hansard in issue relates to parliamentary debates held on 9th, 11th, 18th and March 23, 2021 covering supplementary appropriations to the National Government Constituency Development Fund and the Division of Revenue Bill 2021. This inevitably leads to our interrogation of the relevance of the said evidence and its direct bearing on the outcome of the case.
23.
At paragraph 7 of the supporting affidavit, the deponent, Munguti Kioko states as follows:
“
Logically, these records of the Hansard debates are a recent occurrence and were not available earlier; yet counsel informs me that they are relevant to the pending appeal.”
In our mind, it is evident that the relevance of the debates to the appeal was not readily apparent to the deponent. As pointed out by the respondents, the present proceedings do not relate to the constitutionality of the National Government Constituency Development Fund and the Division of Revenue Bill 2021. A perusal of the issues for determination and reliefs sought in the petition of appeal and the notice of cross appeal before us reveals that remedies sought relate to the constitutionality of the Constituency Development Fund Act, 2013.
24.
We further note that while the High Court had declared the said Constituency Development Fund Act as unconstitutional, the order of invalidity was suspended for a period of 12 months and the national government was allowed to remedy the defect within the suspension of invalidity period or by repeal whichever came first. This, in our view did not prevent Parliament from subsequent enactment of law that would repeal the impugned Constituency Development Fund Act 2013. In our view, the National Government Constituency Development Fund Act was enacted in that context.
25.
The Constitution gives recourse for any party to challenge the constitutionality of any laws to the extent of the contravention. We are made to understand that the petitioners are engaged in challenging the said National Government Constituency Development Fund Act before the High Court as alluded to earlier in this ruling.
26.
To this extent therefore, we are unconvinced that the additional evidence should be admitted. Introducing evidence seven years after the time the Constituency Development Fund Act was enacted in 2013 and to seek that such evidence be considered in determining the constitutionality of the 2013 Statute is, in our view, quite inappropriate as it not only introduces fresh facts but also introduces them at the penultimate stage of the proceedings before the apex court. This is compounded by the fact that the main appeal is ready for hearing. We are of the view that the interests of justice are better served in having the appeal disposed with expeditiously.
D. Disposition
27.
Consequently, we make the following orders:
i)
The notice of motion application dated April 16, 2021 is dismissed.
ii)
Costs shall abide the outcome of the main appeal.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/30/eng@2021-08-06 |
Petition 17 of 2015 | John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 6 August 2021 | 2,021 | Nairobi | Civil | John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others | [2021] KESC 39 (KLR) | null | Brief facts
A bilateral agreement on maritime freight management entered into on May 30, 2000, between the Democratic Republic of Congo (DRC) Government and the Kenyan Government, provided for the Kenyan Government through the 1st to 3rd respondents, to collect taxes on freight charges of goods imported to and on transit to the DRC through the port of Mombasa. DRC entered into the agreement through its Ministry of Information, Transport and Communication, acting through the 4th respondent, a body known as Office De Gestion Du Freit Maritime (OGEFREM) while Kenya entered into the agreement through its Ministry of Information, Transport and Communication. The agreement provided for the assessment, levying and collection of a commission to the tune of 1.8% of the gross freight charges on the imports on behalf of Office De Gestion Du Freit Maritime (OGEFREM).
The parties' agreement was to remain in force for a three-year period subject to a one-off renewal for a further period of three years. It was alleged that the agreement expired on May 29, 2003 and was renewed on December 18, 2003, after the lapse of seven months outside the agreement renewal period.
On October 26, 2012, the 4th respondent issued circulars to shippers, forwarders and agents stating that effective October 29, 2012, payments for Fiche Electronique de Renseigment Certificate (FERI) as well as Certificate of Destination (COD) were to be made to its account in US Dollars subject to all documents being submitted and validated at its offices. The requirements introduced new charges at a rate of USD 100.
The appellants stated that the requirements were in breach of the bilateral agreement. They stated that the payments could only be collected by the 1st respondent on behalf of the DRC Government but not by payment to a private individual’s bank account in Italy, as the receipts issued did not bear the Coat of Arms of the DRC Government or the address of the recipient.
The dispute was entertained by the High Court. The High Court made the finding that the petition was res judicata because of a previous decision by the High Court in Judicial Review No 130 of 2011 (JR No 130 of 2011). In Judicial Review No 130 of 2011, the court held that the imposition of FERI and COD had a legal basis. The High Court held that the judgment issued was a judgment in rem as opposed to one that was in personam or inter parties and it operated against the parties to the petition. On appeal, the Court of Appeal dismissed the appeal and found that the High Court was justified in holding that the suit was res judicata. Aggrieved, the appellant filed the instnt appeal t the Supreme Court. | F. Costs
111.
As to the questions of costs in this matter, this court has previously settled the law on award of costs: that costs follow the event, and that the court has the discretion in awarding costs. This was our decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012: [2014] eKLR. Considering our findings above, that the High Court that erred in its findings on the matter before it and further that the Court of Appeal’s findings were in part correct and partly erroneous, and further that we are sending the matter back to the High Court for determination on its merits, we find that there should be no order as to costs.
G. Orders
112.
The petition of appeal dated September 9, 2015 and filed on September 10, 2015 date is allowed in the following specific terms:
(i)
The judgment and order of the Court of Appeal dated July 31, 2015 be and is hereby quashed and set aside.
(ii)
The ruling and order of the High Court dated July 31, 2014 be and is hereby quashed and set aside.
(iii)
For the avoidance of doubt, the ruling of the High Court is null and void.
(iv)
The matter is remitted to the High Court for determination on its merits.
(v)
Each party is to bear its own costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/39/eng@2021-08-06 |
Petition 14 of 2017 | Kiluwa Limited & another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 6 August 2021 | 2,021 | Nairobi | Civil | Kiluwa Limited & another v Business Liaison Company Limited & 3 others | [2021] KESC 37 (KLR) | null | Brief facts
The dispute revolved around three first-row beach adjoining pieces of land (the suit properties). At the High Court, the appellants sought numerous declaratory, judicial review and injunctive orders against the respondents. It was the appellants’ claim, among others, that initially between the first-row beach plots and the Indian Ocean’s high-water mark, there was a strip of land that was reserved for public use (reserve land). The appellant further claimed that the 3rd respondent illegally demarcated from the reserve land and granted title to the 1st respondent as a first allottee for a term of 99 years. In the process of consolidating various parcels of land owned by the 2nd respondent, the boundary of the consolidated plot was extended from its original location which resulted in the encroachment of a portion of the reserve land. The appellants claimed that such actions were unlawful and a violation of their right to property and unrestricted access to the Indian Ocean sandy beach through the reserve land. By a decision delivered on October 13, 2015, the High Court allowed the petition.
Aggrieved, the 1st and 2nd respondents appealed to the Court of Appeal arguing, among others, that all the transfers affecting suit properties were commenced and concluded between 1989 – 1992 while the petition was filed over 20 years later, and the High Court erred in applying article 47(1) and (3) of the Constitution of Kenya, 2010 (the Constitution) while failing to appreciate that the same was forward-looking and not retrospective in nature. In a judgment delivered on November 11, 2016, the Court of Appeal allowed the appeal with costs and set aside the High Court’s decision and orders.
Aggrieved, the appellants lodged the instant appeal. The appellants challenged, among others, the appellate court’s finding that article 47 of the Constitution could not be applied retrospectively. They also urged that the appellate court failed to appreciate that there was sufficient evidence adduced showing that the reserve land was public land which was incapable of alienation. The respondents opposed the appeal and argued that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the Constitution and that the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution. They also submitted that the suit properties were unalienated Government land pursuant to which they were allocated and accused the appellants of unreasonable delay in bringing a claim against them. | D. Issues for Determination
36.
Having considered the respective cases by the parties and attendant submissions in support thereof, we have concluded that four issues commend themselves to our attention in order to dispose of this appeal. The four issues are:
i.
Whether this court has jurisdiction to determine the appeal herein;
ii.
Whether the 2010 Constitution (article 47) applies retrospectively to this dispute;
iii.
Whether the appellants were time-barred in lodging their claim;
iv.
Whether the portion of land which is the subject matter of the dispute was public land, and if so, whether it was available for allocation.
E. Analysis
i. On jurisdiction
37.
The respondents have tangentially challenged the jurisdiction of this court to determine the appeal. In this regard, the 1st and 2nd respondents argue that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the Constitution. On their part, the 3rd and 4th respondents submit that the Supreme Court has no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the commencement of the 2010 Constitution.
38.
We find these arguments baffling for two reasons; firstly, the jurisdiction of the High Court was never challenged at the Court of Appeal, nor was the issue raised in any manner at the two superior courts. Secondly, the basis upon which the jurisdiction of this court is being impugned is not borne out of fact, in that, the dispute before us had never been finalized by the Court of Appeal, before the commencement of the Constitution. Suffice it to say that the judgment of the Court of Appeal which gave rise to this appeal, was delivered on November 11, 2016.
39.
Without further belabouring this issue therefore, we have no hesitation in holding that this court is properly seized with jurisdiction to entertain and determine the appeal.
ii. On whether the 2010 Constitution (article 47) can retrospectively apply to this dispute
40.
The respondents have made heavy weather of the issue of the retrospectivity of the 2010 Constitution and in particular, article 47 thereof. It is their argument that the Constitution is forward looking and should never be applied retrospectively, especially, if such application can lead to the deprivation of rights legitimately acquired. In support of this position, they cite the SK Macharia case [supra]. It is their further argument that article 47 of the Constitution ought not to have been applied to the dispute because, sub-article 3 of the same, provides that:
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, an independent and impartial tribunal; and
b.
Promote efficient administration
41.
The respondents found support for their argument, in the Court of Appeal’s conclusion, that article 47 ought not to have been resorted to by the High Court, in the absence of the legislation envisaged under sub-article 3 above. Such legislation, was only enacted in 2015, long after the impugned Judgment of the High Court.
42.
In the SK Macharia case (supra) cited by the respondents in support of their submissions regarding the non-retrospectivity of the 2010 Constitution, this court rendered itself thus at paragraph 62:
“
At the onset, it is important to note that a Constitution is not necessarily subject to the same principles against retrospectivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately acquired before the commencement of the Constitution.”
43.
A clear reading of the foregoing pronouncement, leaves no doubt that this court did not out-rightly rule out the retrospective application of the 2010 Constitution. The court however cautioned that where the language of a particular provision in the Constitution does not contain even a whiff of retrospectivity, then such provision cannot apply retroactively. The court was to return to this question later in Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties), SC Petition No 37 o 2014; [2019] eKLR at paragraph 54 when citing SK Macharia with approval, it stated:
“
Even as the law as we have pronounced it, appears to be clear, it is imperative that we consider the provisions of the 2010 Constitution to determine whether any insights can be drawn therefrom for a just and fair resolution of the dispute at hand. In this regard, we derive inspiration from this court’s dictum in Samuel Kamau Macharia & 2 others v Kenya Commercial Bank & 2 others [2012] eKLR; on when a court of law may fall back to the provisions of the Constitution of 2010 in determining a dispute that may have crystallized before the promulgation of the Constitution.
when certifying this appeal as one involving a matter of general public importance, the determination of which, goes beyond the interests of the parties, we were cognizant of the fact that similar disputes were likely to occur in other parts of the country. In resolving such disputes as may occur post the 2010 Constitution, our decision in this appeal will no doubt be instructive, hence the need to consider the relevant provisions of the Constitution, to the extent that the same are backward and forward looking.”
44.
The court then went on to identify a number of provisions in the 2010 Constitution, which it considered relevant to the dispute then before it, notwithstanding the fact that the questions before it, had arisen out of a set of circumstances that had long crystallized before the promulgation of the Constitution. Such provisions were considered to be both backward and forward looking.
45.
It is in this context that we must consider the issue as to whether article 47 of the Constitution can be applied retrospectively to the dispute at hand. First and foremost, in agreement with the appellants, we note that article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-article 1 thereof provides that:
“
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”
While sub-article 2 provides that:
“
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.”
46.
These provisions set out clear and un-ambiguous entitlements within the language of the Bill of rights. They are expressed in normative terms, as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. In our view, contrary to the holding by the Court of Appeal, these are substantive entitlements whose enjoyment was not intended to be suspended by sub-article 3 thereof. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution. The Supreme law thus required that such legislation provide for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action is already provided for in sub-article 1 (expedition, efficiency, lawfulness, reasonableness and procedural fairness). The effect of sub-article 3 was therefore to perfect the enjoyment of these rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action.
47.
In this regard, the absence of legislation does not render a court helpless given the interpretative refuge afforded by article 20(3) of the Constitution. It provides that:
“
In applying a provision of the Bill of Rights, a court shall-
a.
develop the law to the extent that it does not give effect to a right or fundamental freedom; and
b.
adopt the interpretation that most favours the enforcement of a right or fundamental freedom."
48.
In view of the foregoing analysis, we must answer in the affirmative, the question as to whether article 47 of the Constitution was correctly applied by the High Court in addressing the original claim.
iii. Whether the appellants were time barred in lodging their claim
49.
The respondents submit that the appellants are guilty of inordinate delay, having waited for twenty years before filing suit at the High Court. The Court of Appeal held in favour of this argument, finding that the process of transfer, affecting both parcels of land, had been commenced in 1989 and concluded in 1992, while the petition was filed over twenty years later. On the other hand, the appellants contend that they acted promptly as soon as they became aware of the construction of the wall whose effect was to block their view of and access to the ocean. It is their case that, the offending wall was constructed in August 2011, while they filed their petition on February 17, 2012; exactly seven months after the commencement of the wall.
50.
The assertions by both parties, regarding the dates of completion of the transfer of the suit lands, and the commencement of the erection of the wall, have not been factually controverted. It is trite law that for a party to be time-barred from litigating its claim, such limitation of time must be stated in the Constitution, statute or as a principle of Common law. To be successfully raised against a litigant, a court must determine when the time started running. In other words, the question as to when the cause of action arose has to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor are they evident on the face of the appellate court’s conclusions. It is not lost to us, that the gravamen of the appellants’ grievance, was the allocation of the disputed land by the 3rd respondent to the 1st and 2nd respondents and consequent erection of the wall thereon by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. We therefore find no basis upon which the appellants can be said to have slept on their rights.
iv. Whether the disputed land was public land, and if so, whether the same was available for allocation
51.
It is the appellants’ case that the land known as MN/1/5901 was allocated to the 2nd respondent after the 3rd respondent had consolidated three plots, namely MN/1/3622/ A&B and MN/1/856. It was after consolidation that an additional portion measuring 6.0 Ha was allocated to the 2nd respondent through a Letter of Allotment dated June 2, 2011. They therefore submit that the 3rd respondent’s action of extending the boundary of MN/1/5901 to the High-Water Mark was unlawful as it violated the appellants’ right to property (Easement of view) and also breached the provisions of section 45 of the Survey of Kenya Act (cap. 299) and regulation 110 (1) of the Survey Regulations. The appellants argue that this portion of land was excised out of the “foreshore” which is land reserved for public use, including recreation, and therefore not available for allocation to private entities. In support of their position, they cite the contents of a Survey Report which had been tabled in evidence at the High Court, confirming the public status of the land.
52.
The respondents on the other hand, submit that the land in question, was un-alienated government land, within the meaning of section 3 of the Government Lands Act (repealed) pursuant to which it was allocated. The said section, submit the respondents, empowers the President to make grants or dispositions of any estate, interest, or right in or over un-alienated government land. It is their contention that the allocation having been made under this Section, conferred absolute and indefeasible title upon the 1st and 2nd respondents, which title could not be defeated, unless on grounds of fraud. It is their further argument, that absent an easement over the land, no right of access to the ocean could be claimed by the appellants. They are categorical that land parcels MN/1/5901 and MN/1/5902 had never been public land, nor had they ever been reserved for public use. As such, they conclude, these parcels do not fall under the categories of public land as defined under article 62 of the Constitution.
53.
The status of the two parcels of land, can only be determined by an examination of the relevant provisions of the Constitution and applicable statutes. Towards this end, article 62(1)(a) and (l) provides that Public Land is inter alia;
a.
land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date;
l.
all land between the high and low water marks.
54.
Pursuant to section 45 of the Survey Act, the Survey (Amendments) Regulations 1994, were enacted. Regulation 110 thereof provides as follows:
Coastal offshore reservation
“
110.(1)
Where unalienated Government land fronting on the area coast is being surveyed for alienation, a strip of land not less than 60 metres in width shall normally be reserved above the high-water mark for Government purposes:
Provided that, if the interests of development require, the Minister may direct that the width of this reservation shall be less, than 60 metres in special cases.
(2)
High-watermark in all cases in these regulations means the 'Mean High Water Mark of Spring Tides.”
Section 82 of the repealed Government Lands Act provides:
“
a conveyance, lease or license under this Act shall not, unless otherwise expressly provided therein, confer any right to the foreshore”.
55.
A number of conclusions can be derived from the foregoing provisions as quoted. Firstly, un-alienated government land is public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). This notwithstanding the fact that, the expression “Public Land” only came to the fore with the promulgation of the 2010 Constitution. What article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of “public tenure”. The retired constitution used the term “government” instead of “public” to define such lands. Therefore, it is incorrect for the respondents to assert that the lands in question were un-alienated government land but not public land. It is even more inaccurate to argue that the said parcels had never been public land. Un-alienated government land remains public until it is privatized through allocation to individuals or other private entities.
56.
Secondly, to the extent that this assertion by the appellants remains un-controverted, the additional portion of land (6.0 Ha. thereof), which land is comprised within Plots MN/1/5901 and MN/1/5902 (allocated to the 2nd and 1st respondents respectively) was hived off the coastal foreshore by the 3rd respondent. Such foreshore consists of land lying between the Low-Water Mark and the High-Water Mark plus an additional 60 metres above the High-Water Mark within the meaning of regulation 110(1) of the Survey Regulations of 1994. Such land is reserved for Government/Public use.
57.
Although article 62(1)(l) of the Constitution makes no reference to the 60 metres above the High-Water Mark (only limiting itself to the language of “the high and low water mark”) sub-article (1)(n) provides for another category of public land as being any other land declared to be public land by an Act of Parliament in force at the effective date; or enacted after the effective date; hence the relevance of regulation 110(1) which was enacted before the effective date pursuant to section 45 of the Survey Act. Furthermore, section 82 of the Government Lands Act (repealed) which predates the Survey Act, and under which the lands herein fell as un-alienated government land, out-rightly forbids the conferment of any right to the foreshore by a conveyance, lease or license.
58.
Thirdly, the right of access to the Ocean through the foreshore by members of the public or any other owner of land along the coast (ie, the appellants) whether for economic, recreational or aesthetic reasons, is a public right secured by a public easement. Such right is not acquired through a private treaty. It follows that a person or private entity who has encroached on the foreshore cannot interfere with or limit the enjoyment of a public easement through acts of commission or omission. On the other hand, the Government may interfere with or limit such easement only in promotion or protection of the Public Interest as guaranteed by the Constitution and the law.
59.
The foregoing determination of the issues, leads us to make the following declarations:
a.
The 3rd respondent herein, acted illegally by allocating land parcel No MN/1/5901 to the 2nd respondent, which land he had partly curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110(1) of the Survey Regulations of 1994.
b.
The 3rd respondent herein, acted illegally by allocating land parcel No MN/1/5902 to the 1st respondent, which land he had curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110(1) of the Survey Regulations of 1994.
c.
The actions of the 3rd respondent herein, violated the appellants’ right to fair administrative action as guaranteed by article 47 of the Constitution.
60.
As a consequence of the foregoing declarations, we make the following orders:
F. Orders
i.
The appeal is hereby allowed.
ii.
The Judgment of the Court of Appeal dated November 11, 2016 is hereby set aside.
iii.
The Judgment of the High Court dated October 13, 2015 is hereby affirmed only to the extent consistent with and limited to our declarations in (a)(b) and (c) above.
iv.
The 1st and 2nd respondents herein, shall take immediate action to remove the offending wall and any other structures that they may have caused to be erected on land parcels No. MN/1/5901 and MN/1/5902.
v.
The costs of this appeal shall be borne by the 1st and 2nd respondents.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/37/eng@2021-08-06 |
Miscellaneous Application 7 (E011) of 2021 | Mbugua alias George Boniface Nyanja v Iqbal (Personal representative of the Estate of the Late Ghulam Rasool Jammohamed) (Miscellaneous Application 7 (E011) of 2021) [2021] KESC 41 (KLR) (6 August 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, PM Mwilu, SC Wanjala, NS Ndungu, W Ouko | 6 August 2021 | 2,021 | Nairobi | Civil | Mbugua alias George Boniface Nyanja v Iqbal (Personal representative of the Estate of the Late Ghulam Rasool Jammohamed) | [2021] KESC 41 (KLR) | null | A. Background
1.
At the heart of this dispute is a parcel of land known as L.R. NO. 1/387 located along Ngong Road, Nairobi, whose ownership is claimed by the parties in this application. It is common factor that the applicant and the original owner, Ghulam Rasool, (deceased), represented in the proceedings by the respondent, entered into an arrangement in 1985 in which the applicant agreed to purchase the suit property from the deceased at a consideration of Kshs.2,000,000; it is also not in dispute that, having made the initial part payment, the applicant took possession of the property. However, the bone of contention is whether the purchase price was paid in full.
2.
While the applicant asserts that he fully paid the purchase price, the respondent denied the claim, arguing that a balance of Kshs.500,000 remained outstanding, in breach of the terms of the sale agreement. According to the respondent, failure by the applicant to complete the transaction amounted to a repudiation of the agreement.
3.
The applicant filed suit before the Environment and Land Court seeking an order of specific performance to compel the respondent to transfer to him the suit property. The respondent, for his part counter-claimed Kshs.25,020,000 being rent for the period 1986 to 2011 and Kshs.200,000 per month “till judgment is entered.” He also sought interest at court rate and costs, arguing that, apart from failing to pay the balance of the purchase price, the applicant had refused or neglected to sign the sale agreement.
4.
The single question before the Environment and Land Court and indeed before the Court of Appeal was, who, between the applicant and the respondent was in breach of the agreement. The learned trial Judge (Bor, J.) dismissed the respondent’s counter-claim and granted an order of specific performance of the sale agreement.
5.
Aggrieved by this, the Respondent moved to the Court of Appeal seeking to overturn the decision of the trial court. By its judgment of 8th November 2019, the Court of Appeal (Makhandia, Kiage & Kantai, JJA.) allowed the appeal, declaring that the applicant was indeed in breach of the agreement for failing to pay the balance on the purchase price amounting to Kshs.500,000. Relying on the evidence on record, the Evidence Act on the burden of proof and judicial authorities, the Court of Appeal faulted the casual treatment of this contentious question by the trial Judge. With great respect,” they said,
“
…we are not convinced that the learned Judge did justice to this issue. She had before her Nyanja’s claim and the appellants diametrically opposed position. She did not give any reason why she accepted one version and not the other…..As we have pointed out, the onus to prove payment of Kshs.500,000 in cash to the deceased lay on Nyanja. We are un-persuaded that he discharged it……Rather, we are persuaded from all the circumstances of the case that Nyanja never made the alleged payment of Kshs.500,000 in cash to the deceased.
Our holding on the decisive point of whether Nyanja paid the full purchase price is inevitably in the negative. The learned Judge fell into a reversible error in finding, without evidence that the contentious Kshs.500,000 was paid by Nyanja to the deceased and we are therefore entitled, indeed compelled, to set aside the same as we hereby do”.
6.
In addition the learned Judges also found that the sale agreement was not executed in contravention of the express provisions of section 3(3) of the Law of Contract Act; that time having been of essence, the trial Judge was in error for not finding that the applicant’s failure to pay the full purchase price, despite many opportunities granted to him by the respondent, disentitled him to benefit from an order of specific performance. Ultimately and for these reasons, the Court of Appeal set aside the judgment, allowed the counter-claim and remitted the case to the trial Court to assess rent, mesne profits and damages.
7.
The applicant intends to challenge that outcome before this Court and in the meantime has taken out a Notice of Motion expressed to be brought pursuant to the provisions of Articles 163(4)(a) and 159 of the Constitution, Sections 21(2) and 24(1) of the Supreme Court Act, Rules 23 and 26(1) of the Supreme Court Rules (2012) as well as Rules 31 and 32 of the Supreme Court Rules (2020), praying, in the main, that the execution of the entire judgment of 8th November 2019, be stayed “pending the hearing and determination of application dated 15th December 2020 in the Court of Appeal….and or appeal thereof”.
8.
The following three events are relevant for the determination of this application. After the Court of Appeal delivered the judgment, the applicant lodged a notice of appeal, expressing the intention to challenge the whole of that judgment. That notice of appeal was promptly withdrawn. The applicant, instead took out a motion before the Court of Appeal seeking a review of the judgment. That application was rejected in a ruling dated 4th December, 2020. The applicant then filed an application before the Court of Appeal dated 15th December 2020, for certification to appeal to this Court on the basis that the intended appeal will raise matters of general public importance, under Article 163(4) (b) of the Constitution.
Subsequent to these events and even before the last application for certification could be determined, the applicant brought the present Notice of Motion for stay of execution. On 30th April 2021, a single Judge of the Court certified the application urgent and directed that the file to be placed before the Ag. Chief Justice for further directions. | C. Analysis And Determination
13.
The invocation of the Court’s general powers under Article 159 of the Constitution, Sections 21(2) of the Supreme Court Act, and Rules 31 and 32 of the Supreme Court Rules (2020) is itself a confirmation that there are no specific express provisions in the rules of the Court for the relief of stay of execution. The Rules however provide in general terms, inter alia, that an interlocutory application can be brought by way of a Notice of Motion; and that it must be filed together with written submissions and determined likewise by written submissions. See Rule 31.
14.
The three principles that guide this Court in deciding an application for stay are now old hat, but bear repeating nonetheless. Those principles require the applicant to demonstrate, first that the appeal is arguable and not frivolous; that if the order of stay is not granted the appeal will be rendered nugatory; and finally, that it is in the public interest to grant an order of stay. See Gatirau Munya Case (supra).
15.
It must be remembered that the question whether an appeal is arguable, does not call for the interrogation of the merit of the appeal, and the Court, at this stage must not make any definitive findings of either fact or law. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully by the Court.
16.
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. See the decision of the Court of Appeal in Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others Civil Application No 31 of 2012, [2013] eKLR.
17.
On the arguability of the appeal, and strictly in accordance with the above strictures, the jurisdiction of the Court is invoked and proceedings commenced, first under Rule 36 of the Court’s Rules, by filing a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal. A notice of appeal is therefore a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave. This Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others, Application 16 of 2014, [2014] eKLR stressed that a notice of appeal is a jurisdictional pre-requisite.
18.
It has been argued, without rebuttal, that the notice of appeal lodged in respect of the judgment of 8th November 2019 was withdrawn, yet that is the very judgment the intended appeal seeks to challenge. That notice of appeal cannot possibly exist after the applicant elected the route of review of the judgment, as settled in a long line of authorities. See Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Limited & 2 Others, Civil Appeal No. 368 of 2014, [2020] eKLR. The notice of appeal on record relates to the subsequent decision of 4th December,2020, which is not the subject of the intended appeal.
19.
Secondly, once a notice of appeal has been filed, an appeal can then be instituted by lodging, among others, a petition of appeal. No interlocutory application can be brought before a petition is lodged. Rules 31(2) is categorical that;
“
31.
(2)
An interlocutory application shall not be originated before a petition of appeal or a reference is filed with the Court”.
An interlocutory application must be based on an existing petition or reference.
In the Director of Public Prosecutions V. Chrysanthus Barnabus Okemo & 4 others [2018] eKLR, this point was clarified beyond debate thus;
“
(12)
The upshot is that without a petition of appeal having been first filed in this Court, this application was predicated on nothing. It had no foundation upon which to stand and it was a nullity ab initio. The same should not have been accepted for filing…… As the application was a nullity, the proceedings therein were also a nullity and we so declare them”.
20.
Thirdly, an averment by the respondent to the effect that Civil Application No. 14 of 2020 for the very same reliefs as those sought herein is also pending before the Court of Appeal, has not been controverted.
21.
In view of all the foregoing, the application before us contests the exercise of discretion by the Appellate court when there is neither a notice of appeal nor petition of appeal pending before this Court. As a corollary and without this basis, this application cannot succeed, in addition to the fact that there is a parallel application for the very relief pending before the Court of Appeal. Any remarks by this Court would amount to premature comments on issues yet to be adjudicated by the Court of Appeal. In the circumstances, we find that this Court lacks jurisdiction to entertain this application.
D. Disposition
22.
In the end, we find no merit in the instant application and make the following orders:
a)
The Notice of Motion dated 26th April, 2021 filed on 30th April, 2021 is dismissed.
b)
Costs will abide the outcome of the appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/41/eng@2021-08-06 |
Civil Application 18 of 2020 | Waruhiu v Munene & another (Civil Application 18 of 2020) [2021] KESC 42 (KLR) (Civ) (6 August 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko | 6 August 2021 | 2,021 | Nairobi | Civil | Waruhiu v Munene & another | [2021] KESC 42 (KLR) | null | A. Introduction
1.
This an application by way of Notice of Motion dated 15th July 2020 brought under Rules 15(2), 32 and 36 of the Supreme Court Rules, 2020. The application seeks the following substantive orders:
a)
That thi s Honourable Court be pleased to extend the timefor filing a Notice of Appeal against the Judgment and orders of the Court of Appeal (Waki, Nambuye & Gatembu, JJA) delivered on 8th March 2019 in Nairobi Civil Appeal No. 168 of 2013;
b)
That in the alternative to prayer (a) above, the Applicant’s Notice of Appeal against the whole of the Judgment and Orders of the Court of Appeal (Waki, Nambuye & Gatembu, JJA) delivered on 8th March 2019 in Nairobi Civil Appeal No. 168 of 2013, filed in the Court of Appeal on 14th October, 2019 be deemed duly filed and properly on record; and
c)
That the costs of this application be provided for.
2.
The application is premised upon seven (7) grounds as well as the supporting affidavit of George Kang’ethe Waruhiu sworn on 15th July 2020.
B. Background
i. Proceedings at the High Court
3.
At the High Court, the Respondents and Samuel Njoroge Waruhiu (Samuel), now deceased, filed a plaint dated the 22nd May, 2018, against the Applicant stating inter alia, that they and the Applicant are among the children of the late Senior Chief Waruhiu, who had five (5) wives namely, Wanjiru Waruhiu, Ruguru Waruhiu (A), Waruchu Waruhiu, Mary Njeri Waruhiu and Ruguru Waruhiu (B); that the deceased died intestate leaving a vast estate, inclusive of a fifty five (55) acre farm, subdivided in the year 1959, into five (5) parcels namely, Githunguri/Giathieko/332, 333, 334, 335, and 336; that the above five subdivisions were registered in the names of the first born sons of each household as trustees for themselves and the deceased’s’ children of the respective households; that the late David Wainaina Waruhiu (hereinafter referred to as the late David) as the undoubted eldest son of the Respondents’ mother’s household was registered as a proprietor of parcel No. 336 (the suit property) as a trustee for himself and all the children of their mother’s household; that without their consent, knowledge and/or participation, the late David transferred the suit property to the Applicant on 17th October, 1980; and that it was not until the year 2005 that they discovered the fraud and illegality and that efforts to have the issue resolved amicably at family level bore no fruit.
4.
Consequently, the Respondents sought from the Court declarations that: they are beneficiaries of the suit property; that the late David ,as a trustee for himself and the Respondents, had no mandate to transfer the suit property to the Applicant without their consent and or participation; that the transfer of the suit property by the late David to the Applicant was fraudulent and therefore illegal, null and void and restraining orders against the Applicant from either selling and or transferring the suit property to any 3rd party or howsoever, receiving proceeds of such sale.
5.
On 20th April 2011, Gacheche, J (as she then was), dismissed the Respondent’s claim against the Applicant. The learned Judge found that the alleged trustee relationship between the late David and the Respondents had not been proved by credible evidence; that allegations of fraud as pleaded had not been established to the required threshold; and that the Respondents’ claim was time-barred in terms of the provisions of Section 7 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya. | D. Determination And Analysis
17.
The Application raises one issue for determination by this Court, namely, whether this Court should grant an extension of time for the Applicant to file a Notice of Appeal. If the answer is in the affirmative, should the Notice of Appeal filed on 14th October 2019 be deemed as duly filed and properly on record?
18.
The Court’s jurisdiction to extend time is provided for by Rule 15(2) of the Supreme Court Rules, 2020 which grants this Court the discretion to extend time in the following specific terms:
"The Court may extend the time limited by these Rules or by any decision of the Court”
19.
Concerning the time for filing of a Notice of Appeal, Rule 36(1) of the Supreme Court Rules, 2020 provides that the same shall be filed within fourteen days from the date of Judgment or Ruling which is the subject of appeal. Sub-rule (4) also provides that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain certification before filing the Notice of Appeal.
20.
In the present case, we note that the Judgment of the Court of Appeal was delivered on 8th March 2019. The last day for filing a Notice of Appeal was therefore 22nd March 2019. An application for extension of time before this Court was not filed until 495 days later.
21.
The guiding principles on extension of time have already been set by this Court in the Nick Salat Caseas follows:
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time”
22.
Further to the above, this Court has always emphasized the need for an Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court – See the County Executive of Kisumu case.
23.
In the present case, the Applicant has submitted that failure to file the Notice of Appeal was caused by an error on the part of his then advocates and that error should not be visited on him. As argued by the Respondents, there is nowhere in the Application where the Applicant has demonstrated any effort and/or due diligence on his part to ensure that the Notice of Appeal and or an application for extension of time was filed within time or soon after the period for filing had expired. His explanation is therefore not satisfactory.
24.
The other explanation given by the Applicant to justify the delay, was that he was ill and unable to pursue the case. We have perused annexure 5 of the Applicant’s supporting affidavit and note that his last admission in hospital was between 15th to 17th July 2019. However, there is no explanation for the period between 8th March and 14th July 2019. The Applicant has nonetheless deponed that he instructed his advocates on record on 14th October 2019 who filed a Notice of Appeal on the same day (though out of time). Although the Applicant contends, at paragraph 11 of his supporting affidavit, that his advocates attempted to file the application before this Court on the same day and were turned away at the Registry, there is no evidence to sustain those allegations. We do not, in any event, understand why an advocate or a litigant could have been turned away from a public registry and no explanation given for that action. That explanation falls flat, in our view.
25.
The Applicant’s final explanation is that the Covid-19 pandemic led to closure of Courts and his advocates’ offices. Whereas in other circumstances this explanation may attract sympathy, we take judicial notice of the fact that the Covid-19 pandemic did not at any time lead to absolute closure of Courts including this Court. Although service delivery was scaled down, services were still offered, and urgent applications prioritized. Again, we do not find this explanation sufficient to warrant extension of time and to justify the delay in filing the present application.
26.
The upshot of the above finding is that we are inclined to disallow the application for extension of time with costs to the Respondents.
E. Orders
27.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 15th July 2020 is dismissed.
ii.
The Applicant shall bear the costs of the Respondents.
28.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/42/eng@2021-08-06 |
Application 1 of 2021 | Ambala & 2 others v Ambala & another (Application 1 of 2021) [2021] KESC 45 (KLR) (Civ) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Ambala & 2 others v Ambala & another | [2021] KESC 45 (KLR) | null | A. INTRODUCTION
1.
The application before Court is dated 14th January 2021, and was lodged on 18th January 2021. It is brought pursuant to the provisions of Articles 23 (3), 25 (c), 27 (1) (2), 48, 50 (1), 159, 163 (4) (a) and 259 of the Constitution, Sections 15 (2), 21 (2) and 24(1) of the Supreme Court Act and Rules 3, 21 and 22 of the Supreme Court Rules, 2020. The applicants seek the following orders:
i.
A temporary injunction restraining the respondents or their agents from trespassing, wasting constructing alienating or otherwise interfering or dealing with Land Reference Nos. 1160/286, 287 and 288 and their respective sub-divisions and assents (the suit property) pending the hearing and determination of the application;
ii.
A temporary injunction restraining the respondents or their agents from trespassing, wasting, constructing alienating or otherwise interfering or dealing with the suit property pending the hearing and determination of the intended appeal;
iii.
Extension of time to lodge and serve an appeal and record of appeal against the Ruling and Order of the Court of Appeal (Kairu, Sichale & Murgor, JJ.A) in Civil Appeal (Application) No. 116 of 2016; and
iv.
Costs of the application.
2.
The application is grounded on the supporting affidavit sworn on 14th January 2021 by Mercy Wanjiru Mathai, Advocate. It is opposed via the respondents’ Grounds of Opposition dated 5th March 2021 and Replying Affidavit sworn by the 1st respondent on even date.
B. BACKGROUND
3.
The trial Court in a judgment delivered on 29th June 2016 in Succession Cause No.68 of 1986 revoked a consent order dated 3rd December 2004 which had distributed the assets subject of the succession cause to the beneficiaries, it cancelled and invalidated all prior transactions relating to the suit property and reverted the suit property to the estate for redistribution. In the impugned judgment, the Court of Appeal (Githinji, Okwengu & Mohammed, JJ.A) allowed the appeal before it. It set aside the High Court judgment, reinstated the consent order of 3rd December 2004, revoked the cancellation of transfers of the part of suit property and revoked all transaction entries relating to the suit property made after the date of the High Court judgment. Aggrieved, the applicants filed a review application against the entire judgment and orders and the appellate court (Kairu, Sichale & Murgor, JJ.A) dismissed the application for lack of merit vide its ruling delivered on 9th October 2020.
| D. ANALYSIS
10.
It is the applicants’ submission that they have satisfied the principles for extension of time settled in the Nicholas Salat Case. They urge that the delay in filing the appeal and record of appeal was partly occasioned by the Appellate Court’s failure to furnish them with typed proceedings in time. They assert that they filed the Notice of Appeal within time, timeously applied for the typed proceedings and exercised due diligence in following up on the same. They add that the delay in filing the instant application after the typed proceedings had been availed was occasioned by their inability to raise legal fees, due to economic hardship occasioned by the Covid-19 pandemic.
11.
The respondents strongly oppose this assertion. On the contrary, they submit that the applicants have been dishonest and are guilty of misrepresentation. While attaching documentary evidence, they submit that the applicants are engaged in gainful employment and have inherited a vast estate from their father hence were able to raise legal fees specially to file an application for extension of time. This has not been rebutted by the applicants.
12.
We settled the principles that are to guide us in the exercise of our discretion to extend time in the Nicholas Salat Case. The applicants urge that the delay in filing the appeal was partly occasioned by the Appellate Court’s failure to issue typed proceedings within time. On the issue of delay of typed proceedings, this Court has previously extended time and held that such a delay is not on the part of the party but the court and that this issue consists of facts beyond a party’s reach.
13.
In the Hassan Nyanje Charo Case, we stated:
“
(27)
Counsel for the applicant has stated that he has exercised all due diligence to get the proceedings from the Court of Appeal, but to no avail...
(28)
Would it be in the interests of justice then to turn away an applicant who has, prima facie, exercised all due diligence in pursuit of his cause, but is impeded by the slow-turning wheels of the Court’s administrative machinery? We think not.”
14.
However, this reason is only sufficient to explain the delay from the date of applying for the typed proceeding to 20th December, 2020 when the same were availed. It is trite law that, in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. This was our finding in the case of County Executive of Kisumu v County Government of Kisumu & 8 others; SC Application No 3 of 2016, [2017] eKLR.
15.
The applicants filed the instant application on 18th January 2021, 29 days after the proceedings had been availed. They explain that this additional delay was occasioned by lack of legal fees to instruct an advocate and the time taken by the advocates to draft the instant application. This reason fails to persuade the Court to exercise its discretion to extend time, especially in light of the uncontroverted evidence adduced by the respondents to support the assertion that the applicants are gainfully employed and/or have inherited a vast estate hence could afford legal fees.
16.
Rule 40 of our Rules allow the filing of requisite documents late, but with leave of court. Having filed a Notice of Appeal on 21st October 2020, nothing prevented them from filing the appeal with the available documents within the 30 days. Typed proceedings are in any event not among the mandatory documents that must accompany a petition of appeal in the first instance. In Mombasa County Government v Kenya Ferry Services & another SC Application No.29 of 2018[2019]eKLR, we held that the applicant ought to have filed the appeal and the record with the documents that were available to demonstrate some diligence, then later seek leave of this Court to file the Supplementary Record out of time.
17.
Having so considered, we find that on the basis of the principles set out by this Court for extension of time, the applicants have not satisfactorily explained a basis for this Court to exercise its discretion in their favour.
18.
In the absence of the intended appeal to be filed, the issue of temporary injunction as sought does not arise. Consequently, the application before us is one for dismissal.
E. ORDERS
19.
In the event, we hereby exercise our discretion and order as follows;
i.
The Notice of Motion dated 14th January 2021, and lodged on 18th January 2021, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicants.
It is accordingly ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/45/eng@2021-07-16 |
Petition 22 of 2018 | Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Base Titanium Limited v County Government of Mombasa & another | [2021] KESC 33 (KLR) | null | Brief facts
The appeal concerned a cess of Kshs 3000 imposed upon each of the appellant’s trucks from June 17, 2014, whenever transporting its minerals from Kwale County to Mombasa Port (the port) which was within the 1st respondent’s jurisdiction. That cess was levied under item 90 of the Schedule to the Mombasa County Finance Act, 2014. The 1st respondent continued to impose the cess despite a protest from the appellant that the same contravened the Constitution of Kenya, 2010, (the Constitution) and further confirmation from the Attorney General that the cess imposed was unconstitutional.
Aggrieved by the 1st respondent’s action, the appellant filed a suit at the High Court and sought among other orders; a declaration that the actions of the 1st respondent to charge the cess was unconstitutional; and a declaration that the 1st respondent had no mandate under the Constitution to pass any legislation that restricted the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries.
The High Court dismissed the appellant’s petition with costs and stated that county governments had, under article 209(3) and (4) of the Constitution, the power to levy taxes and charges for services that they provided including road transport services. Dissatisfied by the High Court’s finding, the appellant lodged an appeal at the Court of Appeal. The Court of Appeal dismissed the appeal with costs hence the appellant filed the instant petition of appeal at the Supreme Court. | C. Issues for Determination
21.
Having carefully considered the grounds of appeal, the submissions of the parties, the authorities cited in support thereof, it is clear to us that there are two issues falling for determination, that is:
i.
Whether the cess charge imposed by the Mombasa County Government upon each of the appellant’s truck was a charge on services as contemplated under article 209(4) & (5) of the Constitution of Kenya , and if so
ii.
What remedies should the court offer?
D. Analysis
i. Whether the cess charge imposed by the Mombasa County Government upon each of the appellant’s truck was a charge on services as contemplated under article 209(4) & (5) of the Constitution of Kenya?
22.
The bone of contention in this appeal is whether the cess charge imposed by the 1st respondent upon each of the appellant’s truck is a charge on a service as contemplated under article 209(4) and (5) of the Constitution. It is the appellant’s case that the 1st respondent’s levy of KES. 3000 against each of its truck contravenes article 209(4) and (5) of the Constitution as they do not provide any services to them to justify the charge. Furthermore, that under article 209(5) of the Constitution, such charges prejudice national economic policies and economic activities across county boundaries. Conversely, the 1st Respondent is adamant that the said article bestows on them the power to impose any such charges for the services they provide and have not acted in excess of the powers stipulated in the said provisions. It is also the 1st respondent’s case that the constitutionality of Item 90 of the Mombasa County Finance Act, 2014 was never raised at the trial court and that the appellant is barred from raising the same in this Court.
23.
Article 185(2) of the Constitution of Kenya confers a County Government with the Legislative Authority to make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the County government under the Fourth Schedule.
24.
Further, article 186(1) states that the powers and functions of the National government and the County governments, respectively, are as set out in the Fourth Schedule, and finally, under article 187 (2)(b) of the Constitution, the constitutional responsibility for the performance of the functions or exercise of the power remain with the government to which it is assigned by the Fourth Schedule.
25.
Under the provisions of article 209, a county is empowered to raise revenue and levy taxes, rates, or other charges. Additionally, under sub article (4), the 1st respondent is authorized to impose charges for services provided. So then, what is the meaning of the word ‘services’ for purposes of application within the meaning of article 209(4) of the Constitution? The word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 is “a system that provides something that the public needs, organized by the government or a private company”. This may include for County transport which entails County roads; street lighting; traffic and parking; public rods transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprise some of the functions and powers of County Governments under Schedule four part 2, section 5.
26.
Taking that definition into account, a plain reading of that article reveals that the intention of article 209(4) of the Constitution, is to confer County Governments the discretionary powers to impose charges for services, more specifically, that they can charge or impose a payment in exchange of a public need or amenity.
27.
To our minds, the insertion of the words ‘for services’ in article 209(4), are a qualification to the charge of the services. Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.
28.
Undoubtedly, Constitution permits County Governments to impose charges for the realization of its powers under the Fourth schedule. But that power does not go unchecked, in the spirit of harmonious interpretation of the Constitution, in enacting the law, County Governments must heed the provisions of article 209 (5) and ensure that the charges invoked will not be detrimental to national economic policies, economic activities across boundaries or the national mobility of goods, services, capital or labor.
29.
Consequently, we agree with the High Court and the Court of Appeal, only to the extent that County Governments have the mandate to charge levies for services rendered.
30.
Having found that Counties can charge for services, it then falls to us to determine if the roads accessed by the Petitioners are those within the purview of the Counties. Mobility of goods in Kenya is governed by the Kenya Roads Act.
Under that Act, the Kenya National Highways Authority (KeNHA), the Kenya Urban Roads Authority (KURA) and the Kenya Rural Roads Authority (KERRA), are established for among others “constructing, upgrading, rehabilitating and maintaining roads, controlling and implementing policies relating to national roads, rural roads and urban roads.”
31.
More specifically, section 22 of that Acts vests in these authorities’ power to: maintain, operate, improve and manage the roads under its jurisdiction; construct new roads; measure and assess the weights, dimensions and capacities of vehicles using any road and provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act (cap. 403) and any regulations under this Act; and provide such amenities or facilities for persons making use of the services or facilities provided by the Authority as may appear to the Authority necessary or desirable.
32.
There is also established a Kenya Roads Board whose mandate under the Kenya Roads Board Act, is to oversee the road network in Kenya and coordinate maintenance, rehabilitation, and development, all funded by the Kenya Road Board Fund established under section 31 of the Kenya Roads Board Act.
33.
In High Court in Petition no 472 of 2014, Council of County Governors v Attorney General & 4 others [2015] eKLR the court clarified that the County governments will be in charge of Class D, E, F and G (County Roads), whilst the National government is in charge of Class A, B and C (National Trunk Roads). That court decision resulted in a subsequent Legal Notice No 2 of 2016, which clearly elucidated the road network management system in the Country. Following that notice, the Kenya Roads Board, further categorized the roads network into various classes.
34.
KeNHA is responsible for the development, rehabilitation, management, and maintenance of all National Trunk Roads comprising Classes S, A, and B roads. Class-S Road is defined as a highway that connects two or more cities and carries safely a large volume of traffic at the highest speed of operation; Class-A Road is defined as a highway that forms a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports; and finally a Class-B Road, which is a highway that forms an important national route linking national trading or economic hubs, County Headquarters and other nationally important centres to each other and to the National Capital or to Class A roads.
35.
KURA is responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads are categorized as national roads. After the January 2016 gazettement, KURA’s mandate was expanded to all counties in line with article 6(3) of the Constitution.
36.
On their part, KERRA is in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA is in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.
37.
It is therefore clear to us that there is a distinction between national roads and county roads. National roads are maintained solely by the national government through KeNHA while Counties, maintain their roads in collaboration with the other authorities.
38.
So, what is the classification of the road used by the trucks transporting the appellants goods? In other words, does the 1st respondent operate, or maintain the road used by the appellant in accessing the Port? What service does the 1st respondentoffer in regard to this particular road to entitle it to levy a sum of Kes 3000 on each of the appellant’s trucks? Does entry into the 1st respondent’s jurisdiction via such road justify the levy of the charge which would then be for entry? Is that a service and are they entitled to that fee?
39.
It is not in dispute that to access the Port, the appellant must use the Likoni-Ukunda Road which the Kenyan road system identifies as an A14 road. Going by the background and network system explained in detail above, that road, A14 falls directly into the category of a national road. That category falls directly under the mandate of KeNHA and the National government which is in charge of its development, rehabilitation, management and maintenance. In this matter, we note that the County Government has not clarified how the charge meets the categories it sets out in Item 90 of the Mombasa County Finance, 2014. They have not stated if they provide street lighting, parking or maintenance of the road accessed by the petitioners. While the superior courts were in agreement with them that the charge was a ‘road service’ charge, we are of a contrary opinion, as the 1st respondent did not illustrate how such road services are provided.
40.
Further, having established that it is not a county road, it is then improper for County Government of Mombasa to levy a charge for road service for the same road that vests in the National Government.
41.
We also note that it is the appellant’s further case that the 1st respondent in issuing receipts marked ‘miscellaneous income’ or ‘Likoni Revenue Barrier’, did not disclose the nature nor details of the payment.
42.
In plain language, article 201 (a) of the Constitution of Kenya calls for openness and accountability including public participation in financial matters. It is not lost to us the intention of this provision is to ensure efficiency within the public financial management sector which has faced tremendous challenges occasioned by gaps that has resulted in the past embezzlement of public funds. This article seeks to curb the problem of abuse of public resources and corruption, by calling for transparency in the handling of these resources. We emphasize that public finances should be managed efficiently with firm checks and balances.
43.
It is clear to us that in issuing receipts marked ‘miscellaneous income’ the County government of Mombasa has created avenues for possible abuse. The Oxford Dictionary of English 3rd Edition 2015 defines miscellaneous as a word “consisting of many different kinds of things that are not connected and do not easily form a group”. By that very definition, the word ‘miscellaneous’ is vague, and it is not easily discernable what the payments are directed at. Using the term “miscellaneous” to account for payment leads to ambiguity which goes against the spirit of article 201 of the Constitution. That word could refer to any number of things and it is essential that this form of opaqueness in accountability be discouraged. It is imperative that any payments to Counties must clearly state in precise, unambiguous words what the payments are for.
44.
Flowing from the above, we underline that it is the National government that is the provider of the road service in this instance. It is clear therefore that should an access fee be owing, then the proper entity to which that amount is owed should be the National government not the County government. In that regard, we find that the cess imposed by the County Government of Mombasa under Item 90 of the schedule to the Mombasa County Act 2014 was improperly imposed as a charge for services rendered for services provided by the County Government and is not a charge for service as contemplated by article 209 (4) of the Constitution of Kenya.
45.
We, therefore, fault the superior courts’ interpretation and application of article 209(4) of the Constitution in their finding that the cess levied by the 1st respondent was in line Constitution.
ii. What reliefs should the Court offer?
46.
In the petition before us, the appellant in summary seeks the following orders: the appeal be allowed; a declaration that the Court of Appeal in its decision, made on July 5, 2017, erred in its interpretation and application of article 209(4) of the Constitution; a reversal of the Court Appeal’s decision of 5th July 2017; and costs of this appeal, as well as those incurred before the Court of Appeal.
47.
Having faulted the superior court’s interpretation and application of article 209(4) of the Constitution regarding the constitutionality of the cess KES 3000/-imposed on each of the Appellant’s truck upon entering the 1st Respondent’s jurisdiction, we hereby declare the superior courts’ interpretation of article 209(4) of the Constitution unconstitutional and therefore, null and void. Consequently, we set aside the Judgements of the High Court and of the Court of Appeal.
48.
We note that the appellant sought us to grant the reliefs sought in Civil Appeal No 69 of 2017. We have noted that from page 4 of the record of appeal, the appellant sought the Court of Appeal to grant the prayers sought in the petition of appeal dated February 20, 2015. In that petition, the prayers sought were as follows: (a) a declaration that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s county is unconstitutional, null and void; b) a declaration that the 1st respondent has no mandate under the Constitution to pass any legislation that restricts the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries; and (c) a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1st respondent under duress as at December 31, 2014, and/or any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction.
49.
Since we have already addressed the first two prayers, we now turn to the third prayer in that petition where the appellant sought: a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1st respondent under duress as at December 31, 2014 and/or any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction. We note with concern that neither the High Court nor the Court of Appeal considered the appellant’s claim for a refund of the sum of KES 1, 542,000/- that had been remitted as of December 31, 2014 and any other payments remitted afterwards. Having confirmed from the record that the said amount was pleaded and proven and having nullified the 1st respondent’s action to collect the same amount, if is our finding that the appellant is entitled to a refund of the sum of KES 1, 542,000/ being the amount remitted as of December 31, 2014. As for any other additional sums paid by the appellant from January 1, 2015 onwards, the same may be pursued at the High Court.
50.
Concerning costs, this court has previously settled the law on award of costs: that costs follow the event, and that a Judge has the discretion in awarding costs in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC. Petition No 4 of 2012: [2014] eKLR. The appellant sought for costs at the appellate court and before this court. We note that the learned Judges of appeal made no orders as to costs on the ground that this was a public interest matter. Since this was a pure exercise of discretion which discretion has not been challenged by the Appellant, we shall not interfere with the same. As for the costs before this court, it is our finding that the 1st respondent shall bear the same.
E. Orders
51.
Consequent upon our findings above, the final orders are that:
1.
The Petition of Appeal dated August 14, 2018 and filed on August 15, 2018 is hereby allowed.
2.
The Judgment of the Court of Appeal dated July 5, 2018 is hereby set aside.
3.
The Judgment of the High Court dated February 21, 2018 be and is hereby set aside.
4.
For the avoidance of doubt:
a.
a declaration is hereby issued declaring that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs 3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s County is unconstitutional, null and void.
b.
The 1st respondent is hereby directed to refund to the appellant the sum of Kshs 1,542,000 paid by the appellant to the 1st respondent as of December 31, 2014.
c.
Any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 to the date of this judgment as cess on trucks transporting goods across the 1st respondent’s boundaries shall be pursued at the High Court.
d.
The 1st respondent shall bear the costs of the appeal.
52.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/33/eng@2021-07-16 |
Application 4 (E006) of 2021 | Bookpoint Limited v Guardian Bank Limited & Guilders International Bank Limited (Application 4 (E006) of 2021) [2021] KESC 73 (KLR) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, N Ndungu | 16 July 2021 | 2,021 | Nairobi | Civil | Bookpoint Limited v Guardian Bank Limited & Guilders International Bank Limited | [2021] KESC 73 (KLR) | null | A. Introduction
1.
By way of a Notice of Motion dated and filed on 25th February 2021, the applicant sought an order of extension of time to file a Petition and Record of Appeal. Notably, there is no indication under which provision of the law the application is made.
2.
The application is anchored on the grounds that: the Judges of Appeal notes were not obtained in good time, and that there was a misunderstanding regarding timelines, the petition having been lodged on the 24th of day of February 2021 when it ought to have been lodged on or about the 19th of February 2021.
B. Applicant’s Case
3.
The application is supported by the affidavit and a supplementary affidavit sworn and filed on 25th February 2021 and 5th March 2021, respectively by Virinder Goswami, counsel for the applicant,
4.
It is deposed that the delay in filing the petition and record of appeal was occasioned by failure to obtain the Judges of Appeal notes in good time. That they wrote to the Registrar of the Court of Appeal on 11th January 2021 requesting for the Judges’ notes. A Notice of Appeal was filed on 19th January 2021. With no response forthcoming from the Registrar, they made several visits to the registry and wrote a reminder on the 29th of January 2021.
5.
That it was not until the 16th of February 2021 that they were informed that the notes were ready, but as the Record ought to have been filed by the 19th of February 2021, they only had two days to prepare and bind over 4 volumes amounting to 44 books which despite their best efforts they were unable to do.
6.
In its submissions dated and filed on the 25th of February 2021, it is submitted that there was only a two-day delay in the filing of the Record, and that the delay is not detrimental to the respondents as their advocates were served with the Notice of Appeal by the 26th January, 2021. Further, that the appeal raises important constitutional issues and other weighty issues which need the input of the apex Court.
C. 1st Respondent’s Case
7.
In response to the application, the 1st respondent filed grounds of opposition and written submission on 22nd March 2021. It urges that the purported appeal has been filed irregularly and is predicated on a Notice of Appeal that was filed 15 days out of time. That the applicant filed its Notice of Appeal on the 19th January 2021 yet the decision being challenged was delivered on the 18th of December 2020. That under Rule 36(1) of the Supreme Court Rules, 2020 and Section 57 of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya, the applicant ought to have filed its Notice of Appeal within 14 days from 18th December 2020, the last day being 4th January 2021.
9.
The 1st respondent submits that a Notice of Appeal is a jurisdictional prerequisite signifying the intention to appeal, and purported late filing without leave cannot be sanctified by this Honourable Court. In support thereof, they cite the following decisions of this Court: University of Eldoret & another v Hosea Sitienei & 3 Others [2020] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No 16 of 2014; [2014] eKLR (Nicholas Salat Case).
90.
It is further urged that extension of time is not a right of a party, but an equitable remedy only available to a deserving party at the discretion of the Court, and that the applicant bears the burden of demonstrating to the satisfaction of the Court the cause of the delay, which, it is argued, the applicant herein has failed to do. On this submission, they rely on the case of County Executive of Kisumu vs County Government of Kisumu & 8 others, SC Civil Appl. No 3 of 2016; [2017] eKLR. (The County Executive of Kisumu Case)
11.
It is further submitted that Rule 40 (1) of the Supreme Court Rules, 2020, provides a complete and exhaustive list of documents that need to be contained in the Record of Appeal and judges’ notes are not included. Further, that Sub-Rule (4) provides for introduction of such notes by way of a supplementary record of appeal without the need for leave of Court, within fifteen days.
12.
Lastly, it is submitted that the applicant failed to annex a draft intended petition to either of its affidavits, instead, filing a Petition of Appeal, which it deems presumptuous, as filing of a Petition before this Court, out of time, without leave is inappropriate and renders such a Petition a nullity. They cite the case of Nicholas Salat Case in support thereof and urge that the Court rejects the application in its entirety with costs.
D. 2nd Respondent’s Case
13.
The 2nd Respondent filed Grounds of Opposition and written submissions dated 8th March 2021. It submits that the applicant has failed to lay any satisfactory basis upon which the Court should exercise its discretion in its favour. That the law does not require or contemplate that the record of appeal to be filed should contain the judges’ notes thus their unavailability is not reasonable cause for failure to file a Petition of Appeal in time.
14.
The 2nd Respondent also submits that the applicants Notice of Appeal was also filed out of time. That the last day for the filing of the Notice of Appeal, the judgment having been delivered on 18th December 2020, would have been 4th January 2021. Therefore, a Notice of Appeal filed on 19th January 2021 was out of time, yet even in this application, no request has been made to regularize this by way of extension of time for filing a proper Notice of Appeal.
15.
Ultimately, it is submitted that the Court lacks jurisdiction in this matter, since as can be gleaned from the judgment of the Court of Appeal, the issues before the superior courts did not involve the interpretation and application of the Constitution; and neither has the applicant sought leave to bring its appeal under Article 163(4) (b) of the Constitution.
E. Applicant’s Response to the 1st Respondent
16.
In response to the 1st respondent’s assertions, the applicant argues that under Rule 3 (e) of the Court of Appeal Rules, time for filing a Notice of Appeal in the Court of Appeal is excluded by the Christmas vacation, that is, from 21st December to 13th January. Further, that while the Judges’ notes can be filed at a later stage, there is nothing stopping the applicant from filing the same along with the Record. And that the Supreme Court Registry directed that leave to file the petition be first obtained. The applicant is adamant that having filed and served the record and the Petition in time, it is simply seeking a 2 days’ extension to regularize the filing and such procedure is not in any way prejudicial to the respondent. | F. Analysis
17.
The applicant only seeks one prayer from the Court: that it extends time for it to lodge the Petition of Appeal out of time. Indeed, by dint of Rule 15 (2) of the Supreme Court Rules, 2020, this Court is clothed with the power to extend time provided therein.
18.
Upon consideration of the parties’ submissions and evaluation of the record before us, we note that the 1st respondent raised a pertinent issue which this Court cannot ignore. It contended that even the Notice of Appeal on which the applicant wants to anchor its appeal was not lodged in good time. It is common ground that the judgment of the Court of Appeal was delivered on 18th December 2020. Under Rule 36 (1) of the Supreme Court Rules, 2020, a person intending to appeal to the Court ought to file a Notice of Appeal within fourteen days from the date of judgment or ruling which is subject of the appeal. Consequently, in this matter, the Notice of Appeal ought to have been filed on the 14th day, which was 1st January 2021. However, since that date is a public holiday and was a Friday, the immediate next working day is 4th of January 2021. This is the day the Notice of Appeal ought to have been filed. Was this done?
19.
The applicant filed its Notice of Appeal on 19th January 2021. These were 15 days out of time. Did it get leave or was it justified? In a bid to explain the delay, the applicant sought to rely on Rule 3(e) of the Court of Appeal Rules that excludes time for filing of a Notice of Appeal during the Christmas vacation. On this assertion, the applicant is misguided.
20.
This Court has settled that the only regime of law that govern proceedings before it is, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the Court or the Chief Justice. In Daniel Kimani Njihia v Francis Mwangi Kimani & Another, Civil Appl No. 3 of 2014; [2015] eKLR, (the Daniel Kimani Njihia Case) it was stated:
“
(14)
This Court’s jurisdiction is exercisable only on the basis of express provisions of the Constitution and the law. The operational rules for this Court (Supreme Court Rules, 2012) are made pursuant to the Constitution, Article 163(8) of which provides:
“The Supreme Court shall make rules for the exercise of its jurisdiction”.
(15)
Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code. In the Hermanus case, this Court had indicated how it should be moved, thus [paragraph 23]:
“… It is trite law that a Court of law has to be moved under the correct provisions of the law.”
Hence, without thus identifying the proper legal framework for the motion, an application is liable to be struck out.”
21.
Further, in the County Executive of Kisumu, it was held that an applicant seeking extension of time, cannot rely on the provisions of the Civil Procedure Code to submit that time does not run between 19th December to 21st January. The Court of Appeal Rule cannot also be imported for matters before the Supreme Court. Reference has to be made to the Supreme Court Rules, 2020 and not any other rules of procedure.
22.
Under the Supreme Court Rules, 2020, the computation of time for any action is provided as:
15. (1)
The computation of time for any action under these Rules shall be in accordance with—
(a)
any timeline provided for under the Constitution;
(b)
section 57 of the Interpretations and General Provisions Act;
(c)
any directions of the Court.
23.
It therefore follows that the applicant ought to have lodged its Notice of Appeal on or before the 4th of January 2021. It did not, and neither has it sought extension of time to file its Notice of Appeal out of time. Consequently, there is no valid Notice of Appeal on record and given the jurisdictional importance of a Notice of Appeal as stated in the Nicholas Salat case, this motion for extension to file an appeal out of time is an act in futility. For even if the Court were to be persuaded, upon consideration of the motion on its merit, and be inclined to extend time for filing of the appeal, there is no foundation (Notice of Appeal) upon which such an appeal would be premised.
G. Orders
24.
Consequently, we make the following Orders:
(i)
The Notice of Motion dated 25th February 2021 is dismissed.
(ii)
The applicant shall bear the costs of this application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/73/eng@2021-07-16 |
Petition 5 of 2020 | Executive Committee, Kisii County & 2 others v Masosa Construction Limited & another (Petition 5 of 2020) [2021] KESC 47 (KLR) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Executive Committee, Kisii County & 2 others v Masosa Construction Limited & another | [2021] KESC 47 (KLR) | null | A. Introduction
1.
The Petition of Appeal dated 28th April 2020 and filed on 30th April 2020 arises from a Judgment of the Court of Appeal at Kisumu (Makhandia, Kiage & Otieno-Odek, JJA) which upheld the decision of the High Court at Kisii (Karanja J.) delivered on 5th April 2016 in Misc. Application No. 72 of 2015(JR). The High Court had cited the Appellants herein for contempt of Court for failure to comply with an order of mandamus issued by the Court on 10th December 2014 in Misc. Application No. 14 of 2013(JR).
B. Background
2.
On 8th August 2000, the Municipal Council of Kisii (now defunct) and the 1st Respondent herein (Masosa Construction Limited) entered into a contractual works agreement, the terms of which the 1st Respondent was contracted to widen and gravel specific roads within Kisii Municipality. Upon execution of the contract, the 1st Respondent commenced the contractual works and performed its obligations until completion. Subsequently, the Municipal Council of Kisii prepared and issued a final certificate, denoting the total sums payable to the 1st Respondent. A dispute thereafter arose when the Municipal Council of Kisii blatantly failed and/or neglected to pay the amount owing to the 1st Respondent.
3.
In pursuit of its monies, the 1st Respondent decided to file a civil suit — Kisii HCC No. 67 of 2007 — for recovery of the payment for the works done. On 23rd March 2010, Judgment was entered in favour of the 1st Respondent and the High Court (Muchelule J.) ordered the Municipal Council of Kisii to pay a decretal sum of Kshs 15, 556, 986.70. That Judgment notwithstanding, the Municipal Council of Kisii still failed and/or refused to pay the decretal sum.
4.
As a result, the 1st Respondent was constrained to file Miscellaneous Application No. 10 of 2011, to compel the Municipal Council of Kisii to settle the debt. On 12th September 2012, the High Court (Sitati J.) ruled in favour of the 1st Respondent. Pursuant to that Judgment, the Municipal Council of Kisii paid part of the decretal sum leaving an outstanding balance of Kshs 8,464,699.05. Following the promulgation of the Constitution of Kenya in 2010, the Municipal Council of Kisii and all other local authorities were rendered defunct.
5.
In the interim, Kisii County Government, aggrieved by Muchelule J.’s decision, instituted an appeal – Civil Appeal No. 283 of 2011 – which was dismissed on 25th November 2015. The 1st Respondent had also moved the Court vide Miscellaneous Application No. 14 of 2013 (JR) seeking orders for mandamus to compel the Appellants to settle the outstanding amount of Kshs 8,464,699.05. On 10th December 2014, the High Court (Wakiaga J.) issued an order of mandamus against the Appellants compelling them to pay to the 1st Respondent the amount claimed. As a result of the Appellants’ failure to comply with the said orders, the 1st Respondent obtained leave of the High Court at Kisii to institute Miscellaneous Application No. 72 of 2015 (JR) seeking an order that the Appellants herein be cited and punished for contempt of Court for breaching, disregarding and/or ignoring the terms of the court order issued on 10th December 2014.
6.
In the contempt proceedings, the learned Judge (Karanja J.) outlined two issues for determination; first, whether the Appellants were aware of the material order from the time of its issue on 10th December 2014; and secondly, whether they acted in disobedience of the order without justifiable cause. Upon analysis of the evidence, the learned Judge found that the Appellants “were duly served with the necessary order, which was a command they were expected to heed in promoting constitutional values and principles of governance such as rule of law beside upholding the dignity and authority of the Court.” The Court also observed that the Appellants’ inaction, lethargy and neglect in that regard was a deliberate disregard of a valid court order which grossly undermined the dignity of the Court.
7.
In a Ruling delivered on 5th April 2016, the High Court then proceeded to cite the Appellants for contempt and further issued a seven-day period to allow the Appellants time to expunge the contempt, in default thereof a warrant of arrest of the 2nd Appellant was to be issued. It is this order that forms the basis of the subsequent appeals.
8.
Dissatisfied by the Ruling of the High Court, the Appellants thereafter filed Civil Appeal No. 39 of 2016 on 26th May 2016 to the Court of Appeal raising several grounds which the learned Judges of Appeal crystallized into two as follows; whether the learned Judge erred in citing the Appellants for contempt and whether the learned Judge erred in finding that the Appellants were liable to pay the outstanding decretal sum. In a Judgment delivered on 3rd April 2020, the learned Judges of Appeal unanimously found that the Appellants had been in contempt of Court and dismissed the appeal in its entirety.
9.
The Appellate Court, on the issue of contempt, expressed the view that the Appellants, having conceded that they were duly served with the court order, then the issue of personal service could not suffice as a ground of appeal. It was also the learned Judges’ considered view that knowledge of the Judgment or order by a contemnor suffices for contempt proceedings. On the issue of liability, the learned Judges of Appeal held that the obligation of the Appellants to satisfy the decretal sum had already been determined in the previous suits; that is, HCCC. No. 67 of 2007, Misc. Application No. 14 of 2013(JR) as well as Civil Appeal No. 283 of 2011 and as such the issue of liability was not a matter that was relevant in the contempt proceedings.
10.
Aggrieved by the findings of the Court of Appeal, the Appellants filed the instant appeal pursuant to Rules 9 and 33(1)(a) and 2 of the Supreme Court Rules, 2012 (repealed). The Appellants in that regard seek the following reliefs from this Court:
(a)
The Petition of Appeal herein be allowed.
(b)
The Judgment of the Court of Appeal delivered on 3rd April 2020 be set aside and substituted with an Order allowing this Petition of Appeal.
(c)
Costs of this Appeal be granted to the Petitioners and be borne by the Respondent.
11.
In advancing their claim, the Appellants have raised 18 grounds of appeal which can be summarised as follows;
(a)
That the Appellate Court failed to consider that no evidence was adduced to prove that the Appellants willingly, negligently or deliberately refused to comply with a court order;
(b)
That the learned Judges of Appeal failed to appreciate that under Section 6 of the Sixth Schedule of the Constitution, the debt in issue was to be settled by the National Government and not the County Government;
(c)
That the learned Judges erred in confining themselves to only adjudication of whether the court orders were obeyed or not, while failing to consider the compelling circumstances surrounding the case, touching on inability and illegality;
(d)
That the learned Judges erred by failing to grant the Appellants a fair hearing;
(e)
That the learned Judges erred in adopting a constitutional interpretation that occasioned absurdity to constitutional interpretation, enforcement of court orders and functions mandated on the two levels of Government.
12.
The 1st Respondent lodged its Grounds of Objection and a Replying Affidavit to the appeal, both dated 23rd July 2020, on 3rd August 2020 pursuant to Rule 42 of the Supreme Court Rules, 2020. In the aforementioned pleadings, the 1st Respondent is challenging this Court’s jurisdiction to adjudicate upon the instant appeal. The 1st Respondent is also of the view in that regard, that an appeal to this Court in the present circumstances could only lie pursuant to Certification under Article 163(4)(b) as opposed to an appeal as of right under Article 163(4)(a) of the Constitution.
13.
Accordingly, it is the 1st Respondent’s argument that the issues of the constitutional obstacles being alluded to by the Appellants, including the import of Section 6 of the Sixth Schedule of the Constitution, ought to have been ventilated before the Superior Court which dealt with the order of mandamus; thus, it was not the prerogative of the High Court dealing with contempt proceedings to re-visit the legality, propriety and/or validity of the order of mandamus.
14.
The 1st Respondent adds that if the Appellants were keen on lodging an appeal in this Court to interrogate the import of Section 6 of the Sixth Schedule, then certification ought to have been sought from the Court of Appeal. It is also their view that, since no certification was sought or obtained, then the appeal herein is premature, misconceived and as such is devoid of merit. It is therefore urged that the same be struck out or otherwise dismissed. | E. Analysis And Determination
34.
This Court, has in many instances addressed the question of whether this Court’s jurisdiction has been properly invoked under Article 163(4)(a) of the Constitution. And as was rightly pointed on by the 1st Respondent, in the cases of Peter Oduor Ngonge (Supra), Hassan Ali Joho (Supra) and also in the cases of Gatirau Peter Munya v Dickson Mwenda & 2 Others SC Application No. 5 of 2014 [2014] eKLR and Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another SC Petition No. 3 of 2012; [2012], eKLR, this Court has settled that question.
35.
In Lawrence Nduttu (Supra) we were thus categorical that for us to be seized of jurisdiction under that Article;
“
… 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 of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a)” [Emphasis supplied].
36.
Also, in Hassan Ali Joho (supra) and Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No.5 of 2012; [2012] eKLR, this Court stated 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. This was also the position of the Court in the cases of Gatirau Peter Munya (supra) and Hassan Ali Joho (supra) where it was stated that the lower Court’s determination of an issue appealed must have taken a trajectory of constitutional application or interpretation and an appeal within the ambit of Article 163(4)(a) is one founded on cogent issues of constitutional controversy.
37.
Furthermore, this Court, in the case of Rutongot Farm Ltd v Kenya Forest Service & 3 Others SC Petition No. 2 of 2016 [2018] eKLR deduced the questions the Court needs to ask itself in ascertaining whether an appeal raises a question of constitutional interpretation or application and whether the constitutional issue arising has been considered by the Superior Courts resulting in the filing of an appeal before the Supreme Court. It was thus noted that the Court needs to ask itself the following questions:
(i)
What was the question in issue at the High Court and the Court of Appeal?
(ii)
Did the superior Courts dispose of the matter after interpreting or applying the Constitution?
(iii)
Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?"
38.
In answering the above questions, on the issue that was before the High Court and the Court of Appeal, it is prudent to examine the history leading to the institution of the case before the High Court. From the pleadings, the 1st Respondent filed before that Court, an application to have the Appellants cited for contempt of Court for failure to satisfy a court order. The court order that the Appellants had failed to comply with was an order of mandamus issued when the 1st Respondent commenced judicial review proceedings against the Appellants, compelling the Appellants to satisfy a decretal sum due to the 1st Respondent for the sum of Kshs. 8,464,699.05/-. The High Court noted in that regard:
“
It is apparent to this Court that no substantial dispute arises with regard to the issuance of the material court order on the 10th December 2014 vide Judicial Review Case No. 14 of 2013 or Kisii High Court Misc. Application No. 14 of 2013 (J.R), where the applicant had sought judicial review orders of mandamus to compel the Respondents to satisfy and/or settle a decree issued in Kisii High Court Civil Case No. 67 of 2007 on the 23rd March 2010 for the sum of Kshs. 8,464,699.05/- in favor of the applicant.”
39.
The High Court further noted that the proceedings leading to the filing of the judicial review application were not of concern in the contempt proceedings by holding as follows;
“
It must be stated herein for purposes of clarity or avoidance of doubt that we are not herein concerned with the previous proceedings between the Applicant and the Respondent or any other party which eventually led to the application for an order of mandamus by the Applicant.”
40.
The High Court therefore went on to only make a determination that the Appellants failed to obey a court order to perform a public duty bestowed upon them. The High Court ultimately cited the Appellants for contempt of Court in failing to offer a reasonable explanation for their disobedience thus triggering the present appeal proceedings.
41.
On its part, the Court of Appeal agreed with the High Court that the appeal filed by the Appellants arose from the alleged contempt of Court and not liability to pay the decretal sum. Makhandia, JA thus pronounced himself as follows;
“
The issue before the learned Judge that gave rise to the instant appeal related to citation for contempt and not liability of the Appellants to satisfy the Judgment or decretal sum.”
42.
As such, the Court of Appeal found that the only issue for determination in the contempt proceedings was whether a court order had been obeyed or not and went on to dismiss the Appellants’ appeal.
43.
It is therefore clear from the record that at no point were the Superior Courts called on to determine any issue involving the interpretation or application of any provision of the Constitution. The dispute, quite plainly, involved the question, whether or not the Appellants were in contempt of court orders and the Superior Courts determined that the Appellants had indeed, disobeyed court orders.
44.
The Appellants, in the face of the above clear position, nonetheless argue that by virtue of Section 6 of the Sixth Schedule of the Constitution, the National Government is the one mandated to pay for liabilities incurred by the defunct local authorities. They point out that at the time the High Court issued the order of mandamus, there had been no transfer of liabilities from the defunct Municipal Council of Kisii to the County Government of Kisii.
45.
By that argument alone, the Appellants urge the misguided point that this Court is now clothed with jurisdiction to determine their appeal. Misguided they are, with respect, because that issue, even if raised before the Superior Courts, did not form the substratum of the contempt proceedings and did not at all require determination by the Superior Court in the manner suggested by the Appellants. Like the Superior Courts below, we are of the view that, litigational ingenuity cannot be used to craft an issue outside the framework of the real dispute between the parties and then expect this Court to seize it and proceed to determine it – See Methodist Church in Kenya v Mohamed Fugicha & 3 Others, SC Petition No.16 of 2016 [2019] eKLR
46.
In conclusion, it is clear to us that no question of constitutional interpretation or application was canvassed before this Court or the Superior Courts. The Appellants have not thus properly invoked the jurisdiction of this Court under Article 163(4)(a) of the Constitution and this Court is therefore not vested with the jurisdiction to hear and determine this appeal.
F. Disposition
47.
Flowing from our findings above, the final orders to be made are as follows:
(i)
The Appeal herein is struck out for want of jurisdiction.
(ii)
As costs follow the event, only the 1st Respondent shall have the costs of the appeal since the 2nd Respondent did not participate in the proceedings, in any meaningful way.
48)
It is so ordered. | Struck out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/47/eng@2021-07-16 |
Petition 9 of 2020 | Getao v Mokare & 4 others (Petition 9 of 2020) [2021] KESC 36 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Getao v Mokare & 4 others | [2021] KESC 36 (KLR) | null | Brief facts
The appellant was the administrator of the deceased’s estate, whom it was alleged that at the time of his death, had been in occupation and possession of the suit property. The 3rd respondent was a group ranch comprised of about 519 members and owned about 100,000 hectares in a parcel of land from which the suit property was excised. The Ministry of Lands consented to the dissolution and subdivision of the ranch into equal individual holdings to the registered members. After subdivision, the deceased’s estate was allocated a different parcel of land (the allocated land) and not the originally occupied land. The import therefore was that the appellant and other beneficiaries of the deceased’s estate had to vacate the suit property and relocate to the allocated land.
The appellant and one of his brothers failed to vacate the suit property thereby compelling the 1st respondent to institute a suit at the trial court in a bid to evict them. The appellant claimed that the dissolution of the 3rd respondent was conditioned on the principle that, all the members would be allocated a share of all that parcel occupied at the time of dissolution. It was contended that the 2nd and 3rd respondents contravened that condition and allocated the suit property to the 1st respondent. He therefore claimed that his and the dependents’ fundamental rights to a fair administrative action, to own property, equality and freedom from discrimination had been violated.
The trial court found that the 1st respondent had been lawfully allocated the suit property, ordered the appellant to vacate and deliver the same with vacant possession to the 1st respondent within 90 days of the date of the judgment and in default thereof, be evicted. Aggrieved, the appellant filed an appeal at the Court of Appeal which dismissed the appeal with costs. The appellant was further aggrieved and thus filed the instant appeal. | D. Issues for Determination
36.
Having considered the gist of the appellant’s case, and the submissions of the respective parties, we have determined that only two issues arise for determination in this appeal. These are:
1.
What criterion should determine the sub-division and consequent allocation of land to individual members of a Group Ranch? Is it the Acreage or Value of the Land?
2.
Was the appellant’s Constitutional Right to own land violated by the respondent’s decision to base the sub-division on Acreage as opposed to Value of the Land?
37.
Suffice it to say that the nature of the two issues as couched above, leaves no doubt that this court has jurisdiction to entertain this appeal. Our determination in this regard disposes of the contention by the 4th and 5th respondents to the contrary.
(i) Acreage or Value?
38.
The appellant faults the decision by the respondents, to base the sub-division and consequent allocation of land, to individual members of the Group Ranch on acreage, as opposed to value. This resulted in his relocation from the initially ‘held’ parcel, to a different one which was of a lower value, hence his grievance. The answer to this question lies in the nature of the operative “tenure” and attendant legal regime in “Group Ranches”. The origin and rationale of Group Ranches in Kenya is well documented. In a nutshell, the Land Group Representatives Act (now repealed) was introduced to enable the inhabitants of large swathes of land in largely semi-arid pastoralist areas, to hold such land as a group, under one title. The title would be issued to and held by elected representatives on behalf of the group. Through this instrumentality, the group ranch not only acquired a “corporate character”, but became henceforth legally insulated from the ‘tragedy of the commons’
39.
The group ranch was therefore owned by members of the group, in equal but undivided shares, until such time that each member acquired their individual titles. So what type of tenure is created in these ranches? In the law of property in land, this is what can be characterized as “a community of ownership” (or co-ownership) as opposed to “community or communal ownership”. In the former, each member has an equal share, though undivided, while in the latter, there is no equality of shares. The members derive their security of tenure ‘qua members’ of that community. The nature of that security will also differ depending on the status of the members. Therefore, the type of tenure operative in a group ranch under the Land (Group Representatives) Act, is what is known at common law as “a tenancy in common”, as opposed to “a joint tenancy” (the ingredients of which may be clarified in future litigation). Members of the group ranch are “tenants in common” as opposed to “joint tenants”.
40.
At common law, each co-owner is as much entitled to possession of any part of the land as the others. He cannot point to any part of the land as his own to the exclusion of the others; if he could, there would be separate ownership and not co-ownership. No one co-owner has a better right to the property than another. Tenants in Common hold in undivided shares. Each tenant in common has a distinct share in property which has not yet been divided among the co-tenants. The only fact which brings them into co-ownership is that they both have shares in a single property which has not yet been divided among them. Therefore, while the tenancy in common lasts, no one can say which of them owns any particular parcel of land. (See Megarry and Wade, The Law of Real Property’ 6th Edition Pages 477 and 480).
41.
Applying these principles to the dispute at hand, we cannot see the legal basis upon which the appellant could lay claim to the parcel of land in question, to the exclusion of any other member of the group ranch. For as long as the group ranch remained undivided, his share in the land was equal to the other members of the group. It remained a tenancy in common until each member went their separate ways, having acquired their individual titles. Logically and undeniably therefore, the equality in the undivided shares of a group ranch, can only be based on acreage as opposed to value, for that is what brings its members into “a community of ownership”. Can it be said that a group ranch comes into existence on the basis of its value as opposed to its acreage? Hardly so. The frontiers of a group ranch can only be determined by its acreage as established by a Survey which then maps its boundaries. This explains why the mechanism that is used by the group representatives at the time of sub-division is balloting. Balloting is acreage sensitive but value blind. After sub-division, individual parcels are bound to differ in terms of value, depending on various factors. However, such differences in the value of distinct parcels are a post sub-division phenomenon, and therefore irrelevant to the process.
42.
The answer to the first issue as framed, renders the determination of the second one unnecessary, as it disposes of the gist of the Appeal. For these reasons, we find no difficulty in upholding the Judgment of the Court of Appeal.
E. Orders
(i)
The petition of appeal dated May 18, 2020 is hereby dismissed;
(ii)
The judgment of the Court of Appeal dated December 1, 2017 is hereby upheld;
(iii)
The appellant shall bear the costs of this appeal.
Orders Accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/36/eng@2021-07-16 |
Application 3 (E005) of 2021 | Itolondo v Attorney General & 9 others (Application 3 (E005) of 2021) [2021] KESC 44 (KLR) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Itolondo v Attorney General & 9 others | [2021] KESC 44 (KLR) | null | A. Introduction
1.
The Notice of Motion before the Court is dated 17th February 2021 and filed on 23rd February 2021. It is brought under Articles 3, 22, 35, 47, 159, 162, 232 and 258 of the Constitution, Section 15(2) of the Supreme Court Act, Section 39 of the Universities Act, 2012 and Sections 1 and 24 of the Statutory Instruments Act seeking two substantive orders:
a.
That time be extended for admitting a lodged Notice of Appeal dated 1st December 2020 against the decision of the Court of Appeal in Civil Appeal No. 120 of 2019.
b.
That pending the hearing and determination of this application and/or the petition, the Honourable Court be pleased to stay the execution of the Order on costs in Civil Appeal No. 120 of 2019.
2.
The application is anchored on several grounds on the face of the application, the supporting affidavit and supplementary affidavit of the applicant, Wilfrida Itolondo, sworn on 17th and 22nd February 2021, respectively.
3.
On 2nd March 2021, when the matter came up for mention before the Deputy Registrar of this Court, there was no representation on the part of the 1st and 2nd respondents. All respondents were nonetheless directed to file and serve their responses and submissions within seven days. There is still no response filed by the 1st and 2nd respondents on the record.
4.
In opposing the application, the 3rd and 7th respondents have filed: a replying affidavit sworn by Ruth Kirwa, the 3rd respondent’s Legal Officer; a Notice of Preliminary Objection; and written submissions both dated 8th March 2021. On their part, the 4th and 8th respondents have filed a Notice of Preliminary Objection and written submissions both dated 8th March 2021 in opposition to the application. Equally opposing the application are the 5th and 9th respondents vide a replying affidavit sworn by the 9th respondent, Wilson Kipng’eno on 8th March 2021 and written submissions filed on even date. In opposing the application, the 6th and 10th respondents have filed a replying affidavit sworn by Mercylene Njoroge on 9th March 2021 and submissions on even date.
B. Background
5.
This matter can be traced to the Employment and Labour Relations Court (ELRC) Petition No. 66 of 2018, wherein the applicant sought several declaratory and mandatory orders of injunction, to the effect that the respondents violated several Articles of the Constitution in the re-appointment of the Vice Chancellors (VCs) of four Public Universities namely; Technical University of Kenya, Jaramongi Oginga Odinga University, University of Kabianga and Maasai Mara University, the 3rd to 6th respondents, respectively. The applicant also sought the nullification of the re-appointment to office as VCs of the 3rd to 6th respondents on the ground that their appointment to office contravened the Constitution. She further sought a declaration that the provisions of Section 39 (3) of Universities Act, the respective Rules and Regulations contained in the Charter and the Governance Code of State Corporations (Mwongozo) be declared unconstitutional for failing to provide for a competitive re-appointment for the office of VC in public universities.
6.
On 15th February 2019, the Court (M. Onyango J), identified one issue for determination, that is, whether the re-appointments of the 7th to the 10th respondents as VCs of the 3rd to the 6th universities violated Articles 2, 3, 10, 35, 232 and Section 7 of the 6th Schedule of the Constitution, and Section 39 (1) (a) of the Universities Act, 2012. In dismissing the petition, the Judge found that the 7th to the 10th respondents were eligible candidates for re-appointment as per the Universities Act; the issues had been determined by the Court of Appeal in Civil Appeal No. 120 of 2014 which was filed by the applicant; and the process of re-appointments as Vice Chancellors of the respective Universities was properly carried out by the Councils and therefore, did not contravene the Universities Act or statutes.
7.
Aggrieved by the ELRC’s finding, the applicant filed Civil Appeal No. 120 of 2019, Wilfrida Arnodah Itolondo v Attorney General & 9 others raising fifteen (15) grounds which were later summarized into four, namely: whether the learned trial Judge erred in law by holding that there was no proof of violation of Articles 3, 10, 27, 35, 73 and 232 of the Constitution by the 2nd respondent in the re-appointment of the 7th to 10th respondents in office as VCs; whether the re-appointment contravened the Universities Act, and or any other statutes; whether the court was bound by the Court of Appeal decision in Wilfrida Itolondo & 4 Others vs. President and 7 Others [2015] eKLR; and finally, whether the Judge erred by failing to pronounce herself as to whether the provisions of a Circular by the Permanent Secretary/Secretary to the Cabinet and Head of Civil Service dated 23rd November, 2010 was null and void for being inconsistent with the provisions of the Constitution and the Universities Act, on the procedure of appointment of VCs.
8.
On 20th November 2020, the Court of Appeal dismissed the appeal in its entirety. The Court of Appeal in doing so upheld the finding of the trial that the appointment of the 6th to 10th respondents was legal. It also found the issue of re-appointment of VCs res judicata as it had been litigated by the applicant in Wilfrida Itolondo & 4 Others vs. President and 7 Others, CA Civil Appeal No. 120 of 2014 [2015] eKLR. The Court furthermore observed that it was not the intention of the Legislature to provide for a competitive process of re-appointment of VCs under the Universities Act and it thus left any amendments to the Universities Act to be done by the Legislature. | E. Analysis and Determination
30.
The 3rd and 7th respondents as well as the 4th and 8th respondents have separately filed Notices of Preliminary Objection both dated 8th March 2021, disputing this Court’s jurisdiction to entertain the applications as well as the intended appeal as already set out. Of note at this juncture is the objection on the ground that the Notice of Appeal does not disclose the specific Article of the Constitution the intended appeal is anchored on; the application is premised on the Civil Procedure Rules, 2012 as opposed to the Supreme Court Rules rendering the application bad in law and an abuse of the court process.
31.
We note that the other points of objection raised by the 3rd, 4th, 7th and 8th respondents in their preliminary objections touch on the merits of the Notice of Appeal and the intended appeal which is not subject of determination at this point. Consequently, we have considered the Preliminary Objections in the context of the respondent’s opposition to the application.
32.
As to whether this Court should grant an extension of time for the applicant to admit a Notice of Appeal, the applicant submits in the affirmative and blames the Court of Appeal Registry for delaying in lodging her Notice of Appeal and subsequently, lodging and backdating it at her disadvantage. She also blames the Covid-19 pandemic which saw the Court of Appeal limit in-person visits at its offices and encouraged online modes of communication. Conversely, the respondents urge that: in the absence of proof that the Notice of Appeal was lodged late and backdated, it is impossible to consider this argument; that there is no evidence that the applicant followed up the lodging of the Notice of Appeal; and that if time is extended, they will be prejudiced.
33.
Rule 15(2) of the Supreme Court Rules, 2020 grants this Court the discretion to extend the time limited by the Rules or any decision of the Court.
33.
Under Rule 36(1) of the Supreme Court Rules, 2020 a Notice of Appeal shall be filed within 14 days from the date of judgment or ruling which is subject of appeal. It is the responsibility of the appellant to transmit a copy of the Notice of Appeal to the Registrar of the Supreme Court and serve, within seven days, the transmitted copies of the Notice upon all persons affected by the appeal.
34.
According to Rule 38(1) of the Supreme Court Rules, 2020, a petition to the Court shall be filed within thirty days of the date of filing the Notice of Appeal, where the appeal is as of right. In that regard, the applicant ought to have filed her petition of appeal and record of appeal by 30th December 2020.
35.
This Court has set the guiding principles on extension of time in the Nick Salat Case as follows:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
36.
Further, this Court has emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court in the case of County Executive of Kisumu Case.
37.
In the present case, the judgment of the Court of Appeal was delivered on 20th November 2020. Consequently, the Notice of Appeal ought to have been filed and transmitted to this Court by 4th December 2020 being the fourteenth day from the date of judgment under Rule 36. Having perused the record, it is clear to us that the applicant’s Notice of Appeal was filed on 1st December 2020 and lodged on even date. This therefore implies that the Notice of Appeal was filed on time. However, the same was not be transmitted to this Court within the above timelines.
38.
Although the applicant has attributed the delay to file the appeal and transmit the Notice of Appeal on time to the officer responsible for lodging documents at the Court of Appeal, she has not annexed an affidavit from the said process server to enable us to validate her justification for the delay. The applicant has also failed to validate the delay in bringing the present application from the date she realized that the time for instituting the appeal and forwarding the Notice of Appeal to this Court had lapsed. Consequently, it is our unanimous finding that the applicant has failed to meet the criteria set by this Court for extension of time.
39.
On the second issue, whether Petition No. E004 of 2021 is proper to justify a stay of the Court of Appeal’s order on costs, the applicant submits that she filed Petition No. E004 of 2021 on 11th February 2021, being the last day from the date she received the lodged Notice of Appeal. As found above, the last filing date for the petition before this Court was 30th December 2020. The effect of this finding is that the Petition No. E004 of 2021 is null and void for being filed out of time and without leave hence, struck out. Therefore, in the absence of a substantive appeal on record, we are unable to grant the orders of stay of execution of the Order on costs in Civil Appeal No.120 as sought.
40.
Ultimately, we find that the application herein lacks merit and is hereby dismissed. As this ruling effectively brings to an end the proceedings before this Court, we do not see any need to extend the dispute to the limited question of costs. Accordingly, each party to bear its own costs
F. Orders
41.
The final orders are as follows:
i.
The Notice of Motion dated 17th February 2021 and filed on 23rd February 2021 is hereby dismissed.
ii.
Petition No. E004 of 2021 filed electronically on 11th February 2021 is hereby struck out for being filed out of time.
iii.
Each party to bear its own costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/44/eng@2021-07-16 |
Petition 38 of 2019 | Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Jirongo v Soy Developers Ltd & 9 others | [2021] KESC 32 (KLR) | null | Brief facts
Pursuant to a sale agreement between the appellant and the 2nd and 3rd respondents and upon payment of the deposit, the original company registration documents of the 1st respondent company and the title deed of the suit property were released to the appellant. The appellant on October 21, 1992, charged the suit property to Post Bank Credit Limited for a sum of Kshs 50 million. The appellant contended that the charge was executed by himself and his partner. The suit property was eventually discharged from all encumbrances and transferred to the 10th respondent.
On or about the year 2015, the 2nd and 3rd respondents alleged that the appellant, while fraudulently holding himself as a director of the 1st respondent, executed a charge in favour of Post Bank Credit Ltd which he used to secure an overdraft facility for the appellant’s company, M/s Cyperr Projects International Ltd. The 1st respondent thus instituted a suit over the alleged fraudulent transfer of the suit property. A complaint was later lodged to the 6th respondent, the Directorate of Criminal Investigation (DCI) requesting them to investigate the alleged fraud. Pursuant to the recommendation by the DCI, the 5th respondent, the Director of Public Prosecutions (DPP), on February 9, 2016, instituted criminal proceedings against the appellant at the Chief Magistrates’ Court.
Aggrieved, the appellant moved the High Court seeking among other orders an order to quash the decision of the DPP to charge and institute criminal proceedings against the appellant. It was the appellant’s case that the preferred charges were among other allegations an abuse of the court process and constituted an illegal exercise of discretion. Further, due to the 24-year delay in instituting the prosecution, the appellant claimed that his fundamental rights and freedoms had been infringed. The High Court allowed the appellant’s application and granted the orders sought. Aggrieved, the 1st, 2nd, 3rd, 4th, 5th, and 6th respondents lodged two appeals at the Court of Appeal which allowed the appeals and set aside the judgment of the High Court. Aggrieved, the appellant filed the instant appeal. | D. Analysis and Determination
44.
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;
(a)
Whether there is a right of appeal to this court following the decision of the Court of Appeal under article 163(4)(a) of the Constitution;
(b)
Whether the inordinate delay in instituting the intended prosecution of the appellant would infringe his rights and freedoms under articles 19,20,27 and 50 of the Constitution;
(c)
Whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions contrary to article 157 of the Constitution; and
(d)
What are the appropriate reliefs?
We shall determine each issue separately as here below:
(a) Whether there is a right of appeal to this Court following the decision of the Court of Appeal under Article 163(4)(a) of the Constitution
45.
The appellant argues that this court has the jurisdiction to determine the appeal under article 163(4)(a) of the Constitution, which allows appeals as a matter of right, in cases involving the interpretation or application of the Constitution. He maintains that the main issue for determination is whether his right to a fair trial was infringed due to, inter alia, the delay in instituting criminal proceedings. The 5th, 6th and 7th respondents concur that this court does have the jurisdiction to entertain the appeal as the appellant is challenging the interpretation and application of articles 50 and 157 of the Constitution. The 1st, 2nd and 3rd respondents however take a contrary view, arguing that though this court has appellate jurisdiction, the appellant has wrongly invoked it.
46.
Article 163(4)(a) states as follows on the appellate jurisdiction of this court:
4.
Appeals shall lie from the Court of Appeal to the Supreme Court –
(a)
As of right in any case involving the interpretation or application of this Constitution; and
(b)
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)
5.
A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
47.
This court has on many decisions, pronounced itself on its jurisdiction to determine appeals under the said Article 163(4)(a) of the Constitution. In the case of Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another SC Petition No. 3 of 2012; [2012] eKLR, a two-Judge Bench of this court (Tunoi and Wanjala SCJJ) remarked that [paragraph 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 Constitutionwhich 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).”
48.
Further, in the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013, this court settled the applicable test on the jurisdiction of this court in the handling of article 163(4)(a) appeals by holding thus:
37:
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution” [Emphasis added].
49.
Therefore, for us to determine whether the present appeal is properly before us, we must confirm that issues of constitutional interpretation and application presented before us have risen through the normal appellate process before reaching us.
50
In that context, a perusal of the record and the determinations by the two superior courts below would lead to only one inescapable conclusion; the issues canvassed before them related to an interpretation and application of the Constitution with regards to the appellant’s main claim that he was being subjected to an unfair criminal trial contrary to article 50 of the Constitution as well as alleged bias and abuse of power by the DPP contrary to the mandate conferred by article 157 ofthe the Constitution. Those issues are squarely before us, having been the subject of the determinations by the superior courts below and without saying more, and following our prior decisions cited above, we hold and find that we have been properly moved under article 163(4)(a) to determine the present appeal.
(b) Whether the inordinate delay in instituting the intended prosecution of the appellant would infringe his rights and freedoms under Articles 19, 20, 27 and 50 of the Constitution
51.
The appellant claims that the events surrounding the sale transaction of the suit property, which is the basis of indictment and institution of fraud charges against him took place 24 years before the criminal proceedings were initiated. The appellant thus claims that his constitutional rights founded on the right to equality before the law and the right to equal protection and equal benefit of the law provided for under article 27(1) of the Constitution and the right to a fair trial provided for under article 50 of the Constitution were violated.
i) Reason for the delay
52.
The 5th, 6th and 7th respondents insist that the reason for the delay was that land registry file on the suit property was missing at the Lands registry hence the complaint against the appellant was lodged only when the file was found in 2015.
They also insist that there is no limitation period for instituting criminal proceedings and maintain that the appellant does not stand to suffer any prejudice if his prosecution proceeds.
53.
The 1st, 2nd and 3rd respondents on their part deny that the appellant’s imminent prosecution violated his right to a fair trial arguing that article 50 of the Constitution had inbuilt mechanisms to protect this right; that the delay was explained and the appellant did not stand to be prejudiced as he had all the evidence to rebut the allegations and all the relevant witnesses were also available. They reiterate that delay is not a defence to stop any criminal prosecution.
54.
The High Court, while addressing the issue of delay, where a complainant lodges a complaint after a long period of time vis-a-vis its implication on an accused person’s right to a fair hearing held as follows:
140.
Where a person against whom wrongdoing has been allegedly committed takes an inordinately long period of time before lodging his complaint with the police and as a result of which crucial evidence is lost and or witnesses become unavailable, to subject the applicant to a process of prosecution will amount to nothing but persecution. This is not to say that the applicant is in such circumstances innocent. It is simply a recognition that the criminal process must be conducted in an atmosphere of fairness to both the accused person and the complainant and where the right to a fair hearing has been jeopardised by the long delay in the commencement of the criminal process thus placing the applicant’s rights into jeopardy, such a process must not be permitted to continue.”
55.
The Court of Appeal on its part, and to the contrary, found that the respondents had submitted evidence that showed that all the relevant witnesses are alive and that the relevant documentation and the Land Registry file on the suit property are available. The Court thus found that the appellant did not stand to be prejudiced if he is given an opportunity to defend himself and found the reason for delay issued by the respondents in the institution of the criminal proceedings as satisfactory to them.
ii) Was the delay inordinate and was the appellant’s right to a fair trial infringed?
56.
The question of delay with respect to the lodging of criminal prosecutions has been addressed by our courts in several matters. The leading persuasive decisions on the subject are the High Court cases of Githunguri v Republic (1986) KLR 1 and Republic v Attorney General & another ex parte Ng’eny (2001) KLR 612 which both Superior Courts relied on.
57.
In Githunguri v Republic (supra), the court stated as follows:
“In this instance the delay is said to have been nine years, six years and four years. The court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the court the reason but it would have made us knowledgeable if told.
We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute, and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the court will be within a reasonable time as required by section 77(1). The delay is so inordinate as to make the non-action for four years inexcusable in particular because this was not a case of no significance, and the file of the case must always have been available in the Chambers of the Attorney-General. It was a case which had received notable publicity, and the matter was considered important enough to be raised in the National Assembly.
We are of the opinion that two indefeasible reasons make it imperative that this application must succeed. First as a consequence of what has transpired and also being led to believe that there would be no prosecution the applicant may well have destroyed or lost the evidence in his favour. Secondly, in the absence of any fresh evidence, the right to change the decision to prosecute has been lost in this case, the applicant having been publicly informed that he will not be prosecuted and property restored to him. It is for these reasons that the applicant will not receive a square deal as explained and envisaged in section 77(1) of the Constitution. This prosecution will therefore be an abuse of the process of the Court, oppressive and vexatious.”
58.
Similarly in the case of Republic v Attorney General & another ex parte Ngeny (2001) KLR 612, the court addressed this question and stated that:
“In the case before us, the delay was nine years. No attempt has been made to explain it. The subject matter of the charges against the applicant is a colossal sum involving an institution that was strategic to the Government when the losses were occasioned; so why did the State not mount a prosecution immediately? Nine years is too long a delay. We cannot think anything else but that the criminal prosecution against the applicant was motivated by some ulterior motive. It is not a fair prosecution. It was mounted quite late: Nine years after the applicant had vacated the relevant public office alleged to have been abused. We were told, and this was not challenged, that having been out of office for that long, he does not have in his possession material to prepare his defence. This we believe. We are of the view that to allow delayed prosecutions is akin to putting a noose around the necks of individuals and then saying to them: 'Go, you may go. We shall decide your fate as and when we wish.' This is to keep the individual in fear. This does not accord with constitutional guarantees of individual rights and freedoms and is nothing more than an abuse of the process of the court”.
59.
The argument put forth by the appellant is that his right to be tried within a reasonable period of time has been infringed in view of the fact that it has taken 24 years for him to be prosecuted. The appellant cites the various hurdles to the impending trial that will result in him not having a fair trial; the missing Land Registry file as well as the loss of vital documentary evidence.
60.
The appellant also contends that as a result of the long delay before the charges were instituted, his defense has been compromised since the documents involved in the company registration and transfer of shares, which allowed for the registration of the charges against the 1st respondent company as regards the suit property, including the company forms required for effecting change at the Registry of Companies, are missing.
61.
The appellant thus argues that he stands to suffer prejudice due to the long period of time that has lapsed since the events surrounding the sale of the suit property, occurred between 1991 and 1993.
62.
In addressing this issue, we note that in the case of George Joshua Okungu & another v The Chief Magistrate’s Court Anti-Corruption Court at Nairobi & another (supra), the High Court persuasively held that:
“.....it is not mere delay in preferring the charges that would warrant the halting of the criminal proceedings. Rather, it is the effect of the delay that determines whether or not the proceedings are to be halted. In this case, there is no allegation made by the petitioners to the effect that the delay has adversely affected their ability to defend themselves. In other words, the Petitioners have to show that the delay has contravened their legitimate expectations to fair trial.”
63.
In that regard, the right to fair hearing is provided under article 50(1) of the Constitution which provides:
“Every person has the right to have any dispute that can 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.” [Emphasis supplied]
64
The rights of an accused person are then set out in article 50(2) of the Constitution which specifically provides that an accused person must be accorded a fair trial without delay. The said article provides that:
"(2)
Every accused person has the right to a fair trial which includes the right-(e)to have the trial begin and conclude without unreasonable delay.”
65.
This court in the case of Hon. Christopher Odhiambo Karan v David Ouma Ocheing & 2 others [2018] SC Petition No 36 of 2019 had an opportunity to discuss the significance, distinctive meaning, scope and implication of the right to a fair trial and stated that “It is therefore settled law that all persons who come to any court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution 2010 in article 25(c) placed a bar on limitation of the right to a fair trial, in civil and criminal matters.”
66.
It is in the above regard trite that there is no limitation of time to institute and prosecute criminal offences but as stated in Githunguri, where the delay has the effect of denying a suspect the legal tools to mount a credible defence, then the High Court is properly mandated by the Constitution to step in and stop the intended prosecution.
67.
Similarly, where the delay was occasioned by deliberate inaction on the part of a complainant with the intent of getting at a suspect to force the suspect’s hand in say, a different transaction between them at a later date or even use the complaint to force settlement in ongoing civil proceedings, then, again the High Court, as a court of first instance, must step in because the intended prosecution is tainted with malice and not the otherwise unassailable intent to furnish criminal wrong doing, promptly.
68.
Furthermore, both articles 49(1)(a)(ii) and 50(1) and (2)(e) of the Constitutionexpect that in resolution of disputes, fairness must necessarily include the promptness of action and the inhibition against unreasonable delay. What is reasonable, it is now settled, includes both the reason for delay and the period of delay.
69.
In the present case, all the evidence before us points to the fact that the documentation necessary to prove the alleged fraud may no longer be available and we agree with the learned Judge of the High Court that, where both parties have admitted that the same issues are also pending resolution in another court, and that the issue of lost documentation remains unresolved, it would be most unfair to subject the appellant to a criminal trial, 24 years after the impugned transaction.
70.
What of the fact that it is admitted that the 2nd and 3rd respondents indeed received part purchase price for purchase of the suit property? Why would it take them 24 years to decide that they were now entitled to the balance thereof as well as return of the title documents? Our position is that such a delay and use of the criminal process to force the hand of the appellant fatally taints the fairness of the resultant prosecution.
71.
Lastly, in instituting the prosecution, the ODPP, without in any way taking away the constitutional mandate to prosecute crimes, ought always to act judiciously and not act in perpetuation of an unfair and malicious criminal complaint. In doing so, that office must always be guided by the principle that the right to a fair trial cannot be limited thus raising the bar in the determination of the question whether to prosecute or not.
72.
It is therefore our finding, and in agreement with the learned Judge of the High Court that, the prosecution of the appellant is in breach of his right to a fair trial as protected by article 25(c) as read with article 50 of the Constitution and we have stated why.
iii) Are the Proceedings More of a Criminal or Civil Nature?
73.
The above question is pertinent and must be addressed as a corollary to the issues we have determined above. In that context, the appellant claims that he purchased lawfully all shares in the 1st respondent’s company and eventuallybecame a director and shareholder. the 2nd and 3rd respondents on the other hand maintain that there has never been any change of the directorship or shareholding of the 1st respondent, claiming instead that they have always been its sole directors and shareholders. It is evident therefore that the main issue in contention involves the company registration forms of the 1st respondent company as well as the alleged change of its ownership.
74.
The question whether a complainant can pursue both civil and criminal proceedings at the same time is not a new one in our realm. In the present case, it is admitted that the 2nd and 3rd respondents have instituted Civil suit No 132 of 2015 at the ELC and one of the claims made therein is that title documents for the suit property have been lost.
75.
The appellant has however argued that the 2nd and 3rd respondents then instituted his prosecution on alleged fraud charges and unlawful use of the title documents to obtain credit whilst also claiming that the same documents had been lost thus pointing to malice in his prosecution. What is the law in such a situation?
76.
The Court of Appeal persuasively stated in the case of Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [2013] eKLR that:
“Clearly, the company and the guarantor through their directors were employing criminal process to assist them in resolving their civil dispute. While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and a travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court. This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations. We have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power. The police should direct their energies and resources to prevention of crime which we all know is rampant in this country and is about to get out of control.”
77.
We respectfully agree and adopt this position in this case but must add that where it is obvious to a court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book. In addition, we shall, later in this Judgment, express ourselves on the criteria to be used by the High Court before terminating any criminal prosecution.
78.
Having so said, we have already expressed ourselves on the right to fair trial and we must now make a finding that, in the unique circumstances of the present case, the institution of civil proceedings, simultaneously with criminal proceedings, claiming on one hand that title documents had been lost, while in another, claiming that they were in the possession of the appellant and his banks or a third party, ASL Ltd, the 10th respondent, is indeed an expression of mischief and dishonesty. This or another court should never countenance such conduct for it brings the entire criminal justice into disrepute.
c) Whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP contrary to the Constitution
79.
The High Court in its finding, prohibited the respondents from proceeding with any criminal proceedings against the appellant in relation to the suit property or any subject matter and transaction connected to the suit property. The Court of Appeal reversed this judgment by holding that the High Court had interfered with the discretion given to the Director of Public Prosecutions (DPP) to initiate and conduct prosecution. Essentially, the Court of Appeal found that the High Court went against public interest in preventing investigation and prosecution of allegations relating to fraudulent transfer and acquisition of the suit property and that the learned Judge interfered with the prosecutorial mandate of the DPP to decide on whether to charge or not to charge an individual.
80.
The 5th, 6th and 7th respondents on their part, maintain the position that the decision to commence investigations against the appellant was consistent with the provisions of article 157 of the Constitution and section 6 of the Office of Director of Public Prosecutions Act. They also submitted that the decision to institute criminal proceedings by the DPP is discretionary and that such exercise of power is not subject to the direction or control by any authority as provided for under article 157(10) of the Constitution.
81.
Under article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any court. Article 157(6) provides as follows:
(6)
The Director of Public Prosecutions shall exercise State powers of prosecution and may-
(a)
institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”
Article 157(4) provides that:
(4)
The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.”
However, Article 157(11) stipulates that:
(11)
In exercising the powers conferred by this article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
82.
Although the DPP is thus not bound by any directions, 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 therefrom and make appropriate orders.
83.
In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that :
“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.
By the same token and in terms of article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.
It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v R[2002] 1EA 205. See also Kuria & 3 others v Attorney General [2002] 2KLR.” (Emphasis supplied)
84.
Furthermore, the Supreme Court of India in RP Kapur v State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the court on when the High Court may review prosecutorial powers. They are as follows:
(I)
Where institution/continuance of criminal proceedings against an accused 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; or
(II)
Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, eg want of sanction; or
(III)
Where the allegations in the First Information Report or the complaint taken 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.
85.
We are persuaded that this is a good guide in the interrogation of alleged abuse of prosecutorial powers and read alongside article 157(11) of the Constitution, we have sufficiently expressed ourselves elsewhere in this Judgment to show that the unconstitutional continuance of the criminal proceedings against the appellant amounts to abuse of court process and that, balancing the scales of justice, the weight would favour the appellant and not the respondents.
86.
On public interest, what is in issue is a dispute arising from a commercial transaction 24 years ago where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals.
87.
The learned judge of the High Court, in our view, was well within his mandate under article 165(3)(d)(ii) as read with article 157(11) of the Constitution to curtail the appellant’s prosecution and the DPP’S powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court.
E. Conclusion
88.
Having held as above, we are of the opinion that the Court of Appeal erred in setting aside the decision of the learned judge of the High Court and we have affirmed the latter decision in all its facets. What of costs? Costs follow the event and so the appellant shall have the costs in this court, the Court of Appeal and the High Court as against the 1st, 2nd and 3rd respondents only.
F. Disposition
89.
The final orders to be made are as follows:
(a)
The entire Judgment of the Court of Appeal sitting at Nairobi delivered on July 19, 2019 in Nairobi Civil Appeal No 43 of 2017 and Civil Appeal No 48 of 2018 be set aside and the judgment and orders of the High Court in Miscellaneous Application No 78 of 2016 delivered by Honourable Mr Justice Odunga on January 11, 2017 be reaffirmed.
(b)
The costs of this appeal and costs of proceedings in this court, the Court of Appeal and in the High Court be awarded to the appellant herein in any event as against the 1st, 2nd and 3rd respondents only.
90.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/32/eng@2021-07-16 |
Petition (Application) 11 of 2020 | JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Intended Amicus Curiae) (Petition (Application) 11 of 2020) [2021] KESC 48 (KLR) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others | [2021] KESC 48 (KLR) | null | Brief facts
Before the Court were three applications seeking enjoinment in the matter. The first application, seeking enjoinment as an Interested Party was filed by the Federation of Women Lawyers (FIDA Kenya), and was anchored on Rules 24 and 31 of the Supreme Court Rules, 2020, while the second application, seeking enjoinment as amicus curiae was filed by the Law Society of Kenya (LSK), and was grounded in Rules 19 and 31 of the Supreme Court Rules, 2020. The third application sought to enjoin the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), Initiative for Strategic Litigation in Africa (ISLA), and Human Rights Watch (HRW) as amici curiae.
FIDA Kenya submitted that it sought to assist the Court in interpreting Article 45(3) of the Constitution, arguing that it envisaged equality in matrimonial property distribution. FIDA Kenya further proposed to provide comparative jurisprudence and insights from international legal instruments ratified by Kenya to support their argument for a 50:50 distribution matrix.
The LSK submitted that it had substantial expertise in constitutional and family law and aimed to assist the Court in interpreting the Constitution by providing relevant legal perspectives and comparative foreign jurisprudence. The LSK underscored its independence, impartiality, and lack of connection to either party.
The third set of applicants argued that they met the criteria for enjoinment as amici curiae based on their proven expertise in advocating for women's rights, land, and property rights, and their prior participation as amici in similar matters before Kenyan courts. All applicants emphasized that their contributions would provide neutral, relevant, and informed perspectives essential to the Court’s determination of the issues at hand. | C. Orders
23.
Having stated as above, we shall exercise discretion and make the following Orders:
(i)
The application by the intended interested party, Federation of Women Lawyers (FIDA Kenya) is partly disallowed to the extent that they seek to be enjoined as interested party.
(ii)
The Federation of Women Lawyers (FIDA Kenya), the intended interested party is hereby enjoined as 1st amicus curiae.
(iii)
The application by the Law Society of Kenya is allowed and the applicant is hereby admitted as the 2nd amicus curiae.
(iv)
The application by KELIN, ISLA and HRW as intended amici curiae is dismissed.
(v)
Participation by the enjoined parties shall be limited to the filing of written submissions.
(vi)
There shall be no Orders as to costs. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/48/eng@2021-07-16 |
Application 2 (E004 of 2021) of 2021 | Kenya Hotel Properties Limited v Attorney General & 5 others (Application 2 (E004 of 2021) of 2021) [2021] KESC 49 (KLR) (Civ) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Kenya Hotel Properties Limited v Attorney General & 5 others | [2021] KESC 49 (KLR) | null | A. INTRODUCTION
1.
Before the Court is a Notice of Motion dated 17th February 2021 and filed on 18th February 2021, pursuant to Rules 3(5) and 15 of the Supreme Court Rules, 2020. The application seeks the following orders:
a.
That leave be granted to the applicant to extend time to file its Supplementary Record of Appeal out of time.
b.
That the Supplementary Record of Appeal dated 8th February 2021 and filed on 9th February 2021 be deemed as duly and properly filed.
c.
That the costs of and incidental to this application abide the result of the appeal.
2.
The application is supported by an affidavit sworn on 17th February 2021 by Allen Waiyaki Gichuhi, advocate for the applicant.
3.
The Applicant filed a petition of appeal, being Petition No. 16 of 2020 dated 28th August 2020, seeking to set aside the judgment of the Court of Appeal at Nairobi (Makhandia, Kiage & Murgor, JJA) delivered on 7th August 2020, in Civil Appeal No. 404 of 2018.
B. BACKGROUND
4.
Willesden Investment Ltd, the 4th respondent, who was at all material times the registered proprietor of L.R. No. 209/12748 IR No. 66986 from 15th September 1995, filed HCCC No. 367 of 2000 against the Kenya Hotel Properties Ltd (the applicant), seeking damages for trespass to property and mesne profits arising from the applicant’s use of the said property as a parking lot. The applicant had been using the property having leased it from the Nairobi City Council prior to the 4th respondent’s registration as proprietor. The High Court, by its judgment dated 14th December 2006, awarded the 4th respondent Kshs. 54,102,400 in mesne profits; Kshs. 10,000,000 in general damages for trespass, Kshs. 6,000,000 for loss of business opportunity together with interest and costs.
5.
Dissatisfied, the applicant appealed to the Court of Appeal in Civil Appeal No. 149 of 2007 against the 4th respondent and by a judgment delivered on 2nd April 2009, that award was reduced to Kshs. 22,729, 800 with interest at court rates from January 1994 to the date of payment. Dissatisfied further, the applicant filed a review application before the Court of Appeal. The appellate Court (O’Kubasu, Onyango-Otieno and Aganyanya, JJ. A) delivered its ruling on that application effecting one correction, that interest at court rates be calculated from 15th September 1995, but otherwise dismissing the appeal with costs.
6.
Later, the applicant’s advocate filed a complaint before the Judges and Magistrates Vetting Board, the 3rd respondent, against O’Kubasu J.A over his conduct in Civil Appeal No. 149 of 2007. The 3rd respondent, by its decision issued on 25th April 2012, decided that O’Kubasu JA was not suitable to hold the position of a judge because the judgment therein, principally authored by him; in its opinion contained various anomalies on whether arguments made on behalf the applicant there had been considered, the basis on which damages were computed and the manner in which interest was calculated. O’Kubasu J.A filed an application for review of that decision, but the same was dismissed on 20th July 2012, and so he stood removed.
7.
Subsequently, on 16th October 2015, the applicant filed High Court Constitutional Petition No. 438 of 2015, seeking several orders namely: that the Court of Appeal’s decision in Civil Appeal No. 149 of 2007 was a nullity and should have been set aside; a declaration that the applicant’s right to fair hearing was infringed by the bias shown by the presiding judge in Civil Appeal No. 149 of 2007; a declaration that the Court of Appeal’s judgment could not stand following the removal of the Judge by the 3rd respondent; an order of certiorari to quash that judgment; an order directing that the appeal arising from the judgment of the High Court in HCCC No. 367 of 2000 be heard de novo; and a permanent injunction restraining the 1st and 4th respondents from executing the decree in HCCC No. 376 of 2000. On 28th September 2018, the High Court (Mwita J) dismissed the petition for failing to meet the threshold for an application for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom as contemplated under Article 23(1) of the Constitution.
8.
Aggrieved by that decision, the applicant filed Civil Appeal No. 404 of 2018 Kenya Hotel Properties Limited v Attorney General & 5 others on the grounds that the learned Judge erred in law by: restricting himself to one issue for determination concerning jurisdiction; failing to apply the spirit in Articles 10 and 259 of the Constitution to advance the rule of law, fundamental freedoms, equity, social justice and equity and a miscarriage of justice; failing to consider the purpose of Section 23(1) of the 6th Schedule to the Constitution; failing to consider that the Judgment in Civil Appeal No. 149 of 2007 could not stand after O’Kubasu JA’s removal and set it aside; failing to consider that judicial bias undermined confidence in the Judiciary and infringed the right to fair trial under Article 50, an unlimited right under Article 25 of the Constitution and that the High Court had jurisdiction; and failing to correctly apply the Supreme Court’s dicta in the case of Jasbir Rai & 3 others vs. Tarlochan Singh Rai (Estate Of) & 4 Others [2013] eKLR. The applicant also filed an application for review in Civil Appeal No.149 of 2007 which the appellate court heard together with Civil Appeal No. 404 of 2018. On 7th August 2020, the Court of Appeal (Makhandia, Kiage & Murgor, JJA) dismissed both the appeal and the application for review for lack of merit. | D. ISSUE FOR DETERMINATION
14.
Having perused the pleadings of the parties there is only one issue for determination, namely, whether this Court should grant an extension of time for the applicant to file a Supplementary Record of Appeal? If so, should the Court deem the filed Supplementary Record as properly filed?
E. ANALYSIS
15.
Under Rule 15(2) of the Supreme Court Rules, 2020, this Court has the discretion to extend the time limited by the Rules or by any decision of the Court.
16.
The applicant has urged that he was not able to file the certified order and typed proceedings from the Court of Appeal within the stipulated timelines, that is, 30 days from the filing of the Notice of Appeal, due to a delay occasioned by the Court of Appeal in issuing the same. It submits further that the same was filed on 9th February 2021, within five days of receipt of the same and that no prejudice will be occasioned to the respondents. More so, it maintains that the issues raised in Petition No. 16 of 2020 are of general public importance and therefore, the application should be allowed.
17.
Having considered this Court’s finding in Nicholas Kiptoo Korir Arap Salat v. Independent Electoral and Boundaries Commission & 7 Others , SC Application No. 16 of 2014; [2014] eKLR (the Nick Salat Case) and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; [2014] eKLR, the applicant’s grounds in support of the application and its submissions dated 17th February 2021, we are satisfied that the applicant has provided a plausible and reasonable explanation for the delay in filing the Supplementary Record. We are equally satisfied that the delay in the circumstances was not inordinate. In addition, we note that the documents sought to be introduced through the Supplementary Record of Appeal are not prejudicial to any of the respondents and are considered necessary by the applicant. Consequently, we are inclined to extend time for the applicant to file its Supplementary Record.
18.
As to whether we should deem the filed Supplementary Record of Appeal as proper before us, our position, as held in the Nick Salat Case, is that the appropriate remedy for curing a delay in filing an appeal is to seek an Order from the Court, extending the time within which to file the same. In County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court found that an appeal filed out of time without leave of this Court is irregular and this Court will not invoke ‘novel’ principles so as to validate such a petition and deem it properly filed. The applicant has not demonstrated why we should depart from the said principles. Be it as it may, we have perused the record and noted that the said Supplementary Record, although electronically filed, did not comply with the filing procedures provided for under Rule 12(1) of the Supreme Court Rules, 2020 which state that filing is complete when a party submits both printed and electronic form. Therefore, for our purpose, the said Supplementary Record is not properly filed. Further, even if the same were filed in compliance with Rule 12(1), the same was invalid for having been filed out of time.
F. ORDERS
19.
Having made the foregoing determinations, we make the following orders:
i.
The Notice of Motion dated 17th February 2021 and filed on 18th February 2021 is hereby allowed.
ii.
The applicant shall file and serve its Supplementary Record within the next 14 days from the date of this Ruling.
iii.
The purported Supplementary Record dated 8th February 2021 and filed electronically on 9th February 2021 in Petition No. 16 of 2020, is hereby struck out and expunged from the Court’s Record.
iv.
The costs of this application shall abide the cause.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/49/eng@2021-07-16 |
Petition 11 of 2019 | Kimani & 2 others v Kenya Airports Authority & 3 others (Petition 11 of 2019) [2021] KESC 43 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Kimani & 2 others v Kenya Airports Authority & 3 others | [2021] KESC 43 (KLR) | null | Brief facts
The appellants moved the High Court challenging their exclusion from operating their taxis at the Jomo Kenyatta International Airport (JKIA) by the 1st respondent in breach of an existing lease. Pending the hearing and determination of the suit, the High Court allowed an application seeking an interlocutory mandatory injunction to compel the 1st respondent to allow them to continue operating their taxi business at JKIA. Aggrieved, the 1st respondent appealed against the decision and the Court of Appeal set aside the orders made by High Court.
Subsequently, the High Court allowed the 1st respondent’s preliminary objection seeking to have the appellants’ suit struck out on among other grounds that: the appellants’ suit and the entire proceedings therein had been filed in contravention of the mandatory provisions of sections 33 and 34(a) of the Kenya Airports Authority Act, Cap. 395, (KAAA). Aggrieved by that High Court ruling striking out the suit, the appellants appealed to the Court of Appeal. The Court of Appeal dismissed the appeal in its entirety and ordered each party to bear its own costs. The appellants were aggrieved by the Court of Appeal decision and thus filed the instant appeal seeking among others the substitution of the orders of the High Court and the Court of Appeal with an order allowing the appellant’s plaint challenging their exclusion from operating their taxis at the JKIA as prayed. | V. Analysis and Determination
37.
Upon appreciation of the parties’ pleadings and submissions, the following are the issues for determination by the court:
(i)
The jurisdiction question:
(a)
whether the petitioners have a right of appeal to this court; and
(b)
whether this court has jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution.
(ii)
Whether the Court of Appeal ignored the doctrine of supremacy of the Constitution by elevating section 33(1) of the KAA Act over constitutional provisions.
(iii)
Whether the preliminary objection was res judicata and whether the same was filed out of time in contravention of article 159(2)(d) of the Constitution.
(iv)
Whether the orders sought can issue.
(i) The Jurisdiction question
38.
On the twin jurisdictional question of whether this court has jurisdiction to hear and determine this matter under article 163(4)(a) of the Constitution, and whether the appellants have a right of appeal before this court, parties raised parallel arguments. The appellants urge that the court should look at the original pleadings filed at the inception of the matter in the High Court. That it will find that constitutional issues were pleaded, to wit, contravention of their fundamental rights to property under section 75 and right to protection of the same under sections 77(9), 82 and 84 of the repealed Constitution. Further that the Court of Appeal disregarded the doctrine of supremacy of the Constitution particularly sections 3, 75, 77, 82 and 85 of the former Constitution, and instead elevated and applied sections of the KAA Act.
39.
The 1st respondent urge that the court lacks jurisdiction to determine this appeal as the appeal did not originate from a case involving the interpretation or application of the Constitution. That the appeal is founded on a High Court ruling on the 1st respondent’s preliminary objection, that the appellants ought to have first taken the suit before an arbitrator as per the mandatory provisions of sections 33 and 34 of the KAA Act which is the Statute that governed the lease agreement between the parties. KAA dismisses the invocation of the doctrine of the supremacy of the Constitution as alleged by the appellants urging that the same does not come into question as the main issue in dispute here was based on contractual obligations, the parties having voluntarily entered into a contract as between them.
40.
In Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR, the court settled that where an appeal involves a matter of constitutional interpretation and/or application, it signals access to the Supreme Court “as of right”, and no form of authorization or leave from the court is required. Thus in the matter before us, once we establish that there is an issue that involves a matter of constitutional interpretation and/or application, it follows that the appellants will have right of appeal before this court.
41.
The contours of a matter falling within article 163(4)(a) jurisdiction are now set in a number of decisions of this Court, starting with the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] eKLR where the court stated that:
“
article 163(4)(a) 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. 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 of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a)”
42.
The warning signaled by this court in the above decision is that the court should be wary of litigants who merely cite constitutional provisions in their pleadings with the intention of finally seeking an appeal to the Supreme Court, even when their case has nothing to do with constitutional interpretation and/or application. To the contrary in determining whether it has jurisdiction, the court should keenly evaluate the Court of Appeal decision, whether in disposing of the matter, there were elements of constitutional interpretation and/or application.
This does not however mean that citing constitutional provisions in one’s pleadings is not a ground for founding an appeal before this court. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Court stated thus:
“
(69)
The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
This holding clearly shows that where specific constitutional provisions of the Constitution were cited and formed the gist of the matter before the Court of Appeal, the appeal is well anchored in article 163(4)(a) of the Constitution.
43.
Consequently, we will agree with the appellants that in determining whether the court has jurisdiction one way is to look at the original pleadings to determine whether indeed specific constitutional provisions were pleaded. This is however, only conclusive where the matter as originally filed in the superior court has been wholly heard and determined and the same has been appealed to the Court of Appeal and is now subject of the appeal before the Supreme Court. What of where the substantive matter as originally filed is still pending and what is before the Supreme Court is subject of an interlocutory matter? Does the inquest start and end with the original pleadings as originally filed? We do not think so.
44.
We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the Superior Courts below. (See the cases of Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR; Teachers Service Commission v Kenya National Union of Teachers & 3 others [2015] eKLR; and Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2018] eKLR). In the Ananias N Kiragu v Eric Mugambi & 2 others [2020] eKLR we stated thus:
“
8.
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the Superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question, but also on an issue that had been canvassed right through from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court.”
45.
A perfect example of a matter where despite the substantive matter as originally filed was still pending before the superior court but this court assumed jurisdiction on an interlocutory matter was in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR. In that matter, the court discerned and found that the issue it was being called upon to adjudicate (determination of the constitutional validity of section 76(1)(a) of the Elections Act, 2011), though raise as an interlocutory issue, it had a constitutional permutation and had been determined by both the High Court and the Court of Appeal.
46.
With the foregoing analysis and having evaluated the record before us, we dismiss the appellants’ assertion that the court has jurisdiction, and that they have a right of appeal before this court because in their original pleadings, they alleged contraventions of their rights under sections 3, 75, 77, 82 and 85 of the former Constitution. This is because, their substantive suit as filed before the High Court was not fully determined. The same was struck out by Mwera, J (as he then was) in determining a preliminary objection filed by the 1st respondent. Hence, in determining the jurisdiction question in this matter, this preliminary objection is the focal reference point.
47.
Did the preliminary objection as raised in the High Court involve a matter of constitutional interpretation and application? The preliminary objection sought to strike out the suit on the ground that the same was premature as it had been filed in contravention of the mandatory provisions of section 33 and section 34(a) of the Kenya Airports Authority Act. The particular grounds in support of the preliminary objection were that:
i.
the plaintiffs’ suit and proceedings have been filed in contravention of the provisions of section 33, 34(a) of the Kenya Airports Authority Act (cap 395);
ii.
by virtue of those provisions of law, the entire suit plus proceedings were premature, misconceived, incompetent and a nullity; and
iii.
further by reason of the same provisions, the court had no jurisdiction to entertain the suit and so it must be struck out with costs.
48.
Outrightly, at this juncture, it is clear that the preliminary objection as raised invoke no issue of constitutional interpretation. This leads us to the second consideration signaled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others:
“
whether 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”.
49.
A perusal of the ruling reveals the contrary. The submissions of the 1st respondent in support of its preliminary objection centred on the applicability of section 33(1) and 34 of the KAA Act. It never invoked any constitutional provision or issue. On their part, the appellants in opposing the preliminary objection referred to the ruling that had been made earlier by Hayanga, J, in which injunction orders were granted and submitted that the provisions of the KAA Act being cited had been dismissed. On that basis, the appellants urged that the preliminary objection was res judicata. Mwera, J (as he then was), upheld the preliminary objection. He dismissed the res judicata plea holding that the Court of Appeal had in fact stated that it left the issue of section 33 for consideration by the trial court, and found that indeed the suit had been brought in contravention of sections 33, for not being subjected to arbitration; and section 34 for lack of serving a notice to the respondent. Suffices it to say that clearly, at the High Court, the matter had nothing dealing with the Constitution.
50.
Before the Court of Appeal, the learned Judges of Appeal summarized the appellants appeal and framed five (5) issues for determination as follows:
(1)
Whether the preliminary objection was res judicata.
(2)
Whether the learned judge erred in both law and in fact in upholding the application of sections 33 and 34 of the KAA Act.
(3)
Whether the learned judge erred in fact and law in entertaining the preliminary objection made 15 years after the suit was filed.
(4)
Whether the preliminary objection constituted a pure point of law.
(5)
Whether the learned judge erred in failing to appreciate the suit was for enforcement of fundamental rights under section 84 of the Constitution.
51.
Outrightly, save for the fifth (5th) issue for determination, which we will shortly interrogate whether it really warrants invocation of this court’s jurisdiction under article 163(4)(a), all other issues are not constitutional. Did the Court of Appeal apply the Constitution in its determination of the framed issues?
52.
On res judicata, the Court of Appeal, invoking section 7 of the Civil Procedure Act, found that it was not applicable since neither the High Court nor the Court of Appeal pronounced themselves on sections 33(1) and 34. It held:
“
21.
We have considered the ruling of Hayanga, J. and the judgment of this court against the said ruling. We do not agree that Mwera, J. erred in finding and holding that the preliminary objection was not res judicata. An issue can only be considered res judicata when it has been finally determined and is no longer subject to an appeal. If a lower court determines a matter or pronounces itself on an issue and subsequently an appellate court reverses that decision or finding and thereafter the hearing proceeds before the trial court, it cannot be said that the issue that had been raised and determined by the trial court earlier is res judicata.”
In making this finding, there was no indication of application or interpretation of the Constitution.
53.
Turning to the application of sections 33 and 34 of the KAA Act, in striking out the suit, the appellants had urged that the learned Judge erred as he failed to appreciate that the constitutionality of these sections was being challenged in the main suit. Further, that their case was for breach of fundamental rights and as such these sections did not apply. Prima facie, this is a constitutional issue. But does it warrant invocation of this court’s jurisdiction?
54.
We have stated above that it is not the mere allegation or citing of constitutional provisions that places a matter within the four corners of article 163(4)(a) of the Constitution. A party must demonstrate that those provisions were indeed subject of the court’s findings and determination. In this appeal, the appellate court found that it had previously pronounced itself on the constitutionality of the appellants’ claim, and particularly section 33(1) of the KAA Act. That it had twice made a finding that the appellants claim was not for enforcement of fundamental rights as alleged and it was thus functus officio on the issue. Did the Court of Appeal interpret and/or apply the Constitution in making this finding? We do not think so.
55.
It is trite law that a court of law takes judicial notice of its decisions. In holding that it was functus officio on the issue, the Court of Appeal made reference to its previous two decisions in: “Civil Application No NAI 29 of 1997, Kenya Airports Authority v Paul Njogu Mungai, James Kimani & New Jambo Taxis, (being an application for stay of execution of Hayanga, J’s ruling pending appeal), and Civil Appeal No 282 of 2001, Kenya Airports Authority v Paul Njogu Mungai, James Kimani & New Jambo Taxis. Upon that reference the appellate court concluded thus:
“
29.
This court, having pronounced itself on the constitutionality of the appellants’ claim, and particularly section 33(1) of the KAA Act, it is functus officio and cannot revisit it. We must therefore reject the appellants’ contention that the learned judge erred in failing to appreciate that the suit before him was for enforcement of fundamental rights. As was held by this court in Republic v National Environmental Management Authority [2011] eKLR, “It is for the court to undertake a proper scrutiny based on the pleadings before it to determine whether the dispute has a complete constitutional trajectory”.”
56.
We do not find anything constitutional in a court making a finding that on an issue or suit before it, it is functus officio. Be that as it may, the Court of Appeal having made a finding that it has twice determined the issue in separate cases, which cases are not before this court on appeal, the Supreme Court cannot sit on ‘appeal’ on those issues. Consequently, this allegation as framed by the appellants does not invoke this court’s jurisdiction under article 163(4)(a) of the Constitution.
57.
The issue whether there was inordinate delay in the filing of the preliminary objection and as determined by the Court of Appeal, dismissing it, has no constitutional aspect. So is the issue whether the preliminary objection constituted a pure point of law. The Court of Appeal found that there was a pure legal question, whether the appellants had complied with section 33(1) and 34 of the KAA Act or not. A question the Court of Appeal answered in the agreement with the 1st respondent that the same had not been complied with. Hence on all four these issues framed and determined by the Court of Appeal, we find no constitutional issue to cloth this court with jurisdiction.
58.
We now turn to consider the last issue framed by the Court of Appeal: Whether the learned judge erred in failing to appreciate the suit was for enforcement of fundamental rights under section 84 of the Constitution. We warn ourselves for the umpteenth time that it is not the alleging or framing of issues by a party as raising a constitutional matter that clothes this court with jurisdiction.
The court will zealously guard against schemes that may seek to invoke this court’s jurisdiction where none is available through the craft of pleadings drafting.
59.
Be that as it may, on this issue it was urged before the Court of Appeal that the learned judge, in upholding the preliminary objection and thereby striking out the appellants’ suit, disregarded the provisions of article 159(2)(d) of the Constitution that obliges the court to administer justice without undue regard to procedural technicalities. The Court of Appeal disabused this argument citing this Court thus:
“
In Raila Odinga v I.E.BC & others [2013] eKLR, the Supreme Court held that article 159(2)(d) of the Constitution was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.”
Consequently, the appellate court found that the mandatory provisions of sections 33(1) and 34 of the KAA Act ought to be complied with and were not a mere technicality to be disregarded. The appellate court found that parties’ rights were contained in a lease which expressly incorporated the aforesaid provisions of the law and that they had to be complied with.
60.
We reserved this issue for determination last because this is the only issue that in its determination, the Court of Appeal made reference to the Constitution, article 163(4)(a). Is this reference enough to invoke this court’s jurisdiction under article 163(4)(a) of the Constitution? We do not think so. First we have found that the Court of Appeal dismissed the appellants attempt at clothing their suit as one for enforcement of fundamental rights and held that it was pure a contractual dispute. Equally, the Court of Appeal dismissed the appellants’ allegations that the High Court disregarded article 159(2)(d) of the Constitution by resorting to statutory provisions of the KAA Act. Looking at the Court of Appeal Judgment on this issue we do not think that its sentiments on the issue were material enough to reach a finding that the Court of Appeal interpreted and/or applied article 159(2)(d) of the Constitution.
61.
It is not granted that whenever the Court of Appeal mentions a provision of the Constitution in its decision, the matter under consideration automatically invokes this court’s appellate jurisdiction under article 163(4)(a) of the Constitution. In any event, the Constitution is the supreme law of the land and all decisions have to abide and follow it. Hence a mention of the Constitution by the court when making a determination will not always cloth the matter with constitutional issues. In Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others, [2017] eKLR, Petition No. 4 of 2015 we held that the mere reference to the rich generality of the constitutional principle is not a sufficient ground to invoke article 163(4)(a).
62.
At this juncture, it is imperative to reiterate this court’s holding in a recent matter that involved some of the appellants, being Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others [2020] eKLR. In this matter, the court re-stated its jurisprudence on article 163(4)(a) Constitution as follows:
“
(62)
We cannot over-emphasize the specialized nature of article 163(4)(a)’s appellate jurisdiction of this court. That jurisdiction is not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone is not enough for one to invoke and sustain an appeal before this court. A party has to steer his appeal in the direction of constitutional interpretation and application. He/she should directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues. Thus, the following attributes are imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:
(i)
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial Court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
(ii)
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the 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.
(iii)
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
(iv)
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under article 163(4)(a).
(v)
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
63.
It is upon these principles that we have holistically evaluated the jurisdiction question in this matter. We have already demonstrated that of all the issues framed and determined by the Court of Appeal, none involved interpretation or application of the Constitution. While the original suit alleged violation of specific constitutional provisions, that suit was not determined on its merit, the same having been struck out in a ruling on a Preliminary objection, subject of this appeal. Hence those specific sections of the repealed Constitution do not aid the petitioner by clothing this Court with jurisdiction. Turning on the preliminary objection in the High Court, it was on a pure statutory point of law, whether in filing the suit, the appellants contravened sections 33(1) and 34 of the KAA Act. Again, nothing turns on this to cloth this court with jurisdiction. Lastly, the Court of Appeal reference to the Constitution, particularly article 159(2)(d) was so remote that the same cannot warrant assumption of jurisdiction as of right by this court. The same was in reference to a general constitutional principle that frowns upon preference to procedural technicality instead of substantive justice, which in fact was found not to be applicable in the appeal before it.
64.
The upshot of the foregoing is that this appeal fails the jurisdictional test before this court. The appellants have nothing that grants them the right of appeal before this court.
65.
Before the final orders, we would like to state that even on the single question of constitutionality of section 33(1) of the KAA Act, which issue we have found was not determined in this particular matter, this court pronounced itself on its constitutionality in Modern Holdings (EA) Limited v Kenya Ports Authority [2020] eKLR. Called upon to determine the constitutionality of section 62 of the Kenya Ports Authority Act, which has the same import as section 33 of the KAA Act, this court held section 62, together with similar sections in other statutes, as being constitutional and in accordance with article 159(2)(c). The court held:
“
48.
We have no doubt that expeditious and efficient (with the input of experts) disposal of disputes like the one in this case was one of the objectives that informed the enactment of section 62 of the KPA Act and other similar provisions such as section 83(1) of the Kenya Railways Corporation Act; section 33 of the Kenya Airports Authority Act; section 29 of the Kenya Roads Act; and section 32 of Inter-Governmental Relations Act (IGRA).
…
51.
For these reasons, we affirm the Court of Appeal decision that section 62 of the KPA Act is not unconstitutional. It simply provides for ADR mechanism of arbitration reinforced by article 159(2)(c) of the Constitution…”
66.
In light of the foregoing determination, we find that we lack jurisdiction to interrogate the other issues and make the following orders:
(i)
The appellants’ petition dated March 15, 2019 is hereby dismissed.
(ii)
There is no order as to costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/43/eng@2021-07-16 |
Petition of Appeal 22 of 2019 | Mbevo v Mati & 2 others (Petition of Appeal 22 of 2019) [2021] KESC 74 (KLR) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Mbevo v Mati & 2 others | [2021] KESC 74 (KLR) | null | A. Introduction
1.
On 28th September 2020, the appellant filed a Notice of Withdrawal of petition dated 25th September 2020. Subsequently, on 6th October 2020, the Court (Rtd Chief Justice, David K. Maraga) recorded a Withdrawal Order and directed parties to file and serve written submissions on costs.
B. Background
2.
Following the 8th August 2017 General Elections for Member of County Assembly (MCA) Mutonguni Ward, Kitui West Constituency, the 3rd respondent (the returning Officer) declared the appellant (Baridi Felix Mbevo) the duly elected MCA. Dissatisfied with these results, the 1st respondent (Musee Mati) filed before Kitui Chief Magistrates Court, Election Petition No. 1 of 2017. On 31st February 2018, the Chief Magistrates Court (Munguti PM) nullified the election declaration and ordered the 2nd and 3rd respondents to issue a certificate of election to the 1st respondent. The Court further ordered the 2nd and 3rd respondents to bear the appellant’s and the 1st respondent’s quantified costs.
3.
Aggrieved by the said decision, the appellant filed an appeal before the High Court in Petition No 1 of 2018 and in a judgment delivered on 20th June 2018, the Court (Mutende J) overturned the decision of the trial court and made an order for fresh elections. It also ordered the 1st respondent to bear the appellant’s costs before both the Chief Magistrates Court and the High Court.
4.
Being dissatisfied with the High Court judgment, the 1st respondent filed an appeal before the Court of Appeal, Election Petition Appeal No. 28 of 2018. The appellant similarly filed a cross appeal. However, following the Court of Appeal pronouncement in Petition of Appeal No. 32 of 2018 that it lacks jurisdiction to hear appeals on disputes pertaining the election of a Member of County Assembly, the 1st respondent withdrew his appeal. In contrast, the appellant chose to proceed with his cross appeal. In a judgment delivered on 25th May 2019, the Court of Appeal dismissed the appellant’s cross appeal for lack of jurisdiction.
5.
Further aggrieved, the appellant moved this Court challenging the Appellate Court’s finding on jurisdiction. On 28th September 2020, the appellant withdrew the petition and a Withdrawal Order was issued on 6th October 2020. As the parties could not agree on costs, they were directed to file and serve written submissions and thereafter, the Court would give its determination on the question of costs. | C. Issues for Determination
13.
From the foregoing, only one issue arises for determination:
Whether costs are payable in this matter, and if so, to which party.
D. Analysis
14.
The main contention by the appellant is that each party should bear its own costs before this Court for reasons that all the parties were successful upon the withdrawal of the petition. In the alternative, he contends that the 1st respondent was the sole beneficiary of the withdrawal and any costs incurred in the matter was occasioned by the respondents’ demand for costs as a condition for withdrawal. The appellant further invokes a public interest contestation by urging that the issues raised in the withdrawn petition were constitutional in nature affecting the electorates of Mutonguni Ward.
15.
The respondents maintain that they are entitled to costs pursuant to Rule 60(2) of the Supreme Court Rules, 2020. The reasons offered are that, costs follow the event; orders for withdrawal are subject to orders for costs to the respondents; and that they have incurred costs by instructing advocates, attending court and other ancillary expenses. The respondents also oppose the appellant’s contestation on public interest and strongly contend that the petition was filed purely for private gains.
16.
It is trite that we have an inherent jurisdiction to make orders on costs. In the Jasbir Singh Rai Case at paragraph 11, this Court established that costs fall under the inherent powers of the Court. Section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020 are instructive on this issue. Further, the exercise of this jurisdiction is an issue of judicial discretion which must be exercised judicially and in accordance with reason and justice.
17.
Moreover, we have considered and laid down the principle on costs in Jasbir Singh Rai, which findings we reiterate are properly applicable to the present case. There we stated as follows:
“
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.” [Emphasis added]
18.
On discretion, this Court found:
“
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.” [emphasis added]
19.
Having so stated, we note that the costs awarded by the Chief Magistrates Court, the High Court and the Court of Appeal are not challenged by the parties. The Court shall therefore refrain from addressing itself on the same. What is in issue is costs before this Court.
20.
We have perused the record and note that the petition was withdrawn before the respondents could file any responses or submissions on the substantive issues. The appeal, at the time of withdrawal was not ready for hearing. We have further considered the rival submissions by the parties and are convinced that the petition was withdrawn on grounds that it had been overtaken by events. This was after a by-election, ordered by the High Court, had been conducted and concluded with the 1st respondent emerging the winner. The appeal therefore was frustrated necessitating its withdrawal.
21.
Applying the principle in the Jasbir Singh Rai Case that costs normally follow the event, the question to ask is whether an event to which costs would follow has materialized. The answer is in the negative. The appellant’s appeal did not fail but was frustrated. Strictly speaking, there were no winners or losers following the withdrawal. It is the occurrence of the event which crystalizes costs for the successful party. In this matter, that event has not crystalized. That said, the inevitable conclusion is that each party shall bear its costs before this Court.
E. Orders
22.
In the event, and in the exercise of discretion we order as follows;
1.
Each party shall bear its costs of the Appeal.
23.
It is accordingly so ordered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/74/eng@2021-07-16 |
Civil Application 5 of 2020 | MNK alias MNP v POM (Civil Application 5 of 2020) [2021] KESC 46 (KLR) (Civ) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | MNK alias MNP v POM | [2021] KESC 46 (KLR) | null | I. Introduction
(1)
Before the Court is an application dated 4th March, 2020 and filed on 6th March 2020. It is brought under Articles 159(2)(d) and 259 of the Constitution; Sections 15 and 16 of the Supreme Court Act; and Rule 24 of the Supreme Court Rules 2012 (now Rule 33 Supreme Court Rules 2020). The application springs from a suit concerning long cohabitation, presumption of marriage and dealing with property acquired during such cohabitation under Section 17 of the Married Women’s Property Act (1882), (MWPA). The Applicant seeks review of the Court of Appeal decision denying certification of the matter as one of general public importance (GPI). Leave is also sought to appeal to the Supreme Court. The application is supported by the affidavit of the Applicant and it seeks the following orders:
(i).
That this Honourable Court be pleased to review the Court of Appeal decision dated 21st February, 2020 in CACA SUP No. 4 of 2019 at Nairobi and grant the applicant leave to appeal to the Supreme Court against the Honourable Court of Appeal’s Judgment dated 25th January, 2019 and issue a certificate that a matter of General Public Importance is involved in the intended appeal.
(ii).
That the costs of this application be in the intended appeal.
II. Litigation Background
(a) In the High Court
(2)
The Respondent moved the High Court via an Originating Summons under Section 17 of the Married Women’s Property Act (1882). He sought a declaration that the suit property, Plot No. Dagoretti/Riruta/[....], was acquired and developed jointly with the Applicant during their marriage by cohabitation, hence that it was jointly owned. He also sought restraining orders barring the Applicant from disposing of the suit property; and that it be subdivided equally and each share be registered in the respective party’s name or that it be valued and sold and proceeds shared equally.
(3)
It was the Respondent’s case that they met with the Applicant in 1986 and cohabited as a husband and wife up to the year 2011. Each was by then earning a living and that they jointly saved enough and purchased a quarter acre of land, the suit property, being Plot No. Dagoretti/Riruta/[....]. He averred that the seller of the suit property, at the time of their purchase, was not willing to sell it to a person outside her community and they thus agreed to have the property registered in the Applicant’s name, but to include one of the Respondent’s name to cater for his interests. The reason the property title was registered as MNP, so it was urged.
(4)
The Respondent further urged that they invested in the property jointly, built rental houses and that he, the Respondent, retired from employment in 1993 to invest in a bar and a butchery (Particulars Withheld) within the property. That utility bills were registered in the Respondent’s name until 2011 when the Applicant changed the electricity bills to her name but water bills remained registered in the Respondent’s name. Further, that tenancy agreements for the rental houses were drawn in the Respondent’s name and he was the chairman of the sewer line construction committee within the estate in respect of the suit property. That he invested his lifetime earnings in developing the suit property, now a three floor storey building where he resided for two decades. That they agreed to engage an agent to manage the estate due to the Respondent’s age and an agreement was signed between the parties and the agent.
(5)
That subsequently, the Applicant obtained restraining orders against the Respondent. That was in Milimani CMCC 4364 of 2011 in which suit, she also produced a contrary estate agent agreement. The Respondent was evicted and the Applicant started collecting all the rents, of about Kshs.258,000/- per month, rendering the Respondent without any source of income to support himself and his other family. Conflict started when the Respondent requested the Applicant that they allocate one bedroom on a permanent basis to his son from another marriage who was finishing college, as they had allocated one to the Applicant’s son from her earlier marriage. It is on this basis that the Respondent moved the High Court for the orders contained in the Originating Summons.
(6)
Before the High Court, the Applicant denied marriage to the Respondent. She averred that she was at all material times married to one K, with whom they separated in 1987. She agreed to cohabiting with the Respondent for some time, but contended she did not have the capacity to contract a subsequent marriage since she had not divorced K until his death in 2011. She thus urged that with lack of proof of marriage, the Respondent could not be afforded protection under the MWPA. She submitted that the Respondent was her agent who sold water within the premises, having a butchery and a bar. That some utilities bills were therefore registered in his name for the premises he had rented. She urged that she had purchased the suit property by herself and that the name P appearing amongst her names on the property’s title document, referred to her father who was christened as P in the year 1979.
(7)
Upon hearing the parties, the High Court (Musyoka J) ruled that even though the parties had cohabited for a long period with repute of being married, he could not presume marriage. That the Applicant, formerly married to K under customary law, remained married to the said K until his demise in 2011, since they had never divorced. That the Applicant did not have capacity to contract a subsequent marrriage. That the Applicant was living in an adulterous relationship and not a marriage. The name K whose origin could not be explained from the Applicant names, could only be attributed to her former husband. In absence of a marriage, the Court held, the Respondent could not rely on the provisions of MWPA whose reliefs are based on proof of marriage.
(b) In the Court of Appeal
(8)
The Respondent was aggrieved and appealed to the Court of Appeal. The Court of Appeal allowed the appeal holding that the High Court erred in finding that there was long cohabitation but declined to presume marriage because of a ‘K’, whose existence the Court of Appeal found was not proved. The appellate Court presumed existence of a marriage, allowed the appeal, and ordered the suit property to be divided into two halves, a share for each party.
(9)
Aggrieved by that decision, and desirous to appeal to this Supreme Court, the Applicant sought certification and leave before the Court of Appeal. Her application for leave was denied by a majority decision of the Court of Appeal. The majority held that the issues the Applicant intended to be raise before the Supreme Court were not issues before the trial court or on appeal. They held that the matter before the High Court had been a simple one - whether the Applicant and the Respondent had cohabited and whether, during that cohabitation, they had acquired the property in question. To the learned Judges in the majority, these were straight forward matters of a private nature and findings had been made on those issues. There was thus no issue raised meeting the standard set by the Supreme Court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR on what amounts to a matter of general public importance.
(10)
Dissenting, Koome JA, found that the matters raised bore public interest significance. First that when the Respondent filed the suit, he was not claiming to be husband to the Applicant. Consequently, the learned Judge of Appeal opined that it is necessary for the Supreme Court to determine whether it was appropriate to resolve the issue of presumption of marriage under the said regime of law. Further that the legal regime under the MWPA had majorly been available to women, hence this case, where it is a man who was claiming under it, raised pertinent questions that the Supreme Court should settle. These she stated as follows:
“
However this case raises questions which in my humble view are of general public importance; these are, whether, parties who are not in a recognized union of marriage in the first place and where there is even no prayer sought for presumption of marriage can file a case under the MWPA, which was a procedural form of determining uncontested matters between husband and wife. Can a court therefore proceed to determine weighty contested issues of presumption of marriage in the same manner? What comes first a suit for presumption and what consideration should be taken into account in determining ownership of property within marriage?”
Based on these and other questions she posed, the learned Judge of the Court of Appeal dissented from the majority holding that the matter had met the threshold in Hermanus case.
III. Application before the Court
(11)
Before the Supreme Court, the Applicant has anchored her application on the dissenting decision of Koome, JA. The issues raised are: whether parties in an unrecognized marriage where no prayer is sought for presumption of marriage can file a case under Married Women Property Act [MWPA] which provides for husband and wife; whether a suit for presumption of marriage should precede claim under the MWPA; what consideration should be taken into account in determining property ownership in marriage; whether the Court of Appeal made an actual assessment of the parties respective contribution to acquisition and development of the suit property.
(12)
Other issues raised are presumption of marriage where there is no consent; capacity of parties to enter into multiple relationships; and principles of equality of ownership of property, which are stated to be constitutional controversies affecting the unit of family. That these issues touch on the Bill of Rights and principles of equity and equality governing sharing of property in a marriage. That this Court is called upon to address claims by men for courts to know the principles to apply since men and women play different roles in marriage. That these are matters of public interest because of rampant long-term cohabitation trends in Kenya; and these issues transcend the circumstances of this particular case and have a bearing on marriage and the family which are fundamental pillars of social order protected by the Constitution. Further, that there is uncertainty in law relating to whether the Common Law doctrine on presumption of marriage ought to continue being applied under the current constitutional dispensation due to lack of recognition under the current provisions of the Marriage Act No. 4 of 2014. The Applicant urge that the Supreme Court ought to settle the law in line with Section 3 of the Judicature Act.
(13)
The Respondent opposed the application via a Replying Affidavit dated 5th June 2020. He contends that there was no appeal by either party on the High Court finding that there was long cohabitation between the parties. His appeal was limited to the Applicant’s denial of consent and capacity to enter into marriage by cohabitation due to her undissolved marriage to ‘K’. He thus urges that the issues raised in the application as the issues in contention were not issues raised in the Court of Appeal.
(14)
The Respondent deponed that the Marriage Act does not apply retrospectively and that presumption of marriage, based on common law doctrine is not ousted by the Marriage Act. He relied on Section 119 of Evidence Act on presumption of facts. That the application does not raise matters of general public importance and it was properly dismissed by the Court of Appeal. That the matters intended to be placed before the Supreme Court were never placed before the superior courts before and do not transcend the interests of the parties.
IV. Parties Written Submissions
(a) Applicant’s submissions
(15)
In her submissions dated 4th March 2020, the Applicant urges that there was no cohabitation by the time the suit was filed under the MWPA and Section 3 of the Judicature Act. That presumption of marriage was never sought whereas property under MWPA is given to a spouse. That the prayer for presumption of marriage was introduced at the Court of Appeal violating right to fair hearing. Reliance was placed on the principles set by the Supreme Court in the Hermanus case among other decisions of this Court.
(16)
It is submitted that the appeal raises issues of GPI as prayed. The claim is made by a man, revolving around cohabitation and presumption of marriage doctrine. The matter raises substantial points of law as per the minority finding by Koome JA. She submits that cohabitation outside marriage is rampant nowadays and the Supreme Court should take judicial notice of the same. Being not a recognized form of marriage in the Marriage Act 2014, the Supreme Court’s input is needed.
(b) Respondent’s submission
(17)
In his submissions dated 5th June 2020, the Respondent reiterates his averments in the Replying Affidavit. He contends that the issues the Applicant intends to raise in this Court of alleged general public importance do not met the requirement under Article 163(4) of the Constitution. He submits that the issues claimed to be issues of law never arose in the superior courts below as required. It is his contention that there is neither uncertainty in law nor existence of contradictory precedent as alleged. He asserts that the Applicant’s submissions would have been useful if tendered before the superior courts below. Thus, that the application fails to meet the set principles by case law and the same should be dismissed. | V. Analyis and Determination
(18)
The single issue for determination in this matter is whether the Applicant has made a case for review of the Court of Appeal denial of certification, and whether the leave to appeal to the Supreme Court should thus issue upon that review.
(19)
The power of this Court to review a denial of certification by the Court of Appeal is provided for under Article 163(5) of the Constitution and Rule 33(2) of the Supreme Rules 2020 (previously Rule 24 of Supreme Court Rules 2012 (Repealed) under which this application was brought. This jurisdiction is now circumscribed in a replete of decisions by this Court which lay out the guiding principles on the same, notably the Hermanus case.
(20)
We have specifically weighed this application against the guiding principles set in the Hermanus and Town Council Of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR cases, among other principles setting cases on certification. The crux of the issues the Applicant formulated for determination by this Court and arguments thereto are informed by the dissenting opinion of the Court of Appeal. We reiterate that in an application for review of the decision of the Court of Appeal on certification, akin to this one, the decision of the court under review is the majority decision, as that is the decision of the court. This is the decision which an applicant is under a duty to demonstrate how the majority in making it erred, so that the Supreme Court is persuaded to review and set it aside. More premium should therefore be on the majority decision and not the dissenting opinion. In that regard, we note the words of Nyamu, JA in the persuasive Court of Appeal decision in Stanbic Bank Kenya Limited v Kenya Revenue Authority [2009] eKLR, on dissenting opinions thus:
“
The above notwithstanding I do salute the dissent of my learned brother Justice Visram, J.A. I therefore, consider it appropriate to try and explain what I consider to be the position of dissenting judgments should occupy in our jurisprudence. First in my view, dissenting judgments constitute an expression of independence, freedom of thought and intellect and, second, they may lay the basis for future development of the law. Third, they may provide a firm base for future generations not to contain themselves in straight jackets, but to always remember that at the end of the day, that much sought justice might after all not be in the thunder of the majority judgment, but in the silent breeze of the minority judgment! Charles Hughes, a one time U.S. Supreme Court Chief Justice is often quoted as having said:-
“dissenting opinions constitute an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believe the Court to have betrayed.”
(21).
A dissenting judgment should never stir up anger but instead encourage a brotherhood of service to the law and society.”
(22)
Thus, to the judges, dissenting opinions grant them an avenue to freely express their contrary views while maintaining the brotherhood and comity of service to the law. On the other hand, to the litigants and the society at large, dissenting opinions assures them that their views have not been disregarded and may in fact form the basis of future development in that particular area of the law. Having said that, it cannot be that the mere fact that there is a dissenting opinion, outrightly gives a litigant a right of review of the Court of Appeal decision to this Court and that that litigant now converts that dissenting opinion to his/her foundation for the review application before the Supreme Court. A dissenting opinion is not a panacea for a meritorious review application before the Supreme Court.
(23)
Having so said and turning to the merit of the application before us, at the core of the findings of both superior courts was the issue of consent to marriage now framed in line with the Article 45 (2) of the Constitution 2010. That argument is the backbone of all other arguments in the application. From it, it is argued that without consent to marry as required, there was no valid marriage by reputation between the parties, and in absence of a marriage, the MWPA could not apply to the parties. This leads to the contention that the order dividing the property allegedly acquired jointly by the parties during continued cohabitation had no legal basis.
(24)
From the Record, parties led viva voce evidence in proof of their cases, each party calling witnesses. The High Court found that there was long cohabitation but failed to move further to determine other aspects of the case because it could not presume a marriage based on morality, holding the cohabitation to be an adulterous relationship in absence of capacity to marry. The issue before the Court of Appeal was thus whether the High Court was right in failing to presume a marriage having found there was long cohabitation and whether in presence of consent, whether the suit property could be equally shared by the parties. Before this Court, it has been submitted that the Court of Appeal could have re-assessed all aspects of the case including contribution had the Applicant cross appealed. Finding that the Applicant had capacity to marry, the Court of Appeal ordered the suit property to be divided equally.
(25)
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 property acquired during cohabitation or in a marriage which is unrecognized by law is an important one for the general public and this Court cannot shut its eyes to the need to settle the law in that regard. Furthermore, we are of the opinion that we need to give guidance on whether, proceedings can lie under the Married Women’s Property Act, in such a situation.
(26)
In the circumstances, while granting a review of the decision of the Court of Appeal declining certification under Article 163(5) of the Constitution, parties shall file submissions and highlight them on the following issues only:
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? And if so, upon what basis would this be done?
ii)
What relief is available to the present parties?
(27)
The upshot is that considering the principles of this Court on review of certification, we make the following orders;
(a)
The Applicants’ application for review of certification and leave to appeal to the Supreme Court dated 4th March 2020 is hereby allowed but only to the extent that this Court has stated.
(b)
There is no order as to costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/46/eng@2021-07-16 |
Petition 2 of 2018 | Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others (Petition 2 of 2018) [2021] KESC 50 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others | [2021] KESC 50 (KLR) | null | Brief facts
The petitioners filed a petition at the High Court concerning the alleged forceful and illegal eviction of the petitioners, who were inhabitants of City Cotton and Upendo villages, two informal settlements within the Nairobi County. The petitioners’ claim was that they had settled on the suit property in 1968. They further claimed that since settlement, they had constructed semi-permanent houses and business structures; had been supplied with social amenities and services such as water and electricity, and had been legally licensed to carry on and operate businesses on the suit property. They also alleged that their children attended nearby public primary schools.
The High Court found that the demolition of the petitioners’ houses and their forced eviction from the suit property without providing them and their children with alternative land or shelter was a violation of their fundamental rights to inherent human dignity, security of the person and access to adequate housing, a violation of the fundamental rights of children and a violation of the rights of elderly persons. The High Court also awarded the petitioners, damages.
Aggrieved by the decision of the High Court, the respondents filed an appeal at the Court of Appeal. The appeal at the Court of Appeal was partly allowed and the court issued a declaration that the forced evictions and demolition of the petitioners’ houses without a valid court order was a violation of their right to inherent human dignity and security of the person. The Court of Appeal found that there was no evidence placed before the High Court to enable it assess damages and that whereas it was the duty of the State to take measures, (legislative, policy and other measures) to achieve the progressive realization of the rights guaranteed under article 43 of the Constitution of Kenya, 2010 (the Constitution), it was not under a positive obligation to provide the evictees with housing. Further aggrieved, the petitioners filed the instant appeal. | D. Analysis and Determination
44.
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;
a.
Whether the forced evictions violated the petitioners’ rights under articles 28, 29, 43, 53 and 57 of the Constitution;
b.
Whether the court of Appeal misinterpreted and misapplied the provisions of article 21 of the Constitution on the doctrine of progressive realization of rights; and
c.
Whether the court of Appeal erred in interpreting article 23 of the Constitution specifically on the available remedies once a court has determined that there were violations of rights.
45.
We shall determine each issue separately as here below;
a. Whether the forced evictions violated the petitioners’ rights under articles 28, 29, 43, 53 and 57 of the Constitution
46.
With regard to the claims instituted by the petitioner against the respondents, and particularly on the violation of their rights as pronounced under articles 28, 29, 43, 53 and 57 of the Constitution, the constitutional rights they allege to have been violated are founded on the right to property ownership and entitlement, which is provided for under article 40(1)(a) & (b) of the Constitution, and which reads;
“Subject to article 65, every person has the right, either individually or in association with others, to acquire and own property –
a.
of any description; and
b.
in any part of Kenya”.
47.
In ensuring that the right to property ownership is not violated, it is provided at article 40(2)(a) that;
“Parliament shall not enact a law that permits the State or any person –
b.
to arbitrarily deprive a person of property of any description, or of any interest in, or right over, any property of any description; or
c.
to limit, or in any way restrict the enjoyment of any right under this article, on the basis of any of the grounds specified or contemplated under article 27(4)”.
48.
These constitutional rights as guaranteed under the cited provisions are only in relation to property that has been legally acquired, and does not extend to property that has been unlawfully acquired. In that regard, article 40(6) of the Constitution is instructive and provides that;
“The rights under this article do not extend to any property that has been found to have been unlawfully acquired”. [Emphasis added].
49.
The petitioners’ claim in the above context was that the 1st respondent had entered into and forcefully evicted them from the suit property which they had resided in since the 1960s, thereby depriving them of their right to own property under article 40(1), as well as a violation of their social and economic rights under article 43. They decried that after they were evicted from the suit property, the 1st respondent was then issued with a letter of allotment to the property by the 3rd respondent.
50.
Whether the 1st respondent was issued with a letter of allotment is one issue; what was more important from the outset however was the determination of the question whether the letter of allotment was issued lawfully or legally. That question was not an issue that was conclusively determined at the High court or the court of Appeal. We note in that regard that the petitioners had sought a declaration that the acquisition of the suit property was illegal and unlawful. The learned Judge of the High court in her rendition on the issue held, inter alia;
“I am, however, not in a position to issue orders in relation to the legality or otherwise of the 1st respondent’s title. The determination of that issue is, I believe, best left to the National Land Commission or a court of law seized of that particular matter which can call for the relevant evidence and examine all such documents pertaining to the allocation of the land to the 1st respondent as it deems necessary for it to establish the validity or otherwise of the title.” [Emphasis added, Para 86]
51.
The learned Judge had thus, on her part, correctly held that the issue would be better determined by the National Land Commission as provided under section 152C of the Land Act, and which provision further allows for the procedure to be followed in the event of an eviction(s). At the said section 152C of the Act, it is provided that;
“The National Land Commission shall cause a decision relating to an eviction from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction”.
It should be noted, however, that the procedures enacted in the amendments to the Land Act, through the Land Laws (Amendments) Act No 28 of 2016, amended the provisions of the Land Act to include the powers of the National Land Commission in land eviction matters, and were only enacted in September, 2016, when the instant matter had already been instituted and determined by the High court. On our part, we note that the learned Judge also correctly held that the relevant court seized of jurisdiction over land matters – the Environment and the Land court – should have determined that question. We see no reason to say more on that issue as it is moot.
52.
Having so stated and since the title held by the 1st respondent remains unimpeached, what ought to be determined is the question whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health under article 43, read with articles 28, 29, 53 and 57 of the Constitution.
53.
In that regard, it is an undeniable fact that forced evictions generally constitute a violation of fundamental rights and freedoms and an abuse of inherent human rights and dignity under article 43 of the Constitution, including, but not limited to, the right to the highest attainable standards of health and healthcare services, accessible and adequate housing, freedom from hunger and to adequate food, clean and safe water, social security and education. The onus of ensuring that these rights and freedoms are attained and provided for falls squarely under the ambit of the State; and that it is the obligation of the State to ensure that these rights and freedoms are not limited without reasonable justification in an open and democratic society based on human dignity, equality and freedom as provided for under article 24(1) of the Constitution.
54.
Further, in ensuring that these social and economic rights are protected, the State has to strike a delicate balance between the rights of those that are most vulnerable in the society and those that are in economic advantage. The State thus has to ensure that in the protection of the rights of an individual or group of persons, it does not inadvertently abuse the rights of other individuals or other groups of persons. Such is the position that this court finds itself in the instant Petition; we are tasked with the making of a determination on the rights of the petitioners against those of the 1st respondent; to determine whether the State took an active positive role in ensuring that the fundamental rights and freedoms of all the parties concerned in this instant matter were protected and that in so doing, there was no abuse of the rights of the parties and thus, that the State’s negative obligation not to abuse or violate these rights and fundamental freedoms was carried out.
55.
In the above context, like the High Court, we are certain that the following facts are uncontested:
i.
The petitioners were forcefully evicted from the suit property by the 1st respondent with the assistance of police officers from Langata Police Station and alongside M/s Kindest Auctioneers.
ii.
While the eviction was purportedly carried out using distress for rent orders issued in Milimani Chief Magistrate’s court Misc. Application No.303 of 2013 directed at the 4th petitioner and one, Milcah Wanjiru, the 1st respondent denied knowledge of such orders and in any event, distress for rent orders are not akin to eviction orders. In effect, the eviction was carried out without a lawful court order.
iii.
Whereas the 1st respondent indicated in evidence that it had made prior attempts to remove the petitioners from the suit property, no evidence was tabled to show that prior to the eviction in issue, any notice or adequate notice was given to the petitioners.
iv.
Whereas the ten (10) named petitioners in their Petition before the High court clearly indicated that they were suing on behalf of 326 other adult persons plus 90 children and their names and other details annexed to the affidavit in support of the Petition, no serious contestation was made of that fact and the issue hardly attracted the attention of both courts below, the same must be said of the list of elderly persons similarly annexed.
56.
With the above facts in mind and noting our findings above, like the High Court, we are of the firm view that the eviction of the petitioners was violent and did not accord with the expected constitutional obligation of the State to ensure that those in informal settlements are treated with the dignity that is conferred on article 28 of the Constitution. Granted, the petitioners were evicted when the 1st respondent had already acquired certain private rights over the suit property but they entered the land well aware of the presence of the petitioners who occupied the land when it was still public land. Even without prescriptive rights, we stated in Mitubell Welfare Society v Kenya Airports Authority, SC Petition No 3 of 2018 (Mitubell) only recently, that “where the landless occupy public land and establish houses thereon, they acquire not title to the land, but a protectable right to housing over the same”. In the present case, the participation of State agents in violent evictions only points to the fact that the 1st respondent ultimately acquired favoured status outside the law in acquiring ultimate and total control of the suit property at the cost of violation of the rights of the petitioners including the elderly and children.
57.
In Satrose Ayuma (supra), the High court laid out certain principles that an evicting party must comply with. The court, in doing so, applied international principles of law later clarified by this court in Mitubell and which were crystallised as law in section 152(A) – (H) of the Land Act. We reiterate that these principles were applicable to the eviction of the petitioners as a matter of obligation by the State under international law as provided for in articles 2(5) and 2(6) of the Constitution.
58.
The principles include the duty to give notice in writing; to carry out the eviction in a manner that respects the dignity, right to life and security of those affected; to protect the rights of women, the elderly, children and persons with disabilities and the duty to give the affected persons the first priority to demolish and salvage their property. These principles flow from UN Guidelines on Evictions: General Comment No 7 which in Mitubell, we stated, are “intended to breathe life into the Right to Dignity and Right to Housing under the ICCPR and ICESCR respectively”.
59.
It is our finding in that context that the learned Judge was correct in finding that “it is redundant to ask whether the eviction of the petitioners resulted in a violation of their rights under the Constitution. Even the ordinary man in the street, confronted with the facts before [her], would answer the question in the affirmative”. We so affirm.
b. Whether the court of Appeal misinterpreted and misapplied the provisions of article 21 of the Constitution on the doctrine of progressive realization of rights.
60.
The 2nd – 4th respondents have intimated that the rights of the petitioners, applied generally, are rights that fall under the ambit of the progressive realization principle under article 21(2) of the Constitution which provides that;
“The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43”. [Emphasis added]
61.
In General Comment No 3 of the CESCR, the term progressive realization is defined thus;
The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources. [Emphasis ours]
62.
The Court of Appeal, whose Judgment embodied the generalities of the doctrine of progressive realization as pronounced in General Comment No 4 of the CESCR, correctly held that it was the responsibility of the State to ensure that the rights guaranteed in article 43 of the Constitution are realized progressively. The obligation to ensure the rights of petitioners under article 43 thus fell on the State, and that the State is imbued with the duty to ensure that these rights were realized, in consideration of prevailing circumstances such as the availability of resources, or the implementation of policy and structural programs to ensure that the rights are realized.
63.
This court has previously addressed its mind to the principle of progressive realization of rights when in Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate SC Advisory Opinion No.2 of 2012; [2012] eKLR, and in making a distinction between progressive and immediately realizable rights, we emphasized on the context in which the rights are pronounced within the Constitution. We stated thus, inter alia;
“This leads us to the inference that whether a right is to be realized “progressively” or “immediately” is not a self-evident question: it depends on factors such as the language used in the normative safeguard, or in the expression of principle; …it depends on the nature of the right in question …” [Para 59]
64.
From the foregoing, it is manifestly evident in the present context that the mandate to ensure the realization and protection of social and economic rights does not extend to the 1st respondent, a private entity. Even though the 1st respondent has a negative obligation to ensure that it does not violate the rights of the petitioners, it is not under any obligation to ensure that those rights are realized, either progressively or immediately. The court of Appeal thus correctly held that the progressive realization of article 43 rights was the mandate of the State, and that obligation does not extend horizontally to private entities. We hasten to add however, that private entities have the obligation, under article 20(1) not to violate article 43 rights as non-violation of all rights in the Bill of Rights applies both horizontally and vertically and binds both the State and all persons. We so find.
d. Whether the court of Appeal erred in interpreting article 23 of the Constitution specifically on the available remedies once a court has determined that there were violations of rights.
65.
The petitioners argued that the Court of Appeal erred in reversing the judgment of the High Court in which they had been awarded damages in addition to the declarations that had been issued. They contend that the award of damages in constitutional issues was correctly made by the High Court, relying on the provisions of article 23 of the Constitution. In arriving at its determination on the question of damages, the learned Judge of the High Court rendered herself as follows:
“The petitioners have also sought general and exemplary damages for violations of their fundamental rights. In light of my findings above, I believe that they are entitled to damages for the said violations. An award of damages will not make up entirely for the violation of the petitioners’ rights, nor for the disruption of their lives and the affront to their dignity that the acts of the respondents occasioned. However, it will hopefully serve as a reminder to the 1st respondent that it is not so privileged as to have an unfettered right to violate the rights of the poor.
With regard to the State, it is important for its officers to remember that its cardinal duty and the duty of all its officers is to safeguard the rights of all, without discrimination, but particularly so, the rights of the vulnerable in society, the poor, children, the elderly and persons with disability. Its officers should never be used to carry out the unlawful acts of any citizen, however powerful.
The 1st respondent is the author of the unlawful acts that led to the violation of the petitioners’ rights. The State, through the National Police Service, chose to aid the 1st respondent against the interests of the petitioners, poor marginalized residents of the two informal settlements. In the circumstances, I believe that they should bear liability for the violation of the petitioners’ rights.” [Paras 88-90]
66.
The Court of Appeal, on its part, overturned this decision holding that there wasn’t sufficient evidence that was presented before the court to enable it evaluate the damages that would adequately compensate the petitioners. The court went on to hold that;
“Whereas the High court, whilst granting relief, was exercising its constitutional jurisdiction to uphold or vindicate a constitutional right that it found had been contravened, in awarding compensation for the specific damage that the evictees claimed they had suffered, the court should have inquired into the nature of such loss. If necessary, the evictees should have been granted an opportunity to prove the damage and for the appellant and the State to test the evictees claims.” [Para 68, emphasis added]
67.
The Court of Appeal rationalized the disturbing of the award of damages by the High court as follows;
“There was clearly no evidence before the Judge to assist the court in assessing the amount of appropriate compensation. We hold that, in the circumstances of this case, it was incumbent upon the evictees to place material before the court on the basis of which the court would undertake an enquiry to ascertain the extent of loss so as to arrive at a reasonable amount.” [Para 72]
68.
The justification by the Court of Appeal for disturbing the award was therefore, that the petitioners did not present to the trial court sufficient evidence of the loss incurred and suffered for the court to make a fair assessment and determination on the quantum of damages to award. The court relied on the decision in Butt, where the court had held that an appellate Court could disturb an award of damages if it was established that a trial Judge proceeded on a wrong principle, or misapprehended the evidence in some material manner to arrive at a figure which was inordinately low or high.
69.
Although the Court of Appeal concedes that it was within the mandate of the trial court to make an order for the award of damages for constitutional violations against the petitioners by the respondents, it did not however, show how the award, as issued, went against the provisions of article 23(3) of the Constitution. In Butt, decision which formed the basis for their decision to disturb the award of damages, the rationale that was enunciated therein was that it had to be shown or established that the Judge proceeded on the wrong principle or misapprehension of the evidence to arrive at a disproportionate award.
70.
In our considered view, there was sufficient evidence that was presented before the trial court which enabled it to arrive at the decision that it did. With regard to the 1st respondent, they admittedly stated that they had participated in, and engaged with the 2nd respondent in the unlawful and illegal demolition of property belonging to and eviction of the petitioners from the suit property. The evidence presented before the trial court was that the demolition and evictions were carried out without lawful court orders, that the evictions and demolition were carried out in a manner that violated the petitioners’ right to human dignity and security, and that there was a violation of their rights to exercise and enjoy social and economic rights pronounced under article 43, as read together with articles 53 and 57 of the Constitution.
71.
The Court of Appeal in disturbing the award of damages issued by the trial court did not also show how the court abused its discretionary powers to award damages, or that the court exercised its discretion whimsically or capriciously. In Gitobu Imanyara, the court of Appeal had earlier held that;
“In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
In the same matter, the appellate court also held that an appellate court should not disturb an award of damages on the mere notion that if it had tried the matter in the first instance, it would have awarded differently. The question therefore should not have been what it would have awarded, but rather whether the trial court had proceeded on the wrong principle. (See generally Loice Wanjiku Kagunda v Julius Gachau Mwangi Civil Appeal No 142 of 2003).
72.
Furthermore, in Kemfro Africa Kneller JA held that;
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” [Emphasis added]
73.
We agree with the learned Judge and would add that, what the court of Appeal failed to consider, in our opinion, was that the questions and issues that a court has to consider in order to make an award of damages with regards to constitutional violation is manifestly different to what the court would consider in say, tortious or civil liability claim. In the latter, the issues are clear cut and quantification of the appropriate award is in most instances, straight forward. The same, however, is not true of constitutional violation matters, such as the instant one. Quantification of damages in such matters does not present an explicit consideration of the issues; other issues such as public policy considerations also come into play. A court obligated and mandated in evaluating the appropriate awards for compensation in constitutional violations does not have an easy task; there is no adequate damage standard that has been developed in our jurisprudence that recognizes that an award for damages in constitutional violations is quite separate and distinct from other injuries. In this regard, the court of Appeal was unclear of what other material that the petitioners needed to present before the trial court to establish that there was a violation of their constitutional rights by the respondents, and that the court therefore abused its discretionary powers in issuing the award of damages. In the event and following our reasoning in Martin Wanderi & 106 Others v Engineers Registration Board & 10 others, SC Petition No 19 of 2015 [2018] eKLR we must overturn the appellate court’s decision on this issue.
d. A brief commentary on the state of affairs with regard to realization of article 43 rights
74.
Before we render our final determination in the instant matter, we must revisit the pronouncement made by Mutunga, CJ (as he then was) in Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate SC Advisory Opinion No 2 of 2012; [2012] eKLR where he stated that;
“It is true the Constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the Constitution. We owe that interpretative framework of its interpretation to the Constitution itself.”
[Para 9.2, dissenting opinion, emphasis added]
75.
We completely agree and it is indeed a sad state of affairs that ten (10) years into the promulgation of the Constitution in 2010, the State still seeks to rid itself of its mandate and obligations by hiding behind the perceived inconsistencies sometimes presented in the Constitution, and in the present context, the provisions of article 21(2) of the Constitution, and to abdicate its role in ensuring that article 43 rights are realized. article 21(2) does not protect the State from realizing these rights, but rather seeks to ensure that even though these rights are not immediately achieved, there is at least some modicum of effort by the State to realize those rights. There should be continued concerted efforts by the State in the progressive realization of these rights and therefore, the State should take deliberate steps, both immediately and in the future, towards the full realization of the rights.
76.
Policy and legislative formulation and lack of adequate resources have been the reasons given by the State in the realization of article 43 rights. It is evidenced as such; in October 2009, the Ministry of Lands formulated the Eviction and Resettlement Guidelines, which provided that forced evictions were not only illegal and unjust, but also counterproductive to economic growth and development. The guidelines also provided for insights and procedures on how to deal with the issue of evictions and resettlement by the State, noting that the State was under an obligation to provide alternative resettlement to those that had been evicted.
77.
Further on in 2012, a Bill was presented in the National Assembly titled the Evictions and Resettlement Procedures Bill No 44 of 2012. The Bill has never gone past the 1st Reading – on September 12, 2012. The Senate also introduced the Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill No 27 of 2018. The Bill proposes that each County should have an integrated development plan and to establish mechanisms to monitor and promote adherence to article 43 of the Constitution. It has not gone past the 1st Reading – on September 25, 2018. These may be just some of the few, if not only, legislative and policy structures that the State has sought to come up with in the past few years.
78.
The above notwithstanding, few amendments have been made to land laws, and in particular the Land Act, through the Land Laws (Amendments) Act No 28 of 2016, which amended sections 152 of the Land Act, to include provisions for the procedures of eviction of illegal settlers in both public and private land. Those amendments were made following the decision of the High court in Satrose Ayuma and indeed the language of the amendments to section 152(A)-(G) is borrowed directly from that decision. Although the State may therefore seem to be at the forefront in the realization of article 43 rights, more is yet to be done, especially in the realization aspect. As for the enforcement of these rights, nothing much can be achieved if the legislative and policy processes are still at the nascent stage.
79.
These acts by the State may be regarded and considered by some, as acts of regression, which end up depriving the people of the rights that they should be enjoying. They are a contradiction to the progressive realization principle and constitute a violation of those rights. These acts, unless they are limitations to the realization of those rights which are justifiable and reasonable in accordance with article 24(1) of the Constitution, are counter-intuitive to the realization of social economic rights under article 43 of the Constitution. The State has to take a more drastic and purposive approach to its mandate and obligations in ensuring that the rights to the people of Kenya are not violated, or in the very least, that these rights are not deprived or denied. We say no more.
E. Determination
80.
In consideration of the foregoing, it is our considered view that there was a violation of the petitioners’ rights by the respondents in the manner expressed above and issue orders are follows;
i.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 1st and 2nd respondents without a valid court order is a violation of their fundamental right to inherent human dignity and security of the person guaranteed under articles 28 and 29(c) of the Constitution;
ii.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2nd and 3rd respondents is a violation of their fundamental right to inherent human dignity, security of the person, and to accessible and adequate housing guaranteed under article 43 of the Constitution;
iii.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2nd and 3rd respondent is a violation of the fundamental rights of children guaranteed under article 53 of the Constitution; and
iv.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2nd and 3rd respondent is a violation of the fundamental rights of elderly persons guaranteed under article 57 of the Constitution.
81.
We furthermore affirm the orders issued by Mumbi Ngugi, J (as she then was) at the High court on the award of damages, and set aside the Judgment of the court of Appeal in that regard. For the avoidance of doubt, we order that;
v.
The 1st respondent shall pay a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs 150,000) to each of the petitioners;
vi.
The State shall pay a sum of Kenya shillings One Hundred Thousand (Kshs 100,0000) to each of the petitioners;
vii
The petitioners shall also have costs thereof.
82.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/50/eng@2021-07-16 |
Petition 37 of 2019 | Pati Limited v Funzi Island Development Limited & 4 others (Petition 37 of 2019) [2021] KESC 29 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Pati Limited v Funzi Island Development Limited & 4 others | [2021] KESC 29 (KLR) | null | Brief facts
A dispute arose when the Commissioner of Lands, for and on behalf of the County Council of Kwale allocated land to the appellant while the 1st to 3rd respondents contended that it was forest and public land. At the High Court the 1st to 3rd respondents sought orders of certiorari to set aside the land allocation and orders of prohibition to prevent the appellant from engaging in dealings with the land. The 4th and 5th respondents argued that the land was trust land and the legal procedures relating to its allotment under the Trust Land Act had been complied with.
An issue was raised as to whether the 1st to 3rd respondents had locus standi. On the issue of locus standi the court held that it was the minister in charge of forests that could challenge the allocation. The High Court dismissed the application. It stated that the 1st to 3rd respondents did not prove that the land was forest land. The decision of the High Court on the issue of locus standi, on whether the land was trust land or forest land, and on whether the legal requirements for allotment of the land had been complied with, was challenged by the 1st to 3rd respondents at the Court of Appeal. The appeal at the Court of Appeal was allowed and an order quashing the allocation of the suit land to the appellant was granted. Aggrieved, the appellant appealed to the Supreme Court. | D. Analysis
42.
The central issue for determination in the petition before court is the legal status of the suit land. The appellant argues that the suit land is not a forest reserve, as Proclamation No. 44 of 1932 relied on by the 1st to 3rd respondents to contend that the suit land was a mangrove forest, ceased to have effect after the Forests Act (cap 385, Laws of Kenya) came into effect and omitted the content of the Proclamation.
43.
The 4th and 5th respondents argue that no conclusive evidence had been placed on record to show that the suit land was part of a mangrove forest reserve. It is urged that the same is Trust land within the meaning of sections 114(1) and 115(1) of the retired Constitution as read with section 2 of the Trust Land Act, cap 288 of the Laws of Kenya (repealed). They add that the suit land was vested in the Council by virtue of section 115(1) of the retired Constitution and that the Council had jurisdiction to set aside and alienate it.
44.
The 1st to 3rd respondents on the other hand, urge that the suit land was at all times a mangrove forest and not trust land. They rely on the provisions of the Forest Ordinance cap 176, Proclamation No 44/32 and Kenya Independence Order-in-Council Legal Notice No 174 of 1964, to urge that the suit land was declared a mangrove forest protected under the Forest Act. The respondents further rely on the sworn affidavit of Charles Kariuki, the Forests Officer at Buda Forest Station at Msambweni, to urge that the suit land is a protected forest area, declared in Legal Notice No 174 of 1963 and Proclamation No 44 of 32. It is added that the Proclamation was made under the Forests Ordinance cap 176 (1948) which has not been repealed to date.
45.
In the alternative, the respondents urge that, even if the court was to find that the suit land was indeed trust land, which the council had authority to alienate, the alienation was irregular. It is contended that contrary to section 7 of the Trust Land Act, cap 288, Laws of Kenya (repealed), the suit land was not surveyed and no Notice of the date for applications for compensation was given. It is also the respondent’s argument that the Letter of Allotment refers to the un-surveyed land as comprising approximately 0.7 of a hectares, while the land eventually allocated was 3.126 hectares, which is ultra vires the provisions of section 7(2)(a) and (3) of the Trust Land Act. It is also contended that since Gazette Notice No. 3831 of 1994 did not specify the date for submission of applications for compensation, none were consequently made. A further ground relied on to support the assertion that the land was irregularly allotted, is that only land registered under the Registered Land Act cap 300, Laws of Kenya (repealed), would, by dint of section 2(d) thereof, be available for setting aside by virtue of sections 117 and 118 of the former Constitution. The respondents urge that the Grant in this case was issued under the Registration of Titles Act (repealed), which has no similar provision. It is urged that contrary to the provisions of Gazette Notice No 3831 of 1994, and the conditions on Grant No 106, the suit land has not been put to use for the purpose for which it was allocated, that is, as a boat landing base, but instead, the appellant has constructed a five-star hotel on it for individual commercial gain.
(a) Forest or Trustland?
46.
For us to determine the legal status of the suit land herein, we have to revisit the laws relied upon by the parties in support of their divergent submissions.
47.
The Forests Ordinance cap 176 was enacted to amend and consolidate the law relating to Forests in Kenya. Section 4 of the Ordinance provided that;
“
The Governor-in-Council may from time to time, by proclamation in the gazette, declare any unalienated and unreserved Crown Land and, subject to the provisions of the Natives Lands Trust Ordinance, any area in any native land to be forest area and may in like manner declare that any forest area or any part thereof shall cease to be a forest area."
Further, section 5 provided that:
“
The Governor-in-Council may from time to time, by proclamation in the gazette, declare any forest area or any part thereof to be a demarcated forest."
48.
By Proclamation No 44 of 1932, mangrove swamp forest reserves were declared as follows;
“
‘All land between high water and low water marks (ordinary spring tides) in the localities as described below, viz on the mainland and islands adjacent to the coast from Chale Point in the North, to the boundary of the Trust Territory of Tanganyika in the South.
Provided that any areas that lie within the foregoing boundaries which may have been, or may be, declared private property under Crown, are excluded from the forest reserves."
49.
Subsequently, Legal Notice No 174 of 1964 was issued by the then Minister for Natural Resources, in consultation with the then National Forest Authority, declaring all central forests situated in various districts in Kenya. It is worth noting that the Legal Notice makes pointed references to various Proclamations made between 1932 to 1960s, declaring various pieces of land central forest areas in Kenya.
50.
In this legal notice, Mangrove swamp forests in Mombasa, Kwale, Lamu and Kilifi Districts were declared as comprising;
“
Those pieces of land approximately 111.366 acres, situated between the high and low water marks on the coast of Kenya, which were declared to be forest areas by Proclamation No 44 of 1932."
51.
The Forest Act cap 385 was enacted in 1942 and revised last in 2012. It was an Act of Parliament to provide for the establishment, control and regularization of central forests, forests and forest areas in the Nairobi area and on unalienated Government land. Section 4 of the Act provided that;
“
The Minister may from time to time, by notice in the gazette declare any unalienated Government land to be a forest area; declare the boundaries of a forest and from time to time alter those boundaries and declare that the boundaries shall cease to be a forest area……"
52.
In its subsidiary legislation, the Act provides that, ‘all proclamations under section 4 are omitted, by virtue of section 5 of the Revision of the Laws Act section 5 of the Revision of the Laws Act cap 1 provides as follows;
‘There may be omitted from Laws of Kenya–
a.
Annual appropriation Act
b.
Specific loan or specific loan guarantees Acts
c.
Any act which, in the opinion of the Attorney-General, is-
i.
of temporary effect; or
ii.
of local or limited application; or
iii.
of application only to a time past
d.
Any Constitution of Kenya (Amendment) Act or provisions in such Act which does not become incorporated in the Constitution;
e.
Any Act which in the opinion of the Attorney General ought to be temporarily omitted by reason of-
i.
proposed substantial amendment to the Act or subsidiary legislation made thereof; or
ii.
the proposed making of a substantial quantity of new subsidiary legislation thereunder;
iii.
the Act in question not yet being in force at the time of a given revision
53.
The Forest Act cap 385, Laws of Kenya was repealed by the Forest Act No 7 of 2005 while the latter was repealed by the Forest Conservation and Management Act No 34 of 2016.
54.
The appellant relies on the provisions of the Forest Act, cap 385 as read with its Subsidiary Legislation and section 5 of the Revision of Laws Act, set out above, to urge that Proclamation No 44 of 1932 ceased to have effect after the enactment of the Forest Act cap 385, as the latter omitted the content of the Proclamation. However, it should be noted that Proclamation No 44 of 1932 was not made under the Forest Act cap 385. The Proclamation was made under the Provisions of the Forests Ordinance Cap 176, which is not one of the laws repealed by the Forest Act cap 385, the Forest Act No 7 of 2005 or the Forest Conservation and Management Act No 34 of 2016. Of significance, is the fact that the Minister, never degazetted the suit land as a mangrove forest. A clear reading of section 5 of the Revision of Laws Act, leaves no doubt that Proclamation No 44 of 1932 could not have formed part of the contents of that which was omitted by section 4 of the Forests Act, cap 385 of the Laws of Kenya.
55.
Besides, the Forests Act No 7 of 2005 at section 65 and the Forest Conservation and Management Act No 34 of 2016 at section 77, provide (d) that, notwithstanding the repeal of the preceding Act, ‘any land which, immediately before the commencement of the subsequent Act was a forest or nature reserve under that Act, shall be deemed to be a state or local authority forest or nature reserve, as the case may be, under the succeeding Act.’ Section 77 of the Forest Conservation and Management Act specifically sets out that all gazetted or land registered as a forest reserve in its Third Schedule or under any other relevant law shall be deemed to be a public forest under the Act. The Third Schedule identifies mangrove swamp forests as land declared under Notice No 44 of 1932. Although the word ‘Proclamation’ is not used, we have no doubt that the ‘Notice’ referred to, can only be “Proclamation No 44 of 1932”. The conclusion to which we must therefore arrive, is that the legal status of mangrove forests as declared in Proclamation No. 44 was saved by the Third Schedule of the Forest Conservation and Management Act.
56.
Having so found, the next issue that we must determine is whether, the suit land falls within the frontiers identified in Proclamation No 44 of 1932. The Proclamation describes a mangrove forest as;
“
All land between high water and low water marks (ordinary spring tides) in the localities as described below, viz …..on the mainland and islands adjacent to the coast from Chale Point in the North, to the boundary of the Trust Territory of Tanganyika in the South."
57.
The 1st to 3rd respondents urge that the suit land is between the high and low watermarks and is therefore, a mangrove forest. The appellant disputes this assertion. However, at paragraph 13 of the affidavit sworn by its Managing Director, Alessandro Torriani on January 13, 1995, a concession is made of the fact that ‘the suit land floods and becomes completely submerged only at very high tides about twice a year.’
58.
The status of the suit land is first and foremost a matter of law and as declared in Proclamation No 44 of 1932, and subsequently in Legal Notice No 174 of 1964, the said land is situated between the high and low water-mark on the Coast of Kenya. The inescapable conclusion is that the suit land falls within the frontiers of what constitutes a mangrove forest as per the Proclamation. The same could therefore, not have been available for allocation within the meaning of the retired Constitution or the Trust land Act. This was a mangrove forest which has never ceased to be such, not because (as submitted by the first respondent, and wrongly so in our view) the Ordinance under which the Proclamation creating it is still part of the Law of Kenya, but because its status as a forest was saved by the 20 of 2016 Forest Conservation and Management Act.
(b) Was the Suit Land, Trust Land? And if so, was it legally set apart?
59.
Assuming for purposes of argument that the land in question was Trust land, we have to determine whether the same was regularly set apart, in accordance with the applicable law at the time.
Section 114(1) of the retired Constitution defined Trust land to include:
(a)
land which is in the Special Areas (meaning the areas of land the boundaries of which were specified in the First Schedule to the Trust Land Actas in force on May 31, 1963,) and which on May 31, 1963 vested in the Trust Land Board by virtue of any law or registered in the name of Trust land board;
(b)
the areas of land that were known before 1st June, 1963 as Special Reserves, Temporary Special Reserves, Special Leasehold Areas and Special Settlement Areas and the boundaries of which were described respectively in the Fourth, Fifth, Sixth and Seventh Schedules to the Crown Lands Ordinance as in force on May 31, 1963, the areas of land that were on May 31, 1963 communal reserves by virtue of a declaration under section 58 of that Ordinance, the areas of land referred to in section 59 of that Ordinance as in force on May 31, 1963 and the areas of land in respect of which a permit to occupy was in force on May 31, 1963 under section 62 of that Ordinance; and
(c)
land situated outside the Nairobi Area (as it was on December 12, 1964) the freehold title to which is registered in the name of a county council or the freehold title to which is vested in a county council by virtue of an escheat:
Provided that Trust land does not include any estates, interests or rights in or over land situated in the Nairobi Area (as it was on December 12, 1964) that on 31st May, 1963 were registered in the name of the Trust Land Board under the former Land Registration (Special Areas) Ordinance.
60.
By virtue of section 115 of the retired Constitution, all Trust land within the jurisdiction of any County Council, is vested in the Council for the benefit of the persons ordinarily resident on that land. However, this Section excludes any body of water that immediately before December 12, 1964 was vested in any person or authority, or any mineral oils.
61.
According to section 116 of the retired Constitution, ‘A County Council could, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this subsection applies shall apply to an area of Trust land vested in that County Council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the County Council, it shall cease to be Trust land. The laws to which this proviso applied were; the Land Consolidation Actand the Land Adjudication Act, and any other law permitting the registration of individual titles to estates, interests or rights in or over land that, immediately before registration, was Trust land (except so far as the law permitted the registration of estates, interests or rights vested in persons or authorities for whose use and occupation the land had been set apart.
62.
In accordance with sections 117 and 118 of the retired Constitution, a County Council had the power to set apart an area of Trust land for use and occupation by a public body or for purposes specified therein. Of significance to the issue before us, is section 117(1)(c) which provided that the council could set apart an area of trust land for use and occupation by “any person or persons for a purpose which in the opinion of that county council is likely to benefit the persons ordinarily resident in that area or any other area of Trust land vested in that county council, either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof”. Even then, a county council could only set apart an area of Trust land pursuant to an enabling Act of Parliament, to wit, the Trust land Act. In line with sections 117 and 118 of the retired Constitution, the Trust Land Act cap 288 (repealed) was enacted, as an Act of Parliament to make provision for Trust land. Part IV of the Act provided for setting apart of Trust land.
63.
Having set out the law regulating the setting aside of trust land, and supposing the suit land in this matter was trust land, was the setting aside in accordance with the law in place at the time? The answer to this question is in the negative, due to the following uncontroverted findings of law and fact. Firstly, the gazette notice No 3831 of 1994 specified the size of the land set apart as comprising approximately 0.7 of a hectare. However, the land ultimately set apart and allocated to the appellant was 3.126 hectares. There is no further notice on record in respect of the change of size of the suit land. By the same token, the Msambweni Land Control Board, gave consent to set apart 0.7 of an hectare of land, yet there is no further consent from that Board, for the change of the acreage to 3.126 hectares. Thirdly, contrary to the requirement under section 7(3) of the Trust Land Act (repealed), Gazette Notice No 3831 of 1994 did not specify a date before which applications for compensation were to be made to the District Commissioner. Fourthly, the suit land was set apart for use as a boat landing base, (a purpose that would have benefitted the local communities ordinarily resident in the area) yet the appellant has constructed a five-star hotel on it. There is no further notice on record for change of purpose of setting aside. This is in contravention of the provisions of section 117 of the former Constitution and section 7(3) of the Trust Land Act (repealed), which required the notice of an intended alienation to specify the purpose for which the land is required to be set apart.
64.
The entire process and notice for setting apart, fell far short of the requirements of the Constitution and the law. In view of these shortcomings and our conclusion regarding the legal status of the suit land, we find no reason to upset the judgment of the Court of Appeal.
E. Orders
(i)
The petition of appeal dated September 3, 2019 is hereby dismissed
(ii)
The judgment of the Court of Appeal dated February 24, 2014 is hereby affirmed
(iii)
The appellant shall bear the costs of the appeal.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/29/eng@2021-07-16 |
Reference 1 of 2021 | Speaker, Nairobi City County Assembly & another v Attorney General & 3 others (Reference 1 of 2021) [2021] KESC 52 (KLR) (Civ) (16 July 2021) (Advisory Opinion) | Advisory Opinion | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Speaker, Nairobi City County Assembly & another v Attorney General & 3 others | [2021] KESC 52 (KLR) | null | Introduction
1.
This Reference was moved by the Hon. Speaker of Nairobi City County Assembly and the Clerk of Nairobi County Assembly for an Advisory Opinion under Article 163(6) of the Constitution. The Applicants, by their Reference dated 7th January 2020 and filed on even date, raise the following issues:
(i)
Whether the pronouncement of courts in various rulings is a declaration of vacancy in the respective offices and more specifically the County of Nairobi City?
(ii)
Whether the Governor of Nairobi can appoint a Deputy Governor even after being barred by a court from accessing his office?
(iii)
Whether in the absence of both the Governor and the Deputy Governor, the Speaker Nairobi City County can assume the office of Governor?
(iv)
What happens when the Speaker Nairobi County Assembly declines to assume the office of Governor County of Nairobi City?
(v)
What is the legal position regarding the absence of gazetting the resignation of Deputy Governor County of Nairobi City?
B. Background
2
On 9th March 2018, in Re Speaker, County Assembly of Embu, SC. Reference 1 of 2015; [2018] eKLR, this Court pronounced itself on the procedure for administration of the oath of office for a Deputy Governor who assumes office: under Article 182(2) of the Constitution in the event of impeachment of a County Governor, the criteria for filling the vacancy that occurs in the office of the Deputy County Governor, where the originally elected Deputy Governor assumes office as Governor after the impeachment of the Elected Governor; and the timeline within which the Deputy Governor assuming office should assume office. The Applicants contended, however, that the Court did not pronounce itself on how the office of the Governor would be filled where there is no Deputy Governor. It is on this basis the Applicants seek the advice of the Court.
3.
On 6th December 2019, the former Nairobi City County Governor was arrested by the Ethics and Anti-Corruption Commission and subsequently arraigned in court to answer charges of Economic Crimes and abuse of office. This arraignment resulted in his suspension from office. As at that time, there was no substantive Deputy Governor in office, as the holder of the said office had resigned. | D. Analysis
(i) Whether this Court has jurisdiction to render an advisory opinion?
5.
The Applicants urged that the Court has jurisdiction to entertain the Reference and issue an advisory opinion according to Article 163(6) of the Constitution for the reason that the Applicant is a holder of an office under Article 260 of the Constitution; the matter entails the filling of a vacancy of a governor with no Deputy Governor; and also, that the Attorney General did not give an opinion despite a request to do so. Contrarywise, the Attorney General submitted that this Reference fails to lay a factual basis for its institution; lacks a supporting affidavit; his opinion has not been sought; the 2nd Applicant lacks locus standi to seek an advisory opinion from the Court; matters are pending in the courts below raising similar issues; and that some issues are explicitly provided for in the Constitution.
6.
This Court’s jurisdiction to issue advisory opinions is anchored in the Constitution under Article 163(6) which stipulates as follows:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government”.
7.
Further, on this Court’s jurisdiction to offer advisory opinions, Section 13 of the Supreme Court Act, 2011 provides as follows:
“
An advisory opinion by the Supreme Court under Article 163(6) of the Constitution shall contain the reasons for the opinion and any judges who differ with the opinion of the majority shall give their opinions and their respective reasons”.
8.
Likewise, the Supreme Court Rules, 2020 also provide for the exercise of this jurisdiction in similar terms under Rule 50(1).
9
The criteria for determining whether a matter is proper before this Court was also set by this Court in Re Matter of the Interim Independent Electoral Commission, SC. Constitutional Application No. 2 of 2011; [2011] eKLR(Re Matter of the Interim Independent Electoral Commission) in which we rendered ourselves as follows:
“
(83)
With the benefit of the submissions of learned counsel, and of the comparative assessments recorded herein, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
(iv)
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the Applicant can demonstrate that the Issue is of great public importance is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the Applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.
(84)
The foregoing guidelines coincide with our conviction that the plain terms of the Constitution should be read in the broader context of its spirit and philosophy; and on that basis, applications seeking Advisory Opinion shall be resolved as necessitated by the merits of each case. In view of the practical and legal constraints attendant on Advisory Opinions, this Court will, in principle, exercise that jurisdiction with appropriate restraint”.
10.
Furthermore, in the Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC. Advisory Opinion No. 2 of 2012; [2012] eKLR, at paragraph [17] and [18], we have emphasized that the exercise of this Court’s jurisdiction under Article 163(6) of the Constitution is discretionary and only deserving matters will justify the exercise of such jurisdiction.
11.
From the Reference before us, it is obvious that the Applicant seeks an advisory opinion regarding the process of filling the position of a Governor and Deputy Governor upon a double vacancy, following a court order barring a County Governor from accessing office, and in the absence of a substantive Deputy Governor following a resignation; the procedure for filling the two vacancies should a Speaker decline to assume the office of Governor, and lastly the legal position regarding the absence of gazetting the resignation of a Deputy Governor. From the foregoing issues, there is no doubt that this Reference concerns matters relating to County Government.
12.
We take note that one of the Applicants is the Speaker of the County Assembly of Nairobi, an office established under Article 178 of the Constitution. Therefore, he is a proper Applicant as provided for in Article 163(6) of the Constitution. However, the other Applicant, the Clerk of the County Assembly, unlike the Speaker, does not have the locus standi to bring a request for an advisory opinion before this Court. Consequently, the 2nd Applicant is hereby struck out of the Reference at this stage.
13.
We now come to the next question, are the issues raised herein subject of proceedings in a lower court? Although none of the participants supplied us with a list of matters pending determination before lower courts, we took it upon ourselves to go through some of the matters pending the courts below and found as follows:
(i)
The first issue, whether the pronouncement of the courts in various rulings is a declaration of vacancy in the respective offices and more specifically the County of Nairobi City, is pending determination before this Court in Petition 2 of 2020, Ferdinand Waititu Vs. Republic and in the High Court Petition No. E 312 OF 2020. Furthermore, we found that the Court of Appeal has also pronounced itself on this issue in Moses Kasaine Lenolkulal vs. Republic, Criminal Appeal No. 109 of 2019, [2019] eKLR.
(ii)
The second issue, whether the Governor can appoint a Deputy Governor even after being barred by a court from accessing his office, is pending determination at the High Court in ACEC Petition No. 1 of 2020.
14.
In Re Matter of the Interim Independent Electoral Commission, this Court underlined the circumstances under which it can offer an advisory opinion concerning a matter pending before a lower court. This Court made it clear that an Applicant must demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the Applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial court process. The word “and” is used to link the two elements, meaning that the issue pending before a court below must meet both elements. Although the Reference meets the element of “general public interest,” the two issues highlighted above do not, in our opinion, meet the second criteria, that of urgency. Consequently, we decline to exercise our discretion to entertain the two issues. The same should reach us through the normal appellate mechanism set out in the Constitution.
15.
On the third issue, whether in the absence of both the Governor and Deputy Governor, the Speaker City County Assembly can assume the office of Governor? Article 182(4) of the Constitution provides that in the absence of a County Governor and that of a Deputy Governor, the Speaker of the County Assembly shall act as County Governor. Furthermore, in Re Speaker, County Assembly of Embu, SC. Reference No. 1 of 2015; [2018] eKLR, at paragraph 61, this Court held in part as follows:
“
…Where a vacancy occurs in both the offices of County Governor and Deputy County Governor at the same time, the office of the Deputy County Governor shall remain vacant until the election of a new Governor. The new Governor shall nominate a person to fill the vacancy within fourteen days after assuming office. The County Assembly shall vote on the nomination within sixty days after receiving it. For the avoidance of doubt, we hereby state that this holding shall obtain in all circumstances pursuant to which the Office of the Deputy Governor may become vacant as contemplated by the Constitution, i.e., death, resignation or impeachment.”
Consequently, given the foregoing constitutional provisions and our decision above, we see no justification for us to issue further advice on the same.
16.
On the fourth issue, what happens when the speaker of Nairobi City County Assembly declines to assume the office of Governor County of Nairobi City? We are inclined to agree with the submissions by the Attorney General that this question is hypothetical as it is yet to occur. In Re Matter of the Interim Independent Electoral Commission, this Court at paragraph [84] emphasized that given the practical and legal constraints attendant on Advisory Opinions, this Court will, in principle, exercise that jurisdiction with appropriate restraint. We shall not, therefore, exercise our jurisdiction in hypothetical situations.
17.
On the fifth issue, what is the legal position regarding the absence of gazetting the resignation of Deputy Governor of Nairobi City? It is our finding that this question can be dealt with through the advice of the Attorney General or by the courts below to reach us through the normal appellate mechanism.
E. Disposition
18.
Ultimately, based on our finding above, we decline to exercise our discretion in rendering an opinion in this matter. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/52/eng@2021-07-16 |
Petition 8 of 2019 | Surya Holdings Limited & 2 others v CFC Stanbic Bank Limited & another (Joint receivers and managers of Karuturi Limited) (Petition 8 of 2019) [2021] KESC 51 (KLR) (16 July 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | Surya Holdings Limited & 2 others v CFC Stanbic Bank Limited & another | [2021] KESC 51 (KLR) | null | Brief facts
The 1st and 2nd appellants were guarantors to a facility agreement between the 3rd appellant and the 1st respondent. The 3rd appellant defaulted in its repayment obligations to the 1st respondent. That led to the appointment of receivers in accordance with the power annexed to the debenture, as issued by the 3rd appellant. That appointment was challenged by the appellants at the High Court. The High Court confirmed the appointment of the receivers, but restrained them from selling the charged properties, and ordered the 3rd appellant to continue operating as a going concern in the interest of all the parties. Later on, the High Court issued winding up orders against the 3rd appellant.
The High Court in its ruling found that the appellants had made an admission that the 3rd appellant owed the 1st respondent a pre-receivership sum of US$ 4,028,194.30 and Kshs. 2,706,966.13 together with interest thereon. The High Court further directed the parties to agree on a forensic audit. The parties agreed on the auditor. The audit report was duly filed in court, and the parties addressed the court extensively on it. The High Court found that the 3rd appellant owed the 1st respondent a sum of USD 4,028,194.30 and Kshs. 2,706,994.13, together with contractual interest as contained in the facility agreement executed between the 3rd appellant and the 1st respondent, being the pre-receivership debt.
Aggrieved the appellants filed an appeal before the Court of Appeal. The Court of Appeal found that the orders granted by the High Court did not constitute a wrong exercise of judicial discretion. As such, the Court of Appeal did not interfere with the orders made by the High Court and dismissed the appeal with costs to the respondents. Aggrieved, the appellants filed the instant appeal. | E. Analysis
32.
It is the 1st and 2nd respondents’ argument that there was no issue involving the right to a fair hearing before the superior courts below. In other words, it is the respondents’ case that the subject matter of this appeal did not involve issues interpretation and application of Constitution to warrant this Court’s exercise of jurisdiction under article 163(4) (a) of Constitution.
33.
Under article 163(4)(a) of Constitution, this court has jurisdiction to entertain appeals from the Court of Appeal as of right in any case involving the interpretation or application of Constitution.
34.
Section 15(1) of the Supreme Court Act makes provision for this Court’s appellate jurisdiction with regards to appeals under article 163(4)(b) of Constitution. Section (15)(2) of the same Act on the other hand provides that Sub-section (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of Constitution. We note that this appeal is premised on article 163(4)(a) of Constitution and section 15(2) of the Act.
35.
This Court set guiding principles in the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR, with regard to its appellate jurisdiction under article 163(4)(a) of Constitution, where it stated that an appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of Constitution. In other words, an appellant must be challenging the interpretation or application of 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 Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
36.
In the case of the Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR, this Court emphasized that the appeal should have raised questions of constitutional interpretation or application, and the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under article 163(4)(a) of Constitution.
37.
The same principle was affirmed in this Court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014; [2014] eKLR (Munya 1) where we stated that 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.
38.
We have perused the record of appeal and taken note that the ruling of the trial court issued on 19th January 2018, was a follow up on the ruling of the same court issued on 13 October 2016 flowing from a Notice of Motion application dated June 21, 2016, premised under order 2 rule 15(1)(a) and 9d), order 13 rule 2 of the Civil Procedure Rules, section 319 of the Companies Act, and the pleadings before the trial court confirm that Constitutional issues raised before us were never pleaded and also that the trial court did not interpret or apply the same.
39.
Furthermore, we have looked at the issue before the Court of Appeal, that is, whether the impugned orders made by the High Court on January 19, 2018 directing the appellants to make payments to the 1st respondent and in default, for the 1st respondent to be at liberty to exercise its powers of sale constituted a wrong exercise of discretion, and have come to the conclusion that the Court of Appeal, just like the High Court did not interrogate or apply any of the articles of Constitution alleged to have been violated that is, articles 25 and 50 of Constitution.
40.
This court has previously found that it lacks jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below in the cases of Daniel Kimani Njihia v Francis Mwangi Kimani & Another, SC. Civil Application No 3 of 2014; [2015] eKLR; Teachers Service Commission v. Kenya National Union of Teachers & 3 others Sc Application No 16 of 2015; [2015] eKLR; and Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2018] eKLR. In the Ananias N Kiragu v Eric Mugambi & 2 others [2020] eKLR. In SAJ v AOG & 2 others [2013] eKLR, this court found that its jurisdiction can only be invoked when substantive matters in the appellant’s petition have been answered.
41.
Having perused the record, more so, the amended plaint and the decision of the trial Court and that of the Court of Appeal, it is obvious to us that several issues are still pending determination before the trial court. Consequently, it is our finding that there is no substantive determination by the superior courts below of a Constitutional nature, to warrant this Court to exercise its jurisdiction under article 163(4)(a) of Constitution. Although the appellants have urged us that non-determination of Constitutional issue raised before the Court of Appeal, that is, violation of their right to be heard pursuant to articles 25 and 50 of Constitution, should form a basis for us to entertain this appeal under article 163(4)(a) of Constitution, we unanimously disagree with them. It is our finding that it would have been pre-mature for the Court of Appeal to make a finding on Constitutional issue raised since the trial court had not fully determined the rights of the parties before it.
42.
We are cognizant of a ruling of this court issued on March 22, 2019, dismissing a preliminary objection dated February 22, 2019 and a Notice of Motion dated February 25, 2019, which preliminary objection and Application contested this court’s jurisdiction in this matter. However, having listened to all the parties in the matter and re-evaluated the pleadings before us, and the record of appeal, and considering our findings herein, we are satisfied that we lack the jurisdiction to entertain the matter before us. Further, under article 163(7) of Constitution, this court is not bound by its decisions.
43.
Since costs follow the event as previously decided this court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR, the appellant shall bear the costs of appeal in this Court.
44.
Consequently, the appeal is dismissed.
F. Orders
45.
Flowing from above, the final orders are:
i.
The Petition of appeal dated February 14, 2019 and filed on even date is hereby dismissed.
ii.
The appellants shall bear the respondents’ costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/51/eng@2021-07-16 |
Petition (Application) 4 of 2021 | United Millers Limited v Kenya Bureau of Standards & 5 others (Petition (Application) 4 of 2021) [2021] KESC 72 (KLR) (Civ) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 16 July 2021 | 2,021 | Nairobi | Civil | United Millers Limited v Kenya Bureau of Standards & 5 others | [2021] KESC 72 (KLR) | null | Brief facts
At the High Court, the applicant filed judicial review proceedings to quash a decision not to release sugar for sale and to condemn it for destruction. The sugar failed the yeast and mold test when tested against the KS EAS 749:2010 Brown Sugar - Specification. The High Court dismissed the application on grounds that available statutory remedies had not been exhausted and the applicant's case did not fall within the exceptions to the doctrine of exhaustion. In the alternative, the High Court held that it was not demonstrated that the 1st respondent's decision was tainted with illegality. On appeal, the Court of Appeal upheld the High Court's determination and reasoning.
The applicant filed an appeal at the Supreme Court. The applicant also filed an application that sought conservatory orders or in the alternative a stay of the Court of Appeal judgment pending hearing and determination of the substantive appeal before the Supreme Court.
The 1st respondent stated that the petition did not raise matters of constitutional interpretation or application and that the Supreme Court's jurisdiction had not been invoked properly. The 1st respondent added that it would be futile for the court to grant any orders as the quality of the sugar had deteriorated further and it could not be released for public consumption. The 1st respondent also said that the application could not be entertained as there was no proper appeal before the court. | D. Issues For Determination
15.
On the basis of the pleadings and submissions by the Parties herein, we consider that only two issues merit our determination:
i.
Whether this Court has jurisdiction under Article 163(4)(a) of the Constitution to hear and determine Petition No. 4 of 2021 and consequently the instant application; and
ii.
Whether the orders sought in the application can issue.
E. Analysis
16.
The Court’s jurisdiction to hear and determine this application and the main appeal has been challenged by the 1st respondent. Citing the Lawrence Nduttu Case, it urges that there is nothing of constitutional interpretation and/or application in the main appeal to warrant invocation of this Court’s jurisdiction under Article 163(4)(a) of the Constitution. It also urges that the applicant has failed to seek certification to warrant exercise of jurisdiction under Article 163(4)(b) of the Constitution. Consequently, the 1st respondent urges the Court to dismiss the instant application on grounds that it is incompetent, lacks legal basis and offends the provisions of Section 31 (2) of the Supreme Court Rules, 2020 which requires that an interlocutory application shall not be originated before a petition of appeal is properly filed with the Court.
17.
It is the applicant’s contrary contention that the petition raises fundamental constitutional issues, specifically the effectiveness and relevance of the protection afforded by Article 47 of the Constitution and the FAA Act, the exhaustion of alternative remedies under Article 159 (2) (c) of the Constitution, and the legality of an amorphous Executive multi-agency body operating on the basis of undisclosed legally unfounded protocols. It contends that the Court of Appeal erred in law in its interpretation and application of the Constitution and the FAA Act. It also argues that the 1st respondent’s impugned administrative decision is unreasonable, arbitrary, irrational, an infringement of the applicant’s right to administrative action protected under Article 47 of the Constitution, and a breach of the principle of transparency and accountability set out in Article 10 (20 (c) of the Constitution.
18.
On the issue of jurisdiction, we stated in Aviation & Allied Workers Union Kenya v. Kenya Airways & Others; SC Application No. 50 of 2014, [2015] eKLR that where a court’s jurisdiction, is objected to by any party to the proceedings, such an objection must be dealt with as a preliminary issue, before the meritorious determination of any cause. We must therefore evaluate whether Petition No. 4 of 2021 and consequently the instant application has met the set jurisdiction principles under Article 163(4)(a) of the Constitution.
19.
This 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)” [Emphasis Added]
20.
This Court is replete with jurisprudence on what amounts to a matter warranting appeal to this Court under Article 163(4)(a) of the Constitution. In the Lawrence Nduttu Case, 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).”
21.
[20] In Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others; SC Petition No. 10 of 2013, [2014] eKLR, we were emphatic that a matter that directly involves an interpretation and/or application of a particular provision of the Constitution will constitute an appeal as of right under Article 163(4)(a) of the Constitution. Subsequently, in the Munya 1 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.”
22
So then, does Petition No. 4 of 2021, raise issues of Constitutional interpretation and application and have the same been canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this Court by way of an appeal? We have extensively examined the record and it is apparent that Judicial Review Application No. 396 of 2018 was brought under the provisions of Sections 4, 7, 8 and 11 of the FAA Act and Order 53 Rule 3 of the Civil Procedure Rules, 2010. It was also anchored on the provisions of Article 47 of the Constitution and section 4(1) of the FAA Act, which guarantees every person the right to an administrative action, which is expeditious, efficient, lawful, reasonable and procedurally fair. Also, among the orders sought was a declaratory order that the 1st Respondent’s administrative decision, infringed the applicant’s rights under Article 47 of the Constitution and section 4 (1) of the FAA Act.
23.
In response, the 1st respondent, filed a preliminary objection challenging the High Court’s jurisdiction to entertain the judicial review proceedings pursuant to Sections 11 and 14A (4) of the Standards Act and Section 9 of the FAA Act. The Court (Mativo J) delineated two issues for determination in considering the preliminary objection: whether it was divested of jurisdiction on grounds that the suit offends the doctrine of exhaustion of statutory provided dispute resolution mechanism; and whether the ex-parte applicant had demonstrated any grounds to warrant grant of judicial review orders.
24.
On the first issue, the trial court found that the ex-parte applicant ought to have exhausted available dispute resolution mechanism before approaching it. The learned Judge therefore found that the judicial review application offended the doctrine of exhaustion of statutorily available remedies set out under Sections 11 and 14A (4) of the Standards Act and Section 9 (2) of the FAA Act, and further failed to satisfy the exceptional circumstances under section 9(4) of the FAA Act. It thus held that the application must fail. The court however did not down its tools upon making the determination that it lacked jurisdiction. It determined the second issue and found that the ex-parte applicant had failed to establish a case to warrant grant of judicial review orders.
25.
On appeal, the Court of Appeal delimited three issues for determination, namely: whether the High Court properly exercised its jurisdiction, whether it was right in invoking the principle of exhaustion, and whether it was right in finding that the substantive motion failed the threshold for grant of the judicial review. The Appellate Court upheld the trial court’s determination and entirely endorsed its reasoning. It found that the trial court in reaching its determination was guided by the need to serve substantive justice to the parties and exercised it discretion soundly and on reasonable judicial principles. The Court of Appeal opined that having failed to revert to the internal dispute resolution mechanisms provided for under Section 14A (4) of the Standards Act and Section 9 (2) of the FAA Act and having also failed to apply for exemption from this requirement as is provided for under Section 9 (4) of the FAA Act, the High Court was divested of jurisdiction to entertain the judicial review proceedings. The Court of appeal also found that having reached this conclusion on jurisdiction, the High Court ought to have downed its tools. Nonetheless, it considered the third issue and agreed with the trial court that the substantive motion failed to satisfy the grounds for grant of judicial review.
26.
Considering all the above, it is clear to us that the judicial review application before the trial Court and the subsequent appeal to the Court of Appeal were determined on a preliminary jurisdictional issue. We have previously in Peter Odour Ngoge v Francis Ole Kaparo & others; SC Petition No. 2 of 2012, [2012] eKLR, emphasized the significance of respecting the hierarchy of the judicial system, as one of the principles guiding the exercise of our jurisdiction under Article 163 (4) (a) of the Constitution. From the foregoing, we find no difficulty in concluding that the issues before the High Court as well as the Court of Appeal did not either involve the interpretation and application of the Constitution or take a trajectory of Constitutional interpretation or application. While issues of constitutional interpretation and application had been raised in the substantive application for Judicial Review, they were nipped in the bud when the preliminary objection was upheld for failure to exhaust the statutory alternative dispute resolution mechanisms.
27.
We also take judicial notice that the superior courts’ findings on jurisdiction is in harmony with our finding in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR, wherein we stated that, even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute. We emphasized that where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.
28
In view of the reasons tendered, we find that this Court has no jurisdiction to hear and determine Petition No. 4 of 2021 or the instant application for conservatory or stay orders.
F. Orders
29
Consequently, we make the following orders:
i.
The Petition of Appeal No. 4 of 2021 dated 23rd February 2021 and filed on 25th February 2021, is hereby struck out for want of jurisdiction;
ii.
The Notice of Motion dated 4th March 2021 and filed on 16th March 2021, is hereby dismissed; and
iii.
The Petitioner/applicant shall bear the 1st respondent’s costs.
30.
It is accordingly ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/72/eng@2021-07-16 |
Petition 5 of 2018 | Waiguru & another v Karua & 2 others (Petition 5 of 2018) [2021] KESC 38 (KLR) (16 July 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, N Ndungu | 16 July 2021 | 2,021 | Nairobi | Civil | Waiguru & another v Karua & 2 others | [2021] KESC 38 (KLR) | null | Brief facts
The applicants filed Petition No. 5 of 2018: Anne Mumbi Waiguru & another v Martha Wangari Karua & 2 others (Petition of Appeal No. 5 of 2018) seeking to challenge the Court of Appeal’s judgment in Nyeri Election Appeal No. 1 of 2017. The appellate court had allowed the 1st respondent’s appeal against a High Court judgment which struck out her petition challenging the election of the 1st applicant. The Court of Appeal remitted the petition to the High Court and ordered the High Court to hear it on merit. The parties to the instant application by consent agreed to withdraw Petition No. 5 of 2018. Later, the Deputy Registrar directed the applicants to file written submissions on costs and a formal notice of withdrawal.
The applicants in the instant application sought among others orders that a declaration be issued that the issues raised in Petition No. 5 of 2018 were fully determined by the instant court in its judgment delivered on August 6, 2019, in Petition No. 3 of 2019: Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3others (Petition No. 3 of 2019).
According to the applicants, the main issue for determination was whether the High Court had jurisdiction to hear and determine the 1st respondent’s election petition after the lapse of six months. The applicants urged that that issue was determined by the High Court, the Court of Appeal and by the instant court in Petition No. 3 of 2019. The applicants submitted that the issues raised were the same as those raised in Petition No. 3 of 2019 and were fully determined. The 1st respondent submitted that although there was a similarity in some of the issues, an appeal could not be determined by way of an interlocutory application unless such an application contested its competency which was not the case in the instant application. | C. Issues for Determination
16.
Against this background, we identify the following two issues for determination:
i.
Whether the issues herein were fully determined in petition No. 3 of 2019? In other words, whether the issues herein are res judicata?
ii.
If the answer to (i) is in the affirmative, who should bear the costs herein?
D. Analysis
i. Whether the issues herein are Res Judicata?
17.
Counsel for the applicants urge us that the main issue for determination herein, on whether the High Court has jurisdiction to hear and determine the 1st respondent’s election petition after the lapse of the six months prescribed by article 87(1) of the Constitution and section 75(2) of the Elections Act, was determined in Petition No. 3 of 2019. On the contrary, the 1st respondent submits that although there is similarity in some of the issues, an appeal cannot be determined by way of an interlocutory application. The 1st respondent, on one occasion, seeks an opportunity to have the appeal fully determined despite an admission that some issues have been determined in Petition 3 of 2019. On another occasion, she seeks an opportunity to apply for the dismissal of the petition for want of prosecution.
18.
From the petition of appeal, it is not in doubt that the following questions are placed before this court for determination: whether there exists a relationship between article 87(2) of the Constitution and rule 8(1) of the Election Petition Rules which relationship goes to the jurisdiction to hear and determine an election petition; whether non-compliance with rule 8(1)(c) and (d) of the Election Petition Rules is a mere technicality curable under article 159(2) (b) of the Constitution; Does the direction of the Court of Appeal violate the provisions of section 75(2) of the Elections Act as read with article 87(1) of the Constitution; and was it lawful for the Court of Appeal to disturb the discretionary award of costs in the High Court?
19.
In Petition No 3 of 2019, this court deduced the following issues for determination: whether the 1st respondent had properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution; whether the proceedings before the High Court were a nullity, and if so, what were the consequences thereof? whether the 1st respondent’s right to fair hearing and trial was violated by the respective findings of the trial court and the Court of Appeal; which party bore the burden of proof; whether the Court of Appeal properly re-evaluated the evidence before it; whether the trial court was biased against the 1st respondent; what relief should issue; and who should bear the costs of those proceedings?
20.
From this court’s proceedings before the Deputy Registrar, it is obvious to us that the applicants have for a long time intended to withdraw the appeal before us and that the 1st respondent has had no issue with the withdrawal save for costs. The 2nd and 3rd respondents are on record leaving the issue of costs for the court to determine. It is also not disputed from the 1st respondent’s submissions that there is a similarity of issues in this appeal and the issues in Petition No. 3 of 2019. The 1st respondent has not highlighted an issue in the present appeal which, in her opinion, ought to proceed to full determination. From the 1st respondent’s arguments, her only problem seems to be the procedure for terminating the present appeal and the attendant costs. It was not clear what aspect of the appeal remained pending for canvasing before this court for determination.
21.
The applicants premised their application on rule 23 of the repealed Supreme Court Rules, 2012. The said rule made provision for filing of interlocutory applications. Should the applicants’ application be struck out for relying on a repealed rule? We do not think so because, other than rule 23 of the Supreme Court Rules, 2012, the applicants also relied on section 24 of the Supreme Court Act which is in force. Counsel for the applicants has not bothered to explain why they relied on repealed rules. The foregoing notwithstanding, we are cognizant of the unique circumstances of this case, that is, the long time and judicial processes the parties have engaged themselves in, article 159(2)(d) of the Constitution, and this court’s decision in Raila Odinga & 5 Others v Independent Electoral & Boundaries Commission SC Petition No 5 of 2013; [2013] eKLR, in which we explained the flexibility of article 159(2)(d) of the Constitution and the need to determine each case on its own merits while taking into account the unique circumstances of a case. We find therefore that reliance on rule 23 of the repealed rules does not in itself make the application fatal. However, we must warn counsel to continuously keep themselves updated with legal developments to avoid recurrence of similar situations in the future.
22.
Despite indicating severally before the honourable Deputy Registrar, that they sought to withdraw the petition, the applicants did not prefer the procedure provided for under section 18 of the Supreme Court Act and rule 27 of the Supreme Court Rules, 2020. Be it as it may, we are satisfied that the issues in the Petition No 5 of 2018 were determined in Petition No 3 of 2019.
23.
Assuming that there was an issue in this petition that was not addressed by Petition No 3 of 2019, should the applicants be compelled to pursue the same? Does the applicant have the liberty to withdraw or discontinue proceedings before us? Section 18 of the Supreme Court Act provides that a party may at any time before judgment, with leave of court, withdraw any proceedings and the application for leave may be made orally. Rule 27 also gives a party the liberty to withdraw proceedings at any stage before judgment subject to any orders as to costs following such withdrawal of proceedings.
24.
Further, in John Ochanda v Telkom Kenya Ltd, SC App No 25 of 2014, Ibrahim SCJ, while considering an application for leave to withdraw a notice of appeal found that a prospective appellant is at liberty to withdraw a notice of appeal at any time before the appeal has been lodged and any further steps are taken. He also observed that the right to withdraw or discontinue proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter of right subject to any issue of costs, which can be claimed by the respondents if any. If in the applicants' view, this court fully addressed their concerns in Petition No 3 of 2019, we cannot compel them to engage in a process they are not willing to.
25.
Having found that the issues in this Petition No. 5 of 2018 were determined in Petition No 3 of 2019, what is the consequence of this declaration? Even though the applicants did not seek further orders, we deem it fit, premised on our mandate under section 21 of the Supreme Court Act which empowers this court to issue ancillary orders, to order that this petition of appeal be deemed to have been dispensed with. This determination will bring an end to litigation, protect the parties from repetitive litigation over the same issues, save this court’s time, promote stability of judgments by reducing the possibility of inconsistency in judgments, promote confidence and predictability as persuaded by the Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others, Civil Appeal No 42 of 2014; [2015] eKLR where it demystified the rationale for res judicata.
ii. Who should bear the costs herein?
26.
According to this court’s finding in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sc Petition No 4 of 2012; [2014] eKLR, 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. This court also observed that 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.
27.
Concerning costs in Petition No 3 of 2019, we found as follows:
“
(58)
We also take note of the long time and the judicial processes that the parties have engaged themselves in. Equally, it is expected that huge financial resources have been spent in prosecuting and defending this matter. Yet, while the general rule is that the successful party ought to be paid costs by the unsuccessful one, where proceedings are declared to be a nullity, no party can claim success – see Paul Chen-Young v Ajax Investments Ltd & others, Jamaica Supreme Court Civil Appeal No 39 of 2006, Paras 205 and 206. Each party should therefore bear their costs in the proceedings before all the courts.”
28.
Since the parties in the present appeal are the same as were in Petition No 3 of 2019 and considering our finding that the issues herein were determined in Petition No 3 of 2019, we see no reason to depart from our finding on costs in Petition No 3 of 2019, our reasoning and finding therein apply mutatis mutandis. Consequently, each party bears its costs.
E. Orders
29.
Ultimately, we order as follows:
a.
The applicants’ notice of motion dated December 4, 2020 be and is hereby allowed.
b.
A declaration be and is hereby issued that the issues raised in Petition No 5 of 2018: Hon Anne Mumbi Waiguru & another v Hon Martha Wangari Karua & 2 others were fully determined by this honourable court in its judgment delivered on August 6, 2019 in Petition No 3 of 2019: Hon Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others.
c.
The petition of appeal dated March 28, 2018 and filed on March 29, 2018 be and is hereby ordered dispensed with.
d.
Each party shall bear its own costs in this matter and the proceedings at the Court of Appeal.
30.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/38/eng@2021-07-16 |
Petition 15 & 16 of 2015 | Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) | Directions | Supreme Court | Supreme Court | MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, N Ndungu, W Ouko | 6 July 2021 | 2,021 | Nairobi | Civil | Muruatetu & another v Republic; Katiba Institute & 4 others | [2021] KESC 31 (KLR) | null | Brief facts
The appellants were convicted of murder and sentenced to death. They were challenging the legality of the mandatory nature of the death sentence imposed by the High Court and affirmed by the Court of Appeal. They also challenged the indeterminate nature of a life sentence and asked whether the court ought to assign a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment.
The court issued a judgment dated December 14, 2017, which stated that it could not determine the issues related to the sentence of life imprisonment as they were not canvassed before the High Court or the Court of Appeal. In its judgment, the Supreme Court found that the mandatory nature of the death sentence as provided under section 204 of the Penal Code was unconstitutional. However, that would not disturb the constitutionality of the death sentence as contemplated under article 26(3) of the Constitution of Kenya, 2010. The court ordered for the appellants' matter to be re-heard on the question of sentencing only on a priority basis. The court also ordered the Attorney General, the Director of Public Prosecutions (DPP) and other relevant agencies to prepare a detailed professional review in the context of the judgment and order made with a view to setting up a framework to deal with sentence re-hearing of cases similar to that of the petitioners herein. The Attorney General was granted twelve (12) months from the date of the judgment to give a progress report to the Supreme Court in that regard.
In its judgment the court directed that the judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, urgently, for any necessary amendments, formulation and enactment of statute law, to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment.
The progress report on the framework proposed for the re-hearing of similar cases was not filed within 12 months as ordered by the court but it was filed on October 11, 2019. The reason for the delay in filing the progress report, offered by counsel for the DPP, was that there were no re-sentencing guidelines necessary to address the numerous pending matters on re-sentencing. On behalf of the 1st amicus curiae Katiba Institute, it was stated that the delay in filing the report resulted in the inability of the Supreme Court to confirm compliance with its orders and it compounded violations of the appellants' constitutional rights. It was stated that the absence of the anticipated guidelines had created inconsistency, confusion and uncertainty within the criminal justice system about the death sentence. | Directions of the Court
1.
It is common factor that this appeal specifically involved the two appellants, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, whose conviction and sentence of death for the offence of murder contrary to section 203 as read with section 204 of the Penal Code was upheld by the Court of Appeal on a first appeal. All they challenged before this court, was not their conviction but the mandatory nature of the sentence of death imposed upon them by the High Court and affirmed by the Court of Appeal, arguing that it was inconsistent with the Constitution and therefore void.
2.
Two other issues were raised; whether the indeterminate nature of a life sentence is also inconsistent with the Constitution, and whether this court ought to assign a definite number of years of imprisonment, subject to remission rules, which will constitute life imprisonment.
3.
In considering these questions, the court confined its determination to the following issues:
a)
Whether the mandatory nature of the death penalty under section 204 of the Penal Code is contrary to the Constitution,
b)
Whether the indeterminate life sentence was equally unconstitutional, and
c)
Whether this court could define the parameters of a life sentence.
4.
By our judgment rendered on December 14, 2017, this court (though differently constituted), readily accepted that the last two questions (b) and (c) above, not having been canvased before the two courts below, were not available for the court’s determination. On the first question, however, the court made the following declarations and orders:
''a)
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
b)
This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.
c)
The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this judgment and order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this Judgment to give a progress report to this court on the same.
d)
We direct that this judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment”. (Our emphasis).
5.
Despite the Attorney General, the Director of Public Prosecutions and other relevant agencies having 12 months within which to present a progress report on the framework proposed, to deal with sentence re-hearing of cases similar to this, that report was not filed until October 11, 2019. Prior to the filing of the said report, the court had on its own motion mentioned the matter on October 8, 2019, as a follow up on the progress of the directions given on December 14, 2017. At that point Mr Hassan, learned counsel representing the Director of Public Prosecutions, drew the attention of the court to the confusion in the courts below occasioned by lack of re-sentencing guidelines. He pleaded that there was need to have the guidelines issued promptly to address numerous pending applications, petitions and appeals on re-sentencing.
6.
On his part, Mr Ochiel, learned counsel for Katiba Institute, expressed concern that the delay occasioned by the Attorney General in filing the status report had resulted in the inability for the court to ascertain whether or not its judgment was being complied with; it had compounded the violations to the appellants’ constitutional rights; and the absence of anticipated guidelines had created inconsistency, confusion and uncertainty within this aspect of criminal justice.
The appellants, on the other hand, confirmed that, contrary to the orders of the court, they had not been afforded, up until that time, a resentencing hearing by the High Court.
7.
In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.
8.
While it is regrettable that the report was not filed timeously and these directions not issued immediately, there can be no justification for courts below us, to take the course that has now resulted in the pitiable state of incertitude and incoherence in the sentencing framework in the country, giving rise to an avalanche of applications for re-sentencing. Appellants whose sentences were confirmed by the High Court and the Court of Appeal have returned to the magistrate’s courts, where, without reference to the decisions of the two superior courts, have had those sentences revised. The magistrate’s courts have also, in some instances entertained applications for re-sentencing in murder cases, clearly without jurisdiction. Likewise, some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that are pending hearing and determination, either in the High Court or the Court of Appeal, have also had their sentences revised by the magistrate’s courts without disclosing the fact that pending appeals exist in superior courts.
9.
In addition, there is no harmony in the revised sentences by the courts. The sentences which have been imposed after re-sentencing hearing range from commutation to the period served, probation, reduction of sentences to some specific period, or the preservation of the maximum sentences.
10.
It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it, In that paragraph, we stated categorically that;
48
Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”.
Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases”.
11.
The ratio decidendi in the decision was summarized as follows;
69.
Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.
We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.
12.
Likewise, our orders set out in the previous paragraphs specifically directed the Attorney General to prepare a detailed professional review “in the context of this judgment…. with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein”, and no other case.
We stated fairly clearly too, at paragraph 111 of the Judgment, the extent to which our holding was applicable as follows:
“
It is prudent for the same court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.”
13.
Further, at paragraph 71 of the judgment, the court nullified paragraphs 6.4-6.7 of the Judiciary Sentencing Policy Guidelines which were to the effect that courts must impose the death sentence in all capital offences in accordance with the law. In view of our holding in the judgment in question, those paragraphs were no longer applicable.
14.
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
15.
To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.
16.
To the extent directly relevant to the matters under review in these directions, we note the Attorney General in his Report, together with the Task Force recommended, that:
a)
Life imprisonment be substituted where the Penal Code previously provided for the death penalty, with the option of life imprisonment without parole for the most serious of crimes; and that if not abolished, the death penalty should only be reserved for the rarest of rare cases involving intentional and aggravated acts of killing.
b)
All offenders, subject to the mandatory death penalty, including those convicted and sentenced prior to 2010, who are serving commuted sentences, will be eligible for re-sentencing, including all offenders sentenced to death as at the time of the decision which was made on December 14, 2017.
c)
Where an appellant has lodged an appeal against a conviction and/or sentence, the appellate court must, at any stage before judgment, remit the case to the trial court for re-sentencing.
We note that the other recommendations in the Task Force report go beyond the terms of the orders of December 14, 2017, and deal, for example, with matters that are in the legislative province of Parliament or in the courts’ exclusive jurisdiction and judicial discretion.
17.
The appellants in this matter, we have since learnt, were presented to the High Court and heard on their plea for re-sentencing; therefore, we make no further comment on them.
18.
Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:
i.
The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;
ii.
The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;
iii.
All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
iv.
Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
v.
In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.
vi.
An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
vii.
In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;
(a)
Age of the offender;
(b)
Being a first offender;
(c)
Whether the offender pleaded guilty;
(d)
Character and record of the offender;
(e)
Commission of the offence in response to gender-based violence;
(f)
The manner in which the offence was committed on the victim;
(g)
The physical and psychological effect of the offence on the victim’s family;
(h)
Remorsefulness of the offender;
(i)
The possibility of reform and social re-adaptation of the offender;
(j)
Any other factor that the court considers relevant.
viii.
Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
ix.
These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.
19.
Orders accordingly. | Directions | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 |
Petition 20 of 2019 | Attorney General & another v Uasin Gishu Memorial Hospital Limited & another (Petition 20 of 2019) [2021] KESC 57 (KLR) (24 March 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Attorney General & another v Uasin Gishu Memorial Hospital Limited & another | [2021] KESC 57 (KLR) | null | Brief facts
Legal Notice Number 78 of 1998 established the 2nd respondent as a State corporation and appointed a board to take over the 1st respondent's hospital and properties including rights, duties, obligations, assets and liabilities. Pursuant to the legal notice, the appellants and the 2nd respondent, without following due process, compulsorily acquired the 1st respondent hospital and suit properties by ordering that its assets, rights and interests be transferred and managed by 2nd respondent under the provisions of the State Corporations Act.
The 1st respondent filed HCCC No 123 of 1998 seeking temporary orders to restrain the 2nd respondent from interfering with the hospital and its properties and the orders were granted. After publishing Gazette Notice No 6623 of August 20, 2004, expressing the intent to dissolve a number of companies, the Registrar of Companies published Gazette Notice No 815 of February 4, 2005 through which the 1st respondent was dissolved and struck off the register. On March 11, 2001, the 2nd respondent forcefully entered and took over possession of the hospital and its property. The 2nd respondent also successfully applied for HCCC no 123 of 1998 to be struck out on grounds that the 1st respondent was no longer a legal entity.
Later, the 1st respondent filed Miscellaneous Cause No. 350 of 2005, and it obtained orders for its reinstatement on the companies register. The 1st respondent then filed HC Constitutional & Judicial Review Misc. Civil Case No. 12A of 2006 (OS). In that matter it sought various reliefs including declaratory reliefs to the effect that Legal Notice No 78 of 1998 which led to the transfer of its assets and liabilities to the 2nd respondent was illegal and that its rights to property had been violated. The High Court found that the originating summons raised a property ownership dispute whose determination required viva voce evidence and not affidavit evidence. The originating summons was dismissed by the High Court which cited lack of jurisdiction to determine who the real owner of the suit property was or the nature of the 1st respondent's interest.
On appeal, the Court of Appeal found that the originating summons was competent as it raised allegations of violations of property rights. It also found that the 1st respondent was the lawful owner of the disputed property and that the High Court should have made determinations on the alleged violation of property rights and the legality of the legal notice. The Court of Appeal found that the impugned legal notice (Legal Notice No. 78 of 1998) violated the 1st respondent's rights to property and was illegal and unconstitutional. An appeal against the Court of Appeal's decision was lodged at the Supreme Court.
A cross-appeal was also filed at the Supreme Court by the 2nd respondent. Amongst the contentions of the 2nd respondent were that the suit premises comprised of public land acquired by the Government in 1961 and the Government made capital investments on the land in 1998. The 2nd respondent claimed that the 1st respondent had no interest or investment in the land. The 2nd respondent contended that the Court of Appeal had awarded a wrong-doer as the 1st respondent had fraudulently alleged that its title deed was lost and converted the land registration regime from the Registration of Titles Act to the Registered Land Act. The 2nd respondent also stated that the Court of Appeal, after finding that the originating summons was competent, should have referred the matter to the High Court to exercise its original jurisdiction. | D. Issues for Determination
43.
From the pleadings filed, the respective parties’ submissions, list and bundle of authorities, the following issues crystalize for determination:
(i)
Whether the appeal before this courtmeets the constitutional threshold under article 163(4)(a) of the Constitution?
(ii)
Whether the High Court had jurisdiction to entertain the suit before it?
(iii)
Whether the Court of Appeal had jurisdiction to entertain the appeal before it?
(iv)
What reliefs should the courtoffer?
E. Analysis and Determination
(i) Whether the appeal before this Court meets the constitutional threshold under article 163(4)(a) of the Constitution?
44.
The appellants submitted that the present appeal is proper before us as it raises questions on the interpretation and application of article 40 of the Constitution as read together with section 75 of the repealed Constitution on the protection of the right to property. Additionally, the appellants submitted that the Court needs to make a finding on the Court of Appeal’s retrospective application of section 75 of the retired Constitution in awarding compensation to the 1st respondent. The 1st and 2nd respondent did not submit on this court’s jurisdiction to entertain the instant appeal.
45.
The Supreme Court’s appellate jurisdiction is set out in article 163(4) of the Constitution of Kenya which states as follows:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
a.
As of right in any case involving the interpretation or application of this Constitution; and
b.
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5.
(5)
A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
46.
section 15(1) of the Supreme Court Act also provides that appeals to this court shall be heard only with the leave of the court. section (15)(2) of the same Act on the other hand provides that Sub-section (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.
47.
Apart from the aforementioned constitutional and legal provisions, this court has also stipulated the limits of its jurisdiction under article 163(4)(a) of the Constitution in its decisions, which decisions are still applicable. In the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Pet No 3 of 2012; [2012] eKLR, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
[28]:
“The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
48.
Further, in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Pet No 10 of 2013 this court observed as follows:
[37]:
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution…” [emphasis added].
49.
This courtreiterated the same principle in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014; [2014] eKLR (Munya 1) where we stated thus:
[69]:
“The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
50.
So then, does the present appeal raise issues of Constitutional interpretation and application and have the same issues been canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this court by way of an appeal? Having perused the Record before us (Volume IV at page 909), we note that at the High Court, the Learned Judges listed the following as issues for determination namely: whether the issues determined as preliminary points of law should be revisited; whether there was non-disclosure of material facts; the effect of other related cases; whether the originating summons discloses any constitutional issue or cause of action; and who bears the costs of the proceedings. We note that despite determining the first three issues, the High Court did not conclusively determine the fourth issue namely, whether the originating summons discloses any constitutional issue or cause of action? The learned Judges found that whereas the real issue was whether or not the fundamental rights of the Plaintiff were breached and whereas the 1st respondent claimed that the land and other assets belongs to it, the appellants claimed that the Land was government land. Consequently, the Learned Judges came to the conclusion that the Originating Summons raised a dispute as to who really is the owner of the disputed land and other assets, and that required viva voce evidence not affidavit evidence. Instead, the Court dismissed the originating summons for lack of jurisdiction.
51.
A further perusal of the Record (Volume IV at page 1064) disclose the following as the issues listed for determinations by the Learned Judges of the Court of Appeal: Whether the Originating Summons was competent? Whether the 1st respondent was a public or private entity; Whether the Hospital and suit properties belonged to the appellants or the 1st respondent; Whether the Legal Notice led to a violation of the 1st respondent’s constitutional rights, and if so whether its rights were violated; and whether the 1st respondent was entitled to the reliefs sought. In addressing the question as to whether the Originating Summons was competent before the High Court, the Learned Judges found that the Originating Summons was proper before the High Court. It also found that it was incumbent upon the High Court to determine whether or not a violation of rights had occurred due to the Legal Notice and in failing to reach a finding on a matter that was central to the dispute, the court failed to fulfill its constitutional mandate, and in so doing, misdirected itself. Instead of referring the matter back to the High Court, the Court of Appeal took it upon itself to determine the issues before it.
52.
This Court has in previous decisions emphasized the significance of respecting the hierarchy of the judicial system. In Peter Oduor Ngoge v Francis Ole Kaparo & others, SC Petition No 2 of 2012; [2012] eKLR at Par [30], we stated:
“
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”
53.
Taking all the above matters in context, we hold that this appeal, indeed, falls within the ambit of article 163(4) (a) of the Constitution and is rightly before us.
(ii) Whether the High Court had jurisdiction to entertain the appeal?
54.
The High Court is established as such under article 165 of the Constitution with unlimited original jurisdiction in criminal and civil matters and with jurisdiction to determine questions on denial, violation, infringement or threats to rights or fundamental freedoms. The article provides as follows:
“
article 165(1) There is established the High Court of Kenya, which-
….
(3)
Subject to clause (5), the High Court shall have-
(a)
Unlimited original jurisdiction in criminal and civil matters;
(b)
Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c)
…”
55.
We are aware that the decision herein was rendered before the Constitution 2010 was promulgated. Even so, the retired Constitution did make provision for the High Court’s unlimited original jurisdiction in civil and criminal matters at section 60(1) and therefore, there was no excuse for the High Court’s failure to address the issues in dispute. We therefore agree with the Court of Appeal’s finding to the extent that the High Court had a constitutional obligation to determine the issues before it and in failing to do so, the learned judges failed to fulfil their constitutional mandate.
(iii) Whether the Court of Appeal had jurisdiction to entertain the claim before it?
56.
Having found that the High Court failed to execute its constitutional mandate, the learned Judges of Appeal proceeded to address the substantive issues before them. In doing so, the appellate courtrelied on affidavit evidence, without giving parties the opportunity to present and examine evidence. We are aware that the learned judges of Appeal may have invoked section 3(2) of the Appellate Jurisdiction Act. Ordinarily, this would have been proper had all the facts and law been well presented at the trial court. It is not contested in the superior courts and even before this Court that the question of ownership of the suit premises, the legal status of the 1st respondent and compensation(if any) upon acquisition of the suit premises by the appellants and vesting the same upon the 2nd respondent are highly contested. We do agree with the High Court on its finding only to the extent that the matter could not be determined by affidavit evidence in the manner in which the suit was presented before it. Consequently, we fault the Court of Appeal for determining the substantive issues before it, which issues had not been exhaustively determined by the High Court. This act denied the parties the opportunity to be heard and effectively and exhaustively address the contested issues. For this reason, we find that both superior courts denied the parties their right to be heard as provided for in article 25 and 50 of the Constitution. We do agree with the appellants’ and the 2nd respondent’s argument that the Court of Appeal ought to have referred the matter back to the High Court for determination of contested issues. Consequently, we find error on the part of the Court of Appeal in determining the matter as it did.
iv What reliefs should the Court offer?
57.
The appellantsought that: (a) this appeal be allowed with costs; (b) the judgment of the Court of Appeal be set aside; and (c) the judgment of the High Court be affirmed. It is our finding that the High Court erred in not exercising its original jurisdiction on the issues before it and that the Court of Appeal erred in exhaustively determining issues before it without having them effectively and exhaustively determined by the High Court, and without affording the parties an opportunity to test the evidence presented by affidavit. Based on our findings above, we will allow the petition of appeal and cross-appeal but subject to the matter being heard afresh before the Environment and Land Court which, pursuant to article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act No 19 of 2011, has exclusive jurisdiction to, among others, hear and determine disputes relating to title, tenure, compulsory acquisition of land, public, private and community land. Furthermore, the Court has the requisite jurisdiction under section 13(7) of the Act to make any order and grant any relief as it deems fit and just including: interim or permanent preservation orders including injunctions; prerogative orders; award of damages; compensation; specific performance; restitution; declaration; or costs.
58.
Cognizant of the period in which it has taken for this matter to be prosecuted, the expiry date of the lease pertaining the suit premises, and in order to do justice for all the parties involved herein, we direct that the Environment and Land Court hears and determines this matter on a priority basis. Towards that end, we specifically direct the Environment and Land Court to address the following issues:
(i)
Who is the owner of Eldoret Municipality/ Block 7/125 and Eldoret Municipality/Block 7/126? How was the land acquired?
(ii)
Who owns the investment on Eldoret Municipality/ Block 7/125 and Eldoret Municipality/Block 7/126? By what means were the investments made?
(iii)
Is the Hospital on the suit land? Is it a public or a private hospital? If it is a private Hospital when was it licensed to operate as such? If it is public, does it have a license to operate as such? When was the license given? How has the hospital been running?
(iv)
Who is the 1st respondent? Is it a public body or a private entity? Has the 1st respondent been paying taxes? If not, why?
(v)
Who have been the Board Members of the 1st respondent? Have they ever changed? If yes, why and when did they change?
(vi)
Who is the Board? Why did the District Commissioner significantly chair the affairs of the 1st respondent over the years? On whose authority did District Commissioner chair?
(vii)
How did the Directorship of the 1st respondent move to the Government?
(viii)
If the 1st respondent were to be found to be entitled to compensation and can claim the same, what mechanism should be used to quantify the same?
(ix)
What is Legal Notice No 78 of 1998? What is its legal status?
(x)
What is the legal status of Gazette Notice No 6623 of 20th August 2004, published by the Registrar of Companies giving a notice of intended dissolution of a number of companies, including the 1st respondent?
(xi)
What is the legality of Gazette Notice No 815 of 4th February 2005 by which the 1st respondent was dissolved?
59.
As to the questions of costs in this matter, this courthas previously settled the law on award of costs: that costs follow the event, and that a judgehas the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC. Petition No 4 of 2012: [2014] eKLR. Considering our findings above, that it is the High Court that failed to exercise its constitutional mandate in the matter before it and further that the Court of Appeal exercised jurisdiction that it ought not to have exercised, and further that now we are sending the matter to the Environment and Land Court for determination of the specified issues, we find that there should be no order as to costs.
60.
Consequently, we make the following orders:
(i)
The Petition of Appeal dated May 28, 2019 and filed on an even date and the Cross-appeal dated and filed on June 7, 2020be and is hereby allowed in the following specific terms:
(a)
The Judgment and order of the Court of Appeal dated October 6, 2017 be and is hereby set aside.
(b)
The Judgement of the High Court dated March 19, 2010 be and is hereby set aside.
(c)
For the avoidance of doubt, the Judgment of the High Court is null and void.
(d)
The matter is hereby remitted to the Environment and Land Court for determination of the issues specified herein.
(ii)
Each party shall bear their own costs.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/57/eng@2021-03-24 |
Petition (Application) 22 of 2017 | County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party); Siaya County Assembly Service Board (Proposed Interested Party) (Petition (Application) 22 of 2017) [2021] KESC 54 (KLR) (24 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party); Siaya County Assembly Service Board | [2021] KESC 54 (KLR) | null | 1.
The Applicant seeks joinder in Petition 22 of 2017, The County Assemblies Forum vs. The Hon. Attorney General & 5 others, in the capacity of an interested party. Its Notice of Motion is dated and filed on 26th February 2020, and supported by an affidavit sworn by Eric Ogenga, Acting Secretary of the Siaya County Assembly Service Board, on the same date. The Application is premised on Articles 25(c), 50(1), 127(1) and 6(e) (i) of the Constitution of Kenya, Sections 3 and 24(1) of the Supreme Court Act, 2012, and Rules 3 and 25(1) of the Supreme Court Rules, 2012(now revoked).
2.
In addition to the grounds set in the application, the Applicant filed its written submissions on 12th March 2020. It is the Applicant’s case that between the year 2013 and 2014, it advanced car and mortgage loan facilities to former members of the first Assembly to be repaid within five years of their term in office from their salaries. The Applicant submits that it intends to raise issues related to the appeal before us, which issues include that: a majority of Members of Siaya County Assembly Service Board have been unable to repay their outstanding loans; that the said members have petitioned it to write off the outstanding mortgage debt and accruing interest as at 8th January 2019, and extend the loan repayment period until the final conclusion and determination of the Supreme Court Matter.
3.
The Applicant alleges further that the Petitioner has failed to accommodate the foregoing concerns within the body of the Petition and declined to update it on the case pending before us. It also contends that no prejudice will be occasioned to the Petitioner and the Respondents. The Applicant cites several legal provisions and cases to support its argument including Section 23 of the Supreme Court Act, Rule 25 of the Supreme Court Rules, 2012, Judicial Service Commission vs. Speaker of the National Assembly & 8 others, [2014] eKLR, Trusted Society of Human Rights Alliance vs. Mumo Matemo & 5 others [2014] eKLR and Francis Karioki Muruatetu &another vs. Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016]eKLR (the Muruatetu Case)
4.
Opposing the application, the 2nd Respondent (the Independent Electoral and Boundaries Commission), filed its written submissions on 14th May 2020 whereby it submits that the Applicant has not met the principles and threshold for joinder as an interested party. In that regard, it urges that the Applicant has not demonstrated a personal interest or stake it has in the determination of the petition herein, and which interest cannot be effectively canvassed by the parties on record. The 2nd Respondents submits that the issue for determination before us concerns the violation of the constitutional rights of the Petitioner as a group of first elected Members of County Assembly under the new Constitution contrary to the issue being advanced by the Applicant, the inability of the Members of Siaya County Assembly to service the mortgage advanced by them owing to their reduced term of office. The 2nd Respondent urges that the issue can be canvassed by the Petitioner and the outcome determined on all Members of County Assemblies. The 2nd Respondent also contends that the Applicant has not substantiated its allegations that the Petitioner has failed to address their concerns in the petitioner.
5.
Furthermore, the 2nd Respondent urges that the mortgages between the Applicant and its former Members of County Assembly does not amount to sufficient stake in the matter and that the taking of a loan is a separate and independent arrangement from the term of office of a Member of a County Assembly. The 2nd Respondent maintains that the Applicant has not demonstrated how the orders being sought by the Petitioner would specifically have a legal impact on the discharge of the Applicant’s mandate. The 2nd Respondent adds that its interests can be adequately advanced by the Petitioner.
6.
The 2nd Respondent also submits that the Applicant has not demonstrated the prejudice it will suffer if it is not enjoined in the petition and that its presence will not add value or alter the cause of the proceedings as any and all of the submissions that will be made will be a replication of the averments of the Petitioner. It relies on the Muruatetu Case to support its argument.
7.
The 2nd Respondent also urges that allowing the application will open a flood gate of similar applications from 46 other similar statutory bodies and consequently occasion delay in in determination of the petition. The 2nd Respondent prays that we dismiss the instant application.
8.
We have taken note that on 13th October 2020 when this matter was mentioned before the Hon. Deputy Registrar, Learned Counsel, Mr. Achiando holding brief for Mr. Mbarak for the Interested Party confirmed that they did not intend to file any submissions. Learned Counsel Mr. Njenga for the Petitioners did not indicate whether or not the Petitioner is opposed to the Application. Mr. Muge who was present for the 3rd Respondent did not indicate the position taken by the 3rd Respondent in respect to the Application. The Hon. Attorney General, and the 4th Respondents were not represented.
9.
An applicant for joinder has to satisfy this Court that he or she has fulfilled the legal requirements for joinder. The relevant law is Rule 24 of the Supreme Court Rules 2020 (previously 25 of the Supreme Court Rules, 2012). The said Rule provides as follows:
“
(24) (1)
A person may, within seven days of filling a response in any proceedings, apply for leave to be enjoined as an interested party.
(2)
An application under sub-rule (1) shall include-
a)
A description of the interested party;
b)
A depiction of such prejudice as the interested party would suffer if the intervention was denied; and
c)
The grounds or submissions to be adduced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties…” [emphasis supplied]. | 10.
This Court has set the criteria for joinder as an interested party in the cases of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013; and Francis Karioki Muruatetu & Another v. Republic & 5 Others, Petition 15 as Consolidated with 16 of 2013 [2016] eKLR.
11.
We have noted in the instant matter that the Applicant seeks joinder to have its concerns included within the body of the Petition of appeal before us. The concerns alluded to include: it advanced car and mortgage facilities to former members of the 1st Assembly to be repaid within five years of their term in office from their salaries; that a majority of the members have been unable to repay their outstanding loans; and that the said members have petitioned the Applicant to write off the outstanding mortgage debt and accruing interest owed by each of them; and extend the loan payment period until the final conclusion and determination of the Supreme Court matter. The Applicant is in essence introducing new issues that are not pending before us.
12.
Furthermore, the Applicant has not advanced any submissions that will be helpful to the Court as regards the main issue before us. We decline to allow the Applicant to introduce a new cause of action contrary to this Court’s previous decisions mentioned above. Furthermore, we are not convinced that the Applicant will be suffer any prejudice if its intervention is denied as its interest will be well ventilated by the Petitioner, whereby the Applicant is a member. Towards that end, we are inclined to dismiss the application.
13.
The costs of this application shall follow the event as was decided by this Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. Hence, the Applicant shall bear the 2nd Respondent’s costs incurred in this application.
14.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 26th February 2020 and filed on even date be and is hereby dismissed.
ii.
The Applicant shall bear the costs of the 2nd Respondent.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/54/eng@2021-03-24 |
Application 12 of 2020 | Dhanjal Investments Limited v Cosmos Holidays PLC (Application 12 of 2020) [2021] KESC 53 (KLR) (24 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Dhanjal Investments Limited v Cosmos Holidays PLC | [2021] KESC 53 (KLR) | null | 1.
The Applicant seeks review of the decision by the Court of Appeal dated 22nd May 2020, which declined to grant certification that its intended appeal involves matters of general public importance.
2.
At the heart of the matter is the interpretation of Sections 3 (3) (b); 4 (1) (a), (b), (c), (i) and (g), of the Foreign Judgments (Reciprocal Enforcement) Act. In brief, the background of this matter is an incident that occurred between the 3rd and 4th of May 2000. The Applicant, a Hotelier, operating the Travellers Beach Hotel, and Mwaluganje Elephant Camp in Kwale County, entered into a contract with the Respondent, a tour operator, based in the United Kingdom to supply to them with “Package holiday tourists” to be accommodated at their Hotels. Unfortunately, on the night between the 3rd and 4th of May 2000, 9 tourists who were at Mwaluganje Elephant Camp Kwale County were attacked by a group of robbers causing them to be injured. Consequently, they filed suit in the United Kingdom, for recovery of damages for injuries that they had sustained, during that attack.
3.
The decision in that suit that is No. 6LS90055 in the Queen’s Bench Division of the High Court in England dated 10 August 2009 was registered here in Kenya on the 16th March 2012. | 4.
Upon notification of the registered judgement, the Applicant filed at the High Court, HCCC No 112 of 2012 (OS). In a decision rendered on the 20th of June 2013, Justice Havelock (as he then was) dismissed the application finding that: both Section 3 (3) (b) and Section 4 (1)(i) of the Foreign Judgments Reciprocal Enforcement Act Cap 43 were inapplicable to the matter; that the English Court did have jurisdiction to decide the matter before it; and that the Applicant /Judgement Debtor being the defendant in the English Court submitted to the jurisdiction of the court by voluntarily appearing in the proceedings.
5.
Aggrieved, the Applicant filed Civil Appeal No. 317 of 2013, at the Court of Appeal which upon hearing the parties and giving judgement and final orders upheld the decision of the High Court. Specifically, the Appellate court stated that
“
the Kenyan court will not re-examine the merits of the foreign Judgment, which is enforced on the basis that the Judgment debtor has a legal obligation as a matter of common law, recognized by the High Court, to satisfy the money decree of the foreign Judgment.”
6.
On applicability of the impugned Sections, they agreed with the reasoning of the High Court finding that there was no reason to differ from the appreciation of the documents made available to the trial court or the assessment and conclusions reached thereon. They noted that the foundation of the foreign Judgment was a contract made between the appellant and the respondent and that it was the interpretation of that contract that engaged the English courts, at both the trial and the appeal stages. Additionally, it was their finding that the full Judgments of those courts were part of the record of appeal, and they were able to verify that it was the construction of the indemnity clause in the contract that engaged the English courts, even before the quantum of the loss claimed by Cosmos was assessed.
7.
They also rejected the Applicant’s contention that under Sections 4 (1) (i) and (g) of the Act, the claim was based on personal injuries and that in that light, there was no jurisdiction on the part of the English courts to deal with it as the cause of action arose in Kenya.
8.
Further Aggrieved, the Applicant filed a Noticed of Motion Application dated 23rd May 2018, at the Appellate Court seeking certification and leave to appeal to the Supreme Court against the Court of Appeal’s decision on the premise that the intended appeal raises issues of general public importance as well as issues of law, more specifically on enforcement of the provisions of the Foreign Judgments (reciprocal) Enforcement Act Cap 43.
9.
The appellate Court declined to grant certification finding that it did not warrant a substantial point of law to be determined by the Supreme Court that would be relevant to the general public interest as it did not result in any uncertainty, neither was it contradictory. The learned Judges were of the opinion that all the questions were exhaustively addressed in the United Kingdom as the Applicant had sought appeal of the original decision before it came before the High Court in Kenya. The appellate Judges were also of the opinion that the application before it was but an attempt by the Applicant to have a fifth bite at the cherry, and that the law in Kenya properly recognizes and provides for instances where enforcement of Judgments passed in countries outside Kenya and which accord reciprocal treatment to Judgments passed in Kenya are allowed.
10.
The Court of Appeal therefore found that all the issues raised by the Applicant were properly and correctly addressed by that Court adding that there was no question of law to be determined or uncertainty to be clarified by the Supreme Court that was of great public interest. It is that determination that prompted the application before us.
11.
In the present motion, the Applicant proposes the following as questions of law and general public importance worth of consideration by the Supreme Court namely:
i.
Novel and extremely important matters of law, regarding interpretation, and application of the law relating to Enforcement of Foreign Judgments in Kenya, as provided in the Foreign Judgments (Reciprocal Enforcement) Act, Cap 43, Laws of Kenya.
ii.
The proper interpretation and correct application of the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 43, Law of Kenya, in relation to Judgments obtained in Courts outside Kenya.
12.
In its submissions dated 3rd June 2020 and filed on the 3th of June 2020, the Applicant urges that the world as a global village, makes it inevitable that the issues involving registration of foreign Judgments multiply and continue and it would therefore be imperative for the Court to make its conclusive pronouncement on the interpretation and application of the relevant provisions of the Fore The Foreign Judgments (Reciprocal Enforcement) Act.
13.
The application is opposed by the respondent who has filed a Replying Affidavit sworn by Lawson Ondieki on 15th June 2020, filed on the 16th of June 2020 as well written submissions also dated on the 15th of June 2020 and filed on 16th of June 2020.
14.
It is the Respondent’s submission that this case fails to satisfy the conditions set by this Court in Hermanus Phillipus Steyn v. Giovanni Gnechhi – Ruscone, Supreme Court application No. 4 of 2012; [2013] eKLR (Hermanus Case) as one of general public importance. They urge that the applicant has failed to identify any points of general public importance; that none of the matters raised transcend the circumstance of this case; and that this is just but a further attempt to re-argue matters which have already been determined by the High Court and the Court of Appeal as well as the English High Court and Court of Appeal.
15.
It is their contention that the Applicant submitted to the jurisdiction of the English Courts by executing the contract containing the exclusive jurisdiction provision and by fully participating and defending proceedings in England. In that regard, they submit that the claim was for indemnity and/or damages pursuant to a contract, and that the respondent was aware of its obligations in England. It is also contended that the tourists were not parties to the proceedings which gave rise to the Registered English Judgement which they emphasize is not for exemplary, punitive or multiple damages contrary to Section 3(3)(b) of the Foreign Judgement (Reciprocal) Enforcement Act.
16.
As properly cited by both parties, the criteria for certification has long been settled in many decisions of this Court which set principles governing what constitutes matters of ‘general public importance.’ In the Hermanus Case, Malcom Bell v. Hon. Daniel Toroitich arap Moi & another, Sup. Ct Application No. 1 of 2013 and Town Council of Awendo v Nelson Oduor Onyango & 13 others, Misc. Application No. 49 of 2014; [2015] eKLR it was our determination that for an intended appeal to qualify as a matter of general public importance, it must be one, the determination of which transcends the circumstances of the particular case and has a significant bearing on the public interest. It is therefore our mandate at this point to determine whether the Applicant’s case meets the criteria set by this Court in the above-mentioned cases.
17.
Having considered the application before us, on perusal of record, it is revealed, as correctly noted by both the High Court and the Court of Appeal, that the decision of the English Superior Court did not include the payment of monies by way of exemplary, punitive or multiple damages. Accordingly, that finding excludes the application of Section 3 (3) (b) of the Foreign Judgments Reciprocal Enforcement Act Cap 43. Further, that Section 4 (1) (i) of the Act does not apply as the suit whose Judgement has been registered here, had nothing to do with personal injuries or damages in relation to the said tourists. Additionally, that Section 10 (2) (c) and (4) of the Act clearly gives the English Courts jurisdiction over matters arising out of the contract between parties including the indemnity contained therein.
18.
We also take note of the finding that the circumstances surrounding the claim of indemnity and or damages pursuant to the contract in respect of the respondent’s liability to a group of 9 tourists who suffered injuries, whilst staying at a tented camp operated by the Applicant were evidentiary matters which were specific to the parties hereto and are therefore not grounds to grant certification.
19.
We therefore agree with the determination of the appellate court that the matter before us does not warrant a substantial point of law to be determined by this Court that would be relevant to general public interest as it does not result in any uncertainty, neither is it contradictory.
20.
Additionally, we note that the Applicant willingly participated in the proceeding in the English Superior Courts, where they litigated the matter until the appellate stage and in doing so, the Applicant exhaustively addressed the initial claim. We must emphasize that the opportunity to invoke the jurisdiction of this Court that a matter involves issues of public importance is not an opportunity for parties to continue litigation nor does it present an extra tier of appeal from the Court of Appeal.
21.
Accordingly, we find that the present Application does not comply with the principles articulated by this Court in the Hermanus Case and is one for dismissal.
22.
Consequently, we make the following orders;
i.
The Application dated 3rd June 2020 is hereby dismissed.
ii.
The Applicant shall bear the costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/53/eng@2021-03-24 |
Civil Application 20 of 2020 | Ecobank Kenya Limited v Meya Agri Traders Limited (Civil Application 20 of 2020) [2021] KESC 58 (KLR) (24 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Ecobank Kenya Limited v Meya Agri Traders Limited | [2021] KESC 58 (KLR) | null | 1.
Before the Court is a Notice of Motion Application dated 30th July 2020 and filed on 11th August 2020, brought pursuant to Rule 15(2) of the Supreme Court Rules, 2020, and is premised on several grounds in the body of the application and the Supporting Affidavit of Caroline Mbenge, the Head of Legal and Company Secretary of the Applicant sworn on 30th July 2020.
2.
The Application raises one issue for determination by this Court, namely, whether this Court should grant an extension of time for the Applicant to file a Notice of Appeal?
3.
Rule 15(2) of the Supreme Court Rules, 2020 grants this Court the discretion to extend time in the following specific terms:
"The Court may extend the time limited by these Rules or by any decision of the Court”
4.
The timelines for filing a Notice of Appeal are provided for under Rule 36(1) which states that a Notice of Appeal shall be filed within fourteen days from the date of the judgment or ruling which is subject of appeal. Sub-Rule (4) provides that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
5.
In the present case, we note the Judgment of the Court of Appeal was delivered on 5th June 2020. Accordingly, the last day for filing the Notice of Appeal was 19th June 2020. An application for extension of time before this Court was not done until 11th August 2020 some 51 days later. | 6.
This Court has set the guiding principles on extension of time in the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC. Application No. 16 of 2014; [2014] eKLR as follows:
"… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
7.
Further, this Court has emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR.
8.
In a bid to justify why the Notice of Appeal could not be filed within the time, the Applicant avers that their then firm of advocates on record was based in Nakuru County, hence they could not travel to Nairobi discuss the Judgment with their clients and file a Notice of Appeal at the Court of Appeal Registry in Nairobi as movement to and from Nairobi was prohibited in a bid to contain coronavirus pandemic. The Applicant does not explain why it could not consult with its advocates via email, teleconferencing, skype, zoom, google teams or any other available channel so as to instruct its advocates on whether or not to file an appeal.
9.
The Applicant also chose to remain mum on Rule 6 of the Court of Appeal Rules which makes provision for Registry and sub-registries. Pursuant to sub-rule 3, “the appropriate registry” in case of an appeal from the High Court of Kenya sitting in Nakuru should be Nakuru. We have taken note of the fact that the Judgment that was subject of appeal before the Court of Appeal originated from the High Court of Kenya at Nakuru. Therefore, there is no justified reason why the Applicant could not file its Notice of Appeal at the sub-registry in Nakuru which was within its advocates’ jurisdiction and not affected by the cessation of movement.
10.
Furthermore, this Court takes judicial notice that on 16th April, 2020, W. Korir J, in Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others ; Kenya National Commission on Human Rights & 3 others (Interested Parties), HC Petition No. 120 of 2020(COVID 025); [2020] eKLR, issued an order of mandamus compelling Cabinet Secretary for interior and coordination of national government, to amend the Schedule to the Public order (State Curfew) order, 2020 so as to include the members of the Law Society of Kenya in the list of “services, personnel or workers” exempted from the provision of the Public Order (State Curfew) Order, 2020. We also take note that lawyers were subsequently issued with an essential service provider Identity card to enable them to move within and out of the areas restricted by Public Order (State Curfew) Order, 2020. We therefore find the Applicant’s argument that its then advocates were unable to travel untenable.
11.
We also find the Applicant’s assertion, that it could not file the instant application on time because both the Supreme Court and the Court of Appeal Registries in Nairobi remained closed and therefore inaccessible to members of the public, incorrect. We note that even though service delivery in the Judiciary scaled down, services were still offered, and urgent applications prioritized. Furthermore, the Applicant failed to utilize the online filing platform to comply with set timelines. We find that the delay in bringing the instant application late has not been sufficiently justified.
12.
The Applicant submitted that the Court of Appeal’s decision has the likelihood of disrupting the Kenyan Banking industry and the standard banking practices which have been adopted over time thereby negatively affecting many financial institutions. On this, we have taken note of the issues for determination both at the High Court and at the Court of Appeal and are convinced that none of them are for the public interest to persuade us to extend time.
13.
Towards that end, the application for extension of time to file a notice of appeal fails with costs to the Respondent.
14.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 30th July 2020 and filed on 11th August 2020be and is hereby dismissed.
ii.
The Applicant shall bear the costs of the Respondent.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/58/eng@2021-03-24 |
Civil Application 19 of 2020 | Haki Na Sheria Initiative v Inspector General of Police, Cabinet Secretary for Internal Security & Attorney General; Kenya National Human Rights and Equality Commission(Interested Party) (Civil Application 19 of 2020) [2021] KESC 55 (KLR) (Civ) (24 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Haki Na Sheria Initiative v Inspector General of Police, Cabinet Secretary for Internal Security & Attorney General; Kenya National Human Rights and Equality Commission(Interested Party) | [2021] KESC 55 (KLR) | null | 1.
Upon perusing the Notice of Motion application by the Applicants dated 5th August 2020, and filed on 6th August 2020, which application is brought pursuant to the provisions of Article 159 of the Constitution of Kenya, Section 21 (2) and 24 of the Supreme Court Act, and Rule 53 of the Supreme Court Rules, 2012 (now revoked) in which the Applicants seek extension of time to file an appeal out time; and
2.
Upon perusing the supporting affidavit of Counsel for the Applicant, Jibril Noor, sworn on 5th of August 2020; and
3.
Upon considering the written submissions by the Applicant dated 5th August 2020, and filed on the 6th of August 2020 wherein the Applicant contends that the delay in filing the Petition of Appeal was occasioned by technical issues and failure of the e-filing system of the Court to upload the Petition of Appeal in spite of numerous attempts to do so; and | 5.
HAVING considered the application and the submissions filed by the Petitioner/Applicant, we note that under Rule 15(b) of this Court’s Rules, 2020, the Court may, on its discretion extend time for any action under the Rules. As pleaded by the Applicant, this Court has already set the guiding principles for extension of time in the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, Supreme Court Application No 16 of 2014, [2014] eKLR, where the Court emphasized that extension of time is not a right of a party, but would be considered on a case by case basis with the onus on the Applicant seeking extension to lay the basis and give proper explanation to the satisfaction of the Court, the reason for delay; and
6.
Upon noting that in this case, the Applicant, having timeously lodged their notice of appeal has also provided sufficient explanation for the delay in filing of the Petition of Appeal; and
7.
In the circumstances, we allow this application and make the following Orders;
a.
The Application dated 5th August 2020, and filed on the 6th of August 2020 is hereby allowed.
b.
The Applicant shall bear the costs of this Application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/55/eng@2021-03-24 |
Petition (Application) 46 of 2019 | Housing Finance Company of Kenya Limited & another v Hirji (Sued as attorney for Firoze Nurali Hirji); Hirji (Applicant) (Petition (Application) 46 of 2019) [2021] KESC 71 (KLR) (Civ) (24 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Housing Finance Company of Kenya Limited & another v Hirji (Sued as attorney for Firoze Nurali Hirji); Hirji (Applicant) | [2021] KESC 71 (KLR) | null | 1.
On the 25th of September 2020, this Court, (Lenaola, SCJ) adopted as an Order of this Court, a Consent dated 10th of September 2020, marking Petition of Appeal No. 46 of 2019 as settled. It was noted that on record, there was a letter by Taib A Taib Bajaber, Advocate, who is not a party to the proceedings, but was opposed to adoption of the Consent Order.
2.
The Applicant, Firoze Nurali Hirji, in his Notice of Motion Application dated 1st October 2020, and filed on 13th October 2020, supported by his affidavit deponed on 1st of October 2020, and in his submissions filed on 1st October 2020, and supplementary submissions dated 22nd October 2020, seeks the following orders:
i.
An interim stay of enforcement of the consent order dated 10th September 2020, as adopted by this Honorable Court on the 25th of September 2020 as against the 1st Appellant and its agents.
ii.
That the Consent order dated 10th September 2020 and adopted by this Court on the 25th of September 2020 be set aside.
iii.
That the 1st Appellant’s Petition/Appeal No. 46 of 2019 filed in this Court be struck out with costs for want of jurisdiction.
iv.
That stay of execution of the Court of Appeal’s Judgment pending Petition/Appeal granted by this Honorable Court be lifted.
v.
That costs of this Application be provided for.
3.
In his submissions, the Applicant reiterates the grounds of his application and states that the subject consent was entered into without his knowledge yet he is the principal under the Power of Attorney whose proprietary interests are at the risk of being substantially prejudiced. He states that he only learnt about the Consent after the fact, and on this ground it ought to be vitiated.
4.
Secondly, he urges that the Court ought to have independently satisfied itself of its jurisdiction over the entire subject matter/dispute before making a determination as to whether or not to adopt the Consent, as it did, on the 25th of September 2020.
5.
Citing Phoenix of EA Assurance Company Limited v S.M Thiga t/a Newspaper Service [2019] where the Court found a nullity all orders emanating from a suit filed in a court devoid of jurisdiction, he argues that this Court ought to have been satisfied that it had jurisdiction to make the consent order, and as it is his case that the Court lacks jurisdiction, it follows that the consent order is null and void.
Citing Republic v Procurement Administrative Review Board Ex- Parte Symphony Technology Limited (Kenya) & 2 Others [2016] eKLR, he argues that a donee only acts on behalf of the donor and a case in a suit always belongs to the donor or principal who is entitled at law to bring legal proceedings.
7.
The Applicant submits that he neither seeks to re-litigate the issue determined by the Court in its Ruling of 4th September 2020 (when it declined to determine the question of representation for want of jurisdiction), nor to be declared a substantive party in the matter but rather, he contends that he is a substantive party who ought to have been consulted in the consent.
8.
In opposing the application, the 1st and 2nd Appellants filed a replying affidavit deposed by Regina Anyika, the Company Secretary and Director of Legal, Housing Finance Company Limited, sworn on 15th October 2020 filed on 19th of October 2020.
9.
The Application is also similarly opposed by the Respondent Sharok Kher Mohamed Ali Hirji vide a Replying Affidavit sworn on 15th October 2020 lodged on 16th of October 2020.
10.
It is the case of both Appellants and supported by the Respondent) that the Applicant is a stranger to these proceedings; that he is not a proper party in these proceedings, as he was also not party to the proceedings either at the High Court or the Supreme Court, and therefore, they argue that he does not have the right to appear either in person or through his duly appointed representative to make an application for review.
11.
They contend that this current application introduces novel facts, namely, the dispute between the Applicant and the respondent on the power of Attorney, upon which no evidence has been led nor determination made in the courts below, and that the only option in this instance would be fresh action in an appropriate court. Additionally, that where a party wishes to set aside a consent judgement, there are only two options, review or a fresh action as held in Flora N Wasike v Destimo Wamboko [1988] eKLR.
12.
Citing this Court’s decision in Geoffrey M Asanyo & 3 Others v Attorney General [2018] eKLR, is the Appellants submit that the issues about the consent are being raised by a person who was not a party to the Consent Order, and the principle of privity of contract means that the rights and obligation of a contract, as the case may be, can only be enjoined or enforced by the parties to the same.
13.
Further, they cite the Canadian Supreme Court’s case in Rick v Brandsema 2009 SCC 10 where that court stated that a consent judgement is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent, which they submit means that once a party has compromised the matter by consent, the Court has no power to go behind and enquire if the Court had jurisdiction to entertain the underlying dispute.
14.
They conclude by urging that this Application is an abuse of the court process, as the orders sought are largely similar to those in the previous application in the appeal. | 15.
Having considered submissions from all parties, we observe that it is not in dispute that this Court’s decision (Maraga, CJ & P, Mwilu DCJ & VP, Ibrahim,Wanjala, Njoki, SCJJ) delivered on the 4th of September 2020, declined to delve into the issue of the proper representative of the principal, as in doing so, would be making a factual finding, which the Court did not have the requisite jurisdiction to do. Having done so, the proper parties to the suit at the time of that decision remained Housing Finance Company Kenya, Watts Enterprises Limited and Sharok Kher Mohamed Ali Hirji. The Applicant was not a party in that matter.
16.
Consequently, and as a result of that 5-bench decision of this Court, the parties to the suit, entered into a Consent before Lenaola SCJ, in which they agreed to compromise the entire suit by a Deed of Settlement dated 11th December 2019, marking Petition No. 46 of 2019 as settled.
17.
We are persuaded the High Court’s decision in in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485, where Harris, J held, inter alia, that -
1.
A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2.
A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.”
18.
The Applicant is neither a party to previous related proceedings before this Court, and even then, he has not shown that the consent was based on fraud, collusion or by an agreement contrary to the policy of the Court given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement.
19.
Furthermore, the Applicant is not disputing that the respondent was a holder of the power of attorney and instituted the suit from the High Court to the Court of Appeal resulting in several decisions of the given Courts. However, he challenges extent, nature and validity of such power and consequent authority to deal with the matter. This is a factual dispute that cannot be resolved by this Court.
20.
We are therefore unable to find merit in his application and move to dismiss it, and consequently make the following orders:
(i)
The Notice of Motion dated 1st October 2020 and filed on 13th October 2020 is hereby dismissed.
(ii)
The Applicant shall bear the costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/71/eng@2021-03-24 |
Petition 42 of 2019 | Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others (Petition 42 of 2019) [2021] KESC 35 (KLR) (24 March 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others | [2021] KESC 35 (KLR) | null | Brief facts
The 3rd respondent was employed under a three-year employment contract by the Kenya Vision 2030 Delivery Board (the Board) in the position of Director. The contract was renewable six months before its expiry. The 3rd respondent's employment contract was not renewed on grounds that his performance was below par. The 3rd respondent appealed to the Minister for Planning and National Development and Vision 2030 (the Minister). The Minister renewed his contract for a year but the Board declined to allow him back to work.
The 3rd respondent then sought the assistance of the Commission on Administrative Justice (CAJ). The conclusions of CAJ were that the Board violated articles 47 and 59 of the Constitution of Kenya, 2010 (Constitution) as well as sections 2 and 8(a), (b), and (d) of the Commission on Administrative Justice Act on fair administrative action. CAJ recommended the Board to pay the respondent the equivalent of twelve months' salary and allowances in compensation for the one-year period of the reviewed contract, to allow the 3rd respondent to collect his personal effects from his former office and offer him an unconditional apology for how they had treated him. The Board declined to implement the recommendations and CAJ filed judicial review proceedings at the High Court.
The High Court's findings were that it could not compel the implementation of CAJ's recommendations and that the only thing that CAJ could do when an organization failed to implement its recommendations was to make a report to the National Assembly which would take appropriate action under section 44(4) of the Commission on Administrative Justice Act. Generally, the High Court stated that since CAJ lacked coercive power to compel the implementation of its recommendations, the court could also not compel a Government agency to implement the recommendations. An exception to those rules which would allow the court to compel the implementation of such recommendations was where there was a gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to a denial of a settled right to which the petitioner was entitled, and there was no other plain, speedy and accurate remedy. An appeal was lodged against the High Court's decision.
The Court of Appeal allowed the appeal and granted the orders of mandamus as sought and also monetary compensation for violation of fair administrative action rights. The Court of Appeal stated that CAJ's options in situations where its recommendations were not implemented were not limited to reporting to the National Assembly. It explained that article 254 of the Constitution did not suggest that recommendations had no force of law or were incapable of enforcement by a court of law. | C. Issues for Determination
27.
From the above submissions, the following issues crystalize for determination:
i.
Whether the recommendations of CAJ are binding on public bodies and if public bodies have an obligation to implement CAJ’s recommendations?
ii.
Whether the Court of Appeal had jurisdiction to award damages?
iii.
If the answer to (i) is in the affirmative, what are the appropriate reliefs?
(i) Whether the Recommendations of CAJ are Binding on Public Bodies?
28.
CAJ is established under section 3 of the CAJA as a successor to the Public Complaints Standing Committee. The CAJA is an Act of Parliament to restructure the Kenya National Human Rights and Equality Commission Justice pursuant to article 59(4) of the Constitution. Regarding the powers of CAJ, section 5 of the CAJA specifically provides as follows:
“
In addition to the powers of a Commission under article 253 of the Constitution, the Commission shall have power to—
(a)
acquire, hold, charge and dispose of movable and immovable property; and
(b)
do or perform all such other things or acts for the proper discharge of its functions under the Constitution and this Act as may lawfully be done or performed by a body corporate.”
Section 5 implies that the powers conferred upon CAJ are in addition to the power of commissions in article 253 of the Constitution. Article 253 of the Constitution makes provision for incorporation of Commissions, whilst article 254 of the Constitution makes provision for reporting by the same.
29.
All constitutional Commissions and independent offices have an obligation under article 254(1) of the Constitution, “as soon as practicable, after the end of each financial year to submit a report to the President and to Parliament”. These reports may be limited to a particular issue. From the foregoing provisions, it is evident to us that the CAJA was to give effect to article 59(4) of the Constitution. CAJ is also bound by the provisions of article 254(1) of the Constitution. We therefore find fault in the Court of Appeal’s conclusion that the reporting that is anticipated to be done by CAJ to Parliament, is separate or different from the reporting of its investigative report undertaken in discharge of its mandate in any given year. [30] Further, the CAJA is clear on the functions of the CAJ in the following terms:
“
[8]. The functions of the Commission shall be to—
(a)
investigate any conduct in state affairs, or any act or omission in public administration by any State organ, State or public officer in National and County Governments that is alleged or suspected to be prejudicial or improper or is likely to result in any impropriety or prejudice;
(b)
investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector;
(c)
report to the National Assembly bi-annually on the complaints investigated under paragraphs (a) and (b), and the remedial action taken thereon;
(d)
inquire into allegations of maladministration, delay, administrative injustice, discourtesy, incompetence, misbehavior, inefficiency or ineptitude within the public service;
(e)
facilitate the setting up of, and build complaint handling capacity in, the sectors of public service, public offices and state organs;
(f)
work with different public institutions to promote alternative dispute resolution methods in the resolution of complaints relating to public administration;
(g)
recommend compensation or other appropriate remedies against persons or bodies to which this Act applies;
(h)
provide advisory opinions or proposals on improvement of public administration, including review of legislation, codes of conduct, processes and procedures;
(i)
publish periodic reports on the status of administrative justice in Kenya;
(j)
promote public awareness of policies and administrative procedures on matters relating to administrative justice;
(k)
take appropriate steps in conjunction with other State organs and Commissions responsible for the protection and promotion of human rights to facilitate promotion and protection of the fundamental rights and freedoms of the individual in public administration;
(l)
work with the Kenya National Commission on Human Rights to ensure efficiency, effectiveness and complementarity in their activities and to establish mechanisms for referrals and collaboration; and
(m)
perform such other functions as may be prescribed by the Constitution and any other written law."
30.
From the foregoing provisions, it is not contested that CAJ is mandated to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector. We therefore agree with both superior courts’ finding that CAJ was mandated to entertain and make recommendations with regard to the 3rd respondent’s complaint.
31.
Under section 29 of the CAJA, once it has investigated a complaint arising from the carrying out of an administrative action of a public officer or any other public body, CAJ is under mandatory obligation to resolve the matter before it by conciliation, mediation or negotiation. If the matter cannot be resolved, and it determines that the administrative action was carried out unjustly or unreasonably, the CAJ shall make such recommendations as it deems fit.
32.
Section 41 of the CAJA also provides for action to be taken by CAJ following an inquiry in the following terms:
“
The Commission may, upon inquiry into a complaint under this Act take any of the following steps—
(a)
where the inquiry discloses a criminal offence, refer the matter to the Director of Public Prosecutions or any other relevant authority or undertake such other action as the Commission may deem fit against the concerned person or persons;
(b)
recommend to the complainant a course of other judicial redress which does not warrant an application under article 22 of the Constitution;
(c)
recommend to the complainant and to the relevant governmental agency or other body concerned in the alleged violation, other appropriate methods of settling the complaint or to obtain relief;
(d)
provide a copy of the inquiry report to all interested parties; and
(e)
submit summonses as it deems necessary in fulfilment of its mandate. “
33.
Furthermore, under section 44 of the CAJA, where CAJ concludes that the person or State Organ or public office or organization being investigated is guilty of misconduct, it has an obligation to report the matter to the appropriate authority.
34.
The bone of contention, then, is whether these recommendations are binding on such public bodies.
35.
In the Matter of the National Land Commission, Advisory Opinion Reference 2 of 2014; [2015] eKLR, in her concurring opinion, Ndungu, SCJ, defined the words ‘recommend’, advise, research, investigate, encourage, assess, monitor and oversight’ to mean actions that provide a facilitative role rather than a primary one. In her opinion, the context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. In her opinion, a body with oversight function, and a Body that implements the recommendations of the former, are different, and their roles do not overlap. For this reason, there is need for clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted.
36.
Also, In Re Council of Governors, this court defined a recommendation as follows:
“
(52)
In our considered opinion, the term “recommendation” is the operational yardstick in this entire debate. In this regard, we agree with those who have submitted that this term should first and foremost, be accorded its literal and natural meaning. Towards this end, generally speaking, a recommendation is a suggestion or proposal, for a certain cause of action. Such proposal does not ordinarily bind the person to whom, or entity to which, it is addressed. It is for the recipient of a recommendation, to determine what import he should attach to it. However, the categories of recommendations are never closed. Recommendations may differ, in their meaning, nature and effect, depending on the context in which they are deployed.”
37.
On the binding nature of the recommendations by the Commission on Revenue Allocation, this court found as follows:
“
60.
Taking all these into account, it is our considered opinion that the recommendations by the Commission on Revenue Allocation are not binding upon either the National Assembly, or the Senate. What the two Houses cannot do however is to ignore or casually deal with such recommendations. To hold otherwise, would elevate the Commission above Parliament in the legislative chain. We therefore agree with both the Speaker of the National Assembly and the Law Society in their submissions to the effect that, it could not have been the intention of the makers of the Constitution to supplant the legislative authority of Parliament in matters Finance, by establishing the Commission on Revenue Allocation.” [emphasis added]
38.
Similarly, In Re Council of Governors, this court was persuaded by the High Court decision Speaker, Nakuru County Assembly & 46 others v Commission on Revenue Allocation & 3 others, HC Constitutional Petition No 368 of 2014; [2015] eKLR, where Lenaola, J (as he then was) found that the recommendations addressed to all the 47 County Assemblies and County Executives, by the Commission on Revenue Allocation were not binding to the Senate but for good order, reasons for a deviation must be given.
39.
From the foregoing Constitutional provisions, the statutory provisions and authorities highlighted, it is our finding that whereas CAJ has the requisite mandate to make recommendations to a public officer or a public body, the same is not binding. A recommendation can only be binding when the same is specifically provided for in the Constitution or in law. Neither the Constitution nor the CAJA states that CAJ’s recommendations are binding. Consequently, the Board had the discretion to determine the manner in which they were to implement CAJ’s recommendations. Towards that end, we find and affirm that the CAJ’s recommendations to inter alia: pay the 3rd respondent an equivalent of twelve months salary and allowances in compensation for a one-year period of the reviewed contract; facilitate the 3rd respondent to access his personal effects from his former office; and offer him an unconditional apology for the treatment meted out to him, were not binding upon the Board. We therefore fault the appellate court’s conclusion that CAJ’s recommendations were binding on the Board.
40.
We agree with the Board’s submission and the High Court’s finding that under section 42(4) of the CAJA, the remedy where there has been non-compliance with the recommendations of the CAJ, is for the CAJ to prepare a report of the Board’s failure to implement the recommendations to the National Assembly for appropriate action. CAJ ought to have explored the options set out in section 41 of CAJA. Ultimately, we agree with the trial court’s finding that not even a court of law can dictate the manner in which a recommendation should be implemented. The only exception, as pointed by the trial court, is where “there is gross abuse of discretion, manifest injustice or palpable excess of authority” equivalent to denial of a settled right which the aggrieved party is entitled, and there is no other plain, speedy and accurate remedy.” It is our finding that the circumstances of the appellant’s case do not fit the said exception.
41.
Even where such exceptional circumstances are pleaded, who then bears the burden of proving abuse of discretion? It is our opinion that where a party is so aggrieved by the exercise of discretion or lack of it thereof, by a pubic office of officer or institution, it is for that party to prove that their case fits within the four corners of the exception set above. In the instant appeal, we agree with the trial court that the 3rd Respondent did not discharge this burden of proof. Mere allegation that the Board declined to comply with the CAJ’s recommendation is not enough to prove gross abuse of discretion, manifest injustice or palpable excess authority.
42.
We have observed that the question on the implementation of recommendations to public entities from Commissions has been recurring in different cases before this court and other superior courts. As such we are of the opinion that the following guiding principles ought to assist courts when considering a matter concerning the binding nature of recommendations from Commissions or other public bodies:
Guiding Principles on the recommendations from Commission to public bodies:
a.
Any power to make a recommendation ought to be specifically provided for in the Constitution or in law;
b.
Recommendations do not necessarily bind the person to whom, or entity to which, it is addressed;
c.
A recommendation from a Commission is only binding upon a public entity where it has been specifically provided for in the Constitution or in law;
d.
The manner in which a recommendation is to be implemented by a Public entity is discretionary;
e.
Exercise of discretion in implementing a recommendation may only be interfered where there is gross abuse of discretion, manifest injustice or palpable excess of authority
f.
Any recommendation by a Commission which is not implemented may be reported to Parliament for any further action, if necessary;
43.
We need to note at this juncture that Commissions are supposed to act as watchdogs and co-operate and work with government arms. It is the duty of Parliament to implement reports from commissions pursuant to article 254(1) of the Constitution and section 8 of the CAJA. Commissions therefore cannot implement their own recommendations nor force a recommendation on a public body lest they usurp the role of Parliament, which is the organ vested with the mandate to enforce implementation. For avoidance of doubt, a public office or body or state organ to whom a recommendation is made need not appeal against such a recommendation for it not to be binding on it.
(ii) Whether the Court of Appeal had jurisdiction to award damages?
44.
The Court of Appeal allowed the 3rd respondent payment of twelve (12) months’ salary as compensation in lieu of the one-year renewal of contract which the Board declined to accept; access to the office to collect personal effects, and an apology. Over and above that, the Court of Appeal awarded the 3rd respondent a sum of Kshs 700,000.00 upon its finding that his right to fair administrative action had been infringed by the Board.
45.
The Board submits that CAJ did not have the mandate to award any relief to the 3rd respondent as it had declined to renew his contract, a decision communicated to him by the Minister. The Board faults the Court of Appeal for converting what was a normal Judicial Review Application into a constitutional petition and proceeding to award damages instead of referring the matter back to the High Court. The Board also urges that the dispute between the parties was whether the 3rd respondent was entitled to the renewal of his employment and that the same ought to have been taken to the Employment and Labour Relations Court. On the contrary, CAJ and the 3rd Respondent submit that CAJ had the mandate to make the compensation and that the appellate court rightly to awarded damages and compensation where none was made by the trial court.
46.
Having found above that CAJ’s recommendations did not bind the Board, it is our ultimate finding that there was no basis for the Court of Appeal to award compensation to the 3rd respondent. Although CAJ has the requisite mandate to award compensation under section 8(c) of the CAJA, (which section requires it to report to the National Assembly bi-annually on the complaints investigated and the remedial action taken thereon), it is our finding that section 8 of the Act cannot be read in isolation. It has to be read together with section 41 which provides for action taken by CAJ after an inquiry. Section 41 provides as follows:
“
The Commission may, upon inquiry into a complaint under this Act take any of the following steps—
a.
where the inquiry discloses a criminal offence, refer the matter to the Director of Public Prosecutions or any other relevant authority or undertake such other action as the Commission may deem fit against the concerned person or persons;
b.
recommend to the complainant a course of other judicial redress which does not warrant an application under article 22 of the Constitution;
c.
recommend to the complainant and to the relevant governmental agency or other body concerned in the alleged violation, other appropriate methods of settling the complaint or to obtain relief;
d.
provide a copy of the inquiry report to all interested parties; and
e.
submit summonses as it deems necessary in fulfilment of its mandate.”
47.
In view of this, it is our finding that having concluded its investigation or inquiry on the 3rd respondent’s claim, CAJ ought to either have referred the matter to the relevant authority (which in our opinion includes the National Assembly); or recommended to the 3rd respondent a course of other judicial redress; or recommend to the complainant appropriate methods of settling the complaint or to obtain relief; provide a copy of the inquiry report to all interested parties (in our opinion including the National Assembly) ; or submit summonses as it deems fit to fulfill its mandate.
48.
Therefore, it is our finding that the because the dispute between the 3rd respondent and the Board was an employer-employee dispute, CAJ ought to have recommended to the 3rd respondent the appropriate method of settling the dispute. In our opinion, one of the methods would have been seeking redress at the Employment and Labour Relations Court (ELRC) which is established to hear and determine disputes relating to employment and labour relations and for connected purposes. The ELRC has the power make appropriate remedies for the 3rd respondent pursuant to article 162(2) and 165(5) of the Constitution and section 12(3) of the Employment and Labour Relations Act including interim preservation orders; prohibitory order; an order of specific performance; a declaratory order; an award of compensation; an award of damages; an order of reinstatement among other.
49.
CAJ cannot usurp the role of the ELRC over employment disputes and award compensation. CAJ, under section 8(g) of the CAJA, can only recommend compensation or other appropriate remedies against a person or bodies to which the Act applies. Having found elsewhere in this Judgement that recommendations can only be binding where specifically provided for, we conclude that CAJ lacks the requisite jurisdiction to award compensation in the circumstances. In other words, even if CAJ recommends compensation after concluding its inquiry, there is an additional step or action to be taken by the entity or person to whom the recommendation has been made. That entity or person may or not implement the same depending on the manner on how they choose to exercise their discretion, unless otherwise provided for in the law. Consequently, we set aside the reliefs awarded by the Court of Appeal.
50.
On costs, this court has previously settled the law on this issue, stating that costs follow the event in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No 4 of 2012; [2014] eKLR and that a court has the discretion in awarding costs in its decision. This remains the law. In the instant case, we award costs of this appeal to the Board.
51.
Consequently, we allow the appeal.
D. – Orders
52.
Ultimately, upon our finding above, the final orders are that:
1.
The Petition of Appeal dated November 6, 2019 and filed on November 7, 2019 be and is hereby allowed.
2.
The Judgment of the Court of Appeal sitting at Nairobi, dated September 27, 2019 is hereby quashed and set aside.
3.
For the avoidance of doubt, the Judgment of the High Court delivered on February 26, 2015, be and is hereby upheld.
4.
Costs of this appeal to abide the appeal.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/35/eng@2021-03-24 |
Civil Application 16 of 2020 | Onyango & 23 others v Heritage Insurance Company Limited (Civil Application 16 of 2020) [2021] KESC 56 (KLR) (Civ) (24 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | AI Tullu, EN Wanjala, N Ndungu, I Lenaola | 24 March 2021 | 2,021 | Nairobi | Civil | Onyango & 23 others v Heritage Insurance Company Limited | [2021] KESC 56 (KLR) | null | 1.
The cause of action in this matter can be traced from the Employment and Labour Relations Court Cause No. 781 of 2015, Christopher Onyango & 23 others v. Heritage Insurance Company Limited. There were four issues in dispute namely, termination of the Applicants’ employment on redundancy contrary to Section 40 of the Employment Act; termination of Applicants’ employment being unfair and wrongful contrary to Section 45 of the Employment Act; violation of theApplicants’ rights to legitimate expectation and contravention of Article 147 of the Constitution; and the Respondent’s failure to follow legal procedures in effecting the termination of the Applicants’ employment.
2.
The Employment and Labour Relations Court at Nairobi (Monica Mbaru, J.) delivered its Judgment on 7th April 2016 awarding compensation to the 24 Applicants. They were awarded various sums of monies in respect of salaries for the number of years each one of them had worked, compensation, damages for discrimination, notice and severance pay. In doing so, the Judge took into account the Respondent’s two human resource Handbooks; one issued in 1994 and another subsequent one issued in 2013. The former prescribed a 30 days’ redundancy notice while the latter reduced the period from 30 days to 15 days. The Learned Judge was of the view that the Applicant’s terms of employment fell within the parameters of the 2013 Handbook. Consequently, she declared the redundancy notice issued to the Applicants unlawful; the termination of employment unfair; and found the acts of the Applicants of issuing redundancy notice and terminating the Applicants’ employment, unlawful and amounted to discrimination against the Applicants. | Issues for Determination
18.
From the foregoing submissions, the following issue arises for determination:
Whether the matters raised by the Applicant are of general public interest and importance as required by Article 163(4)(b) of the Constitution?
19.
We note at paragraph 16 of the Applicant’s supporting affidavit, the following have been listed as matters of general public importance: whether persons affected by the redundancy processes have a clear interest in knowing what their entitlements would be in such circumstances, bearing in mind the terms of employment, the provisions of the Employment Act, and the applicable employment policies and constitutional provisions; if so, whether this Honourable Court has a Duty to create certainty in the law regarding redundancy and remove the uncertainty created by the Court of Appeal in Civil Appeal No. 114 of 2016; whether the burden of proving redundancy should shift from the employer to the employee and if so, at what point?; and whether the burden of proving change in employment terms rests with the employer or with the employee?
20.
We however find that the issues consequently framed were never framed as such before the Court of Appeal. Failure to specify those issues led to the learned Judges’ conclusion at page 5 of their Ruling that “…we have not been show the specific elements of general public importance which the Applicants attribute to the matter for which certification is sought”. The Applicants should have specified the said issues in their application before the appellate Court for it to render its determination on the same. Consequently, in determining the instant application, we shall therefore be guided by the issues as raised by the Applicants for certification before the Court of Appeal. The grounds raised by the Applicants for certification, upon which the Court of Appeal made a determination, were that: the Court of Appeal departed from settled jurisprudential position thereby introducing uncertainty into the governing redundancy and the Court of Appeal’s finding raised substantial questions of constitutional interpretation of Labour rights which affect not just the right of the litigants, but also extend to the public at large and of the construction of the scope of the right to fair labour practices, both of which are questions frequently deliberated upon by the Employment and Labor relations Court and subordinate courts, hence the general public importance.
21.
This Court has made itself clear on instances in which it can exercise its powers to review a decision of the Court of Appeal in several of its authorities including the following cases Hermanus Case, Malcom Bell Case and Town Council of Awendo v Nelson Oduor Onyango & 13 others, Misc. Application No. 49 of 2014; [2015] eKLR (the Town Council of Awendo Case).
22.
In the Town Council of Awendo Case we gave specific guiding principles as follows: -
“
21
i.
for an intended appeal to be certified as one involving a
“
matter of general public importance,” the intending appellant is to satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
ii.
where the matter in respect of which certification is sought raises a point of law, the intending appellant is to demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
iii.
such question or questions of law is/are to have arisen in the Court or Courts below, and must have been the subject of judicial determination;
iv.
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
v.
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
vi.
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance,” which he or she attributes to the matter for which certification is sought;
vii.
determinations of fact in contests between parties are not, by and of themselves, a basis for granting certification for an appeal before the Supreme Court;
viii.
issues of law of repeated occurrence in the general course of litigation may, in proper context, become ‘matters of general public importance’, so as to be a basis of certification for appeal to the Supreme Court;
ix.
questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;
x.
questions of law that are destined to continually engage the workings of the judicial organs, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;
xi.
Questions with a bearing on the proper conduct of the administration of justice, may become ‘matters of general public importance,’ justifying certification for final appeal in the Supreme Court.”
23.
Having perused the Judgment of the trial Court and that of the Court of Appeal, the issues for determination before the two courts, the Application for certification before the Appellate Court, and now the one before this Court, we agree with the Court of Appeal’s determination that the intended appeal does not qualify for certification for final appeal before the Supreme Court. The Applicants have also not demonstrated how a determination of their issues transcend the parties herein.
24.
Furthermore we have noted, that despite contending that the Court of Appeal departed from settled jurisprudential position thereby introducing uncertainty into the governing redundancy, the Applicants have not, neither in the application before the Court of Appeal nor the one before this Court, pleaded the Authorities which they allege the Court of Appeal departed from as was for example specifically pleaded in Kenfreight (E.A) Limited v Benson K. Nguti, SC. Petition No. 37 of 2018; [2019] eKLR (the Kenfreight (E.A) Limited Case). As it the law, parties are bound by their pleadings. Towards that end, we find and agree with the Learned Judges of Appeal that there is no uncertainty in law, arising from contradictory precedents for this Court’s resolution.
25.
Moreover, the Applicants have not demonstrated how the determination on a manual that was applicable at the time of terminating their contract can qualify to be a matter of general public interest considering that not all employers have more than one Handbook. We therefore agree with the Court of Appeal’s finding that the determination made in both Courts concerned contested facts between the Applicants and the Respondent, hence, cannot form the basis for granting certification to appeal to this Court. Nevertheless, we note from decided case law, CMC Aviation Limited v Mohammed Noor; Civil Appeal No.199 of 2013, [2015] eKLR and Kenfreight (E.A.) Limited v Benson K. Nguti Civil Appeal No. 31 of 2011, the Court of Appeal has made a determination on the binding nature of company policies or put differently, company practices are binding. The Supreme Court upheld this finding in the Kenfreight (E.A) Limited Case. We therefore find the courts’ finding on question of “the binding nature of Handbooks/Manuals/Policies and/or their equivalent” already settled and does not need further determination by this Court.
26.
Accordingly, this Application fails to meet the principles enunciated by this Court in the Hermanus Case, the Malcom Bell case and the Town Council of Awendo Case and is therefore dismissed with costs.
Consequently, we make the following final Orders:
i.
The Application dated 2nd July 2020, is hereby dismissed.
ii.
The Applicants shall bear the costs of the Respondent in relation to this application.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/56/eng@2021-03-24 |
Reference 1 of 2018 | County Assembly of Mandera County v Governor, Mandera County & another (Reference 1 of 2018) [2021] KESC 59 (KLR) (Civ) (17 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 17 March 2021 | 2,021 | Nairobi | Civil | County Assembly of Mandera County v Governor, Mandera County & another | [2021] KESC 59 (KLR) | null | A. Introduction
(1)
The Reference before the Court is dated 15th March 2018, and lodged on 19th March, 2018. It seeks this Court’s Advisory Opinion, as to whether, the continued stay in office after a general election, of a serving County Executive Committee (“CEC”) or of CEC Members whose re-appointment has been rejected by a County Assembly, is legal in lieu of Section 47 of the County Governments Act, and whether, such a CEC can hold office indefinitely or until a new Committee is constituted.
B. The Application
(2)
The interested parties, pursuant to their admission as such, in a Ruling delivered on 23rd January 2020, have filed an application dated 5th March, 2020 and supported by the Affidavit of Adan Kullow. They seek Orders to strike out the Reference on grounds that the County Assembly of Mandera, lacks the competence to make a request for an Advisory Opinion. They also submit that the questions raised in the Reference, have been previously litigated. It is their case that, this application is brought in bad faith and without merit as there is no lacuna in law.
C. The Interested Parties’ Case
(3)
In their written submissions dated 5th March 2020, the interested parties submit that the applicant lacks the locus standi to move the Court for an Advisory Opinion under Article 163 (6) of the Constitution as it is neither a National Government, County Government, nor a State Organ (in terms of Article 260), established under the Constitution. They add that the County Assembly is established and governed by the County Government Act. The mere mention of the Constitution, argue the interested parties, does not make the County Assembly, a constitutional entity. In support of their position, the interested parties rely on this Court’s Decision in The Council of Governors and the Attorney General & 7 Others Reference No. 2 of 2017 [2019] eKLR.
(4)
The interested parties further urge, that the issues concerning the nomination, appointment, and transition of the Mandera County Executive Committee following the general election raised in the Reference have been previously litigated before the High Court. They state that the Governor of Mandera County and the Mandera County Assembly were parties to the High Court Petition No 517 of 2017 Shillow Abubakar Hassan v. Governor Mandera County & Another, Petition 502 of 2017 Hussein Osman Hassan v. Governor Mandera County & Another and Petition No. 7 of 2018 Simba Hasheem Gedow v. Governor Mandera County & 2 Others Petition 17 of 2018, in which all the issues raised in the Reference herein were canvassed.
(5)
They further submit that at the time of filing the Reference, Petition No. 517 of 2017 and Petition No. 502 of 2017 had been withdrawn, while Constitutional Petition No. 17 of 2018 was pending determination. In a Judgment delivered on 17th December 2018, the High Court dismissed Petition No. 17 of 2018, and held that the interested parties herein, had complied with the constitutional and statutory provisions in constituting the Mandera CEC. They argue that if it was dissatisfied with this Judgment, the County Assembly of Mandera ought to have filed an appeal to the Court of Appeal and a subsequent appeal to this Court instead of seeking an Advisory Opinion.
(6)
It is also submitted that that there is no lacuna in law as Section 42 of the County Government Act, unequivocally provides that after a general election, the outgoing CEC remains in office, until a new CEC is constituted. Reference is also made to Section 10 of the Public Appointments (County Assemblies Approval) Act, which sets out the criteria for re-submitting nominees’ names previously rejected by the County Assembly, where the circumstances relied on at the time of rejection, did not exist or had ceased to exist.
(7)
In conclusion, the interested parties submit that, the applicant has deliberately chosen not to disclose the fact that, having sought the opinion of the Attorney-General, it was advised by the latter, not to seek an Advisory Opinion from this Court. The Attorney-General counseled that by dint of Article 198 of the Constitution, the CEC as last constituted remains competent to perform administrative functions until a new CEC is constituted. By failing to disclose this fact, submit the interested parties, the applicant has approached this Court in bad faith. | F. Issues For Determination
(12)
On the basis of the pleadings and submissions by the parties herein, we consider that two issues merit our determination; these are:
(i)
Whether the applicant lacks the locus standi to move the Court for an Advisory Opinion under Article 163 (6) of the Constitution; and
(ii)
Whether the questions raised in the Reference for an Advisory Opinion have been previously litigated before the High Court.
Locus Standi
(13)
It is the interested parties’ contention that the applicant is not a National Government, County Government, or a State Organ in terms of Article 260 of the Constitution. As such, the latter lacks the locus standi to move the Court for an Advisory Opinion under Article 163 (6) of the Constitution. The interested parties submit that the applicant is established and regulated by the County Government Act as opposed to the Constitution.
(14)
Article 163(6) of the Constitution provides that:
“
The Supreme Court may issue an Advisory Opinion at the request of the National Government, any State Organ, or any County Government with respect to any matter concerning County Government”.
(15)
In Re the Matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011, [2011] eKLR, in line with Article 163(6) of the Constitution, this Court has developed a number of principles to help guide those intending to invoke its Advisory Opinion Jurisdiction. At paragraph [83], the Court stated: inter alia;
“
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae…..” (Emphasis added).
(16)
It is against the foregoing Principle Number (ii) that we must determine whether the applicant is a one of those organs contemplated by Article 163 (6) as would qualify to seek an Advisory Opinion. Towards this end, we must direct our attention to Article 176 (1) of the Constitution, which provides that;
“
There shall be a County Government for each County consisting of a County Assembly and a County Executive.”
(17)
Article 177 of the Constitution on the other hand, provides for the membership of a County Assembly. Such membership comprises of elected and nominated members.
(18)
From the foregoing provisions, it is clear that a County Assembly is one of the two critical organs that constitute a County Government. There can be no County Government without a County Assembly. It is therefore erroneous for the interested parties to suggest that the applicant has no locus standi. Secondly, it is not in doubt that the subject matter of this Reference revolves around the issue of transition of County Executive Committees after a general election. This is a matter that squarely concerns County Government, within the meaning of Article 163 (6) of the Constitution.
On Res Judicata
(19)
A second ground on which this Court’s jurisdiction is contested is that the subject-matter of the Reference is similar to the issues raised in High Court Petitions Nos. 517 of 2017, Shillow Abubakar Hassan v. Governor Mandera County & Another, 502 of 2017, Hussein Osman Hassan v. Governor Mandera County & Another (withdrawn) and No. 7 of 2018, Simba Hasheem Gedow v. Governor Mandera County & 2 Others. The interested parties submit that on the basis of the doctrine of res judicata, this Court cannot proceed to render an Advisory Opinion on matters that are either pending before, or have been determined by the High Court.
20.
Having perused the pleadings/proceedings in Constitutional Petition No. 17 of 2018, and the resultant Judgment by the High Court (Chitembwe, J.) delivered on 17th December 2018, it is clear to us that the main issue in the petition was whether, the appointment to the Mandera CEC was in violation of the law. In determining this issue, the learned Judge addressed himself to the provisions of Section 42 (2) of the County Government Act regarding the constitution of a new Executive Committee within 21 days after the members of the County Assembly are sworn in, and the transition from the outgoing to the incoming CEC (Section 42(1) thereof). The learned Judge also interrogated the provisions of Section 10 of the Public Appointments (County Assemblies) Approval Act, concerning the re-submission of names of nominees for consideration by the County Assembly after an initial rejection by the latter. Finally, the learned Judge had to make a decision regarding the constitutionality or otherwise of the appointments to the Mandera CEC.
(21)
The Reference before us raises three issues viz, whether the continued stay in office of serving CEC Members when their re-election had been rejected by the County Assembly was legal in lieu of the provisions of Section 47 of the County Governments Act, whether the CEC Members not re-nominated by an incoming Governor can continue to hold office, and whether persons serving as CEC Members before a general election can continue to hold office indefinitely or until a new committee is constituted.
(22)
We find that the issues raised in the Reference are substantially similar to those determined by the High Court in Constitutional Petition No. 7 of 2018. These issues, having been so determined, cannot be resuscitated at the Supreme Court under the guise of an Advisory Opinion. Any party aggrieved by the decision of the High Court, can only challenge the same, by way of an appeal to the Court of Appeal and if still dissatisfied, such party may appeal to this Court.
(23)
Having so found, we have no hesitation in declaring this Reference for an Advisory Opinion, incompetent and an abuse of the process of Court. The same cannot therefore escape an Order for dismissal.
G. Orders
24.
....
(i)
The Notice of Motion Application of 5th March 2020, is hereby allowed.
(ii)
The Reference for an Advisory Opinion dated 15th April 2017, is hereby dismissed.
(iii)
The costs of this Application and the Reference shall be borne by the applicant.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/59/eng@2021-03-17 |
Application 13 of 2020 | Equip Agencies Limited v I & M Investment Bank & 3 others (Application 13 of 2020) [2021] KESC 70 (KLR) (17 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 March 2021 | 2,021 | Nairobi | Civil | Equip Agencies Limited v I & M Investment Bank & 3 others | [2021] KESC 70 (KLR) | null | Brief facts
The Applicant sought an order of injunction restraining the respondent from in any way interfering with the applicant’s ownership or title to the suit property pending the hearing and determination of Petition No. 10 of 2020. The Petition sought to appeal the Ruling and Order of the Court of Appeal wherein the Appellate Court, while determining an application for injunction brought under rule 5 (2) (b) of the Court of Appeal Rules, affirmed the High Court’s Ruling that the applicant had failed to meet the threshold for grant of an injunction pending the hearing and determination of the substantive suit. | D. Issues For Determination
9.
Two issues fall for the court’s consideration i.e., whether this court has jurisdiction to hear and determine the instant application and subsequently the appeal; and whether the court should grant orders for injunction.
E. Determination on Jurisdiction
10.
The applicant urges that this court has jurisdiction to grant interlocutory orders and relies on this court’s decisions in the Teachers Service Commission Case and Malcom Bell Case. It also submits that the appeal and instant application are arguable as the Court of Appeal exceeded its jurisdiction and delved into the merits of the case pending before the High Court, contrary to this court’s finding in Teachers Service Commission Case and Deynes Muriithi Case.
11.
On the other hand, it is the 3rd respondent’s submission first, that this court lacks jurisdiction under article 163(4)(a) of the Constitution as the appeal does not involve matters of interpretation and application of the Constitution. Secondly, the 3rd respondent submits that, whereas this court has jurisdiction to grant interlocutory orders, it is devoid of jurisdiction to hear appeals against a Ruling of the Court of Appeal made under rule 5(2)(b) of the Court of Appeal Rules. It relies on this court holding in Stanley Kangethe Kinyanjui Case, and Deynes Muriithi Case.
12.
In Daniel Kimani Njihia v. Francis Mwangi Kimani & another SC Application No 3 of 2014 [2015] eKLR (Daniel Kimani Njihia Case), this court stated:
‘[21]
……. Not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this court, is the discretionary pronouncements appurtenant to the Appellate Court’s mandate. Such discretionary decisions, which originate directly from the Appellate Court, are by no means the occasion to turn this court into a first appellate Court, as that would stand in conflict with the terms of the Constitution.’ [Emphasis added]
13.
From the pleadings and submissions before us, it is undoubtedly clear that under paragraph 2 of the said Ruling, the application before the Court of Appeal was brought under rule 5(2)(b) of the Court of Appeal Rules. The impugned Ruling was arrived at by the Court of Appeal in exercise of its discretionary powers. From the decisions of this court in Teachers Service Commission Case, Deynes Muriithi Case, Daniel Kimani Njihia Case, etc, it is clear that save in very exceptional circumstances, an appeal does not lie to this court, from the Court of Appeal’s Ruling under rule 5(b) of that Court’s Rules. We do not see how the application before us has established any basis for an exception to our decisions cited above.
14.
By the same token, we don’t see how our holding in the Teachers Service Commission Case is distinguishable. There is no substantive Judgement by the Court of Appeal on the basis of which this court can grant an injunction in the manner and style, as prayed by the applicant. The substantive dispute still remains to be resolved by the High Court. In Boniface Katana Kilaveri v Ethics & Anti-Corruption Commission & Commissioner of Lands; SC Petition No 15A of 2016, [2018] eKLR, this court held that where the substantive matter is still pending before the High Court, the Supreme Court would be hesitant to assume jurisdiction. The court stated:
“
…..we reiterate that the substantive matter still lies at the High Court and until it has been heard and determined, and the proper appellate processes have been followed, we find that this court does not have jurisdiction to entertain this appeal.”
15.
Consequently, we must arrive at the inescapable conclusion to the effect that this court lacks jurisdiction to entertain both the application and intended appeal.
F. Orders
i.
The application dated June 26, 2020, is hereby dismissed;
ii.
The decision of the Court of Appeal delivered on May 8, 2020, declining Orders for injunction is hereby affirmed;
iii.
Consequently, Petition No 10 of 2020 is hereby dismissed.
iv.
The costs of this application and Petition shall be borne by the applicant.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/70/eng@2021-03-17 |
Application 33 of 2020 | Kenya Bureau of Standards v Geo Chem Middle East (Application 33 of 2020) [2021] KESC 60 (KLR) (17 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 17 March 2021 | 2,021 | Nairobi | Civil | Kenya Bureau of Standards v Geo Chem Middle East | [2021] KESC 60 (KLR) | null | A. Introduction
1.
The application before the Court is dated 23rd December 2020, and lodged on 28th December, 2020. It seeks to review and stay this Court’s Judgment and Orders issued on 18th December 2020, in SC Petition No. 47 of 2019. It is brought under Sections 3, and 21 (2) & (4) of the Supreme Court Act and Rules 3 (1) & (5), 28 (5) and 32 of the Supreme Court Rules, 2020.
2.
In the impugned Decision, this Court overturned the Court of Appeal Judgment (Karanja, Sichale & Mohammed, JJ,A.) delivered on 22nd November, 2019 in Civil Appeal No 259 of 2018, and affirmed the High Court Judgment (Ochieng, J.) delivered on 30th May, 2017 in HCCC Miscellaneous Cause Nos. 455 and 501 of 2016, where in, the trial Court adopted an arbitral award and directed the applicant to pay the sum of USD 15, 401,504.70 and costs of the arbitration.
B. The Application
3.
The application is supported by the Supporting and Supplementary Affidavits sworn by Luise Rasanga on 23rd December, 2020 and 6th January, 2021 respectively. It is opposed by the Replying and Supplementary Affidavits sworn by Pradeep Gopal and Fredrick Ngatia, S.C, on 7th and 13th January, 2021 respectively. | D. Issues For Determination
18.
On the basis of the pleadings and submissions by the Parties herein, we consider that two issues merit our determination; these are:
(i)
Whether the application meets the threshold for grant of review orders; and
(ii)
If the answer to (i) above is in the affirmative, what remedies are available.
E. Analysis
(i) Review
19.
It is the applicant’s contention that, the Motion is meritorious and raises exceptional circumstances for review. To support this argument, the applicant faults this Court’s Judgment on various grounds that, the Court found it lacked jurisdiction to entertain the appeal, but granted the Orders sought. It also faults the Court’s decision, for being predicated on a jurisdictional error apparent on the face of the record, for retrospectively relying on its decision in Nyutu and Synergy Cases, for requiring a bench of the Court of Appeal to overturn orders granted by a different appellate bench, for assuming supervisory jurisdiction over the Court of Appeal, for violating its rights to fair hearing under Article 50 of the Constitution, and for erroneously equating a legal issue on jurisdiction to a factual issue on merits of the arbitral award.
20.
The respondent on the other hand, contends that the application fails to disclose any ground for review. It is the respondent’s further submission that, the applicant’s grounds for review fall outside the purview of Section 21 (4) of the Supreme Court Act, and were an invitation to the Court, to without jurisdiction sit on appeal of its own decision.
21.
In addition, the respondent agrees with this Court’s decision and urges that the Court, had jurisdiction to determine the appeal before it, correctly found that the appeal window to the Court of Appeal, in relation to a contest on an arbitral award is severely restricted, correctly applied its decision in the Nyutu and Synergy Cases as the yardstick for determining leave to appeal under Section 35 of the Arbitration Act, and correctly declined to delve into the merits of the arbitral award.
22.
The legal position as regards this Court’s power to review its own decision was settled in the Fredrick Otieno Outa Case, [supra], wherein this Court found that, as a general rule, the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(4) of the Supreme Court Act. It was however stated 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.
23.
Subsequently, the Court set out the exceptional circumstances in which it can vary any of its Judgments, Rulings or Orders, limiting them to instances where;
(i)
The Judgment, Ruling, or Order, is obtained, by fraud or deceit;
(ii)
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
(iii)
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
(iv)
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. [Emphasis added].
24.
After considering the applicant’s submissions, we do not see how the Motion meets the conditions precedent set out in Fredrick Otieno Outa [supra]. The applicant has failed to demonstrate, how, if at all, the Judgment it seeks to review can be impugned on any of the four grounds set out above.
25.
It is clear to us that the application before us is a disguised appeal which seeks to reopen Matters already determined with finality by this Court. In Fredrick Otieno Outa [supra], we emphasized the principle that an application for review, was not intended to give a party an opportunity to appeal, or relitigate its case. Where such a review is sought, an applicant must lay a basis, to the satisfaction of the Court, that the application for review satisfies the set criteria. This position is restated in Mohamed Fugicha v. Methodist Church in Kenya (through its registered trustees) & 3 others, SC Application No 4 of 2019, [2020] eKLR and Parliamentary Service Commission v. Martin Nyaga Wambora & others; SC Application No 8 of 2017, [2018] eKLR.
26.
Having found that the application for review is unmeritorious, we have no hesitation in dismissing it. We consequently make the following Orders:
F. Orders
(i)
The Notice of Motion dated 23rd December, 2020 and filed on 28th December 2020, is hereby dismissed;
(ii)
The applicant shall bear the costs of this application.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/60/eng@2021-03-17 |
Application 26 of 2020 | Kenya National Highway Authority v Cycad Properties Limited & 33 others (Application 26 of 2020) [2021] KESC 69 (KLR) (17 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 March 2021 | 2,021 | Nairobi | Civil | Kenya National Highway Authority v Cycad Properties Limited & 33 others | [2021] KESC 69 (KLR) | null | A. Introduction
1.
This application is dated 17th September 2020, and lodged on 21st September 2020, seeking an Order for extension of time to file a Petition and Record of Appeal, against the majority Judgment and Order of the Court of Appeal (Ouko, Sichale & Odek, JJA) in Civil Appeal No. 156 of 2013 consolidated with Civil Appeal No. 160 of 2013. The application is brought under the provisions of Article 156 (2) of the Constitution, Sections 14 of the Supreme Court Act 2011, and Rules 3 (2) (4) & (5), 15 (2) and 65 of the Supreme Court Rules, 2020.
B. The Application
2.
The Motion is based on the applicant’s Supporting and Supplementary Affidavits sworn by Norah Beatrice Odingo on 17th September 2020, and 7th October 2020, respectively. The applicant avers that while the Court of Appeal Judgment was delivered on 7th June 2019, it was not until September 2019, when it managed to appoint a different advocate to pursue the intended appeal. According to the applicant, the delay in appointing the advocate was caused by procurement requirements, and a dispute between it and its original advocate, concerning the fees payable to the latter. The applicant further depones that it has not been able to obtain typed proceedings from the Court of Appeal to-date. Finally, the applicant states that the Covid-19 pandemic has disrupted the timely preparation of the appeal.
3.
In response, the 2nd to 30th respondents filed a Replying Affidavit sworn by Elizabeth Wambui Githinji on 30th September 2020, in which the deponent states that failure to file the Record of Appeal within the stipulated time, rendered the Notices of Appeal filed by the applicant as having been withdrawn, in accordance with Rule 37 of the Supreme Court Rules, 2012 (revoked). It is also urged that the fourteen (14) months period of delay is not only inordinate, but the same has not been sufficiently explained. The respondents aver that to allow this application would seriously infringe upon their rights. | E. Issues For Determination
12.
The only issue that falls for this Court’s consideration is whether the applicant has laid a satisfactory basis to warrant an extension of time for it to file the intended Appeal.
F. Determination
13.
Having considered the application and the affidavits in support thereof as well as the written submission of the parties, we find that on the basis of the principles set out by this Court for extension of time in Nicholas Salat Case, Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, SC Appl. 50 of 2014 and Hassan Nyanje Charo Case the applicant has not satisfactorily explained the inordinate delay in filing the Record of Appeal. The reasons given by the applicant for this delay do not provide a sufficient basis for this Court to exercise its discretion in the applicant’s favour. Consequently, the application before us is one for dismissal.
G. Orders
i)
The Notice of Motion Application dated 17th September 2020, and lodged on 21st September 2020, is hereby dismissed;
ii)
The costs of this application shall be borne by the applicant.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/69/eng@2021-03-17 |
Application 28 of 2020 | Mwangangi & 10 others v Commissioner of Lands & 3 others (Application 28 of 2020) [2021] KESC 67 (KLR) (17 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 March 2021 | 2,021 | Nairobi | Civil | Mwangangi & 10 others v Commissioner of Lands & 3 others | [2021] KESC 67 (KLR) | null | A. Introduction
1.
Before the Court is a Motion dated 22nd July 2020 and lodged on 16th October 2020. It is brought pursuant to Articles 163 (4) (b) and 163 (5) of the Constitution, Sections 15 (1) and 16 (1) of the Supreme Court Act, 2011, Rule 24 of the Supreme Court Rules, 2012 (now repealed) and all other enabling provisions of Law.
B. The Application
2.
The application seeks to review the Ruling of the Court of Appeal (Ouko, Warsame & Sichale, JJ.A) in Civil Application No. 9 of 2018, delivered on 10th July 2020, denying certification and leave to appeal to this Court against the Court of Appeal Judgment (Visram, Karanja & Koome JJ.A) in Civil Appeal No. 30 of 2013 delivered on 9th February, 2018. It also seeks to stay execution of the impugned Judgment pending the hearing and determination of the application and the intended appeal.
3.
In the impugned decision, the Appellate Court affirmed the trial court’s (Okwengu, J) decision by which the latter had dismissed the applicants’ suit and found that they had failed to prove any registered or unregistered interest in Land Reference Nos. 209/11543, 11544, 11545, 1546, 18276 and 18290 (the suit property) recognised in law. The trial court also allowed the 3rd and 4th respondents’ counterclaim on grounds that the applicants had failed to prove fraud in the acquisition of the titles and that the two respondents had proved they were duly registered as owners of LR No. 209/11543 and LR No. 209/11546 (part of the suit property), hence the applicants’ continued occupation amounted to trespass.
4.
The application is based on the applicants’ Supporting Affidavit sworn by Sammy Mwangangi on 22nd July 2020. The applicants submit that they have lived on the suit property since 1923 and have substantially developed the land by building churches, mosques and schools. It is the applicants’ case that this Court needs to determine whether, long possession of the suit property guarantees citizens in occupation, the right of priority in allotment. They also submit that the question as to what privileges accrue to citizens in long possession of unalienated Government land needs to be authoritatively determined.
5.
The 3rd and 4th respondents oppose the application based on the Replying Affidavit sworn by Paul Kihuti Kondiah on 22nd October 2020. They submit that the suit property was legally allotted to them and that the applicants did not prove anything to the contrary before the two Superior Courts. The respondents further argue that the main issue before the High Court and Court of Appeal, was whether the title to the suit property was legally or fraudulently acquired. As such, the respondents contend, the claim before the courts has always been a private matter whose determination does not transcend the interests of the parties. | E. Issues For Determination
13.
As the parties have not argued or submitted on the issue of Stay of Execution, only a single issue falls for this Court’s consideration, i.e. whether the application herein, involves matters of general public importance as envisaged under Article 163(4)(b) of the Constitution.
F. Determination
14.
The applicants set out two issues to be of general public importance, warranting determination by this Court, these are:
(i)
Whether long possession of unalienated government land guarantees citizens in long occupation the right of priority in allotment; and
(ii)
Whether the jurisprudence on unalienated government land in relation to Section 41 (a) of the Limitations of Actions Act should be further developed.
15.
The 3rd, 4th and 10th respondents on the other hand, submit that the intended issues are not matters of general public importance, but rather a dispute between parties claiming ownership of the suit property. They also argue that the proposed issues do not raise a substantial point of law requiring the further input of this Court.
16.
The question to consider then is, whether the application before us can be sustained on the basis of Article 163 (4) (b) of the Constitution. Are the proposed issues of such a nature and importance as to warrant the exercise of this Court’s Appellate jurisdiction under Article 163 (4) (b) of the Constitution?
17.
In Hermanus Case, this Court declared that for a case to be certified as one involving a matter of public importance,
“
(i)
the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
(ii)
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
(iii)
such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
(iv)
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
(v)
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
(vi)
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought.”
18.
It is indisputably clear from the record that the issues raised in the suit before the High Court were:
1.
whether the parties had locus standi to institute the suit and the counter claim;
2.
whether the applicants had complied with the provisions of Section 13A of the Government Lands Act;
3.
whether the 3rd and 4th respondents’ titles were obtained by fraud;
4.
whether the applicants or their forefathers lived on the suit property prior to the purchase of the property by the 2nd to 4th respondents; and
5.
whether the applicants’ entry to the land was lawful and whether the parties were entitled to the prayers in the plaint and counterclaim.
19.
The High Court made several findings of fact and law, the main one of which was that respondents had lawfully acquired the suit property. Their title, held the Court, could not be questioned on grounds of fraud as alleged by the applicants.
20.
Aggrieved by this decision, the applicants lodged an appeal in the Court of Appeal, where two issues were preferred, to wit, whether the occupation of the suit property by the applicants amounted to adverse possession and whether the suit property was lawfully allotted to the 2nd to 4th respondents. After hearing the parties, the Court of Appeal affirmed all the main findings by the High Court. The Appellate Court also held that the doctrine of adverse possession is well settled and that the same can only be raised against a registered proprietor and not against public land.
21.
Flowing from the above, we see no reason to allow a second appeal to this Court. The issues as determined by the Appellate Court in our view, do not transcend the circumstances of this particular case. The issues arise from a private claim between the parties. By the same token, we do not see any significant question of law that requires the further input of this Court or any state of uncertainty in the law arising from contradictory precedents. The finding of this Court on jurisdiction consequently disposes of the issue of stay of execution, which in any case was not canvassed by the parties.
G. Orders
22.
The foregoing conclusion triggers the following Orders.
(i)
The Originating Motion Application dated 22nd July 2020, is hereby dismissed;
(ii)
The decision of the Court of Appeal delivered on 10th July 2020, declining leave to appeal to this Court is hereby affirmed;
(iii)
The Costs of this Application shall be borne by the Applicants.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/67/eng@2021-03-17 |
Application 23 of 2020 | Tawai Limited v Eldoret Express Limited & another [2021] eKLR | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 March 2021 | 2,021 | Nairobi | Civil | Tawai Limited v Eldoret Express Limited & another | [2021] KESC 68 (KLR) | null | A. Introduction
1.
Before the Court is a Motion dated 19th August 2020 and lodged on 21st August 2020. It is brought under Articles 159, 163 (4) (b) and 163 (5) of the Constitution, Sections 15, 16, 23 and 24 of the Supreme Court Act, 2011, Rule 33 of the Supreme Court Rules, 2020 and all other enabling provisions of Law. It seeks to review the Ruling of the Court of Appeal (Ouko, Karanja & Mohamed, JJ.A) in Civil Application No. 167 of 2019 sitting at Nairobi, delivered on 29th September 2017, denying certification and leave to appeal to this Court against the decision of the Court of Appeal (Makhandia, Kiage & Odek, JJ.A) in Civil Appeal No. 118 of 2017, delivered at Nairobi on the 28th November 2019. It also seeks stay of execution of the Court of Appeal Judgment, pending the hearing and determination of this application and intended appeal. In the impugned decision, the Appellate Court overturned the trial Court’s decision (Ombwayo J) in which it had declared the transfer and registration of L.R No. 5707/6 in favour of the respondent illegal.
B. The Application
2.
The Motion is based on the applicant’s Supporting Affidavit sworn on 9th August 2020. It urges that; Karanja, J. irregularly sat in the bench that determined the application for certification while the Judge had previously sat in a bench that had heard and determined Kitale High Court No. 15 of 2006 (Tawai Express Limited v. Eldoret Express), a suit between the same parties, involving substantially similar issues and whose decision was substantially relied on in determining the suit, the subject of the intended appeal.
3.
The applicant further avers that the intended appeal raises ten issues of general public importance transcending the circumstances of its case and which were raised and determined by the courts below, to wit:
(i)
Whether an unverified and unregistered deed plan under the Survey Act can confer legal title;
(ii)
whether such omissions can be normalized by a court of law;
(iii)
what entity has the obligation of verifying whether a title is properly created;
(iv)
what is the role of the Director of Survey in the survey process and whether a director’s authentication of a deed plan or other survey instrument is proof that title was procedurally acquired;
(v)
whether it is a legal requirement for a deed plan to be authenticated;
(vi)
whether under the Registration of Titles Act (repealed) a charged property could be transferred without first discharging it;
(vii)
whether a duly registered charge would limit dealings in land;
(viii)
whether a road reserve can be transferred to a private entity;
(ix)
whether time begins to run where fraud is alleged contrary to the provisions of Article 40 (6) of the Constitution; and
(x)
whether a title acquired in contravention of the law is a good title.
4.
It is the applicant’s further averment that the determination of these issues will greatly contribute to the development of jurisprudence regarding matters such as the role of the Director of Surveys in the registration of titles in Kenya; the legal position of Deed Plans in the registration process; the effect of a registered charge; and the issue of limitation of time, where fraud is alleged.
5.
The Motion is opposed via the respondent’s Replying Affidavit sworn by Joseph Ng’ang’a Thungu on 2nd September 2020. It is urged that the issues raised in the intended appeal do not raise any point of law transcending the facts of the case between the parties and that they are of no public interest. It is urged that the issue of bench constitution at the Court of Appeal has no bearing on this Court’s exercise of jurisdiction under Article 163 (4) & (5) of the Constitution. | E. Issues for Determination
13.
Two issues fall for the Court’s consideration, i.e, whether the issues raised by the applicant are of general public importance as envisaged by Article 163(4)(b) of the Constitution; and whether this Court should grant an Order for Stay of Execution.
F. Determination on Jurisdiction
14.
The applicant has enumerated a range of matters which it considers to be of general public importance, warranting determination by this Court. It submits, that the Court of Appeal’s finding admitting an unverified and unauthenticated deed plan possess a challenge that needs clarification by this Court. Further, the finding by the Court of Appeal that a charged property could transfer to a third party, without first discharging such charge, deprives lenders in whose favour a charge has been registered, their right to property, contrary to Article 40 of the Constitution.
15.
on the other hand, it is the respondent’s submission that this Court lacks jurisdiction to entertain the appeal under Article 163 (4) (b) of the Constitution, since the appeal does not raise matters of general public interest and importance as required by Article 163(4)(b) of the Constitution. That the matters raised are: a dispute between the parties; a mere apprehension of miscarriage of justice; targeted at impugning the Judgment of the Court of Appeal; of no special jurisprudential moment requiring the intervention of the Court; and are matters that were not pleaded before the lower superior courts.
16.
The extent of this Court’s appellate jurisdiction is provided for in Article 163(4) of the Constitution. Article 163 (4) provides that:
“
appeals shall lie from the Court of Appeal to the Supreme Court:
(a)
as of right in any case involving the interpretation or application of this Constitution; and
(b)
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to sub-Article 5.
[Emphasis added]
Article 165 (5) provides that:
“
a certification by the Court of Appeal under clause 4 (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
17.
The question to consider then is, whether the application before us can be sustained on the basis of Article 163 (4) (b) of the Constitution. In the Hermanus Case, this Court declared that for a case to be certified as one involving a matter of general public importance:
“
(i)
the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
(ii)
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
(iii)
such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
(iv)
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
(v)
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
(vi)
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought.”
18.
It is clear from the Court record that the gist of the suit before the Trial Court and the Court of Appeal was the validity of the respondent’s title and occupation of L.R No. 5707/6. The Trial Court found that the suit land was illegally and fraudulently created through misrepresentation. It declared the transfer and registration of L.R No. 5707/6 in favour of the respondent illegal; cancelled the title; ordered the respondent’s eviction; permanently restrained it from trespassing the suit land; and ordered the respondent to pay Kshs 11,970,000 as mesne profits.
19.
Aggrieved by this decision, the respondent lodged an appeal in the Court of Appeal. After hearing the parties, the Court of Appeal faulted the Trial Court’s finding regarding the legality of the contested title. In particular, the Appellate Court took issue with the Trial Court’s analysis of the evidence on record. In this regard, the Court observed that the Trial Court’s finding of illegality of title was not backed by the evidence on record. on the contrary, held the Appellate Court, all the documents before the lower court actually went to prove the legality of the contested title. The Court further concluded that there was nothing on record to suggest that the title to the suit property had been created fraudulently or through misrepresentation.
20.
It is not in question that the dispute was resolved based on the analysis of the evidence on record. We agree with the respondent’s submission to the effect that the applicant has not raised any issues whose determination would transcend this particular case. Consequently, we see no reason to allow a second appeal to this Court. By the same token, we do not see any significant question of law that requires the further input of this Court. The finding of this Court on jurisdiction consequently disposes of the issue of Stay of Execution.
G. Orders
(i)
The Originating Motion dated 19th November 2019, is hereby dismissed;
(ii)
The decision of the Court of Appeal delivered on 7th August 2020, declining leave to appeal to this Court is hereby affirmed;
(iii)
The Costs of this application shall be borne by the applicant.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/68/eng@2021-03-17 |
Reference 3 of 2020 | In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County (Reference 3 & 4 of 2020 (Consolidated)) [2021] KESC 61 (KLR) (16 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 16 March 2021 | 2,021 | Nairobi | Civil | In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County | [2021] KESC 61 (KLR) | null | A. Introduction
1.
Before this Court are two References seeking an Advisory Opinion in response to a number of questions/issues posed by the applicants. The applications are brought pursuant to the provisions of Article 163 (6) of the Constitution. The said Article provides that:
“
The Supreme Court may give an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government.”
2.
Reference No. 3 of 2020 is dated 20th November, 2020 and filed on 24th November 2020, while Reference No. 4 of 2020 is dated 30th November 2020, and filed on 2nd December, 2020. The Law Society of Kenya filed an application dated 8th December 2020, on even date, seeking admission as amicus curiae.
B. Background
3.
The two References were first mentioned before the Court on 9th December 2020, during which; the Attorney General, the Senate, the National Assembly, and the Independent Electoral and Boundaries Commission, were admitted as necessary participants in the References. The applicants were directed to seek the Attorney General’s advice within seven (7) days; the Attorney General was directed to issue the advice within seven (7) days from the date of receiving the applicants’ request; any party wishing to be enjoined to the References as amicus was directed to make a formal application, accompanied with the amicus brief, within fourteen (14) days; and Reference No. 3 of 2020 and Reference No. 4 of 2020 were consolidated, with Reference No. 3 of 2020 as the primary file.
4.
Subsequently, the applicants sought the Attorney General’s advice via a letter dated 11th December, 2020. The Attorney General issued his advice dated 21st December, 2020 and filed in Court on 22nd January, 2021. Two motions seeking admission as amici curiae were also filed. On 25th January 2021, this Court delivered a Ruling admitting the Law Society of Kenya as amicus curiae. The Court subsequently mentioned this matter on 25th January 2021, when it dismissed the other two applications seeking admission as amici curiae, for having been filed out of time. The applicants were directed to respond to the Attorney General’s advice within seven (7) days thereof. The 3rd applicant (the Governor Makueni County) responded to the Attorney General’s advice on 1st February 2021. The 1st and 2nd applicants (County Assemblies of Kericho and Nandi) filed their submissions on the Reference and in response to the Attorney General’s advice dated 2nd February, 2021 on 3rd February, 2021.
5.
The matter was further mentioned on 9th February, 2021 to confirm compliance with the Court’s Directions. At the Mention, the Court admitted the 1st and 2nd applicants’ response to the Attorney General’s advice as having been filed on time; directed the Independent Electoral and Boundaries Commission and any other party wishing to respond to the Reference, to do so, by the 12th February 2021; and directed any party wishing to file a rejoinder, to do so, by the 16th February, 2021. The matter was scheduled for further mention on 19th February, 2021.
6.
On 19th February 2021, the Court admitted the Independent Electoral and Boundaries Commission’s submissions filed on 16th February 2021, as having been filed on time and directed the applicants to file their submissions in response, by 23rd February, 2021. The matter was further scheduled for mention, on the 16th March 2021. | D. Determination on Jurisdiction
9.
During the Mention on 19th February 2021, the Court issued further directions, in which it informed the parties that it would deliver a Ruling on whether to render an Advisory Opinion as sought by the parties or not. The Court also indicated that were it to be inclined towards rendering an Opinion, it would have to delineate specific issues to be addressed by the parties. This Ruling is therefore, an affirmation of the foregoing directive.
10.
At the outset, we have to determine whether, the jurisdiction of this Court to render an advisory Opinion has been properly invoked, and if so, whether the Court should exercise its discretion to render the Opinion as prayed. Towards this end, it is instructive to recall our decision in Re Matter of Gender Representation to the National Assembly & Senate;
Advisory Opinion No. 2 of 2012, [2012] eKLR; wherein the following principles were laid down to guide the Court on the exercise of its jurisdiction under Article 163 (6) of the Constitution. At paragraph 83, the Court stated:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
(iv)
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.
11.
While taking cognizance of the fact that, no Preliminary Objection has been raised challenging this Court’s jurisdiction to render an Opinion, we nonetheless must satisfy ourselves that the two References meet the threshold set out in the four governing principles. In this regard, we have no doubt that Reference no. 3 by the County Assemblies of Kericho and Nandi, satisfies the conditions set out in Principles (i) and (ii) above. There can be no denying that the two applicants are “state organs” within the meaning of Article 163 (6) of the Constitution. Nor can there be any doubt that the matters in respect of which they seek an Advisory Opinion are ones that concern County Government.
12.
Regarding Reference No. 4, we note that the same has been lodged by the Governor of Makueni County. We are similarly in no doubt, that the matters in respect of which the applicant seeks an opinion, are those that squarely concern County Government. Thus far, we see no reason to belabour the point.
13.
We now turn to Principles Nos. (iii) and (iv) regarding the exercise of jurisdiction as enunciated by the Court in Re Matter of Gender Representation to the National Assembly & Senate [Supra]. The Court signaled that it would be hesitant to render an Advisory Opinion if the matter(s) in respect of which the Reference is made, is pending before a lower court. There are two exceptions to this principle, in that, this Court can render an opinion if the matter before the lower court was instituted after the Reference, or if in the opinion of the Court, the matter is urgent and that its resolution would be in the public interest.
14.
It has come to the attention of this Court, through notification by Mr, Bitta on behalf of the Attorney General, that the matters raised in the two References before us, are similar to those in seven consolidated Petitions pending before the High Court. However, Mr. Ongoya, counsel for the applicants in Reference No. 3, is categorical that there is no substantive affinity between the issues in the References and those pending before the High Court. In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [Supra]; at paragraph 17, the Court re-emphasized that:
“
Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in Section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing “rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”
15.
Faced with the two conflicting opinions by counsel, as to whether the issues raised in the References, bear any similarity to those pending at the High Court, the only cause of action open to this Court, was to peruse the relevant records at the High Court Suo Motu. Pursuant to such perusal, we find that in David Ndii & Others v. Attorney General & Others, Petition No. E282 of 2020; the High Court delivered a ruling on 8th February 2021, in which the learned judges identified and set down for determination the following issues inter alia:
(a)
Whether in the process of formulating the Constitutional Amendment Bill, the provisions of Articles 27 and 47 of the Constitution as read with Section 4 of the Fair Administrative Action Act were adhered to;
(b)
Whether the entire BBI process culminating with the launch of the Constitutional Amendment Bill was undertaken constitutionally having regard to Articles 1, 2, 3, 10, 255 and 257 of the Constitution;
(c)
Whether the Constitutional Amendment Bill is a Popular initiative as envisaged under Article 257 of the Constitution and if not, whether the process chosen to enact the constitutional amendment is fundamentally flawed and constitutionally infirm;
(d)
Whether at the time of launch of the Constitutional Amendment Bill and the collection of endorsement signatures, there was a legislation governing the collection, presentation, and verification signatures or a legal framework or administrative structure to govern the conduct of referenda in the Country, and whether the absence of such legal and administrative framework is fatal for the Constitutional Amendment Bill under consideration;
(e)
Whether the 3rd Respondent, the Independent Electoral and Boundaries Commission (the Commission), and the County Assemblies can exercise their powers under Article 257 of the Constitution to receive, verify and approve the Constitutional Amendment Bill in the prevailing circumstances;
(f)
Whether, by dint of Article 257 (5) and (7) of the Constitution, the County Assemblies and Parliament have the power to alter and or improve the contents of the Constitutional Amendment Bill so as to incorporate divergent views raised through public participation;
(g)
Whether Article 257(10) requires all the specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper;
(h)
Whether the constitutional edict does empower the National Executive or any State organ, as opposed to Parliament, to pursue or initiate any amendment to the Constitution without petitioning Parliament;
(i)
Whether in a popular initiative to amend the Constitution, the National Executive may use public resources, including deploying public and State officers to either collect signatures or popularize any intended amendments to the Constitution;
(j)
Whether the intended constitutional amendment processes are in conformity with the National Values in Article 10 of the Constitution;
(k)
Whether the Commission is legally constituted to carry out the referendum;
(i)
Whether there has been public participation in the constitutional amendment process.
16.
We have critically considered, in analytical terms, the import of the issues raised in the two References and those pending for determination at the High Court as quoted above. The High Court has been moved by the parties under Article 165 (d) of the Constitution. They seek a number of far-reaching declarations which in our view, can only be made after a rigorous and extensive interpretation, of the relevant provisions of the Constitution whose meaning has been called into question. We also note that the High Court petitions were filed before the two References seeking this Court’s advisory opinion.
17.
Coming to the critical question as to whether the issues pending before the two courts, bear any substantive similarity as to put us on a trajectory of restraint, we have come to the conclusion that, indeed this is the case. We do not see how the High Court can determine the issues before it without venturing into similar questions now pending before us in the two References. Given the timing of the proceedings before the two courts, there is a distinct possibility that the advisory opinion and declarations from the Supreme Court and High Court respectively, could issue at the same time. Such a scenario is likely to cause confusion and anxiety in the public mind, not to mention the potential threat, to the principles of certainty and finality in judicial pronouncements.
18.
Should this Court down its tools to await the High Court’s determination of the petitions pending before it, or should we go ahead and render an opinion well aware that a similar subject matter is pending in a lower Court? In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [Supra] at paragraph 18, the Court stated:
“
The Court recognizes, however, that its Advisory Opinion is an important avenue for settling matters of great public importance which may not be suitable for conventional mechanisms of justiciability. Such novel situations have clear evidence under the new Constitution, which has come with far-reaching innovations, such as those reflected in the institutions of county government… This is the typical situation in which the Supreme Court’s Advisory- Opinion jurisdiction will be most propitious; and where such is the case, an obligation rests on the Court to render an opinion in accordance with the Constitution.”
19.
We have already noted that the matters before the two courts, are of great public importance, requiring urgent resolution. Yet we do not think that the issues before the High Court, have been lodged in an adversarial posture, such as would embolden this Court to proceed and render an opinion as signaled in the quoted Paragraph above. On the contrary, the High Court is being called upon, with attendant tones of urgency, to exercise one of the most important aspects of its original jurisdiction, i.e, to interpret the Constitution. In the circumstances, we see no justification to usurp that Court’s role as clearly constructed in our constitutional set-up.
E. Disposition
20.
While it is our finding that this Court has jurisdiction to render an Advisory Opinion as prayed in the two References, we nonetheless decline to exercise our discretion in favour of rendering such opinion as sought by the applicants, on grounds of the reasons given in paragraphs 17, 18, and 19 of this Ruling. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/61/eng@2021-03-16 |
Petition 1 of 2020 | Attorney General v Zinj Limited (Petition 1 of 2020) [2021] KESC 63 (KLR) (Civ) (5 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 5 March 2021 | 2,021 | Nairobi | Civil | Attorney General v Zinj Limited | [2021] KESC 63 (KLR) | null | 1.
The Notice of Motion dated 30th October 2020 is premised on Rule 18 of the Supreme Court Rules, 2012 (now repealed) and seeks the following orders:
1.
The Honourable Court be pleased to direct that additional evidence be taken by the trial Court to establish the level and extent of the continuing encroachment of the suit property L.R. No.25528.
2.
The Director of Survey be directed to undertake a site visit and inspection, locus in quo, of the suit property, L.R. No.25528 and file with the trial Court a report showing the current level of encroachment in the suit property.
3.
Upon and consequential to Orders 01 and 03 above being granted, the notes and observations made thereon by the trial Court do form part of this Court’s proceedings.
4.
This Honourable Court do issue such further Orders as may serve the ends of justice.
5.
The costs be provided for.
2.
The Applicant, Zinj Limited, claims that the additional evidence being sought is intended to show the current level of encroachment into the disputed property, L.R. No.25528, and to remove any vagueness or doubt over the substantive issue of encroachment and the compensation payable to it.
B. Background
3.
In ELC Petition No.2 of 2010 (Malindi) the Applicant had claimed that its parcel of land, L.R. No.25528, had been unlawfully interfered with by the State which action amounted to unlawful compulsory acquisition of the said parcel of land. In agreeing with the Applicant, the Environment and Land Court (Olola, J) found that the State had indeed unlawfully acquired 51.129 hectares of land belonging to the Applicant and assessed damages arising therefrom at Kshs.413,844,248.70 being the value of the land and general damages of Kshs.51,129,000. The Applicant was dissatisfied and filed an appeal at the Court of Appeal being Civil Appeal No.56 of 2018.
4.
In its Judgment, rendered on 20th March 2019, the Court of Appeal (Visram, Karanja and Musinga, JJA) partly allowed the appeal with the result that compensation was pegged at the whole of L.R. No.25528 and not a portion of it and the value stated to be Kshs.2,996,232 plus 15% thereof (Kshs.449,434,800) and general damages assessed at Kshs.42,570,000. The Attorney General filed an appeal to this Court which appeal is still pending hearing and determination. | E. Analysis and Determination
10.
We have perused the Judgments of both the Environment and Land Court as well as the Court of Appeal. In determining that the State encroached upon the Applicant’s property, the Courts largely relied on a report by Maritim Wedon, Malindi/Magharini District Land Surveyor, dated 12th January 2012. In that report, it was established that there was “an overlap between Ngomeni Settlement Scheme, L. R. No.24853 and L. R. No.10754”. The latter parcel of land was amalgamated with another to create L. R. 25528 registered in the name of the Applicant. The same report also indicated in detail, the acreages of the overlap/encroachment including “an additional area/marked E on the [sketch map] of approximately 22.47 Ha (55.5 acres)”. Olola J, in his Judgment, specifically determined that 28.659 hectares of land belonging to the Petitioner had been encroached upon by the Department of Defence (6.318 Ha), Ngomeni Settlement Scheme (15.869 Ha), public road (6.189 Ha) and a Muslim cemetery (0.2827 Ha). An additional 22.47 Ha was also found to have been encroached upon by squatters. In total, he found that 51.129 Ha of land had been unlawfully disposed from the Applicant.
11.
The Court of Appeal, on its part, disagreed with the learned Judge of the trial Court and found that the Applicant had been dispossessed of the entire parcel of land, L. R. No.25528, and was entitled to compensation in the terms we have expressed above.
12.
The divergence of the findings by both Courts is now the subject of the appeal before us and the question that we must ask is whether the alleged additional evidence would run afoul of the principles we established in Hon. Mohamed Abdi Mohamad. Those principles, flowing from an interpretation of Rule 18 of the Supreme Court Rules 2012 (now Rule 26 of the Supreme Court Rules 2020 are as follows:
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
(b)
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
(c)
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
(d)
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
(e)
the evidence must be credible in the sense that it is capable of belief;
(f)
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
(g)
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
(h)
where the additional evidence discloses a strong prima facie case of willful deception of the Court;
(i)
The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful;
(j)
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
(k)
the Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
13.
We have, in applying the above principles noted firstly, that in fact the additional evidence is not before this Court. For a Court to interrogate additional evidence, it would be expected, generally, that the evidence is available to the Court and the opposing party. How can this, or any Court, determine the relevance, credibility, volume and disclosure of a prima facie case if the evidence is speculative or unknown? How can any Court determine that the evidence is not meant to fill up gaps in evidence, if the additional evidence itself is not available? How can we determine the prejudice to be caused to the Respondent if all we have is the Applicant’s claim that the evidence will assist the Court remove any doubts or vagueness in the case?
14.
Our clear finding is that, in the present case, without the additional evidence being placed before us, we cannot properly invoke the above principles in favour of the Applicant.
15.
Secondly, we have endeavoured to show that, contrary to the Applicant’s assertion, Olola J and later, the Court of Appeal, having found and determined what acreage of land had been encroached upon, went ahead to award the Applicant compensation as a result thereof. The Applicant to our knowledge, has not appealed against the decision of the Court of Appeal and is deemed to be satisfied with it. The Respondent is not satisfied with that decision and in the Memorandum of Appeal before this Court has challenged the decision to award compensation on alleged compulsory acquisition of the whole parcel of land as opposed to part of it as found by Olola J. It would be a travesty of justice for this Court to allow the Applicant to go on a fishing expedition and create evidence of unknown relevance or value whose import in determining the above question is a mystery to us.
16.
Thirdly, and lastly, this Court has a very limited mandate and to allow parties to reopen their cases, seek the taking of evidence afresh by trial Courts and worse, direct new evidence to be created by ordering site visits and inspections as is prayed by the Applicant, would negate the purpose for which this Court was created. The present Motion, with respect, is a clear abuse of the processes of this Court and must be dismissed.
F. Disposition
17.
For reasons given above;
i)
The Motion dated 30th October 2020 is dismissed.
ii)
Costs thereof shall be paid by the Applicant to the Respondent.
18.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/63/eng@2021-03-05 |
Application 7 of 2020 | Gichanga v Secretary, Teachers Service Commission (Application 7 of 2020) [2021] KESC 64 (KLR) (5 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 5 March 2021 | 2,021 | Nairobi | Civil | Gichanga v Secretary, Teachers Service Commission | [2021] KESC 64 (KLR) | null | 1.
Upon perusing the Notice of Motion by the Applicant dated 24th March 2020 and filed on 30th April 2020, which application is brought pursuant to the provisions of Rule 23 of the Supreme Court Rules, 2012 (repealed) and in which the Applicant seeks a review of the Ruling and orders of this Court dated 11th December 2019; and
2.
Upon perusing the affidavit in support of the application sworn on 24th March 2020 AND wherein the deponent contends that this Court in rendering its decision dismissing the Applicant’s application for extension of time to file a notice of appeal and an appeal out of time failed to consider the delay in obtaining the proceedings from the Court of Appeal and that the matter is of general public importance; and
3.
Upon further considering the written submissions by the Applicant dated 9th July 2020 and filed on 13th July 2020, and amended submissions dated 24th June 2020 and filed on 25th June 2020; and
4.
Further, Upon considering the replying affidavit of the Respondent sworn on 30th June 2020 and filed on 2nd July 2020 in which, in opposing the application for review, contends that the Applicant has not established grounds to warrant the review of the Ruling of this Court, and furthermore, that the Applicant has not shown any exceptional circumstances to enable this Court review its earlier Ruling, and, that the application is vexatious, frivolous and a waste of this Court’s judicial resources; and
5.
Upon considering the Respondent’s submissions dated 30th June 2020 and filed on 2nd July 2020 in opposition to the Petitioner’s application; and | 6.
Having considered the application, the supporting affidavit and the submissions in support thereof, and the replying affidavit and the submissions in response and in opposition to the instant application, by a unanimous decision of this Bench, we find that;
a.
This Court has the jurisdiction to consider an application for review of its decisions as provided under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020, and as previously provided in Rule 20(4) of the Supreme Court Rules, 2012 (repealed);
b.
The application dated 24th March 2020 and filed on 30th April 2020 in which the Applicant contends that the jurisdiction of this Court should be invoked to review its earlier decision dated 11th December 2019 dismissing the application for extension of time to file an appeal out of time to this Court does not satisfy the principles set out by this Court on the issue of review of its decisions as enunciated in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others SC Petition (App.) No. 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014; [2017] eKLR; and
c.
The Applicant did not provide sufficient and cogent reasons for this Court to consider and depart from its earlier decision dated 11th December 2019 (Ibrahim, Ojwang, Wanjala, Njoki & Lenaola SCJJ);
7.
In the circumstances, we now make orders as follows;
a.
The Notice of Motion application by the Applicant dated 24th March 2020 and filed on 30th April 2020 is hereby dismissed;
b.
There shall be no orders as to costs.
8.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/64/eng@2021-03-05 |
Motion 25 of 2020 | Olotch v Pan African Insurance Company Limited (Motion 25 of 2020) [2021] KESC 65 (KLR) (5 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 5 March 2021 | 2,021 | Nairobi | Civil | Olotch v Pan African Insurance Company Limited | [2021] KESC 65 (KLR) | null | A. The Application
1.
By an originating Motion dated 16th September 2020 and premised on Section 16(1) and (2) of the Supreme Court Act, 2011 as well as Rule 33(2) and (3) of the Supreme Court Rules, 2020, the Applicant, William Olotch, has applied for a review of the decision of the Court of Appeal delivered on 22nd May 2020. In its Ruling, the appellate Court had declined to certify the dispute between the parties as one requiring further input by this Court, as a matter of general public importance, under Article 163(4) (b) of the Constitution
B. Background
2.
Before the High Court, in HCCC N0.509 of 2002, the Applicant had prayed for a declaration that his summary dismissal as the Managing Director of the Respondent, Pan Africa Insurance company Ltd was unlawful and that he was entitled to certain sums of money being salary in lieu of notice, accrued leave, salary arears, club membership, severance pay, dues for 8 years of service and translocation expenses. The Respondent, on its part, counterclaimed for delivery of M/V Reg. No. KAM 509M or payment of Kshs.3,575,000.00 in lieu thereof as well as damages for loss of use of the said motor vehicle.
3.
In a Judgment delivered on 9th March 2017, Sergon J dismissed the Applicant’s claim with costs and ordered him to pay Kshs.4,737,187.60 plus costs to the Respondent. The Applicant was dissatisfied and on appeal, the Court of Appeal, in a Judgment delivered on 10th May 2019 (Warsame, Musinga and Kiage JJA) dismissed his appeal with no order as to costs.
4.
By a Notice of Motion dated 17th July 2019, the Applicant prayed for certification of his intended appeal to this Court as one involving a matter of general importance. The appellate Court, in a Ruling delivered on 22nd May 2020 (Ouko, Koome and Murgor JJA) declined the plea of certification thus triggering the present Motion. | E. Analysis and Determination
9.
Article 163(4) (b) of the Constitution provides as follows:
“
Appeals shall lie from the Court of Appeal to the Supreme Court in any case in which the Supreme Court or the Court of Appeal, certifies that a matter of Public Importance is involved subject to Clause 5”
10.
In applying the above provision, this Court in Hermanus Phillipus Steyn and Town Council of Awendo among other decisions on the subject, laid down a number of principles that a party seeking review of non–certification by the Court of Appeal must properly invoke for this Court to grant such review. Of relevance to the present Motion are the following:
i)
The issue canvassed must transcend the specific circumstances of a particular case and have a significant bearing on the public interest.
ii)
Where the issue is one of law, its determination must have a significant bearing on the public interest.
iii)
Mere apprehension of injustice by the Courts below cannot be a proper basis for certification.
iv)
The specific elements of “general public importance” must be clearly and concisely identifiable.
v)
Determination of facts in contest between the parties cannot be a basis for certification.
11.
In the above context, we have set out above the eight questions that the Applicant considers to be so significant as to attract the application of the above principles in his favour. We have weighed all of them against the expectation of the law and with respect, they all fall far below the above threshold. We say so because whereas general questions of law such as applicability of natural justice to all contracts and retroactivity of contracts of employment may have been thrown in to spice the Motion, the questions relate wholly to the specific circumstances between the parties hereto. A contract between an employee and an employer is ordinarily looked at, within its four corners, should a dispute arise and applicable law is then invoked to determine the dispute which in the end should not transcend the special and private relationship between parties to it so as to attract the general public importance qualification or the public interest necessity.
12.
The Judgments of the Courts below were in that context also detailed on the real dispute between the parties: was the Applicant lawfully dismissed from his employment and if so, was he entitled to his monetary claims? And was the Respondent’s counterclaim regarding M/V Reg.No. KAM 509M a lawful one or not? Both Courts reached near similar conclusions on the twin questions and there was nothing in the dispute nor in the Judgments to warrant the attention of the general public.
13.
We must reiterate that mere dissatisfaction with the manner in which Courts below determined disputed facts is not by and of itself a good reason to raise a matter to the higher platform of “general public importance” neither does apprehension that miscarriage of justice may have been committed, do so. Article 163(4) (b) was never enacted to placate every litigant unhappy with the final decision of the appellate Court. This must be said of the present case.
14.
Without saying more, the Motion is one for dismissal. As for costs, we have no doubt that, in the present instance, they must follow the event and so the Respondent shall have costs thereof.
D. Disposition
15.
For reasons above, the final orders to be made are that;
a)
The Originating Motion dated 16th September 2020 is hereby dismissed.
b)
The Respondents shall have costs thereof.
16.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/65/eng@2021-03-05 |
Civil Application 30 of 2020 | Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others (Civil Application 30 of 2020) [2021] KESC 62 (KLR) (Civ) (5 March 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 5 March 2021 | 2,021 | Nairobi | Civil | Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others | [2021] KESC 62 (KLR) | null | Upon perusing the Notice of Motion by the Applicants dated 29th October 2020 and filed on 30th October 2020, which application is brought pursuant to the provisions of Rules 3(5) and 28(5) of the Supreme Court Rules, 2020 and in which the Applicants seek stay and review of the Ruling and orders of this Court dated 4th September 2020; and | Having considered the application, the supporting affidavit and the submissions in support thereof, and the replying affidavit and the submissions in response and opposition to the instant application, by a unanimous decision of this Bench, we find that;(a)
This Court has the jurisdiction to consider an application for review of its decisions as provided under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020;
(b)
The application by the Applicants dated 29th October 2020 and filed on 30th October 2020 which contends that the jurisdiction of this Court should be invoked to review its decision dated 4th September 2020 allowing the 1st Respondent’s Preliminary Objection application dated 30th May 2019 does not satisfy the principles set out by this Court on the issue of review of its decisions as pronounced in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others SC Petition (App.) No. 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014; [2017] eKLR and;
(c)
The Applicants did not provide sufficient and cogent reasons for this Court to consider and depart from its decision dated 4th September 2020 (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala & Njoki SCJJ);
(d)
The Applicants did not establish what constitutional or statutory provisions they sought to rely Upon in their Petition of Appeal before this Court, and which defect could nonetheless not be effectively remedied through the submissions that they had filed on 17th July 2020, and which in any event did not conform with the principles set out by this Court in Daniel Kimani Njihia v. Francis Mwangi Kimani & another [2015] eKLR, Suleiman Mwamlole Warrakah & 2 others v. Mwamlole Tachappu Mbwana & 4 others [2018] eKLR, Rose Jebor Kipngok v. Kiplagat Kotut Application No. 34 of 2019; [2020] eKLR and Cordison International (K) Ltd v. Chairman National Land Commission & 43 others Petition No. 14 of 2019; [2020] eKLR on the requirement of parties to establish and invoke the relevant constitutional and statutory provisions that they seek to rely Upon when coming before this Court.
(e)
Neither the prayer for setting aside nor review have merit.
7.
In the circumstances, we now make Orders as follows;
(a)
The Notice of Motion application by the Applicants dated 29th October 2020 and filed on 30th October 2020 is hereby dismissed;
(b)
Each party shall bear its costs thereof.
8.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/62/eng@2021-03-05 |
Reference 3 of 2020 | County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya (Intended Amicus Curiae) (Reference 3 of 2020) [2021] KESC 66 (KLR) (25 January 2021) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 25 January 2021 | 2,021 | Nairobi | Civil | County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya | [2021] KESC 66 (KLR) | null | This was an application filed by the Law Society of Kenya (LSK) seeking leave to be enjoined in the reference as amicus curiae. The applicant submitted that it had met the set criteria for admission as amicus curiae because it had the expertise, experience and knowledge relevant to determination of the Reference; was involved in the amendments of the former Constitution and was therefore familiar with Kenya’s constitutional amendment history; and was neutral and had no connection with either party to the Reference. | On the criteria for admission of a party as amicus curiae, such admission was a matter of discretion and a privilege granted to an intended amicus. Such an intended amicus needed to show that it was neutral and that it had no discernible direct or indirect interest in the matter.The court stated that admission of amici curiae was a useful tool in achieving the constitutional mandate to develop the law with the assistance of well informed inputs from parties appearing before court. Under Section 4 of the Law Society Act, the LSK was mandated to assist the Courts and the public in matters relating to the law generally and the administration of justice in particular and was therefore made up of, inter alia, experts in constitutional matters.
No prejudice would be caused to any party if LSK was admitted as amicus curiae and there was no partiality expressed in its draft amicus brief. The court was also satisfied that the brief would assist it in reaching a fair determination of the issues raised in the Reference. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/66/eng@2021-01-25 |
Petition 3 of 2018 | Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 11 January 2021 | 2,021 | Nairobi | Civil | Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa | [2021] KESC 34 (KLR) | null | The appellant was a registered society comprised of residents of Mitumba Village. Mitumba Village and the Mitumba Village Primary School were situated near Wilson Airport. A notice published in the newspapers on September 15, 2011 by the Attorney General gave the residents of Mitumba Village seven days within which to vacate the premises. Despite the appellant obtaining conservatory orders from the High Court to restrain the demolition of Mitumba Village, the premises were demolished on November 19, 2011. The appellant sought various declaratory reliefs at the High Court including those that asserted their ownership of the premises and also stated that the forceful eviction and demolition without a relocation option was illegal, oppressive, and violative of the appellant's rights.The respondent explained that Mitumba Village was situated on property belonging to the Kenya Airports Authority (the 1st respondent) and that the 1st respondent was under a statutory duty to ensure air safety by removing any informal settlement which was on a flight path and that given the war in Somalia, the village posed a threat. The High Court held that the appellant did not own the suit premises. The High Court also held that the newspaper notice which was said to be a reminder notice was unreasonable, unconscionable and unconstitutional as there was no other notice preceding it and it required vacation of the suit premises within seven days. The High Court also noted that there was no legislation or guidelines developed in Kenya for the eviction of persons occupying land that they were not legally entitled to occupy.
The High Court made the determination that the right to property included the protection of goods and personal property and it extended to goods and building materials that had been destroyed during the demolition. The High Court also found that the eviction and demolition of the premises pursuant to a seven-day notice and the failure to provide alternative accommodation was a violation of the appellant's rights to housing and other socio-economic rights recognized under the Constitution of Kenya, 2010 (Constitution). Further, the High Court found that evictions could be necessary but the due process had to be followed. The due process included the issuance of reasonable notice and the conduct of consultations among those affected by the eviction. Additionally, the High Court determined that the demolition which left other nearby multi-storied buildings intact was discriminatory. The High Court noted that the demolitions included the demolition of a school and there was no evidence that measures were put in place to protect the needs of vulnerable groups, particularly children and that children's rights were violated.
In response to the High Court judgment, the 1st respondent filed an appeal at the Court of Appeal. The Court of Appeal made various findings including findings that were to the following effect -
Pamoja Trust was wrongfully given a role reserved for the court when it was asked to be involved in ascertaining eviction terms and the creation of eviction guidelines because Pamoja Trust had no constitutional mandate of resolving disputes;
the concept of partial judgment or interim judgment was unknown to Kenyan law; a court had to finally determine all the issues before it and it would then become functus officio;
allowing parties to file affidavits and reports after the judgment introduced secondary litigation of issues that were not raised in the original pleadings;
the security and safety of the flight paths were a limitation on the enjoyment of the rights and freedoms in the Bill of Rights as permitted under article 24 of the Constitution;
there was no legislation in Kenya meant to regulate forcible eviction and resettlement of persons occupying public or private land and before the enactment of such legislation courts had to interpret and apply the law as it was;
the 1st respondent had no mandate to provide policies and programs on the provision of shelter and access to housing as directed by the High Court;
the trial court erred in law in issuing orders and directions on un-pleaded issues;
the court should not act in vain or issue orders it could not implement and policy formulation was not within the mandate of the courts;
the enforcement and implementation of socio-economic rights could not confer propriety rights in the land of another and the realization of socio-economic rights did not override the provisions of the Limitation of Actions Act.
Aggrieved, the appellants filed the instant appeal at the Supreme Court. | Article 23(1) and (3) of the Constitution were the launching pad of any analysis into the place and scope of interim orders in Kenya's human rights enforcement architecture. Article 23(3) provided that for a violation of the Bill of Rights the court could grant any appropriate relief including, a declaration of rights, an injunction, a conservatory order, a declaration of legal invalidity of any law that denied, violated, infringed or threatened a right or fundamental freedom in the Bill of Rights that was not justified under article 24 of the Constitution, an order for compensation and an order for judicial review. The list of appropriate reliefs that the court could grant was not exhaustive.The Court of Appeal failed to consider Supreme Court decisions concerning interim reliefs that a court could issue to address the violation of a fundamental right. The appellate court appeared to shut the door on the use of interim reliefs or structural interdicts in human rights and other constitutional litigation.
Article 23(3) of the Constitution empowered the High Court to fashion appropriate reliefs, even of an interim nature, in specific cases, so as to redress the violation of a fundamental right.
The doctrine of functus officio retained validity and vitality in both criminal and civil cases but in certain situations, the doctrine ought to give way. Subjecting article 23 of the Constitution, on the court's power to fashion appropriate reliefs for human rights violations, to the limitation of the Civil Procedure Act's provisions on the court becoming functus officio after judgment, would stifle the development of court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.
Interim reliefs, structural interdicts, supervisory orders or any other orders that could be issued by the courts, had to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State agency vested with a constitutional or statutory mandate to enforce the order. Most importantly, the court in issuing such orders had to be realistic, and avoid the temptation of judicial overreach, especially in policy matters. When issuing interim orders the court could indicate that the orders were interim in nature and that the final judgment had to await the crystallization of certain actions.
The meaning to be attributed to the phrase "shall form part of the law of Kenya” in articles 2(5) and 2(6) of the Constitution was that in determining a dispute, a domestic court of law had to take cognizance of rules of international law to the extent that the same were relevant and not in conflict with the Constitution, statutes or a final pronouncement.
Articles 2(5) and 2(6) of the Constitution were both inward-looking and outward-looking. They were outward-looking in the sense that they committed Kenya to conduct its international relations in accordance with its obligations under international law. On the other hand, they were inward-looking because they required Kenyan courts of law to apply international law in resolving disputes before them as long as the same were relevant, and not in conflict with the Constitution, local statutes, or a final judicial pronouncement. International law could be applied to fill a lacuna in domestic law in the context of a dispute before a domestic court because international law was part of the laws of Kenya.
Articles 2(5) and 2(6) of the Constitution had nothing or little significance to do with the monist-dualist categorization. Most importantly, the expression “shall form part of the law of Kenya” as used in the articles did not transform Kenya from a dualist to a monist state as understood in international discourse.
Article 2(5) of the Constitution referred to general rules of international law and did not refer only to peremptory norms of international law or jus cogens. The two main sources of international law were treaties and international customs. Jus cogens was a technical term given to those norms of general international law which were of peremptory force and as a consequence, no derogation was allowed. Jus cogens accounted for only a tiny corpus of the general rules of international law. The suggestion by the Court of Appeal that the use of the phrase "general rules of international law" in the Constitution was limited to the evolving concept of jus cogens was inconceivable.
The U.N Guidelines on Evictions; General Comment No. 7, at best constituted what was known as international jurisprudence or soft law. UN Resolutions, Declarations, Comments and Guidelines did not ordinarily amount to norms of international law. However, certain UN General Assembly Declarations and Resolutions could ripen into a norm or norms of international law depending on their nature and history leading to their adoption.
The U.N Guidelines, General Comment No. 7 did not qualify as general rules of international law, which had a binding effect on members of the international community. However, the Guidelines were intended to breathe life into the right to dignity and the right to housing under the International Covenant on Civil and Political Rights and the International Covenant on Civil Economic Social and Cultural Rights respectively. They, therefore, constituted soft law in the language of international jurisprudence. The trial court could refer to the Guidelines but they could not be elevated to the status of general rules of international law under article 2(5) of the Constitution.
The U.N. Guidelines in question were issued pursuant to article 21 of the International Covenant on Economic Social and Cultural Rights. Strictly speaking, therefore, they could only be considered under article 2(6) of the Constitution, which referred to international treaties and conventions ratified by Kenya. The Guidelines could not be regarded as being part of the treaty under which they were issued. They were tools or aids directed to State parties to help the latter in implementing the treaty or better fulfillment of their obligations thereunder.
The Guidelines were not binding upon the state parties, nor were they part of the law of Kenya in the language and meaning of article 2(6) of the Constitution, unless they had ripened into a norm of customary international law, as evidenced by widespread usage.
Article 43(1)(b) of the Constitution provided that every person had the right to accessible and adequate housing and to reasonable standards of sanitation. Further, under article 21(1) of the Constitution, the State and State organs had the duty to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms in the Bill of Rights. Under article 21(2) of the Constitution, the State had to take legislative, policy and other measures, including the setting of standards in order to achieve the progressive realization of the rights guaranteed under article 43 of the Constitution. Therefore, as a socio-economic right, the right to housing had to be realized progressively.
The expression “progressive realization” was neither a stand-alone nor a technical phrase. It simply referred to the gradual or phased-out attainment of a goal-a human rights goal which by its very nature, could not be achieved on its own, unless first, a certain set of supportive measures were taken by the State. The exact shape of such measures would vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures could involve legislative, policy, or program initiatives including affirmative action.
The right to accessible and adequate housing, just like any other right under article 43 of the Constitution required the State to take legislative, policy and other measures to achieve it. Under article 20(5) of the Constitution, the principles that should guide a court in the enforcement of rights provided for under article 43, where the State claimed that it did not have resources to implement the right were the following; -
it was the responsibility of the State to show that the resources were not available;
in allocating resources the State had to give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and
the court, tribunal or other authority could not interfere with a decision by a state organ concerning the allocation of available resources, solely, on the basis that it would have reached a different conclusion.
The court would exercise its powers under article 20(5) of the Constitution by issuing interim orders whose effect was to demand evidence that would exonerate the State from liability. The orders had to be directed at the State organ responsible for the requisite progressive realization measures. That was what the trial court appeared to have done when issuing the interim orders.
The question as to when the right to housing accrued depended upon its progressive realization. In turn, its realization depended upon the availability of land and other material resources.
Illegal occupation of private land would not create prescriptive rights over that land in favour of the occupants but the same could not be said of an “illegal occupation” of public land. On the contrary, where the landless occupied public land and established homes thereon, they did not acquire title to the land but they had a protectable right to housing over the same. The Constitution of Kenya, 2010, radically transformed land tenure in Kenya by declaring that all land in Kenya belonged the people of Kenya collectively as a nation, communities and individuals. It also created a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable, however unrecognizable, or however transient, in public land.
The right to housing over public land crystallized by virtue of a long period of occupation by people who had established homes and raised families on the land. That right derived from the principle of equitable access to land under article 60(1)(a) of the Constitution.
Faced with an eviction on grounds of public interest, potential evictees that occupied public land, had a right to petition the court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that the eviction could be entirely justifiable in the public interest. However, under article 23(3) of the Constitution, the court could craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement among others.
The trial court’s orders for the respondents to furnish it with existing State policies and programs on the provision of shelter and access to housing were not of remedial benefit to the appellant. The trial court ought not to have included non-State actors, who were not parties to the suit in its orders.
The evictions that the appellant complained of were undertaken in breach of a court order. In the eviction, houses and other property were destroyed. Actions by State organs carried out in flagrant disregard of court orders, undermined the constitutional order, more so, if they resulted in the violation of citizens’ rights.
Appeal partly allowed with no orders as to costs. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/34/eng@2021-01-11 |
Petition 47 of 2019 | Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 1 (KLR) (18 December 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 18 December 2020 | 2,020 | Nairobi | Civil | Geo Chem Middle East v Kenya Bureau of Standards | [2020] KESC 1 (KLR) | null | The petitioner and the respondent entered into a contract wherein the petitioner was to provide qualitative and quantitative inspection and testing services of imported petroleum products, for a term of three years. The contract could be renewed for a further three years upon expiry. The petitioner alleged that it established a petroleum inspection facility at the Port of Mombasa and despite providing inspection services, the petitioner did not receive payments from marketers.In a letter dated February 24, 2010, the Kenya Revenue Authority confirmed that it had been appointed to collect inspection fees from marketers on behalf of the respondent. Later, on October 23, 2012, it was acknowledged that the Kenya Revenue Authority had collected the fees and remitted them to the National Treasury. The Permanent Secretary for Industrialization requested the National Treasury to remit that money to the respondent as money due to the petitioner for services rendered. However, the petitioner did not receive the money.On March 26, 2012, the respondent informed the petitioner that the Government had suspended the contract. The contract for provision of petroleum inspection services provided for a termination notice of six months or for 14 days notice for terminations occurring due to a force majeure event. The petitioner filed a claim for the outstanding fees for its services. The matter was referred to arbitration.The arbitral tribunal made the finding that the suspension of the contract did not constitute termination of the contract as envisaged under the contract and that it was an unlawful termination. The tribunal awarded the petitioner the sum of USD 8, 591, 139/- in respect of the remaining contract period of twenty-nine (29) months as well as USD 3,687,437.21 inclusive of interest and Valued Added Tax for services rendered, and upon deduction of royalties due and owing.Proceedings for the recognition and enforcement of the arbitral award were instituted by the petitioner at the High Court. On the other hand, the respondent applied for the setting aside of the arbitral award on grounds that the arbitral award contained decisions that went beyond the scope of the reference to arbitration.The High Court made the finding that an arbitral award could only be set aside on grounds contemplated under section 35 of the Arbitration Act. The High Court stated that it would therefore decline the invitation to ascertain if there were contradictions in various aspects in the decision of the arbitral tribunal. The High Court also found that there was no basis to set aside the award and allowed the application for recognition and enforcement.The respondent subsequently filed an appeal at the Court of Appeal which raised three issues. One was about whether the court had the jurisdiction necessary to handle an appeal from the High Court on the setting aside of an arbitral award and the others were on whether the arbitral tribunal had jurisdiction and whether the arbitral award went against public policy.The Court of Appeal made the finding that the reference to arbitration and the constitution of the arbitral tribunal was done outside of the time limits provided for under the contract. It also found that the arbitral tribunal determined issues that were outside its scope and that the award which required a state corporation to pay funds in excess of 1 billion Kenya shillings went against public policy.The appeal before the Supreme Court was based on whether the Court of Appeal had jurisdiction in relation to arbitration matters under section 35 of the Arbitration Act and the Court of Appeal's failure to adjudicate on the issue in its judgment. The respondent also raised a preliminary objection on the premise that the Supreme Court had no jurisdiction to entertain the matter under article 163(4). | To determine whether the Supreme Court had jurisdiction to hear and determine the dispute under article 163(4)(a), it was necessary to evaluate whether the contested issues were issues of constitutional controversy that had been determined at the High Court and later at the Court of Appeal. The petitioner raised an issue at the Court of Appeal about whether that court had jurisdiction to hear and determine an appeal from a High Court decision with respect to the award of an arbitral tribunal.The issue about the Court of Appeal's jurisdiction was raised in the petitioner's submissions during the Court of Appeal hearing. However, it mattered not when an objection to jurisdiction was raised because jurisdiction was everything and without it a court would act but in vain.
An appeal could lie to the Court of Appeal from a High Court decision under section 35 of the Arbitration Act where in setting aside an arbitral award, the High Court stepped outside the grounds stated in section 35 of the Arbitration Act and made a decision so manifestly wrong and which had completely closed the door of justice to either of the parties.
The only issue that properly arose for the determination of the Supreme Court under article 163(4)(a), after a reading of the judgments of the High Court and the Court of Appeal was the issue of whether the Court of Appeal had jurisdiction to hear and determine an appeal from a High Court decision made under section 35 of the Arbitration Act.
Arbitration was meant to expeditiously resolve commercial and other disputes where parties had submitted themselves to that dispute resolution mechanism. The role of courts was greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Arbitration Act.
The High Court declined to exercise jurisdiction to interfere with the arbitral award. Therefore, the only question before the Court of Appeal ought to have been whether the High Court had properly declined to exercise jurisdiction under section 35 of the Arbitration Act.
The Court of Appeal made the determination that leave for the appeal had been granted and that leave had not been the subject of appeal. In granting leave, the question of jurisdiction of the Court of Appeal was determined and it was said that section 35 of the Arbitration Act did not expressly provide for a chance to appeal to the Court of Appeal but that did not bar a party from seeking redress at the Court of Appeal. The finding suggested that the chance to lodge an appeal at the Court of Appeal was open-ended and it did not tarry with the position of the Supreme Court. Such appeals, according to the Supreme Court were only permissible in a narrow sense. The Supreme Court's position about that was that an appeal to the Court of Appeal on a determination made by the High Court under section 35 of the Arbitration Act was permissible where in setting aside an arbitral award, the High Court stepped outside the grounds set out in section 35 and made a decision so grave, so manifestly wrong and which completely closed the door of justice to either of the parties.
Leave to appeal, whether wrongfully or rightfully granted, empowered the Court of Appeal to determine whether the High Court ought to have interrogated the arbitration award or not. If it were to determine that the High Court had wrongly declined jurisdiction, the proper and indeed only course of action open to the Court of Appeal, was to remit the matter back to the High Court with directions for the latter to hear the substantive application for setting aside the arbitral award on its merits. Instead, the Court of Appeal stepped into the shoes of the High Court and proceeded to determine a matter that had not been substantively decided by the latter. In so doing, the Appellate Court usurped the jurisdiction of the High Court, as it was not open to it, to take over an arbitration dispute and determined it on its merits when the High Court had not done so.
To the extent that the judgment of the Court of Appeal purported to interrogate the merits of an arbitral award, in the absence of the High Court’s pronouncement on the same, the judgment was rendered in excess of jurisdiction. The Court of Appeal prematurely, and in excess of its jurisdiction, sat on an appeal that was not ripe, instead of remitting the same to the High Court for determination.
Appeal allowed | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/1/eng@2020-12-18 |
Civil Application 15 of 2020 | Attorney General v Kenya Ports Authority & 7 others (Civil Application 15 of 2020) [2020] KESC 4 (KLR) (11 December 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu | 11 December 2020 | 2,020 | Nairobi | Civil | Attorney General v Kenya Ports Authority & 7 others | [2020] KESC 4 (KLR) | null | The background of the matter is that by a Take or Pay Agreement dated 30th September 2014 between the Kenya Ports Authority, the 1st respondent herein and the Kenya Railways Corporation, the 5th respondent, Kenya Ports Authority agreed to consign a set volume of containers through the Standard Gauge Railway to its Inland Container Deport in Embakasi, Nairobi. William Odhiambo Ramogi, Asha Mashaka Omar, and Gerald Lewa Kiti (2nd-4th respondents) filed a petition in the High Court at Mombasa challenging that agreement on the grounds that it would ruin the economy of the City of Mombasa as 40% of its business is attributable to the activities at the Port of Mombasa; that it would also ruin the petitioners’ businesses as well as those of many others thus infringing on their constitutional rights to fair administrative action under Article 47 and their economic rights under Article 43; and affect devolution under Articles 174 and 186. They therefore sought various orders and declarations set out in their petition in the High Court. | The High Court dismissed that application and overruled the preliminary objection, a decision the Court of Appeal upheld in its judgment delivered on 26th September 2019. Aggrieved by that decision, the applicant wishes to prefer a further appeal to this Court. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/4/eng@2020-12-11 |
Petition 29 of 2019 | Popat & 7 others v Capital Markets Authority (Petition 29 of 2019) [2020] KESC 3 (KLR) (11 December 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 11 December 2020 | 2,020 | Nairobi | Civil | Popat & 7 others v Capital Markets Authority | [2020] KESC 3 (KLR) | null | The petitioners were non-executive directors of Imperial Bank Limited (the bank) which had been put under receivership. The respondent, a statutory regulatory authority established under section 5 of the Capital Markets Act and charged with promoting, regulating and facilitating the development of orderly, fair and efficient capital markets in Kenya. In August 2015, the respondent approved the bank’s application to issue to the general public a corporate bond of Kshs. 2 Billion. Only the bank’s Managing Director and the Chief Finance Officer were privy to that application.In September 2015, the managing director passed on and the former head of credit was appointed acting MD and deputized the former CFO. In September, the two caught wind of an array of illegal transactions authorized by the late Managing Director and reported the same to the chair of the non- executive directors. The latter in turn contracted FTI consulting group, to carry out a forensic audit of the bank’s financial affairs and report on its accurate financial position. It also resolved not to utilize the approved bond issue pending the outcome of the investigations by the consultant.
It was found that the former MD had indeed been running a scheme of fraudulent disbursements resulting in losses running into billions of shillings and the board reported the same to Central Bank (CBK) who in turn placed the bank under receivership and appointed the Kenya Deposit Insurance Corporation its Receiver/Manager for a period of twelve (12) months. The appointment also included a declaration of a moratorium on the bank. On the same day, the respondent, on its part, instructed the Nairobi Stock Exchange (NSE) not to proceed with the listing of the bank’s bond issue on the Fixed Income Securities Market Segment until further notice.
Circumstances surrounding the issuance of the bond were brought to the fore by the respondent. In exercise of its statutory authority, it served the petitioners with notices to show cause and required them to respond, within 14 days, to allegations of negligence in the discharge of their mandate as directors of the bank. No hearing took place on the designated day. However, the appellants claimed that an inquisitorial hearing presided by CMA’s chair took place and a summary ruling was entered against the bank’s directors.
The petitioners appealed against that decision at the High Court citing conflict of interest. They said that the CMA had acted as licensee, investigator and judge in the issue of the bond. Additionally, they contended that the authority had acted as juror in its own case. The same officials who had greenlighted the issuance of the bond had gone ahead to rule against its regularity and legality.
At the High Court, the notices sent to the petitioners to show cause were quashed. The court’s reasoning was that there existed a real possibility of bias. By acting in both inquisitorial and enforcement mandate, the authority was likely to be biased. It therefore ought to have delegated its functions to an independent body.
At the Court of Appeal, the authority’s decision was upheld. The Capital Markets Act expressly authorized the overlapping inquisitorial and enforcement functions of the respondent. Therefore, the respondent was expected to make unprejudiced judgement on matters it had investigated.
As a last resort, the appellants called upon the Supreme Court to consider the propriety of the dual statutory mandate granted to the respondent as the sole investigator and enforcer of capital markets infractions in Kenya. | Prior to the enactment of the Capital Markets Act, the capital market in Kenya faced multiple challenges running from illicit intermediaries to lack of a proper legislative guide hence the need for a firm regulatory regime. Sections 5 and 11(cc) of the Capital Markets Act established the Capital Markets Authority with the mandate to remove impediments, promote wider performance of the general public in the securities commodities market and derivatives and for protection of investor interests. To achieve the objectives, section 11 (3) of the Capital Markets Act granted the authority power to discipline errant members and to regulate and facilitate the development of an orderly, fair and efficient capital market.The Capital Markets Authority had power to inquire, either on its own motion or at the request of any other person, into the affairs of any person which the authority had approved or to which it had granted a license and any public company the securities of which were publicly offered or traded on an approved securities exchange or on an over-the-counter market.
The natural justice nemo judex in causa sua esse (no one should be a judge in his own cause) principle decreed that no person should be allowed to be a judge in their own cause or in a cause they had an interest in the outcome including situations where one desired or was keen on obtaining a given result. A prosecutor, for example, had an interest in the conviction of a suspect he hauled into court.
There were exceptions to every general rule. An important exception to the nemo judex in causa sua esse principle raised in the instant case was where the overlap of functions was a creature of statute and as long as the constitutionality of the statute was not in issue.
Administrative Commissions (Tribunals) would have repeated dealings, in both administrative or adjudicative capacities, with the same parties. Hence, to achieve the efficiency required in the operations of the securities markets, the legislatures more often than not, allowed for an overlap of functions which in normal judicial proceedings would be kept separate.
In assessing allegations of bias, courts must be sensitive to the fact that, in their “protective role”, securities commissions have a special character. It was not enough to merely claim bias because a commission, in undertaking its preliminary internal review, did not act like a court. If it was clear from its empowering legislation that certain activities which might otherwise be
considered "biased" form an integral part of its operations and the Commission had not acted outside its statutory authority, the doctrine of"reasonable apprehension of bias" per se could not be sustained. The Commission’s structure and responsibilities as well as the manner of the discharge of its mandate must, inter alia, be considered.
Administrative tribunals were not supposed to operate like courts of law. That was why they were allowed to be masters of their own procedure although they must act fairly. For purposes of efficiency and in the carrying out of the objectives of the Capital Markets Act, especially in the expeditious disposal of disputes that arose in the operations of the capital markets, the functions set out in section 11(3)(cc) and 11(3)(h) could not be performed by separate bodies.
Section 11(3)(cc) and 11(3)(h) of the Capital Markets Act were not unconstitutional. The overlapping mandate did not render those sections unconstitutional. What would have been unconstitutional would have been the discharge of that dual mandate.
The court must be guided by the letter and spirit of the provisions of articles 50(1) and 47(1) as read with article 25(c) of the Constitution and give life to Parliament’s intention in the enactment of section 11(3) (cc) & (h) of the Capital Markets Act. Courts ought to ensure that its interpretation of those provisions did not hamper the operations of the CMA and/or those of other regulatory bodies such as the Central Bank of Kenya and the Competition Authority of Kenya. Hence, in promoting public policy and efficient administration of the securities market in Kenya, the right to fair administrative action could not be sacrificed at the altar of efficiency or public interest.
The Capital Markets Authority could not be allowed to ride roughshod over the non-derogable constitutional rights of investors. It would be counterproductive to scareo scare away the very prospective investors it sought to entice. Narrow interests such as fostering investor confidence in the securities market could not be used as an excuse to deprive the directors of their constitutional right to a fair hearing of the allegations against them.
Despite the legality of the duality of the respondent’s mandate under section 11(3) (cc)(h) of the Capital Markets Act, in any matter that could be classified as judicial or quasi-judicial, or one where, in the view of a reasonable man conversant with the matter, there was likely to be bias or a reasonable apprehension of bias, the authority ought to be impartial.
Reasonable apprehension of bias was a legal standard for disqualifying judges and administrative decision-makers. If there was a real possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the respondent might be prone to bias, that would be a constitutional violation that could not be overlooked in the name of public interest.
In the discharge of its mandate under the CMA Act, the respondent must always first determine whether or not its act or decision was judicial or quasi-judicial and whether or not it was likely to adversely affect the rights of the persons or bodies under investigation. If it is either of the two or both, it must comply with the requirements of impartiality and independence under articles 50 (1) and 47 of the Constitution. Sections 11A(1) and 14(1) of the CMA Act empowered the respondent to delegate its functions and powers to other bodies or persons. As such, the objectives of the CMA Act would still be realized.
The respondent merely referring to the enforcement proceeding in the instant matter, euphemistically, as “administrative” did not change its intrinsic character. The nature of the enforcement proceedings sought to be undertaken by the respondent against the petitioners in the matter bespoke a quasi-judicial process. Based on the material evidence placed before it, the respondent would have had to determine the culpability or otherwise of the petitioners. If found culpable, pursuant to section 11(3) (cc) of the CMA Act, the respondent would impose sanctions, including financial penalties against the petitioners.
There was a real possibility of bias in the petitioners’ case. The authority had appraised and approved the bank’s application. The same authority also initiated and conducted preliminary investigations into the bank’s conduct in relation to the application and upon satisfying itself that the bank could have have violated the relevant provisions of the Act and the Regulations, it made a decision to charge the petitioners and went ahead to formulate the requisite charges. It was the same Board of the Capital Markets Authority that also purported to preside over the hearing of the director’s cases. That obviously led to an inescapable appearance of partiality on the Authority’s part.
Appeal partly allowed. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/3/eng@2020-12-11 |
Petition 8 of 2019 | Surya Holdings Limited & 2 others v CFC Stanbic Limited & another (Petition 8 of 2019) [2020] KESC 2 (KLR) (Civ) (4 December 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 December 2020 | 2,020 | Nairobi | Civil | Surya Holdings Limited & 2 others v CFC Stanbic Limited & another | [2020] KESC 2 (KLR) | null | The appellants by way of Notice of Motion application dated 18th September, 2020 and filed on 21st September 2020 and brought under Rule 40(4) of the Supreme Court Rules 2010 (sic) seek the following orders:That the Honorable Court be pleased to grant leave to the Appellants to file a Supplementary Record of Appeal containing;
i)
The Supplementary Record of Appeal filed by the Respondent at the Court of Appeal and which comprises the Debenture Agreement dated 8th December 2010;
ii)
The 1st Respondent’s Written Submissions dated 5th July 2018 filed at the Court of Appeal; and
iii)
The 2nd Respondent’s Written Submissions dated 23rd July 2018 filed at the Court of Appeal.
b)
That the Supplementary Record of Appeal be filed within seven (7) days or such period as the Court will determine.
c)
That costs of this application be in the Appeal.
2.
The application is based on the grounds that the Respondents’ written submissions filed at the Court of Appeal and the Supplementary Record of Appeal filed by the 1st Respondent in the Court of Appeal were inadvertently omitted while compiling the Record of Appeal and that it is necessary that the documents are placed before this Court for completeness of record.
3.
The application is supported by the annexed affidavit of Fredrick Ngatia, an Advocate who has the conduct of this matter on behalf of the appellants. The appellants also filed submissions on 21st September 2020 reiterating the grounds in support of the application and adding that the regrettable omission, which was not discovered earlier, was occasioned by the great urgency with which the record of appeal was compiled in order to preserve the substratum of the appeal. They submit that none of these documents raise any new matters as to cause prejudice. They further submit that both parties will be at liberty to refer to them during the hearing of the appeal, the parties having already advanced rival arguments set out in the rival arguments set out in the respective written submissions already on record. The appellants urge the Court to make an identical finding as was in Alfred Asidaga Mulima & 2 others (suing as representatives of ex-East African Airways Staff Welfare Association) v Attorney General & 8 Others [2019] eKLR and exercise discretion in their favour.
4.
The Respondents vide their written submissions filed on 2nd October 2020 do not oppose the application in view of the extreme urgency in the matter and seek that the main petition be fixed for hearing. | In considering whether to exercise discretion and grant leave to file documents out of time, we have time and again restated that the onus is on the applicant to explain the delay and that no prejudice will be caused to the opposing party. Rule 40(4) of the Supreme Court Rules 2020 obligates an applicant to seek leave to file a Supplementary record of appeal to include a document omitted from the record of appeal unless such a supplementary record of appeal is filed within 15 days of lodging the record of appeal.We note that the parties herein agree as to the need for the supplementary record of appeal to be filed, the documents sought to be introduced being central to the substratum of the appeal. It is apparent that the Debenture dated 8th December 2010 was also presented to the Court of Appeal by way of supplementary record of appeal and that the submissions filed at the Court of Appeal are relevant to the appeal herein.
8.
The parties having already filed their substantive appeal on 14th February 2019 and the Court having issued conservatory orders in this matter on 22nd March 2019, we are persuaded to exercise our discretion in favour of the appellants and allow the application in order to progress the appeal for hearing at the earliest.
Determination
9
Accordingly, the Notice of Motion application dated 18th September 2020 is allowed in the following terms:
a)
Leave be and is hereby granted to the appellants to file a Supplementary Record of Appeal containing;
i)
The Supplementary Record of Appeal filed by the Respondent at the Court of Appeal and which comprises the Debenture Agreement dated 8th December 2010;
ii)
The 1st Respondent’s Written Submissions dated 5th July 2018 filed at the Court of Appeal; and
iii)
The 2nd Respondent’s Written Submissions dated 23rd July 2018 filed at the Court of Appeal.
b)
The Supplementary Record of Appeal be filled within seven (7) days from the date of this ruling.
c)
Costs of this application to abide the outcome of the appeal.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/2/eng@2020-12-04 |
Civil Application 31 of 2020 | Waibara v Kibeh & another (Civil Application 31 of 2020) [2020] KESC 5 (KLR) (Civ) (4 December 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 4 December 2020 | 2,020 | Nairobi | Civil | Waibara v Kibeh & another | [2020] KESC 5 (KLR) | null | On 7th October 2020, Korir J, determined H. C. Petition No.21 of 2020 between the parties herein with the result that the seat of Member of Parliament for Gatundu North Constituency was declared vacant.The 1st Respondent, Anne Wanjiku Kibeh thereafter filed Civil Application No.E314 of 2020 at the Court of Appeal seeking stay of execution of the above decision under Rule 5(2)(b) of the Court of Appeal Rules, 2020. The stay was granted on 28th October 2020.
3.
On 4th November 2020, the Applicant, Clement Kungu Waibara, filed a Notice of Motion predicated on Section 16(3) of the Supreme Act seeking leave to institute an appeal before this Court.
4.
While opposing the Motion, the 1st Respondent, on 26th November 2020 filed a Notice of Preliminary Objection seeking orders that the Motion be struck out on the grounds that:
1)
This Court lacks the jurisdiction to hear applications arising from interlocutory decisions of the Court of appeal; and
2)
This Court lacks jurisdiction, under Article 163(4)(b) of the Constitution, to hear appeals, and interlocutory applications therein (or in intended appeals) from exercises, by the Court of Appeal, of judicial discretion pursuant to Rule 5 (2)(b) of the Court of Appeal Rules, 2010.
B. Sumbissions by the Parties
i) The 1st and 2nd Respondent’s submissions
5.
In submissions filed on 26th November 2020, the 1st Respondent has relied on our decisions in Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & 2 others Sup. Ct. Application No.4 of 2012; [2012] eKRL, Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others, Sup. Ct. Petition No.10 of 2013; [2013] eKLR, Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, Application No.4 of 2012 [2012] eKLR, Teachers Service Commission v. Kenya National Union of Teachers & 3 others [2015] eKLR, Daniel Kimani Njehia v. Francis Mwangi Kimani & another Sup. Ct. Civil Application No.13 of 2014, Basil Criticos v. Independent Electoral and Boundaries Commission & 2 others, Sup. Ct. Petition No.22 of 2014, among others, to argue that this Court has no jurisdiction to hear and determine any question arising from interlocutory applications at the Court of Appeal as there would be no final order to which our jurisdiction under any of the limbs in Article 163(4) could be invoked.
6.
The 2nd Respondent, by its submissions filed on 23rd November 2020, has also raised the issue of lack of jurisdiction of this Court to entertain the present Motion along the same lines as the 1st Respondent.
ii) The Applicant’s submissions
7.
We have seen no specific response to the Preliminary Objection but in submissions filed on 4th November 2020, the Applicant has stated that;
“Pursuant to Section 16(3) of the Supreme Court Act, the Supreme Court may grant leave to appeal against an order made by the Court of Appeal on an interlocutory application if satisfied that it is necessary, in the interests of justice, for the Supreme Court to hear and determine the proposed appeal before the proceedings concerned is concluded. Under Section 16(1), it shall be in the interests of justice for the Supreme Court to hear and determine a proposed appeal if inter-alia, the appeal involves a matter of general public importance”.
8.
We shall take the above submission to be the Applicant’s position on the issue before us. | In the Teachers Service Commission case we partly rendered ourselves thus:“An application so tangential, cannot be predicated upon the terms of Article 163(4) (a) of the Constitution. Any square involvement of this Court in such a context would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, …. Such an early involvement of this Court in our opinion would expose one of the parties to prejudice with the danger of leading to an unjust outcome.In these circumstances, we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court”[Emphasis added]Further, in Basil Criticos, we posed the following question as regards appeals to this Court from Rulings on interlocutory applications before the Court of Appeal:
“
In the absence of a Judgment by the Court of Appeal, in which constitutional issues have been canvassed, what would this Court be sitting on appeal over?”
11.
We reiterate the above findings and in that regard, we note that the Judgment of the High Court which led to proceedings before the Court of Appeal,thence the impugned Ruling, arose from a constitutional Petition and therefore the above question is relevant in the present circumstances.
12.
Without a Judgment of the Court of Appeal which would then create a finality to contested issues and then point parties to the specific limb in Article 163(4) to which our intervention would be required, we cannot see how our jurisdiction under that Article can be properly invoked.
13.
In the circumstances, we decline the misguided invitation to assume jurisdiction and would instead find that the Notice of Motion dated 30th October 2020 is one fit for striking out.
14.
As for costs, they follow the event and so the Applicant shall pay the costs thereof.
D. Disposition
i)
The Notice of Motion dated 30th October 2020 is hereby struck out.
ii)
The Applicant shall pay the attendant costs. | Struck out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/5/eng@2020-12-04 |
Application 27 of 2020 | Kenya Hotel Properties Limited v Attorney General & 5 others (Application 27 of 2020) [2020] KESC 6 (KLR) (20 November 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 20 November 2020 | 2,020 | Nairobi | Civil | Kenya Hotel Properties Limited v Attorney General & 5 others | [2020] KESC 6 (KLR) | null | The appellant had breached timelines issued by the deputy registrar of the court, to file and serve submissions within 21 days. The appellant instead filed the submissions 25 days out of time without the leave of the court and without reference to the respondent. There was no explanation for the delay was given by the appellant when the matter came up before the deputy registrar again. The respondents also alleged that the appellant’s subsequent reasons for delay stated in their replying affidavit were unsupported by any evidence and were false.Thus, the respondent filed the instant application to have those pleading struck out. | Section 21 of the Supreme Court Act granted the Supreme Court general powers to make any ancillary or interlocutory orders. Rule 65 of the Supreme Court Rules 2020 empowered the Supreme Court to issue directions that were appropriate where a provision of the rules or practice directions were not complied with. The bottom line in all cases was for parties to litigation to reasonably access justice.Article 159 of the Constitution set out the guiding principles of the exercise of judicial authority which included that justice shall not be delayed and shall be administered without undue regard to procedural technicalities.
Compliance with the Supreme Court’s orders and directions on filing and service of documents was imperative. It went to the root of the rule of law as well as the dignity of the court. Rule 12(1) of the Supreme Court Rules provided that filing would be deemed complete when the document was submitted both electronically and physically.
The delay in compliance by the appellant was therefore prejudicial to the respondent who was deprived the opportunity to respond to the appellant’s submissions.
Every party had an obligation to honour the court’s directions. Late filing of submissions was not incurable and the court had discretion to allow such late filing. However, the appellant had not moved the court appropriately by way of an application for extension of time to file the said documents.
The consideration to bear in mind was what prejudice had been suffered by the respondent/applicant due to the appellant’s failure to timeously file its submissions and whether the respondent/applicant could be facilitated to mitigate such prejudice.
At the hearing, the respondent/applicant could well argue their appeal orally. Furthermore, the respondent/applicant could always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of the litigation.
The late filed submissions were admitted and deemed as filed within time by dint of section 21 of the Supreme Court Act and rule 65 of the Supreme Court Rules. The respondent was granted fourteen (14) days to draw, file and serve supplementary submissions.
Application disallowed, appellant to bear costs of application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/6/eng@2020-11-20 |
Application 24 [E008] of 2020 | Attorney General & another v Okoiti & 4 others (Application 24 [E008] of 2020) [2020] KESC 8 (KLR) (9 October 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 9 October 2020 | 2,020 | Nairobi | Civil | Attorney General & another v Okoiti & 4 others | [2020] KESC 8 (KLR) | null | Uponperusing the Notice of Motion by the applicants dated 10th August 2020 and filed on 15th September 2020, brought under Rules 15(2), 31, 36(1), 37(1) and 38 of the Supreme Court Rules, 2020 in which the applicants seek extension of time to lodge and serve the Notice and Record of Appeal from the judgment and decree of the Court of Appeal dated 19th June 2015, (Koome, Gatembu & J. Mohammed JJ.A) in Civil Appeal No.10 of 2015, and in the alternative that the Notice of Appeal filed on 24th June 2020 and lodged in the Supreme Court registry on 30th July 2020 be deemed to be properly on record and that the Court be pleased to extend time to file a record of appeal; | Uponconsidering the applicants’ submissions that due to the global corona virus pandemic, the Court of Appeal had issued directions as to electronic filings in which the applicants invoked by sending an email on 24th June 2020 containing the Notice of Appeal for filing and seeking proceedings. That the applicants never received a response on the filing of the Notice of Appeal before the Court of Appeal and were therefore not in a position to transmit the same to the Supreme Court within the prescribed timelines. That it was only after the follow up by the 1st applicant’s clerk and counsel at the Court of Appeal Registry that the Notice of Appeal was retrieved on 30th July 2020, the same day the applicants transmitted it to the Supreme Court Registry. The applicants also submit that their application is meritorious and in public interest considering that the subject matter of the dispute is procurement issues stemming from Article 227 of the Constitution and concerning the construction of the Standard Gauge Railway and further that the delay was occasioned by factors beyond the applicants’ control as the delay arose from the Court of Appeal’s failure to acknowledge the filing of the Notice of Appeal as soon as it was lodged and the challenges associated with the electronic filing introduced by the Judiciary during the corona virus pandemic to minimize physical contact between people;Uponconsidering the proceedings before the Honourable Deputy Registrar and directions issued before him on 18th September 2020 that parties do file submissions by end of day on 21st September 2020, and no party having filed submissions in support or in opposition to the application, the 4th and 5th respondents having indicated through their respective counsel that they are not opposed to the application;
5.
Uponconsidering the submissions by the 3rd respondent filed on 22nd September 2020 in opposition to the application on the grounds that the 4th respondent exercised its due diligence and filed its appeal on time and the applicants did not pursue the procedure under Rule 33(6) by filing the documents they had in possession to demonstrate some diligence; that the applicants have not satisfactorily explained the whole period of delay to Court; that the Court has no jurisdiction, the applicants not having sought certification of the intended appeal as a matter of general public importance under Article 163(4)(b) of the Constitution;
6.
Uponconsidering the 1st and 2nd respondents’ Preliminary Objection filed on 23rd September 2020 on the grounds that the orders sought are not available in law in the absence of certification under Article 163(4)(b) of the Constitution and that the intended appeal raises no Constitutional issue meriting interpretation by this Court under Article 163(4)(a) and having further considered their submissions filed on 23rd September 2020 in which they dispute that the applicants have laid any satisfactory basis to warrant the prayers sought and relying on the mandatory use of the word “shall” in rule 38(1) of this Court’s Rules 2020 as rendered in Law Society of Kenya v Centre for Human Rights and Democracy & others (Sup.Ct.Pet 14 of 2013), Rule 46(1) of the Rules which deem a Notice of Appeal withdrawn by failure to lodge an appeal within the timeframe and Rule 65 which demonstrates the gravity of non-compliance with the Rules;
7.
The 1st and 2nd respondents further contend that the application is defective for invoking the Court of Appeal Rules and that the 1st and 2nd respondents stand to suffer great prejudice since their rights protected by the Court of Appeal judgment are likely to be infringed again. In addition, public interest in this matter will be prejudiced given the fact that public funds and/or resources will be expended as some of the respondents like the 4th respondent will be represented by private counsel to defend a meritless petition;
8.
By a unanimous decision, we make the following findings:
a.
The Court has jurisdiction to extend time under rule 15(2) of the Supreme Court Rules 2020 as sought in the present application;
b.
The intended appeal is founded on provisions of Article 163(4)(a) of the Constitution. As to whether the case meets that threshold or should have been certified under Article 163(4)(b) is a matter to be determined on merit.
c.
The applicant satisfies the principles set in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; [2014] eKLR in that their explanation for the delay is reasonable and beyond their making and the delay in filing the petition of appeal is not inordinate;
d.
The Notice of Appeal was filed within time, the delay only relating to its transmission under Rule 36(3) which is excusable;
e.
The subject matter is one of public interest consideration, distinguishable from general public importance which requires certification; and
f.
No prejudice will be occasioned to the respondents as the applicants had copied to the respondents’ counsel the correspondence relating to the filing of its Notice of Appeal and seeking proceedings as early as 24th June 2020 and there exists a separate appeal among the parties in this application by the 4th Respondent herein, emanating from the same decision of the Court of Appeal being Petition No.13 of 2020 in which all the parties herein will in any event participate.
9.
In the end, we make Orders as follows:
a.
The Notice of Motion by the Applicant dated 10th August 2020 and filed on 15th September 2020 be and is hereby allowed in the following terms:
i.
The Notice of Appeal filed on 24th June 2020 and transmitted to the Supreme Court on 30th July 2020 be and is hereby deemed to be properly on record;
ii.
The applicants to file and serve their record of appeal within 14 days from the date of this ruling.
b.
The Deputy Registrar shall issue any and further directions as may be deemed necessary in the circumstances;
c.
Costs shall abide the eventual decision of the Petition.
Orders accordingly | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/8/eng@2020-10-09 |
Civil Application 21 of 2020 | Mwangangi & 10 others v Commissioner of Lands & 3 others (Civil Application 21 of 2020) [2020] KESC 7 (KLR) (9 October 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 9 October 2020 | 2,020 | Nairobi | Civil | Mwangangi & 10 others v Commissioner of Lands & 3 others | [2020] KESC 7 (KLR) | null | Uponperusing the Notice of Motion by the Applicants dated 11th August 2020 and filed on 14th August 2020, which application is brought pursuant to the provisions of Section 26 and 53 of the Supreme Court Act, 2012, and in which the Applicants seeks enlargement of time to file an application for review of the ruling of the Court of Appeal (W. Ouko (P), M. Warsame & F. Sichale, JJA) in Civil Application SUPP No. 9 of 2018 (UR 6/2018) dated 10th July 2020; and | Uponperusing the supporting affidavit of Sammy Mwangangi deposed to on 11th August 2020 as well as the 3rd & 4th Respondents’ Replying Affidavit deposed to on 27th August 2020 and filed on even date; andUponconsidering the written submissions on record for the Applicants wherein they contend that the delay in filing the application for review to this Court was inadvertent, and was occasioned by delay in the assessment of filing fees and uploading of documents on this Court’s e-filing portal; and
Noting thatthe 3rd & 4th Respondents in opposing the application submit that no purpose will be served by the extension as the matter they seek to pursue before this Court is not a matter of general public importance as alleged by the Applicants, but is one seeking to enforce private rights; and
4.
Havingconsidered the application, the replying affidavit and the submissions filed by the respective parties, by a unanimous decision of this Bench, we find that;
(a)
This Court’s jurisprudence on extension of time was settled in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR. In that matter, we stated inter alia that grant or refusal of extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice.
(b)
The Applicants have explained, cogently and reasonably, that the delay in filing their application for review of the Court of Appeal’s decision denying them timeous access to this Court was not of their own making. We thus accept that explanation.
(c)
The delay of six (6) days is in any event not inordinate and we see no prejudice caused to the Respondents, especially the 3rd and 4th Respondents, who have strenuously opposed the application.
(d)
The question whether the Applicants have established that the issues in contest are of general public important as enunciated in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone SC Application No. 4 of 2012; [2013] eKLR is a matter that cannot be determined now, it being the gravamen of the intended review application under Article 163(5) of the Constitution.
(e)
Prayer 3 of the Motion under consideration seeking orders that “the Originating Motion dated 22nd July 2020 under Reference No.SC APP;/E007/2020 be deemed as dully (sic) filed” is not one for granting in the present instance. It is best that a proper motion for review under the Constitution, the Supreme Court Act and Rules be filed pursuant to the orders granted herebelow.
5.
In the circumstances, we now make ordersas follows;
(a)
The time within which to file the application for review of the Ruling of the Court of Appeal (W. Ouko (P), M. Warsame & F. Sichale, JJA) dated 10th July 2020 is hereby enlarged and the same to be filed within 7 days of this Ruling.
(b)
Directions to be taken before the Deputy Registrar thereafter.
(c)
Each party shall bear its costs of the Application.
6.
Orders accordingly. | Court Issued further directions | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/7/eng@2020-10-09 |
Petition (Application) 2 of 2020 | Babayao v Republic (Petition (Application) 2 of 2020) [2020] KESC 11 (KLR) (23 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 September 2020 | 2,020 | Nairobi | Criminal | Babayao v Republic | [2020] KESC 11 (KLR) | null | Uponperusing the Notice of Motion application by the Petitioner/Applicant dated 7th August 2020 and filed on 11th August 2020, which application is brought pursuant to leave granted by the Deputy Registrar on 14th July 2020 as well as Rule 15 of the Supreme Court Rules, 2020; and | Uponperusing the supporting affidavit of Counsel for the Petitioner/ Applicant, Prof. T.O. Ojienda, SC, deponed to on 7th August 2020; andUponconsidering the written submissions by the Petitioner/Applicant dated 10th August 2020 and filed on 11th August 2020 wherein the Applicant/Petitioner contends that the delay in filing the Supplementary Record of Appeal dated 30th July 2020 and filed on 5th August 2020 was occasioned by inability to obtain the order and certified copies of typed Court proceedings from the Court of Appeal timeously despite request made on 30th December 2019 and noting;
Thatthe Respondent did not file any response or submissions with regard to the application despite directions issued by the Deputy Registrar on 14th August 2020, 19th August 2020 and 26th August 2020 that submissions ought to be filed by 28th August 2020. We have however seen submissions purportedly filed by the Respondent on 16th September 2020 which are hereby rejected for being filed out of time contrary to Rule 31(4) of these Court Rules 2020; and
4.
Havingconsidered the application and the submissions filed by the Petitioner/Applicant, by a unanimous decision of this Bench, we find that;
(a)
This Court has the jurisdiction to consider and determine an application for leave to extend time to do anything required by its Rules - see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b)
That the application by the Petitioner/Applicant dated 7th August 2020 and filed on 11th August 2020 satisfies the principles set out by this Court in Base Titanium Limited v. County Government of Mombasa & another SC Petition (App). No. 22 of 2018 and earlier in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR on extension of time;
(c)
We also find that the Petitioner/Applicant has provided sufficient grounds and reasons for the delay in filing the Supplementary Record of Appeal as the delay in obtaining the order and certified typed copies of proceedings from the Court of Appeal is an administrative issue that cannot and should not be held against the Petitioner/Applicant;
(d)
The Respondent has not opposed the application neither has he shown what prejudice shall be occasioned upon him if the Applicant’s application is allowed.
5.
In the circumstances, we now make ORDERS as follows;
(a)
The Notice of Motion application by the Petitioner dated 7th August 2020 and filed on 11th August 2020 is hereby allowed;
(b)
The Supplementary Record of Appeal dated 30th July 2020 and filed on 5th August 2020 is deemed as duly and properly filed;
(c)
The parties to appear before the Deputy Registrar for further directions;
(d)
Each party shall bear its costs.
6.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/11/eng@2020-09-23 |
Petition 18 of 2019 | Director of Public Prosecution v Kamau & 4 others (Petition 18 of 2019) [2020] KESC 14 (KLR) (Civ) (23 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 September 2020 | 2,020 | Nairobi | Civil | Director of Public Prosecution v Kamau & 4 others | [2020] KESC 14 (KLR) | null | On 26th September 2019, Ibrahim SCJ recorded a consent order marking the Petition herein as withdrawn. Parties were however unable to agree on costs and so the learned Judge directed parties to file submissions limited to the question whether costs should be paid to the Respondents consequent upon the withdrawal aforesaid.All parties subsequently filed their submissions and digests of authorities which we have taken note of. Suffice it to say that the Appellant, the Director of Public Prosecutions, has made the point that no order as regards costs should be made as the issue of costs was never raised at both the High Court and the Court of Appeal and it is strange that it has now become a contested issue. The Respondents, save the 3rd, 4th and 5th disagree and submit that costs must follow the event even as it is a matter of discretion for the Court. | On discretion, we stated thus:“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.”We reiterate the above holdings as properly applicable to the present case and would only add that the fact that the Appellant is a public entity is not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance – see Reference No.1 of 2014, Council of Governors v The Senate & 2 Others. Each case must be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the Court.
7.
Having so stated, we note that the initial proceedings at the High Court were commenced by the 1st Respondent challenging his arrest and arraignment in Court for certain criminal offences laid at the instance of the Appellant and the 2nd Respondent. In determining the matter, the High Court stated that, “as the issues raised herein were issues of great public interest not restricted to the Petitioners, we make no order as to costs”
8.
The Court of Appeal on its part also exercised discretion and directed that each party ought to bear its own costs “on account of the public interest issues raised in the appeal”.
9.
We have considered the rival submissions and are convinced that, whereas the Appellant has withdrawn the Petition when it was ready for hearing and while the Respondents have spent time and resources preparing for the hearing aforesaid, we must agree with both the High Court and the Court of Appeal that the issues raised in the Appeal were of great public interest – i.e. the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences can be initiated when the said Commission was not properly constituted and whether the President of the Republic of Kenya can direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. These matters transcended the specific interests of the parties and have settled in the public sphere thus attracting the public interest. An order of costs against any party would, in the circumstances, not be fair.
10.
In the event, we hereby exercise discretion and order as follows:
i.
The Petition of Appeal herein is marked as withdrawn.
ii.
Each Party shall bear its costs of the Appeal.
11.
It is so ordered. | Withdrawn | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/14/eng@2020-09-23 |
Petition 47 of 2019 | Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 12 (KLR) (23 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 September 2020 | 2,020 | Nairobi | Civil | Geo Chem Middle East v Kenya Bureau of Standards | [2020] KESC 12 (KLR) | null | Uponperusing the Notice of Motion by the Appellant/Applicant dated 11th September 2020 and filed on 14th September 2020, which application is brought under Rule 40(4) of the Supreme Court Rules, 2010; andUponperusing the supporting affidavit of Counsel for the Appellant/ Applicant, Fredrick Ngatia, sworn to on 11th August 2020; and
3.
Uponconsidering the written submissions by the Appellant/Applicant dated 14th September 2020 and filed on the same day wherein the Appellant/Applicant contends that the delay in filing the Supplementary Record of Appeal was occasioned by inability to obtain the Judges’ notes as they were not available at the time of filing the Appeal and that three letters; (i) one dated 23rd March 2012 from the Respondent to the Commissioner General, Kenya Revenue Authority; (ii) another dated 25th June 2013 from the Appellant’s lawyers, M/s Mahmoud & Gitau Advocates, to the Respondent and; (iii) another dated 15th July 2013 from the Respondent to the Appellant’s lawyer, M/s Mahmoud & Gitau Advocates, were all inadvertently omitted from the Record of Appeal and; | Uponconsidering the written submissions by the Appellant/Applicant dated 14th September 2020 and filed on the same day wherein the Appellant/Applicant contends that the delay in filing the Supplementary Record of Appeal was occasioned by inability to obtain the Judges’ notes as they were not available at the time of filing the Appeal and that three letters; (i) one dated 23rd March 2012 from the Respondent to the Commissioner General, Kenya Revenue Authority; (ii) another dated 25th June 2013 from the Appellant’s lawyers, M/s Mahmoud & Gitau Advocates, to the Respondent and; (iii) another dated 15th July 2013 from the Respondent to the Appellant’s lawyer, M/s Mahmoud & Gitau Advocates, were all inadvertently omitted from the Record of Appeal and;Notingthe Respondent’s response to the Motion by way of a Replying Affidavit sworn on 16th September 2020 by Jotham Okome Arwa, Advocate and Submissions filed on 17th September 2020 wherein the Respondent contends that the application is incompetent as the documents sought to be admitted are not annexed and therefore their authenticity and relevance cannot be authenticated. In addition, that the entire record of appeal is jumbled up and the letters in question were deliberately excluded to prejudice the Respondent’s case and in any event, the Judges’ notes have not been served on the Respondent and on the whole, allowing the application would greatly inconvenience the Respondent and therefore the same ought to be dismissed with costs; and
5.
Havingconsidered the application and the submissions filed by the Appellant/Applicant and by the Respondent by a unanimous decision of this Bench, we find that;
a.
By Rule 15(b) of this Court’s Rules, 2020, the Court may, at its discretion extend time for any action under the Rules – see also Anuar Loitiptip v Independent Electoral & Boundaries Commission [2018] eKLR.
b.
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 – see Base Titanium Limited v County Government of Mombasa & another SC Petition (App). No. 22 of 2018.
c.
In the present case, the explanation given by the Appellant/Applicant is reasonable and we see no prejudice to be caused to the Respondent as the three letters sought to be admitted have certainly been in its custody in proceedings before the Superior Courts below and failure to obtain Judges’ notes timeously cannot be blamed on the Appellant/Applicant but on slow administrative Court processes.
6.
In the circumstances, we now make ordersas follows;
a.
The Notice of Motion by the Appellant/Applicant dated 11th September 2020 and filed on 14th September 2020 is hereby allowed;
b.
The Supplementary Record of Appeal shall be filed and served within 3 days of this Ruling.
c.
Each party shall bear its costs.
7.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/12/eng@2020-09-23 |
Application 6 of 2020 | Kihoro v Attorney General (Application 6 of 2020) [2020] KESC 78 (KLR) (23 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 23 September 2020 | 2,020 | Nairobi | Civil | Kihoro v Attorney General | [2020] KESC 78 (KLR) | null | Before the Court is a Notice of Motion Application dated 4th March, 2020 and lodged on 11th March, 2020. The motion seeks review of refusal to grant certification to appeal to the Supreme Court by the Court of Appeal (Waki, Nambuye & Kiage JJA) in Civil Application No. SUP 2 of 2016. It is brought under Articles 163 (4)(b), (5) & (7), 2(5), 2(6), 22(3)(d) & 159(2)(d) of the Kenya Constitution 2010; Sections 3, 15, 16, 23, & 24 Supreme Court Act 2011 (now revoked), Rules 3, 24, 31 & 53 of the Supreme Court Rules 2012 (now revoked), Rule 4a (2) Supreme Court (Amendment) Rules 2016 (now revoked), Section 4 of the Fair Administrative Action Act 2015 and all the other enabling provisions of law. | In Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others PARA 2012. eKLR and Tom Martins Kibisu v. Republic PARA 2014. eKLR this Court laid down the distinct principle that, it had no jurisdiction to entertain appeals from final Judgements of the Court of Appeal, before the promulgation of the 2010 Constitution. 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 the Constitution.In the matter before us, it is not in doubt that the final Judgment by the Court of Appeal was delivered on 17th March 1993, long before the promulgation of the current Constitution. There could never have been any other appeal from that Judgment, due to the fact that the Court of Appeal was then, the highest court in the land. When the Applicant herein moved to the High Court in Miscellaneous Application No.52 of 2009, he was simply but importantly seeking to enforce the final Judgment and Orders of the Court of Appeal. He was seeking to reap the fruits of that Judgment. Such an application cannot be said to have sustained the cause of action until November 2011, so as to confer jurisdiction on this Court. The Applicant is not appealing anything from such an enforcement action that he commenced before the High Court. How can he, when indeed the High Court granted his prayer for enforcement of the Court of Appeal Judgment? At any rate, even if such an appeal were possible, which it isn’t, this Court would not have appellate jurisdiction over a decision from the High Court.
12.
The intended appeal therefore offends the pronouncement of this Court in Samuel Macharia [Supra]. As such, it is clear that we have no jurisdiction to entertain this Application. This finding of necessity disposes of the other two issues. Consequently, we make the following Orders:
F. Orders
(i)
The Notice of Motion Application dated 4th March 2020, is hereby dismissed.
(ii)
No Orders as to Costs.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/78/eng@2020-09-23 |
Petition 45 of 2018 | Kimani & 20 others (On behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others (Petition 45 of 2018) [2020] KESC 9 (KLR) (Civ) (23 September 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 23 September 2020 | 2,020 | Nairobi | Civil | Kimani & 20 others (On behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others | [2020] KESC 9 (KLR) | null | The petitioners claimed to be poor landless people who had been relocated to Korogocho from various parts of Nairobi. They claimed ownership of the land in Korogocho contending that they were allocated the plots in the 1970s and 1990s and had put up various structures where they resided and had even developed the plots. It was alleged that in 1986, the then President visited the area and ordered roads to be constructed and electricity installed, which directive was implemented. The petitioners averred that they had severally petitioned the Government for titles and on November 22, 2000, in a public rally (baraza), the President directed the respondents together with the City Council of Nairobi to issue them with titles.That notwithstanding the President’s directive, the Provincial Administration started interfering with the petitioners’ possession of the plots. On May 11, 2001 they were informed of Government plan to pull down their houses and come up with new permanent houses. They argued that because of the promises made to them, which they believed to be true, they were entitled to be issued with the title deeds for the plots. It was on that basis that they moved to the High Court seeking various orders, including, a declaration that they were entitled to be registered as proprietors/owners of the plots on which their semi-permanent houses stood (suit land).
The High Court dismissed the petition holding, inter alia, that it did not disclose any cause of action, hence there was nothing for it to consider in relation to whether the petitioners were to be issued with title deeds for the suit land. Aggrieved by that decision, the petitioners appealed to the Court of Appeal. The Court of Appeal held that their claim was not supported by evidence, was not ascertainable and therefore could not be determined. It dismissed the appeal. Aggrieved, the petitioners appealed to the Supreme Court arguing, among others, that they had an automatic right of appeal under article 163(4)(a) of the Constitution as the matters involved touched on constitutional interpretation. | The Supreme Court in exercise of jurisdiction under article 163(4)(a) of the Constitution had to await and respect the superior courts’ exercise of their jurisdictions on the issue. The rationale being that the Supreme Court would only sit on appeal on matters which the other courts had already determined so that as an apex court, it benefitted from the reasoning of those other courts.In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was to be that the chain of courts in the constitutional set-up, running up to the Court of Appeal, had the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law and only cardinal issues of law or of jurisprudential moment, deserved the further input of the Supreme Court.
Article 163(4)(a) of the 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 arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court.
The petitioners moved to the High Court under section 84 of the repealed Constitution seeking to enforce their rights under sections 71, 74, 75, 77, 81 and 82 of the repealed Constitution. At the core of the case was the question whether their right to life under section 71, and right to property under section 75 of the repealed Constitution had been infringed or threatened by the respondents. Consequently, a prima facie case touching on the interpretation and application of the Constitution was brought to the Supreme Court. Thus, the appeal had ably invoked the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution.
The invocation of the court’s jurisdiction was not however a panacea for a finding that a meritorious case had been made before the court. A finding that a court had jurisdiction to hear and determine a matter was a preliminary finding that the matter before the court was one for which the court was, by law, permitted to determine.
For a successful and competent appeal to the Supreme Court under article 163(4)(a) of the Constitution, it was not enough for a litigant to allege that his/her case before the superior courts involved interpretation and application of the Constitution. The Supreme Court’s appellate jurisdiction under article 163(4)(a) was a qualified one. The Supreme Court was not just another tier of appeal for constitutional matters. A litigant had to categorically outline the various constitutional issues of interpretation and application which were in issue from the High Court and which the Court of Appeal subsequently considered, and erred in its interpretation and application to warrant appeal to the Supreme Court. While the Supreme Court would find that its jurisdiction had been invoked under article 163(4)(a) of the Constitution, it had the discretion on what issue(s) to determine or whether the alleged issues legitimately fell within that jurisdiction.
The Supreme Court retained the discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution. Such a matter had to be founded on cogent issues of constitutional controversy, which issues were to be so determined by the Supreme Court itself. So that, while a litigant would file his/her appeal, it was the Supreme Court which had the sole discretion of determining whether the issues brought before it raised cogent constitutional controversies to warrant its input.
The appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution was 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 was not enough for one to invoke and sustain an appeal before the Supreme Court. A party had to steer his/her appeal in the direction of constitutional interpretation and application. A party needed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues.
The following attributes were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:
The jurisdiction revered judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court had to have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
The jurisdiction was discretionary in nature at the instance of the Supreme Court. It did not guarantee a blanket route to appeal. A party had to categorically state to the satisfaction of the Supreme Court and with precision those aspects/issues of his matter, which in his opinion fell for determination on appeal in the Supreme Court as of right. It was not enough for one to generally plead that his case involved issues of Constitution interpretation and application.
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involved little or nothing to do with the application or interpretation of the Constitution did not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserved the further input of the Supreme Court under article 163(4)(a) of the Constitution.
Challenges of findings or conclusions on matters of fact by the trial Court of competent jurisdiction after receiving, testing and evaluation of evidence did not bring up an appeal within the ambit of article 163(4)(a) of the Constitution.
In dealing with an appeal, the Supreme Court’s first hurdle was the delimiting of issues that legitimately fell for its determination. That was important since it was an appellate court with a very qualified jurisdiction. Not every issue that was before the superior courts was open for its determination in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution. Matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Court’s review on appeal. The same was also true of matters that purely dealt with interpretation and application of statutory provisions.
As regards the issues framed by the petitioners for determination, save for the Supreme Court’s jurisdictional issue, no other issue lay for determination by the Supreme Court in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution.
Both the Court of Appeal and the High Court agreed that there was no evidence upon which the petitioners had laid their claim to the suit land. That decision was majorly an evidentiary matter. The Court of Appeal had observed that the appeal raised constitutional issues of the right to housing and it was ready to make a determination on the issue. The only hurdle was that there was no evidence by the petitioners to back their claim. On that basis, the appellate court downed its tools and upheld the High Court decision.
The Court of Appeal in making the conclusion that the petitioners’ claim was not ascertainable and therefore could not be determined, neither interpreted nor applied the Constitution. In no way did the Court of Appeal’s conclusion of lack of evidence take any constitutional trajectory that warranted the Supreme Court’s intervention. Some of the issues framed for determination by the petitioners touched on matters of fact and statutes. Some issues were being raised before the Supreme Court for the first time. The petitioners were under a duty to frame the issues they considered were of a constitutional nature which the Court of Appeal erred in its interpretation or application but they failed in that duty. No cogent issue of constitutional controversy arose and/or was in issue at the Court of Appeal that warranted the Supreme Court’s further input.
At the time of filing the matter before the High Court, the petitioners were not facing any eviction threat or order. Before determining whether any of the orders they sought warranted being granted, the petitioners had to first prove their entitlement and right to the property. As the superior courts found, no evidence was tendered hence the case was not proved. Consequently, the Supreme Court found no basis upon which to delve into the interrogation of the matter whether reliefs such as structural interdicts were available.
The petitioners did not marshal a satisfactory case before the Supreme Court for it to exercise its jurisdiction under article 163(4)(a) of the Constitution. The petition lacked merit.
Petition dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/9/eng@2020-09-23 |
Civil Application 17 of 2020 | Temoi & another v Governor, Bungoma County & 3 others (Civil Application 17 of 2020) [2020] KESC 10 (KLR) (Civ) (23 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 September 2020 | 2,020 | Nairobi | Civil | Temoi & another v Governor, Bungoma County & 3 others | [2020] KESC 10 (KLR) | null | Upon perusing the Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020, which application is brought pursuant to the provisions of Section 3(d) & (e) of the Supreme Court Act, 2011, Rules 3(5), 15(2) and 38(1) of the Supreme Court Rules, 2020 in which the Applicants seek extension of time to file an appeal out time; and | Upon considering the written submissions by the Applicants dated 13th July 202o and filed on 14th July 2020 wherein the Applicants contend that the delay in filing an appeal to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, as well as the inability to timeously obtain legal counsel for representation on a pro bono basis and certified copies of types proceedings from the Court of Appeal; andThe 1st Respondent’s submissions dated 14th August 2020 wherein it is contended that the application was without merit, that the delay is inexcusably inordinate, and that the right of extension is not a right that the Applicants deserve, in the instance; and
4.
Having considered the application and the submissions filed by the Applicants and the 1st Respondent, by a unanimous decision of this Bench, we find that;
(a)
This Court has the jurisdiction to consider and allow an application for leave to extend time – see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b)
That an applicant seeking extension of time must satisfy the principles set out in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR among other authorities on extension of time;
(c)
We thus find that the Applicants have no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation is not a sufficient ground for this Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence is tendered in that regard. And whereas the covid pandemic initially affected the ability of parties to access this Court, there is no evidence in the present case that the Applicants were unable to access this Court or the Court of Appeal in good time to file their appeal.
(d)
Furthermore, the Applicants have not annexed to their application their intended Petition of Appeal or the grounds of appeal which they wish the Court to consider in their intended Petition of Appeal and to allow the proceedings before this Court to commence in accordance with Rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020 and as determined in Yusuf Gitau Abdallah v. Building Centre (K) Ltd Petition No. 27 of 2014; [2014] eKLR;
(e)
The Applicants have also not explicitly stated what constitutional provisions they intend to rely upon in bringing the intended Appeal before this Court as was pronounced in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others Petition No. 12 of 2018; [2018] eKLR.
5.
In the circumstances, we now make ORDERS as follows;
(a)
The Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020 is hereby dismissed;
(b)
Each party shall bear its costs.
6.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/10/eng@2020-09-23 |
Civil Application 34 of 2019 | Rose Jebor Kipngok v Kiplagat Kotut (Civil Application 34 of 2019) [2020] KESC 13 (KLR) (18 September 2020) (Order) | Order | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 18 September 2020 | 2,020 | Nairobi | Civil | Rose Jebor Kipngok v Kiplagat Kotut | [2020] KESC 13 (KLR) | null | On 4th September 2020, this Court delivered a Ruling dismissing the Application dated 12th November, 2019 and affirming the Appellate Court’s decision delivered on 17th October, 2019, declining leave to appeal to this Court. In the said Ruling at the heading, we erroneously indicated that the Coram consisted of (Maraga, CJ & P; Mwilu, DCJ & V-P; Ibrahim, Wanjala & Lenaola, SCJJ) which was in accordance with the bench constituted on 6th March, 2020. This was an inadvertent error as per the amended bench constituted on 7th July, 2020, the Coram consisted of (Mwilu, DCJ & V-P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ). | On 4th September 2020, this Court delivered a Ruling dismissing the Application dated 12th November, 2019 and affirming the Appellate Court’s decision delivered on 17th October, 2019, declining leave to appeal to this Court. In the said Ruling at the heading, we erroneously indicated that the Coram consisted of (Maraga, CJ & P; Mwilu, DCJ & V-P; Ibrahim, Wanjala & Lenaola, SCJJ) which was in accordance with the bench constituted on 6th March, 2020. This was an inadvertent error as per the amended bench constituted on 7th July, 2020, the Coram consisted of (Mwilu, DCJ & V-P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ).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.
21.
(1)
. . .
(2)
. . .
(3)
. . .
(4)
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.
3.
As a result, we hereby Order as follows:
(i)
The Coram is corrected by deleting “(Maraga, CJ & P; Mwilu DCJ & V-P; Ibrahim, Wanjala & Lenaola, SCJJ)” and inserting therein the Coram of “(Mwilu, DCJ & V-P; Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)”.
4.
This Ruling is accordingly amended, and this Order shall constitute part of the Ruling of the Court. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/13/eng@2020-09-18 |
Petition 46 of 2019 | FNH v Housing Finance Company of Kenya Limited & another (Petition 46 of 2019) [2020] KESC 21 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu | 4 September 2020 | 2,020 | Nairobi | Civil | FNH v Housing Finance Company of Kenya Limited & another | [2020] KESC 21 (KLR) | null | This is a Notice of Motion Application dated 23rd December 2019, and filed on the 23rd of January 2020, where the Applicant, the firm of Taib A. Taib seeks determination of the status of representation by counsel in a cause pending before this court. The proceedings at this stage, therefore, only concern the preliminary question of representation.The Applicant herein, FNH, was the registered proprietor of ‘the suit property’ L.R. No ****** - a residential house situated within Runda Estate Nairobi.
3.
On 23rd February 2003, the Applicant drafted and executed a Power of Attorney appointing Sharok Kher Mohamed Ali Hirji as his legal representative. in relation to the suit property, which power of attorney was filed with the Register of Powers of Attorney on the 17th of March 2003 as No. P/A 37723/1. | From a reading of the case above, it is apparent that the graveman of the matter is a dispute on representation.But before we can delve into the issue, at the very onset, it is important to ascertain if this court has the requisite jurisdiction to determine the question as to the legal representation and validity of the power of attorney of the parties before the court.
27.
The appellate jurisdiction of this Court is rightly captured in Article 163(4) of the Constitution of Kenya which states as follows:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
i.
As of right in any case involving the interpretation or application of this Constitution; and
ii.
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)
(5)
A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
28.
Apart from the foregoing constitutional and legal provisions, this Court has ceaselessly stipulated the boundaries of its jurisdiction under Article 163(4)(a) of the Constitution in several decisions, which decisions are still applicable. In the Lawrence Nduttu case, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
28:
“The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a).”
29.
Further, in the Hassan Joho Case this Court observed as follows:
37:
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this Court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under
Article 163(4)(a) of the Constitution…” [emphasis added].
30.
In this matter, a perusal of the record reveals that neither the High Court nor the Court of Appeal delved into the issues of representation. It is a novel issue that is coming before this court for the very first time and is yet to progress through the normal appellate mechanism, so as to reach this Court in proper form. In light of this and of the principles cited in the case law above, this court lacks the requisite jurisdiction to entertain this application.
Orders
1.
The application dated 23rd December 2019 is hereby dismissed;
2.
The Applicants shall bear the costs of this application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/21/eng@2020-09-04 |
Petition (Application) 36 of 2019 | Gichuru v Package Insurance Brokers Ltd (Petition (Application) 36 of 2019) [2020] KESC 29 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Gichuru v Package Insurance Brokers Ltd | [2020] KESC 29 (KLR) | null | The Respondent filed an application dated 8th November 2019 on 13th November 2019, seeking for the orders of striking out the appeal here in with costs. The application is brought under Articles 163 (4) (a) of the Constitution Section 15(2) of the Supreme Court Act, 2011, Rule 33 of the Supreme Court Rules, 2012. It is supported by the affidavit of Salome Mwangi.The cause of action is stated to arise from termination of the Petitioners employment who was retained in permanent and pensionable contract by the Respondent. He was diagnosed with a spinal cord tumor in November 2013; Sought medical treatment in India but upon resuming work on 10th February 2014, his mobility had been impaired. He was directed not to report to work from 14th April 2014 till a time when his condition and mobility improved.The Respondent sought medical appraisal report from the Petitioner’s doctor. The doctor’s report recommended a further two months’ sick leave. From that report, the Petitioner was suspended from employment on 23rd June 2014 and was urged to hand over the Respondent’s property in his care and custody. He protested the suspension. On 1st August 2014 he was dismissed summarily for gross misconduct allegations.
6.
Aggrieved by the dismissal, the Petitioner filed a suit in the Employment and Labour Relations Court Case No. 1375 of 2014 Seeking for damages for wrongful termination based on discrimination and twelve months’ salary in damages and unpaid dues. After hearing, the court found the termination as unlawful and damages were awarded with pending dues as prayed. On appeal to the Court of Appeal, it was held there was no discrimination on the Petitioner. The twelve Months salary award was set aside. Award of one month’s salary in lieu of notice was upheld.
7.
Dissatisfied with the finding of the C0urt of Appeal, the Petitioner has appealed to this Court through an Appeal dated 2nd September, 2019 filed on even date.The appeal is brought under Articles Article 163(3)(b) (i), 163 (4) (a) of the Constitution of Kenya, 2010 and Section 15(2) of the Supreme Court Act, 2011, Rule 9 & 33 of the Supreme Court Rules, 2012. The Petitioner relies on provisions of Articles 27, 41, 54 and 259 of the Constitution of Kenya, 2010 and Sections 5 and 46 of the Employment Act.
8.
The grounds are that there was an error by the Court of Appeal in failing to analyse the evidence on record before reaching its decision on discrimination; by introducing new and extraneous facts that were not before the trial court in determining the issue of discrimination; in interpretation of Article 27(5) of the Constitution and in interfering with the discretion of the trial judge in respect of the award of twelve months’ salary for unlawful termination.
9.
The Respondent filed this instant application seeking the striking out of the appeal on grounds that it is not in the categories which an appeal can lie as of right under Article 163(4)(a) of the Constitution. Parties were directed to file and exchange submissions for determination by the Court. | We have considered the parties’ pleadings and submissions in the application. The issue for determination is;Whether the appeal can be struck out under Article 163(4a) of the Constitution.
14.
In order to ascertain whether the prayers sought in the application by the Respondent can issue, we have to examine the proceedings before courts below in light of Article 163(4a) invoked by the Petitioner as the supporting provision to find out whether the appeal is properly brought before this Court under Article 163(4)(a) of the Constitution.
15.
The claim filed before the trial court was brought under provisions of various Sections the Employment Act, Industrial Court Act and Industrial Court Rules. In paragraph 29 and 30 of the claim, it was averred that the Respondent’s actions contravened various Sections of the Employment Act and violated his fundamental rights provided for under Articles 27, 28, 41, 43, 47, 50 and 54 of the Constitution. This was through discrimination perpetrated against him through unlawful and unfair termination of employment.
16.
Both the trial court and the Court of Appeal framed 3 issues for determination. One of the issues in both courts as framed was whether the Petitioners right under Article 27 of the Constitution was violated by the Respondent. The trial court opined that the Respondent was at pains to delink the Petitioners dismissal from his illness in view of the letter dated 14th April 2014 advising the Petitioner not to go to work while sick. It viewed the letter to mean as long as the Petitioner was unwell and immobile, he could not go to work. It held there was discrimination of the Petitioner based on his health status contrary to Article 27 of the Constitution.
17.
The Court of Appeal on the other hand in addressing discrimination, cited Article 27 (4) of the Constitution and Section 5 (3)(a) of the Act in verbatim. It held that section 5(3)(a) was the one meant to give full realization of Article 27 of the Constitution as regards employment. Article 27(4) in respect of the Petitioner’s claim of discrimination provides for non-discrimination on grounds of health status and disability, while Section 5 (3)(a) of the Act provides for non-discrimination on grounds of disability and HIV status.
18.
After evaluating Section 5(3)(a) in light of the circumstances of the case, the Court of Appeal held that discrimination did not arise as it was only the Petitioner who was sick and his dismissal could not be weighed against other employees who were performing while he himself was unable to deliver. The illness affected Petitioners performance. There was no differential treatment of the Petitioner against the other employees.
19.
Article 163(4)(a) of the Constitution grants parties automatic right of appeal if an issue touching on application and interpretation of the Constitution was raised and addressed by the Superior courts below. It also can arise in cases where there was no specific Constitutional issue. In such an instance, a party seeking to rely on this provision should demonstrate a Constitutional trajectory in issues addressed as was held in the case of Gatirau Peter Munya vs Dickson Mwenda & 2 Others SC Applic. No. 5 of 2014 and Cordisons International (K) Limited v Chairman National Land Commission & 43 others [2020] eKLR, SC Petition No. 14 OF 2019
20.
We have considered several of our decisions on this provision. In the present case we note that the Petitioner invoked Article 27 of the Constitution in the Claim. The trial court considered the same in analysis and determination. Article 27 was thus present since the inception of the suit as we held in the case of Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2019] eKLR, SC Application No. 22 OF 2019.
21.
The Court of Appeal in its analysis, after finding that Article 27 of the Constitution had been re-enacted in a legislation specifically to address matters of discrimination of workers in employment in Section 5(3)(a) of the Employment Act, used the legislation itself to address the issue at hand than the Constitution, avoiding the Constitutional provision altogether.
22.
In Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2020] eKLR, SC Petition No. 21 of 2019, We considered instances where a contested constitutional provision was introduced in the Court of Appeal, and that the court in addressing the provision in passing, we held did not amounting to interpretation and application of the Constitution under Article 163(4)(a). On the contrary in this case the Constitutional provision was lost in the Court of Appeal and addressed through the Act of parliament enacted in furtherance of the Constitutional provision.
23.
In Gatirau Munya (Supra) we considered instances when jurisdiction arises under Article 163 (4) (a) when a provision of an Act of parliament is a normative derivative of a constitutional provision. Avoidance of interpretation and application of Article 27 of the Constitution by the Court of Appeal did not diminish its presence in the claim, since even though it dealt with Section 5(3)(a) of the Employment Act, this section was a normative derivative of Article 27 of the Constitution. It cannot thus be said that after enactment of the Act, Article 27 of the Constitution died and was buried in a way that it cannot be exhumed and revived again at a further appeal before this Court to find out whether its death and burial was proper or not by getting subsumed in section 5(3)(a) of the Employment Act.
24.
Further Contrary to the Respondent’s allegations, the reliance on Article 27 was not a mere reference on generality of a Constitutional provision disentitling the Petitioner to rely on Article 163(4)(a) of the Constitution as we held in Aviation and Allied Workers Union of Kenya v. Kenya Airway Ltd & 3 Others [2017] eKLR. We are also guided by our finding in the case of Okiya Omtata Okoiti vs The Central Bank of Kenya & others Applic. No 32 of 2018 that Article 27 of the Constitution was applied and interpreted in the superior courts below, and that before the trial court, discrimination emerged as one requiring Constitutional interpretation and application before this court on a further appeal. We find the appeal involves interpretation and application of the Constitution as required under Article 163(4)(a) of the Constitution and rightly before this Court.
25.
In light of the foregoing we make the following orders;
(a)
The Respondent’s application for striking out the appeal dated 8th November 2019 is hereby dismissed.
(b)
Costs be in the cause. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/29/eng@2020-09-04 |
Application 12 of 2019 | Githiga & 4 others v Kiru Tea Factory Company Ltd (Application 12 of 2019) [2020] KESC 27 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Githiga & 4 others v Kiru Tea Factory Company Ltd | [2020] KESC 27 (KLR) | null | Because of the nature of the present application, it is important to set out, in extenso, the gist of the dispute now before us and thereafter determine each outstanding matter sequentially | We must from the onset state that the Petitioner’s appeal is a unique one. We say so because it is premised on both a concluded contempt application and ruling before the Court of Appeal as well as another pending and yet to be determined contempt application.20.
We must from the onset state that the Petitioner’s appeal is a unique one. We say so because it is premised on both a concluded contempt application and ruling before the Court of Appeal as well as another pending and yet to be determined contempt application.
21.
In effect while there is no judgment on the substantive appeal before the Court of Appeal, one contempt application has been determined, conviction meted out, sentence imposed and the Petitioners are in the place of convicted contemnors. They are awaiting their fate in another contempt application.
22.
In that context, does the Petition of appeal raise constitutional issues requiring our attention under Article 163(4)(a) of the Constitution? Our jurisdiction under the said Article has been explained and settled in Lawrence Nduttu, as well Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others SC Petition No. 2 “B” of 2014; [2014] eKLR among other authorities on the subject.
23.
We have often stated in that regard that a party invoking Article 163(4) must demonstrate that the issues raised on appeal must have been canvassed in the Superior Courts below, progressing through the normal appellate mechanism so as to reach this Court by way of an appeal. Alternatively, or in addition, the question of constitutional interpretation or application must have taken a constitutional trajectory in the Superior Courts’ reasoning in their determination of a contested issue or question.
24.
In the present instance, we have stated that the issues before us arise from contempt applications and a ruling of the Court of Appeal in that regard. This is a unique appeal as we have stated because by the conviction and sentence, the matter started and ended at the Court of Appeal. One of the questions we must therefore address at the hearing of the appeal is whether there is a right of appeal to this Court, upon conviction for contempt at the Court of Appeal. The question whether the Petitioners were granted access to justice under Article 48 of the Constitution and whether they were granted a fair hearing under Article 50 of the Constitution are issues that we must interrogate at the same time.
25.
The Petitioners have also raised other specific issues which fall within the purview of their submission that their appeal arises from issues that have taken a constitutional trajectory. These issues would in the larger context require interrogation. They are;
i)
Whether a Court presiding over contempt proceedings has a right to ignore deliberately the responses/defences placed before it by the cited contemnors.
ii)
Whether a Court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.
iii)
Whether a Court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo moto to determine the original pleading without invitation and participation of either parties in the proceedings.
iv)
Whether a Court hearing a contempt of Court application can convict the alleged contemnors without affording then a hearing
v)
Whether a Court hearing a contempt of Court application can overlook a miscarriage of justice to convict for contempt.
26.
In our view, all the above issues raise concern as to the right to a fair hearing if they are found to be true. Therefore, the Appeal before us requires that we must find in favour of the Petitioners and proceed to hear parties on merit and settle the issues we have raised above. The Motion before us is one for dismissal in that event. Similarly, the Preliminary Objection dated 13th August 2019 on jurisdiction must be overruled.
27.
On costs, we shall exercise discretion and order that each party should bear its costs of the present application and the Preliminary Objection.
D. Disposition and Orders
28.
i)
The Notice of Motion dated 3rd May 2019 is hereby dismissed.
ii)
TheApplicant/Respondent’s Preliminary Objection dated 13th August 2019 is hereby overruled.
iii)
Each Party shall bear it costs.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/27/eng@2020-09-04 |
Application 12 of 2019 | Githiga & 5 others v Kiru Tea Factory Company Ltd (Application 12 of 2019) [2020] KESC 22 (KLR) (Civ) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Githiga & 5 others v Kiru Tea Factory Company Ltd | [2020] KESC 22 (KLR) | null | Before us are two applications; the first, filed by the Petitioners/Applicants, is dated 2nd December 2019. The specific prayers sought are that;This Honourable Court grants stay of further proceedings in Nyeri Court of Appeal Civil Application No.137 of 2017 (sitting at Nairobi) Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 Others pending the hearing and final determination of the Applicants’ appeal filed before this Court.
ii)
This Honourable Court grants stay of further proceedings, the hearing and prosecution of the Application dated 30th of May 2019 and as filed on the 31st May 2019 in Nyeri Court of Appeal Civil Application No.132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others pending the inter-parties hearing and final determination of Supreme Court Petition No.12 of 2019, Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited.
2.
The second is dated 20th December 2019 and is filed by the Respondent. The prayers in it are as follows:
i)
The following excerpts and or averments be and are hereby struck out, expunged and wholly obliterated from the record of the Supreme Court:
(a)
Ground (a) of the Amended Notice of Motion dated 3rd May 2019 and amended on the 2nd December, 2019, in particular Mr. Geoffery Chege Kirundi in the name of the Respondent herein”
(b)
Ground (s) of the Amended Motion, in particular “Mr. Geoffery Chege Kirundi masquerading as Kiru Tea Factory Company Limited has commenced further contempt of Court proceedings against among others the applicants herein.”
(c)
Paragraph 6 of the Further Supporting Affidavit of Mr. Stephen Maina Githiga sworn on the 2nd December, 2019 in particular “Mr Geoffery Chege Kirundi masquerading as Kiru Tea Factory Company Limited has commenced further contempt of court proceeding against among others the applicants herein”
(d)
Paragraph (7) of the Affidavit, in particular “Mr. Geoffery Kirundi invokes as his principal grounds the alleged breach of the court orders of 6th December, 2017”
(e)
Paragraph (11) of the Affidavit in particular “the Applicants are also apprehensive that considering the litigious nature of Mr. Kirundi and his inclination in instituting by himself or through proxy various court proceedings relating to similar issue, Mr. Kirundi may commence further proceedings relating to the issues relating before this court.”
(f)
Paragraph (6) of the Applicants submissions dated 5th December, 2019 (“the submissions”), in particular “through this second contempt application, Mr. Geoffery Chege Kirundi in the name of the Respondent herein sought to cite for further contempt the Applicants herein.”
(g)
Paragraph (19) of the Submission in particular “Indeed, the allowing of further contempt proceedings to proceed would create anarchy as the substram of the appeal would not have been preserved as the appeal deals with the ruling of 22nd February 2019 on alleged contempt proceedings may be commenced afresh in different form as has already been done by Geoffery Chege Kirundi in the name of the Respondent”.
(h)
Paragraph 22 of the Submission in particular “the person behind the contempt proceedings as instituted in the name of the Respondent is Mr. Geoffery Chege Kirundi.”
(i)
Paragraph 23 of the Submission in particular “through this further contempt threat Mr. Kirundi is deliberately positioning himself to disrupt the livelihoods of over 8,000 small scale tea farmers. Under the utilitarian principle, this court has a duty to grant such orders that would in the meantime, pending the hearing of the appeal serve the greater number of persons, in this case the over 8,000 tea growers as opposed to one further contempt prosecutor, Mr. Kirundi”
(j)
Paragraph 25 of the submissions in particular “Mr. Geoffery Chege Kirundi, who retired from the Board of Directors of the Respondent on the 22nd of November, 2019 by virtue of the lapse of his three (3) year term, has continually held sword of Court of Appeal impugned orders to pursue further contempt proceedings against the Applicants but in the name of the Respondent. Mr Kirundi stands to suffer no prejudice if the stay orders herein are granted to preserve the substram of the
Appeal during the pendency of the appeal.”
ii)
That an ancillary order be and is hereby issued permanently barring the Applicants, their Advocates or any other person from referring to proceedings by M/s Kiru Tea Factory Company Limited as proceedings by “Mr. Geoffery Chege Kirundi in the name of Kiru Tea Factory Limited.”
iii)
This Honourable Court be pleased to make any other Orders it deems fit in the circumstances
iv)
Costs of and incidental to this Application be provided for.
3.
We deem it imperative, initially, to deal with the second application as its determination would certainly impact on the earlier one.
B. Background
4.
The present two applications arise from contempt proceedings at the Court of Appeal filed by the Respondent, Kiru Tea Factory against all the Petitioners. In summary, the following is a chronology of events leading to the appeal before this Court:
(a)
Vide the application for contempt filed through the firm of M/s Kithinji Marete & Company Advocates, dated 13th December 2017, Kiru Tea Factory Company Limited commenced Nyeri Court of Appeal Civil Application No. 137 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 others, which application was amended vide a separate application dated 28th May 2018;
(b)
However, through the firm of M/s Njoroge Regeru & Company Advocates, Kiru Tea Factory filed an application dated 31st January 2018 seeking to withdraw the contempt proceedings for having been filed without the sanction of the Company. That application was dismissed by the Court of Appeal vide Ruling delivered on 11th May 2018. Consequently aggrieved, Kiru Tea Factory sought review vide application dated 29th May 2018;
(c)
The 2nd Applicant herein vide application dated 3rd of August 2018 sought to strike out the amended contempt application dated 28th May 2018 and all further affidavits that had been filed without leave, being Further Affidavit sworn on the 21st December 2017, 1st Further Affidavit sworn on 22nd January 2018, 2nd affidavit sworn on the 16th April 2018, 3rd Further Affidavit sworn on 3rd August 2018 and the 5th Further Affidavit sworn on 5th November 2018;
(d)
On the 7th August 2018, the Court of Appeal, having heard Counsel for all the parties, ordered that the applications dated 28th May 2018, 29th May 2018 and 3rd August 2018 be listed for hearing. They were then listed to be heard on 19th September 2018 but were adjourned to 15th November 2018 when they were heard;
(e)
After the hearing, the Court of Appeal, on the 22nd of February 2019, delivered rulings in the applications as hereunder;
i)
The application dated 29th of May 2018 was found partially meritorious and accordingly the Court reviewed the rulings and orders of the Court of Appeal made on 11th May 2018 making declarations and orders as appearing in the said ruling of 22nd February 2019;
ii)
The application dated 3rd August 2018 was also found meritorious and accordingly the amended contempt application dated 28th May 2018 was struck out together with all the further affidavits filed without leave; and
iii)
The Court of Appeal then made a determination on a third ruling in respect of a contempt application dated 13th December 2017, which application, it is claimed by the Petitioners, ceased to exist by virtue of the amended application on contempt dated 28th May 2018, and which application had not been heard on 7th August 2018 when the other three applications were heard. This position remains contested. By that ruling, the Court of Appeal found the Applicants herein in contempt of Court orders calling them for sentencing and mitigation on the 22nd of March 2019.
(f)
The Appellate Court in the third Ruling found that the 6th Applicant was the only one who had responded to the application dated 13th December 2017 via an affidavit sworn on 25th April 2018. According to the Applicants, in fact that affidavit was in response to an application dated 31st January 2018. The Applicants further claim that, as per the Court’s direction of 7th August 2019, they had responded to the amended application on contempt dated 28th May 2018;
(g)
The Applicants sought review of the decision vide an application dated 27th February 2019, canvassed on 7th March 2019, with a Ruling delivered on 28th March 2019. That Ruling dismissed the application for review on grounds that there was no new evidence that would be presented if the proceedings were to be re-opened;
(h)
In the ruling of 28th March 2019, the Court of Appeal, it is now claimed by the Petitioners, violated Articles 27(1), 50(1) and 159(2)(a) & (e) of the Constitution 2010 by hearing the Motion for contempt despite it not being in existence as it had been amended vide application dated 28th May 2018. The same had also not been, and had no responses on record thereby condemning the Petitioners unheard. | [10] Firstly, it is obvious to us that, reading the record before us, there is no love lost between Mr. Kirundi and the Petitioners. Furthermore, the Petitioners and the Respondent or some members or Directors of the Respondent, have become so engrossed in their bad blood that the substance of the Petition of Appeal has long been forgotten. This Court has now been forced to determine Motion after Motion without getting to the bottom of the appeal before it. We have in that regard had to determine a Preliminary Objection on jurisdiction; a Motion to strike out the Petition of appeal for the same reason; another Motion on which firm of advocates is properly on record for the Respondent; a Motion to amend the Motion on stay of proceedings before the Court of Appeal; the present Motion as well as the one below on stay of proceedings proper.While Parties are at liberty to duel on every issue under the earth, this Supreme Court has very limited jurisdiction and to spend time on all manner of applications is not the best way to determine appeals before it on their merits and expeditiously so.
13.
Reverting to the Motion now before us, we note that in his Affidavit sworn on 20th December 2019, Mr. Kirundi described himself as “the Chairman of the Kiru Tea Factory Company Limited”. He has maintained this position since the dispute relating to the control of the Kiru Tea Factory commenced. Mr. Stephen Maina Githiga in his Replying Affidavit sworn on 27th February 2020 on behalf of the Petitioners, on his part, deponed that he knows of his “own knowledge that there is exists no such position within Kiru Tea Factory Company Limited”. And that the only position known to him in that context is that of “Chairman of the Board of Directors of Kiru Tea Factory” which he, Stephen Maina Githiga, continues to hold. Mr. Githiga further claims that Mr. Kirundi is not even a Director of Kiru Tea Factory as his term as such Director expired on 22nd November 2019, a fact confirmed, he depones, by Korir J in High Court Petition No.442 of 2019. Our perusal of the Judgment in that case would show that Mr. Kirundi was only mentioned once when the learned Judge at paragraph 118 stated thus;
“
There is also the undisputed averment by the Respondents [KTDA & Kenya Tea Development Agency] that the three-year term of Geoffrey Chege Kirundi who swore the affidavit in support of KTFC’s [Kiru Tea Factory Company] application for joinder lapsed in November 2019. Without going into the ongoing disputes between KTFC and the Respondents [KTDA et al] pending before other Courts, it follows that there is no valid authority for dragging KTFC into these proceedings.”
14.
It has also been argued that Mr. Kirundi’s position as regards the contempt proceedings at the Court of Appeal is at the heart of the appeal before us and to strike out any parts of the Motion for Stay of proceedings will cripple the Petitioners case.
15.
On our part, having reflected on the matter, the present Motion must be looked at in its context and not in the context of other and unrelated proceedings. In the Motion for Stay of proceedings, the Petitioners have in a nutshell cast Mr. Kirundi as a masquerader, an unreasonably litigious person, and an anarchist but more importantly, that he has unreasonably used the sword of the contempt orders obtained against the Petitioners and may use the same over and over again to punish them. But who are the parties before us?
16.
In all pleadings before this Court, there is no party named Geoffery Chege Kirundi. Save for the Petitioners, the only other party is Kiru Tea Factory Company Limited, a legal entity sued in its own name. It is indeed true as claimed by the Petitioners that the Directorship and Management of Kiru Tea Factory Company is heavily contested and like Korir J in High Court Petition No.442 of 2019, we are not seized of the specifics of that dispute. Indeed, Korir J addressed Mr. Kirundi’s position in passing only and his finding is not before us in any substantive manner.
17.
Whether therefore Mr. Kirundi is using the name of the Respondent to further his own agenda, is a matter not presently before us but the Petitioners have nonetheless argued that the said issue is live and will form part of their case at the hearing of the appeal.
18.
Even if that were so, what we are confronted with, is a situation where one party, in seeking orders of stay of proceedings against a limited liability Company has, in over ten instances according to the Respondent, cast aspersions on an individual who is associated with it. The law on the subject is that following Salomon v. Salomon [1897] AC 78, our Courts have been consistent in holding that a limited liability company is separate from its members. Indeed, Majanja J in Valentine Opiyo and Anor v. Masline Odhiambo t/a Ellyams Enterprises High Court Civil Appeal No.2 of 2014, quoted with approval the holding that “[A Company] as a body corporate, is a persona jurisdica, with a separate identity in law, different from its shareholders, directors and agents unless there are factors warranting a lifting of the veil” (Quoting the Court of Appeal in Victor Mabachi and Anor v. Nurturn Bates Ltd [2013] eKLR).
19.
When can a Company’s veil be lifted? Only when there is evidence of “fraud or improper conduct but in all cases where the character of the company, or the nature of the persons who control it, is a relevant feature. In such a case, the court will go behind the mere status of the Company as a separate legal entity disinter from its shareholders …” – Halsbury’s Laws of England 4th Edition para.90 as quoted in Valentine Opiyo (supra).
20.
The above being the law, what should we make of the impugned parts of the Motion for stay of proceedings? It is obvious to us that the references to Mr. Kirundi to the extent that they are not directed at the Respondent per se are misguided. We are certain that, by striking out those paragraphs, the Petitioners, in arguing their appeal which is limited to the propriety or otherwise of the contempt proceedings as a constitutional question will not have been driven away from the seat of justice. By personalising a purely constitutional issue, they steered their case away from the safety of the Constitution as its defender into Mr. Kirundi’s personal turf which is not an issue before us. Their Petition of Appeal, we are certain, can stand without submissions being directed at the person of Mr. Kirundi but at the faction of the Respondent (perhaps led by Mr. Kirundi) with which they have issues with. Having so stated, should we strike out the whole Motion for Stay of proceedings?
21.
We shall here below address that Motion on its merits, but for the above reasons, the Motion dated 20th December 2019 is allowed in terms of Prayers (i) (a) – (j). As regards prayer (ii) seeking orders to permanently bar the Petitioners from ever using the impugned statements, we see no reason to grant it and will instead dismiss it. We shall here below address costs at the end of this Ruling.
E. Submissions On The Motion for Stay of Proceedings
22.
The above application is dated 2nd December 2019. The Petitioners/Applicants seek the following orders:
i)
… (spent)
ii)
… (spent)
iii)
This Honourable Court grants stay of further proceeding in Nyeri Court of Appeal Civil Application No.137 of 2017 (sitting at Nairobi) Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 Others pending the hearing and final determination of the Applicants’ appeal filed before this Court.
iv)
This Honourable Court grants stay of further proceedings, the hearing and prosecution of the Application dated 30th of May 2019 and as filed on the 31st May 2019 in Nyeri Court of Appeal Civil Application No.132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others pending the inter-parties hearing and final determination of Supreme Court Petition No.12 of 2019, Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited.
23.
We have, above, set out the background to the dispute but suffice it to say that, the Petitioners were convicted and sentenced for contempt by the Court of Appeal after a lengthy process involving inter alia the striking out of a certain prior contempt application (dated 28th May 2018).
24.
Upon their conviction on 22nd March 2019, the Petitioners sought a review of that decision but the same was dismissed prior to mitigation and sentence on 4th April 2019. Subsequently, a second contempt application was instituted by the Respondent for alleged breach of orders issued by the Court of Appeal on 6th December 2017, 20th December 2019 and 22nd February 2019. It is that second contempt application that has triggered the present Motion for stay of proceedings before the Court of Appeal pending determination of the appeal before us.
i. The Petitioners’/Applicants’ Submissions
25.
Relying on Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] KLR, the Petitioners state that the proceedings before the Court of Appeal were highly irregular for reasons inter alia that the Court of Appeal cited non-parties to the said proceedings as contemnors thus raising issues of fair trial under Article 50 of the Constitution.
26.
Further, they submit that, if the second contempt proceedings are conducted, there is the risk that their appeal against the initial contempt proceedings would be rendered nugatory and in that regard rely on our decision in Michael Sistu Kamau v. DPP & 4 Others [2018] eKLR.
27.
Lastly, they rely on the public interest principle and the decision in Deynes Muriithi & 4 others v Law Society of Kenya & another Civil Application No. 12 of 2015; [2016] eKLR to argue that this Court, as the custodian of the Constitution, ought to forestall an injustice by granting orders of stay as prayed.
ii. The Respondent’s Submissions
28.
The first point taken by the Respondent is that we have no jurisdiction to entertain the Petition of Appeal as well as the present application because there are no constitutional issues arising from the appeal.
29.
Secondly, the Respondent has argued that the conduct of the Petitioners is that of contemptuous litigants undeserving of the discretion of this Court and they should not benefit from their illegal actions – citing Miguna Miguna v. DPP & 2 others [2018] eKLR.
30.
Thirdly, they have submitted that the Petitioners’ appeal is exceptionally frivolous, disparaging and derogatory and ought not to be allowed.
31.
Fourthly, on the nugatory principle, they urge that, since the appeal is limited to refusal by the Court of Appeal to review the decision on contempt, there is no constitutional question arising to be determined and therefore the appeal is a non-starter ab initio.
32.
Lastly, it is the Respondent’s case that there is no public element exhibited in the appeal but on the contrary, the Petitioners’ refusal to obey Court orders is against the public interest – citing the Indian decision in Civil Appeal No.1134 - 1135 of 2002 State of Uttaranchal v. Balwant Singh Chaufal & others.
F. Analysis And Determination Of The Motion For Stay Of Proceedings
33.
It is now settled that in Gatirau Peter Munya, this Court laid the principles for issuance of stay orders by this Court. Those principles have been applied in a long list of authorities including Board of Governors, Moi High School, Kabarak & another v. Malcolm Bell Petition Nos. 6 & 7 of 2013; [2013] eKLR. The principles are whether an appeal is arguable; whether denial of the order for stay will render an appeal, nugatory; and whether it is in the public interest to grant the order for stay.
34.
As stated above, we have in a separate ruling determined that we have the jurisdiction to hear the Petitioners’ appeal and have, in that ruling, stated that the controversy around conduct of contempt proceedings by the Court of Appeal will require this Court’s interrogation against constitutional principles. The Respondent’s submissions on jurisdiction in the present application are therefore overruled.
35.
We also note that, throughout the appeal proceedings before the Court of Appeal, the sword of conviction for contempt has continuously been pointed at the Petitioners. It has been a back and forth to the extent that the substantive appeal has been shelved and contempt proceedings have taken centre stage. After the first conviction and sentence (the subject of the appeal before us), the Respondents have instituted fresh contempt proceedings against the Petitioners and we think that the appeal may well be rendered nugatory if we do not address its merits before the second contempt proceedings are finalised.
36.
Lastly, we have no doubt that contempt proceedings are a matter of public interest more so where allegations are made that one party is misusing the same to get at another without due process. Contempt proceedings may lead to imprisonment and therefore, where allegations of breach of the right to fair hearing are raised, this Court ought to lend an ear to the complaining party.
37.
In a nutshell, we are satisfied that the Petitioners have made out a case for grant of stay orders as prayed.
38.
What of costs? Being a matter of discretion, parties shall bear their costs of the Motion for striking out as well as the one for stay of proceedings.
G. Disposition
39.
For the above reasons, the following are the final orders to be made:
a)
The Motion for striking out dated 20th December 2019 is hereby allowed in terms of Prayers (i)(a)–(j).
b)
The Motion dated 2nd December 2019 for stay of proceedings is allowed in the following specific terms:
i)
This Honourable Court grants stay of further proceedings in Nyeri Court of Appeal Civil Application No.137 of 2017 (sitting at Nairobi) Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 Others pending the hearing and final determination of the Applicants’ appeal filed before this Court.
ii)
This Honourable Court grants stay of further proceedings, the hearing and prosecution of the Application dated 30th of May 2019 and as filed on the 31st May 2019 in Nyeri Court of Appeal Civil Application No.132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others pending the inter-parties hearing and final determination of Supreme Court Petition No.12 of 2019, Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited.
c)
Each party will bear its costs of both applications.
40.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/22/eng@2020-09-04 |
Application 10 of 2020 | Housing Finance Company of Kenya Limited v Muturi & another (Application 10 of 2020) [2020] KESC 20 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu | 4 September 2020 | 2,020 | Nairobi | Civil | Housing Finance Company of Kenya Limited v Muturi & another | [2020] KESC 20 (KLR) | null | Upon perusing the Notice of Motion dated and lodged on the 19th May 2020 by Housing Finance Company of Kenya Limited, pursuant to Article 163(3)(b)(i) of the Constitution of Kenya; Section 24 of the Supreme Court Act as read together with Rules 31 and 32 of the Supreme Court Rules 2020 and all other enabling provisions of law seeking stay of execution of the Judgment and Decree issued on the 17th of February 2017 in High Court Civil Case No 10 of 2010 and the Judgment and decree issued on the 3rd of April 2020 by the Court of Appeal in Civil Appeal no 153 of 2017; and | For this reason, we see no practical purpose to be served if we were to grant stay of execution of the Judgment and Orders of the Court of Appeal (Makhandia, Kiage,& Kantai JJA). For us to do so, there must be some prospect that the intended appeal is sustainable on the jurisdiction invoked, which is lacking for the Applicants. Having found so, we do not find it necessary to consider the prayer for stay of execution.It is apparent that this determination renders nugatory any consideration of the substantive appeal that is, Petition 7 of 2020. Consequently, we dismiss both the Application for stay of execution and Petition 7 of 2020 itself.
[10]
For reasons aforesaid, we make the following orders;
Orders:
11.
...
i.
The Notice of Motion dated 19th May 2019 is disallowed.
ii.
That Petition No. 7 of 2020 is hereby dismissed.
iii.
The Applicant shall bear the costs of the Application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/20/eng@2020-09-04 |
Application 32 of 2019 | Khalid & 16 others v Attorney General & 2 others (Application 32 of 2019) [2020] KESC 30 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 4 September 2020 | 2,020 | Nairobi | Civil | Khalid & 16 others v Attorney General & 2 others | [2020] KESC 30 (KLR) | null | The applicants’ Notice of Motion is dated and filed on 1st November 2019. They seek in the main orders for review of this court’s judgment delivered on 18th October 2019 in Petition No. 21 of 2017. It is filed pursuant to Articles 10(2c), 50(1), 159(2), 163(4a & 7) and 259 of the Constitution, Sections 3 and 21 of the Supreme Court Act, 2011, Rules 3 (2), 4, 5 and 20(4) the Supreme Court Rules, 2012. The application is supported by the sworn affidavit of Suyianka Lempaa, counsel for the applicants. | We have considered the application and the applicants’ submissions. The only issue for determination is;Whether the order s of review sought can issue in this case.
15.
This Court has previously pronounced itself on the jurisdiction to review its decisions in the Outa case (Supra) where it stated the principles on review of a court’s own decisions when;
(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’.
16.
This decision was arrived at after review of various Supreme Court decisions from different countries. The salient points were that the power of review is exercised sparingly because a trial has several implications once a judgment is delivered; litigation must come to an end; there is need for finality in court decisions; the Court is functus officio after delivery of decision sought to be reviewed; and that review should not substantially alter the decision sought to be reviewed. The review window is to be exercised sparing and only deserving cases have to be allowed. See Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, SC Application 8 of 2017.
17.
In the words of the Nigerian Supreme Court in the case of Citec International Estate Ltd. & Others v. Francis & Others (2014) LPELR-22314 (SC); that was cited in the Outa case,
“
An application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome…”
18.
During the hearing of the appeal, each party present submitted before the Court on the salient points of their respective cases and judgment was reserved to be delivered on notice. After Ojwang SCJ was suspended, the directions taken afforded the parties liberty on the way forward. The applicants sought for re-hearing of the appeal de novo as is the practice concerning part-heard trials in this country. This practice is based on Section 200 of the Criminal Procedure Code (CPC) when dealing with criminal trials, the origin of the matter herein being anticipated criminal trial.
19.
Under the de novo principle, once a judicial officer trying a matter ceases to exercise jurisdiction over a matter during pendency of trial, through transfer or other circumstances, his successor in jurisdiction gives the parties right to elect how to proceed. Either to proceed from where the hearing had reached or start de novo.
20.
A Judicial officer who hears the case is the one preferred to decide on it, unless parties elect otherwise, so that the accused is not prejudiced by having a successor in jurisdiction, who never had the opportunity to appreciate the evidence of witnesses by observing their demeanor, credibility, emotions and the like, deciding based on record, where such aspects of evidence may not be recorded in a detailed manner as required under section 199 CPC. See Indian Supreme Court case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638.In this case, de novo hearing was viewed as one of the cardinal principles of Criminal trials guarding the rights of an accused person so that his case should be decided by the judicial officer who heard it.
21.
In Abdi Adan Mohamed v Republic [2017] eKLR, the Court of Appeal opined that Section 200 entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution, and it applies to the High Court also in addition to Magistrates courts.
22.
Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial. This was held in Indian Supreme Court case of Ajay Kumar Ghoshal etc. Vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 Of 2017
“
A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.
23.
Also, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, it was held,
“
A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.”
24.
The applicants fault this Court for rendering its judgment after return of Ojwang SCJ without setting aside the consent orders for de novo hearing the parties had recorded which allowed them to file a supplementary record to include in the Courts record the Magistrates courts record. We note that during hearing of the appeal before the five judge bench, the applicant’s counsel was specifically asked why he had not availed the Magistrates Court record despite orders from the Registrar directing that and his reasons was that the court file was not available
25.
The applicants’ complaint against the Court’s decision is that it turned on the very same documents they intended to avail through a supplementary Record. They aver that if they had been allowed to avail them as per the consent order, the Court would have been afforded an opportunity to consider their contents and maybe arrive at a different decision. This line of argument we understand the Applicants to mean the supplementary record was intended to mend a crucial gap they noted during the hearing to be a likely tipping point of the case if it were to be decided on the strength of the concluded hearing awaiting judgement.
26.
Introduction of new evidence after hearing is concluded is against the principles of de novo hearing whether it is ordered in review or in revision jurisdiction of a court. It mutes the trial continuation intention signaling a second trial. We are alive to the fact that in some instances additional evidence may be tendered but in very exceptional circumstances. We have to make it clear that we are, in this case, addressing a plea for de novo hearing after all parties have been heard and closed their case awaiting judgement, and after entry of judgment as opposed to when a hearing is ongoing before closure of defence case.
27.
This is because unless hearing is concluded and judgment reserved, new evidence can be availed in course of a criminal trial, as long as the defence is afforded time to defend their case as we stated in Hussein Khalid& 16 Others vs The Attorney General & 2 Others, SC Petition 21 of 2018;
“
(92)
…the 2nd and 3rd Respondents are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence (See George Taitumu v Chief Magistrates Court, Kibera & 2 others [2014] eKLR).”
28.
Our jurisprudence resonates with this holding. The Court of Appeal in the case of Kiplagat Kotut v Rose Jebor Kipng’ok [2018] eKLR was asked to review its judgement where there occurred variance between the benched judges in the Coram and the judges signing the final judgement. In ordering rehearing the appeal afresh, it was observed that there was need to render substantial justice even though the error was inadvertence and could have been corrected easily by just having the right judges sign the judgment since they were all based in the same station. We just upheld this decision in Supreme Court Application No. 34 of 2019, Rose Jebor Kipng’ok vs Kiplagat Kotut.
29.
This was held to be one of the exceptional circumstances when a review power can be exercised in the residual jurisdiction of the court. This case is however, distinguishable from the one we are dealing with because one of the judges signing the judgment was the same, who with others heard the appeal, only that parties had agreed that the concluded hearing to be set aside when the status of the initial bench changed temporarily.
30.
Turning to the legal status of the consent as recorded in light of restoration of Ojwang SCJ to his office, we note that the jurisdictional basis of the consent as earlier stated was Section 200 of the CPC which seeks to secure the rights of parties in a trial once a Judicial Officer hearing a case ceases to exercise jurisdiction over the matter. Even though it is a Criminal Law principle it has been applied across the board in most of the hearings in furtherance of the constitutional right of fair hearing.
31.
Upon return of Ojwang SCJ to the original bench after he was cleared, his jurisdiction in the appeal was restored as before with lifting of suspension. He was the very same judge who sat in the hearing of the appeal, the very same judge who participated in the writing of the judgement, noting judgment had been reserved for delivery on notice. This meant that the notice would be issued once the bench which heard the matter was ready to deliver its judgment.
32.
His return to the bench, by operation of law under Section 200 CPC had the effect of nullifying/voiding the consent of the parties so entered. This is because his return signaled restoration of the status existing prior to the consent entered by the parties, meaning judgment would be delivered as earlier directed. The consent therefore crumbled and stood vacated by operation of law even without further order vacating it.
33.
This is buttressed by holding in the case of Nitinbhai Saevatilal (supra) where it was held in respect of parties’ consent affecting court’s jurisdiction;
“
It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law.”
34.
For these reasons we find that this application lacks merit and we make the following orders;
(a)
The Applicants’ application dated 1st November 2019 is hereby dismissed.
(b)
There is no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/30/eng@2020-09-04 |
Application 34 of 2019 | Kipngok v Kotut (Application 34 of 2019) [2020] KESC 26 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Kipngok v Kotut | [2020] KESC 26 (KLR) | null | The appellants were arrested on 14th May 2013 for participating in demonstrations outside parliament gates dubbed ‘occupy parliament’. The protest was against Members of Parliament’s actions meant to scrap the Salaries and Remuneration Commission (SRC) to facilitate inflation of their salaries.The procession started peacefully at the Uhuru Parks’ Freedom Corner with police escort, culminating to staging protests outside Parliament gates. They had with them pigs painted names of some members of Parliament and corruption of the initials of MP to ‘MPigs’.
6.
They were detained in the Parliament Police Station until 7 pm; informed of the reasons for arrest and possible charges to be preferred against them; released on police bond and were required to return on 17th May 2013 to the Police Station. On 20th May 2013, they were required to report at the Chief Magistrate’s Court in Milimani for arraignment.
7.
They requested for particulars to be availed before arraignment before the magistrate. They were each given a charge sheet containing three offences. According to them, the charges lacked sufficient detail to enable them to plead. They therefore objected to plea taking and demanded that the same awaits supply of evidence and better particulars. The court, however, overruled the objection and ordered them to take plea. They filed a Constitutional appeal against the ruling of the Magistrate Court in Nairobi High Court Petition No. 324 of 2013. In their grounds of appeal, they challenged the manner of their arrest, detention, charge, arraignment and plea taking and the charge as unconstitutional.
8.
The petition was dismissed as unmerited by Lenaola J (as he then was). They appealed to the Court of Appeal in Civil Appeal No. 1 of 2015, on grounds of improper exercise of discretion, ignoring and or misapprehending the evidence on record, concluding that the trial had not commenced and failing to determine their rights under Article 24 of the Constitution. The Court of Appeal similarly dismissed the appeal as unmerited.
9
In the directions before the Deputy Registrar of this Court, parties were directed to file and exchange submissions. The applicants complied but none of the respondents has complied. On 12th August 2020 the 1st Respondent’s counsel gave an undertaking to file their submissions by 17th August, 2020 which was not honoured. The application thus proceeds as unopposed. | We have considered the application and the applicants’ submissions. The only issue for determination is;Whether the order s of review sought can issue in this case.
15.
This Court has previously pronounced itself on the jurisdiction to review its decisions in the Outa case (Supra) where it stated the principles on review of a court’s own decisions when;
(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’.
16.
This decision was arrived at after review of various Supreme Court decisions from different countries. The salient points were that the power of review is exercised sparingly because a trial has several implications once a judgment is delivered; litigation must come to an end; there is need for finality in court decisions; the Court is functus officio after delivery of decision sought to be reviewed; and that review should not substantially alter the decision sought to be reviewed. The review window is to be exercised sparing and only deserving cases have to be allowed. See Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, SC Application 8 of 2017.
17.
In the words of the Nigerian Supreme Court in the case of Citec International Estate Ltd. & Others v. Francis & Others (2014) LPELR-22314 (SC); that was cited in the Outa case,
“
An application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome…”
18.
During the hearing of the appeal, each party present submitted before the Court on the salient points of their respective cases and judgment was reserved to be delivered on notice. After Ojwang SCJ was suspended, the directions taken afforded the parties liberty on the way forward. The applicants sought for re-hearing of the appeal de novo as is the practice concerning part-heard trials in this country. This practice is based on Section 200 of the Criminal Procedure Code (CPC) when dealing with criminal trials, the origin of the matter herein being anticipated criminal trial.
19.
Under the de novo principle, once a judicial officer trying a matter ceases to exercise jurisdiction over a matter during pendency of trial, through transfer or other circumstances, his successor in jurisdiction gives the parties right to elect how to proceed. Either to proceed from where the hearing had reached or start de novo.
20.
A Judicial officer who hears the case is the one preferred to decide on it, unless parties elect otherwise, so that the accused is not prejudiced by having a successor in jurisdiction, who never had the opportunity to appreciate the evidence of witnesses by observing their demeanor, credibility, emotions and the like, deciding based on record, where such aspects of evidence may not be recorded in a detailed manner as required under section 199 CPC. See Indian Supreme Court case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638.In this case, de novo hearing was viewed as one of the cardinal principles of Criminal trials guarding the rights of an accused person so that his case should be decided by the judicial officer who heard it.
21.
In Abdi Adan Mohamed v Republic [2017] eKLR, the Court of Appeal opined that Section 200 entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution, and it applies to the High Court also in addition to Magistrates courts.
22.
Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial. This was held in Indian Supreme Court case of Ajay Kumar Ghoshal etc. Vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 Of 2017
“
A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.
23.
Also, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, it was held,
“
A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.”
24.
The applicants fault this Court for rendering its judgment after return of Ojwang SCJ without setting aside the consent orders for de novo hearing the parties had recorded which allowed them to file a supplementary record to include in the Courts record the Magistrates courts record. We note that during hearing of the appeal before the five judge bench, the applicant’s counsel was specifically asked why he had not availed the Magistrates Court record despite orders from the Registrar directing that and his reasons was that the court file was not available
25.
The applicants’ complaint against the Court’s decision is that it turned on the very same documents they intended to avail through a supplementary Record. They aver that if they had been allowed to avail them as per the consent order, the Court would have been afforded an opportunity to consider their contents and maybe arrive at a different decision. This line of argument we understand the Applicants to mean the supplementary record was intended to mend a crucial gap they noted during the hearing to be a likely tipping point of the case if it were to be decided on the strength of the concluded hearing awaiting judgement.
26.
Introduction of new evidence after hearing is concluded is against the principles of de novo hearing whether it is ordered in review or in revision jurisdiction of a court. It mutes the trial continuation intention signaling a second trial. We are alive to the fact that in some instances additional evidence may be tendered but in very exceptional circumstances. We have to make it clear that we are, in this case, addressing a plea for de novo hearing after all parties have been heard and closed their case awaiting judgement, and after entry of judgment as opposed to when a hearing is ongoing before closure of defence case.
27.
This is because unless hearing is concluded and judgment reserved, new evidence can be availed in course of a criminal trial, as long as the defence is afforded time to defend their case as we stated in Hussein Khalid& 16 Others vs The Attorney General & 2 Others, SC Petition 21 of 2018;
“
(92)
…the 2nd and 3rd Respondents are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence (See George Taitumu v Chief Magistrates Court, Kibera & 2 others [2014] eKLR).”
28.
Our jurisprudence resonates with this holding. The Court of Appeal in the case of Kiplagat Kotut v Rose Jebor Kipng’ok [2018] eKLR was asked to review its judgement where there occurred variance between the benched judges in the Coram and the judges signing the final judgement. In ordering rehearing the appeal afresh, it was observed that there was need to render substantial justice even though the error was inadvertence and could have been corrected easily by just having the right judges sign the judgment since they were all based in the same station. We just upheld this decision in Supreme Court Application No. 34 of 2019, Rose Jebor Kipng’ok vs Kiplagat Kotut.
29.
This was held to be one of the exceptional circumstances when a review power can be exercised in the residual jurisdiction of the court. This case is however, distinguishable from the one we are dealing with because one of the judges signing the judgment was the same, who with others heard the appeal, only that parties had agreed that the concluded hearing to be set aside when the status of the initial bench changed temporarily.
30.
Turning to the legal status of the consent as recorded in light of restoration of Ojwang SCJ to his office, we note that the jurisdictional basis of the consent as earlier stated was Section 200 of the CPC which seeks to secure the rights of parties in a trial once a Judicial Officer hearing a case ceases to exercise jurisdiction over the matter. Even though it is a Criminal Law principle it has been applied across the board in most of the hearings in furtherance of the constitutional right of fair hearing.
31.
Upon return of Ojwang SCJ to the original bench after he was cleared, his jurisdiction in the appeal was restored as before with lifting of suspension. He was the very same judge who sat in the hearing of the appeal, the very same judge who participated in the writing of the judgement, noting judgment had been reserved for delivery on notice. This meant that the notice would be issued once the bench which heard the matter was ready to deliver its judgment.
32.
His return to the bench, by operation of law under Section 200 CPC had the effect of nullifying/voiding the consent of the parties so entered. This is because his return signaled restoration of the status existing prior to the consent entered by the parties, meaning judgment would be delivered as earlier directed. The consent therefore crumbled and stood vacated by operation of law even without further order vacating it.
33.
This is buttressed by holding in the case of Nitinbhai Saevatilal (supra) where it was held in respect of parties’ consent affecting court’s jurisdiction;
“
It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law.”
34.
For these reasons we find that this application lacks merit and we make the following orders;
(a)
The Applicants’ application dated 1st November 2019 is hereby dismissed.
(b)
There is no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/26/eng@2020-09-04 |
Application 24 of 2019 | Langata Development Co Ltd v Dames & another (Application 24 of 2019) [2020] KESC 31 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 17 April 2024 | 2,020 | Nairobi | Civil | Langata Development Co Ltd v Dames & another | [2020] KESC 31 (KLR) | null | Upon perusing the Notice of Motion dated 31st July 2019 by Langáta Development Company Limited pursuant to articles 163(4)(b), 159, and 40 of the Constitution of Kenya, 2010. Section 15 of the Supreme Court Act, 2011, regulation 24 26 and 53 of the Supreme Court Regulations, 2012, where they seek leave to have the Notice of Appeal lodged be deemed to have been lodged within time, as well as, certification as a matter of general public importance in respect of an anticipated appeal arising from the judgment of the Court of Appeal delivered on the 26th of February 2019; and | Upon considering the Respondent’s Grounds of Opposition and their Replying Affidavits filed on the 3rd of March 2019 together with written submissions, where they argue that the Supreme Court does not have jurisdiction to review the decision of the Court of Appeal; that there is no Notice of Appeal on record and in the absence of one, the Application before the Court is incompetent, incurably defective and ought to be struck out; that the issues in the intended appeal do not transcend the private interest of the Applicant who allegedly illegally grabbed the Respondents land, and that third parties are at liberty to purchase their respective plots form the estate of the Respondent on a willing seller-willing buyer basis; andHaving considered the Application, and noting that the Applicant has not satisfactorily explained the inordinate delay to warrant exercise of this Court’s discretion to enlarge time, we do decline to allow the application for leave to file a Notice of Appeal.
6.
Having reached this conclusion then, the application for certification has no legs to stand on and we do not find it necessary to consider it.
7.
For reasons aforesaid, we now make the following orders:
i.
The Notice of Motion dated 31st July 2019 is disallowed.
ii.
The Applicant shall bear the costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/31/eng@2020-09-04 |
Petition 15 of 2019 | Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others (Petition 15 of 2019) [2020] KESC 25 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu | 4 September 2020 | 2,020 | Nairobi | Civil | Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others | [2020] KESC 25 (KLR) | null | The genesis of this matter is a Petition No. 203 of 2016 filed by Appellant at the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi, where he sought several declarations that; actions of the respondent were in violation of Articles 10 and 27 of the Constitution of Kenya; the actions of the respondents to be in violation of Section 6B(10)(c) of the Kenya Information and Communication Act; Gazette Notice No. 1267 dated 27th February and published on 26th February, 2016 to be invalid and an order of certiorari be issued to quash the said notice; Gazette Notice No. 3152 dated 29th April, and published on 4th May 2016 to be invalid and an order of certiorari to be issued to quash it; an order of mandamus be issued directing the respondents to comply with the gender requirements and ensure that at least 4 out of the 12 appointees to the Board of the Communications Authority of Kenya were of opposite gender; that costs be granted and the court be at liberty to grant any orders or relief as may be just and expedient. | It is trite law that a jurisdiction challenge whenever raised has to be determined in limine as it goes to the core of the case for where a court finds that it has no jurisdiction, it cannot make a further step.In the present matter, the Appellant urges that this appeal is premised on Article 163(4) (a) of the Constitution and raises issues that revolve around its interpretation and application. Particularly, he urges that this Court should be persuaded and adopt the South African Constitutional Court jurisprudence cited above that constitutional matters must include disputes as to whether any law or conduct is inconsistent with the constitution as well as issues concerning the status, powers and functions of an organ state.
23.
Conversely, the 2nd to 9th Respondents argue that the present case does not meet the jurisdiction threshold of this court, and cannot be entertained.
24.
This Court has had the occasion to define the delineations of its jurisdiction under Article 163(4)(a) of the Constitution in a number of its decisions which decisions are still applicable. In Samuel Kamau Macharia and Another v. Kenya Commercial Bank and 2 Others, [2012] eKLR; Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another [2012] eKLR; Peter Oduor Ngoge v. Francis Ole Kaparo & 5 Others [2012] eKLR; Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR;
Evans Odhiambo Kidero & 4 Others v. Ferdinand Ndung’u Waititu & 4 Others [2014] eKLR; Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others [2013] eKLR (Joho) among others it has been our position that in order to determine whether this Appeal is proper before us therefore, we must confirm that the issues of Constitutional interpretation and application being raised before us have risen through the normal appellate mechanism so as to reach us.
25.
Further that, under Article 163(4)(a), a matter is not sustainable unless it is demonstrated that it raises cogent issues of constitutional controversy. The Appellant must be faulting the Court of Appeal’s interpretation or application of the Constitution that informed the impugned Judgment. General references to Constitutional Provisions are not enough to bring an appeal within the ambit of Article 164 (3) (a), if such provisions were not a basis of contestation at the Appellate Court.
26.
In the present appeal, it is difficult to see how the matter meets the threshold for admission under Article 163(4)(a) of the Constitution. While the case had its genesis at the High Court constitutional division, the Appellant did not seek appeal against the pronouncement of the court on the issues raised but instead sought review of the decision of that court. It was the decision to decline the application for review that was subject matter before the two subsequent superior courts, which decision aggrieved the appellant who then sought further redress at this Court. At no point did the Appellant invoke the two superior courts appellate jurisdiction. Further, in coming to their decisions, the two courts did not defer to the interpretation and application of the Constitution.
27.
In that light, to allow the Appellant ignore the normal hierarchy of courts in the determination of issues would amount to abuse of the process of Court. We consequently lack jurisdiction to entertain this appeal.
28.
As to costs, this Court has previously settled the law on award of costs, that costs follow the event, and that, a Judge has the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. We note that in this matter, both the trial court, and appellant court accepted that the Appellant was motivated by public interest in moving the courts. In that light, they ordered that parties ought to bear their own costs. We are however disinclined to do the same. In the matter of Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others, SC Application No. 32 of 2018; [2019] eKLR
“
[Paragraph 48], this Court stated as follows:
“We find it necessary to address issue of costs. While we agree with the Applicant that where a private citizen sues a government entity in a matter of great constitutional moment or of great public importance, the Applicant should, as a general rule, not be condemned to pay costs, we note however that all Respondents have expended their finances in defending this Application. The Application was in any event never certified as one of public interest to attract the sympathy of the Court as a matter of general public importance. The Applicant, by instituting proceedings in a process which is basically about the tender for printing of new currencies, ought to have anticipated the consequences of his actions including costs. We, in the event, order that the Applicant should bear the costs of all Respondents.”
29.
We make a similar finding in this matter regarding costs, in view of the fact that this matter was not certified as being one one of public interest, sufficient to attract the sympathy of the Court as a matter of general public importance, and reiterate that the Applicant, when instituting proceedings, ought to have anticipated the consequences of his actions including costs.
5.Orders
30.
Consequent upon our findings above, the final orders are that:
Preliminary Objection by the Respondents dated 19th June, 2019 be and is hereby upheld.
1.
The Petition of Appeal dated 18th of April, 2019 be and is hereby dismissed.
2.
The costs of all Respondents shall be borne by the Applicant. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/25/eng@2020-09-04 |
Civil Application 14 of 2020 | Olotch v Pan Africa Insurance Co Limited (Civil Application 14 of 2020) [2020] KESC 16 (KLR) (Civ) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Olotch v Pan Africa Insurance Co Limited | [2020] KESC 16 (KLR) | null | Upon perusing the Notice of Motion by the Applicant dated 29th June 2020 and filed on 30th June 2020, which application is brought pursuant to the provisions of Section 23(2)(b) of the Supreme Court Act, 2012 and Rules 15(2) and 31 of the Supreme Court Rules, 2020 and in which the Applicant seeks enlargement of time to file an application for review of the Ruling of the Court of Appeal (Ouko (P), Koome & Murgor, JJA) in Civil Application No. SUPP 15 of 2019 dated 22nd May 2020; and | Upon considering the written submissions on record for the Applicant and the Respondent dated 29th June 2020 and 14th July 2020, respectively, wherein the Applicant contends that the delay in filing the application for review to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, including restrictions on travel imposed by the Government and coupled with the challenges in accessing reliable internet; and The Respondent in opposing the application submits that the explanation advanced by the Applicant is not plausible; that the reasons for the delay are not satisfactory, and, that the application lacks merit, is an abuse of the processes of this Court and does not disclose any substantial grounds for the Court to exercise its discretion; andHaving considered the application, the Grounds of Opposition and the submissions filed by the respective parties, by a unanimous decision of this Bench, we find that;
(a)
This Court has the jurisdiction to consider and allow an application for leave to extend time as settled in Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR and as pronounced under Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b)
That the application by the Applicant dated 29th June 2020 and filed on 30th June 2020 satisfies the principles set out by this Court in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Mutanga Tea & Coffee Limited v. Shikara Limited & another SC Application No. 19 of 2016, Base Titanium Limited v. County Government of Mombasa & another SC Petition (App). No. 22 of 2018 and Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR on extension of time;
(c)
We thus find that the Applicant has a reasonable and cogent explanation and adduced sufficient reasons for the inadvertent delay in filing his application for review of the Court of Appeal decision on certification in Civil Application No. SUPP 15 of 2019;
(d)
The Respondent has not shown what prejudice shall be occasioned upon him if the Applicant’s application is allowed, in the instance.
(5)
In the circumstances, we now make Orders as follows;
(a)
The Notice of Motion by the Applicant dated 29th June 2020 and filed on 30th June 2020 is hereby allowed;
(b)
The draft Originating Motion marked as “WO-4” annexed in the supporting affidavit of the Applicant is hereby allowed and deemed as duly filed and shall be served upon the Respondent within 14 days of this Ruling;
(c)
The Respondent shall file and serve its response to the Originating Motion within 14 days of service;
(d)
The Deputy Registrar shall issue any and further directions as may be deemed necessary in the circumstances;
(e)
Each party shall bear its own costs.
(6)
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/16/eng@2020-09-04 |
Civil Application 2 of 2020 | Saisi v Director of Public Prosecutions & 2 others (Civil Application 2 of 2020) [2020] KESC 24 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Saisi v Director of Public Prosecutions & 2 others | [2020] KESC 24 (KLR) | null | This Application is dated 5th February 2020 and is premised on Articles 23(3), 25(a)(c), 27(1)(2), 28, 29(a)(d), 50, 157(b), (11), 159, 163(3)(b)(i) and 4(a) as well as 259 of the Constitution, Sections 15(2), 21(2) and 24(1) of the Supreme Court Act, 2011 as well as Rules 2, 23 and 26 of the Supreme Court Rules 2012.The Applicant prays that, pending the hearing of Petition No.39 of 2019, a conservatory order be granted staying the execution of the Judgment and decision of the Court of Appeal (Warsame, Makhandia and Murgor JJA) in Civil Appeal No.2 of 2017 as consolidated with Civil Appeal No.184 of 2016.
(3)
The twin appeals before the Court of Appeal originated from a Judgment delivered on 19th April 2016 by Odunga J in Miscellaneous Civil Application No.502 of 2015, Republic v. Director of Public Prosecutions & 2 Others Ex-Parte Praxidis Namoni Saisi. In that matter, the Applicant had prayed for inter alia orders of certiorari to quash the decision of the 2nd Respondent to charge her with certain anti-corruption offences arising from tender No.REF.GDC/HSQ/086/201 r-12 awarded to Bonafide Clearing and Forwarding Company Limited. She was a member of the Tender Committee of the Geothermal Development Company at all material times hence her connection with the tender aforesaid.
(4)
While Odunga J allowed the Applicant’s application in its entirety, the said decision was overturned by the Court of Appeal hence the present appeal. We have separately rendered ourselves on our jurisdiction to determine the appeal (See Ruling on a Preliminary Objection within Petition No.39 of 2019 delivered simultaneously with this Ruling). | As agreed by the parties, in Gatirau Peter Munya, we stated that a party seeking stay orders must address the following issues:Whether the appeal or the intended appeal is arguable and not frivolous;
ii)
That unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed will be rendered nugatory;
iii)
That it is the public interest that the order of the stay be granted.
(11)
The same principles have been applied in many other cases including Board of Governors, Moi High School Kabarak as well as Nathif Jama Adam. As regards the present application, we have taken into account the submissions by the parties in reaching our decision and more importantly we note that the Applicant’s appeal is related to, and connected with Petition No. 40 of 2019, Dr. Peter Ajodo Omanda & 6 Others v. Ethics and Anti-Corruption Commission & 2 Others as well as Application No.31 of 2019. In the said Application, the Applicants, who are all co-accused with the Applicant in the criminal case leading to the present Appeal, sought stay orders for reasons much the same as the Applicant’s. The Respondents in that Application are the same Respondents as in the present matter and opposed Application No.31 of 2019 on the same grounds as in the present application.
(12)
In a Ruling delivered on 30th April 2020, this Court stated thus:
“
(9)
Do the Applicants satisfy the criteria for stay? This Court has authority to issue Orders for the preservation, in an interim period, of a subject-matter of appeal (See Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, Supreme Court Applications Nos. 12 & 13 of 2012). It is not automatic that for any unopposed application, the Court will as a matter of cause grant the orders sought. It behoves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted (see Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 Others Civil Application No.26 of 2018 [2018] eKLR). The Applicants’ assertion is that the effect of the decision by the Court of Appeal is that they will be subjected to a criminal trial, a situation that will violate their constitutional rights to fair trial and equal benefits and protection of the law as more particularly set out in the petition of appeal.
(10)
We therefore find that the Applicants have demonstrated an arguable case which would be rendered nugatory in the absence of our intervention by way of granting the orders sought. We shall not at this juncture delve into the merits of the Applicants’ arguments as they will be addressed in the appeal itself”.
(13)
Without saying more, we adopt our reasoning in that Ruling as properly applicable to the present related application and will therefore find that, the Applicant has made out a case for grant of orders of stay of execution as prayed, until her Appeal is heard and determined.
(14)
What of costs? This Court has previously settled the law on award of costs, that costs follow the event, and that, a Judge has the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. This case remains the binding law on costs and in our view, each party should bear its costs of the present application.
D. Orders
(15)
Consequently, and upon our findings above, the final orders are that:
a)
The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJA] in Civil Appeal No.313 of 2017 delivered on 20th September 2019 be and is hereby stayed pending the hearing and determination of the appeal.
b)
Each party shall bear its costs of the Application.
c)
Petitions Nos. 39 and 40 of 2020 are hereby consolidated and upon Directions being taken before the Deputy Registrar, the same to be heard and determined expeditiously.
(16)
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/24/eng@2020-09-04 |
Petition 39 of 2019 | Saisi v Director of Public Prosecutions & 2 others (Petition 39 of 2019) [2020] KESC 18 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Saisi v Director of Public Prosecutions & 2 others | [2020] KESC 18 (KLR) | null | This Ruling arises from a Preliminary Objection raised by the 1st Respondent against the Petitioner’s appeal filed on 25th October 2019. The appeal challenges the Judgment of the Court of Appeal at Nairobi (Warsame, Makhandia & Murgor, JJA) of 20th September, 2019 allowing Civil Appeal No. 2 of 2016 as consolidated with Civil Appeal No. 184 of 2016 which set aside the Judgment of the High Court (Odunga J) in Miscellaneous Judicial Review Application No. 502 of 2015 delivered on 19th April, 2016. | The Preliminary Objection before us raises one issue for determination by this Court that is, whether the appeal raises any issue involving the interpretation or application of the Constitution, as contemplated under Article 163(4)(a) of the Constitution.The basis of the 1st Respondent’s preliminary objection is that the appeal raises no constitutional issues hence, fails to qualify as an appeal as of right to invoke this Court’s jurisdiction, a position the 2nd Respondent concurs with. On the contrary, the Petitioner urges that the Appeal is premised upon Article 163(4) (a) of the Constitution and entirely raises issues involving the application and interpretation of the Constitution. Further, that the same challenges violation of Articles 10, 22, 23, 27, 28, 29, 41, 50, 157 and 165 of the Constitution together with applicable statutory provisions.
21)
This Court has previously set the guiding principles for bringing an appeal before it under Article 163 (4) (a) of the Constitution in Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others, S.C. Petition No. 2B of 2014; [2014] eKLR [Munya 2] inter alia as follows:
i.
a Court’s jurisdiction is regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
ii.
the chain of Courts in the constitutional set-up have the professional competence to adjudicate upon disputes coming up before them, and only cardinal issues of law or jurisprudential moment, deserve the further input of the Supreme Court;
iii.
the lower Court’s determination of the issue on appeal must have taken a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
iv.
an appeal within the ambit of Article 163(4)(a) is to be one founded on cogent issues of constitutional controversy;
22)
Further, in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd. & Another, Supreme Court Petition No. 3 of 2012; [2012] eKLR (Lawrence Nduttu Case), this Court held that mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of Article 163(4)(a) of the Constitution. It was specifically stated as follows:
“
(27)
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 and/or application of the Constitution can be entertained by the Supreme Court.”
23)
In Peninah Nadako Kiliswa v. Independent Electoral & Boundaries Commission (IEBC) & 2 others, Petition No. 28 of 2013; [2015] eKLR, this Court found that even in matters originating as judicial review, the issues have to fall under the canopy of Article 163 (4)(a). The Court then proceeded to set guiding principles which a party must comply with in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review. It was stated thus:
“
(33)
It follows that for an appeal to lie to this Court, in a matter originated under judicial review, the issues have to fall under the canopy of Article 163(4)(a). As judicial review is concerned with process, but for a case where the process is contested as being unlawful, irrational or procedurally unfair – elements falling within the purview of the rule of law (a constitutional principle) – the matter cannot lie to the Supreme Court. Hence in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review, the party concerned should comply with certain principles, as follows:
i.
not all Judicial Review matters are appealable to the Supreme Court, as of right;
ii.
it is open to the party concerned to move the Court on appeal under Article 163(4)(b) of the Constitution, in which case, the normal certification process applies;
iii.
where such an appeal comes under Article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
iv.
the party concerned should demonstrate that the superior Courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.”
24)
We have set out the law above in detail for emphasis but more importantly, we have taken note of a prior Ruling of this Court that is connected with the present matter. The same is dated 30th April 2020 in Petition No.40 of 2019 – Dr. Peter Odoyo Omenda & 6 Others v. Ethics & Anti-Corruption Commission & 2 Others.
25)
The Applicants in that matter were, together with the present Petitioner, the original Joint Applicants in Miscellaneous Judicial Review Application No.502 of 2015 and later the Joint Respondents in Civil Appeal No.313 of 2017 whose Judgment is now before us in two separate appeals – Petitions Nos.39 and 40 of 2019.
26)
As regards the jurisdiction of this Court to determine the issues raised in Petition No.40 of 2019 and which are not different from those raised by the present Petitioner, we rendered ourselves as follows (in a Ruling delivered on 30th April 2020 based on a Preliminary objection by the Respondents):
“
(16)
The summation of the above position is that we are persuaded, without going to the merits of the case, that the appeal raises constitutional issues that were originated from the High Court at the first instance. We therefore affirm that we have jurisdiction to entertain the appeal as filed and that the same should be heard on merit. Consequently, the preliminary objection dated 3rd December 2019 lacks merit and is disallowed. The costs of the objection will abide the outcome of the appeal.”
27)
Having considered the present Application and the objection to our jurisdiction, and noting the issues canvassed in Petition No.40 of 2019 leading to the Ruling aforesaid, we see no reason to depart from our findings and would therefore agree that we have the jurisdiction to determine the present Appeal in its unique circumstances.
28)
In the event the Preliminary Objection by the 1st Respondent must be overruled and as regards costs, we deem it appropriate that each party should bear its costs of the objection.
F. Disposition
29)
Having therefore found that the Preliminary Objection is without merit, the final orders to be made are that:
i)
The Preliminary Objection filed on 29th October 2019 is hereby overruled.
ii)
Each Party shall bear its costs of the Objection.
30)
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/18/eng@2020-09-04 |
Application 11 of 2020 | Thika Coffee Mills v Rwama Farmers Co-operative Society Limited (Application 11 of 2020) [2020] KESC 17 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | Thika Coffee Mills v Rwama Farmers Co-operative Society Limited | [2020] KESC 17 (KLR) | null | By an Originating Motion application dated 21st May 2020, the applicant seeks the following prayers: -a)
That this application be certified as urgent and heard ex parte in the first instance;
b)
That this Court extend time for filing of this application, having been filed 6 days beyond the 14 days, from the date of delivery of Court of Appeal ruling, stipulated under the Supreme Court Rules, 2020.
c)
That this Court do certify this matter as of utmost public importance under Section (sic) 163(4)(b) of the Constitution on the basis that a matter or matters of general public importance is /are involved in the intended appeal to the Supreme Court against the judgement and orders of 12th October 2018, by the Court of Appeal (Makhandia, Kiage & M’Inoti, JJ.A) in Civil Appeal No.251 of 2013.
d)
That upon grant of such leave and subsequent successful review, this Honourable Court be pleased to set aside the ruling of the Court of Appeal (Makhandia, Kiage & M’Inoti, JJ.A) delivered on the 24th April 2020 in Nairobi Court of Appeal Civil Application Number 389 of 2018 and substitute therefore with an order allowing the Notice of Motion dated 24th of December 2018.
e)
That consequently, the applicant be granted leave to appeal to the Supreme Court against the judgement and orders of the Court of Appeal of (Makhandia, Kiage & M’Inoti, JJ.A) delivered on the 12th October 2018.
f)
That costs be in the cause.
2.
The application is based on the grounds on the face of the application and supported by affidavits of Prof. Tom Ojienda SC, Advocate, and Pius Ngugi. The grounds are:
a)
That the judgment of the Court of Appeal is wrong, erroneous and against the law under the relevant Statutes and Constitution of Kenya 2010.
b)
That by this application, the applicant’s inquiry which it seeks to have determined at the Supreme Court is whether the Arbitrator’s award is insulated from inquiry even where in the facts proved before the arbitrator he fails to draw an inference which he ought to have drawn, or where he has drawn an inference which is on the face of it, untenable, resulting in miscarriage of justice.
c)
That the Applicant is not advocating for widening of the scope for Court’s intervention and review of awards made in Kenya which would make Kenya unattractive as a seat of arbitration and violate Kenya’s international obligations under the Convention on the Recognition and Enforcement of Foreign Arbitration Awards, 1958 (the New York Convention), among others, for which Kenya is a party.
d)
That the application has been filed six days past the fourteen days limitation period from the date of delivery of the ruling of the Court of Appeal for the following reasons;
i.
Due to Covid 19, the course listing challenges created a confusion as to when the ruling by the Court of Appeal would be delivered, thus the ruling came to the Applicant’s attention way after it was delivered occasioning delays in issuing instructions to apply for this review;
ii.
The applicant’s authorized signatory had been locked out of Nairobi by the movement restrictions and was not available to depone the affidavit until a transit permit was obtained from the relevant government department to enable him travel from Nyeri to hisCounsel’s office at Nairobi.
e)
That the applicant prays that a certificate under section 163(4)(b) of the Constitution does issue on the basis that matters of general public importance are involved in the intended appeal to the Supreme Court against the judgement and orders of the Court of Appeal;
f)
That the Court of Appeal in its ruling dismissed the majority of the questions intended to be placed before Supreme Court because it rendered them those which should not rise to the Supreme Court;
g)
That the main question as to whether the Arbitrator’s award is insulated from inquiry even where in the facts proved before the arbitrator he fails to draw an inference which he ought to have drawn, or where he has drawn an inference which is on the face of it, untenable, resulting in miscarriage of justice was mischaracterized into a narrow jurisdictional question to which law is settled.
h)
That courts in India and elsewhere have made a distinction on circumstances in which a court of law may delve into the merit of an arbitral award.
i)
That the matter sought to be certified arose from determination of the Court of Appeal in the case and not out of the argument or discussions at the hearing.
j)
The applicant is challenging the interpretation of Article 159 and Sections 35 and 37 of the Arbitration Act which the court of appeal used to dispose of the matter in that forum.
k)
That the intended appeal is necessary as a substantial miscarriage of justice might have occurred or may occur unless the said appeal is heard the judgment in the Court of Appeal will not only gravely affect the applicant but could result to the collapse of the coffee farmers and coffee co-operative societies.
3.
In effect, the applicant seeks leave to file the application out of time and to review of the refusal to grant certification by the Court of Appeal. | On perusing the record, we noted that the respondent, further to its submissions presented a document titled “Respondent’s Further Submissions and Clarification” dated 24th June 2020 ostensibly in response to the applicant’s supplementary submissions. This is much to the chagrin of the applicant who on its part authored, through its Advocates on record, a letter dated 26th June 2020 to this Court’s Honourable Deputy Registrar urging that the document be purged from the record as it is filed without any basis under this Court’s Rules.As the letter has been placed in the record before us, we move to address the same at this juncture before delving into the issues as framed for determination.
We are mindful of this Court’s Rules and whether the applicant had written the letter or not, we see no basis to consider the said document. The record before us is on the basis of documents filed regularly within the Rules ending with the applicant’s supplementary submissions. This is what we have considered for their full tenor and effect. The respondent need not be apprehensive and in the process cast aspersions on the Court’s ability to comprehend the record before it as to require clarification from the respondent or its counsel. We need not belabor this and leave it at that.
i) Extension of time
14.
On the first issue, it is common ground that the application for review of certification such as this one before us ought to be filed within fourteen days under this Court’s Rules. It is also not in contention that the ruling on certification was made on 24th April 2020 and that this application was filed on 21st May 2020. The respondent does not appear to object to this prayer as they have not addressed it in their submissions. The delay by the applicant is attributed to the confusion that arose in the wake of the COVID-19 pandemic which occasioned challenges. Such challenges related to the mode of delivery of the rulings by the respective courts and the restriction in movements into and out of Nairobi City County which affected the deponent’s ability to travel from Nyeri to the applicant’s Counsel’s office in Nairobi. We are satisfied with the explanation given by the applicant and accordingly allow the prayer for extension of time as sought.
ii) Review of certification
15.
As for certification, we reiterate that the applicant has to demonstrate satisfactorily that there is, inter alia, a legal question the subject matter of which transcends the present litigants. From the record before us, we note that while the applicant had initially framed eleven questions to be certified as involving great public importance, and the applicant seeks the substitution of the Court of Appeal with the granting of prayers sought in the said application for certification as presented before the Court of Appeal, the Court of Appeal reduced them into three and collapsed them into one – that involving the jurisdiction of the High Court and Court of Appeal under section 35 of the Arbitration Act. The Court of Appeal’s reasoning was that those questions did not come through the Court hierarchy and were therefore not subject to decisions the basis upon which the intended appeal could lie.
16.
We have followed the decisions of the High Court and Court of Appeal and find no fault in the position adopted by the Court of Appeal in that respect. At no point did the High Court or the Court of Appeal consider the jurisdiction or statutory provisions relating to the Co-operative Tribunal. That issue was not the basis of the application filed by the applicant to set aside the award during the hearing, as noted by the High Court in its ruling, the applicant clarified that it was not seeking to appeal the decision of the arbitrator on its merit but rather to set it aside within the parameters of section 35 of the Arbitration Act.
17.
We do not also find merit in the applicant’s arguments that it could introduce arguments specific to certification at this stage devoid of any determinations made by the superior courts. Doing so as submitted by the applicant would amount to our exercising original jurisdiction on the matter as opposed to settling a matter certified as general public importance in an appellate capacity contemplated under Article 163(4)(b) of the Constitution.
18.
The applicant did not aggressively pursue the other questions framed before the Court of Appeal especially relating to the Co-operatives Tribunal or the applicable statutory provisions and instead focused on the power to set aside an Arbitration Award under section 35 of the Arbitration Act. However, if we understood the applicant correctly, its argument is that whereas the Nyutu Decision (supra) addressed itself to the right to appeal against an arbitral award under section 35 both to the High Court and to the Court of Appeal and the exercise of the Court’s jurisdiction under those provisions, the present application is distinguishable in that it seeks to interrogate the extent to which the Court must be able to interfere with the arbitrator’s award irrespective of the grounds set out in section 35 aforementioned.
19.
While we get the applicant’s distinction, we dealt with section 35 at length in the Nyutu Decision (supra). The applicant’s grievance, as we perceive it, largely revolves around the arbitrator having exceeded its mandate beyond the pleadings and the decision being contrary to public policy. These in our view are parameters well covered under section 35 and were in fact invoked by the applicant before the High Court at the first instance. The said provisions are reproduced are as follows:
35.
Application for setting aside arbitral award
(2)
An arbitral award may be set aside by the High Court only if—
(a)
the party making the application furnishes proof—
(iv)
the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside
(b)
the High Court finds that –
(ii)
the award is in conflict with the public policy of Kenya” (Emphasis ours)
20.
We note that the Court of Appeal stayed its decision until after the determination in the Nyutu Decision (supra) by this Court. Upon that determination, the Court of Appeal by majority decision, rightly so, admitted the appeal and considered the High Court’s decision on its merit reviewing the High Court’s findings on whether the arbitrator had gone beyond his scope and determined un-pleaded issues or whether there was any conflict with public policy.
21.
We infer that the applicant is aggrieved by the specific finding as it relates to its case. This is separate from a claim that there are no sufficient parameters for redress as to warrant a further articulation by this Court. To pursue the applicant’s argument as proposed would result in an extension of the scope of section 35 to include perceived wrong inferences of fact made by the arbitrator. This can only be best captured if the Arbitration Award were to be considered on its merits, by way of appeal including that contemplated under section 39 of the Arbitration Act and not by way of setting aside proceedings as presently invoked. The parameters of setting aside under section 35 are very specific and offer sufficient recourse to be resorted to by any party aggrieved by the arbitral award where the grievance meets the criteria. This is more so in the wake of our position in the Nyutu Decision (supra).
22.
It becomes critical for us to draw the line between the matter being one of general public importance and addressing a specific litigant’s disagreement with a decision of the Court, and in this case the Court of Appeal. We reiterate our caution in our judgment in Dhanjal Investments Limited v Kenindia Insurance Company Limited Sup Ct. Petition No.7 of 2016 thus:
(67)
Having so stated, we must at this point remind parties that it is only the issues that are certified as being of great public importance that must form the basis for submissions and ultimately the decision of this Court. To frame certain issues as being of great public importance at the point of certification under Article 163(4)(b) of the Constitution and then submit on issues that are specific to the parties at hand with no public element exhibited is an abuse of Court process and may lead to the dismissal of an appeal.”
We further add that each case is to be determined on its own merit. The present case does not merit the certification sought and we affirm the Court of Appeal position.
23.
In order to bring closure to these proceedings spanning over two decades and owing to our finding on certification, we see no reason to burden the applicant with meeting the costs of the respondent. Each party to bear its own costs.
24.
In the end we make the following Orders:
a)
The originating motion dated 21st May 2020 is hereby disallowed.
b)
Each party to bear its own costs relating to this application.
It is so ordered | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/17/eng@2020-09-04 |
Application 8 of 2020 | University of Eldoret & another v Sitienei & 3 others (Application 8 of 2020) [2020] KESC 76 (KLR) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Civil | University of Eldoret & another v Sitienei & 3 others | [2020] KESC 76 (KLR) | null | On 30th April 2020, we delivered a ruling on two applications brought by the parties to this matter. The first application filed on 23rd August 2019 by the applicants sought a stay of execution of the judgment and decree of the Court of Appeal at Nakuru delivered on 18th October 2018, the same judgment subject to the present intended appeal. The second application by the 1st and 2nd respondents (the respondents) sought the striking out of both the Notice and Record of this Appeal. The appeal subject to those applications was in respect of a ruling delivered by the Court of Appeal on 9th July 2019 in which the petitioners had sought to review the judgment made on 18th October 2018. In our ruling, we struck out the petition of appeal and dismissed the application for stay of execution. Other than the 1st and 2nd respondents, the other respondents, just like in those applications subject to the ruling on 30th April 2020, did not participate in the present applications.On 7th May 2020, the applicants were back before the Supreme Court. They filed a petition being Petition No. 6 of 2020 against the respondents. Contemporaneously, they filed a Notice of Motion application on the same date seeking in effect the following prayers:
a)
This matter be certified as urgent and service thereof be dispensed with in the first instance.
b)
This Honourable Court be pleased to grant an interim stay of execution of the judgment and decree of the Court of Appeal at Nakuru made on the 18th October 2018 in Civil Appeal No.55 of 2017 (as consolidated with Civil Appeal No.58 of 2017) and all proceedings, awards and orders consequential upon the said judgment including the decree emanating from the judgment delivered on 9th July 2019 by the Employment and Labour Relations Court in Nakuru Employment and Labour Relations Court Cases No.3 & 4 of 2019 pending inter partes hearing of this application and pending the hearing and determination of the Petition of Appeal filed herewith;
c)
This Honourable Court be pleased to grant leave to the applicants to file a Notice of Appeal and Petition out of time against the said decision of the Court of Appeal made on 18th October 2018;
d)
The Notice of Appeal lodged in the Court of Appeal at Nakuru on 6th May, 2020 and the Petition of Appeal dated 6th May, 2020 be deemed duly filed and to be properly on record;
e)
This Honourable Court be pleased to direct that the proceedings herein be heard by way of video conference or other appropriate technology pursuant to Rule 3(3) of the Supreme Court Rules 2020;
f)
The costs of the application be costs in the appeal.
3.
The application is supported by the affidavit of Stephen Anditi, the 1st applicant’s Legal Officer. The applicants’ advocate Eric Gumbo filed a Supplementary Affidavit dated 7th day of May 2020 in which he annexes the Petition of Appeal No.6 of 2020 filed together with the present application and the Court of Appeal judgment delivered on 18th October 2020, subject to the intended appeal. The applicants also filed written submissions in respect of the application.
4.
On 22nd May 2020, the applicants filed another application under certificate of urgency seeking the following prayers:
a)
The application herein be certified as urgent and service thereof be dispensed with in the first instance.
b)
This Honourable Court be pleased to order interim stay of any execution arising from or relating to the subject matter of the proceedings pending before this Honourable Court, being the Decree and Orders arising from the Judgment of the Court of Appeal at Nakuru delivered on 18th October 2018 in Civil Appeal No.55 of 2017 (as consolidated with Civil Appeal No.58 of 2017) pending the hearing and determination of the application dated 6th May, 2020;
c)
The Court be pleased to stay execution proceedings in the Employment and Labour Relations Nakuru ELRC Case No.3 and 4 of 2019, arising from the decision of the Court of Appeal in Civil Appeal No.55 and 58 of 2016, the subject of these proceedings, and in particular the attachment levied on the 1st Applicant’s Bank Account No.01021073342500 domiciled at National Bank of Kenya, Eldoret in the credit of the 1st applicant to answer to the Decree for the sum of Shs.38,903,116.60 (Decretal sums) as well as any execution of the 1st Applicant’s property in satisfaction of the Decretal sums pending the hearing and determination of the application dated 6th May 2020 pending the hearing and determination of the Petition of Appeal filed herewith;
d)
This Honourable Court be pleased to direct that the court file in Nakuru Employment and Labour Relations Court Case No.3 & 4 be transmitted to this Honourable Court for appropriate directions during the hearing of the application dated 6th May 2020.
This application is further supported by the affidavit of the said Stephen Anditi.
5.
The application is grounded on the main fact that while this Court is seized of the application dated 6th May 2020, the 1st and 2nd respondents initiated execution proceedings against the 1st applicant’s stated account and obtained a Decree Nisi for garnishment of the account in the sum of Shs.38,903,116.60 from the Employment and Labour relations Court at Nakuru which is the exact same subject matter of the application pending before this Court. The Employment and Labour Court had directed the Garnishee to appear in court on 2nd June 2020 to show cause why the Decree Nisi should not be made absolute.
6.
The applicants further stated that the effect of the execution is to freeze all monies in the 1st applicant’s bank account causing unnecessary hardship to the 1st applicant’s operations as it is unable to undertake any transactions in relation to the account. That unless this Court intervenes, public funds will be irrecoverably lost to the 1st and 2nd respondents and lead to undermining this Court’s judicial authority and integrity and it is necessary to preserve the substratum of both the application dated 6th May 2020, the substantive appeal and the directions made by this Court’s Honourable Deputy Registrar on 18th May 202 | Before delving into the merits of the matter, we note that these are no ordinary applications where we merely focus on the prayers sought and exercise our discretion. The present applications come on the backdrop of previous court process before us by the same applicants arising, yet again, from the same decision of the Court of Appeal made on 18th October 2018.Briefly, the 1st and 2nd respondents were the 1st applicant’s Finance Officer and Deputy Vice Chancellor, Finance and Administration respectively. In July 2015, they were suspended from duty pending investigations on allegations of involvement in the unrests at the 1st applicant at the time. They filed suit before the Employment and Labour Relations Court (ELRC) at Nakuru (No.8 of 2015) seeking to stop the intended investigations. On 6th November 2015, Radido J., declined to halt the investigations directing the 1st applicant to serve them with the investigation results before undertaking any disciplinary action against them. The 1st applicant instead commenced disciplinary proceedings prompting the respondents to separately file petitions (Nos. 1 and 2 of 2016) seeking similar reliefs. The ELRC did not interfere with the disciplinary process and the respondents were subsequently terminated from employment.
27.
Dissatisfied, the duo filed, at the ELRC, Petitions numbers 10 and 11 of 2016 challenging their termination for being unlawful, irregular and illegal, contending that it violated constitutional and statutory provisions and the orders of 6th November 2015. They also contended that as constituted, the University Council did not have the mandate to undertake disciplinary process and accordingly sought declaratory reliefs or in the alternative, compensation. The applicants opposed the petitions contending that they were res judicata; that they were misconceived for merely raising personal and private law issues disguised as constitutional issues; that the disciplinary process was fair and lawful; and that members of the 1st applicant’s Council were legally in office.
28.
By a judgment dated 24th November 2016, the petitions were dismissed by Marete J. as being res judicata. The respondents’ separate appeals were consolidated by the Court of Appeal and allowed through the judgment dated 18th October 2018. The Court of Appeal also dismissed the applicants’ applications for review provoking Petition of Appeal No.33 of 2020 before us which was struck out as per our ruling on 30th April 2020 the details of which we need not rehash.
29.
In the same breadth, we also do not find it necessary to make a finding on whether the respondents were duly served electronically or not. The important consideration is that the 1st and 2nd respondents were eventually in a position to respond to the applications by filing the replying affidavit, submissions and list and digest of authorities and articulate their position before the Court.
a) Extension of time
30.
It is trite that we have jurisdiction to extend time and the exercise of that jurisdiction is an issue of our judicial discretion. Rule 15(2) of the Supreme Court Rules 2020 is instructive on this issue. Moreover, this Court has considered and laid down several principles as was pointed out by the parties. We re-emphasize the principles in the Nicholas Salat case (supra) and in particular consideration on whether the applicants have a reasonable reason to explain their delay to the Court’s satisfaction.
31.
The main contention by the applicants is that they have sustained a diligent quest for justice only that they relied on their advocates’ honest belief and advice in pursuing a review of the Court of Appeal judgment and subsequent appeal against that before the Supreme Court. This course, unfortunately for them, did not yield their expected outcome and they now seek another opportunity to go at it albeit by way of appeal on the substantive judgment of the Court of Appeal. The applicants further invoke a public interest consideration bearing in mind the nature of the institution and its funding from public coffers. This public interest angle is strenuously objected to by the 1st and 2nd respondents who instead allege that the proceedings are a cash cow for the applicants to expend extraneous amounts in legal fees. With respect to the respondents, we think this approach is unnecessary as the issue before the Courts was never about the legal fees payable to the counsel. This in our view is a factual matter below our scope especially as a second appellate Court and particularly at this interlocutory stage.
32.
The respondents maintain that the reasons offered by the applicants are not plausible, the delay is inordinate and the ignorance of the law by the applicants in pursuit of their action is no defence. In any event, the applicants have not filed their Notice of Appeal which is a jurisdictional prerequisite for the court to entertain the matter further.
33.
It is evident that following the decision of the Court of Appeal, the applicants were faced with two options – to, either file for review of the decision to the same Court or pursue an appeal before this Court within either of the applicable jurisdictional contours. The applicants, as advised by their advocates, chose the former. We agree with the applicants’ advocates that they could not concurrently pursue both options as that would be an outright abuse of judicial process. However, following from our decision in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR, where a litigant has more than one option to pursue, he/ she must settle on one of them. The decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does not succeed. This means that when choosing, the litigant is expected to choose the best available option since she may not have any further recourse.
34.
We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the altar of judicial process without the attendant consequences.
35.
The delay which the applicants seek to be excused from is largely as a result of the applicants’ pursuit of the review process before the Court of Appeal and the resultant appeal before the Supreme Court. This delay, the 1st and 2nd respondents indicate is 560 days which the applicants do not contest. Whereas the applicants may have diligently been pursuing their options whose success may have had an implication on the need for these proceedings, we are not inclined to accept such explanation based on what we have already stated.
36.
Rule 36 of the Supreme Court Rules 2020 provides for the filing of a Notice of Appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal is founded. The filing of a Notice of Appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a Notice of Appeal signifies the intention to appeal. The applicants appreciated as much in filing their Notice of Appeal against the review decision of the Court of Appeal. The applicants cannot therefore be heard to argue that they did not know the importance of this step. The applicants have not explained why they never attempted to comply with this important step at the time.
37.
Having said so, we echo our previous position that filing of the Notice of Appeal is a jurisdictional prerequisite. The prevailing circumstances specific to this case make it very difficult for the Court to evaluate any satisfactory reasons that excuse the applicants from this apparent non-compliance. Moreover, as we noted in Nicholas Salat case, the purported filing of a Notice of Appeal and Petition of Appeal without the requisite leave cannot be sanctified by the Court, notwithstanding that a case number was issued to the applicants. The alleged Notice of Appeal and Petition of Appeal therefore have to be struck out from the Court record for having been ‘filed’ without Court sanction and out of time. The Notice of Appeal not having been filed on time, the Court cannot resuscitate anything in this matter.
38.
The inevitable conclusion we must draw on this issue is that the prayer for extension of time must fail, and it is so ordered.
b) Whether to grant orders of stay
39.
In the absence of a subsisting appeal as we have found above, the prayers for stay in both applications are superfluous. The principles for grant of orders of stay were enunciated in Board of Governors, Moi High School Kabarak & Another case (supra) the principle objective of which being to preserve the subject matter of an appeal. The 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.
40.
Applying this to the facts, there is no doubt that the applicants’ intended appeal would, but for our finding, been arguable. The applicants sought to challenge the manner in which the Court of Appeal exercised its jurisdiction and how this related to Articles 25 and 50 of the Constitution. The issues raised in the matter relate to the Court’s determination of the doctrine of res judicata a similar issue pending before Court as in John Florence Maritime Services Limited case (supra).
41.
As for the other consideration whether or not the intended appeal would be rendered nugatory, the applicants’ position is contradictory. While the applicants in the affidavit in support of the application filed on 22nd May 2020 at paragraph 15 indicate that the orders sought are necessary to preserve the substratum of both proceedings pending before the Court, their position changed upon the conclusion of the garnishee proceedings. Paragraph 9 of the Further Affidavit filed on 5th June 2020 on behalf of the applicants indicate that the substantive cause of action set out in Petition No.6 of 2020 is not at all affected by the ruling in the garnishee proceedings and that the matter should be considered on the merits and appropriate findings made in the interests of justice.
42.
In our view, the garnishee proceedings are as a result of lawful legal process arising from a decree issued by a competent Court. This in itself cannot therefore justify grant of stay particularly in the wake of the status of the appeal as already found. Accordingly, we are not persuaded to grant stay orders under the circumstances as it would serve no purpose.
43.
Before we conclude, we note that there was certain conduct involving the use of social media that we found unbecoming. Though that may not be directly linked to the applications, we expect decorum from litigants and especially counsel as officers of the Court. Matters before the Court should best be litigated and left to the Court for determination. It is not a coincidence that the 1st and 2nd respondents’ averments found their way to the media both print and by bloggers. Whereas this may not have a bearing on the Court’s decision, we need to emphasize that as officers of the Court, Counsel should be able to advise their Clients accordingly on their conduct relating to matters sub judice.
44.
In conclusion, the parties have had their share of litigation and we would not want to extend it any further, more so on the limited issue of costs as a result of these applications. There must be an end to litigation however much the applicants are dissatisfied.
Determination
45.
In the end we disallow the applications and make the following orders:
a)
The application dated 6th May 2020 and filed on 7th May 2020 is hereby dismissed.
b)
The application dated 22nd May 2020 and filed on 22nd May 2020 is hereby dismissed;
c)
The petition of appeal dated 6th May 2020 and filed on 7th May 2020 is struck out;
d)
Each party shall bear their own costs.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/76/eng@2020-09-04 |
Petition 19 of 2019 | Wainaina & another (As Administrators of the Estate of Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & Njenga (As Administrators of the Estate of Elizabeth Wanjiru Njenga -Deceased) & 3 others (Petition 19 of 2019) [2020] KESC 28 (KLR) (Civ) (4 September 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu | 4 September 2020 | 2,020 | Nairobi | Civil | Wainaina & another (As Administrators of the Estate of Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & Njenga (As Administrators of the Estate of Elizabeth Wanjiru Njenga -Deceased) & 3 others | [2020] KESC 28 (KLR) | null | The Petition before the court is dated and filed on the 17th of May 2019, appealing against the decision of the Court of Appeal at Nairobi dated 5th of April 2019, in Civil Appeal No 30 of 2005. The Appellate Courts decision overturned a High Court decision that had awarded Mary Wanjiru Kinyara (deceased) a portion of her deceased’s father property. | We have on several occasions stated that a party ought to indicate which constitutional provision he or she relies on when they move this Court. It is absurd that a party can seek audience before the court without doing so, as it cannot be left to the court to speculate which provision is best suited for the Petitioner’s appeal.This was our position in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another [2015] eKLR where this Court was categorical that in preferring an appeal, “a litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution.”
11.
Similarly, in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR we stated that:
“
(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…”
12.
In our view, the principles in the above cases still prevail and we dismiss the petition for want of jurisdiction.
ORDERS
1.
The Preliminary Objection dated 30th of May 2020 is allowed.
2.
The Petitioner’s shall bear the costs of this application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/28/eng@2020-09-04 |
Petition 23 of 2019 | Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 September 2020 | 2,020 | Nairobi | Criminal | Waswa v Republic | [2020] KESC 23 (KLR) | null | The appellant was charged with the offense of murder in the trial court. After nine witnesses for the prosecution had testified, counsel for the family of the deceased (the victim) made an oral application for leave to actively participate in the proceedings. The trial court observed that the law had shifted the traditional parameters of a victim in a criminal case and therefore a victims’ counsel could no longer be considered a passive observer in criminal proceedings. However, the trial court noted that the counsel for the victim could not be active and parallel to that of the prosecutor.Consequently, the trial court allowed the participation of the counsel watching brief limited to the following instances: on submission at the close of the prosecution case whether there was a case to answer; final submission should the accused be put on his defence; on points of law should such arise in the course of trial, and upon application at any stage of the trial for the consideration by the court.Aggrieved by the trial court’s ruling, the appellant lodged an appeal to the Court of Appeal. The Court of Appeal being satisfied that the impugned rights given by the trial court to the victim of the offence (the father of the deceased) were in conformity with the Constitution of Kenya, 2010 and the Victim Protection Act, 2014 (VPA), upheld the ruling of the trial court and dismissed the appeal in its entirety. Aggrieved by the decision of the Court of Appeal, the appellant filed the instant appeal. | As the overriding element of State control inevitably pit the power of the State against the accused, the necessity of protecting the accused’s rights within that power imbalance arose to ensure that there was equality of arms. However, that could inadvertently eclipse the recognition of the victim’s inherent interest in the response by the criminal justice system to the crime. Kenya’s progressive Constitution had captured and addressed all those scenarios.The right to fair hearing was provided for under article 50(1) of the Constitution and the attendant rights of an accused person were set out in article 50(2). The Constitution also recognized victims of offences. In addition to the constitutional underpinning, the Victim Protection Act (VPA) was enacted deliberately in 2014 to give effect to article 50(9). Thus, the rights of victims in a trial process also had statutory underpinning.
Although the adversarial criminal trial process was a contest between the State, represented by the Director of Public Prosecutions (DPP), and the accused, usually represented by defence counsel and the traditional role of victims in a trial was often perceived to be that of a witness of the prosecution, that flowing from both the Constitution and the Victim Protection Act (VPA) and in particular section 9(2)(a) of the VPA, a victim too, had the right to participate in criminal proceedings.
The participation of victims in criminal trial proceedings, though a novel trend in Kenyan laws, was in accord with international developments that had embraced the place of victims in the trial process. Kenya’s Constitution under articles 2(5) and (6) permitted the court to apply the general rules of international law and also provided that any treaty or convention ratified by Kenya formed part of the law of Kenya.
The role of a victim in a criminal trial was recognized in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). In that Declaration, in the context of the criminal justice system, it was a central obligation of governments to comply with the victim’s rights to access to justice and fair treatment, restitution, compensation and assistance.
Under article 68(3) of the Rome Statute, of the International Criminal Court (ICC) victims before the ICC were granted far-reaching rights. In light of the large degree of discretion accorded to the judges conducting the trial, the practice of the ICC had developed to allow victims:-
to make an opening and closing statement (that was also in consonance with rule 89(1) of the ICC Rules of Procedure and Evidence);
to attend and participate in hearings and status conferences through written submissions and oral argument;
to introduce evidence and challenge admissibility of evidence with leave of the court; and
to question witnesses and/or the accused under the strict control of the court. Where there were a large number of victims admitted to participate in the proceedings, the court could limit the number of lawyers representing them pursuant to rule 90(2)-(4) of the ICC Rules of Procedure and Evidence.
The emerging picture from other jurisdictions was that the criminal justice processes should empower victims and their voices should be heard, not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the cause.
Article 259(1) and (3) of the Constitution was instructive on how to construe their rights under article 50(9) of the Constitution. Articles 20(3) and 50(9) of the Constitution read together with the Victims Protection Act (VPA) affirmed that victims had rights in Kenya’s criminal justice system. Those rights were stipulated in section 9 of the Victims Protection Act (VPA). Article 27 of the Constitution also provided that every person was equal before the law and had the right to equal protection and equal benefit of the law. Both the Constitution and the Victims Protection Act (VPA) sought to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality.
The trial court being an impartial entity that oversaw the progress of a case had the ultimate function of determining the accused’s guilt or innocence. Its aim was to establish the truth. The purpose of criminal proceedings, generally, was to hear and determine finally whether the accused had engaged in conduct which amounted to an offence and, on that account, was deserving of punishment. Thus, the rights of the accused could not be considered in isolation without regard to those of the victim. Victims too had a legitimate interest in the court’s exercise of its jurisdiction. The criminal justice system should cultivate a process that inspired the trust of both the victim and the accused.
Considering the rights of the accused, the victim and society as a whole in a criminal trial was not only fair, pragmatic but also constitutionally viable. The trial court had to protect the rights of all parties involved in criminal proceedings. There was a public interest in ensuring that trials were fair. That interest could be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused and the public interest should be secured and fulfilled. The rights of victims did not undermine those of the accused or the public interest. The true interrelationship of the three was complementary. The participatory rights of the victim did not violate the fair trial rights of the accused. A victim could participate in a trial in person or via a legal representative.
Once a victim or his legal representative made an application to participate in a trial, it was the duty of the trial court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the trial court’s discretion, determine the extent and manner in which a victim could participate in a trial. Since participatory rights were closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which did not cause undue delay in the proceedings and thus prejudice the rights of the accused.
Discretionary pronouncements of a court formed an integral part of a court’s jurisdiction and should not be interfered with unless an appellate court was satisfied that the exercise of that discretion was improper and, therefore, warranted interference. A court had to be satisfied that the trial court in exercising discretion misdirected itself and had been clearly wrong in the exercise of the discretion and that as a result, there had been injustice. In the instant case, there was no need to interfere with the trial court’s discretionary pronouncements.
Article 157(1) of the Constitution established the office of the DPP. The State’s prosecutorial powers were vested in the DPP under article 157 of the Constitution. That office, under article 157(10), neither required the consent of any person to institute criminal proceedings nor was it under the direction or control of any person or authority. Those provisions were also replicated in section 6 of the Office of the Director of Public Prosecutions Act, 2013. The office of the DPP was the sole constitutional office with the powers to conduct criminal prosecutions.
The victim had no active role in the decision to prosecute, or the determination of the charge upon which the accused would finally be tried. That was the sole duty of the DPP. While the victim of a crime could participate at any stage of the proceedings as deemed appropriate by the trial court, a victim or his legal representative did not have the mandate to prosecute crimes on behalf of the DPP. The DPP had to at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory power of the DPP to conduct the prosecution was not affected by the intervention of the victim in the process.
A victim could not and did not wear the hat of a secondary prosecutor. When victims presented their views and concerns in accord with section 9(2) (a) of the Victim Protection Act (VPA), victims were assisting the trial court to obtain a clear picture of what happened (to them) and how they suffered, which the trial court could decide to take into account. Victim participation should meaningfully contribute to the justice process. However, that did not mean that the court’s judgment would follow the wishes of the victim. The trial court would take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.
The following guiding principles would assist the trial court when it was considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:-
the applicant had to be a direct victim or such victim’s legal representative in the case being tried by the court;
the court should examine each case according to its special nature to determine if participation was appropriate, at the stage participation was applied for;
the trial court had to be satisfied that granting the victim participatory rights should not occasion an undue delay in the proceedings;
the victim’s presentation should be strictly limited to the views and concerns of the victim in the matter granted participation;
victim participation should not be prejudicial to or inconsistent with the rights of the accused;
the trial court could allow the victim or his legal representative to pose questions to a witness or expert who was giving evidence before the court that had not been posed by the prosecutor;
The trial court had control over the right to ask questions and should ensure that neither the victim nor the accused were not subjected to unsuitable treatment or questions that were irrelevant to the trial;
the trial court should ensure that the victim or the victim’s legal representative understood that prosecutorial duties remained solely with the DPP;
while the victim’s views and concerns could be persuasive; and in the public interest that they were acknowledged, those views and concerns were not to be equated with the public interest;
the court could hold proceedings in camera where necessary to protect the privacy of the victim;
while the court had a duty to consider the victim’s views and concerns, the court had no obligation to follow the victim’s preference of punishment.
The right to have a trial commence and conclude without unreasonable delay was an accused person’s constitutional guarantee under article 50(2)(e) of the Constitution. A victim also had the right to have the trial begin and conclude without unreasonable delay under section 9(1)(b) of the Victim Protection Act (VPA). In addition, article 159(2)(b) of the Constitution obligated courts not to delay justice. Further, treaties and international instruments that Kenya had ratified such as the African Charter on Human and People’s Rights, Rome Statute of the ICC, and the International Covenant on Civil and Political Rights (ICCPR) contained similar provisions, that bound the court in all criminal justice procedures and processes.
The benefits of an expeditious trial could not be gainsaid. A speedy trial ensured that the rights of the accused person were secured; it minimized the anxiety and concern of the accused; it prevented oppressive incarceration; and protected the reputation, social and economic interests of the accused from the damage which flowed from a pending charge. It also protected the interests of the public, including victims and witnesses, and ensured the effective utilization of resources. Additionally, it lessened the length of the periods of anxiety for victims, witnesses, and their families and increased public trust and confidence in the justice system.
In conformity with the Constitution, courts should shun situations where an accused’s right to a fair trial was prejudiced by virtue of undue delay. Courts possessed the power to take appropriate action to prevent injustice. That power was derived from the public interest that trials were conducted fairly and that as far as possible the accused was tried without unreasonable delay the end goal being to achieve prompt justice in criminal cases.
There was no provision in both the Constitution and the Criminal Procedure Code (CPC) for interlocutory criminal appeals. The Constitution under article 50(2)(q) provided that every accused person had the right, if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. Similarly, the CPC under sections 347 and 379(1) only allowed appeals by persons who had been convicted of an offence.
The delay of over six years defeated the intention of the framers of the Constitution and of Parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay related not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed. Therefore, although criminal trials were not time bound like election petitions, there was need to have them determined expeditiously in line with the constitutional prescriptions.
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 the 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, these 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.
Petition dismissed.
Orders
For the avoidance of doubt, the determination in Criminal Appeal No. 132 of 2016 was upheld.
In view of the inordinate delay of the original murder trial, occasioned by appeals relating to an interlocutory matter, the substantive matter was directed to be heard and determined on the basis of priority. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/23/eng@2020-09-04 |
Petition (Application) 36 of 2019 | Gichuru v Package Insurance Brokers Ltd (Petition (Application) 36 of 2019) [2020] KESC 19 (KLR) (Civ) (3 September 2020) (Order) | Order | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 3 September 2020 | 2,020 | Nairobi | Civil | Gichuru v Package Insurance Brokers Ltd | [2020] KESC 19 (KLR) | null | The Petitioner filed a Notice of Motion on 1st October, 2019. It is brought pursuant to the provision on Article 163(4) of the Constitution, Section 21 of the Supreme Court Act Rules 23, 33(6) and 54 of the Supreme Court Act, Rules 2012. | The Honourable Chief Justice and President of this Court empanelled this Bench to determine the Application.Upon consideration of this matter and the record and reference to the Deputy Registrar we have ascertained that the Respondent has not to date filed any response in opposition citing the existence of the Consent filed herein.
7.
As a result, it is our considered view that we ought to adopt and endorse the said consent as an order of this court to attain the parties’ wishes and save precious judicial time.
8.
We therefore vacate herewith the orders for filing of written submissions and delivery of any ruling in respect thereof. We hereby adopt and endorse the Consent dated 27th January, 2020 as an order of the Court.
9.
For this order to be wholesome and effective order, we further direct the Appellant to file and serve the Supplementary Record of Appeal within thirty (30) days from the date hereof. The Deputy Registrar of this court to follow-up with the Court of Appeal Registry to obtain the certified order and proceedings of the said court.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/19/eng@2020-09-03 |
Civil Application 4 of 2020 | Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others (Civil Application 4 of 2020) [2020] KESC 32 (KLR) (11 August 2020) (Order) | Order | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola | 3 September 2020 | 2,020 | Nairobi | Civil | Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others | [2020] KESC 32 (KLR) | null | On 4th August 2020, this Court delivered a Ruling dismissing this application, allowing a Preliminary Objection by the 1st and 2nd Respondents. The application was supported by the affidavit of the Charles Karathe Kiarie sworn on 27th February 2020. In the Ruling at paragraph [1] we erroneously indicated that the supporting affidavit was sworn on “30th May 2017”. Further, at paragraph [10], we indicated that the Preliminary Objection had been filed on “20th of June 2020” which was an error as the same was filed on 11th of June 2020. Lastly, in the final orders at paragraph [21], order (a) is to the effect that “[T]he application dated 30th May 2017 is hereby dismissed”. This is an inadvertent error as the application subject of our Ruling was dated 27th February, 2020. | Section 21(4) of the Supreme Court Act clothes this Court with general powers to correct any apparent errors in its Judgements, Rulings and/or Orders as follows:General Powers....
2)
. . .
(3)
. . .
(4)
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.
3.
As a result, we hereby Order as follows:
i)
Paragraph [1] is corrected by deleting the date “30th May, 2017” and inserting therein the date “27th February 2020”;
ii)
Paragraph [10] is corrected by deleting the date “20th of June 2020” and inserting therein the date “11th of June 2020”; and lastly,
iii)
Paragraph [21] is corrected by deleting order (a) that reads “The Application dated 30th May 2017 is hereby dismissed” and inserting a new order (a) thus:
"The Application dated 27th February 2020 is hereby dismissed”.
4.
This Ruling is accordingly amended, and this Order shall constitute part of the Ruling of the Court. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/32/eng@2020-08-11 |
Petition 28 of 2019 | Langat v Kericho County Assembly Committee on Appointments & 2 others (Petition 28 of 2019) [2020] KESC 34 (KLR) (6 August 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 6 August 2020 | 2,020 | Nairobi | Civil | Langat v Kericho County Assembly Committee on Appointments & 2 others | [2020] KESC 34 (KLR) | null | The County Government of Kericho by way of an advertisement invited suitable candidates to apply for various positions in the county executive committee. Following the advertisement, the appellant applied to be the member of the education, culture and social services committee. He was successful and his name, alongside nine others, was submitted to the 3rd respondent by the Governor of Kericho County (Governor) for vetting. During the vetting, the appellant’s name was rejected for appointment for two reasons: that he lacked the experience for management of ECDE and village polytechnics and that he was related to a nominee for finance and economic planning. Aggrieved by the decision, the appellant filed a petition before the Employment and Labour Relations Court terming the reasons for his rejection as unconstitutional.The appellant sought for among others a declaration that the proceedings of the 3rd respondent (county assembly) rejecting his appointment was void and prohibitory orders against the Governor from presenting to the Speaker of the county assembly any fresh names of nominees for approval by the county assembly for appointment as members of Kericho County Executive Committee. The Employment and Labour Relations Court granted all the prayers sought by the appellant. Dissatisfied by that decision, the respondents filed an appeal at the Court of Appeal which allowed the appeal and set aside the Employment and Labour Relations Court orders. Aggrieved by the Court of Appeal’s decision the appellant filed the instant appeal. | 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. The issue of the constitutionality of the respondents’ decision in rejecting the name of the appellant in the County Executive Committee was consistent from the Employment and Labour Relations Court to the Court of Appeal and to the court. Consequently, the appeal fell within the ambit of article 163(4)(a) of the Constitution.Article 176(2) of the Constitution mandated every county government to decentralize its functions and the provision of its services to the extent that it was efficient and practicable to do so. County executive committees thus comprised members appointed by the county governor, with the approval of the assembly, and who were not members of the assembly as provided for under article 179(2)(b) of the Constitution.
The procedure for public appointments was governed by the Public Appointments Act No. 33 of 2011. Section 3 of the Public Appointments Act provided that all appointments under the Constitution or any other law for which the approval of Parliament was required would not be made unless the appointment was approved or deemed to have been approved by Parliament. Section 5 of the Act set the procedure for nominating a candidate for a public appointment, upon nomination, under section 5, a candidate whose position required approval by Parliament had to undergo the approval hearing as set out in section 6 of the Act. Accordingly, section 7 of the Act provided that an approval hearing had to focus on a candidate’s academic credentials, professional training and experience, personal integrity and background. When approving a candidate, the House of Parliament had to be guided by the procedure used to arrive at the nominee; any constitutional or statutory requirements to the office in question; and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s abilities, experience and qualities met the needs of the body to which nomination was being made.
On rejection of a nomination, section 10 of the Public Appointments Act provided that where the nomination of a candidate was rejected by Parliament, the appointing authority could submit to the relevant House the name of another candidate, and the procedure for approval was specified in the Act. In the context of county government appointments under section 35 of the County Governments Act No. 17 of 2012, the governor should, when nominating members of the executive committee, ensure that to the fullest extent possible, the composition of the executive committee reflected the community and cultural diversity of the county; and took into account the principles of affirmative action as provided for in the Constitution. The county assembly was mandated to ensure that all nominations for appointments to the executive committee took into account two thirds-gender rule, representation of minorities, marginalized groups and communities and community and cultural diversity recognized in Kenya among other considerations.
A county assembly could reject the name of a nominee if it failed the test set out in section 35 of the County Governments Act and the provisions of the Public Appointments Act. The appellant did not fault the vetting process (which the constitutional and statutory threshold required) but the outcome. There was no reason to depart from the Court of Appeal’s finding.
Separation of powers was an integral principle in the Constitution: for instance, chapter 8 was devoted to the Legislature; chapter 9 to the Executive and chapter 10 on the Judiciary provided (article 160(1)) that: in the exercise of judicial authority, the Judiciary as constituted by article 161 was subject only to the Constitution and the law and was not to be subject to the control or direction of any person or authority. If courts decided only those cases that met certain justiciability requirements, they respected the spheres of their co-equal branches and minimized the troubling aspects of counter-majoritarian judicial review in a democratic society by maintaining a duly limited place in government.
The respondent’s decision to reject the appellant’s appointment did not flout any constitutional or statutory provisions. There was no reason to interfere with the manner in which the county assembly exercised its powers on the issue.
Appeal dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/34/eng@2020-08-06 |
Petition 3 of 2020 | Adega & 2 others v Kibos Distillers Limited & 5 others (Petition 3 of 2020) [2020] KESC 36 (KLR) (Constitutional and Human Rights) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | Adega & 2 others v Kibos Distillers Limited & 5 others | [2020] KESC 36 (KLR) | null | There are three Preliminary Objections brought before this Court by the 1st, 2nd, 3rd, 5th and 6th Respondents. In the objections, the Respondents primarily challenge the jurisdiction of this Court to hear and determine the instant Petition pursuant to Article 163(4)(a) of the Constitution. For purposes of this Ruling, we shall briefly highlight the historical background of the matter before embarking on an analysis of each of the three objections and the salient points raised in each one of them. | From the foregoing, it is clear that the only issue for determination is whether this Court has the jurisdiction to hear and determine the instant Petition. The issue of jurisdiction has been canvassed severally before this Court since its inception. Jurisprudence on the same has been established through a number of decisions that have come before it, and therefore, as we have done before, we shall not tire in re-stating that jurisprudence.In R v. Karisa Chengo [2017] eKLR, this Court determined that;
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.”
35.
Further, in Samuel Kamau Macharia & another v. Kenya Commercial Bank Limited & 2 others (supra), we held that;
“
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
36.
This principle has been replicated in a plethora of determinations by this Court, of common cause being that, a Court, even this Court, cannot arrogate itself jurisdiction through crafts of interpretation (see Interim Independent Electoral Commission Constitutional (Advisory Opinion) Application No. 2 of 2011) and a Court ought to exercise its powers strictly within the jurisdictional limits (Peter Oduor Ngoge v. Francis Ole Kaparo & 5 others (supra)).
37.
In Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & another (supra), this Court determined that for an appeal to be said properly before it;
“
The appeal must originate from the Court of Appeal where issues for contestation revolved around 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 had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163(4)(a). If an appeal is challenged at the preliminary level on grounds that it does not meet the threshold in Article 163(4)(a), the Court must determine that challenge before deciding whether to entertain the substantive appeal or not….It is the Court’s duty as the ultimate custodian of the Constitution to satisfy itself that the intended appeal meets the constitutional threshold.” [Emphasis added].
38.
It is therefore evident that the issues that this Court would only exercise its jurisdiction over pursuant to Article 163(4)(a) of the Constitution are issues involving the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the Superior Courts.
39.
As it appears, the only issue of real controversy before this Court is the jurisdiction of the ELC to hear and determine a Petition that was filed by the Petitioners in Constitutional Petition No. 8 of 2018. The jurisdiction of the Court was challenged primarily on the premise that the Court had usurped the mandate of legislatively constituted bodies and conferred upon itself powers that it did not have. The challenge was therefore not on whether the Court had determined issued pertaining to constitutional dispensation, but whether the Court had that jurisdiction or power to hear and determine the Petition before it.
40.
The challenge was not on the Court’s mandate and powers as conferred upon it under Articles 70, 165(3) or 258 of the Constitution, but whether it had the powers to adjudicate on the issues presented before it pursuant to the provisions of the Environmental Management & Coordination Act, 2015.
41.
In Mukisa Biscuits Manufacturing Company Limited v. West End Distributors (1969) E.A. 696 Law JA stated;
“
A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary Point may dispose of the suit. Examples are objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” [Emphasis added].
42.
Following the above edict and in determining whether this Court has the jurisdiction to hear and determine the instant Petition, we need not delve into the realm of disputed facts, but restrict ourselves within the confines of the law. In determining such issues, such as jurisdiction, the only relevant issue to consider is the law, and nothing else. Turning to the issue at hand therefore, is the objection to the jurisdiction of this Court confined to issues of law with regards to the interpretation or application of the Constitution?
43.
Whilst it may be argued that the issue of jurisdiction of the Environment and Land Court is a constitutional question given that the Court is established by dint of Article 162(2)(b) of the Constitution, and through legislative enactment of the Sections 4 and 13 of the Environment and Land Court Act, 2011, that was however not the issue in contention before the superior Courts below.
44.
In the ELC, the Court held that it had the jurisdiction to hear and determine the Petition, not by dint of powers conferred upon it by Article 162(2)(b) of the Constitution or Sections 4 & 13 of the Environment and Land Court Act, 2011, but by dint of the provisions of the Environmental Management & Coordination Act, and more particularly, Sections 129(1) and 130 thereof. The Court then went on to justify its usurpation of the mandate of the National Environmental Tribunal and the National Environmental Complaints Committee, by citing Articles 23, 42, 47, 69 & 70 of the Constitution. The Court as was stated by the Court of Appeal contradicted itself by determining that some of the issues that were before it could be properly ventilated before the other legislatively mandated tribunals under the Environmental Management & Coordination Act, but chose to rather strangely arrogate upon itself the mandate to hear and determine those same issues.
45.
On its part, the appellate Court made a categorical finding that the Court did not have the jurisdiction to hear and determine the Petition, not pursuant to constitutional conferment of jurisdiction, but that the Court did not have the mandate to determine issues that could have been adjudicated in other appropriate forums. On the issue of jurisdiction, which the Petitioners argue is nonetheless a constitutional issue, the appellate Court made no reference to the Constitution, but relied on the provisions of Sections 129(1), (3), 130, 130(5) of the Environmental Management & Coordination Act in allowing the appeal.
46.
There was thus no determination made by any of the Superior Courts with regards to the jurisdiction of the Environment and Land Court in reference to the Constitution. In both their determinations on the issue of jurisdiction, they relied solely on the provisions of the Environmental Management & Coordination Act, with peripheral reference to the Constitution to buttress their decisions. It is manifestly evident from the foregoing that, where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this Court may not be properly invoked. (See Erad Supplies and General Contractors Ltd v. National Cereals & Produce Board (supra)).
47.
Further, in Stanley Mombo Amuti v. Ethics and Anti-Corruption Commission [2020] eKLR, we observed that;
“
In Erad, we specifically stated that where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this Court may not be properly invoked. Indeed, in Aviation and Allied Workers Union (supra) we added that the mere reference to the rich generality of constitutional principle as the Court of Appeal did in the present case, is not a sufficient ground to invoke Article 163(4)(a). The same must be said of the present cause.
It is thus our finding in the above context that reference to Articles 40 and 50 of the Constitution were introduced by the Appellant at the Court of Appeal and even then, peripherally so. The Court of Appeal thereafter rendered itself in passing only and the bulk of its Judgment was saved to an evaluation of the evidence on record in the context of Sections 26 and 55 of ACECA and not the Constitution per se.” [paras. 17 & 18].
48.
Both Superior Courts, in our view, therefore made determinations primarily on an interrogation and adjudication of statutory provisions and minimal reference to the Constitution. It cannot thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to this Court under Article 163(4)(a) of the Constitution.
D. Appropriate Reliefs
49.
As was also noted by the Petitioners, the issue of jurisdiction and discretion are distinct. Be as it may, the two are nonetheless inextricably intertwined; it would seem incongruous to discuss one without referring to or including the other. Such is the extent that these two quite seemingly innocuous terms are referred to quite often, and rather mistakenly, interchangeably. But for purposes of this present issue, jurisdiction, as referred to by the Petitioners, would denote whether the adjudicatory body has the power to entertain the proceedings and, discretion, to be whether such, upon determination that it has such powers, chose to exercise such powers or not.
50.
It would therefore seem that the Superior Court, determined, quite incorrectly, that it had the power or jurisdiction to hear and determine the Petition, which although raised issues that were clearly within its purview, were also intertwined with other issues which were rather obviously not within its jurisdiction, and which could have been effectively determined by another legislatively established tribunal, in this instance two bodies, the National Environmental Tribunal and the National Environmental Complaints Committee.
51.
The trial Court, as did the appellate Court, correctly determined that the Petition was multifaceted, and presented issues in an omnibus manner. The point of divergence between the two Superior Courts was where the trial Court then went further to determine that these multifaceted issues could be determined by the Court “in the interests of justice.” It would seem that the ELC had failed to appreciate that there were properly constituted institutions that were mandated to hear and determine the issues, but instead chose to arrogate to itself the jurisdiction to hear and determine all the issues raised in the Petition. The Petitioners stated that the Superior Court correctly relied on the doctrine of judicial abstention, and exercised it discretion to hear and determine the Petition.
52.
Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism.
53.
The abstention doctrine, also known as the Pullman doctrine, was deliberately first reviewed by the US Supreme Court in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 61 S. Ct. 643, 85 L. Ed. 971 (1941). The doctrine, and as applied within the context of the US legal system, allows federal courts to decline to hear cases concerning federal issues where the case can also be resolved with reference to a state-based legal principle. The Supreme Court, in an opinion by Justice Brennan in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964) also noted that a State Court determination would indeed bind the federal court. The proper procedure, the Court determined, is to give notice that the federal issue is contended, but to expressly reserve the claim on the federal issue for the federal court. If such a reservation is made, the parties can return to the federal court, even if the State Court makes a ruling on the issue.
54
Applying these principles to the instant Petition, the more favorable relief that the Superior Court should have issued was to reserve the constitutional issues on the rights to a clean and healthy environment, pending the determination of the issue with regards to the issuance of EIA licenses by the 4th Respondent to the 1st, 2nd and 3rd Respondents. The Court should have reserved the issues pending the outcome of the decision of the Tribunal, thereby affording any aggrieved party the opportunity to appeal to the Court. It would then have determined the reserved issues, alongside any of the appealed matter, if at all, thus ensuring the parties right to a fair hearing under Article 50 of the Constitution was protected.
55.
The Court of Appeal, in our view, gave quite an elaborate and definitive definition pertaining to the jurisdiction of the trial Court in hearing and determining the Petition. However, once it had established that the ELC did not have the jurisdiction to hear and determine the Petition, the appellate Court should at that juncture issued appropriate remedies, which could have included, but not limited to, remitting back the matter to the appropriate institutions for deliberation and determination. Also, once it had determined that the ELC did not have the jurisdiction to hear and determine the issues before it, it should have held that any determination made was void ab initio, and that the appellate Court therefore and with respect failed to properly exercise its discretion and supervisory mandate in this instance.
E. Disposition
56.
Having considered the three preliminary objections by the 1st, 2nd, 3rd, 5th and 6th Respondents as well as submissions, and the submissions by the Petitioners, we make the following orders;
(a)
The Preliminary Objections by the 1st, 2nd, 3rd, 5th and 6th Respondents are hereby upheld
(b)
The Petition is hereby struck out save that, noting the nature of the matter, the Petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this Judgment and that of the Court of Appeal.
(c)
Each party to bear its own costs. | Struck out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/36/eng@2020-08-04 |
Petition 1 of 2020 | Attorney General v Zinj Limited (Petition 1 of 2020) [2020] KESC 42 (KLR) (Civ) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | Attorney General v Zinj Limited | [2020] KESC 42 (KLR) | null | UPON reading the Notice of Motion by the Petitioner dated 3rd February 2020 and filed on 6th February 2020 which application is brought pursuant to the provisions of Articles 159(2)(d) & 163(4)(a) of the Constitution, Sections 3, 21(2) & 3 of the Supreme Court Act, 2012 and Rules 23, 26, 33(6) & (7), 34 and 55 of the Supreme Court Rules, 2012 and in which the Petitioner seeks enlargement of time to file its Supplementary Record of Appeal; and | In The Circumstances,we exercise discretion and grant the Petitioner’s Notice of Motion dated 3rd February 2020. Conversely, we hereby disallow the Respondent’s application dated 26th May 2020 as it would have no merit once the former has been allowed.In the event, we now make Orders as follows;
(a)
The Notice of Motion by the Petitioner dated 3rd February 2020 and filed on 6th February 2020 is hereby allowed.
(b)
The Supplementary Record of Appeal is deemed as filed as the Petitioner submitted that it had already filed certified copies of proceedings from the Court of Appeal in Civil Appeal No. 56 of 2018.
(c)
The Application by the Respondent dated 26th May 2020 and filed on 3rd June 2020 is hereby dismissed; and
(d)
Each party shall bear its own costs in both Applications.
11.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/42/eng@2020-08-04 |
Petition 1 of 2018 | Institute for Social Accountability & another v National Assembly of Kenya & 4 others (Petition 1 of 2018) [2020] KESC 74 (KLR) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 4 August 2020 | 2,020 | Nairobi | Civil | Institute for Social Accountability & another v National Assembly of Kenya & 4 others | [2020] KESC 74 (KLR) | null | On November 8, 2019, we delivered a ruling on the appellants’ Notice of Motion application dated 30th January, 2018 and lodged in the Supreme Court Registry on 31st January, 2018 allowing the application in the following terms:aThe Application dated 30th January, 2018 is hereby allowed;bThe Applicants shall file its Supplementary Record of appeal containing the Certified Order of the Court of Appeal and the typed proceedings within 7 days of receipt of those documents; andcCosts shall be in the cause.Following the said ruling, the appellants lodged a supplementary record of appeal on 14th November 2019 incorporating the order issued by the Court of Appeal; certified proceedings by Honourable Mr. Justice Githinji and Honourable Lady Justice H.M. Okwengu and a copy of the letter dated 4th September 2019 to the Deputy Registrar requesting for the exclusion of proceedings by Justice Rtd G.B.M. Kariuki from the intended supplementary record of appeal for non-availability and copies of correspondence between the appellants and the Court of Appeal registry. | Upon considering the two rival applications, the issue that emerges for our determination is whether or not to exclude the trial notes by Justice Rtd G.B.M. Kariuki of the Court of Appeal. This determination will also address the issue on whether the record of appeal should be struck out as sought by the 4th respondent.In considering this issue, we note that our ruling of 8th November 2019 allowed the filing of the Supplementary record within 7 days of receipt of those documents. Accordingly, the filing of the supplementary record was dependent on the documents being availed by the Court of Appeal. This presupposed that all the documents would have been made available to the appellants at the same time. It turned out otherwise. If we understand the 4th respondent correctly, it is his contention that the appellants should not have filed the supplementary record containing documents already received from the Court of Appeal despite our ruling until all the documents were received by them. With respect, this is untenable. We need not belabour the fact that the appellants exercised due diligence and bear no fault in the lack of the said trial notes, a situation that the 4th respondent does not challenge.
12
This is compounded by the fact that Justice Rtd G.B.M. Kariuki has since retired from public service as a judge of the Court of Appeal. The appellants had as early as 4th September 2019 brought to the attention of this Court’s Deputy Registrar of the intention to exclude the notes by Justice Rtd G.B.M. Kariuki through an oral application. This is a position that was reiterated both in correspondence and when the matter was last mentioned before the Honourable Deputy Registrar who in the end asked the appellants to make a formal application. Rule 335 allows for the making of oral applications and the appellants were entitled to that option until otherwise directed, as they were eventually, to file a formal application.
13
In the intervening period, the 4th respondent applied to strike out the petition barely a day after the mention before the Deputy Registrar and three days before the appellants could file their formal application under Rule 335. We do not think that the application by the 4th respondent has been made in good faith under the circumstances considering its timing. The 4th respondent had reasonable notice that the appellants faced challenges in obtaining the trial notes of the now retired judge of the Court of Appeal and that they intended to seek court intervention, albeit orally, under Rule 335. To allow the action by the 4th respondent would be to validate sharp practice of law that this court would not sanction.
14
Further, in considering the nature of the document to be excluded, we are persuaded that the same is so far untraceable. There is no purpose to be served by stalling the appeal and continuing to wait for a document on which nothing might eventually turn. In addition, the judgment by the Court of Appeal, the subject of this appeal, is unanimous and the trial notes by Justice Rtd G.B.M. Kariuki are not likely to fundamentally affect the record. We maintain the position we adopted in Hamida Yaroi Shek Nuri case supra thus:
“
23
It therefore emerges that failure to include the ‘record of proceedings of the Court of Appeal’ in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However, we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.”
15
In the Alfred Asidaga Mulima case supra we excused the applicant for a delay occasioned by the Court of Appeal. We are therefore inclined to exercise our discretion under Rule 335 in favour of the appellants and hasten to add that since the parties have already filed submissions on the substantive appeal and cross appeal, it is imperative that the legal and constitutional questions raised therein be determined on their merits in line with this Court’s mandate without further delay.
Determination
16
The upshot of our findings leads to our making the following Orders:
a
The Appellants’ application dated and filed on February 10, 2020 is allowed;
b
Consequently, the 4th Respondent’s application dated 5th February, 2020 and filed on February 7, 2020 is disallowed;
c
Costs shall be in the appeal. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/74/eng@2020-08-04 |
Reference 4 of 2017 | In the Matter of Speaker, County Assembly of Siaya County (Reference 4 of 2017) [2020] KESC 40 (KLR) (4 August 2020) (Advisory Opinion) | Advisory Opinion | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | In the Matter of Speaker, County Assembly of Siaya County | [2020] KESC 40 (KLR) | null | The County Assembly of Siaya County had faced challenges in discharging its role under the Constitution and the County Government Act with regard to the powers of the County Assembly in approving/vetting members of the County Executive Committees already serving their terms, whenever the Governor decided to move them to a different portfolio. The pertinent issue was whether a County Governor had absolute powers to re-deploy members of County Executive Committees without the approval of the County Assembly. Faced with that issue the applicant approached the Supreme Court for an advisory opinion. | The Supreme Court was not a legal adviser of State organs. The scope of an advisory opinion under article 163(6) of the Constitution did not extend to offering legal advice. The jurisdiction vested in the Supreme Court was to offer advisory opinion, and even then, that jurisdiction was circumscribed.A matter for advisory opinion was one not suitable for the ordinary dispute resolution mechanism; with pleadings, and progressing from the lowest to the highest court. The matter for advisory opinion had to also be urgent and entail the danger of paralysis to the institution concerned. The matter suitable for advisory opinion must be one that did not flow from any contest of rights or claims. The instant matter did not qualify for an advisory opinion.
The instant matter was a justiciable live issue in Siaya County on the varied interpretation of the vetting provisions in the Constitution as well as the County Governments Act and the Public Appointments (County Assemblies Approval) Act. The Supreme Court had to guard against improper transformation of normal disputed issues for ordinary litigation into advisory opinion causes, as the court had to be disinclined to take a position in discord with the core principles of the Constitution. Contested justiciable issues should be canvassed before the High Court and should only reach the Supreme Court through the appellate process where it was necessary and appropriate.
Reference dismissed; each party was to bear its own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/40/eng@2020-08-04 |
Reference 2 of 2019 | In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties (Reference 2 of 2019) [2020] KESC 41 (KLR) (4 August 2020) (Advisory Opinion) | Advisory Opinion | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties | [2020] KESC 41 (KLR) | null | The Speakers of the County Assemblies of Nandi, Kericho and Meru (the applicants) sought the Supreme Court’s advisory opinion on whether the Constitution had the power to limit the possible grounds for removal of the speaker of a County Assembly. | A matter for advisory opinion had to be one of great public importance which bore novelty, and ill-fits the conventional dispute-settlement scheme and called for expeditious resolution; or it had to be a matter that raised a variety of structural, management and operational challenges unbeknown to traditional dispute settlement. The matter must therefore be urgent portending a paralysis to the institution concerned unless it was resolved immediately.The Supreme Court had to guard against improper transformation of normal dispute issues for ordinary litigation into advisory opinion causes, as the court had to be disinclined to take a position in discord with the core principles of the Constitution.
There was a contested justiciable issue that had been canvassed before the High Court although it was not clear if it had been substantially determined by the court. As such the issue could only come to the Supreme Court through the appellate process if appropriate and necessary. If the High Court could not provide relief, the parties should seek legislative intervention. The instant matter was not only justiciable and fit for trial in the lower courts in the normal way but also res judicata. It was incompetent and an abuse of the court process.
Reference dismissed.
Orders
Each party was to bear its own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/41/eng@2020-08-04 |
Petition 38 of 2019 | Jirongo v Soy Developers Limited & 9 others (Petition 38 of 2019) [2020] KESC 38 (KLR) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | Jirongo v Soy Developers Limited & 9 others | [2020] KESC 38 (KLR) | null | The Petitioner’s Notice of Motion before the Court is dated 19th December 2019 and filed on 16th January 2020. It is brought under Articles 24, 48, 50 & 159(2)(d) of the Constitution, Sections 20 & 21 of the Supreme Court Act, Rules 3 & 18 of the Supreme Court Rules and all other enabling provisions of the law. The Petitioner seeks leave of this Court to adduce new and fresh evidence in this matter in which there are allegations of an incomplete sale transaction of property between the Petitioner and several of the Respondents leading to threat of arrest of the Petitioner.The application is premised on the following summarized grounds, inter alia;
(a)
That the new and fresh evidence could not, with any due diligence, have been discovered or adduced earlier because the Petitioner’s office file in this regard had been stolen meaning that the Petitioner could only look to the National Bank of Kenya Ltd to retrieve from its archives the payment details which the bank could not do during the period the matter was pending before the High Court and the Court of Appeal;
(b)
That the new and fresh evidence is exculpatory, totally destroying the very basis for the laying of purported criminal charges against the Petitioner;
(c)
That the evidence is credible and has officially been issued by the National Bank of Kenya Ltd and the Registrar of Companies;
(d)
That the additional evidence is not voluminous but consists only of five simple letters/documents and that the Respondents would have no difficulty whatsoever in responding to the new evidence;
(e)
That it is in the interest of justice that the new and fresh evidence is adduced for purposes of a just and fair determination of this matter; and
(f)
That there is no prejudice that can be occasioned to the Respondents at all but the Petitioner will suffer irreparable damage to his reputation and standing if he were to suffer the ignominy of standing trial for illegitimate criminal charges that should never have been laid at all in the first place.
3.
In the affidavit sworn by the Petitioner herein on 19th December 2019 and filed on 16th January 2020 in support of the application, he depones, further to reiterating the grounds adduced in support of his application, that the new evidence is dispositive of this matter as it negates entirely the alleged criminal complaint against him by certifying that there was compliance with the impugned sale agreement.
4.
He further deposes that the new and fresh evidence dating back to more that 27 years ago had now only been discovered and retrieved from the archives of the National Bank of Kenya Ltd (the bank) and could not have been adduced or presented to the superior Courts during the initial trial and subsequent appeal to the Court of Appeal. | In determining whether this Court has jurisdiction to grant leave to adduce additional evidence, none of the parties contested that this Court is vested with the requisite jurisdiction to hear and determine such an application.The above fact notwithstanding, we deem it fit to restate the law in that regard and as the basis for interrogating the application before us. We thus note that Rule 18 of the Court Rules reads;
(1)
The Court may in any proceedings, call for additional evidence.
(2)
A party seeking adduce to additional evidence under this rule shall make a formal application before the Court.
(3)
On any appeal from a decision of the Court of appeal, or any other court or tribunal acting in the exercise of its original jurisdiction, the Court shall have power—
(a)
to call for or receive any record on any matter connected with the proceedings before it;
(b)
to re-appraise the evidence and to draw inferences of fact; and
(c)
in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by the Registrar.
(4)
Where additional evidence is taken by the Court, it may be oral or by affidavit, and the Court may allow cross-examination of any witness.
(5)
Where additional evidence is taken by the trial court, the trial court shall certify such evidence to the Court, with a statement of its opinion on the credibility of the witness giving the additional evidence.
(6)
Where evidence is taken by the Registrar, the Registrar shall give statements of opinion on the credibility of the witness.
(7)
The parties to an appeal shall be entitled to be present when such additional evidence is taken.
27.
Section 21 (3) of the Supreme Court Act furthermore empowers us to make any order necessary for determining the real question in controversy in an appeal. The import of Section 21(3) of the Supreme Court Act was considered in Evans Kidero & 4 Others v. Ferdinand Ndungu Waititu & 4 Others SC Petition No. 18 & 20 of 2014; [2014] eKLR (Kidero). In the concurring Judgment of Njoki Ndungu SCJ at paras. 368-69 she delivered herself thus:
“
The upshot of this is that this Court may make the same kind of orders that the High Court is empowered to make under Articles 22 and 165, when the matter comes to the Supreme Court on appeal, as the Court would find fit. As alluded to earlier on these remedies include declarations of rights, injunctions, conservatory orders, declaration of invalidity of any law, orders for compensation, orders for judicial review or any other appropriate relief where rights and fundamental freedoms have been denied, violated or are threatened.
Taking all these legal provisions into consideration, it is manifest that this Court may make any order that the High Court has jurisdiction to make in the enforcement of rights and fundamental freedoms. This Court also has the latitude to make any order that would be necessary for determining the real question in issue in this appeal and to ensure that the principles of the Constitution are promoted - including an order for a witness to be cross-examined. I am alive to the fact that this is not a remedy that this Court would hastily grant but in light of the violation of constitutional rights that occurred it is the most appropriate remedy under the circumstances.” [Emphasis added]
28.
It is therefore, without belaboring the point any further, a fact that this Court has the jurisdiction to hear and determine an application for leave to adduce additional or new evidence. What is also apparent is that the exercise of that jurisdiction shall not be whimsical, and the Court would not be in haste in granting the same. It has to consider all the relevant prevailing circumstances and make such order as it would deem fit in the interests of justice.
ii. Whether leave to admit additional evidence should be granted in this matter
29.
In the Wajir case, this Court set out the principles that it would consider in considering an application for leave for additional or new evidence before the superior Courts. We are further minded to state that even with the said principles being the basis for grant of such leave, this Court would still determine each application on a case by case basis, and even so, act with restraint and abundance of caution in allowing additional evidence.
30.
The principles as developed in that case are that;
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
(b)
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
(c)
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
(d)
Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
(e)
the evidence must be credible in the sense that it is capable of belief;
(f)
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
(g)
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
(h)
where the additional evidence discloses a strong prima facie case of willful deception of the Court;
(i)
The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.
(j)
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
(k)
The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
31.
Contrasting these principles against the Petitioner’s application, it is manifest that the application does not meet the threshold set out above. We say so because the Petitioner has not “shown that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial, was not within his knowledge, or could not have been produced at the time of the suit or petition.” This is evidenced by the letter written by the bank dated 20th November 2019 addressed to the Director, Banking Fraud Investigation Unit. In the said letter at para.2, it is stated, inter alia;
“
We wish to clarify that our response dated 14th August 2019 addressed to Mr. S. K Jirongo was on the basis of our review of the client’s statement of account against the transaction vouchers (customer copies) presented by the customer. For the avoidance of doubt, the statement of account does not indicate the beneficiaries of the two cheques (no. 853134 for amount KES 7,000,000 and no. 853135 for KES 1,000,000) debited from Cypper Enterprises Ltd’s account on 11th May 1992.” [Emphasis added].
32.
At para. 4(b), the bank further states;
“
In the absence of our records for the above transactions effected 27 years ago, we regret that we are unable to:-
a)
…
b)
Certify the vouchers received from Mr. S.K Jirongo since the same did not emanate from the bank as we cannot trace the originals in light of the above.” [Emphasis added].
33.
The above statement goes to show that the Petitioner did not satisfy the second ambit of the principle in the following manner: he had knowledge of the documents or evidence that he now seeks leave to adduce as new and fresh evidence. The letter from the bank states categorically that the authentication and review of the Petitioner’s statement of account was on the basis of the vouchers that he had provided them. Quite arguably, this goes against the Petitioner’s averments that he was unable to obtain records of documents as they had been destroyed, or that he had feverishly been searching for evidence, which by all accounts, was all along in his possession.
34.
Further, in the letter by the bank dated 14th August 2019 addressed to the Petitioner and annexed to the Petitioner’s affidavit and marked as “CSKJ-1”, it is noted that the bank was responding to an earlier letter by the Petitioner dated 2nd August 2019. In the last paragraph of the letter, it is stated, inter alia;
“
We have attached the statement of account for the period of your reference. Whereas 27 years have lapsed since the transactions were processed, we hope that the information that we have retrieved will be of help to you. Please do not hesitate to contact us in case the need arises.”
35.
From that letter, and more particularly the aforementioned paragraph, it can be reasonably inferred or deduced that the bank was able to respond to the Petitioner’s request in a considerably short period of time, contrary to assertions made in para. 29 of his submissions that the bank had taken several months to recover copies of the missing payments made to the 1st, 2nd & 3rd Respondents.
36.
The Petitioner and the bank exchanged letters between 2nd August and 14th August 2019. Had the Petitioner shown that he had on several occasions prior to that date written to the bank requesting for the said documents over a considerable period of time, then this Court would have been inclined to believe that he had exercised due diligence in trying to retrieve the documents before, during trial and after the initial trial and subsequent appeal.
37.
In this instance, however, the Petitioner has only presented one letter which the bank responded to promptly and effectively. In Judicial Review No. 78 of 2016 instituted by the Petitioner at the High Court, it is not shown that he had presented to the trial Court that he had engaged the bank in retrieving the documents and letters that he now seeks leave to adduce into this Court. Further, it is not shown that there was a similar letter written to the bank during this period requesting for the said information. It is also not shown that during the appeal to the Court of Appeal, the Petitioner had sought out the bank to provide the information and documents that he needed to adduce before this Court.
38.
The Court of Appeal delivered judgment on 19th July 2019. It was only after the appellate Court had rendered its judgment that the Petitioner wrote to the bank on 2nd August 2019 seeking to have them provide the information that he now seeks to introduce as new and fresh evidence.
39.
There is also the issue of the letter from the Registrar of Companies dated 15th May 2018 and annexed to the Petitioner’s affidavit and marked as “CSKJ-2”.
The letter is in response to an earlier letter by Messrs. Wagara, Koyyoko & Co. Advocates dated 9th May 2018. Again, as with the letter from the bank referred to in the above paragraphs, the response time from the Registrar between 9th May and 15th May 2018 was a relatively short period. This information, it would seem, was within the purview of the Petitioner had he made any effort to obtain it earlier. We can only surmise that the Petitioner was indolent, and in an application premised on discretion, his indolence is his waterloo.
40.
In stating as above, we are innately aware that the interest of justice dictates that this Court must ensure that all parties to a dispute are accorded a fair hearing in order to resolve issues not only amicably, but also judiciously. However, we are unconvinced that the Petitioner was not accorded a fair trial at the Superior Courts below. We are perturbed, as we are curious at this strange turn of events where the Petitioner now wants to engage this Court in gerrymandering and cat games in the name of adducing additional evidence in an otherwise straight forward appeal.
41.
By seeking leave to admit new evidence, which had all along been in his possession going by the facts of the case, the Petitioner would be abusing, not only the discretion of this Court in exercise of its jurisdiction, but also its processes, and seeking, rather dubiously and ingeniously, to reconstitute his case which had been conclusively determined by the Superior Courts below. This Court is convinced that the Petitioner, being unsuccessful at the Court of Appeal, is now trying to amend and make corrections to his case by seeking to introduce supposed new and fresh evidence.
42.
Having shown that the Petitioner did not exercise any diligence in obtaining the evidence that he now seeks to adduce before this Court, and that he had prior knowledge to or actual possession of such evidence, this Court would be restrained to continue in examining the other grounds of the application, to wit, whether the evidence would have any relevance to the matter, or indeed of probative value, and that such an exercise would indeed be a frittering of this Court’s judicial time. Once it has been established that the Petitioner failed in demonstrating that he was unable, with due diligence to obtain the evidence, or that it was in his possession, as pronounced in the principles in Wajir, then the Court would be left with no other option but to dismiss his application. In stating so as above, our findings are limited to the application before us and not the pending appeal which would ultimately be determined on its merits.
E. Costs
43.
Costs, in the usual manner, follow the event, subject to the Court’s discretion as enunciated in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others SC Petition No. 4 of 2013; (2014) eKLR. Costs are therefore hereby awarded to the Respondents.
F. Orders
1.
The Petitioner’s Application dated 19th December 2019 is hereby dismissed; and
2.
Costs in are awarded to the Respondents
44.
Orders accordingly. | Dismised | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/38/eng@2020-08-04 |
Civil Application 1 of 2016 | JKG v PWK (Civil Application 1 of 2016) [2020] KESC 33 (KLR) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | JKG v PWK | [2020] KESC 33 (KLR) | null | Before Court is a Notice of Motion dated 30th May, 2017 seeking to review the two-judge-bench (Ibrahim & Wanjala, SCJJ) decision of this Court delivered on 24th March, 2017 and to reconsider afresh the applicant’s application dated 19th January, 2016. The review application is brought under Section 3(a) and (e) of the Supreme Court Act; Rules 3(2), (4) and (5), 51(2) of the Supreme Court Rules, 2012; Article 159(2)(d) of the Constitution of Kenya and all other applicable provisions of the law. It is supported by the applicant’s affidavit sworn on 30th May 2017. | Besides Section 24(2) of the Supreme Court Act which grants this Court jurisdiction to review the decision of a single Judge, in Fredrick Otieno Outa v Jared Odoyo Okell & 3 others [2017] eKLR, this Court held that it can also review such decisions under its inherent jurisdiction. That, however, is not a carte blanche jurisdiction to review all and every decision of a single judge or limited bench of this Court.Since a review of the decision of a single judge or limited bench of this Court will entail interference with the exercise of a judge(s)’s discretion, on the authority of the Court of Appeal for Eastern Africa in Shah v. Mbogo & Another [1967] EA 116, which jurisprudence was affirmed by this Court in Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, such interference is permitted in exceptional circumstances. What are those circumstances?
11.
Before we outline the circumstances in which a review can be undertaken, we need to bear in mind the fact that a review of a decision of a single judge or judges of limited bench of this Court by a bench of five or more, is not an appeal. There can be no appeal from the decision of a single Judge or limited bench of this Court to the full Court. To allow such an appeal will not only be an abuse of the court process but it will also lead to endless litigation and clog the system. As this Court stated in Parliamentary Service Commission v. Wambora & Others, [2018] eKLR, such a review is also not meant to grant an applicant a second bite at the cherry; it is not a regurgitation of the matter that was before a single judge or limited bench. The focus of such review is the decision of the single judge or limited bench and not the merits of the substantive application that was the subject of the decision under review.
12.
For such an application to succeed, the applicant must satisfactorily demonstrate that in reaching his/their decision, the judge(s) acted whimsically or misdirected himself or themselves in the exercise of his or their discretion and as a result reached a manifestly wrong decision causing apparent injustice.
13.
The applicant’s application dated 19th January, 2016 was two pronged: review of the Court of Appeal’s failure to certify that the applicant’s intended appeal involved a matter of general public importance, and leave to appeal out of time. Having perused the ruling of 24th March 2017, we find that the two-judge-bench considered the applicant’s prayer for leave to appeal out of time and dismissed it for being unmeritorious. We concur with the two Judges that the applicant’s financial difficulties and/or his Advocate’s misapprehension of the law are not reasonable grounds for granting extension of time to appeals out of time.
14.
We, however, find that the two Judges inadvertently failed to consider the second prayer that the applicant’s intended appeal involved a matter of general public importance. In the circumstances, we allow the applicant’s review application to that extent and now wish to consider that prayer on its merits.
15.
On certification, the applicant’s case in the application dated 19th January 2016 was fairly simple and straightforward: on the locus classicus decision of the English House of Lords in Salomon v. Salomon (1897) AC 22, a limited liability company is a legal personality, separate and distinct from its shareholders. As such, the applicant contends, it was erroneous for the Court of Appeal to hold that property owned by a limited liability company is available for distribution between husband and wife as matrimonial property. He therefore urges us to review the Court of Appeal’s said decision and grant him certification to appeal for this Court to re-affirm the law in Salomon v. Salomon (1897) AC 22, a decision that has stood the test of time and applied in many cases in this country including S.N.K VS M.S.K & 5 Others (2015) eKLR. He further urges that this Court’s pronouncement and resolution of that uncertainty in the law occasioned by contradictory decisions, will transcend his interest in this matter and also benefit the public at large.
16.
On her part, the respondent cites this Court’s decision in Malcolm Bell Vs Daniel Toroitich Arap Moi & Another [2013] eKLR and argues that the appellate jurisdiction of this Court should not be extended to mere clarification of contradictions in court decisions. In the circumstances, the respondent urges us to dismiss this application with costs.
F. DETERMINATION
17.
We have considered the application, the grounds and the written submissions in support and in opposition to it. As this Court stated in Malcolm Bell Vs Daniel Toroitich Arap Moi & Another (supra), “it is now sufficiently clear that as a matter of principle and judicial policy, the appellate jurisdiction of the Supreme Court is not to be invoked … merely for the purpose of rectifying errors with regard to matters of settled law.” As such, contradictory decisions of the Court of Appeal cannot be the basis for granting certification.
18.
At any rate, in this matter, the issue of whether property owned by a limited liability company is available for distribution between husband and wife as matrimonial property was squarely before the High Court and the Court of Appeal.
The evidence on record was that the parties’ matrimonial home was built on the property known as Nyeri Municipality Block x/xxx. The other, known as Nyeri Municipality Block x/xxx, which was adjoining, was used as the kitchen garden prior to the applicant transferring both of them to [particulars withheld] Chemists Limited without any consideration at all. In its judgment dated 1st July 2015, the Court of Appeal, following its earlier decision in Muthembwa v. Muthembwa [2002] 1 EA 186, held that property that is “so closely linked to or mixed inextricably with property in the name of a company under the sole shareholding of a couple without outsiders to it”, and on which a matrimonial home is built, is and should be treated as matrimonial property available for distribution between husband and wife.
19.
We endorse that Court of Appeal decision and its later ruling dated 2nd December 2015, that the law on division of matrimonial property including properties registered in a company’s name is well settled and there is no uncertainty in it. As such, we find no warranty to review the Court of Appeal decision declining to certify the applicant’s intended appeal as involving a matter of general public importance requiring this Court’s consideration.
20.
The applicant, having initially partly succeeded in his application, we find that each party should bear its own costs of this application.
21.
Before we make final orders in this matter, it is imperative that the composition of the Court in this Ruling be explained.
22.
The two Judges (Ibrahim & Wanjala, SCJJ) whose decision is the subject of this review, are part of this Bench. It is pragmatic and good legal practice that where this Court sits as a full bench to review a decision of a single or limited bench, the Judge(s) whose decision, is the subject of review do not form part of the reviewing Bench. This rule is, however, not cast in stone.
23.
This is a collegial Court with a limited composition of seven Judges and a constitutional quorum of five Judges. Occasionally, not all the seven Judges may be available to sit to hear and determine cases before the Court. A Judge may be indisposed or unavailable due to one reason or the other such as bereavement or maternity/paternity leave. There may also be a vacancy in the Court. Does it mean that in such situations the Court suspends its operations? The answer is an emphatic no. To meet the constitutional quorum, it will, of necessity, require that a judge or judges whose decision is under review sit. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR the challenge caused by a vacancy was aptly captured and navigated by the majority of the Court as follows:
“
(15)
By Article 163(2) of the Constitution, the Supreme Court membership comprises seven Judges; and this Court is properly composed for normal hearings only when it has a quorum of five Judges. We take judicial notice that, for about a year now, the Court has had a vacancy of one member; and also that half of the current membership were previously in service in other superior Courts – and so having the possibility of having heard matters which could very well come up now before the Supreme Court. Recusal, in these circumstances, could create a quorum-deficit which renders it impossible for the Supreme Court to perform its prescribed constitutional functions.
(16)
Such a possibility would, in our view, be contrary to public policy and would be highly detrimental to the public interest, especially given the fact that the novel democratic undertaking of the new Constitution is squarely anchored firstly, on the superior Courts, and secondly, on the Supreme Court as the ultimate device of safeguard.
24.
In his concurrence in the same case, Ibrahim, SCJ, stated that in the case of a quorum deficit, the Judge(s) concerned are “allowed to sit and determine the matter under the doctrine of necessity to avoid a miscarriage of justice.”
25.
It is public knowledge that the Court has a vacancy, the Hon, Justice Ojwang’ having retired. It is for this reason, and in invocation of the doctrine of necessity, that the two judges whose decision is the subject of this application, formed part of the Bench in this matter.
26.
Having made that clarification and consequent upon our above stated view, we dismiss this application and make the following final orders:
(a)
The Application dated 30th May 2017 is hereby dismissed.
(b)
Each party shall bear its own costs of the application.
27.
Orders accordingly | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/33/eng@2020-08-04 |
Petition 41 of 2019 | Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Petition 41 of 2019) [2020] KESC 75 (KLR) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 4 August 2020 | 2,020 | Nairobi | Civil | Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others | [2020] KESC 75 (KLR) | null | Before the Court is a Petition of Appeal dated 30th October 2019, and lodged on 1st November 2019. The Appeal is against the decision of the Court of Appeal (Karanja, Odek & Kantai, JJ.A) in Civil Appeals No. 164 of 2013, delivered at Nairobi on the 19th July, 2019. The Appellate Court overturned the Judgment and Orders of the High Court (Lenaola J. as he then was), in Constitutional & Human Rights, Petition No 72 of 2011 delivered on 26th October 2012. The trial Court had dismissed the Respondents’ petition with costs and found that the Petitioners herein had acted within the law in demanding payment of excise duty on returnable containers, and that there was no breach of any Constitutional right against the 1st to 4th Respondents. | The jurisdiction of this Court under Article 163(4)(a) of the Constitution is clearly laid out in a long line of this Court’s decisions (see inter alia Lawrence Nduttu & 6000 Others vs Kenya Breweries Limited & Another SC Petition No. 3 of 2012 and Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, [2014] eKLR (Munya 1). In determining whether its jurisdiction has been properly invoked under Article 163 (4) (a), the Court has to consider whether the appeal before it raises a question of Constitutional interpretation or application, and whether the question has been canvassed in the Superior Courts, progressing through the normal appellate mechanism so as to reach the Supreme Court by way of an appeal. It also has to determine whether in the alternative, a trajectory of Constitutional interpretation or application is evident in the court’s reasoning leading to the determination of the question.It is undoubtedly clear from the Court Record that this Petition of Appeal emanates from Constitutional Petition No. 72 of 2011, wherein the 1st to 4th Respondents were seeking a declaration that the assessment of excise duty and VAT together with the interest and penalties was unconstitutional and illegal. The Respondents also claimed their fundamental rights and freedoms under the Constitution had been violated.
10.
After hearing the parties, Lenaola J (as he then was) identified the main issues for determination namely: whether the matter was properly before the court; whether the respondent acted within the law and; and whether there was a breach of fundamental rights of fair administrative action and legitimate expectation. In a nutshell the learned Judge found that on the first issue, the Petitioners (Respondents herein) had properly invoked the Court’s jurisdiction. On the second issue, the learned Judge found that the respondents had acted within the law in demanding payment of excise duty on returnable containers. On the third issue, the trial Judge found that there was no breach of any Constitutional right against the 1st to 4th Respondents.
11.
Aggrieved by the Decision of the High Court, the 1st to 4th Respondents lodged an appeal in the Court of Appeal. Two grounds in the Memorandum of Appeal are relevant at this point, firstly; that the learned Judge erred in law when he failed to fully appreciate and apply the provisions of Article 210(1) of the Constitution and secondly, that the learned Judge erred in fact and law when he failed to appreciate the entire legislative history of Section 127C of the Customs and Excise Act which was at variance and disharmony with (sic) Article 210(1) of the Constitution.
12.
From the above summary, we find little difficulty in concluding that the issues before the High Court as well as the Court of Appeal involved the interpretation and application of the Constitution. Towards this end, the High Court interpreted and applied the provisions of Articles 22, 47 of the Constitution and Section 127C of the Customs and Excise Act as read with Article 210(1) of the Constitution, while the Court of Appeal interpreted and applied the provisions of Section 127C of the Customs and Excise Act as read together with Article 210(1) of the Constitution. The Respondents argument that the Court of Appeal only interpreted and applied the provisions of Section 127C of the Customs and Excise Act and not any Constitutional provisions is clearly untenable. In view of the reasons tendered, we find that this Court has jurisdiction in respect of this Appeal. Having so found, we have no option but to dismiss the Preliminary Objection.
13.
F. Orders
i.
The Notice of Motion Application dated 17th December 2019, is hereby dismissed.
ii.
The Costs of this Application shall be borne by the Applicants/Respondents.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/75/eng@2020-08-04 |
Civil Application 4 of 2020 | Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others (Civil Application 4 of 2020) [2020] KESC 37 (KLR) (Civ) (4 August 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others | [2020] KESC 37 (KLR) | null | Before Court is a Notice of Motion dated 27th February, 2020 brought under Rules 21, 49(2) and 53 of the Supreme Court Rules, 2012; and Article 163 of the Constitution of Kenya, 2010 and supported by the affidavit Charles Karathe Kiarie sworn on 27th June 2020. It seeks to review the ruling a single-judge (S.C. Wanjala, SCJJ) made on 17th December, 2019 and to reconsider afresh the Applicants’ application made on 12th of June 2018.he application seeks orders:
a)
That this Honourable Court be pleased to extend the time for filing a Review application against the decision of his Lordship S.C Wanjala, J. delivered on the 17th of December 2019, disallowing extension of time for filing the Reference on Taxation against the two rulings delivered herein on the 13th of April 2018 by Hon D Ole Keiuwa.
b)
That if prayer (a) is allowed, this Honourable Court be pleased to vary and review the decision of his Lordship S.D Wanjala, J. delivered on the 17th of December 2019 disallowing extension of time for filing the References on taxation against the two rulings delivered herein on the 13th of April 2018 by Hon, D Ole Keiuwa. | We have considered the application as well as the grounds and the written submissions in support of and in opposition to it. On the first issue, the Applicants explain away the two delays as the time it took them to prepare the two applications for extension of time. As we have stated, it took them 27 days to prepare and file the first Reference and 30 days to prepare and file the second Reference.Considering the history of this matter which was filed in 1995, through High Court Civil Case (now ELC) No 2325 of 1995, like the single Judge of this Court, we find that the Applicant has not satisfactorily explained the two delays. Given the period of 7 days within which such references should be filed, the 27 and 30 days respectively taken to prepare the two References is unreasonable.
20.
Consequently, we dismiss this application with costs to the 1st and 2nd Respondents and make the following final orders:
(a)
The Application dated 27th Feb 2020 is hereby dismissed.
(b)
Each party shall bear its own costs of the application.
23.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/37/eng@2020-08-04 |
Petition 17 of 2019 | Mulima & 2 others (Suing as Representatives of Ex-East African Airways Staff Welfare Association) v Attorney General & 8 others (Petition 17 of 2019) [2020] KESC 39 (KLR) (4 August 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Civil | Mulima & 2 others (Suing as Representatives of Ex-East African Airways Staff Welfare Association) v Attorney General & 8 others | [2020] KESC 39 (KLR) | null | The petitioners who were former employees of the East African Airways Corporation (EAAC) which fell under the ambit of the East African Community (EAC) had filed a petition in the High Court (trial court). In the petition, they alleged violation of their constitutional rights under the Constitution as a result of non-payment of various amounts of money they alleged were due to them following the disbandment and dissolution of the EAC as well as the winding up of the EAAC. Their claim involved payment of emoluments accruing and owing to them as former employees of the defunct EAAC. They highlighted various provisions of the Constitution as the basis for their claim against the respondents.The trial court dismissed the petition stating that it was res judicata, the issues that it raised having been the subject of consideration by courts of competent jurisdiction. Aggrieved by the decision of the trial court, the petitioners moved the Court of Appeal where the appeal was dismissed on grounds that the matter was time-barred as the real issue in contest was one based on contractual and statutory obligations and not violation of the Constitution per se. Aggrieved by that decision, the petitioners filed the instant appeal. | The trial court and the appellate court in holding that there was no violation of any constitutional rights and that the claim arose from a contract of employment proceeded to interrogate the claims against the East African Community Mediation Agreement Act (EACMAA), a statute, and not any part of the Constitution. None interpreted or applied the Constitution in any substantive manner.Where a matter or claim was for restitution of emoluments and payments under statute, not of violated constitutional rights per se, then the Supreme Court would decline to assume jurisdiction under article 163(4)(a) of the Constitution. The instant claim was a civil claim against the respondents for unsettled or unpaid dues following the redundancy of the petitioners. The petitioners had not shown how the issues were of a constitutional nature, and hence, a requirement of them to make a determination on the same.
It was the applicability or otherwise of the EACMAA that was at the centre of the dispute and not the interpretation or application of the Constitution per se. None of the issues parties submitted on called for such interpretation or application of the Constitution in any substantive or even peripheral manner.
Having held that the issues before court were not constitutional in nature, there was no reason to delve into the other issues set out for determination. As long as EACMAA remained valid, the petitioners were at liberty to pursue their emoluments and pensions under that Act. The petitioners would as well pursue the trial court’s order directed at the National Bank of Kenya to pay retired staff of the EAC from funds it was holding.
A simple, otherwise straight forward claim for emoluments and pensions should never have taken almost 40 years to commence and prosecute.
Since the court had no jurisdiction, it would not address the place of the principle of res judicata in constitutional matters as well as the retrospectivity or otherwise of the Constitution.
Petition dismissed.
Orders
No orders as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/39/eng@2020-08-04 |
Petition 10 of 2018 | Njenga v Republic & 3 others (Petition 10 of 2018) [2020] KESC 35 (KLR) (4 August 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 4 August 2020 | 2,020 | Nairobi | Criminal | Njenga v Republic & 3 others | [2020] KESC 35 (KLR) | null | The appellant filed for judicial review (mandamus) to compel the Minister and Commissioner of Lands to issue her title for land she claimed to have purchased from the Jacob Njenga Muiruri. The land had been transferred to the 4th respondent through what she claimed was unlawful means. Both the High Court and the Court of Appeal dismissed her claims. Dissatisfied, she appealed to the Supreme Court, asserting violations of her constitutional rights under article 40 of the Constitution. During the appeal, Njenga passed away, and her legal representatives took over the case. | Whereas judicial review orders were one of the remedies available to a party claiming violation of the Bill of Rights under article 23(3)(f) of the Constitution, the instant dispute was not one in which allegations of violation of fundamental rights were at the centre of the dispute. The judicial review application was filed under order LIII rules 1, 2 and 3 of the Civil Procedure Rules as well as section 3A of the Civil Procedure Rules. Nowhere in pleadings or submissions was the court called upon to interpret any part of the Constitution.The substantive prayers for mandamus, general and exemplary damages did not require the trial court, the Court of Appeal nor the Supreme Court to interpret or apply the Constitution as the question whether the title issued to A. S Waweru was unlawful did not require that action on the part of the Superior Courts below nor the Supreme Court.
The Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution had not been met.
Appeal struck out; the appellant was to pay costs to the 4th respondent. | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/35/eng@2020-08-04 |
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