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Petition 44 of 2019 | Zubeidi v Active Partners Group Limited & 4 others (Petition 44 of 2019) [2020] KESC 73 (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 | Zubeidi v Active Partners Group Limited & 4 others | [2020] KESC 73 (KLR) | null | Before the Court is a Petition of Appeal dated 15th November 2019, and filed on 18th November 2019, under Articles 163(4)(a) of the Constitution of Kenya, Section 15(2) of the Supreme Court Act and Rules 9 & 33 of the Supreme Court Rules 2012; against the Court of Appeal’s decision (Koome, Sichale & J.Mohammed, JJ.A) in Civil Appeals Nos. 395 and 414 of 2018 (consolidated) delivered at Nairobi on the 8th November 2019. The Appellate Court upheld the High Court’s Ruling (Tuiyott J) in Civil Suit No 475 of 2016 delivered on 1st November 2017, setting aside a default Judgment but overturned a further Ruling delivered by the same Court on 29th May 2018, in effect finding that the trial Court lacked jurisdiction to entertain the suit before it. | As already settled in a long line of authorities by this Court, (see Lawrence Nduttu & 6000 Others vs Kenya Breweries Limited & Another S.C Petition No.3 of 2012; and Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, [2014] eKLR (Munya 1) the Court has to consider whether the appeal raises a question of Constitutional interpretation or application, and whether the same 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. We have also to determine, in the alternative, whether a trajectory of Constitutional interpretation or application is evident in the Superior Courts’ reasoning leading to the determination of the question.In the present appeal, the Petitioner’s appeal emanates from two Rulings of the trial Court, the Ruling setting aside a default Judgment and the Ruling on the effect of contractual clauses, ousting the jurisdiction of courts in Kenya. A perusal of the pleadings before the courts and the decisions of both the High Court and the Court of Appeal leaves no doubt that in arriving at the decisions they did, the two Superior Courts did not advert to the Constitution by way of interpretation or application. On the contrary, all that the courts did was first, to determine whether the default Judgment ought to be set aside and secondly, to interpret the effect of a contractual clause. The petitioner has raised the issues of breach of Articles 27, 48 and 50 of the Constitution for the first time before this Court. The interpretation and application of these Articles was not in issue before either the High Court or the Court of Appeal.
9.
It follows from the foregoing, that the Petitioner has not properly invoked the jurisdiction of this Court under Article 163 (4) (a) of the Constitution. The Preliminary Objection is therefore well founded. Consequently, we make the following orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
E. Orders
(i)
The Preliminary Objection dated 3rd February, 2020 is hereby allowed.
(ii)
The Petition of Appeal dated 15th November 2019, is hereby struck out.
(iii)
The costs of the proceedings in this Court shall be borne by the Petitioner herein.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/73/eng@2020-08-04 |
Petition 42 of 2018 | Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 15 May 2020 | 2,020 | Nairobi | Civil | Bellevue Development Company Ltd v Gikonyo & 3 others | [2020] KESC 43 (KLR) | null | There was a dispute between the petitioner and the 4th respondent, and an arbitrator was appointed to determine the dispute. The arbitrator issued directions as to when the statement of claim was to be filed. The 4th respondent failed to comply with the directions and instead, filed an application seeking extension of time to file its statement of claim. The arbitrator did not issue any directions or orders on that application. The 4th respondent later on served the arbitrator and the petitioner with its statement of claim. The arbitrator issued a ruling stating that he had the jurisdiction to determine the dispute. Aggrieved by that decision, the petitioner filed a suit at the High Court which held that there was no valid claim before the arbitrator. No appeal was preferred against that judgment. Later on, the 3rd respondent was appointed as the sole arbitrator to handle the dispute. The petitioner subsequently filed an application at the High Court seeking to stop the arbitration proceedings.The 1st respondent issued a ruling determining that the arbitration proceedings before the previous arbitrator were distinct from those pending before the sole arbitrator and that they could proceed. In June 2014, the petitioner filed an application for review of the decision of the 1st respondent. The 2nd respondent, presiding over the review application dismissed the application. Aggrieved by the decisions of the 1st and 2nd respondents, the petitioner filed a petition at the High Court which held that it lacked the jurisdiction to hear and determine the matter as it sought to enquire into decisions of courts of equal status. The petitioner filed an appeal at the Court of Appeal, however, it did not pursue the appeal despite being issued with a hearing notice. The petitioner also filed an appeal from the judgment of the High Court contending that the 1st and 2nd respondents had acted in bad faith and breached its rights to fair trial. The Court of Appeal dismissed the petitioner’s appeal thus leading to the filing of the instant appeal. | Article 160(5) of the Constitution entrenched the immunity of judicial officers who acted in good faith. The immunity granted by article 160(5) encapsulated protection from legal proceedings founded on acts committed or omissions made by judges in the lawful performance of their judicial functions.The concept of judicial immunity was not without foundation. Judicial immunity was an important tenet in the delivery of justice and the maintenance of the rule of law. For the proper administration of justice, judges should freely express themselves in matters brought before them. A judge, as well as other judicial officers, were required to have confidence in carrying out their judicial functions without the fear that they would be prosecuted or harassed for their acts or omissions.
The rationale for judicial immunity was the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts was thus necessary so that judicial officers could make the sometimes controversial decisions that were their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability. The concept of judicial immunity was also an important aspect of judicial independence under the doctrine of the separation of powers. The protection offered to judicial officers in article 160(5) of the Constitution was inherent in the independence of the Judiciary as a state organ within the doctrine of separation of powers.
It would be repugnant to the cause of justice if judges acted in fear of legal actions being brought against them for decisions they made in the course of discharging their mandate. The immunity granted by article 160(5) of the Constitution was not necessarily for the benefit of the judicial officer concerned. It was for the public and in particular for litigants appearing before the courts.
Besides freedom of thought, expression and action, the other cardinal factor encapsulated in judicial immunity was finality. It would be a travesty of justice if disgruntled litigants were permitted to sue judges who ruled against them thus prolonging litigation unnecessarily and personalizing matters that judges ought not to have had a personal interest in.
There was a clear distinction between judicial immunity and impunity, and it was important that judicial officers understand that they needed not find themselves on the side of latter. Article 160(5) of the Constitution drew the line between immunity and impunity; the line crossed where acting lawfully and in good faith met willful and negligent abandonment of the oath of office to uphold the integrity and independence of the Judiciary and to dispense justice without fear or favour. Article 160(5) was not blind to that inherent distorted character between judicial immunity and impunity, and thus provided a resonating standard for judicial officers to act according to the tenets enunciated under the Constitution; to ensure that there was rule of law, protection of fundamental rights and freedoms in the Bill of Rights and to do justice to all. The latter point spoke to the lawful action qualification as it did to the good faith expectation.
Judicial immunity was meant to provide protection to judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and to ensure transparency and accountability. A judge acting in his official judicial capacity thus enjoyed immunity from liability for judicial acts performed within the scope of their jurisdiction.
Article 160(5) of the Constitution granted judicial officers immunity if they acted in good faith. The antithesis to acting in good faith would be to act in bad faith, with a willful intent to act dishonestly or unfaithfully in the performance of judicial acts. Bad faith included malicious or fraudulent, dishonest or perverse conduct as well as gross illegality. Bad faith existed only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that revealed a breakdown of the orderly exercise of authority so fundamental that absence of good faith could be reasonably inferred and bad faith presumed.
Besides acting in good faith there was a two-tiered approach to determining whether judicial immunity applied:-
whether the acts were judicial acts; and
whether the acts were acts performed by the judge in his judicial capacity.
Regardless of any alleged violation of due process, procedural errors did not deprive a judge of immunity because due process necessarily attached to any act performed in a judicial capacity.
There was a distinction between excess jurisdiction and clear and deliberate seizure of absent jurisdiction; the former connoted that the judicial officer did not apprehend his jurisdictional limits, and the latter elaborated the deliberate corrupt or malicious seizure of jurisdiction by judicial officers, with obvious consequences on the latter.
Save in a clear case of deliberate and unlawful usurpation or seizure of jurisdiction where none existed or some other glaring impropriety, if a judge acted in the honest belief that his act was within his jurisdiction, he was protected. While acting in that belief, the protection continued notwithstanding any error in his reason for doing the act or his method of doing it. As such, if a judge acting in his capacity as a judge, acted in good faith in the lawful performance of his duties, he had absolute immunity even when he acted in excess of his jurisdiction. The protection or immunity of a judge also went into administrative acts. The immunity accorded to a judge was absolute in the meaning attributed to the expression by article 160(5) of the Constitution.
Fraud was a serious quasi-criminal imputation, a judge whose conduct was fraudulent, dishonest or perverse, was a disgrace to the cause of justice. A judge’s act of bad faith undermined his or her integrity and fidelity to the judicial oath of office. Under the law, the remedy for a litigant making allegations of fraud, dishonesty and/or perversity lay, not in a suit against such a judge but in a petition to the Judicial Service Commission for removal from office under article 168 of the Constitution. Article 168 had an elaborate procedure which entitled both a complaining party and the subject judge the opportunity, both at the Commission and in a tribunal set up under article 168(5) thereof, to a fair hearing. A suit directly against a judge for alleged misconduct or misbehavior was never an expectation of the drafters of the Constitution.
A judge remained unquestionably immune as long as he did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights. The duty imposed on a judge was only to recognize that his own decisions could sometimes be in error and to ensure that orders affecting important constitutional rights could be reviewed or appealed in another court. However, the conduct of a judge who acted mala fides or unlawfully could trigger proceedings before the Judicial Service Commission and could ultimately lead to his removal thus the need for extreme care in the enjoyment of immunity.
It could not be said that the petitioner was denied an opportunity to seek appellate or alternative relief from what it considered an affront to its constitutional right to a fair hearing under article 50 of the Constitution. Other than legal proceedings against the 1st and 2nd respondents, various avenues were available to it, and it was up to it to decide which avenue best suited its interests. The petitioner proffered an appeal to the Court of Appeal. For reasons unknown or unexplained, it chose not to pursue that appeal but instead filed another cause. The petitioner thus knew and initially chose the appeal mechanism as a means of seeking relief but later abandoned it. It could not therefore be heard to claim that it was denied an opportunity to be heard and that there was a violation of its constitutional rights under article 50.
No evidence was provided to support the claim that in dismissing the petitioner’s applications, the 1st and 2nd respondents acted in bad faith and without jurisdiction thus violating the petitioner’s rights to a fair trial in its dispute with the 4th respondent. That was not the act of a serious litigant or complainant even if the 1st and 2nd respondents had no judicial immunity.
Suing a judicial officer for rendering an unfavourable decision rather than appealing or seeking a review was a misconception and a step in the wrong direction on the part of the petitioner. At times, litigants could feel aggrieved by some of the decisions that judicial officers made. However, that was not in any way an exoneration of the petitioner in its actions. To seek relief by apportioning an unwarranted attack on the 1st and 2nd respondents, who were lawfully exercising their judicial function, was not only tantamount to harassment and intimidation of the judicial officers, but also a red herring that the petitioner conceived to deny or delay the 4th respondent’s right to a remedy under their contract.
To amount to impunity, a judge’s act had to be a clear and deliberate seizure of absent jurisdiction. If proved, such acts would not only be an attack on the integrity and conduct of the 1st and 2nd respondents, but also a reprehensible affront to the cause of justice and the independence of the Judiciary. Such acts were tantamount to tarnishing the image of the Judiciary, violating its integrity and putting all judicial officers into disrepute. A mere statement that the 1st and 2nd respondents acted with impunity did not suffice. The petitioner had not brought forth any iota of evidence, let alone credible evidence that the 1st and 2nd respondents acted in bad faith or against the law.
The 1st and 2nd respondents as judges of the High Court acted in accordance to and within their jurisdictional limits under article 165 of the Constitution. They could have rendered decisions which were unpalatable to the petitioner, but that too was within their judicial function. The petitioner chose to challenge those decisions through an unorthodox approach that could not be lauded but ought instead to be condemned.
Petition dismissed; petitioner to bear the costs of all the respondents, both in the court and the superior courts below. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/43/eng@2020-05-15 |
Reference 3 of 2019 | In the matter of Council of Governors & 47 others (Reference 3 of 2019) [2020] KESC 65 (KLR) (Civ) (15 May 2020) (Advisory Opinion) (with dissent) | Advisory Opinion | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 15 May 2020 | 2,020 | Nairobi | Civil | In the matter of Council of Governors & 47 others | [2020] KESC 65 (KLR) | null | The applicants were the Council of County Governors and all the 47 County Governments of Kenya. They sought an advisory opinion pursuant to article 163(6) of the Constitution from the Supreme Court with respect to four main issues. All the issues revolved around division of revenue. | The Commission on Revenue Allocation (CRA) was established under article 215 (1) of the Constitution. Under article 216(1) of the Constitution, its principal function was to make recommendations for the equitable sharing of revenue raised by the National Government between the national and county governments and among the county governments.The term recommendation as used in article 216 of the Constitution should first and foremost be given its literal and natural meaning. A recommendation was a suggestion or proposal for a certain cause of action. Such a proposal would not ordinarily bind the person or entity that it addressed. However, categories of recommendation differ in their meaning, nature and effect, depending on the context in which they were deployed.
It would be inappropriate to categorize the recommendations of the CRA on the sharing of national revenue as mere suggestions or proposals. The recommendations had to be accorded serious consideration by both Houses while debating the Division of Revenue Bill.
A reading of articles 205, 204(4) and 218 of the Constitution left no doubt that the Constitution placed a very high premium on the recommendations of the CRA. Once those recommendations were tabled in Parliament, they had to be accorded due consideration before voting took place in either of the Houses, on the Division of Revenue Bill and the County Allocation of Revenue Bill. Therefore, if either of the two Houses passed a Bill envisaged under article 205 of the Constitution without considering the recommendations of the CRA, the resultant legislation would be unconstitutional.
Article 218(2) of the Constitution provided that both the Division of Revenue Bill and the County Allocation of Revenue Bill, had to be accompanied by a memorandum setting out, inter alia, a summary of any significant deviation from the Commission on Revenue Allocation’s recommendations, with an explanation for each such deviation. Therefore, there was no doubt that Parliament could deviate from the recommendations of the CRA while debating any of the two revenue sharing Bills. Not every deviation from those recommendations had to be explained; only the significant deviations had to be explained.
The recommendations of the CRA were not binding on the National Assembly or the Senate. However, the two Houses could not ignore or casually deal with the recommendations.
The Constitution ensured that Parliament would benefit from the technical insights of the CRA when debating revenue sharing and allocation Bills by requiring Parliament to consider the CRA's recommendations without being bound. That ensured that the entities involved in the budget making process were able to critically apply their collective mind to the process. Parliament and the CRA could fail to agree on revenue allocation but they had to be guided by the objective criteria set in article 203(1) of the Constitution.
In the Matter of the Speaker of Senate & Another v the Attorney General & Another & 4 Others; Ref. No 2 of 2013, the Supreme Court opined that the Senate had a clear role to play, in the processing of the Division of Revenue Bill. The Speaker of the National Assembly invited the court to depart from that decision in order to clear an impasse between Senate and the National Assembly on a Division of Revenue Bill by excluding Senate from the process of passing the Bill into law. For the Supreme Court to depart from a prior decision, there had to be a clear and well-reasoned justification.
A litigant could not urge the Court to depart from its previous decision simply because he disagreed with it, or that the decision, militated against his case. The application would have to be served on all respondents who would then respond to it. None of the parties were given an opportunity to respond to the invitation by the Speaker of the National Assembly for the court to depart from its previous decision and an application was not made. The court was moved in a perfunctory manner and it was unable to consider the merits of the Speaker's invitation in circumstances where the other parties were not heard on the same.
The preposition that in order to resolve the impasse, an application be made to the High Court under article 165 (3) (d), for orders compelling the National Assembly to provide for the equitable share of revenue due to the counties on the basis of the recommendations by the Commission on Revenue Allocation, was untenable for two reasons:- adopting such a course of action would defeat the finding that the recommendations of the CRA were not binding; and, it would fundamentally shift the revenue allocation function from the legislature to the judiciary, thus radically upsetting the doctrine of separation of powers.
The preposition of using the Revenue Allocation Act of the previous Financial Year as a fallback position to solve the impasse appeared practical and logical but it did not have its basis on any principle or provision of the Constitution.
The Constitution contemplated a scenario where the National Government would be unable to access funding due to the absence of enabling legislation. Article 222 of the Constitution provided that the National Assembly had power to authorise the withdrawal of money from the Consolidated Fund. It would be for purposes of meeting expenditure necessary to carry on the services of the National Government during that year until such time as the Appropriation Act was assented to. The withdrawal would not exceed one-half of the amount included in the estimates as expenditure for that year that had been tabled in the National Assembly and be included under separate votes for the several services in respect of which they were withdrawn, in the Appropriation Act.
While the withdrawal of money for the purpose of the National Government expenditure under article 222 of the Constitution was based on a percentage of the estimates of expenditure for that year, the same method could not apply to the County Government, since the estimates did not include the equitable revenue share due to counties. Logic would require that the percentage of the money to be withdrawn would be based on the Division of Revenue Bill; yet this would be legally untenable, given the fact that the Bill, was not only the subject matter of controversy, but was also yet to pass into law. In the circumstances, in the event of an impasse, the percentage of the money to be withdrawn would be based on the equitable allocation to counties in the Division of Revenue Act of the preceding financial year. The legislature should pass legislation to give normative form to that arrangement.
Legislation for the implementation of the national budget and allocation of revenue to both the National Government and county governments had specific and rigid timelines within which they should be enacted because they operationalized the financial existence of the country. Failure by Parliament to discharge such a critical legislative function, in the absence of an emergency, or any other disaster that disrupted parliamentary business, would not only violate the Constitution, but also expose the country to existential danger. Such a Parliament had to be considered to have run its course and be dissolved.
Under article 261(7) of the Constitution, Parliament could be dissolved for failure to enact certain legislation within a specific period of time. That provision would not only apply to legislation listed in the Fifth Schedule to the Constitution but also to other legislation such as the Division of Revenue Act. Failure to enact such legislation by Parliament, in the absence of an emergency or other disaster, would invite the enforcement of sanctions envisaged under article 261 of the Constitution. Therefore, if Parliament failed to agree on division of revenue during a second mediation under article 113 of the Constitution, any person could petition the High Court for a declaration to the effect that Parliament had violated the Constitution.
Under article 219 of the Constitution, a county’s share of revenue raised by the National Government had to be transferred to the county without undue delay and without deduction, except when the transfer had been stopped under article 225 of the Constitution. Unless there were timelines set by the Constitution or the law, a court had to consider each case on its own merits to determine whether there had been undue delay in the performance of an act by the concerned entity.
By not prescribing a specific time limit, article 219 of the Constitution allowed for a degree of flexibility on the part of the National Treasury in effecting monetary transfers to counties. The court was not the appropriate forum for a determination on precisely when monies due to counties should actually be transferred to the counties. However, the fact that the Constitution had not prescribed a specific timeline did not give the National Treasury the latitude to capriciously decide when to disburse funds to the counties.
Counties operated within rigid budgetary cycles and any delay in releasing funds to counties had to be justifiable and explained in good time. Releasing funds at a time when they could not be realistically utilized in the implementation of county projects in accordance with their budgets constituted a violation of the Constitution.
A reading of article 218(1) and 221 of the Constitution did not provide for which of the two bills, namely the Division of Revenue Bill and the Appropriation Bill, should be enacted before the other. It was clear that once enacted the Division of Revenue Act divided the revenue raised nationally between the two levels of Government while the Appropriation Act authorized the withdrawal and application of monies from the Consolidated Fund by the National Government.
Both the Division of Revenue Bill and the County Allocation of Revenue Bill were to be introduced in Parliament at least two months before the end of each financial year. The estimates of revenue and expenditure of the National Government were also to be submitted to the National Assembly, at least two months before the end of each financial year. That sequence of events would lead to the following conclusions:-
The Appropriation Bill was incapable of being introduced unless the estimates of revenue and expenditure had been approved and passed by the House.
The Appropriation Bill came into life after the Division of Revenue Bill since the latter would already have been introduced into Parliament at least two months before the end of the financial year.
The estimates of revenue and expenditure had to logically be based on or at the very least be in tandem with, the equitable share of revenue due to the National Government as provided for in the Division of Revenue Bill.
The Appropriation Act had to be based on the equitable share of revenue due to the National Government as provided in the Division of Revenue Act.
In an ideal situation, the enactment of an Appropriation Act could not precede the enactment of a Division of Revenue Act. The Cabinet Secretary responsible for finance would submit the estimates of revenue and expenditure to the National Assembly, in his capacity as the Chief Budget Officer of the Executive. In that capacity, the Cabinet Secretary had to base his/her estimates on the National Government’s share as provided for in the Division of Revenue Bill. Additionally, section 39 of the Public Finance Management Act left no doubt that the National Assembly, could not enact an Appropriations Act before enacting the Division of Revenue Act.
Per DK Maraga CJ [concurring]
Under article 259(1) of the Constitution, the Constitution was to be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. Under article 259(3) of the Constitution, the Constitution would also be interpreted in accordance to the doctrine that the law was always speaking.
A holistic interpretation of the Constitution meant that the entire Constitution had to be read as an integrated whole with no one particular provision destroying the other but each sustaining the other.
Under article 93(1) of the Constitution Parliament consisted of the National Assembly and the Senate. The discharge of legislative functions was shared by the two Houses. Under article 95(1) and 95(2) the members of the National Assembly represented the people of the constituencies and special interests and deliberated in the National Assembly and resolved issues of concern to the people. Under article 96(1) of the Constitution, the Senate represented the counties and served to protect the interests of the counties and their government. Article 96(2) of the Constitution clearly stated that Senate would participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties as provided in articles 109 to 113 of the Constitution.
Under article 217 of the Constitution the passing of legislation on division of revenue was a shared mandate between the National Assembly and the Senate. Further, the principles of public finance set out in article 201 of the Constitution included the equitable sharing of national revenue and consultation on financial legislation and they related to both Houses of Parliament. Therefore, there was a joint role shared between the National Assembly and the Senate in the annual division and allocation of revenue Bills.
The Division of Revenue Bill and the County Allocation of Revenue Bill were not money Bills within the definition of article 114(3) of the Constitution. They were therefore not within the exclusive competence of the National Assembly.
A purposive interpretation of articles 95(4)(a) & 95(4)(b), 96(2), 110(1)(c), 114(3), 205 and 218(1)(a) of the Constitution read together with sections 38 to 41 of the Public Finance Management Act, made it quite clear that both the National Assembly and the Senate played a role in the division of revenue between the two levels of Government.
Dissenting opinion
Per NS Ndungu [dissenting]
A formal application for the court to depart from a previous decision was not a requirement where the matter at hand was an advisory opinion. In advisory opinions there were no interests at stake as would normally be the case in adversarial proceedings. Advisory opinions did not arise from any contests of rights or claims disposed of by regular process. In exercising advisory opinion jurisdiction, the court should not be constrained by procedures required in ordinary proceedings.
The Constitution under article 167(3) anticipated that there would be occasional need for the Supreme Court to depart from its previous decisions. The Supreme Court was not bound by its decision in the Senate Matter 2013.
While rendering an advisory opinion, under article 163(6) of the Constitution, the Supreme Court could undertake any necessary interpretation of the Constitution. The court's revision of its prior decision relating to a similar matter to the one under consideration, would not occasion prejudice to any party. It would clarify and outline a harmonious and comprehensive picture of the requirements for the legislative process and roles for the two Houses as provided under the Constitution.
The request to depart from the decision in Senate Matter 2013 was not casually made. A lot of thought, real interest and effort went into making that proposition.
The decision of the Majority in the Senate Matter 2013 ought to be reviewed especially because it did not take into account the architectural design of the Constitution and the legislative processes that arose from that design, with regard to the roles of the two Houses of Parliament as set out in articles 95 and 96 and part 4 of Chapter 12 of the Constitution. That design was intended to avoid situations where disputes between the two Houses of Parliament defeated or delayed important aspects of public finance and potentially threw the country into chaos by rendering operations by either level of government impossible or impractical.
The design as drawn by the drafters of the Constitution, established which House would originate the Division of Revenue (DOR) Bill, as a money bill and what was to happen when there was an impasse over a money bill. In most jurisdictions, where there was a deadlock between two Houses, the resolution was to allow the final determination to be made by the house with veto powers, which was the house that originated the Division of Revenue Bill. Further, in other democratic and bicameral jurisdictions, the Division of Revenue Bill was considered to be a money bill and therefore legislative processes that applied to money bills applied to it.
The Division of Revenue Bill was a money bill that could only be introduced by the National Assembly in accord to article 109 (5) of the Constitution. Article 95(4)(a) of the Constitution reinforced that position. It stated that the National Assembly determined the allocation of national revenue between levels of Government as provided in part 4 Chapter 12.
The National Assembly as the people's representative budgeted, collected, shared between the levels of government and audited revenue and it was knowledgeable on the finances of the country. The National Assembly was best placed to originate the Division of Revenue Bill as it financed the revenue share and proposed revenue collection forecasts in the requisite division. In the event of a deadlock between the Senate and National Assembly, then the National Assembly as the originating house should have final say or even veto powers.
Article 203(2) of the Constitution guaranteed county governments an equitable allocation of a minimum of fifteen percent of all national revenue collected by the National Government. That amount ought to be readily available to county governments as it was already allocated under the Constitution. Obtaining those funds ought not to be a bicameral legislative process. All that was required, pursuant to article 206(4) of the Constitution was to seek the approval of the Controller of Budget to authorize the withdrawal of that amount from the Consolidated Fund. Hence, in the event of a delay in the passage of the Division of Revenue Bill, article 206(4) of the Constitution provided a tidy and efficient solution.
The proposal of the majority with respect to how to deal with the impasse on revenue allocation was untenable as it constituted a major breach of the doctrine of separation of powers. Allocation of revenue was a task that fell squarely on the Executive and the Legislature. Any proposal from the court, directing or recommending action to be taken by Parliament and what percentage should be allocated to the counties, was not only an attempt to amend the Constitution but was tantamount to supervising the work of parliament and endangering the institutional comity between the three arms of government. The core function of the Judiciary was to interpret and apply laws and not to make them.
Although the majority were of the view that they were protecting the Constitution, they were in fact re-writing the Constitution or meddling with a political and budgetary process in which they had no expertise. The simple solution for the issue was to point out to Parliament that they needed to solve it with finality by enacting relevant legislation including amending the Constitution if necessary.
Under the circumstances Parliament had the option of making necessary constitutional and legislative amendments to clarify whether the Division of Revenue Bill was a money bill and what legislative processes should apply to its passage including the resolution of disagreements between the two Houses.
Under section 191(1) of the Public Finance Management Act, each year when the Budget Policy Statement was introduced, the Cabinet Secretary had to submit to Parliament a Division of Revenue Bill and County Allocation of Revenue Bill prepared by the National Treasury. The Budget Policy Statement, under section 25 of the Public Finance Management Act would be introduced to Parliament by February 15. Under article 218 of the Constitution, a Division of Revenue Bill and a County Allocation of Revenue Bill, had to be introduced in Parliament at least two months before the end of each financial year. Effectively, there was a conflict between the Public Finance Management Act and the Constitution in that the statute altered constitutional timelines set for the introduction of Division of Revenue Bill and a County Revenue Allocation Bill in Parliament.
In an ideal situation where the two Houses agreed on a Division of Revenue Bill and a County Allocation of Revenue Bill, the process ought to end by June 30. Where the two Houses of Parliament failed to agree on an ordinary Bill, the Bill would be referred to a Mediation Committee under article 113 of the Constitution. The Committee would be comprised of an equal number of members form each House and it would create a version of the Bill that was acceptable to both Houses. If the Committee failed to agree on the Bill then that Bill would be defeated. That also meant that even after a single mediation process, Parliament would not meet the constitutional timelines of passing the two Bills.
There were a number of conflicting timelines that existed within the legal framework that needed to be brought to the attention of Parliament for corrective action. There was need to clarify on the exact timelines within which the Division of Revenue Bill and the County Allocation of Revenue Bill could be introduced to Parliament. That would call for amendments to articles 218 and 221 of the Constitution, and section 190 and 191(1) of the Public Finance Management Act.
The Advisory Opinion, as rendered by the Majority of the Bench, conclusively disposed of the following four issues in the manner determined;
Orders
the recommendations of the Commission on Revenue Allocation are not binding on Parliament;
in the event of an Impasse over the Division of Revenue Bill, the solution prescribed in paragraphs 81 to 91 of this Opinion shall apply;
the Supreme Court or any other court for that matter, is not the appropriate forum for setting timelines as to when the National Treasury must transfer the equitable share of revenue to counties; and
Parliament could not enact the Appropriation Act before the enactment of the Division of Revenue Act. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/65/eng@2020-05-15 |
Application 39 of 2019 | Wanderi & 106 others v Engineers Registration Board & 8 others; Egerton University & another (Interested Parties) (Application 39 of 2019 & Petition 4 of 2016 (Consolidated)) [2020] KESC 44 (KLR) (15 May 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 15 May 2020 | 2,020 | Nairobi | Civil | Wanderi & 106 others v Engineers Registration Board & 8 others; Egerton University & another | [2020] KESC 44 (KLR) | null | A. Background
1.
On 17th July 2018, we delivered a Judgment in this matter and Our final orders were as follows:
(a)
The Judgment of the Court of Appeal dated 12th June, 2015 is hereby set aside in toto.
(b)
The decision of the High Court issued on 15th October, 2012 is hereby affirmed in the following specific terms:
(1)
A declaration hereby do issue that the power of the Engineers Registration Board under the provisions of section 11(1)(b) of the Engineers Registration Act (now repealed) to register graduate engineers did not include the power to accredit and approve engineering courses offered by public universities incorporated under the Laws of Kenya.
(2)
A declaration hereby do issue that in refusing to register the Applicants, the Board violated the Petitioners’ right to fair administrative action under Article 47(1) of the Constitution and the Petitioners’ right to human dignity under Article 28 of the Constitution as read with Article 55 (a) and (c) of the Constitution.
(3)
An order of mandamus do hereby issue directing the Engineers Registration Board to register the Petitioners and 2nd Interested Parties in Petition No.19 of 2015, as Engineers under the Engineers Registration Act within the NEXT TWENTY-ONE DAYS (21) and in default the said Petitioners and 2nd Interested Parties be at liberty to apply to this Court for any appropriate Orders for enforcement of the Orders herein.
(4)
The Engineers Registration Board shall pay general damages assessed at Kshs.200,000/- to each of the Petitioners and 2nd Interested Parties. The sum shall carry interest at a rate of 12% per annum from the date of the High Court Judgment.
(c)
The Engineers Registration Board, shall bear the costs of the Petitioners and 2nd Interested Parties in Petition No. 19 of 2015, in the High Court, Court of Appeal and in this Court. The said costs shall carry interest at a rate of 12% per annum respectively from the date of judgment in each respective judgment until payment in full.
(d)
All other parties shall bear their own costs.
2.
The 1st Respondent, the Engineers Registration Board, on 20th December 2019 (a year and a half after the above orders were issued), filed a Notice of Motion under Rule 20(4) of the Supreme Court Rules, 2011 as well as Article 159(2) of the Constitution seeking a review of the Judgment aforesaid.
B. The Application
3.
The Notice of Motion, dated 17th December 2019, is supported by the Affidavit of Eng. Nicholas Musuni, the Registrar/CEO of the Applicant herein and it is his deposition that, in compliance with the Judgment in issue, the Applicant did the following:
i)
It issued to some of the Petitioners and 2nd Interested Parties, Certificates of Registration as Graduate Engineers.
ii)
It invited some of the Petitioners and Interested Parties to make applications to be registered as Graduate Engineers if they had graduated on or before the effective date i.e. 14th September 2013, the date the Engineers Act, 2011 came into effect.
iii)
Upon scrutinizing the applications made, it was noted that some of the Petitioners and 2nd Interested Parties did not graduate with Engineering degrees but had Bachelor of Industrial Technology degrees which made it difficult to register them as Graduate Engineers without breaching the law to wit Section 11(1) (b) of the Engineers Registration Act, Cap.530 (now repealed) as well as Section 18 of the Engineers Act, 2011 which limit registration of Graduate Engineers to persons holding Engineering degrees.
4.
The Applicant has also noted that persons who hold Bachelor of Industrial Technology Degrees and are therefore Technologists and Technicians are registered under the Engineering Technology Act No.23 of 2016 by the Kenya Engineering Technology Registration Board and not itself.
5.
That therefore it is imperative to review the Judgment aforesaid and remove the anomaly noted in the implementation of the same. | E. Analysis
15.
We note that save for the Applicant and the Petitioners – represented by Mr. Wanderi, no other party participated in the Application before us. Noting the submissions by those parties, Rule 20(4) of the Supreme Court Rules provides as follows:
“
The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions”
16.
In Fredrick Otieno Outa, this Court had this to say on the import of that Rule:
(87)
The other provision that we must interrogate, is Rule 20(4) of the Supreme Court Rules: which provides that: “The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions.
(88)
Unlike Section 21(4) of the Supreme Court Act, Rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon this Court, jurisdiction or powers, to review its own Judgments, or decisions beyond the confines of the Slip Rule.
(89)
Yet, the issue is not as simple or direct as it appears, given the fact that, here, we are dealing with subsidiary legislation. Such legislation must flow from either the Constitution or a parent Act of Parliament. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, confer upon the Supreme Court, powers, to sit on appeal over its own decisions or to review such decisions. This being the case, no rule of the Court, not even Rule 20(4), as worded, can confer upon this Court, jurisdiction to review its own decisions. If this were the intent of Rule 20(4), then the said Rule, would be of doubtful constitutional validity. We must therefore hold, that Rule 20(4) is not capable of conferring upon this Court, powers to review its decisions, beyond the confines of the Slip Rule, as embodied in Section 21(4) of the Supreme Court Act. At best, this Rule can only be understood to be echoing Section 21(4) of the Supreme Court Act.
The Court then concluded thus:
(90)
Flowing from the above analysis, and taking into account the elaborate submissions by Counsel, and the practice in the Commonwealth and beyond, the inescapable conclusion to which we must arrive, is that this Court, being the final court in the land, has no jurisdiction to sit on appeal over, or to review its own Judgments, Rulings, or Orders, save in the manner contemplated by Section 21(4) of the supreme Court Act. The Court becomes functus officio once it had delivered Judgment or made a final decision.
17.
The Court having so stated, went further to clarify its review jurisdiction in the following words;
(91)
Having reached this conclusion, based largely on the fact that, neither the Constitution, nor the law, explicitly confers upon the Court, powers to review its decisions, does this render this Court entirely helpless, Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do justice, of course, litigation must come to an end. But should litigation come to an end, even in the face of an absurdity, the Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice. The Constitution form which this Court, and indeed all Courts in the land, derive their legitimacy decrees that we must do justice to all.
It then settled the law on review as follows:
(92)
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, Ruling 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.
These principles are no doubt informed by various judicial authorities, in other jurisdictions, such as the ones we have cited from Nigeria, United Kingdom, India and South Africa.
18.
We reiterate the above holdings and would only add that, we have seen no reason to depart from the above principles and we shall apply them to the present Motion. In that regard, it has not been claimed by the Applicant that the Judgment in issue was obtained by fraud or deceit. Neither has it been termed a nullity nor that it was made in the mistaken belief that the parties had consented thereto. What of the fourth principle that the Judgment was rendered on the basis of a repealed law or as result of a deliberately concealed statutory provision? The Applicant has submitted in that context that the provisions of the Engineers Registration Act (now repealed) should have been read alongside the provisions of the Engineering Technology Act, No.23 of 2016 and the Engineers Act to reach a conclusion that Technologists and Technicians cannot and should not be registered under the latter Act as to do so would be an illegality. What should we make of that submission which is only opposed on the main ground that double registration is not unlawful and therefore we should decline the prayer for review?
19.
In the above context, the Applicant has stated that it is unable to implement the Judgment without breaching the law to wit the Engineers Registration Act as read with the Engineering Technology Act No.23 of 2016. That therefore, such a situation coupled with the fact that the Court, in rendering its Judgment, was not made aware of the existing contradiction in registering Technologists and Technicians as Graduate Engineers, ought to move the Court to expand the principles in Outa and allow the Motion for review on these grounds. The Petitioners have taken a different view contending that in fact the registration of the Appellants as Graduate Engineers has already been done and there is therefore nothing to review.
20.
In any event, the Petitioners have added, registration of Engineering Technologists and Technicians as such and also as Engineers is not unlawful and the double registration is therefore proper in their view and our Judgment should not be disturbed.
21.
In Outa, we asked ourselves this question: “Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do Justice? Of course, litigation must come to an end. But should litigation come to end, even in the face of an absurdity? The Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if the circumstances so demand, to do justice.”
22.
We reiterate our position as succinctly expressed above. Are the circumstances presently obtaining so exceptional as to warrant a review of our Judgment? In our view, the matter is straightforward.
23.
In our Judgment, and relevant to the issue at hand, we had ordered the Applicant “to register the Petitioners and 2nd Interested Parties in Petition No.19 of 2015 as Engineers under the Engineers Registration Act within the NEXT TWENTY-ONE DAYS”. It is now obvious, and this fact has not been contested, that, not all the Petitioners and 2nd Interested Parties were actually trained and qualified to be registered as Graduate Engineers. They were trained and qualified as Engineering Technologists and Technicians and therefore graduated with a Bachelors degree in Industrial Technology (BIT).
24.
According to the Applicants, a fact conceded by the Petitioners, registration of the latter falls outside the ambit of the Applicant and instead, is the responsibility of another entity known as the Kenya Engineering Technology Registration Board created by the Engineering Technology Act No.23 of 2016. Are these facts so exceptional as to warrant a review of our Judgment? Should the Petitioners and Interested Parties benefit from double registration under two different statutory regimes only because of this Court’s Judgment which did not at all address this apparent contradiction and conflict? We think not.
25.
We have perused both the Engineers Registration Act Cap.530 which was the law applicable at the material time. Section 11 therefor provides as follows:
“
11.
(1)
Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered engineer if he is—
(a)
a member of an institution of engineers the membership of which is recognized for the time being by the Board as furnishing a sufficient guarantee of academic knowledge of and practical experience in engineering; or
(b)
a person who—
(i)
is the holder of a degree, diploma or licence of a university or school of engineering which may be recognized for the time being by the Board as furnishing sufficient evidence of an adequate academic training in engineering; and
(ii)
has had not less than three years’ practical experience of such a nature as to satisfy the Board as to his competence to practise as a registered engineer:
Provided that not less than two years of the practical experience required by this subparagraph shall have taken place after obtaining the academic qualification specified in subparagraph (i).
(2)
Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered graduate engineer if he is a person to whom subsection (1) (b) (i) applies but is not yet a person to whom either subsection (1) (a) or subsection (1) (b) (ii) applies. Rev. 2010] Engineers Registration CAP. 530
(3)
Once a person has been registered as a registered graduate engineer under subsection (2) he shall be deemed for all purposes to have been accepted by the Board as being academically qualified for registration as a registered engineer and subsequent acceptance of his name for registration as a registered engineer under subsection (1) (b) (ii) as distinct from its acceptance under the other provisions of subsection (1) shall not be challenged.
(4)
Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered graduate technician engineer if he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training.
(5)
Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee to be registered under this Act and to have his name entered in the register as a registered technician engineer if—
(a)
he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training; and
(b)
has had not less than three years practical experience of such a nature as to satisfy the Board as to his competence to practise as a registered technician engineer.
(6)
Subject to this Act, a registered engineer shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered consulting engineer in a particular classification and grade if—
(a)
he has practised in a specialized engineering field as a registered engineer for a period determined by the Board; and
(b)
he has satisfied the Board as to his having achieved a standard of competence to enable him to practise as a consulting engineer in a particular specialization and grade.
(7)
The Board may require an applicant for registration to satisfy CAP. 530 8 Engineers Registration [Rev. 2010] it that his professional and general conduct have been such as, in the opinion of the Board, to make him a fit and proper person to be registered under this Act and the Board may direct the Registrar to postpone the registration of an applicant until so satisfied.” [Emphasis added] | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/44/eng@2020-05-15 |
Petition 4 of 2017 | Coast Professional Freighters Limited v Oganda & 2 others (Petition 4 of 2017) [2020] KESC 48 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola | 15 May 2020 | 2,020 | Nairobi | Civil | Coast Professional Freighters Limited v Oganda & 2 others | [2020] KESC 48 (KLR) | null | A. Introduction
1.
Sometime in 1998, the 1st Respondent, Welsa Bange Oganda, filed a suit at the High Court in Mombasa (HCCC No.58 of 1998). After what was described by the trial Judge, Kasango J, as “a long journey”, Judgment was eventually delivered on 21st August 2015 with the following orders being issued:
a)
The alleged auction of 17th September 1997 of property Mombasa/Block X/219 is hereby declared null and void.
b)
The title Mombasa/Block X/219 shall hereof be rectified to revert back to the Plaintiff, Welsa Bange Oganda. In that regard, Coast Professional Freighters Limited shall vacate Mombasa Block X/219 within 30 days from today’s date failing which, eviction orders shall issue.
c)
There shall be Judgment jointly and severally against Industrial and Commercial Development Corporation and Coast Professional Freighters Limited for the Plaintiff for Kshs.8 Million.
d)
1st to the 3rd Defendants shall pay the Plaintiff’s costs of this suit.
2.
On appeal, the Court of Appeal, having re-evaluated the evidence and applying the applicable law to the same, dismissed the appeal with costs to the 1st Respondent. That decision triggered the present appeal.
B. Preliminary Objections
3.
We are now confronted with preliminary objections as follows:
i)
The first by the 1st Respondent dated 13th March 2017; and
ii)
The second by the 2nd and 3rd Respondents dated 2nd March 2018.
4.
All the three parties have raised objections to the hearing of the Petition of Appeal on the ground that, whereas the Appellant has not indicated what jurisdiction of this Court it is invoking, the appeal is not a proper one as a matter of right under Article 163(4)(a) of the Constitution nor does it raise a matter of general public importance as is the expectation of Article 163(4)(b) of the Constitution. Consequently, it is urged, this Court has no jurisdiction to hear and determine the appeal and instead, the same should be struck off with costs.
5.
In response to the Preliminary Objections, the Appellant has submitted that the dispute revolves around Article 40 of the Constitution which protects the right to property and whereas the Petition of Appeal is not grounded on Article 163(4)(b) on matters of general public importance, the same is properly before this Court as one involving the interpretation and application of the Constitution under Article 163(4)(a). To that extent therefore, it is urged that the Appeal is properly before this Court as a matter of right and should be determined on the merits. | C. Analysis And Determination
6.
Since the Appellant has admitted that Article 163(4)(b) is inapplicable to its appeal, it not being one involving a matter of general public importance, we shall only interrogate the applicability of Article 163(4)(a) i.e. whether the appeal is one filed as a matter of right under the said Article and requiring the interpretation and application of the Constitution by this Court.
7.
In doing so, we must from the onset state that, we shall not tire in reminding parties that this Court’s jurisdiction is circumscribed by the Constitution itself so that not every matter qualifies as an appeal to us. It therefore behoves every party to state, with a measure of specificity and precision, what jurisdiction it is invoking in approaching this Court. It is not for the Court to peruse an appeal, speculate on what jurisdiction it should assume, then proceed to determine such an appeal on that assumption. Where a party therefore fails to address the jurisdictional question ab initio and which therefore gives it standing before this Court, the appeal is one for striking out without further ado. That position is true of the present appeal.
8.
The above finding notwithstanding, we deem it fit to state with clarity whether indeed the appeal is properly before us under Article 163(4)(a) of the Constitution. Does it require the application and/or interpretation of the Constitution?
9.
Our perusal of the record at the High Court and Court of Appeal would show that as shown above, Kasango J was dealing with the question whether, the 2nd Respondent, having decided to exercise its rights as chargee over L.R. No. Mombasa/Block X/219 registered in the name of the 1st Respondent and who had allegedly failed to repay a loan he had taken from it, breached its agreement with the latter.
10.
As a corollary, the learned Judge determined the question whether, in the sale (at a public auction) and transfer of the 1st Respondent’s property aforesaid to the Appellant, fraud was committed by the Appellant and the 2nd Respondent.
11.
It is our view in that context that, nowhere in her Judgment did Kasango J make any attempt at interpreting or applying the Constitution because as can be seen by the final orders she issued (para 1 of this Ruling), no such issue arose for her determination. What of the Court of appeal?
12.
In their Judgment, the learned Judges of Appeal distilled the following issues for determination:
i)
Whether or not the High Court (Commercial Division) had jurisdiction to hear and determine the dispute;
ii)
Whether the exercise of statutory power of sale by the 2nd and 3rd Respondents was proper and or lawful;
iii)
Whether the Appellant participated in the public auction held on 17th September 1997;
iv)
If the answer to (iii) is in the affirmative, whether the Appellant emerged or was declared the successful bidder in the auction; and,
v)
Whether the award of Kshs.8 Million to the 1st Respondent, jointly and severally, against the Appellant and the 2nd Respondent was sustainable.
13.
In addressing all the above questions, the Court of Appeal did not once address any constitutional issue as is the expectation of Article 163(4)(a) i.e. the requirement for the interpretation and application of the Constitution to trigger our jurisdiction thereof.
14.
Without belabouring the point, this Court’s decisions on the issue confronting us and as enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, Hassan Ali Joho and Anor v Suleiman Said Shalabal & 2 Others [2014] eKLR; Aviation and Allied Workers Union of Kenya v Kenya Airway Ltd & 3 Others [2017] eKLR; are succinct in making the point that, where an appeal dos not require the interpretation and application of the Constitution; and where the superior Courts below have also not done so, then no appeal lies as a matter of right under Article 163(4)(a) of the Constitution. The present appeal is one such appeal and we deem it frivolous and vexatious as it is obvious to us that the Appellant, well represented by Counsel, ought to have known that it has no right to approach this Court if it had looked at its dispute from the prism of the Constitution and not mere displeasure and dissatisfaction with the decisions of both the High Court and the Court of Appeal.
15.
What of costs? Having found that the appeal is so frivolous that it ought not to have been filed in the first place, it follows that the Appellant shall pay costs to all the Respondents.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/48/eng@2020-04-30 |
Petition 14 of 2019 | Cordisons International (K) Limited v Chairman National Land Commission & 44 others (Petition 14 of 2019) [2020] KESC 50 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Cordisons International (K) Limited v Chairman National Land Commission & 44 others | [2020] KESC 50 (KLR) | null | A. Introduction
1.
The present appeal is premised on the contention by the Appellant that it had legitimate interest in the development of a wind power project on a parcel of land situate in Kiongwe, Lamu County. It further contends that, having secured all necessary approvals, it was granted a leasehold interest over the subject land by the 6th Respondent but it subsequently discovered that Part Development Plans PDP No.NBI/1281/2016/01 published in Gazette Notice Number 6554 as well as a letter of allotment had been issued to the 5th Respondents in a bid to defeat the Appellant’s interest.
2.
In order to protect its alleged interest over the subject land, the Appellant moved the Environment and Land Court (ELC) at Malindi by way of a Judicial Review Application ELC at Malindi J. R. Misc. Application No.11 of 2017 seeking orders inter alia to quash the decision contained in the letter of allotment dated 7th February 2017 addressed to the 5th Respondent; compel the 2nd Respondent to issue lease instruments to the Appellant over 11,100 acres of land in Kiongwe and to prohibit the 1st Respondent from denying the validity of the Appellant’s claim over that parcel of land.
3.
In its Judgment, the ELC (Olola J) declined to issue the orders sought and instead, dismissed the Judicial Review Application. The Appellant, aggrieved by that decision filed C.A No.91 of 2018 at the Court of Appeal. In dismissing the appeal, the appellate Court determined that, since the Appellant had failed to adhere to the procedure for challenging the PDP, it would have been wrong for the trial Court to review the said decision.
4.
Undeterred, the Appellant filed the present appeal contending inter alia that the learned Judges of appeal, as did the trial Court, erred in their interpretation and application of Articles 61, 62 and 67 of the Constitution.
5.
Before the appeal could be heard however, the 5th, 6th and the 7th – 38th Respondents filed Preliminary Objections on this Court’s jurisdiction to hear and determine the appeal. They are all now applying that the same be struck off or dismissed with costs for want of jurisdiction.
| D. Analysis and Determination
15.
We deem it necessary to dispose of the second objection first i.e. whether the appeal concerns a matter of general public importance. Without belabouring the point, it is trite that for an appeal to lie to this Court under Article 163(4)(b), Sub-Articles 4 and 5 of that Article must be complied with. They read 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 the 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”.
16.
From the record, no such certification as is required by the Constitution was obtained by the Appellant and so it cannot be that the Appeal is one filed under Article 163(4)(b) even if the Appellant had expressed that it had done so, and it has not.
17.
Before adverting to Article 163(4)(a), we have noted that the reason why the objections refer to both the constitutional interpretation and application jurisdiction of this Court as well as the general public importance jurisdiction, is because in its Memorandum of Appeal dated 17th April 2019, nowhere has the Appellant indicated what jurisdiction it was invoking in approaching this Court. We have in that regard often stated that, it is not for this Court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party appealing a Court of Appeal Judgment. An Appellant is expected to specify such jurisdiction with clarity to enable both the Court and the opposing party to know what case is before them. Without such specificity, such an appeal is one for striking out.
18.
Having so said, for completeness of the record, is the appeal before us one in which Article 163(4)(a) could be invoked and the dispute determined as one necessitating the interpretation and application of the Constitution?
19.
It must be recalled that what was before Olola J in ELRC J.R. Miscellaneous Application No.11 of 2017 was a judicial review Notice of Motion in which orders of prohibition, mandamus and certiorari were being sought. The main issue in contention was the legality or otherwise of a letter of allotment dated 7th February 2017 issued by the 2nd Respondent to the 5th Respondent and whether conversely, the 2nd Respondent ought instead to have issued land lease instruments to the Appellant over the disputed parcel of land in Kiongwe within Lamu County.
20.
In his Judgment, the learned Judge partly stated as follows, in determining the dispute before him:
The contention by the Ex-parte applicant that the subsequent allocation was irregular and unlawful for encroaching on land already issued and allocated to the Ex-parte applicant does not lie as in law. The 2nd Interested Party had no power to allocate the public land to the Ex-Parte Applicant in the manner it did or at all”.
21.
In determining as above, the Judge was concerned with the allocation of the disputed land as an administrative action and any references to the Constitution were as regards the powers of the 2nd Respondent to allocate public land to individuals and no more. Being dissatisfied with that determination, the Appellant, in its Petition of Appeal to this Court at paragraph 6 thereof has stated that the issues for determination by this Court are:
i)
Whether there are fundamental errors of misidentification of errors on the face of the Judgment that fundamentally affected the decision of the appellate Court.
ii)
Whether the dispute was framed and determined correctly.
iii)
Whether the 6th Respondent’s consent was required and acquired by the 2nd Respondent to allocate the subject land to the 5th Respondent.
iv)
Whether the 1st, 2nd and 3rd Respondents breached Article 47 of the Constitution as read with the Fair Administrative Action Act and the Rules of natural justice.
v)
Whether the 5th Respondent had the necessary approvals and had followed the correct procedure to be able to be allocated the subject land and;
vi)
Whether the 1st, 2nd and 3rd Respondents were biased in favour of the 5th Respondent and against and Petitioner.
22.
The question that must necessarily arise in the above context is this; what was before the Court of Appeal post Olola J’s Judgment to trigger the issues now placed before this Court? In its Judgment, the Court of Appeal had inter alia stated as follows:
(1)
At the core of this appeal is a parcel of land situate in Kiongwe within Lamu County measuring approximately 11,100 aces or thereabout, hereinafter referred to as “the suit land”. The Appellant’s claim to the suit property is premised on the following facts: the suit property was allocated to Kenwind (K) Limited, the 5th Respondent herein, by the National Land Commission, the 2nd Respondent, vide a letter of allotment dated 7th February 2017.”
23.
The Court then went on to state thus:
(27)
The fundamental issue for determination in this appeal is: who, between the national Land Commission and the County Government, is lawfully mandated to allocate public land and what is the appropriate procedure thereof?”
24.
In answering the above question, the Appellate Court addressed Article 67 of the Constitution which establishes the National Land Commission as well as Article 62(1)(a) which defines public land and concluded thus:
(40)
In view of the foregoing, it is obvious to us that the Appellant had not taken cognizance of the new land policy that had been ushered by the Constitution of Kenya, 2010 and the Land Act; and as a result backed the wrong horse. The Appellant ought to have engaged the National Land Commission as soon as it came into operation, given its constitutional and statutory role in allocation of public land.”
25.
In dismissing the Appeal, the Appellate Court rendered itself as follows:
(44)
Section 9(2) of the Fair Administrative Actions Act bars a Court from reviewing any administrative action or decisions unless the mechanisms for appeal or review and all remedies available under any other written law are first exhausted. As there existed a statutory procedure for questioning the said PDP, which procedure was not adhered to by the appellant, it would have been procedurally wrong for the trial Court to review the said decision.” | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/50/eng@2020-04-30 |
Petition 43 of 2019 | Gitahi & 4 others v Kenya Revenue Authority (Petition 43 of 2019) [2020] KESC 46 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Gitahi & 4 others v Kenya Revenue Authority | [2020] KESC 46 (KLR) | null | A. Introduction
1.
On 30th May 2016, the Employment and Labour Relations Court (ELRC per Mbaru, J.) declared that the termination of employment of the three Appellants was unfair and ordered their reinstatement. They were all former employees of the Kenya Revenue Authority, the Respondent, which then filed an appeal to the Court of Appeal against the said decision.
2.
On 11th October 2019, the appeal was partly allowed with the Appellate Court finding that the termination aforesaid “was not wrongful” but because the “process of termination was flawed …,” then the declaration to be given was that “the termination shall be a normal one”. The Appellants are now before this Court challenging the said findings.
3.
Before the appeal could be heard on its merits however, the Respondent filed a Motion dated 6th February 2020 seeking orders to strike out the entire appeal under Article 163(4) and (6) of the Constitution, Sections 2(a), 15, and 16(1) of the Supreme Court Act as well as Rules 15(2)(f) and 24(1) of the Supreme Court Rules, 2011.
B. The Application
4.
The Motion is supported by the Affidavit of Grace Mwangi sworn on 6th February 2020 as well as the grounds in the body thereof. It is her deposition that this Court lacks jurisdiction to hear and determine the Appeal under Article 163(4)(a) as neither the trial Court, the Court of Appeal nor this Court were or are now being called upon to interpret or apply any part of the Constitution so as to entitle the Appellants, audience, as a matter of right before this Court.
5.
In submissions filed on 24th February 2020, the Respondent has further urged that the interpretation of Section 49(1) of the Employment Act was centrally in issue in the determination of the dispute between the parties and since no constitutional provision required any such interpretation or application, then the whole Appeal was improperly before this Court and ought to be struck out. Reliance thereof was placed on this Court’s decisions in S. K. Macharia and Anor v KCB Ltd & 2 Others [2012] eKLR; In the matter of the Interim Independent Electoral and Boundaries Commission [2011] eKLR; Lawrence Nduttu & 6000 Others v KBL & Anor; Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR as well as Peter Odiwuor Ngoge v Francis Ole Kaparo & 5 Others, SC Petition No.2 of 2012.
| D. Analysis And Determination
8.
We must from the outset state that the response to the Motion before us was most baffling. We say so, with respect, because the Appellants have taken the view that where public interest is involved, without more, the jurisdiction under Article 163(4)(a) of the Constitution is automatically triggered. Nothing can be further from the truth if one were to read Article 163(4)(a) of the Constitution contextually.
9.
We say so because time and time again, we have explained that the jurisdiction under Article 163(4)(a) is two fold: one, as a matter of right where interpretation and application of the Constitution is sought and which matter has risen up the hierarchy of the superior Courts and two, where the dispute raises a matter of great public importance. In the latter case, certification that the matter is indeed one of great public importance is required which is not the case presently.
10.
Furthermore, in Aviation and Allied Workers Union v Kenya Airways Ltd & 3 Others [2015] eKLR, we stated that what amounts to interpretation and application of the Constitution is;
(36)
… the assumption of a task that transcends not just the reference to the rich generality of constitutional principle, it is a task that [must] focus upon specific clauses of the Constitution, and calls for the attribution of requisite meaning, tenor and effect.”
This finding had followed a long string of authorities on the issue, specifically Gatirau Peter Munya (supra) 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.”
11.
In applying the above test to the dispute between us, it is obvious that a concise reading of the Judgment of the ELRC (Mbaru, J.) and the Court of Appeal, would show that, what was before the two Courts was the simple question whether the employment of the Appellants was lawfully terminated or not. The question whether the Appellants, as individuals, acted with utmost trust and integrity in the performance of their duties within a public body such as the Respondent, was a peripheral issue as was the decision of the Court of Appeal to the effect that the remedy that commended itself to that Court was that the Appellants’ termination of employment was sustained in “consideration of public interest”.
12.
None of the above issues required nor now require the interpretation or application of the Constitution and the mere reference to the public interest by the Court of Appeal would not necessitate such an action contrary to the assertion by the Appellants. It is not even enough to invoke Article 41 of the Constitution which protects the rights to fair labour practices as that Article was not subjected to any interpretation or application by either of the superior Courts.
13.
In a nutshell, it is our finding that the Motion seeking the striking out of the Petition of Appeal herein is merited and is allowed. As costs follow the event, the Respondent shall have the costs hereof.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/46/eng@2020-04-30 |
Civil Application 25 of 2019 | Konditi v Abson Motors Limited (Civil Application 25 of 2019) [2020] KESC 47 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, DK Maraga, MK Ibrahim, SC Wanjala, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Konditi v Abson Motors Limited | [2020] KESC 47 (KLR) | null | A. Introduction
1.
The applicant, through the firm of Lumumba & Lumumba Advocates, presented an application dated 5th August 2019 to the registry seeking stay of execution of the Court of Appeal judgment. However, for want of procedural compliance the Honourable Deputy Registrar of this Court declined to admit the same prompting the Advocates to forward the same through a letter dated 13th August 2019 and received on 14th August 2019 to the Honourable Deputy Registrar requesting for his formal communication and reasons for the refusal to admit the said application.
2.
The said correspondence together with the application were forwarded to the duty Judge (Ibrahim SCJ) who declined to certify the application as urgent and noted, inter alia, that the applicant will have to persuade the court as to the procedure for initiating legal action in the Supreme Court. The duty Judge ordered that the matter goes through the normal process for hearing inter partes. Following these orders, the Honourable Deputy Registrar directed the applicant to file and serve the application within 7 days, and set a mention date to confirm compliance.
3.
On 23rd August 2019, a day after the mention before the Honourable Deputy Registrar, the applicant’s counsel wrote to the Honourable Deputy Registrar advising that they shall not be filing the application for stay before this Court and requested to retrieve their application submitted to the registry. The Honourable Deputy Registrar directed the applicants to comply with the procedural steps of filing including payment of the filing fees before they can formally withdraw the application. The matter is now held in abeyance pending further action by the applicant through his counsel. There is no substantive petition on which the application is hinged or the basis for the intended appeal.
| B. Analysis
4.
Rule 7E (9) of this Court’s rules provides that pleadings shall be deemed to have been filed with the Court where all the relevant copies of the pleadings have been lodged in the registry and where applicable, the requisite fee has been paid. The applicant lodged the relevant copies at the registry and while the application was admitted, the applicant never sought to be excused and was never exempted from fulfilling the procedural steps including requirement as to the payment of the requisite fee in order to complete the lodging of the application. Since the applicant has also expressed intention to withdraw the application and the application cannot, in the present circumstances, be served upon the respondent, it is only just that the same be struck out for want of compliance with the procedural steps ab initio.
C. Determination
5.
We therefore order that the application be struck out in its entirety for being a nullity ab initio. There shall be no order as to costs. Orders accordingly. | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/47/eng@2020-04-30 |
Election Petition (Application) 9 of 2019 | Okal v Ojuok & 2 others (Election Petition (Application) 9 of 2019 & Application 33 of 2019 (Consolidated)) [2020] KESC 51 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu | 30 April 2020 | 2,020 | Nairobi | Election Petition | Okal v Ojuok & 2 others | [2020] KESC 51 (KLR) | null | A. Background
1.
The applicant and the 1st respondent, with other candidates, contested for the position of Member of County Assembly for Central Nyakach Ward of the Kisumu County Assembly. The 1st respondent garnered 3,300 while the applicant garnered 3,236 votes. The magistrate’s court allowed the applicant’s petition challenging that result but on appeal, the High Court reversed that decision and declared the 1st respondent the winner. On a further appeal, the respondents filed applications challenging the competence of that further appeal on the ground that no second appeal lies to the Court of Appeal from a High Court decision concerning election of a Member of County Assembly. In its ruling dated February 14, 2019, the Court of Appeal allowed those applications and struck out the appeal. The applicant wishes to appeal to this Court against that decision. | E. Determination
7.
Upon careful consideration of the application, the responses and submissions by counsel for the parties, it is clear that two issues arise for our determination:
(i)
whether this Court has jurisdiction to entertain an appeal in this matter, and, (ii) whether the applicant has given a satisfactory explanation for the delay.
8.
In our recent judgement in Hamdia Yaroi Shek Nuri v. Tumaini Kombe & 2 others. Pet No. 38 of 2018; [2019] eKLR, we held that “in the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly.” This being the legal position, it follows that this Court has no jurisdiction to entertain an appeal in this matter. As such, we do not need to go into the merits of the application.
9.
This determination renders consideration of application No. 33 of 2016 otiose. Consequently, we dismiss both applications and make the following final Orders:
(a)
The application (No. 9 of 2019) dated March 28, 2019 is hereby dismissed.
(b)
The application (No. 33 of 2019) dated November 10, 2019 is hereby dismissed.
(c)
The applicant to bear the costs of both applications.
Orders accordingly.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/51/eng@2020-04-30 |
Application 31 of 2019 | Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others (Application 31 of 2019) [2020] KESC 71 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others | [2020] KESC 71 (KLR) | null | A. Introduction
1
The applicants were employees of the Geothermal Development Company Limited GDC . On 4th July 2012, GDC advertised for Tender No. REF. GDC/HQS/086/2011-12 for provision of Rig Move Services for Menengai Geothermal Project hereinafter referred to as “the Tender” pursuant to the Public Procurement and Disposal Act 2005 and the Public Procurement and Disposal Regulations 2006 culminating into signing of a contract as prescribed in the said Act and Regulations. On 29th October, 2015 and 30th October, 2015, after the conclusion of the tendering process, the applicants, who were members of the Tender Committee of GDC, aver that they became aware through social media, electronic media and the Daily Press that the 1st Respondent had recommended to the 2nd Respondent that the applicants, who were members of the Tender Committee be charged in court over irregularities in the tender process. They were subsequently arraigned before the Court in Anti-Corruption Case No. 20 of 2015, to answer to charges of; Willful failure to comply with the law relating to procurement contrary to section 45 2 B as read with section 48 1 A of the Anticorruption and Economic Crimes Act, 2003 - Count 1 ; and inappropriate influence on evaluation contrary to section 38 1 b as read with section 38 2 a of the Public Procurement and Disposal Act- Count 2 .
2
The applicants challenged their prosecution by instituting Judicial Review proceedings before the High Court seeking an orders prohibiting the respondents from prosecuting, sustaining, proceeding, hearing, conducting or in any manner dealing with or completing the hearing of the charges laid or proceedings conducted in the Anti-Corruption Case before the Chief Magistrates’ Court at Milimani Law Courts, Nairobi. The learned judge found that the consideration being used as a basis for the commencement of the criminal charges under Count I, was not a criterial provided for in the tender document and that to prefer charges against a person for not taking an action which would have amounted to a violation of an express provision of the law was clearly irrational. As regards Count II, the learned Judge held that it was not dealt with by the parties. In the end, the Judge partially allowed the application and granted an order of prohibition prohibiting the 2nd respondent from prosecuting the Anti-Corruption Case No. 20 of 2015 in so far as it relates to the applicants in Count I.
3
The 1st respondent successfully appealed the decision to the Court of Appeal. The appellate court found that the High Court judge had not exercised his discretion correctly as the Judge’s analysis and finding on Count I was aimed at investigating the correctness of the decision of the 1st and 2nd respondents which is not the essence of Judicial Review. Based on the material before it, the Court of Appeal found that the decision to prefer charges against the applicants was not grossly unreasonable. The Court of Appeal thus set aside the High Court Judgment.
4
The applicants, aggrieved by the Court of Appeal decision filed an appeal, as of right, under Article 163 4 a of the Constitution, against the whole decision of the appellate court raising alleged constitutional grievances. Contemporaneous to the filing of the appeal, the applicants filed an application under Articles 163 3 b and 163 4 a of the Constitution, sections 15 2 , 21 2 and 24 of the Supreme Court Act, Rules 23 and 26 1 of the Supreme Court Rules 2012 and all other enabling provisions of the law seeking the following Orders:
i
That this Notice of Motion be certified as urgent and heard on priority basis spent .
ii
That pending the hearing and final determination of the Appeal herein, this Honourable Court be pleased to grant the applicant a stay of execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] in Civil Appeal No.313 of 2017 delivered on 20th September 2019.
iii
That the petitioner be granted leave to file this petition excluding the certified copy of the order and proceedings of the Court of Appeal in the first instance.
iv
That costs be in the cause.
5
The application is supported by the affidavit of Peter Ayodo Omenda, the 1st applicant and is, inter alia, based on the grounds that the Court of Appeal determination puts the applicants’ personal freedom in jeopardy and requires urgent attention; that the appeal has a high probability of success as it raises arguable constitutional matters as listed on the face of the application and that the proposed appeal clearly involves the interpretation and application of the constitution entitling the applicant to move this Honourable Court as of right.
6
The application was certified urgent at the first instance when it was placed before a single Judge of this Court. The first prayer of the application is therefore spent and we proceed to address the other prayers.
7
Despite the applicants having been directed by the Honourable Deputy Registrar of this Court to file and serve their submissions within seven days from 22nd November 2019, the submissions were only filed on 10th March 2020. Indeed, the Honourable Deputy Registrar noted that the last directions had not been complied with. The 1st respondent on its part had filed a preliminary objection in the main appeal challenging our jurisdiction. This objection has been separately disallowed by this Court. | C. Analysis
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 behooves 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’ argument as they will be addressed in the appeal itself.
11
On the applicants’ prayer for leave to file the petition of appeal excluding the certified copy of the order and certified proceedings of the Court of Appeal in the first instance, we note that the appeal has already been filed being Petition No.40 of 2019. Rule 33 relates to institution of appeals and is to the effect that appeals shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal where the appeal is as of right. The certified decree or order as well as the record of proceedings are part of the mandatory contents of the record of appeal. Rule 33 5 grants the court power to direct which documents should be excluded from the record while Rule 33 6 allows the filing of a supplementary record of appeal, without leave and within fifteen days of lodging the record of appeal to include documents omitted from the record of appeal.
12
From the foregoing, we note that the applicants neither invoked our jurisdiction under Rules 33 5 & 33 6 nor gave any explanation or justification for the prayer sought. Neither the grounds on the face of the application, the supporting affidavit nor the submissions filed address this prayer. In the premises, we are unable to consider the prayer any further.
D. Determination
13
We therefore allow the application dated 25th October 2019 and filed on 29th October 2019 in the following terms:
14.
The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] 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 by this Court;
a
Costs to abide the outcome of the main appeal.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/71/eng@2020-04-30 |
Petition 40 of 2019 | Peter Ayodo Omenda, Nicholus Karume Weke, Caleb Indiatsi Mbaye, Abraham Kipchirchir Saat, Michael Maingi Mbevi, Godwin Magae Mwawongo & Bruno Mugambi Linyuri v Ethics & Anti-Corruption Commission, Director of Public Prosecution & Chief Magistrates Anti-Corruption Court (Petition 40 of 2019) [2020] KESC 70 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Peter Ayodo Omenda, Nicholus Karume Weke, Caleb Indiatsi Mbaye, Abraham Kipchirchir Saat, Michael Maingi Mbevi, Godwin Magae Mwawongo & Bruno Mugambi Linyuri v Ethics & Anti-Corruption Commission, Director of Public Prosecution & Chief Magistrates Anti-Corruption Court | [2020] KESC 70 (KLR) | null | A. Introduction
1.
On 20th December 2016, the High Court, in judicial review proceedings instigated by the petitioners, granted an order prohibiting the respondents from prosecuting, sustaining, proceeding, hearing, conducting or in any manner dealing with or completing the hearing of the charges laid or proceedings conducted in the Anti-Corruption Case before the Chief Magistrates’ Court at Milimani Law Courts, Nairobi in so far as they related to the applicants. This judgment was set aside by the Court of Appeal following a successful appeal by the 1st respondent.
2.
Aggrieved by the Court of Appeal decision, the petitioners filed an appeal to this Court, as of right, under Article 163(4)(a) of the Constitution, against the whole decision of the appellate court raising alleged constitutional grievances. The appeal was filed on 29th October 2019.
3.
On 3rd December 2019, the 1st respondent filed a Notice of Preliminary Objection as to the competence of this appeal on the following grounds:
a)
The matter does not concern the interpretation or application of the Constitution;
b)
No leave was obtained prior to instituting the appeal;
c)
Consequently, the appeal is incompetent and should be struck out.
This Ruling is on the Preliminary Objection.
4.
The 1st respondent filed its submissions in support of the objection. It submits that the judicial review proceedings instituted by the petitioners were grounded on the argument that the decision to prosecute them is based on illegality, irrationality and procedural impropriety. Accordingly, it is the first time that the constitutional questions are being raised in a ploy to mislead the Court into assuming jurisdiction. That this being a second appeal, the Court should not assume jurisdiction. The 1st respondent relies on the principles espoused in Wavinya Ndeti v Independent Electoral & Boundaries Commission & 4 others [2015] eKLR and Boniface Katana Kilaveri v Ethics & Anti – Corruption Commission & Commissioner of Land [2018] eKLR. To the 1st respondents, the appeal is incompetent and should be struck out with costs.
5.
In response, the petitioners through their submissions submit that the preliminary objection should be dismissed as this appeal is as of right as it involves the interpretation and application of the Constitution. As such, no prior leave is required from this Court or from the Court of Appeal. They rely on this Court’s Ruling in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2019] eKLR. The respondents further submit that the original matter in the High Court was brought under express provisions of the Constitution being Articles 10, 22, 23, 27, 28, 29, 50, 157 and 165. That the matter is therefore ripe for determination by this Court in accordance with the principles laid out in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another [2012] eKLR.
| B. Analysis
6.
Do we then have jurisdiction to hear and determine this appeal? We have time and again delineated the contours of our jurisdiction under Article 163(4) of the Constitution. There is common ground from the submissions alluded to that our exercise of jurisdiction is based on certain principles. For an appeal to be as of right, the constitutional questions must have transcended from the courts below and not raised for the first time before us. In the same breadth, this jurisdiction can be exercised if it can be demonstrated that the Court’s determination of the issue took a trajectory of the constitutional application or interpretation. The guiding principles are well summarized in Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others Sup. Ct Petition No.2B of 2014 [2014] eKLR.
7.
Suffice to note that the path a litigant takes is determined on the basis of the subject matter and in particular, the character of the issues involved in the subject matter. Once the Court of Appeal renders its decision, the litigant is able to elect, in advance, whether to seek certification first or proceed straight as of right (see Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR at paragraph 41). In our ruling in Synergy Industrial Credit Limited v Cape Holdings Limited [2018] eKLR we noted that though a similar matter had been certified as involving general public importance, the petitioner was not precluded from pursuing the same issue as of right. This inevitably means that it is not for the respondent to insist on its preference but rather the petitioner to exercise the choice.
8.
The petitioners have therefore chosen to pursue their appeal as of right under Article 163(4)(a) of the Constitution. It therefore behooves us to evaluate whether indeed they meet the threshold.
9.
A perusal of the Statutory Statement dated 29th April 2019, Notice of Motion Application dated 13th May 2019 and the face of the pleadings, it is evident that while the petitioners filed judicial review proceedings, several constitutional provisions were invoked. Indeed, the notice of Motion was stated to be brought under Articles 10, 22, 23, 27, 28, 29, 41, 47, 50, 157, 159(9)(2)(a) & (b) and 259. The face of the application on the other hand listed Articles 10, 22, 23, 27, 28, 29, 50, 157 and 165. In the grounds, the petitioners allude to instances of violation of the constitutional rights ranging from abuse of criminal law and trial process, evidence in their support being ignored, excess of jurisdiction by the respondents and abuse of discretion. All these issues are tenets of a constitutional process available to a litigant particularly in a criminal trial context.
10.
Even if we were to consider the 1st respondent’s position that the petitioners’ grounds before the High Court related to illegality, irrationality and procedural impropriety, these grounds do not exclude the Constitution. An example is where the petitioners challenged the exercise of the powers of the Director of Public Prosecution under Article 157 or fair trial which stems from Article 50 of the Constitution.
11.
In our view, nothing precludes a litigant from invoking the Constitution in whatever proceedings pending before the High Court. The fact that the proceedings related to judicial review, the High Court nevertheless had powers to address any constitutional questions that arise. Without going to the merits of the High Court judgment, we take note of the following:
26.
It was therefore averred [by the Respondents] that the decision to charge the Applicants in this case alongside other suspects named in the said charge sheet . . . was based on correct interpretation of the law relating to procurement and other applicable laws and regulations in tandem with the constitution and therefore there was no violation of the constitution . . .”
The learned Judge at paragraph 42 of the Judgment went ahead to address the provisions of Article 157(10) of the Constitution relating to the office of the Director of Public Prosecution.
12.
At the Court of Appeal, the 1st respondent’s grounds of appeal included failure by the judge to appreciate that any public tendering process conducted in this country must aim at achieving the purpose and objects of Article 227 of the Constitution. At this juncture, it is worth noting that the constitutional questions decided in favour of the petitioners were not appealed by any of the respondents and to that extent, it was not incumbent upon the petitioners to pursue their constitutional arguments at the appellate stage. The situation would have been different if the appeal before the Court of Appeal was filed by the petitioners.
13.
We also considered the position in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2019] eKLR in the following regard:
(12)
This Court’s jurisdiction is not sharply defined in certain cases — especially as regards claims of constitutional entitlements, the content of which stands to be ascertained individually, from one case to another. So we must consider whether the circumstances in which the criminal case against the applicant was initiated, in any way stands to compromise rights as delineated in the Constitution. Does the applicant have certain constitutional rights, which can only be safeguarded through a proper hearing of his appeal before the Supreme Court?”
14.
In purely civil cases, it is easy to address the constitutionality of the questions before court and whether they meet our jurisdictional threshold. The fact that the initial proceedings before the High Court or a court of equal status are couched as constitutional petitions may not necessarily warrant an appeal as of right. For instance, in Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] eKLR we stated:
"Even though the Appellant thus alludes to infringement of its constitutional rights, the issue for the Superior Court’s determination was, who is the rightful owner of the suit land? This would entail examination of the facts on record and based on the governing laws, deciding on who between the 1st Respondent and the Appellant was entitled to the suit land. No question of constitutional interpretation or application was therefore before those Courts or this Court. And as already stated, neither was such an issue canvassed at the superior Courts.”
15.
However, criminal cases or a mixture of criminal and civil, such as judicial review proceedings invite a more careful approach, as we have done. There however remain no fast and hard rules and each case must be considered on its merits. We reiterate our position in Hussein Khalid and 16 Others v The Attorney General & 2 Others Sup Ct. Petition No.21 of 2017 (unreported) where we stated:
121.
. . . .As we have stated above, such claims may be legitimately pursued and addressed outside the criminal justice system for the criminal justice system is not meant for addressing constitutional petitions and/or allegations of its breach thereof.”
C. Determination
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.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/70/eng@2020-04-30 |
Petition 21 of 2019 | Stanley Mombo Amuti v Kenya Anti-Corruption Commission (Petition 21 of 2019) [2020] KESC 45 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Stanley Mombo Amuti v Kenya Anti-Corruption Commission | [2020] KESC 45 (KLR) | null | A. Introduction
(1)
The dispute between the parties herein revolves around an attempt by the Respondent to deprive the Appellant of assets that it claimed he had unlawfully acquired. By an Originating Summons filed at the High Court pursuant to Section 55 of the Anti-Corruption and Economic Crimes Act, 2003 (ACECA) the Respondent thus sought the determination of certain questions regarding the manner of acquisition of the Appellant’s wealth and upon hearing the said summons, Achode J. answered the questions in favour of the Respondent and also issued a decree that the Appellant was liable to pay Kshs. 41,208,000 to the Government of Kenya.
(2)
In an appeal to the Court of Appeal, the Appellant challenged that decision and in the ten grounds of appeal, specifically challenged the Learned Judge’s findings of law and fact. In its Judgment, the Court of Appeal stated that it’s “…evaluation of the evidence on record and applicable law” led it to the conclusion that the appeal had no merit and dismissed it. That decision triggered an appeal to this Court as a matter of right under Article 163(4)(a) of the Constitution.
(3)
On 9th December 2018, the Respondent then filed a Preliminary Objection seeking an order that the appeal be dismissed with costs arguing that this Court lacks the requisite jurisdiction to determine it on merit.
| D. Analysis And Determination
(9)
The jurisdiction of this Court under Article 163(4)(a) is the only issue in contest presently. In Lawrence Nduttu (supra), we stated that for an appeal to lie as a matter of right;
“
(28)
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an Appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a)”. [Emphasis Ours]
10.
In Erad Suppliers and General Contractors (supra) we then rendered ourselves as follows:
“
In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”
(11)
In the above context, we note that, as submitted by the Appellant, that the question whether Sections 26 and 55 of ACECA violated the right to property under Article 40 of the Constitution was addressed at paragraphs 74 and 79 of the impugned Court of Appeal Judgment and that Court stated thus:
“
(74)
In this matter, persuaded by the merits of the UK comparative jurisprudence, we are satisfied that the provisions of Section 26 and 55(2) of the ACECA do not violate the right to property as enshrined in Article 40 of the Constitution. In any event, constitutional protection of property does not extend to property that has unlawfully been acquired. If it were to be held that the requirement to explain violates the right to property under Article 40 of the Constitution, enforcement of a Notice issued under Section 26 of ACECA and the requirement to explain the source of disproportionate assets would be rendered nugatory. We decline to so hold.”
and
“(79)
Under Section 55(2) of ACECA, the theme in evidentiary burden in relation to unexplained assets is prove it or lose it. In other words, an individual has the evidentiary burden to offer satisfactory explanation for legitimate acquisition of the asset or forfeit such asset. The cornerstone for forfeiture proceedings of unexplained assets is having assets disproportionate to known legitimate source of income. Tied to this is the inability of an individual to satisfactorily explain the disproportionate assets. A forfeiture order under ACECA is brought against unexplained assets which is tainted property; if legitimate acquisition of such property is not satisfactorily explained, such tainted property risk categorization as property that has been unlawfully acquired. The requirement to explain assets is not a requirement for one to explain his innocence. The presumption of innocence is a fundamental right that cannot be displaced through a Notice to explain how assets have been acquired”. [Emphasis Ours]
(12)
It is also obvious from a perusal of the Judgment rendered by Achode J. that whereas, in the Originating Summons filed by the Respondent at the High Court, no specific reference was made to the need to interpret and apply the Constitution, Rawal J. in the matter before her had directed that submissions ought to be made on the above issue. The Court of Appeal in overturning her Judgment found that the learned Judge had crafted, suo motu, the constitutional question regarding Sections 26 and 55 of ACECA and dismissed the Originating Summons without taking any evidence and addressing the factual issues raised therein.
(13)
Achode J. on her part, took oral evidence and heard submissions before rendering her Judgment. At para. 59 thereof she then stated that “the issue that arises for determination is whether the defendant is in possession of unexplained assets …” and “whether the defendant be ordered to forfeit landed properties as well as the value of the developments thereon amounting to Kshs.32,500,000/-“
(14)
In the entire analysis of the evidence before her and in applying the law to that evidence, nowhere did Achode J. make any reference to the Constitution nor did she even attempt to interpret or apply Sections 26 and 55 in the context of their constitutionality or otherwise. In making her final orders at para 96 of the Judgment therefore, no orders were also made regarding the constitutionality or otherwise of the exercise of forfeiture of unexplained assets under those Sections.
(15)
Having found as above and having reproduced paras 74 and 79 of the impugned Judgment, what were the specific grounds of appeal from the Judgment of Achode J.? In the Memorandum of Appeal dated 12th June 2018, the Appellant preferred 23 grounds of appeal. It is only in ground No.1 that any reference to the Constitution is made as follows:
“
(1)
The Learned Judge misdirected herself as to the law provided under the Constitution of the Republic of Kenya Article 40 and 50 and Section 55 of the ACECA Act 2003 as to the threshold on forfeiture of property.”
(16)
It is again obvious to us that the Appellant, in crafting the above issue was focused more on the “threshold of forfeiture of property” than on the specific constitutional questions revolving around interpretation or application of Articles 40 and 50, which matter we have stated, was outside Achode J.’s remit. The question that is left unanswered is whether the findings of the Court of Appeal at paragraphs 74 and 79 reproduced above, are sufficient to trigger our jurisdiction?
(17)
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.
(18)
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.
(19)
Having held as above, it is our conclusion that Article 163(4)(a) was wrongfully invoked by the Appellant and the Preliminary Objection is therefore merited. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/45/eng@2020-04-30 |
Civil Application 1 of 2020 | Tullow Oil Plc & 3 others v PS, Ministry of Energy & 15 others (Civil Application 1 of 2020) [2020] KESC 49 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | Tullow Oil Plc & 3 others v PS, Ministry of Energy & 15 others | [2020] KESC 49 (KLR) | null | A. Introduction
1.
On 8th May 2019, this Court delivered a Ruling in which we allowed a Notice of Motion dated 28th February 2018 by Tullow Oil PLC, Africa Oil Turkana Limited, African Oil Kenya Limited and Angus McCoss seeking orders that the present Applicant’s Notice of Appeal dated 8th August 2016 be deemed as withdrawn and in the alternative that the same be struck out. In effect, we terminated the Applicant’s attempt at filing an appeal before this Court.
B. The Application
2.
Before us now is a Notice of Motion dated 13th January 2020 by the Applicant, who was the 16th Respondent in Eldoret C.A. No.376 of 2014, C.A. No.18 of 2015 and C.A. No.45 of 2015, as consolidated. The Motion is expressed to be brought under Sections 1A, 1B, 3A and 100 of the Civil Procedure Act, Cap.21, Section 3 of the Supreme Court Act as well as Articles 1,2, 3(1), 10, 19-23, 27, 40, 47, 48, 50, 156(6), 159(2) (d), 166(2)(c), 259 and 260 of the Constitution.
3.
The Applicant prays that the Ruling aforesaid be “recalled, set aside, rescinded, nullified and voided ab initio” with attendant costs and in unnecessarily verbose and largely incoherent grounds set out in the body of the Motion, the Applicant has termed the Ruling ultra vires, reckless, inept, partisan, prejudicial, unethical and vexatious. He has also claimed that the same was obtained “at the behest of the incurable and irredeemable, deceitful and fraudulent concealment and misrepresentation of material facts … peddled by …” Counsel for Tullow Oil PLC. In addition, the Applicant has alleged that the Ruling contains patent accidental slip errors and mistakes. Numerous scandalous allegations are also made against both Counsel and his client, Tullow Oil PLC, which we consider wholly irrelevant in the determination of the Motion before us.
4.
In his Affidavit in support of the Motion, the Applicant has largely dwelt on contested issues of fact leading to the stillborn attempt at filing his appeal and since those matters are irrelevant to any consideration of his Motion, we deem it unnecessary to reproduce them.
5.
In any event, in his submissions filed on 25th February 2020, the Applicant, upon reproducing the dates pleadings were filed in the superior Courts below (in great detail) as well as dates for appearances by parties before those Courts and orders issued, has repeated the allegations of deceitful, fraudulent concealment and misrepresentation of material fact by Tullow Oil PLC and it’s Counsel. All other matters raised have absolutely no relevance to the determination of the Motion before us. They are with respect, a rumbling narration of facts and statutes that are difficult to comprehend and are of no use to us.
C. Response To The Appplication
6.
From the record, although served, none of the Respondents to the Application have filed any replying affidavits nor submissions. The Deputy Registrar, having given them sufficient time to do so, placed the matter before the Hon. the Chief Justice for constitution of this Bench. | D. Analysis And Determination
7.
In other circumstances, depending on its nature, where an application is unopposed, and the Court sees merit in it, then it should be granted without much ado. Not the present Motion as the same is fraught with all manner of difficulties.
8.
Firstly, a party approaching any Court ought to indicate, with a measure of precision, what procedure it is invoking in doing so. In that regard, it is basic that the Civil Procedure Act, Cap.21 does not apply to proceedings before this Court and therefore setting aside of orders under that Act is an alien procedure to this Court.
9.
Secondly, the Applicant seeks orders to recall, set aside, rescind, nullify and void the orders we issued on 8th May 2019. No specific rule contained in the Supreme Court Rules, 2011 has been cited in that regard. That anomaly notwithstanding, Rule 23 of the said Rules provides that “an interlocutory application to the Court shall be by Notice of Motion … and shall be supported by an Affidavit.” and to that extent, we must address the Applicant’s Motion on its merits.
10.
[10] Thirdly, the nature of an interlocutory application for example whether it be for an injunction, stay orders, or setting aside is not stated in the Rules but Rule 24 provides specifically for applications for grant of certification while Rule 25 for leave to join proceedings as an Interested Party. No specific Rule provides for the prayers the Applicant seeks.
11.
We must at this stage note, in passing only that, the Supreme Court Rules 2020 have amended the 2011 Rules which were applicable when the present Application was filed and provide for example in Rule 31 that “an interlocutory application shall not be originated before a Petition of appeal or reference is filed before the Court.” We further note that in fact there is presently no Petition of Appeal before us to authenticate the substantive issues we may later deal with. We digress however.
12.
With the above background in mind, do we have the jurisdiction to grant the orders sought by the Applicant? In answer to the question, it must be recalled that, what the Court previously did was to strike out the Appellant’s Notice of Appeal. The reasons for doing so are captured at paragraph 29 of our Ruling where we stated thus:
“
In the present Application, we note [that] the Notice of Appeal was filed 8th August 2016 and the time for filing an appeal as of right lapsed on 7th September 2016. Up to date there is no appeal filed. The time for filing an appeal under Article 163(4)(b) lapses 30 days after the grant of certification. There is nothing on record to confirm that the 16th Respondent sought certification, and if the same was allowed, and when it was allowed. In a nutshell, it is our finding that the 16th Respondent has failed to provide sufficient grounds for his failure to file his appeal within the prescribed time. We are inclined to allow the application with costs to the Applicants.”
13.
In his Motion, Supporting Affidavit and Submissions, the Applicant has completely failed to address the above issue. Instead, he has gone on a tangent to attack Tullow Oil PLC and its Counsel as having obtained the orders by fraud and concealment of, and misrepresentation of fact. Not one piece of credible evidence, save conjecture and speculation, has been produced to prove these very serious allegations.
14.
Fourthly, while therefore there is no express provision in our Rules granting us the jurisdiction to set aside, rescind or annul our orders, even on the merits, the Application is so scandalous and devoid of any merit that to grant it would only placate a dissatisfied litigant who has misunderstood the real reason his Notice of Appeal was struck out.
15.
Lastly, the Applicant must be told, without reservation, that he has hit the end of the road. Litigation, however painful, must come to an end. He is flogging a dead horse and he ought to busy himself with other ventures of use to him. In other words, his Application is one for dismissal but because it was not defended, we shall make no orders as to costs.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/49/eng@2020-04-30 |
Petition 33 of 2019 | University of Eldoret & another v Sitienei & 3 others (Petition 33 of 2019) [2020] KESC 72 (KLR) (30 April 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 30 April 2020 | 2,020 | Nairobi | Civil | University of Eldoret & another v Sitienei & 3 others | [2020] KESC 72 (KLR) | null | We have two applications in this appeal. The first one dated 20th August 2019 and filed on 23rd August 2019 is by the Petitioners. It seeks a stay of execution of the judgment and decree of the Court of Appeal at Nakuru delivered on 18th October 2018. The second one is by the 1st and 2nd Respondents (the Respondents). It seeks the striking out of both the Notice and Record of this Appeal. We wish to start with the second application.
2.
This appeal is brought as of right under article 163(4)(a) of the Constitution. The Respondents’ said application to strike it out is premised on the ground that this Court lacks jurisdiction to entertain it. In the alternative, the Respondents seek an order that the Petitioners deposit security in the sum of Shs.29,886,063/= within such time as circumscribed by the court. The Respondents also seek that the costs of the appeal be borne by the Petitioners. The application is supported by an annexed affidavit of the 1st Respondent, Hosea Sitienei on his own behalf and with the authority of the 2nd Respondent.
3.
The background of the matter is that the 1st and 2nd Respondents were the Finance Officer and Deputy Vice Chancellor, Finance and Administration respectively of the 1st Petitioner. In July 2015, they were suspended from duty pending investigations on allegations of involvement in the unrests at the University at the time. They filed suit before Employment and Labour Relations Court (ELRC) at Nakuru (No.8 of 2015) seeking an order to stop the intended investigation. On 6th November 2015, Radido J, declined to halt the investigations directing the University to serve them with the investigation results before undertaking any disciplinary action against them. The University did not comply. Instead, it commenced disciplinary proceedings prompting the Respondents to separately file petitions (Nos. 1 and 2 of 2016) seeking similar reliefs. Though Radido J. held that he had jurisdiction, he did not interfere with the disciplinary proceedings since, in his view, there were adequate Constitutional and statutory safeguards to remedy any unfair administrative action or unlawful termination of employment. The Respondents were subsequently terminated from employment.
4.
Aggrieved, the duo filed 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 for violating their right to fair trial. They also contended that as constituted, the University Council did not have the mandate to undertake disciplinary process. They accordingly sought declaratory reliefs or in the alternative, compensation.
5.
The Petitioners 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 University Council were legally in office.
6.
Marete J. heard the two petitions separately and by judgments dated 24th November 2016, dismissed them as res judicata. That prompted the Respondents to file separate appeals that were consolidated by the Court of Appeal. In its judgment dated 18th October 2018, the Court of Appeal allowed them. In their application dated 31st December 2018 and filed on 8th January 2019, the Petitioners sought a review of that decision. The Court of Appeal dismissed that review application provoking this appeal which, by this application, the Respondents want struck out.
7.
The main ground in support of the present application is that the Petitioners cannot appeal as of right as there was nothing touching on the interpretation or application of the Constitution and the same having not been certified under Article 163(4)(b) of the Constitution as raising a matter of general public importance, this Court lacks jurisdiction to entertain it. Citing the cases of Lawrence Nduttu & 6000 Others v. Kenya Breweries Limited & Another SC Petition No.3 of 2012 [2012] eKLR, Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others SC Petition No.10 of 2013 [2014]eKLR, Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others SC Application No.5 of 2014 [2014]eKLR, Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 Others SC Petition No.4 of 2015 [2017]eKLR and Musa Cherutich Sirma v. Independent Electoral and Boundaries Commission & 2 Others [2019] eKLR the Respondents submit that the Petitioners must show how the appellate court disposed of the matter by way of interpreting or applying a particular provision of the Constitution. They submit that the issues before the Court of Appeal were whether the matter was res judicata and the composition of the 1st Petitioner’s Council under Section 36(1)(d) of the Universities Act 2012 and not any Constitutional provision as alleged. | The main ground in this application is whether we have jurisdiction to entertain this appeal. The Respondents, as already pointed out, argued that there having been no issue of Constitutional interpretation or application, this appeal founded on Article 163(4)(a) is untenable. The Petitioners maintain that this appeal is well founded on Article 163(4)(a).
11.
There is common ground and all the parties appreciated it, that for us to exercise our jurisdiction, certain cardinal considerations must be met. In the case of an appeal founded on Article 163(4)(a), there must have been the issues of Constitutional contestation that transcended the court hierarchy and formed the basis of the determination by the courts resting with the Court of Appeal. Similarly, our jurisdiction under Article 163(4)(a) can be exercised as of right if it be demonstrated that the court’s determination of the issue took a trajectory of the Constitutional application or interpretation. To determine whether or not an appeal meets that threshold, as we stated in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR, this Court has to ascertain the character of the issues in the subject matter of litigation.
12.
The main question that we interrogate is whether the appeal fits within either of the above principles. A consideration of the petition of appeal reveals that it is an appeal as of right against the ruling on review delivered on 9th July 2019 in which the Court of Appeal rendered as follows:
“
The crux of this application is whether there are exceptional circumstances that would justify the review of the Court’s judgment. Having carefully considered the application, the exceptional ground that the University and the Vice Chancellor are relying upon for review of the judgment is the interpretation of Section 36(1)(d) of the Universities Act, under which they contend it is the duty of the Cabinet Secretary rather than the University to appoint the Council” (emphasis ours).
13.
Despite the above position, the Petitioners made no spirited attempt to subject this exceptional ground to the confines of our jurisdiction under Article 163(4)(a) in terms of the principles elucidated above. Instead, they couched their appeal on the basis of the Court of Appeal judgment delivered on 18th October 2018. There is no evidence before us to demonstrate that the judgment of 18th October 2018 was being appealed. Indeed, the Notice of Appeal filed by the Petitioners is instructive that the appeal is against the entire ruling of 9th July 2019.
14.
Had the appeal been against the judgment, we could perhaps have been persuaded differently. Any attempt by the petitioners to merge the two decisions in their appeal in our view is ingenious but must nevertheless be stifled at the outset. The issues of res judicata, fair hearing and Order 21 Rule 4 and Rule 28 and ELRC Rules 2016 were never canvassed in support of the application for review subject of the present appeal. The fact that the initial proceedings were couched as Constitutional petitions before ELRC does not of itself confer jurisdiction. This was the import of our decision in Rutongot Farm Ltd v Kenya Forest Service & 3 Others [2018] eKLR where we stated:
“
Even though the Appellant thus alludes to infringement of its Constitutional rights, the issue for the Superior Court’s determination was, who is the rightful owner of the suit land? This would entail examination of the facts on record and based on the governing laws, deciding on who between the 1st Respondent and the Appellant was entitled to the suit land. No question of Constitutional interpretation or application was therefore before those Courts or this Court. And as already stated, neither was such an issue canvassed at the superior Courts.”
15.
The contention before the courts was therefore not the Constitutionality or application of the said Section 36(1)(d) of the Universities Act but rather, the evidence to support compliance with the provision, which the University and the Cabinet Secretary failed to do to the Court of Appeal’s satisfaction. We are unable to fathom any Constitutional issue arising from this context to warrant our assumption of jurisdiction as sought.
16.
Having reached this conclusion, we do not find it necessary to consider the other issues raised in the application.
17.
Having struck out this appeal, the Petitioners’ application for stay of execution dated 20th August 2019 and filed on 23rd August 2019, has no legs to stand on. It is accordingly dismissed.
18.
Considering the chequered history of the parties and their litigation, we find that to promote the finality of the dispute, each party should bear its own costs before us. The substantive dispute already having been determined by the Court of Appeal, we see no need to escalate the dispute to the limited extent of costs only before the Supreme Court, the appeal not having been heard on merit. This is a unique type of dispute involving a public institution from which we believe the applicants have already obtained sufficient legal redress under the circumstances.
19.
In the end we find that we do not have jurisdiction over the appeal under Article 163(4)(a) of the Constitution and make the following Orders:
a)
The Petitioners’ application for stay of execution dated 20th August 2019 and filed on 23rd August 2019, is hereby dismissed.
b)
The 1st and 2nd respondents’ application dated 4th September 2019 is hereby upheld to the extent that this Honourable Court lacks jurisdiction to entertain the appeal;
c)
The petition of appeal dated 9th August 2019 is struck out.
d)
Each party shall bear the costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/72/eng@2020-04-30 |
Application 13 of 2019 | Dhanjal v Dhanjal & 4 others (Application 13 of 2019) [2020] KESC 69 (KLR) (7 February 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 7 February 2020 | 2,020 | Nairobi | Civil | Dhanjal v Dhanjal & 4 others | [2020] KESC 69 (KLR) | null |
1.
By his Originating Motion dated 8th April 2019, Nirmal Singh Dhanjal, the applicant, seeks a review of the Court of Appeal’s order dated 4th April 2019 denying him certification that his intended appeal to this Court involves a matter of general public importance. The application is brought pursuant to the provisions of Article 163(4)(b) & (5) of the Constitution and Rule 24(2) of the Supreme Court Rules, 2012.
2.
The brief facts of the case are that one Jaswant Singh Boor Dhanjal (deceased) died intestate and was survived by five (5) children being the 1st, 2nd, 4th and 5th Respondents and one Surjit Singh Jaswant. By consent of the deceased’s family, the 2nd Respondent petitioned and was on 26th of July 2006 issued with a temporary grant of letters of administration in Succession Cause No. 20 of 2006. Prior to that grant, however, on 9th March 2006 the 2nd Respondent purportedly entered into a settlement agreement with the deceased’s brothers pursuant to which certain shares of the deceased’s estate, along with other properties, were disposed of.
3.
Aggrieved by those alienations, the 1st Respondent, one of the sons and a beneficiary of the estate of the deceased, challenged them and by her ruling delivered on 13th October 2016, Thande J, granted that application and nullified the settlement agreement of 9th March, 2006 together with the transfer 0f the deceased’s 18,750 shares in Dhanjal Investments Limited. She also made an order for the rectification of the register of members of Dhanjal Investments Limited and restored the deceased’s name onto that register.
4.
Upon the dismissal by the Court of Appeal of his appeal against that decision, Nirmal Singh Dhanjal’s (the Applicant herein), vide his application dated 21st February 2018, sought the Court of Appeal’s certification to appeal to this Court on the ground that his intended appeal involved matters of general public importance. In its ruling of 4th April 2019, the Court of Appeal dismissed that application as unmeritorious thus provoking the present application.
5.
This application is based on more or less the same grounds the Applicant relied on in the Court of Appeal: that the 1st Respondent, having not obtained letters of administration of the deceased’s estate, lacked locus standi to challenge the settlement agreement; that the High Court’s order of rectification and the restoration of the deceased’s name on to the register of Dhanjal Investments Limited, more than 1o years after his death, was issued without jurisdiction; and that the substitution by the courts below of express provisions of Section 93 of the Law of Succession Act with their decisions, are all matters of general public importance requiring a further input of this Court. | As the Court of Appeal quite correctly observed, the Supreme Court was not intended to be an extra tier of appeal to handle all and sundry appeals from all decisions of the Court of Appeal. “the Constitution of Kenya, 2010 intended the Supreme Court to concern itself only with important legal issues that have a clear bearing on the public interest.” It is for this reason that certification has to be obtained under Article 163(4)(b) that a matter is of general public importance to warrant an appeal to this Court. And the criteria for such certification has long been settled in many decisions of this Court. In a nutshell, as this Court stated in Hermanus Phillipus Styen vs Giovanni Gnecci-Ruscone [2013] eKLR. 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.
7.
In this matter, we agree with the 1st and 4th Respondents that at the time of the transfer of the deceased’s assets, the grant to the 2nd respondent of letters of administration of the deceased’s estate had not been confirmed and the 2nd Respondent therefore lacked the authority to effect transfers of the deceased’s properties. Besides that clear impropriety, we also agree with the 1st and 4th Respondents that the issues of the 1st Respondent’s locus standi; the High Court’s order of rectification and the restoration of the deceased’s name on to the register of Dhanjal Investments Limited with or without jurisdiction; and whether or not the courts below substituted express provisions of law with their decisions, are not matters of general public importance requiring a further input of this Court. The central issue in this matter is the validity or otherwise of the settlement agreement dated the 9th March 2006. That together with other issues were decided upon the unique facts of the dispute between the parties in this matter with no bearing whatsoever on public interest. In the circumstances, we find no merit in this application and we accordingly dismiss it with costs to the 1st and 4th respondents.
8.
Pursuant to the above decision, we make the following Orders:
(i)
The Applicant’s Originating Motion dated 8th April 2019 is hereby dismissed.
(ii)
The Applicant shall bear the 1st and 4th Respondents’ costs of this application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/69/eng@2020-02-07 |
Civil Application 21 of 2019 | Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others (Civil Application 21 of 2019) [2020] KESC 56 (KLR) (7 February 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 2/7/2020 | 2,020 | Nairobi | Civil | Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others | [2020] KESC 56 (KLR) | null | A. Introduction
1.
We have before us a Notice of Motion by the Ethics and Anti-Corruption Commission (EACC) dated July 18, 2019 filed under the provisions of Articles 159(2)(a) & (e) and 163(4)(a) of the Constitution, sections 21(2) and 24(1) of the Supreme Court Act as well as rules 23 and 26 of the Supreme Court Rules, 2012. It seeks stay of execution, enforcement, and/or implementation of, or reliance upon the judgment and/or decree of the Court of Appeal in Civil Appeal No. 109 of 2016 (consolidated with Civil Appeal No. 103 of 2016). The Application is supported by an affidavit sworn on July 18, 2019 by Michael Kasilon, a forensic investigator with the applicant.
B. Litigation Background
2.
While investigating suspected fraudulent payments of legal fees by Mumias Sugar Company (MSC) to the 1st respondent, the Ethics and Anti-Corruption Commission (EACC) obtained an ex-parte order from the Chief Magistrate’s Court at Kibera to have access to and investigate the 1st respondent’s bank accounts. The 1st respondent challenged that order in the High Court arguing that contrary to articles 27(1), 27(4), 40(1), 40(2), 47(1), 47(2) and 50(1) of the Constitution, EACC had abused its public powers and violated his constitutional rights to privacy, to property, to fair administrative action and to fair hearing by obtaining warrants to investigate his firm’s Clients Account without prior notice to him. He sought various declarations in that regard and an order of certiorari to quash the said Chief Magistrate’s order.
3.
Upon hearing the Petition, the High Court, Lenaola, J (as he then was), in a judgment delivered on February 5, 2016, besides quashing that order, issued a declaration that “the warrants to investigate an account given to the officers of the Commission breached the 1st respondent’s rights and fundamental freedoms under the provisions of articles 47(1) & 47(2) and 50(1) of the Constitution and were hence void for all intents and purposes.”
4.
Aggrieved by that decision, the EACC and DPP filed Civil Appeal Nos. 103 and 109 respectively before the Court of Appeal. The 1st respondent cross-appealed faulting the High Court for failing to hold that his fundamental rights to privacy, to property and not to be discriminated against were violated; and for failing to award him damages for the violation of his right to fair administrative action. The Court of Appeal (Nambuye, Kiage & Ole Kantai, JJA) consolidated those appeals and in its judgment dated 28th June 2019, dismissed those appeals and the cross-appeal holding that investigations undertaken by EACC are an administrative function subject to the provisions of article 47 of the Constitution, and directed that in exercise of its mandate, EACC should always comply with the unambiguous and clear provisions of sections 26, 27 and 28 of Anti-Corruption and Economic Crimes Act by giving notice to suspects. It is that Court of Appeal decision that has provoked the present application.
| We equally find no merit in the preliminary objection that this Court has no jurisdiction to entertain this application or even the appeal itself under Article 163(4)(a) of the Constitution. This is because in the High Court, the 1st respondent challenged the order to investigate his firm’s Clients Account on the grounds that, contrary to articles 27(1), 27(4), 40(1), 40(2), 47(1), 47(2) and 50(1) of the Constitution, EACC had violated his constitutional rights to privacy; to property; to fair administrative action; and to fair hearing. In upholding the High Court, the Court of Appeal, as stated, found that, contrary to article 47 of the Constitution, EACC had violated the 1st respondent’s constitutional right to fair administrative action. In its appeal before this Court, the applicant wants us to fault both the High Court and the Court of Appeal on, inter alia, that finding. That is clearly an issue of interpretation and/or application of the Constitution. In the circumstances, we find and hold that we have jurisdiction under Article 163(4)(a) of the Constitution to entertain both this application and Supreme Court Petition of appeal No. 30 of 2019.
11.
On the merits of the application, as stated, in its grounds upon which this application is premised, the applicant argues, inter alia, that the High Court and Court of Appeal decisions requiring notice to be given to suspects before their bank accounts are accessed, have “serious ramifications on the fight against corruption and economic crimes” in that that requirement undermines “searches as an investigative tool.”
12.
The applicant also argues that “several applications have since been filed in different Courts seeking release of documents that had been obtained pursuant to warrants issued to investigators, and that unless this Court issues stay orders, the intended appeal would be rendered nugatory and active matters pending before Courts will be lost at a great loss to the country.”
13.
On his part, the 1st respondent urged us to dismiss this application for being unmeritorious. He urged that it is trite law from the persuasive Court of Appeal decisions in Mombasa Seaport Duty Free Limited v Kenya Ports Authority [2006] eKLR and Charles Munyendo Olingo v Salim Chetechi Makokha & another [2019] eKLR that in a judgment with no positive order or decree, there is nothing to stay. He argued that in this matter, neither the High Court nor the Court of Appeal issued any positive order. The High Court found that the applicant’s attempt to investigate the 1st respondent’s bank accounts without prior notice to him was illegal and accordingly quashed the Chief Magistrate’s investigative order. The Court of Appeal upheld that decision.
14.
In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, this Court enunciated three principles for consideration in determining applications for stay of execution. They are: “whether the appeal or intended appeal is arguable and not frivolous; that unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and that it is in the public interest that the order of stay be granted. Has the applicant met these criteria?
15.
We have considered these rival submissions. It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance. In the circumstances, in the interest of justice and to provide guidance, a clear and authoritative statement of this Court on the issues raised is imperative. Consequently, we allow this application and direct that pending the hearing and final determination of the applicant’s appeal—No. 30 of 2019, the effect of the High Court and Court of Appeal decisions in this matter is hereby stayed. Neither party to this appeal, nor any other person shall use, apply or in any way rely upon them until the said appeal is heard and determined.
E. Orders
16.
Flowing from the above analysis, we make the following Orders:
(i)
The 1st respondent’s notice of preliminary objection dated August 1, 2019 is hereby overruled.
(ii)
The notice of motion dated July 18, 2019 is hereby granted.
(iii)
Neither party to this appeal, or any other person shall use, apply or in any way rely upon the High Court and/or the Court of Appeal decisions in this matter until the said appeal is heard and determined.
(iv)
The costs of this application shall abide the outcome of the said appeal.
Orders accordingly.
| Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/56/eng@2020-02-07 |
Petition 10 of 2019 | Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General (Petition 10 of 2019) [2020] KESC 52 (KLR) (7 February 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 2/7/2020 | 2,020 | Nairobi | Civil | Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General | [2020] KESC 52 (KLR) | null | The petitioner’s notice of motion is dated June 10, 2019 seeking extension of time to file a supplementary record of appeal. It is brought under article 163 of the Constitution and rules 21 and 53 of the Supreme Court Rules.
It is supported by an affidavit of Gilbert Mwangi Njuguna, the applicant. He has attached a copy of the unfiled supplementary record of appeal.
A. Background
2.
The applicant, Gilbert Mwangi Njuguna, was employed on September 1, 1986 by the Judicial Service Commission (JSC) as a District Magistrate II. He was later accused of involving himself in several cases of gross misconduct during his tenure with the Judiciary. He was subsequently interdicted from service on October 27, 2006 and then retired in public interest on June 23, 2008. He had attained the position of Acting Senior Principal Magistrate and at the time of interdiction, was serving at Chuka Law Courts.
3.
Aggrieved by the decision of the JSC to retire him in public interest, the applicant filed a petition dated May 4, 2009 as amended on 1July 5, 2010 in the High Court for declaratory orders inter alia that his interdiction by the JSC on October 27, 2006 was illegal, null and void.
4
Upon hearing the parties, the trial judge in a judgment dated January 28, 2014, allowed the petition and made orders, inter alia, that the purported interdiction of the applicant from Judicial Service on October 27, 2006 was illegal, null and void and that the 1st respondent (JSC) ought to re-engage the applicant at a level not lower than Senior Principal Magistrate (SPM) with effect from the date of the Judgment without loss of his accrued pension with respect to past service.
5
Aggrieved by the High Court Judgment, the 1st respondent (JSC) filed an appeal to the Court of Appeal seeking an order that the judgment of the Industrial Court (honourable Justice Nduma Nderi) dated January 28, 2014 be set aside and be substituted with an order dismissing the applicant’s further amended petition with costs. The applicant on his part cross appealed, contending, inter alia, that the trial judge erred in not allowing the amended petition dated July 15, 2010 as prayed, and also give an order for vindicatory and exemplary damages.
6
The Court of Appeal delivered a judgment on January 25, 2019 allowing the appeal by the 1st respondent (JSC). The judgment of the Employment and Labour Relation Court dated January 28, 2014 was set aside and the cross appeal by the petitioner dismissed for lack of merit. The applicant thereafter filed petition No 10 of 2019 in this court dated March 15, 2019 challenging the Judgment of the Court of Appeal.
7.
The parties appeared before the Deputy Registrar of this Court on several occasions for direction and on June 21, 2019, the 1st respondent was granted 7 days to file submissions in opposition to the application by the petitioner. The file was thereafter to be placed before the court for the empaneling of a Bench to determine the said application. | C. Determination and Analysis
11.
We have considered the parties’ pleadings concerning the application and the sole issue for determination at this stage is whether the orders sought in the application can issue.
12.
The principles for extension of time have been well settled in this court as pleaded by the applicant in the case of Nick Salat (supra). From the pleadings, the following facts are discernable: The Court of Appeal rendered its Judgment on January 25, 2019. Notice of Appeal was filed on February 1, 2019. The appeal was filed on March 19, 2019 before the typed proceedings were obtained from the Appeal Court. The typed proceedings were obtained on the March 29, 2019 and that the applicant tried to file the supplementary record of appeal on the 15th of April, 2019 but this was rejected because time within which it should have filed had lapsed. He however avers that he filed his submissions on the petition on the April 16, 2019 and the instant application on the June 11, 2019.
13.
We have examined the documents in the attached supplementary record of appeal and note that the Court of Appeal Judges signed off their notes on the March 14, 2019 which was way past the 30 days allowed for filing of a record of appeal. The petition of appeal itself was filed on 19th March before the applicant had obtained the written proceedings.
14.
The applicant has alleged that, subsequently, he attempted to file the typed proceedings through a Supplementary Record of Appeal on April 15, 2019 but this was rejected at the registry as the prescribed time to file had already lapsed.
15.
Under rule 33 of the Supreme Court Rules, the applicant was required to file the record of appeal within 30 days of the date he had filed the notice of appeal. The applicant submitted that he could not do so within the said stipulated time because there was delay in the release of the typed proceedings by the Court of Appeal. That it was not until March 29, 2019 that he obtained the same. The applicant had by then filed the petition of appeal on March 19, 2019 before he obtained the typed proceedings from the Court of Appeal.
16.
Under rule 33 of the Supreme Court Rules, the applicant was required to have filed the appeal within 30 days from February 1, 2019 when the notice of appeal was filed. In the circumstances, it is clear that the appeal should have been filed by March 3, 2019 but being a Sunday it ought to have been filed by March 4, 2019 which was the next working day. The applicant filed the appeal on March 19, 2019. This means that the applicant filed his appeal 46 days from the date the notice of appeal was filed. The appeal therefore was filed out of time, a delay of 16 days. We note that despite filing the present application for leave to file the supplementary record of appeal out of time, the applicant has not applied for leave to extend time for filing the appeal out of time. There is no prayer for such extension of time within the present application.
17.
In the circumstances, therefore, strictly, there is no valid petition of appeal on record. It follows that the present application for leave of extension of time to file a supplementary record out of time is not founded on any substantive proceedings. It is hanging in the air without any roots or foundation. As was stated in Nick Salat - “where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before he can proceed to do that which the law requires”
18.
The court in that case proceeded to observe and found that:
“
By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the court cannot do.
To file an appeal out of time and seek the court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as the document is unknown in-law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time the much he can do is to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time and not to file an appeal and seek to legalize it. Petition No 10 of 2014 having been filed out of time and without leave (an order of this Court extending time), is expunged from the Court’s Record.
On the basis of the aforesaid decision, we hereby find that the filing of the so called “Petition” is a nullity and of no legal consequence. It was filed out of time and without leave (an order extending time) it must be expunged from the Court’s Record.
19.
We further note that on record is a proposed Consent letter by Joint Counsel for the parties dated June 24, 2018 and lodged in Court on November 7, 2019 and which was placed before the Deputy Registrar on November 14, 2019, for adoption of the same as a court order. This letter and proposed consent to allow extension of time to file the supplementary record out of time was placed on the file while the preparation of this Ruling was pending. We declined to have this “consent” endorsed and adopted as a court order, when we realized that the so called “petition” had been filed out of time. Endorsement and adoption of the said “consent” would have no efficacy in law.
D. Determination and Orders
20.
Flowing from our findings above, the final orders to be made are that:
(a)
The applicant’s notice of motion dated June 10, 2019 is hereby struck out.
(b)
The “Petition” of appeal dated March 15, 2019 and filed on March 19, 2019 is hereby struck out.
(c)
Each party to bear its costs. | Struck out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/52/eng@2020-02-07 |
Advisory Opinion Reference 1 of 2017 | Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 7 February 2020 | 2,020 | Nairobi | Civil | Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others | [2020] KESC 54 (KLR) | null | A. Introduction
1
The Applicant herein is the Kenya National Commission on Human Rights (KNCHR). By way of a Reference dated 20th April 2017, the Applicant seeks to invoke this Court’s Jurisdiction pursuant to the provisions of Article 163(6) of the Constitution. The Reference in a nutshell seeks a purposive interpretation of Chapter Six of the Constitution in view of Articles 38, 50, 99, 137, 180 and 193 of the Constitution, specifically in the context of the affairs of political parties.
2.
The Reference is grounded on the contention that there is apparent contradiction, lack of clarity and/or guidance in High Court and Court of Appeal decisions on the place of Chapter Six of the Constitution, more so with regard to the leadership and integrity qualification of persons offering themselves to be elected or appointed to public service and/or offices within the Republic of Kenya
3.
The Applicant has thus averred that the Superior Courts as well as the various institutions set up under the Constitution and Statutes to vet the moral and ethical soundness of persons seeking elective or appointive offices, have interpreted the Constitution in an erroneous, restrictive, conflicting, inconsistent and incoherent manner hence the need for guidance by the apex Court. It has urged further that such interpretation has resulted in a confused jurisprudence and rendered the provisions of Chapter Six of the Constitution ineffective and toothless.
4.
The alleged contradicting decisions of the Superior Courts cited by the Applicant include: International Centre for Policy and Conflict & 5 Others v The Hon. AG & 4 others, High Court Petition No. 552 of 2012; Luka Angaiya Lubwayo & Another v Gerald Otieno Kajwang & Another, High Court Constitutional Petition No. 120 of 2013; Mumo Matemu v Trusted Society of Human Rights Alliance & others, Civil Appeal No. 290 of 2012; Marson Integrated Ltd v Minister for Public Works & Another, High Court Petition No. 252 of 2012; Benson Riitho Mureithi v J. W. Wakhungu & 2 others, Constitutional Petition No. 19 of 2014; and Commission on Administrative Justice v John Ndirangu Kariuki & IEBC, Constitutional Petition No. 408 of 2013.
5.
The Applicant also notes that a Constitutional Petition No.68 of 2017 Okiya Omtatah vs. the Jubilee Party, Wiper Democratic Movement and Maendeleo Chap Chap Part and the IEBC & AG (as Interested Parties), seeking a declaration that, only the High Court has the jurisdiction to declare that a person has contravened Chapter Six of the Constitution, was pending in the High Court. It contends that, in view of the existing and conflicting decisions from the High Court and Court of Appeal, another decision from the High Court would only add to the confusion hence the need to resolve the matter at this forum.
6
The 14 issues raised by the Applicant for an opinion by this Court are inter alia:
i.
Whether Chapter Six of the Constitution sets up a fit and proper test for leadership including elective and appointive offices.
ii.
Whether the fit and proper test for leadership required by Chapter Six is an objective test and not a subjective test in the mind of the vetting and/or appointing bodies for elective and appointive offices.
iii.
Whether the fit and proper test for leadership is wider than the criminal test of conviction for criminal offences.
iv.
Whether the vetting and/or appointing bodies/persons have an obligation to objectively and positively determine that a person seeking elective or appointive office is fit and proper.
v.
Whether persons who have been found to have breached their duty of trust to safeguard public funds and seeking to be elected at the County as Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President or Deputy President should be disqualified from pursuing such office irrespective of whether he/she has been charged with a criminal offence, under the provisions of Chapter Six of the Constitution .
vi.
Whether a person found by an audit report by the Auditor General to have been responsible for loss of funds belonging to a public institution he was in charge of or that the said funds have not been applied lawfully and in an effective manner should be disqualified from seeking to be elected as the County Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President or Deputy President, irrespective of whether he/she has not been charged with a criminal offence, on grounds that their breach of trust in safeguarding public funds as established by the Auditor-General’s Report amounts to contravention of the provisions of Chapter Six of the Constitution and should be disqualified from seeking to be so elected.
vii.
Whether a person seeking to be elected as the County Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President and Deputy President, though he has not [yet] been charged but a recommendation has been made by either the investigative bodies like the 2nd Interested Party for him/her to be charged with an offence involving misuse of public funds or some other heinous crime impacting on his integrity, should be found to have contravened the provisions of Chapter Six of the Constitution and should be disqualified from seeking to be so elected.
viii.
Whether a person seeking to be elected at the County as Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President, Deputy President and the Cabinet, and has been convicted of a criminal offence involving misuse of public funds or some other heinous crime impacting on his integrity, and the sentence has been served, should be found to have contravened the provisions of Chapter Six of the Constitution and should be disqualified from seeking to be so elected;
ix.
Whether the Independent Electoral and Boundaries Commission should be pro-active in investigating and excluding from participating in elections and/or providing information to the electorate about candidates who do not pass the integrity test as provided for in Chapter Six of the Constitution instead of leaving it to the electorate or contestants to do so.
x.
Whether the Independent Electoral and Boundaries Commission and other institutions charged with the responsibility of vetting candidates owe it to the electorate and to all citizens of the Republic of Kenya to ensure that only persons who meet the threshold of Chapter Six of Constitution should be allowed to seek to be elected.
xi.
Whether a person seeking to be elected at the County as Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President and Deputy President, and has been convicted of a criminal offence involving misuse of public funds or some other heinous crime impacting on his integrity, and despite the pendency of an appeal or non-exhaustion of the appeal process against the conviction, should be found to have contravened the provisions of Chapter Six of the Constitution and should nonetheless be disqualified from seeking to be so elected.
xii.
Whether there is a contradiction between the provisions of Chapter Six of the Constitution, on the one hand, and the provisions of Articles;-
a.
38 (on the right of every citizen to make political choices);
b.
50 (on the right to be presumed innocent until the contrary is proved); and
c.
99, 137, 180 and 193, (which provides that a person is disqualified from being elected President, a member of Parliament, governor or Member of County Assembly, if the person is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election and that a person is not disqualified unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, on the other hand);
xiii.
If the answer to (viii) above is in the affirmative, whether the provisions of Chapter Six of the Constitution prevail and/or take precedence over the provisions of Articles 38, 50 and 99 of the Constitution as regards persons seeking to be elected. In any event what is a correct and purposeful interpretation of the said provisions so as to give effect to the aspirations and intentions of the people of Kenya.
xiv.
Whether the criteria for qualification for elective positions at both the County and National level should apply, mutatis mutandis, to appointment to public office.
7.
The Reference is supported by an affidavit sworn by one Patricia Mande Nyaundi, the Secretary/Chief Executive Officer of the Commission, verifying the correctness of the averments in the Reference. | The 17th Interested Party challenges this Court’s Jurisdiction on three limbs namely, that the Applicant lacks the locus standi to institute the Reference before us; that the issues raised in the Reference are sub-judice in view of Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017, and that the Reference is an appeal of the various determined Petitions by the High Court camouflaged as an application for advisory opinion.
39
The Applicant, in opposition to the Preliminary Objection has argued that the issues raised in the Reference are not and had not been the subject of proceedings before the Superior Courts and further, that the issues in the Reference are neither res sub judice nor an appeal disguised as an advisory opinion.
40.
The Respondent, the 1st, 2nd and 15th Interested Parties agree, in substance, with the Applicant and add that the Preliminary Objection is devoid of merit and contrary to public interest.
(a) Whether the Applicant has locus standi
(41)
This Court’s jurisdiction to issue advisory opinions is anchored in the Constitution by dint of Article 163(6) which stipulates that:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”. [Emphasis added]
42
The same provision is reflected at Section 13 of the Supreme Court Act, 2011 (No. 7 of 2011) and Rule 41 of the Supreme Court Rules, 2016. Rule 41 states:
“
The National Government, a state organ or County Government may apply to the Court by way of reference for an advisory opinion under Article 163(3) of the Constitution”. [Emphasis added]
43
It cannot however, be said that once an applicant has invoked Article 163(6) of the Constitution, this Court, undeniably, has jurisdiction. Article 163(6) of the Constitution specifies who can seek an advisory opinion, and in what matters such an opinion may be sought.
(44)
In line with Article 163(6) of the Constitution, this Court has also developed a mechanism through which it sieves matters referred to it, to ascertain if they pass the admissibility test. Of relevance is this Court’s opinion In Re Matter of the Interim Independent Electoral Commission (supra), where the Court held:
“
(83)
…, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
(iv)
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.” Emphasis added)
45
In the Matter of the National Gender and Equality Commission Reference No. 1 of 2013 the Court further set out certain key considerations in applying the essentials expounded in Re Matter of the Interim Independent Electoral Commission (Supra). The Court thus set out that, a party moving the Court under Article 163 (6) must have locus standi. It held that under this condition, the Court must always consider whether the party seeking to move it, falls within the categories of parties decreed as having such standi by the Constitution. The Court would then proceed to consider the subject-matter to ascertain whether it is one involving a County Government and if it finds in the affirmative, the other considerations then come into play.
46
In that regard the Court opined;
“
However, there are certain key considerations in applying these essentials. The starting point will always be that the party must have locus standi. The Court will always consider whether the party seeking to move it, falls within the categories of parties decreed by the Constitution. The Court will then proceed to consider the subject-matter: whether it is one involving County Government. Once it rules in the affirmative, the other considerations come into play.” [Emphasis added] | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/54/eng@2020-02-07 |
Civil Application 10 of 2019 | Kiragu v Mugambi & 2 others (Civil Application 10 of 2019) [2020] KESC 77 (KLR) (7 February 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala | 7 February 2020 | 2,020 | Nairobi | Civil | Kiragu v Mugambi & 2 others | [2020] KESC 77 (KLR) | null | Before the Court is an Originating Motion brought under the provisions of Article 163 (4)(b) and (5) of the Constitution of Kenya, 2010 and Sections 15(1) and 16(2) of the Supreme Court Act, 2011. It seeks a review of the Court of Appeal’s decision of 14th March, 2019 denying the applicant certification to appeal to this Court under the rubric of matter of general public importance (GPI).
2.
The dispute giving rise to this matter pits a father (the applicant) against his sons (the respondents) on the occupation and ownership of a piece of land situate at La Marina area in Mtwapa Township and known as subdivision No. 655 (Original No. 539/39) Section III MN (the suit land). In Malindi ELC Case No. 101 of 2015, the applicant, who claims ownership of the suit land, sought a perpetual injunction to restrain the respondents from continuing to trespass on it and vacant possession. Contemporaneous with the filing of that suit, the applicant applied for an interlocutory injunction to restrain the respondents from interfering with his access or entry on to the suit property.
3.
In response to both the suit and that application, the respondents claimed they have occupied the suit land since childhood. They also filed a counter application for injunction to restrain the applicant from alienating or otherwise interfering with their quiet possession of the suit land. Angote J. heard the two applications together. In his ruling of 1st April 2016, the learned Judge dismissed the applicant’s application and allowed the one by the respondents hence maintaining the prevailing status quo on the suit land.
4.
When the applicant’s appeal against that ruling came up for hearing on 23rd November 2016, by consent of the parties, the Court of Appeal referred the matter to an alternative dispute resolution forum – the National Supreme Council of Njuri Ncheke Ya Ameru Elders (Njuri Ncheke). In its award dated 21st February 2017, the Njuri Ncheke decreed the suit land to the applicant and directed each of the respondents to give a he goat to their father (applicant) as compensation for exposing him to court ridicule contrary to the Ameru customs. The respondents contested that award contending that it was biased and did not address pertinent issues they had raised. Acceding to that plea, the Court of Appeal held that as the arbitration was not sanctioned by the court but was at the initiative of the parties with no consent to be bound by the resultant award, the court could not impose it on either party. Moreover, the Court of Appeal further held that, it is the High Court which has jurisdiction to determine challenges to arbitral awards.
5.
Aggrieved by that decision, the applicant sought the Court of Appeal’s certification to appeal to this Court but the Court of Appeal dismissed that application thus provoking the one now before us. | This application is based on the applicant’s contention that by submitting to the ADR process, the parties should be taken to have consented to be bound by the resultant award. In the circumstances, the Court of Appeal’s said decision declining to enforce an award on the ground that the arbitration was not sanctioned by the court and was not based on a written consent transcends the dispute between the parties and is therefore a matter of general public importance as it impacts on the proper implementation of Article 159(2)(c) & (3) of the Constitution.
7.
In opposing the application, the respondents urge that the issues raised do not meet the criteria for certification that this is a matter of general public importance. The respondents further argue that in any event the original matter before the ELC as well as the appeal before the Court of Appeal are still pending determination and the Applicant has not demonstrated any willingness to pursue those matters to their logical conclusion.
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—Teachers Service Commission v Kenya National Union of Teachers & 3 others [2015] eKLR. See also Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2018] eKLR.
9.
In this case, the issue canvassed before the High Court was an application for an interlocutory injunction. The Court of Appeal did not determine the issue of injunction. As stated, the parties, on their own initiative, referred it to ADR and when the Court of Appeal declined to adopt the ADR award, the applicant sought certification to appeal to this Court against that refusal. So there is no substantive determination by the Court of Appeal or even the High Court of a constitutional question. Moreover, the Court of Appeal’s refusal to adopt an ADR award by Njuri Ncheke is a private matter between the parties and does not satisfy the criteria of a matter of general public importance as enunciated in the cases of Malcolm Bel v Daniel Toroitich Arap Moi & Anor [2013] eKLR and Hermanus Phillipus Steyn v Giovanni Ruscone [2013] eKLR. In the circumstances, we dismiss the application with costs.
10.
Flowing from the above determination, we make the following orders
(a)
The applicant’s Originating Motion dated March 26, 2019 is hereby dismissed.
(b)
The respondents shall have the costs of the application.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/77/eng@2020-02-07 |
Petition 20 of 2017 | Modern Holdings (EA) Limited v Kenya Ports Authority (Petition 20 of 2017) [2020] KESC 53 (KLR) (7 February 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 7 February 2020 | 2,020 | Nairobi | Civil | Modern Holdings (EA) Limited v Kenya Ports Authority | [2020] KESC 53 (KLR) | null | Brief facts
On diverse dates in December 2007 and January 2008, the appellant imported through the port of Mombasa containers of assorted products. Due to the 2007/2008 post-election violence in Kenya, it was claimed that only 6 out of the appellant’s 21 containers were traced and cleared. Consequently, in April 2009, the appellant filed a suit at the High Court and claiming the value of the cargo lost as well as consequential losses. After hearing the case, the High Court awarded the appellant a total sum of US $ 9,187,090 being the value of the lost consignment, loss of profits and the cost of following up the consignment.
On appeal, the Court of Appeal set aside the High Court judgment and found that under section 62 of the Kenya Ports Authority Act (KPA Act), the High Court did not have jurisdiction to entertain the appellant’s claim. The Court of Appeal also held that it was a misapprehension of the law to argue that section 62 of the KPA Act was unconstitutional for limiting the right of access to justice because it required disputes arising from the respondent’s discharge of its statutory duties under sections 12, 14, 15 and 16 of the KPA Act to be referred to arbitration. The Court of Appeal finally held that the High Court erred in entertaining the claim before the parties had attempted or exhausted the out of court settlement or arbitration procedure set out in section 62 of the KPA Act. Aggrieved by that decision the appellant filed the instant appeal.
Issues
What was the nature of an ouster clause and whether section 62 of the KPA Act was an ouster clause for outlawing court action to remedy damage suffered under some provisions of the Act?
Whether section 62 of the KPA Act which outlawed court action to remedy any damage suffered under various provisions of the Act and provided for an alternative dispute resolution mechanism through arbitration could oust the jurisdiction of the High Court and whether it was unconstitutional for:
violating the right to enforce property rights under article 40 of the Constitution.
violating the right to access to justice.
| E. Analysis
22.
From these submissions, three issues emerge for our determination:
(i)
whether section 62 of the KPA Act is an ouster clause; and
(ii)
whether section 62 of the KPA Act is unconstitutional for fouling articles 10, 40, 48, 50(1), 159(2)(d) and/or 165(3) of the Constitution.
(iii)
If the answer to (ii) above is in the negative, what remedy is available.
(i) Whether section 62 of the KPA Act is an ouster clause
23.
The appellant contended that section 62 of the KPA Act is an ouster clause and is therefore unconstitutional. This is because the 2010 Constitution has rendered all ouster clauses in our law unconstitutional and no ouster clause can override provisions of a Constitution. What is an ouster clause?
24.
In Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others, S.C Petitions 13A of 2013 as consolidated with Petition 14 of 2013 and Petition 15 of 2013 [2014] eKLR, this Court had occasion to deal with the issue of an ouster clause. At paragraph [115], it observed that:
“
[115]
.... Ouster clauses are provisions in the Constitution or a statute that take away, or purport to take away the jurisdiction of a competent court of law. They deny the litigant any judicial assistance in the relevant matter, and at the same time deny the courts the scope for making any arbitral contribution with respect to the relevant matter. In short, ouster clauses curtail the jurisdiction of the court, as the relevant matter is rendered non-justiciable before the courts.”
25.
In the light of this authority, an ouster clause is one which denies an aggrieved party the right to litigate his claim before a court of law “thus rendering [it] non-justiciable before the Courts.” This means that a person who suffers damage in a given matter has no legal remedy. Does section 62 of the KPA Act render disputes thereunder non-justiciable? The section provides that:
“
In the exercise of the powers conferred by sections 12, 14, 15 and 16, the Authority shall do as little damage as possible; and, where any person suffers damage, no action or suit shall lie but he shall be entitled to such compensation therefore as may be agreed between him and the Authority or, in default of agreement, as may be determined by a single arbitrator appointed by the Chief Justice.”
26.
Far from disentitling an aggrieved party a remedy, as a matter of fact the section expressly entitles him compensation for any damage suffered. While it provides that “no action or suit shall lie”, it nonetheless authorizes any person suffering damage thereunder to negotiate with the Kenya Ports Authority a settlement through negotiation failing which then the matter should be referred to arbitration.
27.
In the circumstances, section 62 of the KPA Act is not an ouster clause as the appellant contended.
(ii) Whether section 62 of the KPA Act is unconstitutional for fouling articles 10, 40, 48, 50(1), 159(2)(d) and/or 165(3) of the Constitution.
28.
The second issue raised in this matter is whether section 62 of the KPA Act is unconstitutional for fouling articles 10, 40, 48, 50(1), 159(2)(d) and/or 165(3) of the Constitution. article 10 of the Constitution enumerates the national values and principles of good governance as:
“
patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development.”
The article obliges "State organs, State officers, public officers, and all persons whenever any of them—applies or interprets this Constitution; enacts applies or interprets any law; or makes or implements public policy decisions”, to be governed by those principles.
29.
The appellant has not demonstrated how section 62 of the KPA Act fouls any of these values or principles. In the circumstances, we find that section 62 of the KPA Act does not run counter to article 10 of the Constitution.
30.
The appellant also contended that by outlawing court action to remedy any damage suffered under sections 12, 14, 15 or 16, section 62 of the KPA Act violates the appellant’s right to enforce its property rights under article 40 of the Constitution. That is not correct.
31.
The section does not forbid or outlaw court action for relief. That section does not grant the Kenya Ports Authority immunity from all judicial intervention or dispute resolution processes. It simply provides for an alternative dispute resolution (ADR) mechanism by way of negotiations and arbitration in the settlement of any dispute arising under any of sections 12, 14, 15 or 16 of the KPA Act. Ogola, J underscored this point in Reddington (Uganda) Ltd v. Office of the Attorney-General & Another [2018] eKLR, where he observed that:
“
…section 62 of the KPA Act does not infringe on the Petitioner’s right to property as entrenched under article 40 of the Constitution nor its right to access to justice under article 48 of the Constitution. section 62 of the KPA Act merely provides other modes of dispute resolution by which the Petitioner can access justice and in turn safeguard its right to property.”
32.
In its judgment giving rise to this appeal, the Court of Appeal observed that section 62 of the Act does not at all oust the jurisdiction of the court but merely limits and postpones it in the first instance. By article 165(3)(e) and (6) of the Constitution, the High Court does, not only retain both appellate and supervisory jurisdiction but has also the final adjudicatory powers over the matters referred to arbitration. The promulgation of the 2010 Constitution neither affected section 62 of the Act nor does section 62 override article 165(3)(a) which expressly grants "unlimited“original jurisdiction in Criminal and Civil matters”. Similarly, article 159(2)(c) which encourages alternative forms of dispute resolution including arbitration on which section 62 aforesaid is anchored, merely creates an alternative but concurrent jurisdiction in resolving disputes.
33.
With increased globalization of commerce, arbitration has become one of the preferred ADR mechanisms for settling international disputes. It is, in particular, the major ADR process appropriate for resolution of complex commercial disputes especially those involving technical issues. In his book, Law, Practice and Procedure of Arbitration, (Second Edition), Prof. Sandra Rajoo underscored this point in his observation that:
“
…arbitration is now a generally accepted method of resolving disputes in a variety of commercial transactions, in particular those in specialised or technical industries such as shipping, construction, energy and financial services sector.” 2
2
Datuk Professor Sandra Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), LexisNexis Malaysia Sdn Bhd (Co. No. 7625-H), at p 6. In the 2013 Survey by PWC, Corporate Choice in International Arbitration, 2013 PWC, a majority of the respondents stated that arbitration was the preferred mode of resolution of their disputes.
34.
The issue giving rise to this appeal is loss of the appellant’s cargo while in the hands of the respondent in its business as stevedore, wharfinger and/or warehousemen. Determination of the value of such cargo invariably require expertise. As stated above, arbitration is only one of the methods of expeditiously resolving such disputes and that explains the efficacy of section 62 of the KPA Act. So far from denying the appellant the right to enforce its property rights, the section is in fact meant to enable claimants to expeditiously and more efficiently enforce their property rights. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/53/eng@2020-02-07 |
Petition 18 of 2016 | Okoiti v Independent Electoral and Boundaries Commission & another; Kenyatta & 7 others (Interested Parties) (Petition 18 of 2016) [2020] KESC 68 (KLR) (7 February 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 7 February 2020 | 2,020 | Nairobi | Election Petition | Okoiti v Independent Electoral and Boundaries Commission & another; Kenyatta & 7 others | [2020] KESC 68 (KLR) | null | A. Introduction
1.
The Petition before the court is dated October 27, 2017, and lodged on even date. The petitioner seeks the interpretation of article 140 as read with articles 138 and 139 of the Constitution. In particular, the petitioner seeks a determination of the question as to what threshold must be met, in order to trigger a fresh presidential election within the meaning of article 140(3) of the Constitution. The petitioner also seeks a determination of the effect of the withdrawal from the 26th October fresh presidential election by the 2nd Interested Party herein.
B. Background
2.
Following the August 8, 2017General Elections, the 1st respondent declared the 1st Interested Party, Uhuru Muigai Kenyatta, the winner of the elections and the 2nd Interested Party, Raila Amolo Odinga, the runner up, on 18th August 2017, filed a presidential election petition, Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 others, No 1 of 2017 (hereinafter, Raila Odinga 2017) challenging the validity of the election.
3.
On 1st September 2017, this court annulled the 8th August 2017 presidential election on grounds that the same was not conducted in accordance with the Constitution and applicable election laws. the court consequently ordered the 1st respondent, to organize and conduct a fresh presidential election, under article 140(3) of the Constitution, within 60 days of the determination. Following several developments, the fresh election was fixed to take place on 26th October 2017, by the 1st respondent.
4.
On October 10, 2017, the 2nd Interested Party withdrew from the fresh election claiming that, the 1st respondent had failed to undertake basic reforms that could ensure a credible, fair and accountable election.
5.
On 11th October 2017, the petitioner filed Constitutional Petition No 504 of 2017, Okiya Omtatah Okoiti v The Independent Electoral and Boundaries Commission & 3 others, seeking inter alia, the determination of the question as to the effect of the withdrawal from fresh election by the 2nd Interested Party. On October 24, 2017, the High Court (Mativo J) dismissed the petition on the basis that the subject matter jurisdiction was reserved exclusively to the Supreme Court. the court’s reasoning was guided by this court’s decision in the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No 2 of 2010.
6.
Following the High Court decision, the petitioner has filed this appeal seeking the following reliefs:
(i)
A declaration that the Supreme Court decision in Raila Odinga 2013 was part of the elections laws in force when the NASA presidential and deputy candidates abandoned the repeat election scheduled for 26th October, 2017;
(ii)
A declaration that the decision by NASA presidential and deputy candidates to withdraw from the election was fatal to the said election and effectively and irreversibly cancelled the said election; exiting article 140(3) and kicking into operation article 138(8)(b) of the Constitution;
(iii)
A declaration that the elections held pursuant to article 140(3) of the Constitution were invalid, null and void;
(iv)
A declaration that IEBC ought to have held the election within sixty days from 10th October, 2017, being on or before the 10th December, 2017, preceded by fresh nominations;
(v)
A declaration that the law in force during the 8th August, 2017 presidential elections was the law applicable in the election;
(vi)
A declaration that section 83 of the Elections Act 2012 is unconstitutional, null and void;
(vii)
An order compelling the 1st and 2nd respondents to hold fresh presidential elections preceded by fresh nominations, pursuant to articles 138(8)(b) and 138(9) of the Constitution and under the election laws in force during the annulled 8th August 2017 presidential elections;
(viii)
Cost of the suit; and
(ix)
Any other relief the court may deem just to grant .
7.
The petitioner’s case in a nutshell is that the fresh election of October 26, 2017, was conducted in violation of the Constitution and electoral laws.
| F. Analysis
(i) On Jurisdiction
46.
Both the respondents and Interested Parties have vigorously opposed this Petition for want of jurisdiction. It is their argument that, this court lacks jurisdiction to hear and determine the Petition. It is their further argument that, even if this court had jurisdiction to entertain the Petition (which it doesn’t), the same is moot, as all the issues raised by the petitioner have either been conclusively determined by this court or are pending at the court of Appeal.
47.
The submissions challenging the court’s jurisdiction have been comprehensively highlighted in the foregoing paragraphs. The respondents submit that the Petition, is disguised as seeking the interpretation by this court, of various articles of the Constitution while in essence, it is in reality, challenging the validity of the repeat presidential election held on the 26th October of 2017. In the respondents’ view, any declarations or Orders emanating from this court, as a result of the Petition herein, would be a pronouncement about the validity or otherwise of the said election. They also argue that, even if the Petition simply seeks the interpretation of various articles of the Constitution, the same is misconceived as the jurisdiction to interpret the Constitution in the first instance, lies with the High Court.
48.
The petitioner on the other hand, is categorical that this court has the requisite jurisdiction to hear and determine the Petition. It is his contention that the Supreme Court has the exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the president. This exclusive original jurisdiction, in the view of the petitioner, also vests the court with original jurisdiction to interpret all the articles relating to the election of a president. He urges the court to seize the moment and clarify a number of questions that he has identified in the Petition.
49.
We have carefully considered the reasoned positions of all parties to the Petition regarding the jurisdiction of this court. Towards this end, and as has been the practice of this court in disputes wherein jurisdictional questions have arisen, we have to turn back to article 163(3) of the Constitution. In this regard, we focus upon article 163(3) (a) which, provides that the Supreme Court shall have:
“
exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under article 140…” (Emphasis added).
article 140 (1) on the other hand provides that:
“
A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.” (Emphasis added).
50.
We hasten to restate the position that, the Constitution confers upon the Supreme Court, exclusive original jurisdiction, to determine disputes relating to the election of the President arising under article 140 only. Though exclusive and original, this jurisdiction is limited to the circumstances contemplated in article 140(1). It is not a blanket jurisdiction that empowers the Supreme Court, to flex its judicial authority over any and all interpretational questions, touching upon the election of the President. It must be further emphasized that, article 163(3) of the Constitution does not oust the High Court’s original jurisdiction to interpret the Constitution under article 165(3)(d). The Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicks in after the declaration of results, following a petition challenging the election; (see Aluochier and Ekuru Aukot) (supra).
51.
Applying these principles to the Petition herein, we have no hesitation in agreeing with the respondents’ submissions (supported by the Interested Parties) to the effect that the petitioner has wrongly invoked this court’s jurisdiction. If his intention is to seek the interpretation of articles 138, 139 and 140 of the Constitution, the petitioner cannot leapfrog the High Court and come directly to the Supreme Court. Conversely, if the intention of the petitioner is to challenge the validity of the fresh presidential election of October 26th 2017, then his Petition has been filed in breach of article 140(1) of the Constitution. It is not denied that the Petition herein, was filed before the declaration of the results of the October 26th election.
52.
The Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared. It is one thing for the court to pronounce itself on a constitutional or legal question, but it is another thing to determine the validity of an election. In other words, the Supreme Court cannot anticipate the validity of a presidential election, within the meaning of article 140(1) of the Constitution. As such, this court lacks jurisdiction to hear and determine the present Petition.
(ii) On Costs
53.
Having determined that the court lacks jurisdiction to entertain this Petition, we see no reason to delve into the other attendant issues. This conclusion then leaves us with the question as to what Orders we should make regarding Costs. The petitioner has urged the court not to visit him with Costs, in the event of an adverse decision to himself. His main argument is that this being a Petition in public interest, the same should not be penalized by way of Costs, as this would go against the spirit of Public Interest Litigation.
54.
The respondents and Interested Parties, on the other hand, argue that the petitioner should bear their Costs as the same was filed, not in the public interest as claimed by the petitioner, but in furtherance of his own private interests. In this regard, they submit that the petitioner participated in the 2017 general election as a candidate of NASA; a coalition led by the 2nd Interested Party, whom the petitioner actively supported.
55.
We have considered the Parties’ Submissions regarding the issue of Costs. We have times without number, stated the general principle that costs follow the event. We have at times departed from this Principle, to order that each party should bears its own Costs in exceptional circumstances. As observed in our past decisions, although election petitions are almost invariably filed by private individuals (losing candidates), they, by their very nature, bear a certain element of public interest.
56.
However, not every election petition can be classified as public interest litigation, unless it exhibits a distinct focus on furthering the Public Interest. Each case has to be determined on its own merits. In the instant case, we are not convinced that this Petition was filed for the distinct objective of furthering the Public Interest. We are not able to perceive how the petitioner, having actively participated in and supported the election agenda of the 2nd Interested Party, suddenly experienced an epiphany that propelled him into the just course of public interest litigation, in the wake of the fresh presidential election of October 26th 2017.
57.
In the circumstances, as costs follow the event, having failed in his Petition, the petitioner must bear the costs of the Petition being struck out.
| Struck out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/68/eng@2020-02-07 |
Petition 40 of 2018 | Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others (Petition 40 of 2018) [2020] KESC 15 (KLR) (Nairobi) (24 January 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola | 7 February 2020 | 2,020 | Nairobi | Civil | Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others | [2020] KESC 15 (KLR) | null | Before the Court is a Notice of Motion Application dated 27th February, 2019 and filed on 27th February, 2019, within Petition 40 of 2018. It is filed pursuant to Sections 21 and 24 of the Supreme Court Act, 2011 and Rules 3 (5) and 23 of the Supreme Court Rules, 2012. The Application is supported by the sworn affidavit of Victoria Simiyu Okata, Counsel for the Applicants.
2.
The Applicants seek leave to file a Supplementary Record of Appeal comprising of documents that were omitted from the Record of Appeal filed on 31st October, 2018. These documents are the Notice of Appeal lodged in the High Court, Memorandum of Appeal lodged in the Court of Appeal and the parties’ written submissions which they had filed and relied on in the Court of Appeal. All these are mandatory documents in a record of appeal under Rule 33 (4) and 33(7) of the Supreme Court Rules. The Applicants aver that their omission was due inadvertent omission given the hasty filing of the appeal before the lapse of the statutory 30 days provided for filing an appeal. The Applicants urge that the orders sought be granted as the Respondents will not be prejudiced by their issuance.
A. Litigation Summary
3.
The suit before the High Court, ELC No. 51 of 2014, concerned a dispute between the parties arising from a contract pertaining to the service charge payable by the Appellants. This was in regard to the leases entered into with the Respondents, in respect of some of the apartments erected on Plot No.10714 situated in Malindi also known as Woburn Residence Club. At execution of the lease contracts, the Appellants were to pay a provisional monthly rate service charge. The charge payable was subject to review upon the Respondents availing statements of accounts which the Appellants would ratify. However, contrary to that agreement it is alleged that the Respondents demanded for amounts which exceeded the provisional rate without availing the required statements of account to enable proper calculations.
4.
The Respondents filed a Preliminary Objection dated 3rd April, 2014 on even date challenging the Court’s Jurisdiction. The Preliminary Objection was based on the ground that clause 2.5 of the contract provided for the manner of solving disputes. The trial Judge (Angote, J.), however, dismissed the Preliminary Objection on the main ground that it did not raise pure points of law. The Respondents appealed to the Court of Appeal against that finding. The Court of Appeal overturned the decision finding that the Preliminary objection raised a pure point of law on jurisdiction. That court’s opinion was informed by the uncontroverted fact that the parties had agreed on how to resolve disputes under clause 2.5.
5.
That finding has triggered the Appeal before this court pursuant to which the instant Application is filed. The 1st and 2nd Respondents responded to the appeal by filing a Preliminary Objection, Submissions and their list of authorities in support of the Preliminary Objection on 19th Dec 2018. The Deputy Registrar directed the Appellants to respond to the Preliminary Objection. The Appellants however filed the instant Application on 27th February, 2019 seeking leave to file a Supplementary Record of Appeal so as to include documents left out during the filing of the record of appeal.
6.
On 7th March 2019, the Respondents in opposition to this Application filed another Preliminary Objection dated 6th March, 2019. It is a replica of the Preliminary Objection filed in opposition to the appeal. The Hon. Deputy Registrar directed parties on 25th March 2019 to file and exchange written submissions on or before 1st April, 2019 in respect of the Application. The Applicants filed their Submissions dated 26th March 2019 in opposition to the Preliminary Objection dated 6th March, 2019. | C. Analysis and Determination
13.
We have considered the parties’ pleadings and submissions concerning the Application, the issues for determination are as follows: -
(a)
Whether the court has jurisdiction to entertain the Application and the appeal.
(b)
Whether the orders sought in the Application can issue
14.
In addressing both issues seriatim, we note that the Respondents challenge this court’s jurisdiction to hear and determine not only the Application but also the appeal generally, on grounds that the appeal is not within the four corners of the court’s express jurisdiction as per the law; that an appeal from the Court of Appeal can lie before this Court either upon certification as a matter of GPI by the Court of Appeal under Article 163(4) (b), or it be filed directly if it involves matters of interpretation and Application of the Constitution under Article 163(4) (a).
15.
Since the Applicants never sought certification under the first limb, the Respondents urge the court to deem that the appeal is then one involving interpretation or Application of the Constitution. And that subject matter of the suit, being the parties’ obligations in a contract and interpretation of contract terms, they argue that these are not matters of constitutional interpretation. That there is no other avenue left to confer this court with jurisdiction. They thus urge the court to dismiss the Application and strike out the appeal with costs for lack of jurisdiction.
16.
The Applicants did not submit extensively on the issue of jurisdiction save on the single averment in their submissions that the court has jurisdiction to hear and determine the appeal.
17.
On our part, we have perused the plaint in Environment and Land Court [ELC] Case No. 51 of 2014 where we note that the issues raised were based on fraud, breach of trust and misrepresentation in a contract. Further the ruling of that court dated 8th Nov 2017 on the Preliminary Objection on the jurisdiction of the court to hear the suit in light of dispute resolution clause 2.5 trigged appeal proceedings. We have also considered Civil Appeal No. 20 of 2018 in the Court of Appeal and which is the basis of the appeal before us. We note that in all of the above, there was no mention of any Article of the Constitution.
18.
We have further perused the petition of appeal before us. The Petitioners in Para 46 state that the appeal is brought under Article 163(4)(a), as guided by the case of Peter Munya vs. Dickson Mwenda Githinji & 2 Others Petition No. 2 of 2014. That the matters before the Court of Appeal also allegedly revolved around interpretation of Articles 50 and 159 of the Constitution.
19.
This court has had the occasion to define what constitutes a Preliminary Objection. In the case of Aviation & Allied Workers Union Kenya vs. Kenya Airways Limited & 3 others [2015] eKLR, Application No. 50 of 2014, held in Para 15;
‘Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.’
20.
Having considered the contents of the preliminary objection of the Respondents, we are satisfied that the challenge on the Court’s jurisdiction in the appeal amounts to an issue capable of being addressed as a preliminary point of law. This is because the jurisdiction of this court is set by the Constitution and the statute. Since the Applicants indicate that they are coming to this court under Article 163(4) (a), they have the duty to demonstrate that the issues in the appeal involve constitutional interpretation and Application and not a mere reference of constitutional provisions in the appeal, as we held in the case of Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 others [2012] eKLR, Petition 2 of 2012.
21.
We have furthermore noted that the first time article of the Constitution was mentioned in this appeal is in the petition of appeal filed before this court. In that regard, we note our holding in the case of Lawrence Nduttu & 6000 Others vs. Kenya Breweries Limited & Anor – SC Petition No. 3 of 2012 [2012 eKLR] and Erad Suppliers & General Contractors Limited Versus National Cereals & Produce Board SC Petition No. 5 of 2012 where we stated that such an issue must have formed an integral part of the issues in the superior court of the first instance and should have formed part of the courts’ decisions through the hierarchy of courts. As we further held in the case of Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others [2014] eKLR (The Joho case) at paragraph 37, the superior courts below must have interpreted it and made a finding so that the appeal rises through the hierarchy of courts.
22.
We have furthermore found in our past decisions that what amounts to a matter of Constitutional interpretation in instances when the alleged Constitutional issue must have been infused in the matter before the superior courts so that though not specifically raised, it forms and informs the decision of the courts below and thus took a trajectory of constitutional interpretation or Application. In Peter Gatirau Munya vs. Dickson Mwenda Kithinji & Others Supreme Court Application No. 5 of 2014, (Peter Munya Case 1) we held in para 69:
“
…Where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an applicant 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.”
23.
Having gleaned through all the pleadings before us, we find that the Appellants’ before this court did not raise any constitutional issue either in the Environment and Land Court in the first instance neither was such an issue addressed in the findings of the Court of Appeal. We have also not seen any issue taking a constitutional trajectory in either of the two courts. It is our view therefore that the issues raised and the arguments presented turned on the terms of the contract which was the subject of the suit and on the interpretation of not any constitutional provision. In fact, there was no effort demonstrated by the applicant as to the existence of such a constitutional trajectory.
24.
In light of the findings above, observation, we hereby find that the preliminary objection has merit and is hereby upheld.
25.
In the circumstances, we make the following orders:
(a)
The Preliminary Objection is hereby allowed.
(b)
The petition of appeal dated 25th October 2018 and filed on 31st October 2018 is hereby struck out.
(c)
The Applicants shall bear the costs of the appeal.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/15/eng@2020-01-24 |
Petition 22 of 2017 | County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Proposed Interested Party) (Petition 22 of 2017) [2020] KESC 58 (KLR) (23 January 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, I Lenaola | 23 January 2020 | 2,020 | Nairobi | Civil | County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission | [2020] KESC 58 (KLR) | null | A. Introduction
1.
The Applicant’s Notice of Motion under Certificate of Urgency dated 19th October 2018, filed on 31st October 2018, is anchored on Articles 25(c), 50(1), 127 (1), 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.
2.
The Applicant seeks joinder in Petition No 22 of 2017, The County Assemblies Forum vs Hon. Attorney General & 2 Others in the capacity of Interested Party.
3.
The Applicant thus seeks to move the Court for orders THAT:
1.
This Honourable Court do grant leave to the Applicant to be enjoined as an interested party to these proceedings.
2.
This Honourable Court be pleased to make such order(s) and/ or directions(s) as it may deem necessary in the circumstances.
| C. Analysis
12.
The provisions of the law for enjoinment of an interested party are found in Section 23 of the Supreme Court Act, 2011 in the following terms:
(1)
Any person entitled to join as a party or liable to be joined as a party in any proceedings before the Court may, on notice to all parties, at any stage of the proceedings, apply for leave to intervene as a party.
“(2)
An application under this Rule shall contain information on—
(a)
the identity of the person interested in the proceeding;
(b)
a description of that person’s interest in the proceeding;
(c)
any prejudice that the person interested in the proceeding would suffer if the intervention were denied; and
(d)
the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”.
13.
These provisions have been previously considered by the Court and the Court has pronounced itself on its discretionary power to admit an interested party. The principles set out in paragraph 37 of Francis Karioki Muruatetu & Another v Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016] eKLR thus demonstrate elements applicable where a party seeks to be enjoined in proceedings in that capacity. They are, that;
(i)
The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
(ii)
The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
(iii)
Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.
14.
Applying the above elements to the present Application and noting that the same is not opposed, we are satisfied that the Application is merited and the Applicant ought to be admitted as an interested party.
D. Orders
15.
Consequently, we make the following Orders:
(i)
The Application dated 19th October 2018 seeking joinder of the Parliamentary Service Commission as an Interested Party be and is hereby is allowed.
(ii)
Each Party shall bear their own respective costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/58/eng@2020-01-23 |
Reference 1 of 2018 | County Assembly of Mandera County v Governor, Mandera County & another (Reference 1 of 2018) [2020] KESC 57 (KLR) (Civ) (23 January 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 January 2020 | 2,020 | Nairobi | Civil | County Assembly of Mandera County v Governor, Mandera County & another | [2020] KESC 57 (KLR) | null |
1.
(Being an application by the Intended Interested Parties/Applicants seeking to be enjoined as Interested Parties in the Reference filed by the County Assembly of Mandera County for an advisory opinion under Article 163(6) of the Constitution as well as an application by the Intended Interested Parties/Applicants for the dismissal of the Reference)
2.
Upon perusing the Notice of Motion dated 2nd August 2018 and lodged on 3rd August 2018 by the Governor, Mandera County and the County Government of Mandera, pursuant to the provisions of Section 25 of the Supreme Court Rules, 2012 seeking to be enjoined in the Reference as Interested Parties and also for dismissal of the Reference herein; and
3.
Upon reading the Affidavit of Mr. Anzal Rashid Yarrow, the Legal Counsel, County Government of Mandera County, sworn on the 3rd August, 2018; and
4.
Upon perusing the grounds adduced by the Applicants in support of the orders to be enjoined as Interested Parties wherein the 1st and 2nd Applicants, the Governor and County Government of Mandera County respectively, seek to participate in the Reference herein and submit to the Court on; (i) the procedure for appointment of Members of the Executive Committee; (ii) whether there is a lacunae in law where a County Assembly fails to approve the nominees for a County Executive Committee; and (iii) whether this is a matter that can be resolved by the advice of the Attorney General before approaching this Court; and
5.
Upon considering the arguments made by the Proposed Interested Parties in which it is contended that the Applicants have a direct and legitimate interest in the present petition the 1st Proposed Interested Party being the appointing officer of the Members of County Executive Committee for Mandera, and the 2nd Proposed Interested Party being the County Government in respect to whom the appointees were being appointed; and | Upon considering that the 1st and 2nd Proposed Interested Parties, being the appointing officer of the Members of County Executive Committee and the County Government in respect of whom the appointees were being appointed respectively, will be prejudiced if they are not enjoined and that they have an identifiable stake in the matter in line with the criteria laid down in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No. 15 & 16 of 2015 (consolidated), [2016] eKLR; and
8.
Having considered the Application, by a unanimous decision of this Court, we find that the prayer to have the Intended Interested Parties/Applicants enjoined as interested parties is merited and is consequently allowed; and
9.
Further,noting that the Intended Interested Parties/Applicants have also prayed and submitted that the Reference herein ought to be dismissed because it is sub-judice a Marsabit High Court Constitutional Petition No.7 of 2018, Simba Hasheen Gellow vs The Honourable Governor of the County Government of Mandera and 2 others and that the Attorney General has already offered legal advice on the opinion being sought in the Reference; and
10.
Notingthe response by the County Government of Mandera that Petition No. 7 of 2018 aforesaid does not raise similar issues as are being raised in the Reference and that the Intended Interested Parties/Applicants lack capacity to seek orders of dismissal of the Reference; and
11.
[10] Having considered the said prayer, we unanimously find that a party yet to be enjoined in a matter such as the present Reference, lacks the capacity to seek any substantive orders in it and that the prayer aforesaid is premature, the Prayer for dismissal of the Reference is consequently struck out. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/57/eng@2020-01-23 |
Civil Application 4 of 2019 | Fugicha v Methodist Church in Kenya (Through its registered Trustees) & 3 others (Civil Application 4 of 2019) [2020] KESC 55 (KLR) (23 January 2020) (Ruling) (with dissent - JB Ojwang, SCJ) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, N Ndungu, I Lenaola | 23 January 2020 | 2,020 | Nairobi | Civil | Fugicha v Methodist Church in Kenya (Through its registered Trustees) & 3 others | [2020] KESC 55 (KLR) | null |
A. Introduction
1.
This is an application under certificate of urgency dated February 7, 2019. The application is anchored on articles 163(1), 159(2)(d) and (e) of the Constitution, sections 3 and 21 (2) of the Supreme Court Act, rules 20(4), 20 (4A) and 26 of the Supreme Court Rules, rules 3(5) (a)and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of Law.
2.
The applicant seeks orders that:
(a)
The application be certified urgent and be heard ex-parte in the first instance.
(b)
This court has inherent powers to reviews its judgment so as to meet the ends of justice.
(c)
This court be pleased to review or set its judgment of January 23, 2019.
(d)
This court review of its judgment delivered on January 23, 2019 to re-asses the submission on the record and determine the appeal on the basis of the 1st respondent/ applicant’s opposition to the petitioner’s High Court petition as an interested party.
(e)
This court be pleased upon review of its judgment delivered on the January 23, 2019 to clarify its said decision and its position on the High Court decision.
3.
The application is supported by the affidavit of Mohammed Fugicha.
4.
In opposing the application, the 3rd and 4th respondents have filed grounds of opposition dated March 1, 2019.
5.
Similarly, the 2nd respondent has filed grounds of opposition dated March 12, 2019 to oppose the application for review. | C. Analysis
22.
We deem it necessary to address the issue of jurisdiction in limine. In a nutshell, in addressing that, issue, the respondents contention is that this court does not have jurisdiction to review, set aside and or vacate its judgment save as provided under section 20 (4) of the Supreme Court Act which is not applicable in this matter. Further that, the present application does not meet the conditions set out in the Outa Case. The applicant on the other hand is emphatic that this court can expand the criteria set out in the Outa case for the development of the law, to clarify a mistake by judicial fallibility, and to put uncertainties into context.
23.
The legal position as regards this court’s power to review its own decision was settled in the Outa case. That case, set out circumstances in which this court 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.
24.
It is apparent that the applicant in this matter has not met the conditions precedent set out in the Outa case; has not demonstrated where or if at all the judgement he seeks to review was obtained fraudulently, deceitfully, was a nullity, was made under a mistaken belief that the parties had consented thereto, was rendered on the basis of a repealed law or as a result of a deliberately concealed statutory provision.
25.
It is also clear that the applicant intends to appeal this matter in the form of review. The process of review was not intended to give the party an opportunity to appeal, and where review it is sought, the party has to demonstrate to the satisfaction of the court, how if at all, it erred in the exercise of its discretion.
26.
We must also emphasize that this court was clear in its judgement in the present matter that, should a party seek to litigate the issues of the right to wear a hijab, they ought to institute fresh proceedings at the High Court. We specifically stated;
(59)
In the same breadth, we recognize that the issue as contained in the impugned cross petition is an important national issue, that will provide a jurisprudential moment for this court to pronounce itself upon in the future. However, to do so, it is imperative that the matter ought to reach us in the proper manner, so that when a party seeks redress from this court, they ought to have had the matter properly instituted, the issues canvassed and determined in the professionally competent chain of courts leading up to this apex court. In view of this, it is our recommendation that should any party wish to pursue this issue, they ought to consider instituting the matter formally at the High Court.”
In effect, the door is open for the applicant to specifically seek a determination of the issues he has raised in the present application. That door is however at the High Court and not in this court. For avoidance of doubt, we reiterate our position as expressed in our Judgment, that the hijab issue was never one requiring the pronouncement of the High Court, the Court of Appeal nor this court. The issue is indeed important, but it must be addressed by known procedures in our realm and not by ingenuity of counsel, litigants or court.
The Dissenting Ruling of Ojwang, SCJ
I) Introduction
27.
The instant application for review relates, in particular, to the majority Judgment in Methodist Church in Kenya v Mohamed Fugicha & 3 others, Petition No 16 of 2016, which was delivered on 23 January 2019. As I had given a substantive dissenting opinion in the said petition, it will be clear that my perception of the relevant issues, as well as my lines of conviction, are clearly set, and, on this account, do not rest on an even keel with the majority’s ruling in the instant application, by which the 1st respondent in the earlier cause is calling upon the court to review, or set aside its said majority Judgment. The applicant founds his case upon the terms of articles 159 (2) (d) and (e), and 259 (1) of the Constitution of Kenya, 2010; sections 3 and 21 (2) of the Supreme Court Act, 2011 (Act No 7 of 2011); rules 20 (4), 20 (4A) and 26 of the Supreme Court Rules; and rules 3 (5) (a) and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; and all other enabling provisions of the law.
(II) Applicant’s Case | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/55/eng@2020-01-23 |
Petition 11 of 2017 | Gitonga v Republic (Petition 11 of 2017) [2020] KESC 61 (KLR) (23 January 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 23 January 2020 | 2,020 | Nairobi | Criminal | Gitonga v Republic | [2020] KESC 61 (KLR) | null | A. Introduction
1.
Before us a Petition of Appeal dated and filed on July 21, 2017, pursuant to article 163(4)(a) of the Constitution. The appellant is challenging the entire judgment and Orders of the Court of Appeal (Waki, Nambuye & Kiage, JJA) at Nyeri in Criminal Appeal No 78 of 2014 delivered on June 7, 2017.
2.
The appellant’s case is premised on five (5) grounds particularly, that the Court of Appeal erred and misdirected itself by; holding that the appellant did not demonstrate that he was willing but unable to obtain legal representation despite the fact that the appellant was never informed of his Constitutional right to legal representation; holding that the State was not under any obligation to provide free legal counsel at the time the appellant’s trial commenced despite the substantial injustice arising from the fact that the appellant was charged with an offence whose penalty is death; upholding the judgments of the High Court and the Magistrate’s Court; failing to properly evaluate the standard and burden of proof in criminal cases; and failing to recognize and apply the principle that lack of or insufficient assistance by counsel is directly injurious to the due process and the Constitutional guarantees to a fair trial in an appropriate case, such as the criminal trial of the appellant.
3.
The appellant has thus sought four (4) declaratory orders namely; that this courthas jurisdiction to entertain additional constitutional questions in relation to existing constitutional questions; that it is mandatory for an accused person in custody to be informed of his right to legal representation; that the fundamental rights of the appellant were gravely violated and that the trial courtis mandated to make an inquiry as to whether an accused person in a serious case deserves an advocate assigned by the State and at the State’s expense. Apart from the declaratory orders, the appellant has also sought two other orders; firstly, to have him discharged or acquitted and second, an order that the Court of Appeal’s judgment be reversed and set aside. The appellant finally sought any other orders that the court would deem fit to grant.
4.
The respondent opposed the Petition by filing written submissions dated September 20, 2019, the substance of which we shall shortly summarize.
B. Background
5.
The appellant, together with two others not before this court(John Bosco Njue and Irene Wawira Muthoni) were charged with the offence of robbery with violence contrary to section296 (2) of the Penal Code before the Senior Resident Magistrate’s Court at Wanguru. The trial court (BM Ochoi, SRM) connected several factual chain links from the evidence tendered and found no coexisting circumstances to weaken that chain of events pointing unerringly to the three accused as the perpetrators of the alleged crime.
6.
Dissatisfied by the decision of the trial court, the appellant, John Bosco Njue and Irene Wawira Muthoni all preferred appeals to the High Court. The High Court (Ong’udi & Githua, JJ) found no reason to overturn the decision of the trial court. The learned judges in their judgement accepted the chain link of events as found by the trial court and laid emphasis on the finding of the deceased’s stolen items in possession of the appellant, John Bosco Njue and Irene Wawira Muthoni in circumstances that they could not explain away. Consequently, the court rejected the defences put forward by the appellant and the co-accused in the same manner as the trial court had done.
7.
Further aggrieved by the decision of the High Court, the appellant, together with his co-accused lodged a second appeal before the Court of Appeal being Criminal Appeal No. 78 of 2014. Specifically, it was the appellant’s case that the learned Judges of the High Court erred in law and fact by: not making a finding that the prosecution contravened Section 46 of the Police Standing Orders during his trial; applying the doctrine of recent possession yet none of the deceased’s items were recovered from him; relying on uncorroborated evidence; relying on the evidence of PW6 who was not a trustworthy witness; not considering his defence; not taking into account the fact that he lacked legal representation in both the Magistrate’s Court and at the High Court; relying on circumstantial evidence to uphold his conviction; applying accomplice evidence to prove that he committed the alleged offence with others; and by failing to consider that none of the elements of robbery with violence under section 296(2) of the Penal Code had been satisfied. On June 7, 2017, the Court of Appeal dismissed the appeal for lack of merit hence the present appeal filed as of right under article 164(3)(a) of the Constitution.
C. Parties’ Submissions
(i) The appellant’s submissions
8.
On the court’s jurisdiction to entertain the Petition, the appellant submitted that the court has jurisdiction to entertain the appealpursuant to article 163(4)(a) as read with article 163(4)(b)(i) of the Constitution. The appellant in that regard seeks interpretation of several articles of the Constitution including articles 20(2), (3), (4) & (5), 22, 23, 25(c), 48, 49(1)(c) and 50(1)(2)(a, b, c, g, h, I, j, k l, q). The appellant submits that the issue of legal representation which led to an unfair trial under article 50 of the Constitution arose at the Court of Appeal and was subject of the Court of Appeal’s determination thus placing his appeal within this court’s jurisdiction. He further anchors his submissions on that issue in three of this court’s decision namely, Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] eKLR, Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 others [2014] eKLR.
9.
Counsel for the appellant, Mr Kanjama, furthermore submitted that the appellant’s right to have legal representation under article 50(2) and elevated by article 25(c) of the Constitution is non-derogable and at no point in time was the appellant ever accorded the said right. Consequently, he added, the appellant’s right to fair trial was gravely violated. Counsel also contended that the right to fair trial cannot be limited and that the trial court was mandated to inform the appellant of his right to legal representation but did not do so. Counsel also faulted the High Court for not looking into the omission.
According to counsel the Court of Appeal also erred in finding that the appellant fully and meaningfully participated in the trial and first appeal and that his belated complaint on non-representation was baseless. On this point, counsel for the appellant cites various international legal instruments such as the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, the African Charter on Human and People’s Rights 1969, European Convention on Human Rights and the Basic Principles on the Role of Lawyers 1990. He also relied on several cases in support of his submissions including this Court’s decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, the US Supreme Court cases of United States v Cronic, 466 US 648 [1984], Gideon v Wainwright, 372 US 335, 372 US 344 [1963], Johnson v Zerbst US 458 [1938], and Powell v Alabama, 287 US 45 [1932] as well as the Court of Appeal’s decision in David Njoroge Macharia v Republic (Criminal Appeal No. 497 of 2007). Counsel in that regard maintained that the appellant was compelled to participate fully in the trial and first appeal proceedings because he had no choice but to defend against the charges against him and that action should not be used against him | E. Analysis
(i) Does the Appeal before this Court meet the constitutional threshold under article 163(4)(a) of the Constitution?
26.
Whereas, it is respondent’s submissions that this court lacks jurisdiction to determine whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the State or by failure to inform him of the right to legal representation; The appellant’s view is to the contrary, and argues that this appeal is properly before this Court within the ambit of article 163(4)(a) of the Constitution.
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 –
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.”
28.
Likewise, section 15(1) of the Supreme Court Act provides that appeals to the Supreme 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.
29.
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).”
30
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].
31.
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 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.”
32.
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. It is in that regard not disputed that the question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. We have also interrogated the record before us and confirmed that the issue was neither raised at the Resident Magistrate’s Court nor at the High Court. None of the articles of the Constitution in the present appeal was also the subject of interpretation and application at the High Court.
33.
This court has in previous decisions emphasized the significance of respecting the hierarchy of the judicial system. For instance, in the Peter Oduor Ngoge v Francis Ole Kaparo & others [2012] eKLR we stated thus:
“
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.”
34.
Further, in Michael Mungai v Housing Finance Co (K) Ltd & 5 other, SC Appeal/Application 9 of 2015; [2017] eKLR, we specifically stated as follows:
“
14.
The powers of this Court have to be exercised within and in accordance with a specific jurisdiction as provided for in article 163(3) of the Constitution. One cannot ask the Court to exercise its powers in a carte blanche manner. A litigant’s plea must be precise and targeted. One cannot make omnibus prayers to the Court with the expectation that the Court will be merciful to him and decipher them and grant one or either of them. Each of the jurisdictions of the Court has a definite outcome that is predictable: an appeal may lead to an affirmation or overturning of the decision being appealed against; while a reference will definitely lead to an advisory opinion being rendered or declined. Consequently, any matter that comes before this Honourable Court has to be focused and targeted. One must have a cognizable cause of action and a litigation trajectory that can be well traced within the judicial hierarchy in case of an appeal. A litigant cannot therefore, in a haphazard manner, request this Court to review or set aside the orders of the High Court directly. Such a request does not lie within the definite thread of a cause of action that has risen through the judicial hierarchy.”
35.
We thus fault the Court of Appeal for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the Courts below. To allow the appellant ignore the normal hierarchy of courts would amount to abuse of the process of Court. We consequently lack jurisdiction to entertain this appeal pursuant to article 163(4)(a) of the Constitution.
36.
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. 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. Noting that the appellant is incarcerated and has no lawful means of paying any costs awarded against him, we order that there should be no order as to costs.
37.
Consequently, the appeal fails and is dismissed.
Orders
38.
Accordingly, and in view of the foregoing reasons the final orders are:
i.
The Petition of appeal dated July 21, 2017be and is hereby dismissed.
ii.
There shall be no order as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/61/eng@2020-01-23 |
Petition 4 of 2018 | Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) Represented by its Promoters) (Petition 4 of 2018) [2020] KESC 59 (KLR) (23 January 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 23 January 2020 | 2,020 | Nairobi | Civil | Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) Represented by its Promoters) | [2020] KESC 59 (KLR) | null | A. Introduction
1.
The appellant moved this court via a Petition dated March 6, 2018, being an appeal against the Judgment of the court of Appeal (Githinji, Waki & Kiage JJA) in Kenya Plantation & Agricultural Workers Union v David Benedict Omulama & 9 others, Nairobi Civil Appeal No 141 of 2014 which upheld the Judgment of the Industrial court (now Employment and Labour Relations court) at Nairobi (Monicah Mbaru, J) in Cause No 7 of 2011. the court of Appeal dismissed the appellant's appeal on May 12, 2017.
2.
While certifying this appeal as one involving a matter of general public importance, in Civil Application No Sup 5 of 2017, the learned Judges of Appeal (Warsame, Ouko & Murgor JJA) on February 23, 2018 held themselves thus:
“
We have analyzed the Notice of Motion and the affidavit in support of the application and hold that the intending appellant has met his obligation to identify and concisely set out the specific elements of "general public importance" which he attributes to the matter for which certification is sought. Counsel for the applicant outlined clearly that the decision shall affect the labour movement, the work force and the economy if the parameters of registration of trade unions are not set right. In Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Supreme court Petition No 10 of 2013 [2014] eKLR at para 52, it is stated that an appeal to the Supreme court within the terms of article 163(4) should be founded on cogent issues of constitutional controversy. The applicant has demonstrated to our satisfaction that he intends to challenge the interpretation or application of any specific provision in the Constitution and has demonstrated how the issues that were before the High court and the court of Appeal became matters within the ambit of article 163(4) of the Constitution. The Supreme court in Peter Oduor Ngoge v Francis Ole Kaparo & 5 others (supra) stated that a petitioner must rationalize the transmutation of the issue in contention from an ordinary subject of leave to appeal, to a meritorious theme involving the interpretation or application of the Constitution, such that it becomes a matter as of right falling within the appellate jurisdiction of the Supreme court. In the instant case, the applicant has established that this court's reasoning and conclusions in Nairobi Civil Appeal No 141 of 2014 delivered by Hon. Justice Philip Waki, Onesmus Githinji and Patrick Kiage dated 12th May2017 can properly be issues of constitutional interpretation or application, for which under article 143(4)(a) of the Constitution no leave would be required. In totality, however, we are satisfied that the threshold in article 143(4)(b) has been met.” [emphasis added]
3.
The appellant has thus sought orders namely, that the Petition is allowed; the Judgment/Order of the court of Appeal be set aside, and an order be made allowing the appeal with costs including costs of the courts below.
B. Background
4.
On July 17, 2009, the 1st to 9th respondents made an application to the Registrar of Trade Unions for the establishment of a trade union namely, the Kenya Export, Floriculture, Horticulture and Allied Workers’ Union (KEFHAU). The Registrar acknowledged receipt of the application by a letter dated 25thMarch 2010 and notified the 1st to 9th respondents that the application would be placed before the National Labour Board for consideration. Later, the Registrar notified the General Secretary of the Kenya Plantation & Agricultural Workers Union (the appellant) of the pendency of the application aforesaid and inviting objections if any. Thereafter, the said Registrar sent a letter dated 30th August 2011 to the interim secretary of KEFHAU enclosing a notification of refusal of registration in the following terms:
“
The ground of refusal is as follows: -
There is already registered a trade union, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants sought registration namely:
Kenya Plantation and Agricultural Workers Union” | D. Analysis
26.
The appellant submits that the court of Appeal erred in holding that their right of existence as a general and giant union was a violation of article 41 of the Constitution in the same manner as the 1st to 9th respondent’s Union whose application was made on February 16, 2010 before the promulgation of the Constitution. The 1st to 9th respondents on their part urge that their cause of action arose on 30th August, 2011 when the 10th respondent notified them of the refusal to register their union. We must thus answer the question in line as to whether the trial court applied article 24 of the Constitution retrospectively. In that regard, we note from the record at page 88 that the 1st to 9th respondent’s application for registration for their trade union was received by the 10th respondent on February 16, 2010. We have also taken note of the record at page 66 and 114 that the notification of refusal to register the 1st to 9th respondents’ union was made on August 30, 2011. So then, when did the 1st to 9th respondents’ cause of action against the 10th respondent arise? It is noted from the record (Vol one pages 29, 32 and 46) that the issue in dispute before the then Industrial court was “refusal of registration of the appellants by the Registrar of trade unions”. In light of the observations made from the record, we are inclined to agree with both the trial court and the learned Judges of Appeal that the cause of action was refusal of registration of the appellants by the Registrar of trade unions” and that the same arose on August 30, 2011, a year later after the promulgation of the Constitution 2010. The applicable Constitution was therefore the one of 2010 and not the former and now repealed one. We therefore find no reason to fault the finding of the courts below on this issue.
27.
This finding notwithstanding, this court has previously held that a court of law can in appropriate circumstances apply fall back to the provisions of the Constitution 2010 in determining a dispute that may have crystalized before the promulgation of the Constitution. In Samuel Kamau Macharia & 2 others v Kenya Commercial Bank & 2 others [2012] eKLR, at paragraph 62, this court specifically stated as follows:
“
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.”
28.
More recently, in Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties), SC Pet No 37 of 2014; [2019] eKLR, this court found at paragraph 54, that a court of law can draw insights from the Constitution 2010, for just and fair resolution of a dispute that may have arisen prior to the promulgation of the Constitution 2010. We therefore, find that even if the cause of action would have arisen prior to the 2010 Constitution, the court would have been right to draw insights from the same for the fair determination of the issue before it that is, refusal of registration of the appellants by the Registrar of trade unions.
What are the parameters for registration of a trade union?
29.
We now turn to the main issue for determination, what are the parameters for registration of a trade union? Were they complied with? Were the appellant's rights infringed in the registration of the 1st to 9th respondents’ union? Counsel for the appellant urged that the Learned Judges of Appeal failed to appreciate requirements in sections 12, 13 and 14 of the Labour Relations Act of the condition that there should not be another union in existence that is sufficiently representative of the employees’ interest in the sector. Conversely, it’s the 1st to 9th respondents’ case that their Union was established to represent its members drawn from Export, Floriculture and Allied Sectors covering specific areas set out in their Constitution, areas that are not included in the appellant's Constitution. They also submit that they complied with the provisions of the Labour Relations Act before their union could be registered.
30.
In that context article 41(2)(c) of the Constitution makes provision for the rights of workers as follows:
“
Every person has the right to form, join or participate in the activities and programmes of a trade union.”
31.
Article 36 of the Constitution on the freedom of association provides as follows:
(1)
Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2)
A person shall not be compelled to join an association of any kind.
(3)
Any legislation that requires registration of an association of any kind shall provide that--
(a)
registration may not be withheld or withdrawn unreasonably; and
(b)
there shall be a right to have a fair hearing before a registration is cancelled.”
32.
article 24 of the Constitution makes provision for limitation of rights and fundamental freedoms in the following terms:
“
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--
(1)
(a)
the nature of the right or fundamental freedom;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e)
the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2)
Despite clause (1), a provision in legislation limiting a right or fundamental freedom --
(a)
in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b)
shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c)
shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3)
The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this article have been satisfied.
(4)
The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
(5)
Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service--
(a)
article 31 – Privacy;
(b)
article 36 – Freedom of association;
(c)
article 37 – Assembly, demonstration, picketing and petition;
(d)
article 41 – Labour relations;
(e)
article 43 – Economic and social rights; and
(f)
article 49 – Rights of arrested persons.”
33.
On the requirements for the registration of Trade Unions, the Labour Relations Act, 2007 provides as follows:
“
12.(1)
No person shall recruit members for the purpose of establishing a trade union or employers’ organization unless that person has obtained a certificate from the Registrar issued under this section. …
13.
A trade union or employers’ organization shall apply to the Registrar for registration within six months of receiving a certificate issued under section 12.”
14.
(1)
A trade union may apply for registration if—
(a)
the trade union has applied for registration in accordance with this Act;
(b)
the trade union has adopted a constitution that complies with the requirements of this Act, including the requirements set out in the First Schedule;
(c)
the trade union has an office and postal address within Kenya;
(d)
no other trade union already registered is—
(i)
in the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration; or
(ii)
in the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof:
Provided that the Registrar shall, by notice in the Gazette and in one national daily newspaper with wide circulation, notify any registered trade union, federation of trade unions or employers’ organizations which appear to him to represent the same interest as the applicants of the receipt of such application and shall invite the registered trade union federation of trade unions or employers’ organization concerned to submit in writing, within a period to be specified in the notice, any objections to the registration; | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/59/eng@2020-01-23 |
Civil Application 23 of 2019 | Kenya Revenue Authority v Krish Commodities Limited (Civil Application 23 of 2019) [2020] KESC 60 (KLR) (Civ) (23 January 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola | 23 January 2020 | 2,020 | Nairobi | Civil | Kenya Revenue Authority v Krish Commodities Limited | [2020] KESC 60 (KLR) | null | A. Introduction
(1)
This is an application by way of a Notice of Motion dated 2nd August, 2019 brought under Articles 159 and 163(4)(a) of the Constitution of Kenya, Section 21(2) and 24 of the Supreme Court Act as well as, Rules 23 and 53 of the Supreme Court Rules 2012. The Applicant seeks the following specific orders:
1.
That the Honourable Court be pleased to grant leave to extend the time limited for filing of the Petition of Appeal.
2.
That the costs of and incidental to this application do abide the result of the said Appeal.
(2)
The Application is premised on several grounds and the supporting Affidavit of Maureen Agutu sworn on 2nd August, 2019.
(3)
The Application is opposed by the Respondent through a Replying Affidavit sworn by Mital Shah, the Director of the Respondent, on 22nd August, 2019.
B. Background
Proceedings at the High Court
(4)
At the High Court, the Respondent filed Misc. Appl. No. 59 of 2013 to challenge the Applicant’s decision, dated 2nd October, 2009, to detain and withhold the Respondent’s ten (10) containers of goods on account of an upaid sum being duty owed to the Applicant of Kshs. 26,215,578/=. The Respondent claimed in that regard that its constitutional right to fair administrative action as guaranteed under Article 47 of the Constitution was infringed by the Applicant. That the Applicant’s conduct was not only ultra vires, but also an abuse of powers occasioning the Applicant irreparable loss and damage. Finally, the Respondent claimed that the Applicant, in detaining its goods acted unfairly, unlawfully and maliciously.
The Applicant on its part denied any wrong doing and maintained that it acted within the provisions of the law, and that the orders of certiorari and prohibition sought by the Respondent the as ex parte Applicant, did not lie.
(5)
The High Court in its Judgment listed one issue for determination namely, whether the demand by the Respondent for the sum of Kshs. 26,215,528/= or any other amounts on account of duty allegedly uncollected due to the application of a lower duty rate was a wrongful and unlawful action, and whether therefore orders of certiorari and prohibition could issue, to quash the demand notice, and prohibit the Respondent from making any demand on account of alleged underpayment of duty/taxes in respect of the various importation of consignments of rice made by the Applicant which were cleared by the Respondent under Entry Nos. 2008 MSA 1524652, 2008 MSA 1624728, 2009 MSA 1583016, 2009 MSA 1050489, 2009 MSA 1717824 and 2009 MSA 1718645.
(6)
On 6th December, 2016, Emukule J held that the Applicant was well within its mandate to inspect and audit the import documents in terms of Section 235 and 236 of the East African Community Customs Management Act (EACCMA), and demand short-levied tax in terms of Section 135 of EACCMA 2004. He consequently exercised his discretion and proceeded to dismiss the Respondent’s application for Judicial Review orders.
| D. Analysis
(22)
Rule 53 of the Supreme Court Rules, 2012 grants this Court discretion to extend time. It provides that:
“
The Court may extend the time limited by these Rules, or by any other decision of the Court.”
(23)
It is the Applicant’s submission in the above context that as soon as the Court of Appeal delivered its Judgment on 27th June, 2018, it filed a Notice of Appeal on 5th July, 2018. Nonetheless, it could not file its appeal within time because it was awaiting the “typed proceedings and decree of the Court of Appeal. During the period of awaiting “typed proceedings and decree”, the time for filing an appeal lapsed. It also urges that the intended appeal is for the benefit of the general public and so the Application should be allowed. The Respondent on the other hand urges that the reasons advanced by the Applicant were not sufficient and, that the Notice of Appeal stood withdrawn upon the lapse of stipulated timelines for filing an appeal, that the Applicant has in any event not pursued extraction of the decree from the Court of Appeal; has delayed in filing submissions in the instant Application and inordinately delaying to file the current application. It also urged that the Applicant has not sought certification that this is a matter of general public interest.
(24)
In addressing the Application, we note that Rule 33(1) of the Supreme Court Rules provides as follows:
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a)
a petition of appeal;
b)
a record of appeal; and
c)
the prescribed fee”.
(25)
Rule 33(4) of the Supreme Court Rules also thus provides:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order” [emphasis supplied].
(26)
Further, Rule 33(6) of the Supreme Court Rules, provides as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
(27)
With respect to extension of time, this Court has already set the guiding principles in Nicholas Kiptoo Arap Korir Salat vs 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]
(28)
Further, in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court 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. On the issue of delay occasioned by typed proceedings, we stated as follows:
“
(24)
a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered”
(29)
In the present case, we note that the typed proceedings were certified on 2nd of July, 2019 though no certificate of delay from the Deputy Registrar of the Court of Appeal has been attached to enable us ascertain the delay. We also note that other than the request for the typed proceedings made by the Applicant on 5th July, 2018, there is no other follow up from the Applicant on the same.
[30]
Assuming that a certificate of delay was attached herein to confirm that the typed proceedings were issued on the same date they were certified that is, 2nd July, 2019, was the present application filed on time? Was that the only remedy available to the Applicant? We have taken note of the fact that the present application was filed a month later, that is, 2nd August, 2019. The Applicant has not provided a satisfactory explanation for the one-month delay after receipt of the typed proceedings.
(31)
Further, we note that the Applicant did not pursue the procedure provided for under Rule 33(6) of the Supreme Court Rules which allows for filling of the requisite documents late, but without leave of Court. Having filed the Notice of Appeal on 5th July, 2018, the last day for filing the Appeal was 19th July, 2018. Thereafter, the Applicant had a further fifteen days (until 3rd of August, 2018) to file a supplementary record without leave. This therefore means that the Applicant ought to have filed the Appeal and the record with the documents that were available as a sign of diligence, then later seek leave of this Court to file the supplementary record out of time. Consequently, it is our finding that the Applicant has not satisfactorily explained the inordinate delay of one year to warrant exercise of this Court’s discretion to enlarge time.
(32)
We have also interrogated the Court of Appeal’s decision which was to the effect that EACCMA was applicable in Kenya, and that the learned Judge of the High Court had failed to correctly identify the issues for determination; that the Respondent was not treated fairly and reasonably and that the Applicant’s conduct to detain the Respondent’s containers was an abuse of the Applicant’s powers. We also do not see how, even if certification had been obtained (and it has not), any of these findings affect the interest of the general public to enable us exercise our discretion to extend time to file the appeal. Neither do these issues require an interpretation or application of the Constitution.
(33)
The upshot of the above is that we are inclined to disallow the application for extension of time with costs to the Respondent.
Orders
(34)
Consequently, we make the following Orders
i.
The Notice of Motion dated 2nd August, 2019 be and is hereby disallowed.
ii.
The Applicant shall bear the costs of the Respondent. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/60/eng@2020-01-23 |
Civil Application 17 of 2019 | Attorney General v Zinj Limited (Civil Application 17 of 2019) [2020] KESC 63 (KLR) (Civ) (15 January 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 15 January 2020 | 2,020 | Nairobi | Civil | Attorney General v Zinj Limited | [2020] KESC 63 (KLR) | null | 1.
Upon perusing the Notice of Motion dated 28th May, 2019 and filed on the same day seeking orders of enlargement of time to serve a notice and record of appeal against the Judgment and Orders of the Court of Appeal delivered on 20th March 2019 in Civil Appeal no 56 of 2018 and brought under the provisions of Articles 159(2)(d) and 163(4) of the Constitution, Section 3 of the Supreme Court Act, Rules 26 and 53 of the Supreme Court Rules, 2012 and;
2.
Upon reading the Applicant’s Supporting Affidavit sworn by Ruth Chepkemboi Lutta on 24th April 2019 and;
3.
Upon considering the written submissions filed by the Applicant on 21st June, 2018 wherein it is contended that the delay in serving the notice and record of Appeal was as a result of apparent confusion between the Attorney General’s Nairobi and Malindi offices as to where the requisite service was to be effected and;
4.
Noting the Applicant’s further submission that, while the time for effecting service under Rule 32(1) of this Court’s Rules lapsed on 10th April 2019, service of the notice and record of appeal was effected on 11th April 2019 and therefore the delay was only of one day and;
5.
Further noting the submission that no prejudice would be caused to the Respondent if time is enlarged as prayed and that the intended appeal has high chances of success as demonstrated by the contents of the Memorandum of Appeal and;
6.
Noting from the record that the Application is not directly responded to but instead, the Respondent, by a Notice of Motion application dated 6th September 2019 and premised on Rule 37(1) of this Court’s Rules, seeks orders of dismissal of the Applicant’s Motion dated 28th May 2019 as well as a striking out of the Notice of Appeal dated 1st April 2019 on the grounds that:
a)
The Appellant herein served the Applicant/Respondent with a Notice of Appeal dated 1st April, 2019 and lodged on 3rd April, 2019.
b)
The said Notice of Appeal was lodged out of time as per Supreme Court Rule 31.
c)
The Appellant’s Application dated 24th April, 2019 came up for mention on 17th June, 2019 before the Deputy Registrar of this Court, when parties agreed to enter into a consent in favour of the Appellant’s Application and that the same consent be lodged in Court.
d)
On 18th June, 2019 the Applicant/Respondent through its Advocates forwarded a consent in triplicate to the Appellant’s Advocate for filing.
e)
Since then the Appellant has failed and/or neglected to execute the said consent and lodge it in Court for adoption.
f)
The Appellant has failed and/or refused to file the requisite record of appeal subsequent upon the Notice of Appeal aforesaid, contrary to law; and no reasonable explanation has been offered thereto.
g)
The Notice of Appeal dated 1st April, 2019 and lodged on 3rd April, 2019 is frivolous, vexatious and an abuse of the Court process, in that; the said Notice of Appeal was solely intended to stay the execution of the Judgment at the Court of Appeal delivered on 20th day of March, 2019 by hon Justice A. Visram, W. Karanja and M. K. Koome at Malindi with no intention to pursue an appeal, at all.
h)
On the whole, the Notice of Appeal herein is highly prejudicial to the Applicant/Respondent, it is unjust and unfair; and there are sufficient reasons warranting the orders sought hereby.
i)
The Application has been brought without any unreasonable delay.
7.
Further noting that the above grounds are repeated in the Supporting Affidavit sworn on 6th September 2019 by one, Mohamed Madhubuti, a Director of the Respondent company and extrapolated in the submissions filed on 26th September 2019 and;
8.
Upon reading the Applicant’s Replying Affidavit sworn on 23rd September 2019 by Rita Chepkemboi Lutta and Submissions filed on 11th October 2019 in which it was deponed that the Applicant, at all times, acted in good faith; has explained the delay in not serving the notice and record of appeal on time; has a genuine and credible appeal predicated on Article 40 of the Constitution and that therefore his application ought to be allowed and; | Having considered the two related Applications before us, we now opine as follows:
a)
The Application dated 28th May 2019 satisfies the principles set out in the cases of Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 Others Application no 16 of 2014 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application no 15 of 2014; on extension of time by this Court as well as;
b)
The principles in Board of Governors, Moi High School, Kabarak & Another v Malcom Bell SC Petition no 6 and 7 of 2013 as affirmed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others Application no 5 of 2014 and Wycliffe Oparanya Ambetsa v the Director of Public Prosecutions SC Petition no 14 of 2016 as the reasons for the one day delay in serving the notice and record of appeal have been satisfactorily explained and the delay is not inordinate in any event.
c)
Once the Application dated 28th May 2019 has been granted, it means that we see no merit in the Application dated 6th September 2019 because non-execution of a Consent Order by one party does not of itself connote bad faith – a party can change its mind prior to execution of any Consent Order. Furthermore, no prejudice has been caused to the Respondent by the non-execution of the Consent Order on an application it has never responded to. In effect, its own application is misconceived on all fronts.
10.
In the circumstances, we now order as follows:
a)
The Application dated 28th May 2019 is hereby allowed and time to serve the Applicant’s Notice and Record of Appeal is hereby enlarged for a further seven (7) days from the date of this Ruling.
b)
The Application dated 6th September 2019 is hereby dismissed.
c)
Each party shall bear its costs of both Applications. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/63/eng@2020-01-15 |
Petition 7 of 2019 | Asanyo & 3 others v Attorney-General (Petition 7 of 2019) [2020] KESC 62 (KLR) (10 January 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 10 January 2020 | 2,020 | Nairobi | Civil | Asanyo & 3 others v Attorney-General | [2020] KESC 62 (KLR) | null | A. Introduction
1.
The petition of appeal before the court is filed under article 163(4)(a) and (7) of the Constitution, contesting the decision of the Court of Appeal dated January 22, 2019. Principally, the petitioners contest the Court of Appeal’s directions, which required them to file a formal application seeking compliance with a Supreme Court order, with the respondents being given a right of reply. They urge that the Court of Appeal’s directions infringe on the doctrine of functus officio, in that they amount to a re-opening of litigation on a matter that has been heard with finality. The petitioners contend, further, that the Court of Appeal’s directions contravene article 163(7) of the Constitution, which requires all other courts to comply with the decisions of the Supreme Court.
B. Background
2.
This is not the first time the matter is being brought before this court. The petitioners herein had previously filed in this court Petition No 21 of 2015 - challenging two decisions of the Court of Appeal, both arising from Civil Appeal No 260 of 2014. On the one hand, the petitioners faulted the appellate court for declining to adopt a consent order dated September 18, 2015. On the other hand, they sought to set aside the judgment of that court, which had disposed of the substantive matter in disregard of the consent order. Upon considering the matter, on November 20, 2018, this court held that the Court of Appeal should have adopted the consent of the parties. The court also declared the judgement of the Court of Appeal to be a nullity, and void ab initio, since one of the judges failed to deliver his reasoning, yet such non-delivery did not fall within the regular legal exceptions.
3.
Ultimately, the court gave the following Order:
“
(1)
The Petition of Appeal dated December 21, 2015 is hereby allowed in the following specific terms:
(a)
A declaration is hereby made that the Court of Appeal judgment dated November 13, 2015 in Nairobi Civil Appeal No 260 of 2014 is null and void.
(b)
The ruling of the Court of Appeal dated November 12, 2015in Nairobi Civil Appeal No 260 of 2014 is hereby set aside.
(c)
An order do hereby issue that this matter be remitted back to the Court of Appeal for the adoption of the consent filed by parties on September 18, 2015, on a priority basis.
(2)
Each party shall bear its own costs”.
4.
Pursuant to the foregoing order, on November 21, 2018, the petitioners wrote a letter to the President of the Court of Appeal, requesting him to constitute a three-Judge Bench, for purposes of adoption of the consent Order filed by the parties before that Court on September 18, 2015.
5.
The matter was first mentioned before the Court of Appeal on January 14, 2019. On that occasion, the Attorney-General opposed the adoption of the consent. He urged that the consent was recorded during the term of the retired Attorney-General, a position that has since changed. After hearing the parties, the Presiding Judge adjourned the matter, so that he could familiarize himself with the case.
6.
During the second mention of January 22, 2019, the Bench (Waki, Musinga & Gatembu JJA) rendered a rulingin the following terms:
“
After hearing brief submissions…it dawned on us that the matter was contentious and may not simply be a matter for a ‘mention’. We made an orderfor further mention today, with a view to giving further directions after the perusal of the record. We have done so, and even found a copy of the Judgment of Kiage, JA dated November 13, 2015which the Supreme Court found was non-existent. In our view, this compounds the matter. Considering the further contentions raised earlier by counsel on both sides, we think it is desirable that the respondents in this appeal (the petitioners herein) approach the Court with a formal application, with a right of reply by the Attorney-General. In view of those perceived complications, we also think the matter should be placed before the same Bench that dealt with the appeal, now that they are all based in Nairobi, that is to say, Ouko (P), Kiage & Murgor JJ A.”
7.
It is this Ruling that triggered the filing of the present appeal. The appeal is anchored on the following grounds:
(i)
that the learned Judges of Appeal infringed the doctrine of functus officio, when they purported to reopen the matter for a hearing of the adoption-of-consent, yet their Judgment had been declared null and void by the Supreme Court, and finality had been attained;
(ii)
that the respondent has changed his position as regards the said consent;
(iii)
that the learned Judges of Appeal, in failing to allow the parties to adopt the consent as directed by this honourable court, violated the principle laid down under article 163(7) of the Constitution, which provides that all courts are bound by the decisions of the Supreme Court; and
(iv)
that this court has the requisite jurisdiction to hear and determine this matter under article 163(4)(a) of the Constitution.
8.
The petitioners seek the following reliefs:
(a)
The entire orderof the Court of Appeal (Waki, Musinga & Gatembu JJA) dated January 22, 2019, in Civil Appeal No 260 of 2014, be set aside.
(b)
this court be pleased to adopt the consent letter dated September 11, 2015, and filed on September 18, 2015.
(c)
Any other orderas this court may deem fit, in the circumstances.
| E. Analysis
(a) The Question of Jurisdiction
16.
It is the petitioners’ case that this court is clothed with the requisite jurisdiction to hear and determine the matter at hand. In that behalf, learned counsel rely on the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others, Supreme Court Petition No 10 of 2013 [2014] eKLR, and Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board, Supreme Court Petition No 5 of 2012. It is contended that the present matter raises weighty issues of interpretation and application of the Constitution: specifically, whether or not the appellate court can reject a determination by the Supreme Court, in view of article 163(7), which ordains final pronouncement by the apex Court.
17.
The respondent, taking a divergent view, argues that this appeal is only concerned with directions given during a mention before the appellate court, which courtis yet to take a decision regarding the adoption of the consent. It is contended that the petitioners’ rights have not been infringed, and that it is, therefore, premature to invoke the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
18.
The operative provision of the Constitution is article 163(4)(a), which provides that an appeal lies from the Court of Appeal to the Supreme Court
“
as of right in any case involving the interpretation or application of the Constitution”.
this court has already determined the import, scope, and limits of its appellate jurisdiction under article 163(4)(a) of the Constitution in a number of cases: 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 — among others.
19.
As we have observed in such decisions, the jurisdiction of this court is limited, and flows from the terms of the Constitution and the relevant legislation. Occasionally, however, there will arise situations in which the jurisdiction of the court is not quite so sharply defined, in which case it devolves to the court to ascertain, on a case-by-case basis, whether jurisdiction may properly be assumed.
20.
It is to be noted that the present appeal does not stem from a subject-matter that was before the High Court; but it is the petitioner’s case that the manner in which the appellate courthas conducted itself not only goes against this court’s determination, and against its guiding principle under the law (specifically, article 163 (7) of the Constitution), but also infringes the well-known doctrine of functus officio.
21.
We recall that when the matter first came up before this court, we did address ourselves to the question of jurisdiction: and we duly noted that the appeal, in its essence, did not flow from the subject-matter that had featured before the trial court. The grievance of the petitioners had its origin in the appellate court; and it was our perception, in such a context, that the Supreme Court would have to adopt a pragmatic approach in relation to the issue of jurisdiction.
22.
We recall our decision in the Joho case where we did emphasize that each case was to be evaluated on its own facts; and we observed that several factors, in that instance, merited consideration before we could assume jurisdiction under article 163(4)(a) of the Constitution. We thus remarked (at para. 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. Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture the principles and values embodied in it.”
23.
The petitioner herein raises the question as to the Court of Appeal being bound by the decision of the Supreme Court, so that the action taken by that court would amount to reopening and rehearing the matter. article 163(7) of the Constitution establishes the principle upon which rests the authority of judicial decisions as precedent in subsequent litigation, guiding judges who are bound to follow the same. Courts and tribunals exercising judicial authority are duty-bound to follow this principle. In Geoffrey M Asanyo & 3 others v Attorney-General, Sup Ct Pet No 21 of 2015 [2018] eKLR, we thus stated (at para. 61):
“
It thus emerges that a concise reading of the judicial principles in article 159(2) of the Constitution would show that they are non-derogable, and have to be adhered to by all courts and tribunals exercising judicial power/authority. Where there is, therefore, a prima facie case of derogation, it behoves this court to intervene, so as to safeguard the Constitution, within its jurisdiction under article 163(4)(a). This was well stated in the Joho case [paragraphs 51 & 52] where the Court expressed itself thus:
In defending the Constitution and the aspirations of the Kenyan people, this court must always be forward-looking, bearing in mind the consequences of legal uncertainty upon the enforcement of any provision of the Constitution. This aspect of defending the Constitution is replicated under article 163(4)(a), which allows appeals from the Court of Appeal to the Supreme Court as of right, in any case involving the interpretation or application of the Constitution. Such is the approach that this court in hearing this appeal must seek to apply.
Applying a principled reading of the Constitution, this court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of article 163(4)(a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court, in furtherance of the objects laid out under section3 of the Supreme Court Act, 2011 (Act No 7 of 2011)’” [emphasis supplied].
24.
In that matter, we found that in spite of the fact that the issue before the court had not been argued in the Court of Appeal, it devolved to this court’s inherent jurisdiction to set right any jurisdictional wrongs committed by other superior courts. We thus observed (para. 62 – 63):
“
In that context, the appellants submitted that despite filing a consent which would have settled the matter in line with article 159(2), on the constitutional principle of promotion of alternative forms of dispute resolution, the Court of Appeal disregarded it. We have no doubt that, whereas the issue before us may not have been articulated at the Court of Appeal, the inherent jurisdiction of this court to right jurisdictional wrongs committed by the Superior Courts in executing their constitutional mandates, would necessitate that this court should assume jurisdiction and interrogate those alleged wrongs. In stating so, we reiterate our holding in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, Petition No 6 of 2014; [2017] eKLR:
“
The [Supreme] Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice. The Constitution from which this court, and indeed all courtsin the land, derive their legitimacy decrees that we must do justice to all."
We further reiterate that this court should only depart from the principle that issues of constitutional interpretation must rise through the Superior Courts to this court, in the clearest of cases, and the exception to that principle should be carefully considered by the Court in the manner we have expressed herein....”
25.
We see no reason to depart from this reasoning, and are in agreement with the petitioners that the dispute herein would ordinarily raise questions as to the application and interpretation of the Constitution, warranting entertainment by this court.
(b) Court of Appeal’s Order of 22 January 2019: Does it offend article 163(7) of the Constitution?
26.
article 163 (7) of the Constitution provides that
“
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”
The nature of that provision is absolute. this court expounded this principle in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, as follows (para. 196):
“
article 163 (7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this court are binding on all other courts in the land. The application, utility and purpose of this constitutional imperative are matters already considered in several decisions of this court: Jasbir Singh Rai v Tarlochan Singh Rai & others, and quite recently, in George Mike Wanjohi v Steven Kariuki & others Petition No 2A of 2014.
In addition to the benchmark decisions to which this court adverted in Wanjohi v Kariuki (supra), regarding the importance of the doctrine of stare decisis, we would echo the dictum in Housen v Nikoaisen (2002) 2 SCR:
“
It is fundamental to the administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced … should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationships between the courts’.”
27.
In Kidero & 5 others v. Waititu and others, Sup Ct Petition No 18 of 2014 (Consolidated with Petition No 20 of 2014), Njoki Ndungu, SCJ, in her concurring opinion, made the following pertinent remarks (para 236):
“
The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement aimed at enhancing certainty and predictability in the legal system. The articles of establishment and jurisdiction reveal the Court’s vital essence and the decisions of this court protect settled anticipations by ensuring that the Constitution is upheld and enforced, and that the aspirations of the Kenyan people embodied in a system of constitutional governance are legitimized. The constitutional contours of article 163(7) oblige this court to settle complex issues of constitutional and legal controversy, and to give jurisprudential guidance to the lower Courts. In the exercise of our mandate, we determine the constitutional legality of statutes and other political acts to produce judicially-settled principles that consolidate the rule of law and the operation of government, and the political disposition, particularly in the settlement of electoral disputes. As a Court entrusted with the final onus of settling constitutional controversies, one of our principal duties is the enforcement of constitutional norms.” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/62/eng@2020-01-10 |
Petition 12 of 2019 | Gwer & 5 others v Kenya Medical Research Institute & 3 others (Petition 12 of 2019) [2020] KESC 66 (KLR) (Civ) (10 January 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 10 January 2020 | 2,020 | Nairobi | Civil | Gwer & 5 others v Kenya Medical Research Institute & 3 others | [2020] KESC 66 (KLR) | null | A. Introduction
1.
This is an appeal from the Judgment of the Court of Appeal, dated 9 November 2018, by which the Judgment and Decree of the Employment and Labour Relations Court dated 18 July 2014 had been set aside. The trial Court had found that the petitioners had suffered discrimination in their employment, at the hands of the 1st respondent, and had awarded each petitioner 5 million Shillings. The petition is dated 19 March 2019, and is premised on article 163(4)(a) of the Constitution.
B. Background
2.
The petitioners had been employees of the 1st respondent under various contracts renewed and extended from time to time, over a period of several years. They had also been attached to the KEMRI-Wellcome Trust Research Programme, hosted by 1st respondent, as clinical researchers, and were pursuing post-graduate studies leading to the award of the degree of Doctor of Philosophy, in their fields of research. The said programme belonged to Oxford University in England, and was operated through the Nuffield Department of Medicine, as one of its global health centres, founded by the Wellcome Trust.
3.
The 2nd and 3rd respondents have been taking a passive posture, and have not participated in this appeal. The 4th respondent was enjoined as an interested party, in its capacity as a trade union, during the trial proceedings, and it has consistently supported the petitioners’ case.
4.
Before the trial Court, the petitioners alleged contravention of articles 3, 10, 27, 28, 40, 41, 73(1)(a), and 156 of the Constitution by their employer, Kenya Medical Research Institute (KEMRI). They contended, inter alia, that their contracts under the programme, which was later subsumed under KEMRI (1st respondent), allowed discrimination against them, and treated them unequally, on account of their race, in various respects, including in the award of Wellcome Trust Research grants, which were skewed in favour of European Economic Area residents and “white expatriates”, at the expense of “equally or more qualified local blacks”; that there was prejudice and condescension towards local African workers, as well as lack of commitment to racial equality; that there was a violation of their right to fair labour practices, contrary to the terms of article 41 (1) of the Constitution ¾ in particular by way of their extremely short multi-contracts; that there was a violation of rules of natural justice, through unfair dismissal without a hearing and without reasons; that there was conflict in the setting of contracting authority, with contracts from both KEMRI and the Programme, leading to an unclear chain of command; that there were differential gratuity and staff guidelines between the two entities, and a curtailing of the doctors’ right to join a trade union of their choice; that there was an unfavourable working environment, leading to or involving career stagnation for doctors; that there was interference with their training opportunities, and with their access to clinical funds; that they were victimised through suspension, for raising these grievances; that they were subjected to improper, indefinite leave, and were victimised by violation of article 40 of the Constitution, regarding their right to intellectual property; and that they were subjected to loss of dignity, in violation of articles 28, 29 and 30 of the Constitution.
5.
The Employment and Labour Relations Court (Nduma, J), in a Judgment delivered on 18 July 2014, allowed the petition, holding as follows:
(a)
That, the 1st respondent’s conduct amounts to discrimination against the petitioners, under article 27 (4) of the Constitution.
(b)
That the 1st respondent’s conduct, acts and/or omissions are unlawful, illegal and/or unfair, and the same violate articles 27 (1), 28, 29(d) & (f), 35(1)(b), 40(1) and 41(1) & (2) of the Constitution.
(c)
That each of the petitioners is entitled to compensation for the said violations under article 23 of the Constitution, in the sum of Kes 5 million within thirty (30) days of the Judgment.
(d)
That the petitioners are entitled to access all the outcomes of their scientific research, and to the credit and benefit attached to the said outcomes, under articles 35 and 40 of the Constitution.
(e)
That each of the petitioners is entitled to a certificate of service, acknowledging the service and scientific outcomes attributed to their research and work within 30 days from the date of the Judgment.
(f)
The 1st respondent to pay interest at Court rates on item (c) above, as from the date of this Judgment, in full.
(g)
The 1st respondent to pay costs of the petition.
6.
Aggrieved by the trial Court’s Judgment, the 1st respondent appealed to the Court of Appeal, which allowed the appeal in a Judgment dated 8 February 2019, and set aside the Judgment and Decree, in the following terms:
(a)
The trial Judge misdirected himself in certain factual or legal matters; considered matters he ought not to have considered; failed to consider matters he ought to have considered and, therefore, arrived at an erroneous decision; and he was clearly wrong in the exercise of discretion.
(b)
The trial Court should not have decided the case on the basis of affidavit evidence, as more light and more accurate picture would have been attained, had it proceeded by way of viva voce evidence.
(c)
The replying affidavit of Margaret Rigiro, with its annexures, which was 210-page, substantive, detailed response to the petitioners’ case, is not referred to or mentioned in the Judgment; and similarly overlooked was her “Further Supplementary Affidavit”, sworn on 30 October 2012, indicating that KEMRI paid the doctors all contractually-agreed remuneration, including that for periods when they did not work.
(d)
The omission (stated above) occasioned a patent injustice, and was the mark of an unfair trial.
(e)
the trial Court was wrong in finding that the 1st respondent violated article 35(1)(b) of the Constitution, as the same was not pleaded by the petitioners.
(f)
Had the Judge evaluated the replying affidavit of Magaret Rigiro, he would have found that KEMRI did not directly employ foreign researchers, and those visiting retained their career structures and terms of employment from their home institutes and universities, over which KEMRI had no control; the programme had trained more than a score of senior legal researchers; KEMRI had in place an extremely well-funded remuneration structure that was competitive, and superior to that which the doctors’ peers were paid, in the public sector or elsewhere, and any differential with what the expatriates were paid was on the basis of their different contracts with third parties, to which KEMRI was not privy; KEMRI offered benefits to doctors not expressly stipulated in their contracts, but which were similar to those it offered to all employees of similar positions, at great cost to itself.
(g)
The doctors did not discharge their burden of proving that any differentials in pay were unreasonable, unaccountable, or discriminatory.
(h)
It is not the case that any differential treatment is, ipso facto, discriminatory; for a differentiation of treatment to be unConstitutional and impermissible, it has to be based on any of the prohibited grounds under article 27 of the Constitution.
(i)
The trial Judge failed to pay heed to the provisions of section 32 (1) of the Industrial Property Act, which provides that the right to a patent for an invention in the course of execution of an employment contract, shall belong to the employer. The Judge was under duty to inquire if there was a basis for departing from this general rule.
(j)
There was no basis for the award of damages made by the trial Court. | D. Analysis And Determination
39.
We have attentively considered all submissions from the parties, as well as their depositions and lists of authorities. Due credit goes to learned counsel, who have generously supplied the Court with informative records and works on novel aspects of the intriguing subject of “indirect discrimination”.
40.
In our considered view, the following are issues for determination:
(a)
whether discrimination in the course of employment had characterized the operations of the 1st respondent?
(b)
who has the onus of proof in discrimination cases?
(c)
were the petitioners’ rights to intellectual property violated by the 1st respondent?
(d)
what was the effect of the non-determination of a cross-appeal by the Appellate Court?
41.
It is the petitioners’ contention that the 1st respondent had subjected them to discrimination in employment. They aver that there was discrimination in the dispensation of international jobs; in awarding grants from the Wellcome Trust; in the distribution of scientific positions with access to funding, to career-progression for African workers, and to equal pay for equal work; lack of commitment to racial equality, as well as a lack of a policy to ensure racial equality; and that there was prejudice against local African workers. They refer to the position alleged, as that of institutional discrimination by 1st respondent.
42.
The petitioners have urged the Court to appreciate that, the ascertainment of “indirect discrimination” is problematic, as it is so unique in its manifestation ¾ and therefore, difficult to prove. They have urged the court to focus on the outcome of indirect discrimination, which they contend, reflects itself in systematic inequalities in society.
43.
The 1st respondent, on the other hand, has refuted the claims of institutional discrimination. For this party, it is submitted that the particulars of institutional discrimination in the petition are novel issues, not at all pleaded at the trial Court; and that parties must be bound by their pleadings. The 1st respondent also relies upon the supplementary affidavit by Dr Solomon Mpoke, which affirms that there had been, indeed, anti-discrimination policies guiding the operations of KEMRI. The party submits further, that all allegations by the petitioners had drawn proper responses through the affidavit of Margaret Rigoro, as well as the supplementary affidavit of Dr Solomon Mpoke.
44.
The Court of Appeal affirmed that the trial Court had failed to consider both the replying affidavit by Margaret Rigoro and the supplementary affidavit of Dr Solomon Mpoke, even though the two affidavits contained the crucial response by the petitioners. We have gleaned the essentials of the trial Court Judgment, and we agree with the Appellate Court, that the two affidavits were entirely overlooked. We have perused the said affidavit of Margaret Rigoro, the legal officer of the 1st respondent, dated 27 April 2012. Annexed to this affidavit is a copy of the memorandum of understanding between KEMRI and Wellcome Trust (marked MR-1); a copy on guidelines and policies on harassment in the work-place (marked MR-2); staff terms and conditions (marked MR-3); e-mail communications on equal work, equal pay and equal opportunity; reviewed salary scales for researchers (marked MR-10). There are nine other annexures in this affidavit, attempting to respond to the allegations made by the petitioners. Similarly, the supplementary affidavit by Dr. Solomon Mpoke is accompanied by a certain number of annexures. The depositions of the two have given details of how the foreign researchers were employed; the mode of engagement between KEMRI and the Wellcome Trust; investigations upon the issues raised by the petitioners; responses on racial-discrimination claims; responses on allegations made regarding training and career stagnation; capacity development under the programme; nature of employment for the petitioners; and other related matters. It is unfortunate that the trial court did not consider these affidavits. Such issues, it is our perception, went to the very core of the work-relations between the petitioners and the 1st respondent, and, consequently, they would be the very basis of the legal reference-points defining the scenario of rights, justice, fair-play, and constitutional entitlements marking the state of employment relations.
45.
The petitioners, though blaming the Appellate Court for considering the affidavit of the 1st respondent while overlooking their evidence, have not shown precisely how that Court ignored their evidence.
46.
The petitioners contest the Appellate Court’s finding that they failed to discharge their burden of proof, that any differentials in pay were unreasonable, unaccountable, and therefore, discriminatory. The petitioners urge that once they proved what they perceived as a prima facie case, the burden ought to have shifted to the 1st respondent, to establish that discrimination played no part in the employment set-up. According to the petitioners, the onus of proof, in discrimination cases, ultimately lies with “the violator”, once the complainant raises the issue of discrimination. The Appellate Court held that it was incumbent upon the petitioners to prove that they were treated differently, that they suffered prejudice, on account only of their skin-colour, or racial background.
47.
It is a timeless rule of the common law tradition Kenya’s juristic heritage and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the respondent bore responsibility, in whole or in part.
48.
The petitioners’ case is set around the constitutional right of freedom from discrimination Constitution of Kenya, 2010, article 27). It is already the standpoint of this Court, as regards standard of proof, that this assumes a higher level in respect of Constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. The explanation is that, virtually all constitutional rights-safeguards bear generalities, or qualifications, which call for scrupulous individual appraisal for each case. This is the context in which the rights-claim in the instant case, founded upon racial discrimination, is to be seen.
49.
Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
50.
This Court in Raila Odinga & others v Independent Electoral & Boundaries Commission & others, Petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:
…a petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”
51.
In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.
52.
The allegations of discrimination are captured in various e-mails, affidavits, and the petition itself. The petitioners have not denied that they were engaged in an employment contract with the 1st respondent, which contract expressly stipulated the terms of engagement. The affidavit of Magaret Rigoro brings this out, and also explains how foreign researchers were engaged by the 1st respondent, even though 1st respondent had no control over the terms of their employment. This has not been controverted by the petitioners, who merely claim that such lack of control had exposed them to discrimination.
53.
In spite of the commonplace that proof of “indirect discrimination” is difficult, the petitioners ought to have provided sufficient evidence before the court, to enable it to make a determination. The 1st respondent, by a more positive scheme, went ahead to counter the bare allegations. The petitioners failed, in this regard, to discharge their initial burden of proof.
54.
The petitioners have alleged that their right to property, under article 40 of the Constitution, was violated by the 1st respondent. They have asked the Court to determine whether innovations made when an employee is not in employment belongs to the employer, under section 13(2) of the Industrial Property Act, or not. They claim that the 5th petitioner made some innovations at a time when he was out of employment, during one of the several multiple contract-gaps. They have provided e-mail conversation with one Alex Aiken, who offers to pay a consultancy fee, so that an IT expert can gain access, and transfer information from IMRS (Integrated Records System), that the 5th petitioner had developed. The petitioners have also claimed that the 1st respondent has, on many other occasions, compromised their right to intellectual property by way of “disregard syndrome”, “Mathew Effect”, “citation amnesia” ¾ and this, they perceive as the hallmark of “indirect discrimination” in a scientific setting, offending section 5(8) of the Employment Act.
55.
The 1st respondent, in response, states that the allegation that 5th petitioner, Dr. Moses Nderitu, made some innovation while being out of employment, was not part of the issues pleaded at the Employment and Labour Court. Besides, 1st respondent urged that, at the material time, the petitioners were working as employees of KEMRI, while also being PhD students supported by KEMRI, working under experienced mentors or researchers ¾ all in their capacity as employees of KEMRI.
56.
The Appellate Court was guided by clause 13 of the petitioners’ contract of employment, which provided that any intellectual property, including patents and copyrights arising in the course of KEMRI operations, shall belong to the Institute. The Appellate Court also relied on the terms of section 32(1) of the Industrial Property Act, which provides that in the absence of contractual provisions to the contrary, the right to a patent for an invention made in the course of performance of a task under the employment contract, shall belong to the person who commissioned the work, namely, the employer.
57.
section 32 (5) of the said Act provides for the entitlement of the employee, as follows: “Inventions made without any relation to an employment or service contract and without the use of the employer’s resources, data, means, materials, installations or equipment shall belong solely to the employee or the person commissioned.”
58.
It is evident, in our view, given the foregoing statutory provisions, that the Appellate Court did take the valid and proper standpoint in law: it behoved the petitioners to show that their claim fell within the terms of section 32(5) of the Industrial Property Act, as a basis of claim against 1st respondent.
59.
The petitioners’ claim in respect of Dr. Moses Ndiritu, however, raises its own difficulty. A look at the suit before the Employment and Labour Relations Court shows that, the claim that Dr. Ndiritu had made innovations falling outside the employment framework under KEMRI, did not feature at all in the pleadings. This fact negates a crucial judicial-process element, which is vital in the quest for justice: and, accordingly, we would not allow a fresh claim at this ultimate appellate stage.
60.
We have considered e-mail communications in respect of which the petitioners alleged violations of intellectual property rights. It is not, however, possible to ascertain the point in time when such alleged innovations were made, or the manner in which they were made ¾ so as to enable us to relate them to the period of the employment-relationship with 1st respondent. The particulars of such violations are also inadequately focussed, in their formulation; and this renders it difficult for the Court to relate them to the petitioners herein. The overall effect is that the petitioners did not establish the claim, that they had made innovations of the nature of industrial property, outside their employment, and which 1st respondent did compromise.
61.
The last issue is the failure by the Court of Appeal to determine the cross-appeal filed by the 4th respondent. The Appellate Court did, indeed, make reference to the cross-appeal in its Judgment, though without determining it. The petitioners and the 4th respondent argue that this is denial of justice.
62.
We have considered the details of the cross-appeal, dated 9 January 2019. Its claim is that the trial Judge erred in failing to calculate and to award benefits such as payment for unfair termination of services, payments in lieu of leave; unpaid salary in lieu of notice, and other outstanding payments. It emerges that the trial Court declined to consider the issue of unfair termination, as the contract involving the petitioners had already ended.
63.
The 1st respondent has urged that the cross-appeal was inter-related with the main appeal, and that it necessarily collapsed, with the dismissal of the appeal. There is no doubt that, for the regularity and normalcy of the trial process, the cross-appeal ought to have been determined. As such an opportunity was missed, the proper question now before this Court is: is there a remedy to be granted?
64.
No doubt exists, that the contract involving the petitioners had come to an end. Indeed, the petitioners have not denied that they were magnanimously paid, even for the period during which they rendered no work. This is clear from the Judgment of the Court of Appeal. The Appellate Court, however, had not clearly stated that the cross-appeal lacked merit. If we were now to refer this cross-appeal back to the Appellate Court, for determination, we would not expect anything different. The petitioners having failed to discharge their evidential burden, the plea of unfair process stood unproven, and there was no material before the Court to show unfair determination. In our view of the goals of justice, we see no need to refer the cross-appeal back to the Appellate Court. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/66/eng@2020-01-10 |
Petition 8 of 2016 | Kensalt Limited v Water Resources Management Authority (Petition 8 of 2016) [2020] KESC 67 (KLR) (10 January 2020) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 10 January 2020 | 2,020 | Nairobi | Civil | Kensalt Limited v Water Resources Management Authority | [2020] KESC 67 (KLR) | null | A. Introduction
1.
The respondent raises a preliminary objection (dated 2 November 2016), contesting the jurisdiction of this Court to hear and determine the petition of appeal dated 6 June 2016. It is contended that the petition does not disclose any issue involving the interpretation or application of the Constitution, yet leave to appeal has not been secured from either the Court of Appeal or the Supreme Court, in the terms of Article 163(4) (b) of the Constitution.
B. Background
2.
The respondent, on 21 November 2013, filed a suit in the Environment & Land Court (ELC) at Malindi, against the petitioner, claiming the sum of Kshs.270,295,759.90, as water charges allegedly due, for the use of water in the respondent’s salt-manufacturing process.
3.
The petitioner herein, by Notice of Motion of 17 January 2014, under Order 2, Rule 15 (a) and (d) of the Civil Procedure Rules, sought to have the plaint struck out, and the ELC proceedings dismissed, on the ground that the respondent lacked locus standi to bring the said suit, as it had no mandate whether by the Water Act or the Constitution, or any other law, to levy charges for the use of sea-water. The petitioner urged that, for such lack of locus standi, the ELC lacked jurisdiction to conduct the proceedings; entertain the ELC proceedings; that sea water was “res nullius”, and incapable of ownership whether in law or equity; and that the respondent lacked constitutional authority to levy a tax, in the absence of an express provision permitting it to do so either under the Water Act, or the Water Resources Management Rules 2007 (the Water Rules).
4.
By its Ruling of 17 October 2014, the ELC (Angote J.) allowed the application by the petitioner, and struck out the ELC proceedings on all the grounds except the one that sea-water was “res nullius”.
5.
Aggrieved by the ELC Judgment, the respondent filed Civil Appeal No. 9 of 2015, against the decision of the ELC. The petitioner, for its part, lodged a cross-appeal, limited to challenging the ELC finding that sea-water was not “res nullius”.
6.
The Court of Appeal (Makhandia, Ouko, and M’inoti JJA) at Malindi delivered its Judgment on 22 April 2016, setting aside the Ruling and Order of the trial Court, and directing that the matter be heard on its merits by a different Judge. The Appellate Court observed that the respondent’s case raised triable issues which could only be determined through a full hearing.
| D. Analysis and Determination
20.
The sole question for determination is whether the petition dated 6 June 2016 has been properly brought under Article 163 (4) (a) of the Constitution. This Court has already set clear precedents to guide the application of Article 163 (4) (a) of the Constitution, which relates to jurisdiction. The applicability of the guidelines embodied in such precedents will depend on the facts of each case.
21.
In the Erad Suppliers & General Contractors Ltd case (supra) this Court held that, for an appeal to be admissible under Article 163(4) (a), a petitioner must demonstrate that the matter coming on appeal was subject to litigation before the High Court, and has risen through the judicial hierarchy on appeal. In the Lenny Kivuti case (supra) and Gatirau Peter Munya (supra), we set out the guiding principles for entertaining appeals under Article 163 (4) (a). In the SAJ case (supra), the Court addressed the issue of injustice, as it may flow from an appeal brought under Article 163(4) (b).
22.
We have attentively considered the content of the plaint at ELC; the application to strike out the plaint; and the appeal before the Appellate Court: and it is apparent to us that the issues in controversy between the parties are novel and complex, and are vigorously contested. The trial Court, however, in its Ruling of 17 October 2014, did strike out the suit.
23.
t is the petitioner’s standpoint that the matter did entail issues of constitutional application and interpretation, at the trial Court. Upon perusing the Ruling of the trial Court, we find that it addresses various articles of the Constitution, before arriving at the conclusion that the respondent lacks the mandate to regulate the use of the sea’s resources. These include Articles 62(1) and (3); 67 (2) (a); 206; 210; and 260. It is no less clear, however, that the Appellate Court had not interpreted or applied the Constitution. But the petitioner submits that, non-determination of fundamental issues by the Court of Appeal, is a proper basis for lodging the petition as a matter of right.
24.
It is necessary for us to consider the context in which various articles of the Constitution were applied or interpreted by the trial Court. The application that led to the respondent’s suit being struck out, was brought under Order 2, Rule 15 (1) of the Civil Procedure Rules, whereunder no evidence was admissible. As rightly held by the Appellate Court, the remedy of striking out pleadings is resorted to most sparingly, and as a last resort; the alternative being a recourse to Rule 15(1), which gives an exception. The trial Judge, however, engaged in a mini-trial, and decided upon substantial issues between the parties: and this led the Appellate Court to observe, quite rightly, that the parties’ ultimate rights are not to be decided at an interlocutory stage, except in the clearest of circumstances, and that the trial Court was only required to decide whether the respondent’s case disclosed a reasonable cause of action, or was an abuse of Court process. No less clear is it to us, that the trial Judge did misapprehend the import of the application before him. This is the context in which the trial Court applied various articles of the Constitution.
25.
In SAJ v. AOG & 2 Others PARA 2013. eKLR, this Court held that its jurisdiction can only be invoked when substantive matters in the appellant’s petition have been answered. Although the Court was, in that case, dealing with jurisdiction under Article 163 (4) (b), the decision is relevant in this case. The trial Court had acted upon pleadings without an oral hearing, to determine a contested action; and this is the basis of our view that, substantive matters in the plaint and the petition have not been answered in the proper forum. There had been triable issues that warranted full trial — these emerging from the issues listed for determination by the trial Court. Such questions as: whether or not the respondent had the power to regulate the use of sea-water, or levy charges for its use; whether sea-water is res nullius, and who, between the appellant and NLC, had power to regulate the use of the water-resource — should have been determined on merits, at the trial. As rightly, in our view, perceived by the Appellate Court, an expert witness would have been called to give evidence, in due conduct of proceedings. Only in these circumstances should the trial Court have applied various articles of the Constitution, in resolving issues of rights between the parties. It emerges, consequently, that the determination made by the trial Court was premature.
26.
It was premature to determine the rights of the parties at the interlocutory stage — a position which remains unaffected by any numbers of reference made to articles of the Constitution. It would, in our view, cause injustice to ascribe such matters to Article 163 (4) of the Constitution, as the issues in controversy between the parties may not be determined on merit. We are in agreement with the Appellate Court, that the issues raised ought to have gone to trial.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/67/eng@2020-01-10 |
Petition 2 of 2019 | SGS Kenya Limited v Energy Regulatory Commission & 2 others (Petition 2 of 2019) [2020] KESC 64 (KLR) (10 January 2020) (Judgment) | Judgement | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 10 January 2020 | 2,020 | Nairobi | Civil | SGS Kenya Limited v Energy Regulatory Commission & 2 others | [2020] KESC 64 (KLR) | null | A. Introduction
1.
This is an appeal from a Judgment of the Court of Appeal, dated May 11, 2018, in Civil Appeal No 341 of 2017, which set aside the Judgement and decree of the High Court at Nairobi by (Mativo, J), dated September 22, 2017. The High Court (in JR Misc. Application No 496 of 2017) had quashed the decision of the Public Procurement Administrative Review Board (PPARB), which upheld the decision of the Energy Regulatory Commission to terminate the award of Tender Number ERC/PROC/4/2/16-17/119, won by the petitioner herein. The Judgment of the Court of Appeal had the effect of sustaining the termination of the tender-award, on the ground that the applicable terms of reference did not include the possibility of emergent technical conditions.
B. Background
2.
The 1st respondent, Energy Regulatory Commission, is a public body established under the Energy Act, 2006. Its mandate includes the regulation of electrical energy, petroleum and related products, renewable energy, and other forms of energy. On or about May 12, 2017, the 1st respondent floated tender number ERC/PROC/4/3/16-17/119, for the marking and monitoring of petroleum products, a service meant to curb adulteration of fuel. The tender attracted 3 bids. These were opened on May 31, 2017, with the responding firms being SILPA SA, Intertek Testing Services (EA) Ltd, and SGS Kenya Ltd (SGS).
3.
The 1st respondent appointed an evaluation committee which duly evaluated the bids, on the basis of technical and financial criteria. The evaluation committee recommended, on June 30, 2017, that the contract for the provision of petroleum-marking and monitoring services be awarded to SGS (the petitioner), at an annual cost of US$ 2,760,844.72. This was on the basis that SGS had attained the highest score, and had been the lowest bidder. The Commission, in the course of its recommendation upon the bids received, thus remarked in its evaluation report:
General Observation
(a)
The increasing need of detection of adulteration by use of Jet 1 ought to have been captured in the terms of reference for this tender. This is so because Jet A1 is never marked unlike illuminating kerosene and there is reliable information that the perpetrators of adulteration have now shifted to the use of jet A1 as an adulterant for diesel. Further, the Commission is now aware of an existing technology that can easily detect Jet A1 in motor fuel.
(b)
The team also noted the need for a detailed explanation of how the test-results from the monitoring teams are to be transmitted to the client. To this end . . . the advantage of use of a real-time and tamper-proof mechanism that would provide more authentic results”.
4.
Taking into account the existence of the technology referred to in the general observations, the 1st respondent’s Acting Director for Petroleum, gave an opinion on July 7, 2017, recommending to the Acting Director-General, that the procurement process be terminated, and then re-commenced, with the requirement that the said technological elements be incorporated in the tender, and with reference to the monitoring of the petroleum service. The Acting Director-General considered this opinion, as well as that of the Head of Procurement, and on that basis, approved the recommendation for termination, by virtue of section 63(1)(a) of the Act. The decision to terminate the tender was communicated to all bidders, as required by section 63(4) of the Act.
5.
SGS was aggrieved by the decision to terminate the tender, and filed a request for review, before the Public Procurement Administrative Review Board (2nd respondent), seeking Orders that the said tender-termination be annulled. SGS asked that it be awarded the tender; and in the alternative, SGS sought that the 1st respondent be directed to proceed with the tender and complete the process. The Board, by its decision of 1st August 2017, disallowed the request for review. It also gave the liberty to re-advertise the tender, for the provision of the petroleum marking services.
6.
SGS thereafter moved to the High Court, seeking leave to file a judicial review application. In its motion filed on August 16, 2017, SGS sought Orders of:
(a)
Certiorari, to remove in to the High Court and quash the Board’s decision;
(b)
Prohibition, to countermand the decision of the 1st respondent to proceed with a new tender process;
(c)
Prohibition, to prohibit the 1st respondent from entering into or signing any contract with any third party on the basis of a new tender; and
(d)
Mandamus, directing 1st respondent to proceed with the old tender, including award of the contract to SGS.
7.
Mativo J heard the judicial review proceedings, culminating in a Judgment dated September 25, 2017, bearing the following Orders:
(a)
an orderof certiorari to remove into the High Court to quash the decision and Ruling delivered by the Public Procurement Administrative Review Board on August 1, 2017, in Application No 64 of 2017 (SGS Kenya Limited v. Energy Regulatory Commission);
(b)
an Order of Prohibition to remove into the High Court and quash the decision of the Energy Regulatory Commission, to proceed with the tender process in Tender Number ERC/PROC/4/3/17-18/016 for the provision of Marking and Monitoring Petroleum Products;
(c)
an orderof prohibitiondirected to the Energy Regulatory Commission, prohibiting it, directly and /or through its servant and/or agents, from entering and /or signing any contract with any third party, concerning tender number ERC/PROC/4/3/17-18/016, for the provision of Marking and Monitoring of Petroleum Products;
(d)
an ordermandamus directing the Energy Regulatory Commission to proceed with the tender process in tender number ERC/PROC/4/3/16-17/119, for the provision of Marking and Monitoring of Petroleum Products in conformity with the recommendation of its evaluation committee, for the award of the tender/contract to SGS Kenya Limited;
(e)
each party to bear its own costs.
8.
Aggrieved by the Judgment of the High Court, 1st respondent lodged an appeal in the Court of Appeal. The appellate court, in a Judgment dated May 11, 2018, allowed the appeal, setting aside the Orders of the High Court, and substituting them with an Order dismissing the substantive motion with costs.
9.
The Court of Appeal faulted the High Court judge for determining a judicial review matter as if it was an appeal, and for going into the merits of a decision already taken. The appellate court held it to be improper for the High Court to make value judgment regarding the evidence; to weigh the same, and to minutely examine it, to determine whether it reached a certain standard of acceptance.The court found that the High Court had occasioned room for abuse of its power, by usurping the competences of the Public Procurement Administrative Review Board.
10.
The appellate court held that, in a judicial review matter, the court’s mandate is limited to procedural improprieties, and extends not to the merits of a decision. It held that the Board had been duly mindful of its own earlier decision in Avante International INC v IEBC (Review No 19 of 2017): it took into consideration the nature and weight of the opinion on technological change, which the 1st respondent had acted upon; and the Board’s reasoning exhibited a fidelity to practicality and to good sense. Consequently, the appellate court held, the judge ought to have shown greater deference to the Board’s decision, and should have been more circumspect in its view of such a decision, bearing in mind the specializations of the Board. The appellate court held that the 1st respondent did not bear a statutory duty to award the tender to SGS, or to any other entity, so as to attract the compulsive force of mandamus.
11.
Aggrieved by the Judgment of the Court of Appeal, the petitioner sought to have the matter certified as one of general public importance under article 163(4)(b) of the Constitution an application which was allowed by the Appellate Court on December 19, 2019, upon a single issue: whether tribunals are bound by the doctrine of stare decisis. The petitioner filed a petition of appeal in this court, thereafter, on January 22, 201 | E. Analysis And Determination
37.
Learned Senior Counsel, Mr. Muite, had urged the court to consider the instant appeal under the terms of article 163(4)(a) as well as (b). Not only, according to him, has this case been certified by Court of Appeal as involving “matter of general public importance”, (ie Clause (b)), it also involves issues of interpretation and application of the Constitution (in accord with clause (a)). In Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015]eKLR, this court in resolving a similar issue, held as follows (paras 39 and 41):
(i)
“The two avenues of the appellate jurisdiction of this court are distinct. Firstly, an appraisal of the nature of an appeal as involving matter of constitutional interpretation and/or application, signals access to the Supreme Court ‘as of right’; and no form of authorization or leave from the Court of Appeal, or the Supreme Court is required at the beginning….”
(ii)
“Suffice it to say that the path that a litigant takes is determined on the basis of the subject-matter, as has been held by the superior courts. Once the Court of Appeal renders its decision, the litigant is able to elect which course to follow. This decision is taken in advance, as it is the basis of determination on whether to seek certification first, or proceed straight to the Supreme Court. Thus, the decision on how to proceed, rests on the character of the issues involved in the subject matter, rather than on such procedural shortfalls as may have afflicted a litigant’s progress. It follows that where a party has elected the path to the Supreme Court ‘as of right’, that matter cannot be ‘converted’ to one where certification is required, just because time for filing ‘an appeal as of right’ has lapsed…”
38.
It is clear to us that the petition of appeal has been brought under article 163(4)(b) of the Constitution. We have also taken note that the written submissions have not incorporated arguments on article 163(4)(a). The new line of submissions only came up during the highlighting stage.
39.
Such a scenario comports with our Ruling of February 12, 2019, when the petitioner herein was seeking to stay the Judgment of the Court of Appeal. We held, on that occasion, that the application was properly before us, having been certified by the appellate court as raising a single question of great public importance: whether tribunals are bound by the doctrine of stare decisis. We do not intend to belabour this issue. The petitioner herein elected to proceed under the second limb.
40.
The petitioner approached the High Court by way of the prescribed procedures under Judicial Review, which revolve around the paths followed in decision-making. Such a course, as the appellate court properly held, is not concerned with the merits of the decision in question. The law in this regard, which falls under the umbrella of basic “Administrative Law”, is clear enough, and it is unnecessary to belabour the point.
41.
So we turn to the single issue before us: are the Tribunals bound by the doctrine of stare decisis? The petitioner has contended that the Review Board failed to follow its own decision in Avante, without any explanation. According to the petitioners, stare decisis applies to quasi-judicial tribunals, to the intent that there be uniformity/consistency, predictability, and certainty in law, in general terms. The 1st respondent, quite to the contrary, has argued that tribunals are not bound by their previous decisions such being only persuasive; and that each tribunal-task is to be determined on the basis of the facts before it.
42.
From the two contending propositions, it emerges, in our view, that tribunals, in their primary category, are specialized bodies charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. Membership in such tribunals generally reflects the essential skills required for the specific tasks in view. The Public Procurement Administrative Review Board falls within this category. It is endowed with requisite experience from its membership, and has access to relevant information and expertise, to enable it to dispose of matters related to procurement. The question is: whether it is bound by its previous decision, as it takes decisions on different matters lately coming up.
43.
Such a variegated range of implementation scenarios, it is apparent to us, calls for flexibility in the regulatory scheme. In principle, matters on the agenda of an administrative tribunal will merit determination on the basis of the claims of each case, and will depend on the special factual dynamics. The relevant factors of materiality, and of urgency, will require individualised response in many cases: and in these circumstances, a strict application of standard rules of procedure or evidence may negate the fundamental policy-object. On this account, the specialized tribunal should have the capacity to identify relevant factors of merit; be able to apply pertinent skills; and have the liberty to prescribe solutions, depending on the facts of each case. Such a tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past.
44.
We would agree with the 1st respondent, that administrative decision-makers should have significant flexibility, in responding to changes that affect the subject-matter before them. Matters before an administrative tribunal should be determined on a case-to-case basis, depending on the facts in place.
45.
The petitioner has asked this court to consider if it was entitled to Orders of judicial review. It is argued that, failure to do so would render the petition a bare academic exercise. It is the case, however, that the petitioner has engaged this court in an essentially academic exercise. This prayer has exceeded the leave and certification granted by the Court of Appeal, within the terms of article 163(4)(b) of the Constitution. We have, however, observed that the appellate court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the Order of mandamus, since the 1st respondent did not owe any delimited statutory duty to the petitioner.
46.
The petition of appeal lacks merit. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/64/eng@2020-01-10 |
Petition 6 of 2016 | Manchester Outfitters (Suiting Division) Ltd (Now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others (Petition 6 of 2016) [2019] KESC 7 (KLR) (20 December 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 20 December 2019 | 2,019 | Nairobi | Civil | Manchester Outfitters (Suiting Division) Ltd (Now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others | [2019] KESC 7 (KLR) | null | A. Background
1.
The origin of this appeal can be traced to HCCC No 5002 of 1990, where the 1st and 2nd petitioners (as the 1st and 2nd plaintiffs) had filed a suit challenging the appointment of the 1st and 2nd respondents (as 1st and 2nd defendants) as receiver managers under a debenture. In the suit dated September 5, 1990, the 1st and 2nd petitioners further sought to impugn the debenture and the securities thereunder which had formed the basis of the appointment of the 1st and 2nd respondents. In the re-re-amended plaint dated November 18, 1992, the 1st and 2nd petitioners sought;
(i)
A declaration that the 1st defendant (1st respondent) is not entitled to enforce the provisions of the debenture and an injunction to restrain the 1st defendant from seeking to enforce the debenture and a mandatory injunction that the 1st defendant do restore the premises to the 1st plaintiff;
(ii)
Further, in the alternative, a declaration that the calling of the 1st plaintiff’s indebtedness and the appointment of the receivers and managers constituted a breach of agreement;
(iii)
Further or in further alternative, the appointment of the receivers and managers under the purported debenture be set aside as the appointment was made maliciously, in bad faith and for improper motives; and
(iv)
The appointment of receivers and managers was wrongful and constituted a trespass and the 1st plaintiff suffered loss and damage and is entitled to an order as to inquiry of damages.
2.
In response to the 1st and 2nd petitioners’ claim, the 1st respondent filed a defence to the re-re-amended plaint and amended counterclaim dated November 25, 1992. Further to contesting that the appointment of the 2nd respondent as receiver manager was lawful pursuant to the debenture dated April 5, 1982, the 2nd and 3rd respondents claimed Kshs 2,337,161.75 and interest thereon at 10% per annum being their expenses for services rendered under the debenture. The 1st respondent on its part sought a declaration that the debenture dated April 5, 1982 was a valid and subsisting security for the indebtedness of the 1st petitioner to the 1st respondent, and furthermore, made a claim for Kshs 24,908,418 with interest thereon at 10% per annum being the outstanding balance on the loan facilities to the 1st and 2nd petitioners .
3.
The court (Githinji, J as he then was) heard the matter and rendered his Judgment on July 30, 1999. He dismissed the suit by the 1st and 2nd Petitioners in its entirety and allowed the Counterclaim as filed by the 1st and 2nd respondents.
4.
Aggrieved by the Judgment of the High Court, the 1st and 2nd petitioners moved to the Court of Appeal and filed Civil Appeal No 88 of 2000. In the appeal, they sought the setting aside of the Judgment by the High Court, or in the alternative, an order remitting the matter to the High Court for re-hearing before a different judge. It was noted that during the pendency of the appeal and following the dismissal of several interlocutory pleadings, the respondents had sold off the properties and assets of the 1st and 2nd petitioners in recovery of the 1st respondent’s funds.
5.
The Court of Appeal (Tunoi, Lakha & Owuor JJA) delivered its judgment on October 4, 2002. By a majority decision (with Tunoi JA dissenting), the court allowed the appeal and consequently awarded the 1st petitioner, inter alia, a sum of Kshs 251,000,000 plus interest at 14% per annum from 1st August 2002, which payment was to be made within 30 days. The damages awarded to the 1st petitioner were largely based on a valuation report that had been admitted to the court de bene esse from the bar by counsel for the 1st petitioner.
6.
Being aggrieved by that decision, the respondents attempted to seek recourse before the COMESA Court of Justice. Their contention before that court was that the appellate court had acted in excess of its jurisdiction and violated the rules of natural justice, in particular the respondents’ right to fair hearing. They however, withdrew the matter from the COMESA Court on July 20, 2006.
7.
On August 18, 2006, the respondents then filed an application in the Court of Appeal being Civil Application No Nai 224 of 2006 in which they sought a declaration of nullity and setting aside of the Judgment of the Court dated October 4, 2002. The application was premised on the provisions of sections 64 and 77(9) of the repealed Constitution, section 3 of the Judicature Act and rule 1(2) of the Court of Appeal Rules, 1987 (repealed). Essentially, the application sought to re-open and re-examine the previous Judgment by the appellate court.
8.
The central ground upon which the application was premised was that there was bias in the judgmentissued by the court, which bias arose from the fact that Lakha JA (as he then was) while an advocate and before joining the Bench, had been instructed by the petitioners to represent them when the matter was before the High Court. It was also noted that the said Lakha JA had however declined the instructions and had been subsequently removed by the Chief Justice from an earlier constituted bench involving the same parties for this same reason.
9.
On April 18, 2007, the petitioners filed their replying affidavitin opposition to the application. On May 21, 2007, they further filed a notice of preliminary objectioncontending that the appellate court lacked the requisite jurisdiction to review its judgments. The preliminary objectionwas dismissed.
10.
On April 8, 2016, the appellate Court (Karanja, Okwengu, Mwera, GBM Kariuki & Mwilu JJA) delivered its Ruling on the application for review of the Judgment. They set aside the said judgment of the appellate court dated October 4, 2002, and ordered that Civil Appeal No 88 of 2000 be heard fresh, notwithstanding that the same had been determined finally and upon all the issues that had arisen for determination.
| C. Analysis and Determination
23.
Upon considering the arguments by the respective parties and their submissions, we deem that the following issues fall for determination;
(i)
Whether this court has jurisdiction to hear and determine the instant petition; and
(ii)
Whether the Court of Appeal has the jurisdiction to review its decisions.
(iii)
What reliefs are to issue including on costs?
(i) Jurisdiction of this court
24.
In the Matter of the Interim Independent Electoral Commission (supra) the issue of the jurisdiction of this court was settled. Further, in the SK Macharia case, we rendered ourselves as follows;
“
A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
25.
Further, in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014; 2014 eKLR on the issue of jurisdiction, this court held:
“
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.”
26.
Have the 1st and 2nd petitioners demonstrated that the issues they raise before this court fall within the ambit of constitutional application or interpretation? The main issue in contention in the appeal is whether the Court of Appeal had the residual jurisdiction to review its previous decisions and/or judgments? In that regard, the 1st and 2nd petitioners submitted that sections 64(1) and 79(9) of the repealed Constitution, section 3 of the Appellate Jurisdiction Act, section 3 of the Judicature Act and rule 1(2) of the Court of Appeal Rules, 1987 had been relied upon in making the application for review in Civil Application No Nai 224 of 2006. These provisions, they argued, had either been repealed or amended after the enactment of the Constitution, 2010, and that the court therefore, could not make a determination based on non-existent law.
27.
On their part, the 1st and 2nd respondents contend that the promulgation of the Constitution, 2010, did not leave a vacuum, but that by dint of sections 7 and 22 of the Sixth Schedule, as well as articles 262 and 263, a transitional mechanism which regulated how the then existing laws would be applied was provided. They relied on the decision in the case of Communications Commission of Kenya & 5 others v Royal Media Services & 5 others Petition No 14 of 2014 where it was held:
“
The inevitable inference resolves into the principle that the new Constitution did not envisage or create a legal vacuum and all processes regulated by law were to continue in progress, as signaled by the Constitution.”
28.
On our part, and on the question whether the present appeal is properly before us, in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another (Tunoi and Wanjala SCJJ) SC Petition No 3 of 2012; (2012) eKLR, this court was categorical 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.”
29.
The court expounded upon this principle at paragraph 28 where it pronounced itself thus:
“
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).”
30.
What the 1st and 2nd petitioners challenge in that context is whether the Court of Appeal was justified in allowing an application for review based on the provisions of section 3A of the Appellate Jurisdiction Act, as read with sections 64 and 77 of the former Constitution. In our view, the contestation that the appellate court applied provisions of the law that were not in force when the application for review was made go to the exercise of the powers donated to the court under article 164(1) & (3) of the Constitution, which establishes the Court of Appeal and confers upon it, powers to exercise its jurisdiction.
31.
The Munya and the Nduttu cases, in our view also, adequately clarify the frontiers of the appellate regime of this court embodied in article 163(4)(a) of the Constitution. They thus provide a basis upon which the jurisdictional question before us may be decided.
32.
In stating so, we must remind ourselves that what is before us is an appeal, not from a judgmentof the Court of Appeal but a rulingin which the Court of Appeal accepted the invitation to review its own judgmentfor reasons we have already restated. Do we have the jurisdiction to determine such an appeal as of right under article 163(4)(a) of the Constitution? Can a ruling of the Court of Appeal after judgment be said to have conclusively been the basis for interpretation and application of the Constitution?
33.
In that regard, we partly answered the above questions in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others 2013 eKLR where we stated thus:
“
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 that 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. Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture he principles and values embodied in it.”
Furthermore, in Geoffrey Asanyo & 3 others v Attorney General, Sup Ct Petition No 21 of 2015 2018 eKLR, we stated:
“
It thus emerges that a concise reading of the judicial principles in article 159(2) of the constitutionwould show that they are non-derogable, and have to be adhered to by all courts and Tribunals exercising judicial power/authority. Where there is, therefore, a prima facie case of derogation, it behoves this court to intervene, so as to safeguard the Constitution, within its jurisdiction under article 163(4)(a). This was well stated in the Joho case paragraphs 51 & 52 where the court expressed itself thus:
‘In defending the Constitution and the aspirations of the Kenyan people, this court must always be forward-looking, bearing in mind the consequences of legal uncertainty upon the enforcement of any provision of the Constitution. This aspect of defending the Constitution is replicated under article 163(4)(a), which allows appeals from the Court of Appeal to the supreme Court as of right, in any case involving the interpretation or application of the Constitution. Such is the approach that this court in hearing this appeal must seek to apply.
Applying a principled reading of the Constitution, this court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of article 163(4)(a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court, in furtherance of the objects laid out under section 3 of the Supreme Court Act, 2011 (Act No 7 of 2011)” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/7/eng@2019-12-20 |
Civil Application 1 of 2019 | Okoiti & another v Attorney General & another (Civil Application 1 of 2019) [2019] KESC 5 (KLR) (Civ) (20 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 20 December 2019 | 2,019 | Nairobi | Civil | Okoiti & another v Attorney General & another | [2019] KESC 5 (KLR) | null | Brief facts
The applicants sought a review of the deputy registrar's decision to decline to admit pleadings. They said that the decision was a political one and that it was meritless, unreasonable, arbitrary and offensive. They also stated that it was a decision made contrary to the rules of natural justice and in violation of the applicants' rights of access to justice.
Issues
Whether the Supreme Court had jurisdiction to review a decision by its deputy registrar to decline to admit pleadings.
Under what circumstances would the Supreme Court review a decision by its deputy registrar to decline to admit pleadings? | Having carefully considered the pleadings and the submissions made by the applicants, the following issues arise for determination;
(a)
Whether this court has jurisdiction to review the decision of the Deputy Registrar; and
(b)
Whether the decision made by the Deputy Registrar warrants a review.
(a)
Whether this court has the jurisdiction to review the decision of the Deputy Registrar.
10.
In the above context, rule 4A (1)(b) provides:
“
The role of the Registrar shall be to−
(a)
…
(b)
decline to admit pleadings that are not in accordance with the Constitution, the Act, the relevant rule or the court’s practice Directions for filings”
11.
Rule 4A (2) of the Rules then reads;
“
Any party aggrieved by the decision of the Registrar made under this rule may apply to a single judge of the court for a review of the decision.”
12.
The decision by the Deputy Registrar made on November 27, 2018reads in part as follows:
“
It is clear that the application stands in conflict with the terms of the Constitution and the Supreme Court of Kenya Act, as well as the Court Rules. In the circumstances, I decline to admit it under rule 4A(1)(b) of the Supreme Court Rules 2012.”
13.
From a concise reading of the Deputy Registrar’s Ruling, it is not in doubt what provisions he relied upon in making his decision and it is self-evident from the decision itself that he invoked rule 4A(1)(b) in doing so. The merits of his decision will be shortly addressed. Without belaboring the point therefore, we hold that this court is vested with the requisite jurisdiction to hear and determine the present application which seeks to review and/or set aside the impugned decision of the Deputy Registrar.
(b) Whether the decision made by the Deputy Registrar warrants a review
14.
The roles of the Registrar are provided under rule 4A of the Supreme Court Rules. One such role under rule 4A(1)(b) is to decline to admit pleadings that are not in accordance with the law. These roles may be referred to as case management, or the administrative roles of the Registrar and they are also set out broadly in rule 7 of the Rules. These roles, in addition, extend to the maintenance of the register under rule 7B and the filing of documents under rule 7E.
15.
Under rule 4A(1)(b), the role of the Registrar is limited to declining to admit documents that are yet to be filed and are therefore not on the record. The ‘not on record’ role is similar to that provided under rule 7E(2) of the Rules which reads;
“
The Registrar may refuse to accept any document that does not comply with the Act or these rules and may issue an order rectifying the pleadings so that the document complies with the Act or these Rules.”
16.
The dissimilarity however between the two provisions i.e. 4A(1)(b) and 7E is that rule 7E provides for a remedy in the event that the Registrar finds that a document that a party seeks to file does not comply with the Act or the Rules, i.e. issue an order rectifying the pleadings so that they are in conformity with the Act or the Rules. The power to issue such orders is discretionary as the Rule also states that the Registrar “may” issue such orders. It is a power that the Registrar may, in carrying out her obligations, choose to either exercise or not. This discretion is not provided under rule 4A(1)(b) which is worded in strict terms once the pleadings do not meet the muster of the law.
17.
Did the Deputy Registrar therefore act or issue an order that was unreasonable or arbitrary? It is not in dispute in that regard that the powers exercised by the Deputy Registrar were delegated powers from the Registrar, and as such, and in exercise of these delegated powers, acted as provided in the Rules, and in particular within rule 4A(1)(b). However, the applicants nonetheless contend that the decision was bereft of reasons or merit, and therefore, in contravention of articles 48, 50(1) and 163(7) of the Constitution which speak to the right to access to justice and fair trial.
18.
The applicants also contend that the Deputy Registrar sought to delve into the merits of the application, and struck out the pleadings before the same could be interrogated on their merits. They argue in that regard that the striking out of pleadings is a power that should be cautiously exercised, and only so exercised in the most deserving and clear of cases. They however also admittedly contend that the decision made by the Deputy Registrar was an administrative decision, stating in their submissions that the power to dismiss pleadings and the power to decline to admit pleadings are distinguishable, with the former being a judicial function, while the latter is an administrative function.
19.
The above is an important observation that was made by the applicants and which is germane to the instant application, and in determining whether the Deputy Registrar struck out or refused to admit pleadings.
20.
From the record, the Deputy Registrar in refusing to admit the pleadings of the applicants, issued a short decision, in which he stated that the pleadings that the applicants sought to be admitted were not in accordance with the Constitution, the Act, the Rules or Practice Directions.
21.
The Applicants fault the Deputy Registrar for making the above decision which, their opinion, was bereft of reasons. We note in that regard that rule 4A(1)(b) of the Rules, generally provides the reasons for declining to admit pleadings; that the pleadings are not in accordance with the Constitution, the Act, the relevant Rules or Practice Directions. Any one of these reasons therefore suffices at a general level as to why the Deputy Registrar may have refused to admit the applicants’ pleadings. However, it is also our view that specific reasons needed to be adduced with specific references to the parts of the Constitution and the Supreme Court Act that the pleadings were afoul of. It is not enough to cite the relevant Rule without giving details of the specifics thereof.
22.
Further, while the Deputy Registrar had the opportunity to review and consider the documents that the applicants intended to be admitted, caution and precaution had to be observed to ensure that the reasons given would then clearly and specifically separate a decision on the merits of the pleadings as opposed to a mere administrative action. Not giving reasons and merely restating the applicable law and rules is an action that may lead to mis-justice. We say so because it is indeed trite that any decision that affects the rights of parties must, at the very least, have reasons that are cogent and explanatory of the decision made.
23.
It is also our view that, rule 4A(1)(b) is not a mere administrative provision. It calls upon the Registrar/Deputy Registrar to consider the pleadings sought to be filed against the expectations of the Constitution, the Supreme Act, the Supreme Court Rules and Practice Directions and apply his/her legal mind to the question whether the said pleadings are in accord with specific provisions of the said Laws and Directions. Where they are not, justice demands that reasons, predicated on specific provisions of the Laws and Directions, ought to be given to an applicant as being locked out of the seat of justice, more so at the apex Court, is a serious matter indeed.
24.
With respect therefore, and without going into the merits of whatever issues the applicants has sought to place before the court, the decision of the Deputy Registrar is one for review and setting aside.
25.
As to costs, the respondents did not make any attempt at filing any pleadings in support or in objection to the application. As such, the application was uncontested, even though the 2nd respondent entered appearance and intimated that it intended to file its pleadings. In accordance with rule 46(1)(a) of the Rules, any costs payable shall be assessed by the court when making its decision. Since this is an uncontested application, it would only be prudent that no order as to costs be made.
26.
The upshot of our findings above is that the following orders are issued;
(a)
The notice of motion dated January 14, 2019 is hereby allowed and the Ruling of the Deputy Registrar made on November 27, 2018 is hereby reviewed and set aside.
(b)
There shall be no order as to costs.
27.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/5/eng@2019-12-20 |
Petition 22 of 2018 | Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2019] KESC 9 (KLR) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola | 17 December 2019 | 2,019 | Nairobi | Civil | Base Titanium Limited v County Government of Mombasa & another | [2019] KESC 9 (KLR) | null |
1.
Upon perusing the Notice of Motion application dated 28th September 2018, and filed on even date for enlargement of time to file a Supplementary Record of Appeal out of time in an appeal against the Judgment and Orders of the Court of Appeal delivered on 15th July, 2018 in Civil Appeal No. 69 of 2017, brought under the Provisions of Rules 21(1) and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the Applicant’s supporting affidavit sworn by Desterio OyatsI on 28th September, 2018; and
3.
Upon considering the written submissions filed by the Applicant on 17th October, 2018 wherein it is contended that the Applicant was unable to extract the formal Order appealed against from the Court of Appeal within the stipulated period of fifteen 15 days from the date of filing a Notice of Appeal, hence omitting the said Court Order from the Record of Appeal before this Court; that the delay in extracting the Order was occasioned by the 1st Respondent’s change of advocates immediately after receipt of the Notice of Appeal that unaware of the change of advocates, the Applicant, as is required by law in extracting a Court Order, sent a Draft to the 1st Respondent’s previous advocates on record for their approval; that the previous advocates failed to respond to the Applicant’s request for approval; that the 1st Respondent’s new advocates only filed a Notice of Change of advocates on 27th August 2018; that as at the said dated, the Appeal however had been filed on 15th August 2018, and only 2 days were remaining to the expiry of the specified 15 days within which a party can file a Supplementary Record of Appeal without leave of court; that it was practically impossible to agree on the wording of the Order and extract the same within 2 days; that upon receipt of the Notice of Change of Advocates, the Court of Appeal Order was promptly extracted, and the parties requested for a mention date to record a consent order, allowing for the filing of a Supplementary Record containing the said Order, but were advised to file a formal application for enlargement of time to file the same, hence the present application; and
4.
Upon noting that the 2nd respondent, has neither filed any response to the instant application, nor appeared before this Court on 12th October 2018, 23rd October 2018, and 18th July 2019, despite service of Mention Notices;
5.
We Have Considered the question at the core of the application viz: whether on the basis of the supporting written submissions of the 1st Respondent, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought. By a unanimous decision of this Bench, pursuant to the provisions of Sections 21(2) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:
The forty-eight day delay, has been explained to our satisfaction by the Applicant. We are persuaded that, the inability by the Applicant, to obtain the approval of its Draft Order timeously, compounded by the change of advocates by the 1st Respondent, adequately explain the delay in filing the Supplementary Record of Appeal. | Upon noting that the 2nd respondent, has neither filed any response to the instant application, nor appeared before this Court on 12th October 2018, 23rd October 2018, and 18th July 2019, despite service of Mention Notices;
5.
We Have Considered the question at the core of the application viz: whether on the basis of the supporting written submissions of the 1st Respondent, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought. By a unanimous decision of this Bench, pursuant to the provisions of Sections 21(2) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:
The forty-eight day delay, has been explained to our satisfaction by the Applicant. We are persuaded that, the inability by the Applicant, to obtain the approval of its Draft Order timeously, compounded by the change of advocates by the 1st Respondent, adequately explain the delay in filing the Supplementary Record of Appeal. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/9/eng@2019-12-17 |
Application 3 of 2019 | Gichanga v Secretary, Teachers Service Commission (Application 3 of 2019) [2019] KESC 88 (KLR) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 17 December 2019 | 2,019 | Nairobi | Civil | Gichanga v Secretary, Teachers Service Commission | [2019] KESC 88 (KLR) | null | Upon perusing the Notice of Motion Application dated 1st February 2019, and brought under Sections 15 and 16 of the Supreme Court Act, and any other enabling provisions of law, seeking extension of time to file a Notice of Appeal and an Appeal out of time against the Judgment and Orders of the Court of Appeal, in Civil Appeal No. 122 of 2017 delivered on 20th April, 2018; and
2.
Upon reading the Applicant’s grounds in support of the application and his undated but sworn supporting affidavit, wherein he avers that; the delay in filing the Notice of Appeal was occasioned, not by any act or omission on his part, but by the failure of the Court of Appeal, to inform him of his right of appeal to the Supreme Court, under Article 163 (4) (b) of the Constitution; and
3.
Upon considering the Applicant’s written submissions filed on 2nd August 2019, wherein, the Applicant merely draws the Court’s attention, without more, to the failure by the Respondent, to file written submissions in response to the Application as directed by the Deputy Registrar; and
4.
While noting that indeed, the Respondent has failed to comply with the directions of this Court, requiring it to file written submissions in response to the Application herein, within the specified timeframes; | We find as follows:
The averments and written submissions, by the Applicant herein, in support of his Application for extension of time to file an Appeal, do not provide a sufficient basis upon which, this Court can exercise its discretion to indulge the Applicant. The reasons advanced by the Applicant, to explain the inordinate delay (to wit, 290 days), in filing the Appeal, are neither reasonable, nor credible. The Application does not meet the threshold for grant of extension of time as set out in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014;
Having made the foregoing determinations, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
Orders
(i)
The Application dated 1st February, 2019 and filed on 4th February, 2019 is hereby dismissed.
(ii)
No Orders as to cost.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/88/eng@2019-12-17 |
Application 1 of 2014 | Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others (Application 1 of 2014) [2019] KESC 85 (KLR) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | SC Wanjala | 17 December 2019 | 2,019 | Nairobi | Civil | Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others | [2019] KESC 85 (KLR) | null |
1.
Upon perusing the Notice of Motion Application by the Applicants dated 12th June 2018, brought under Rules 21, 49 and 53 of the Supreme Court Rules, 2012 and Article 163 of the Constitution, seeking an extension of time to file a Reference against the Taxation Ruling and Orders of the Supreme Court Deputy Registrar dated 13th April, 2018 in Supreme Court, Civil Application No. 1 of 2014; and
2.
Upon reading the Applicants’ Supporting Affidavit sworn on 12th June 2018; and
3.
Upon considering the Applicants’ written submissions dated 12th June 2018, and filed on 8th August 2018, wherein the Applicants submit that, the delay in filing the Reference under Rule 49 of the Supreme Court Rules 2012, was occasioned by the Supreme Court Registry’s delay in furnishing them with a copy of the typed proceedings; that the typed proceedings were only availed to the Applicants on 17th May 2018; and
4.
Upon reading the 1st and 2nd Respondents’ Replying Affidavit sworn on 10th July 2018, and filed on 11th July 2019, in which the Respondents oppose the Application, arguing that a copy of the Ruling and typed proceedings are not required to file a Reference on Taxation under Rule 49(1) of the Supreme Court Rules; that even after being furnished with a copy of the Ruling and typed proceedings, the Applicants have not explained the 30 day delay in filing the Taxation Reference; that the Application is brought with an aim to delay this cause, hence an abuse of court process; and | Upon considering the 1st and 2nd Respondents’ written submissions dated 7th August 2018 and filed on even date in which, the Respondents have argued, that the Applicants filed their application for extension of time after an unjustified delay of 48 working days from the date of delivery of the Ruling; that the whole period of delay has not been explained satisfactorily to the Court; that the Respondents will suffer prejudice should the extension of time be granted; and, that the Application is an afterthought and an abuse of court process;
6.
I find as follows;
a)
A copy of the Ruling and typed proceedings were availed to the Applicants on the 17th May 2018, and yet, it was not until the 12th of June 2018, that they filed the Application for extension of time. The Applicants contend that the 27-day delay is the time it took them, to prepare the application for extension of time. Such an explanation, in my view, is neither reasonable nor credible.
7.
Having considered the Application and the Affidavit filed in support thereof, the Replying Affidavit in opposition thereto, and the written submissions of the respective parties, I make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/85/eng@2019-12-17 |
Petition (Application) 5 of 2019 | Kombe v Sheikh & 4 others (Petition (Application) 5 of 2019) [2019] KESC 84 (KLR) (Civ) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 17 December 2019 | 2,019 | Nairobi | Civil | Kombe v Sheikh & 4 others | [2019] KESC 84 (KLR) | null | Upon perusing the Notice of Motion Application dated 24th March 2019, brought under Sections 3, 12, and 24 of the Supreme Court Act, 2011 and Rules 3, 8, 23, 26 and 53 of the Supreme Court Rules, 2012, seeking an extension of time to file an appeal and record out of time against the Ruling and Orders of 19th December, 2018 by the Court of Appeal in Election Appeal No. 32 of 2018 Application No. 261 of 2018 , for the appeal and record filed on 6th February, 2019 to be deemed as properly on record, for leave to amend the Appeal and for leave to file a supplementary record of appeal; and
2
Upon reading the Applicant’s grounds in support of the Application and the Supporting Affidavit sworn on 14th March, 2019 by Omagwa Angima, wherein the deponent states that the delay in filing the Appeal and Record of Appeal, was occasioned by circumstances beyond the Applicants control, namely;
i
The delay, in getting certified copies of typed proceedings from the Court of Appeal within the stipulated 3o days from the date of filing the Notice of Appeal;
ii
That on 1st February 2019, the last day on which, the Applicant would have filed the Appeal, this Court’s registry was closed, and that Upon inquiry, the Applicant was informed that the registry staff members were attending a training in Naivasha;
iii
That the registry remained closed, until the 4th of February 2019, when the applicant lodged his Appeal, but was advised to effect certain corrections thereto; and
iv
That it wasn’t until the 6th of February 2019, when the Appeal and Record of Appeal were finally presented and lodged, thus occasioning a six-day delay.
3
Upon considering the Applicant’s written submissions dated 9th May, 2019 and filed on 10th May, 2019 wherein the Applicant restates the grounds in support of the application, and in addition submits that the Record as filed is incomplete, as it is not in keeping with Rule 33 g and h of the Supreme Court Rules, 2012; and
4
Upon noting that the Respondents have not complied with the directions of this Court issued on 8th of April 2019, 3rd of June 2019, and 3rd of July 2019; | We Find as follows:
a
In keeping with the decision of this Court in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; we are satisfied that the applicant has provided a plausible and reasonable explanation for the delay in filing of his Appeal and Record of Appeal. We are further satisfied that the delay in these circumstances was not inordinate.
7
We also restate and re-affirm the principle enunciated in Nicholas Kiptoo Korir Salat Supra 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. We still take a dim view of applications, asking the Court to deem as properly filed, those appeals that have been lodged out of time.
8
Having made the foregoing determinations, by a unanimous decision of this Bench, we make the following Orders under Section 23 2 b of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
Orders
i
The application dated March 24, 2019 seeking the extension of time to file the Appeal and Record of appeal is hereby allowed;
ii
Applicant shall file the Appeal and Record of Appeal within 14 days from the date of this Ruling;
iii
The purported Appeal, to wit, Petition No. 5 of 2019 is hereby struck out and expunged from the Court’s Record;
iv
The Costs of this Application shall abide the cause. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/84/eng@2019-12-17 |
Application 19 of 2019 | Muia & another v Kababu (Application 19 of 2019) [2019] KESC 87 (KLR) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 17 December 2019 | 2,019 | Nairobi | Civil | Muia & another v Kababu | [2019] KESC 87 (KLR) | null | Upon perusing the Notice of Motion Application by the Applicants dated 21st June 2019, brought under Article 1634 b of the Constitution of Kenya, Section 3 e of the Supreme Court Act and Rules 32 & 5, 31, 33 and 53 of the Supreme Court Rules 2012, seeking an extension of time, to file a Notice of Appeal out of time against the Judgment and Orders of 27th May 2016, by the Court of Appeal in Civil Appeal No. 10 of 2017; and
2
Upon reading the Applicants’ grounds in support of the Application and the Supporting Affidavit sworn on 21st June 2019, by Lither Peter Muia, wherein, the Applicants aver that, the delay in filling the Notice of Appeal was occasioned by their former advocates’ Messers Nzilani Muteti failure to file the same and commence Certification Proceedings at the Court of Appeal, notwithstanding instructions by the Applicants to do so.
3
Upon considering the Applicants’ written submissions dated 18th July 2019, and filed on 19th July 2019, wherein the Applicants restate the grounds and the averments in support of their Application; and further considering the Applicants’ argument to the effect that the delay in filing the Notice of Appeal is solely attributable to their advocates whose dereliction of duty ought not to be visited Upon them; and
4
Upon reading the Respondent’s Grounds of Objection dated 1st July 2019, and Replying Affidavit sworn on even date, in which she opposes the Application, arguing;
i
That the same is incompetent, as it offends the requirements of Rule 241 of this Court’s Rules on Certification;
ii
That the delay of one and half years, since the Court of Appeal rendered its decision, is not only inordinate but also unexplained; and as such, the Court ought not to exercise its discretion in favour of the Applicants; and
5
| Upon considering the Respondent’s written submissions dated 29th July 2019 and filed on 30th July 2019 wherein it is argued that the shifting of the blame for the delay by the Applicants to their advocates is not reason enough to warrant this Court’s exercise of discretion in their favour, as there is no evidence on record, of the purported instructions; and further, that as the Application for extension of time, is intended to pave way for the commencement of Certification Proceedings in the Court of Appeal, the same should have been filed in the Appellate Court;
6
We Find as follows:
a
While we recognize the principle that the mistakes of an advocate, ought not to be visited Upon his client, there is no evidence on record, to show that such instructions, as had been given by the Applicants to their advocates to file a Notice of Appeal were not acted Upon by the latter. Nor is there any communication on record, to back up the claim by the Applicants, to the effect that, their advocates had all along misled them into believing that, Certification Proceedings had been commenced at the Court of Appeal.
b
It is clear to us that the Application for extension of time, is intended to pave the way for the commencement of Certification Proceedings in the Court of Appeal. That being the case, the appropriate forum for determining such an application, is the Appellate Court.
7
Having considered the Application and the Affidavit in support filed in support thereof, and the Grounds of Objection and the Replying Affidavit, in opposition thereto, as well as the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 232b of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
Orders
i
The Application dated June 21, 2019 and filed on June 24, 2019 is hereby dismissed.
ii
The applicants shall bear the costs of this Application.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/87/eng@2019-12-17 |
Application 20 of 2019 | Mwagiru & 2 others v Attorney General & 3 others (Application 20 of 2019) [2019] KESC 86 (KLR) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 17 December 2019 | 2,019 | Nairobi | Civil | Mwagiru & 2 others v Attorney General & 3 others | [2019] KESC 86 (KLR) | null | Upon perusing the Notice of Motion Application dated July 9, 2019, and filed on even date, for extension of time to file an appeal and record of appeal out of time, against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 349 of 2013 delivered on 10th May, 2019, brought under the Provisions of Article 163 4 of the Constitution, Sections 212, 241 of the Supreme Court Act and Rules 21, 23, 26 and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the Applicants’ grounds in support and the Supporting Affidavit, sworn by Rosemary Wanja Mwagiru on 28th September 2018, wherein it is averred, that the delay in filing the appeal and record of appeal in time, was occasioned by the unavailability of certified proceeding from the Court of Appeal, and by the fact that, the applicant’s advocate on record, Dr. Gibson Kamau Kuria, was unwell and admitted to Nairobi Hospital between 29th May 2019 and 25th June 2019; and
3.
Upon reading the 2nd and 3rd Respondents’ Notice of Preliminary Objection dated 16th July 2019, challenging this Court’s jurisdiction to issue the orders sought, on grounds that, the intended appeal, is not one involving the interpretation and application of the Constitution, pursuant to Article 163 4 a of the Constitution, and that the Applicants have not sought Certification, under Article 1634 b of the Constitution; and | Upon considering the Applicants’ written submissions, in support of the Motion filed on 9th July 2019, and the written submissions in opposition to the Preliminary Objection, dated 22nd July 2019, wherein they restate the reasons for the delay, and contend that this court has jurisdiction, to hear and determine the Application; that the intended appeal challenges the Court of Appeal’s interpretation and application of Article 1576 and 10 of the Constitution; and
5.
Upon considering the written submissions by the 2nd and 3rd Respondents dated 29th July 2019, in support of the Preliminary Objection, wherein it is contended that this Court lacks jurisdiction, under Article 1634a of the Constitution to hear and determine the intended appeal, as the same does not involve a question of constitutional interpretation and application; that the High Court and the Court of Appeal did not deal with the interpretation or application of Article 157 6 of the Constitution or any other constitutional provision; that Article 1576 of the Constitution or any other constitutional provisions did not form the basis of the judgment of the Appellate Court; that the Applicants therefore, ought to have sought Certification from the Court of Appeal for this Court to assume jurisdiction; and
6.
Upon considering the written submissions by the 4th Respondent, dated 12th September 2019, in support of the Preliminary Objection, in which it agrees in substance with the 2nd and 3rd Respondents that this Court lacks jurisdiction to entertain the application and the intended appeal; and
7.
Having Considered the questions at the core of the Application viz: whether this Court has jurisdiction under Article 163 4 a, to entertain the intended appeal and whether the applicants herein, have made a compelling case for this Court to exercise discretion to grant the orders for enlargement of time. By a unanimous decision of this Bench, pursuant to the provisions of Article 163 4 a, Sections 212 of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:
a.
While the inability by an applicant, to obtain certified copies from the Court of Appeal in good time, would in ordinary circumstances, be reason enough for the extension of time by this Court, such reason, will not suffice in circumstances where, the intended appeal, is premised Upon Article 163 4 a of the Constitution. In such a scenario, the applicant must satisfy the Court, that his intended appeal, is one involving the interpretation and/or application of the Constitution.
b.
A perusal of the intended appeal, and record thereof, annexed by the Applicants, reveals that neither the High Court, nor Court of Appeal, engaged in any exercise of interpretation or application of Article 1576 and 10 of the Constitution. In keeping with this Court’s decision in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012 [2012] eKLR, we find no basis Upon which the Application for extension of time can be sustained. As clearly enunciated in that case, to successfully invoke the provisions of Article 163 4 a of the Constitution, an appellant must be challenging the interpretation or application of the Constitution, which the Court of Appeal used to dispose of the matter in that forum. Such a party, must be faulting the Court of Appeal, on the basis of such interpretation. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/86/eng@2019-12-17 |
Petition 38 of 2018 | Nuri v Kombe & 2 others (Petition 38 of 2018) [2019] KESC 6 (KLR) (Election Petitions) (17 December 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 17 December 2019 | 2,019 | Nairobi | Election Petition | Nuri v Kombe & 2 others | [2019] KESC 6 (KLR) | null | A. Introduction
1.
The Petition of Appeal before the court is dated October 26, 2018 and lodged on even date. The petitioner seeks to challenge the decision of the Court of Appeal (Ouko, Musinga & Murgor, JJA) sitting in Nairobi, (Election Petition Appeal No 27 of 2018). The Appellate Court in its Judgment of September 21, 2018, dismissed the petitioner’s appeal, and in so doing, while addressing a jurisdictional question, held that it lacked jurisdiction to hear and determine election petition appeals from the High Court, emanating from an election of a Member of a County Assembly (hereinafter, MCA).
B. Background
(i) At the Chief Magistrate’s Court
2.
Following the August 8, 2017 General Elections, the 1st respondent was gazetted as the Amani National Congress Party (2nd respondent herein) nominee to the Tana River County Assembly to fill the gender top up slot. The petitioner was however, aggrieved by the gazettement, contending that, she was the one validly nominated by the party in the gender top up list. Consequently, the petitioner filed a petition in the Chief Magistrate’s Court at Milimani, (Election Petition No 23 of 2017), on September 25, 2017, seeking inter-alia, a declaration that the 1st respondent was not eligible for nomination as MCA, Tana River County Assembly as she was not a registered voter.
3.
In its judgmentdelivered on January 19, 2018, allowing the petition, the Magistrate’s Court found that the 1st respondent was not eligible for nomination as a Member of County Assembly for Tana River County, as she was not a registered voter, and that her nomination as a Member of Tana River County Assembly was invalid, null and void. The Court proceeded to set aside the nomination contained in Gazette Notice No 8380; ordered the 3rd respondent, in not later than 7 days from the date of the Judgment, to gazette the petitioner Hamdia Yaroi Shek Nuri, as among the duly nominated gender top up list members of County Assembly of Tana River County. | E. Analysis
(a) On jurisdiction
19.
The gravamen of the petitioner’s case is that, the Court of Appeal erred, in declining jurisdiction to determine her Appeal, when article 164(3)(a) of the Constitution clearly vests it with jurisdiction to “hear appeals from the High Court”. It is her argument that the Appellate Court placed undue reliance on sections 75(4) and 85 A of the Elections Act, to deny her audience, even in the face of a constitutional provision, which cannot be overridden by a statute. Our understanding of the petitioner’s stance is that, in view of the open-ended language, in article 164(3)(a) of the Constitution, which donates appellate jurisdiction to the Court of Appeal without restrictions, any legislation, the Elections Act included, which purports in any way to limit such jurisdiction, would at best, be of “doubtful constitutional validity” or at worst, “out-rightly unconstitutional”.
20.
Section 75(1A) of the Elections Act provides that “a question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.” Section 75(4) of the said Act, on the other hand, provides that “an Appeal under subsection (1A) shall lie to the High Court on matters of law only…and shall be heard and determined within six months from the date of filing of the appeal.” This section is however silent, as to whether a further appeal lies from the High Court to the Court of Appeal. On its part, Section 85A of the Elections Act provides that “an appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the Office of county governor shall lie to the Court of Appeal on matters of law only and shall be …heard and determined within six months of the filing of the appeal.” Again, no mention is made of any appeal lying to the Court of Appeal in an election petition concerning membership of a county assembly.
21.
It is the petitioner’s contention that the silence in section 75(4) and the non-inclusion in section 85A notwithstanding, a right of appeal still lies to the Court of Appeal from the High Court, in an election petition concerning membership of a county assembly, in view of, the provisions of article 164(3)(a) of the Constitution.
22.
The 1st and 3rd respondents are however of a different view. It is their contention, in agreement with the Court of Appeal, that article 164(3)(a) of the Constitution does not confer a general right of appeal in election disputes. They further argue, that the said article must be read with article 87 of the Constitution, which mandates parliament “to enact legislation to establish mechanisms for the timely settling of electoral disputes. One such legislation, they maintain, is the Elections Act and the regulations made thereunder. There is therefore nothing un-constitutional about sections 75 and 85A of the Elections Act.
(b) Constitutional validity of Sections 75 (4) and 85A of the Elections Act
23.
Any doubts regarding Constitutional validity of section 85A of the Elections Act, to the extent to which it is perceived, as limiting the appellate jurisdiction of the Court of Appeal, contrary to the provisions of article 164(3)(a) of the Constitution, were long dispelled by this Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No 2B of 2014; wherein we affirmed its constitutionality at paragraphs 63-64 thus:
“
By limiting the scope of appeals to the Court of Appeal to matters of law only, section 85A restricts the number, length and cost of petitions and, by so doing, meets Constitutional command in article 87, for timely resolution of electoral disputes.
“Section 85A of the Elections Act is, therefore, neither a legislative accident nor a routine legal prescription. It is a product of a constitutional scheme requiring electoral disputes to be settled in a timely fashion. The section is directed at litigants who may be dissatisfied with the judgment of the High Court in an election petition. To those litigants, it says: ‘Limit your appeals to the Court of Appeal to matters of law only.”
24.
But even more categorical, was this court’s declaration in Fredrick Otieno Outa v Jared Odoyo Okello & 4 others, Supreme Court Petition No 6 of 2014. In submissions reminiscent of those that have been made by the petitioner herein, learned counsel, Mr Issa Mansur, had argued that section 85A was inconsistent with article 163(4)(a) of the Constitution. Counsel took the view that the right to appeal from the High Court to the Court of Appeal, under article 163(4)(a) of the current Constitution cannot be restricted. Counsel urged that, as opposed to the repealed constitution, which conferred appellate jurisdiction pursuant to a specific statute, the current Constitution vests in the Court of Appeal unrestricted powers to consider appeals from the High Court on matters of both law and fact.
25.
In re-affirming the holding in Munya (supra), this court re-stated Constitutionality of section 85A at paragraph 73 thus:
“
This court’s perception of the configuration of the governing electoral law has been clearly signalled in the recent Munya case. From that foundation, we would observe that section 85A manifests Parliament’s intention to regulate the scope of appeals to the Court of Appeal to ‘matters of law only’. We decline, with respect, the 1st respondent’s contention that the provision should be struck out, as an undue limitation on the Court of Appeal’s jurisdiction as conferred by article 164(3)(a) of the Constitution [emphasis added]. We re-affirm our earlier position, that the statutory provision regarding the jurisdiction of the Court of Appeal, and in relation to ‘matters of law only’, is not a limitation to, or a restriction of the Court of Appeal’s jurisdiction under article 164(3)(a). It is our view that the appellate jurisdiction in electoral disputes, is donated not simply by virtue of article 164(3)(a), but also by legislation contemplated under article 105(3) of the Constitution [Emphasis added].”
26.
In view of these clear and unequivocal pronouncements by the Supreme Court, regarding Constitutionality of Section 85A of the Elections Act, the Petitioner’s arguments to the contrary cannot be sustained. However, it can still be assumed that, what the petitioner is questioning in this case, is not the ‘matters of law only’ limb of appellate jurisdiction limitation, but the fact that both sections 85A and 75(4) of the Elections Act, are silent on the question as to whether, election appeals concerning the validity of the election of a member of a county assembly, lie to the Court of Appeal, from the High Court.
27.
In this regard, section 85A only provides for appeals from the High Court to the Court of Appeal in election petitions concerning membership of the National Assembly, Senate, or, the office of countygovernor. Section 75(4) on the other hand, only provides that appeals questioning the validity of the election of a member of county assembly, lie to the High Court from the Magistrate’s Court. The said section makes no provision for a second appeal to the Court of Appeal. Such ‘silence and non-provision’, in the view of the Petitioner, is offensive to the provisions of article 164(3)(a) of the Constitution.
28.
In declining to assume jurisdiction over the Petition at hand, the Court of Appeal took the view that, by remaining silent, as to whether election appeals concerning the validity of the election of a member of county assembly, lie to the Court of Appeal from the High Court, Parliament must have intended, that the High Court, would be the last port of call for such petitions. Such a pre-supposition, reasoned the appellate court, would be in accord with article 87 of the Constitution, which mandates parliament to “enact legislation to establish mechanisms for timely settling of electoral disputes.”
(c) The sui-generis nature of electoral law
29.
This court, in keeping with comparative electoral jurisprudence, has in the past emphasized the fact that, election disputes, though not exempted from constitutional principles and the general law of the land, usually generate a ‘unique law’ of their own. This type of legal regime, while not necessarily “special”, does create normative and procedural divergences that are dictated by the “political nature” of these disputes. Towards this end, the 2010 Constitution has gone to great lengths, in creating a distinct normative and institutional architecture, for the resolution of electoral disputes. In a number of instances, the Constitution has given parliament the latitude, to enact legislation to give full effect to its declared principles, and general provisions regarding elections. In Fred Outa (supra), this development was thus illuminated at paragraph 59:
“
the Constitution of 2010 may, indeed, be seen as the foundation of ‘a regime of electoral law’, which, even though sharing common principles of justice and fairness with normal civil and criminal jurisdictions, bears a new ingredient that is underlined by objects of democracy, good governance, and efficiency of public institutions. This is the context in which article 105 set a foot the process of enacting new electoral legislation, and the making of attendant rules and regulations. This is the context in which we would perceive the specific terms of the Elections Act- in a broad sense, a context of compatibility, rather than of discord.”
30.
Guided by the foregoing philosophical rationalization, it is not difficult to critically advert to such argumentation, as would question Constitutional validity of sections 85A and 75(4) of the Elections Act. In this context, the starting point, in our view, must be article 87 of the Constitution, pursuant to which parliament is majestically charged with the duty of enacting legislation to “establish mechanisms for the timely settling of electoral disputes.” The fact that the Constitution lays a fundamental premium on the need for the expeditious disposal of electoral disputes, is self-evident in the plain language of article 87. The non-negotiability of timelines for the settlement of electoral disputes, is a principle that has repeatedly been decreed by this Court in a long line of cases (Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others Supreme Court Petition No 2B of 2014 [2014] eKLR; Lemanken Aramat v Harun Meitamei Lempaka & 2 Others Supreme Court Petition No 5 of 2014 [2014] eKLR; Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others Supreme Court Petition No 18 of 2014 as consolidated with Petition No 20 of 2014 [2014] eKLR).
31.
It has to be noted that, what article 87 requires parliament to do, is not limited to the enactment of legislation setting “timelines” for the disposition of electoral disputes. The article talks of “mechanisms for the timely” settlement of electoral disputes. As such, the setting of timelines in legislation is just but one of the mechanisms, for the timely settlement of electoral disputes. Other mechanisms, are discernible in the other provisions of the Elections Act, touching upon such other matters, as the form of petitions, manner of service of petitions, the scope of appeals, and in our view, the level of appeals among others.
32.
As long as these “mechanisms” are not inconsistent with, or violative of the provisions of the Constitution, and as long as they are in accord with article 87 of the Constitution, their validity cannot be questioned. In this context, one of the mechanisms for the timely settlement of electoral disputes is by limiting, not the right of appeal, but the scope, and level of appeal, in election petitions. In this regard, section 75(4) of the Elections Act, does not limit the right of appeal emanating from an election petition, concerning the validity of the election of a member of a county assembly. The section in fact preserves the initial right of appeal to the High Court, but falls short of extending it to a second-tier level. To argue that, notwithstanding the non-provision for a second appeal in section 75(4) of the Elections Act, such right of appeal nonetheless subsists under article 164(4)(3)(a) of the Constitution, would be subversive of article 87 of the Constitution. It is worth repeating that the Constitution cannot subvert itself. Indeed, what may appear as a limitation of the jurisdictional reach of article 164(3)(a), of the Constitution, is borne out of article 87 of the same Constitution. The issue may very well be viewed differently, if what is in question, is a purely statutory limitation of appellate jurisdiction. It all depends on the nature and uniqueness of each case. This court has held that, even at the level of the Supreme Court, not all election petition appeals, lie from the Court of Appeal to this court. An intending appellant must satisfy the court, that such an appeal meets the threshold delineated in article 163(4)(a) and (b) of the Constitution.
F. Determination
33.
The foregoing analysis leads us to the conclusion, in agreement with the Court of Appeal, that in the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly. As this determination conclusively disposes of the appeal before us, we shall not consider the second issue.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/6/eng@2019-12-17 |
Petition (Application) 5 of 2018 | Waiguru & another v Karua & 2 others (Petition (Application) 5 of 2018) [2019] KESC 89 (KLR) (17 December 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 17 December 2019 | 2,019 | Nairobi | Election Petition | Waiguru & another v Karua & 2 others | [2019] KESC 89 (KLR) | null | A. Introduction
1
Before the Court is an Application by way of Notice of Motion dated 5th September, 2018 and filed by the 1st Respondent Applicant herein on 6th September, 2018 in Petition No 5 of 2018. The Application is brought under Articles 50 and 159 of the Constitution, Section 3, 14 & 24 Supreme Court Act and Rules 3 of the Supreme Court Rules, 2012 and all other applicable provisions of the law.
2
The application seeks to set aside the orders of the Deputy Registrar of 6th July, 2018 and the subsequent order by a one-judge Bench of this Court Justice Isaac Lenaola, SCJ delivered in Petition No. 5 of 2018 Anne Waiguru & Another v. Martha Wangari Karua & Others, which by consent, withdrew the appellants’ Petition. The Application also seeks directions from this Court on the Notice of Preliminary Objection by the 1st Respondent dated 25th June 2018.
B. Background
3
The Appellants first moved this Court via Petition No. 5 of 2018, dated 29th March 2018 against the Court of Appeal Judgment in Nyeri Election Appeal No. 1 of 2017 delivered on 2nd March, 2018. The Appellate Court had allowed the 1st Respondent’s appeal against a High Court judgment, which had struck out her Petition challenging the election of the 1st Appellant. The Court of Appeal had remitted the Petition to the High Court and ordered the latter to hear it de novo.
4
Aggrieved by the Court of Appeal’s judgment and consequent orders, the Appellants moved to this Court via Petition No. 5 of 2018. The Appellants also sought an Order Staying the judgment of the Appellate Court pending the determination of their Petition. In support of their application for Stay, the Appellants argued that the High lacked jurisdiction to hear the Petition de novo in view of the express provisions of Section 75 2 of the Election Act as read with Article 87 1 of the Constitution. The 1st Respondent raised a Preliminary Objection to the Petition arguing that the Appellants had lost interest in prosecuting the Petition, having failed to comply with the directions of the Deputy Registrar. The 1st Respondent also argued that the Appeal would be in vain as the dispute had already been remitted to High Court for hearing.
5
In a Ruling delivered on 28th March, 2018 and on the basis of the reasons stated therein, this Court dismissed the Application for Stay with no orders as to costs as the same were to abide the Cause.
6
As per the Record, the Parties to this Application attended court for mentions to determine compliance, before the Hon Deputy Registrar of this Court on 30th April 2018, 4th July 2018, and 6th July, 2018. On 6th July 2018, the Parties ‘by Consent’ agreed to withdraw the Petition of Appeal No. 5 of 2018. The Consent to withdraw was recorded by the Deputy Registrar and subsequently adopted as this Court’s Judgment by Justice Isaac Lenaola SCJ.
7
It is this Consent of withdrawal as adopted by this Court that the 1st Respondent Applicant herein now seeks to set aside. | C. Issues For Determination
11
Three issues arise for determination, namely:
i
Whether a case has been made to justify the setting aside of the Orders of 6th July, 2018,
ii
What is the effect if any of the Notice of Preliminary Objection?
ii
What provision should be made for Costs?
D. Determination
Whether a case has been made to justify the setting aside of the Consent Judgment
12
At the outset, we take cognizance of the fact that Mr Kathungu for the appellants has unequivocally admitted that he had no instructions to hold brief for Mr Gitobu Imanyara, counsel for the 1st Respondent the Applicant herein. Mr. Kathangu states that he indeed informed the Deputy Registrar that he was on record for the 1st Respondent but states that, this statement was in error. The 1st Respondent on the other hand contends that the consent judgment was procured by fraudulent misrepresentation perpetrated by counsel for the appellants, and condoned by the latter.
13
In view of the admission by counsel for the Appellants to the effect that, he had no instructions to hold brief for Mr. Imanyara, and in view of his averment that his statement was occasioned by human error, it is clear to us that there could not have been any consent without the participation and acknowledgment of the 1st Respondent or her Advocate. Had these facts been brought to the attention of the learned Judge Lenaola SCJ, we have no doubt that he would not have adopted the ‘Non-Consent’ as a judgment of the Court. Had counsel for the 1st Respondent attended Court on 6th July 2018, he would definitely have objected to the said consent. We are not however in a position to determine whether the consent was procured fraudulently. There is not much on record to aid us in arriving at such a determination with the potential, of very grave consequences for counsel. In the circumstances, we have no difficulty in setting aside the consent judgment as prayed by the 1st Respondent.
What is the effect of the Notice of Preliminary Objection?
14
By a Ruling of this Court, the application for stay of the Court of Appeal’s judgment was dismissed. As a consequence of the dismissal, the matter was heard afresh by the High Court as ordered by the Appellate Court. The Appellants never prosecuted their Petition of Appeal in the Supreme Court, but instead went through the motions of litigation occasioned by the Court of Appeal’s judgment. They would later urge their case before this Court, but this time, not as Appellants but Respondents. The rest of what transpired is on record. The Preliminary Objection was never determined in view of the fact that, it had been triggered by Petition of Appeal No. 5, which itself as already noted, was never prosecuted. In reality therefore, Petition No. 5 of 2018 was abandoned thus rendering the Preliminary Objection spent.
What Orders are to be made with regard to costs?
15
It is a trite principle that Costs follow the event. However, this Court has on a number of occasions had to exercise its discretion so as not to be rigidly fettered by this principle. In this matter, the consent judgment which we have concluded must be set aside, was occasioned by the acts and omissions of Counsel for the Appellants. Although the said acts and omissions may not have been fraudulent, they are inexcusable. As a consequence, the Appellants must be condemned in Costs.
16.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/89/eng@2019-12-17 |
Petition 12 of 2016 | Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) (6 December 2019) (Judgment) (with dissent - DK Maraga, CJ & P) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 6 December 2019 | 2,019 | Nairobi | Civil | Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch | [2019] KESC 11 (KLR) | null | A. Introduction
1.
The present appeal arises from a Ruling of the Court of Appeal (Karanja, M’inoti, Mwera, Mohamed and Musinga JJ A) which had dismissed an appeal against the decision of the High Court in Nyutu Agrovet Ltd v Airtel Network Kenya Ltd Nairobi HCCC No 350 of 2009. The Court of Appeal in its Ruling had found that there is no right of appeal to that court following a decision made under section 35 of the Arbitration Act 1995 (the Act), and so struck out the entire appeal to it. Certification of leave to appeal to this court was thereafter granted in terms of article 163(4)(b) of the Constitution. A Petition of appeal dated July 15, 2016 was thereafter filed seeking to overturn the decision of the Court of Appeal.
B. Background
2.
This matter concerns the setting aside by the High Court (Kimondo J) of an arbitration award granted in favour of the respondent, Airtel Networks Kenya Ltd (Airtel), following a commercial dispute between it and the petitioner, Nyutu Agrovet Limited (Nyutu). The parties had entered into a distribution agreement on December 20, 2007in terms of which Nyutu was contracted to distribute various telephone handsets on behalf of Airtel. The dispute arose when an agent of Nyutu, one George Chunga, placed orders for Airtel’s products totalling Kshs 11 million for which Airtel made payment. Upon delivery, Airtel realised that the orders were made fraudulently. Nyutu had also failed to pay the said amount and the agreement between the parties was thus terminated and a dispute in that regard arose.
3.
By agreement, on August 24, 2009, the parties appointed Mr Fred ON Ojiambo, SC, as the Sole Arbitrator in their dispute. It was expressly stated in the letter of appointment of the Arbitrator that the Arbitrator was to adjudicate on “any dispute or claim arising out of or relating to the contract and/or alleged breach thereof.” Upon conclusion of the arbitration hearing, the Arbitrator, on February 17, 2011, delivered an award of Kshs 541,005,922.81 in favour of Nyutu; the bulk of which was awarded under the heading “tort of negligence”. It is this award that Airtel sought to set aside in the High Court and forms the basis of the subsequent appeals.
4.
At the High Court, Airtel had filed an application under section 35 of the Act seeking to set aside the award in its entirety Kimondo J, in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd (supra), had to decide inter alia whether the arbitral award had dealt with a dispute not contemplated by the parties; whether it had dealt with a dispute outside the terms of reference to arbitration and whether the said award was in conflict with public policy. The entire arbitral award was then set aside purely on the ground that the award contained decisions on matters outside the distributorship agreement, the terms of reference to arbitration or the contemplation of the parties and for other reasons and deliberations contained in the learned Judge’s Ruling.
5.
Immediately after delivery of the High Court decision, Nyutu orally sought leave to appeal to the Court of Appeal, which application was opposed by Airtel on the basis that no right of appeal existed in relation to a decision made under Section 35 of the Act. Despite the objection, the High Court granted Nyutu leave to appeal, noting that “it will be a matter for the appellate court to determine whether the journey was a false start.”
6
Nyutu thereafter filed an appeal on April 2, 2012 to which Airtel responded with an application dated May 3, 2012 seeking to strike out the record of appeal. A five judge bench was constituted to hear the application in Nyutu Agrovet Limited v Airtel Networks Kenya Limited Civil Appeal No 61 of 2012. In a ruling delivered on March 6, 2015, the Court of Appeal allowed the application. It unanimously held that the decision by the High Court made under section 35 of the Act was final and no appeal lay to the Court of Appeal; thus striking out the appeal and awarding costs to Airtel.
7.
Aggrieved by the finding of the Court of Appeal, Nyutu filed the present appeal. The Petition was later certified under article 163(4)(b) of the Constitution as raising a matter of general public importance. The question for determination as framed by the Court was whether there is any right of appeal to the Court of Appeal upon a determination by the High Court under section 35 of the Act. Nyutu in that regard seeks the following orders from this Court:
(a)
The appeal be allowed with costs.
(b)
Return a finding of law that a party has a right of appeal from the High Court to the Court of Appeal on a ruling/decision arising out of an application made under the provisions of section 35 of the Arbitration Act.
(c)
Setting aside the order of the Court of Appeal delivered on the March 6, 2015 in its entirety and substituting it with (i) an order dismissing the notice of motion applicationdated May 3, 2012 with costs to the petitioner and (ii) an order reinstating Civil Appeal No 61 of 2012 Nyutu Agrovet Limited v Airtel Networks Kenya Limited. | E. Analysis
(a) Whether sections 10 and 35 of the Act contravene a party’s right to access justice under articles 48, 50(1) and 164(3) of the Constitution?
30.
Nyutu urges that article 164(3) of the Constitution gives the Court of Appeal unfettered powers to assume jurisdiction on all appeals arising from the decisions of the High Court. Accordingly, that any statute which deprives the Court of Appeal jurisdiction to hear appeals from the High Court, offends article 164(3) and is unconstitutional. Nyutu further submits that, unlike the jurisdiction of the Supreme Court as provided for, under article 163(4), no constraints or conditions are placed on the Court of Appeal in hearing appeals from the High Court. It is thus urged that placing restrictions on a litigant who seeks to appeal to the Court of Appeal fetters the right of access to justice under article 48 of the Constitution and by extension, article 50(1).
31.
In response to Nyutu’s case in this regard, Airtel urges that a right of appeal must be expressly provided for either in the Constitution or a statute. Thus, it is also urged that the Court of Appeal’s jurisdiction to hear and determine appeals from the High Court under article 164(3) does not entitle every party to file an appeal where such a right is absent. That further, the restrictions placed in denying a right of appeal in arbitration matters are reasonable and justifiable in an open and democratic society. Airtel concludes by relying on the decision of Jasbir Singh Rai and 2 others v Tarlochan Singh Rai and 4 others 2007 eKLR to urge the position that all litigation must at some point come to an end and the present dispute thus ended at the High Court.
32.
Certainly, these submissions raise a critical question on whether there exists a right of appeal under article 164(3) of the Constitution and if in the affirmative, whether any limitation to such a right hinders the right of access to justice. As properly submitted, article 164(3) provides the jurisdiction of the Court of Appeal in the following words:
The Court of Appeal has Jurisdiction to hear appeals from?
(a)
The High Court; and
(b)
Any other court or tribunal as prescribed by an Act of Parliament” Emphasis added
33.
What exactly does the term “jurisdiction” mean? In Republic v Karisa Chengo & 2 others SC Petition No 5 of 2015; 2017 eKLR, we defined jurisdiction as the “the Court’s power to entertain, hear and determine a dispute before it.” Also, “the sphere of the courts operations.” Is jurisdiction therefore synonymous with a right of appeal? In other words, does article 164(3) grant a litigant a right of appeal to the Court of Appeal? Nyutu urges that article 164(3) indeed grants such a right of appeal. We disagree. As urged by Airtel, this provision does not confer a right of appeal to any litigant. It only particularises the confines of the powers of the Court of Appeal by delimiting the extent to which a litigant can approach it. In this case, the appellate court only has powers to hear matters arising from the High Court or any other defined Court or Tribunal. There is thus no direct access to the Court of Appeal by all and sundry. As such, article 164(3) defines the extent of the powers of the Court of Appeal but does not grant a litigant an unfettered access to the Court of Appeal.
34.
With regard to a right of appeal, our position is that such right can either be conferred by the Constitution or a Statute. For example, under article 50(2)(q), a person who has been convicted of a criminal offence has a right to appeal or apply for review to a higher court as prescribed by the law. Further, with regard to disqualification from being a Member of Parliament or County Assembly (articles 99(3) and 199(3), respectively), a person is not disqualified until all possibilities of appeal or review of the relevant sentence or decision have been exhausted. Our statutes have also provided for circumstances when an appeal may be specifically preferred to the Court of Appeal or any other court. For example, section 39(3) of the Arbitration Act provides circumstances when an appeal may lie to the Court of Appeal.
35.
Even more crisply, the Appellate Jurisdiction Act, cap 9, captures our position that a right of appeal is not automatic but rather is a creation of the law. Section 3(1) thereof provides that:
The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and any other Court or Tribunal prescribed by an Act of Parliament in cases in which an appeal lies to the Court of Appeal under law.” Emphasis added.
36.
By this provision therefore, jurisdiction and the right of appeal are clearly delineated to the extent that jurisdiction is only excised where the right of appeal exists. We also note that this same issue was canvassed before the Court of Appeal in this matter and Mwera JA had this to say on it:
I do not agree that article 164(3) of the Constitution, section 3(1) of the Appellate Jurisdiction Act and even section 75 of the Civil Procedure Act, giving this Court jurisdiction to hear appeals from the High Court, should be read to mean that these provisions of law also confer the right of appeal on the litigants. … This Court has jurisdiction to hear any matters coming on appeal from the High Court and any other court or tribunal prescribed by law. But a party who desires his appeal to be heard here has a duty to demonstrate under what law that right to be heard is conferred, or if not, show that leave has been granted to lodge the appeal before us. However, be it appreciated that such leave does not constitute the right to appeal (sic). The right must precede leave.”
37.
We completely agree with the above reasoning by the Court of Appeal but we also note that Nyutu has urged the point that limiting a party’s right to appeal to the Court of Appeal fetters the right of access to justice under article 48 and fair hearing under article 50(1) of the Constitution. While we recognise that access to justice is an important principle in the administration of justice and is wide and long in its many dimensions, in the case of Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) Ltd High Court Constitutional Petition No 328 of 2011 2012 eKLR, Majanja J succinctly identified some of the components of access to justice as follows:
[110] “Access to justice is a broad concept that defies easy definition. It includes the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to one’s rights; equal right to the protection of those rights by the law enforcement agencies; easy access to the justice system particularly the formal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay.”
38.
Further, in Kenya Bus Service Ltd & another v Minister for Transport & 2 others 2012 eKLR, it was emphasized that “the right of access to justice protected by the Constitution involves the right of ordinary citizens being able to access remedies and relief from the courts.”
39.
This courtalso elaborated on the confines of access to justice in the case of Francis Karioko Muruatetu & another v Republic SC Petition No 15 of 2015; 2017 eKLR, where we stated:
“
[57] Thus, with regards to access to justice and fair hearing, the State through the courts, ensures that all persons are able to ventilate their disputes. Access to justice includes the right to a fair trial. If a trial is unfair, one cannot be said to have accessed justice. In this respect, when a murder convict's sentence cannot be reviewed by a higher court, he is denied access to justice which cannot be justified in light of article 48 of the Constitution.”
40.
Nyutu has in the above context submitted that denial of a right to appeal fetters on the right to access justice. While we appreciate that unhindered access to courts is one of the key components of access to justice, we do not think that statutory limitations on appeals necessarily infringe on that right. Each case must be evaluated on its own circumstances. That is why even where a right of appeal exists, depending on the circumstances of the case, Courts may still exercise their discretion by refusing to assume jurisdiction. In this case, Nyutu started on the wrong footing by assuming that there exists an unhindered right of appeal. We have shown why that is not so. Indeed, this matter was first heard by a Sole Arbitrator and later by the High Court in exercise of its jurisdiction under Section 35. The conduct of proceedings therein has not been impugned. We have also not been informed of any difficulties experienced by either of the parties in pursuing justice. Nyutu’s claim of denial of a right to access justice solely rests on its desire to prefer a further appeal which matter is the fulcrum of the present appeal. In the circumstances, we do not find a proper basis for finding that there is denial of access to justice and thus we reject the plea to declare sections 10 and 35 of the Arbitration Act unconstitutional. In stating so, we shall only add that the issue of unconstitutionality of the two sections was raised for the first time in this court, an approach we have consistently frowned upon.
| null | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/11/eng@2019-12-06 |
Petition 2 of 2017 | Synergy Industrial Credit Limited v Cape Holdings Limited (Petition 2 of 2017) [2019] KESC 12 (KLR) (6 December 2019) (Judgment) (with dissent - DK Maraga, CJ & P) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 6 December 2019 | 2,019 | Nairobi | Civil | Synergy Industrial Credit Limited v Cape Holdings Limited | [2019] KESC 12 (KLR) | null | Brief facts
The parties before the court entered into a partly oral and partly written sale agreement approximately 10 years, whereby the petitioner offered to purchase office blocks and parking spaces from the respondent. Later on, a dispute arose and according to the terms of the agreement, a sole arbitrator was to be appointed to resolve it. By the time the dispute arose, the petitioner had disbursed a significant amount of money to the respondent, even though the office blocks and parking spaces were still undergoing construction.
By an award dated January 30, 2015, the arbitrator ordered the respondent to pay the petitioner a sum of Kshs 1,666,118,183.00 being the amount of money advanced to the respondent, accruing interest, loss of income opportunity, exchange fluctuations and costs. Dissatisfied by the award, the respondent filed an application at the High Court under section 35(1), 5(2)(a)(iv) and (b)(i) and (ii) of the Arbitration Act (the Act) seeking to set aside the award. The petitioner on its part filed an application at the High Court seeking to enforce the award.
Upon considering the matter, the High Court by a ruling found that all the issues addressed by the arbitrator fell outside the scope of the reference of the arbitrator and so it set aside the award in its entirety and dismissed the petitioner’s application for the enforcement of the award. Dissatisfied by the High Court decision, the petitioner filed an appeal at the Court of Appeal. In response, the respondent sought to strike out the petitioner’s notice of appeal as well as the record of appeal on the grounds that there was no right of appeal from a decision of the High Court arising under sections 10, 35, 36 and 37 of the Act.
The Court of Appeal upheld the respondent’s application and struck out the notice of appeal and the record of appeal. It specifically held that save for what was provided in section 39 of the Act, there was no right of appeal from decisions of the High Court made pursuant to section 35 of the Act. Aggrieved by that finding, the petitioner filed the instant petition of appeal.
Issues
Whether there was a right of appeal against a High Court decision for an application for the setting aside of an arbitral award under section 35 of the Arbitration Act
Whether article 164(3) of the Constitution on the jurisdiction of the Court of Appeal to hear appeals from the High Court and any other court or tribunal provided for a right of appeal applicable to decisions of the High Court made under section 35 of the Arbitration Act.
What was the scope of the principle of finality in arbitration? | E. Analysis
(i) Whether there is a right of appeal to the Court of Appeal following a decision by the High Court under section 35 of the Arbitration Act?
30.
At the heart of this dispute is the question of the proper relationship between arbitration and the Courts. The parties herein thus seek an interpretation of section 35 of the Arbitration Act which expressly gives an aggrieved party the opportunity to approach the High Court to set aside an arbitral award. The contention before us is whether such a decision by the High Court is subject to the appellate jurisdiction of the Court of Appeal. In this case, the High Court set aside the arbitral award in its entirety primarily on grounds that the Arbitrator had acted in excess of his jurisdiction and that part of the award was against public policy. When the Petitioner sought to appeal that decision, the Court of Appeal struck out the Notice and Record of Appeal on the grounds that it had no jurisdiction on a matter arising from a decision of the High Court made under section 35 of the Arbitration Act.
31.
With the above background in mind, the Petitioner urges and admits that section 35 is silent on whether a decision of the High Court can be appealed to the Court of Appeal. However, the petitioner also takes the position that in the absence of an express bar, such decisions should be appealable to the Court of Appeal because article 164(3) of the Constitution confers upon the Court of Appeal unlimited jurisdiction to hear all appeals from the High Court. It was further urged that where the Arbitration Act required a certain decision of the High Court to be final, it expressly stated so which language is not existent in section 35 aforesaid. Thus, the petitioner faults the Court of Appeal for finding that a right of appeal must always originate from a specific statutory provision. Such a finding, it was urged, is against the spirit and tenor of the Constitution and amounts to a denial of the right to access justice.
32.
the respondent on its part, was emphatic that the Court of Appeal lacks jurisdiction to intervene in decisions arising from section 35 of the Arbitration Act. In that regard, it was urged that where the arbitration law requires the Court of Appeal’s intervention, it explicitly states so, a position not obtaining in section 35. In urging so, the respondent referred to section 39 of the Arbitration Act which specifically provides that the Court of Appeal may determine appeals arising from a High Court decision made under that section. It was also urged that the nature of arbitration law is to minimize courts’ intervention in the settlement of commercial disputes where parties have willingly chosen to settle such disputes through arbitration.
33.
Further, citing the Hansard report of the National Assembly at the debate on the Arbitration Act, 1995 it was submitted that the purpose of the Arbitration Act was to provide only a limited avenue for court’s intervention. It was also urged that even the UNCITRAL Model Law which inspired the enactment of the Act discourages Court’s intervention. Thus, in accordance with the Constitution, Kenya is bound by all international laws which it has ratified, and as such the UNCITRAL Model Law is now part of the Laws of Kenya and ought to be interpreted as such.
34.
With regard to the petitioner’s contention that there is an unlimited right of appeal under article 164(3), it was submitted that the said provision must be read together with article 159(2)(c) which requires all courts and Tribunals to promote alternative dispute resolution mechanisms such as arbitration. As such, it was urged that arbitration is a constitutionally recognised mechanism for solving disputes.
35.
In the above context, we shall now proceed to interrogate the jurisprudence of the Court of Appeal on the subject at hand.
a. Relevant Decisions of the Court of Appeal
36.
We are aware that there are several conflicting decisions emanating from different benches of the Court of Appeal on this issue. Hence, for a proper determination of the same, it is important to analyse some of those decisions in order to have a proper understanding of the Court of Appeal’s reasoning in each of those cases. To begin with, in the present case, the Court of Appeal held that save for what is provided in section 39, there is no right of appeal from decisions of the High Court made pursuant to the Arbitration Act and specifically section 35 thereof. In holding so, it reasoned that if Parliament had intended to confer the Court of Appeal with jurisdiction to entertain appeals under section 35, it would have specifically stated so.
37.
Similarly, in the case of Anne Mumbi Hinga v Victoria Njoki Gathara Civil Appeal No 8 of 2009; [2009] eKLR, the Court of Appeal held that appeals would only lie to the Court of Appeal in accordance with the circumstances set out in section 39. The same position was taken by the Appellate Court in the case of Micro-House Technologies Limited v Co-operative College of Kenya Civil Appeal No 228 of 2014; [2017] eKLR.
38.
Furthermore, in Nyutu Agrovet Limited v Airtel Networks Limited Civil Appeal (Application) No 61 of 2012; [2015] eKLR, the Court of Appeal held that it had no jurisdiction to entertain any appeal arising from section 35 aforesaid. In holding so, Mwera JA expressed himself thus:
“
My view is that the principle on which arbitration is founded, namely that the parties agree on their own, to take disputes between or among them from the courts, for determination by a body put forth by themselves, and adding to all that as in this case, that the arbitrator’s award shall be final, it can be taken that as long as the given award subsists it is theirs. But in the event it is set aside as was the case here, that decision of the High Court final remains their own (sic). None of the parties can take steps to go on appeal against the setting aside ruling. It is final and the parties who so agreed must live with it unless, of course, they agree to go for fresh arbitration. The High Court decision is final and must be considered and respected to be so because the parties voluntarily chose it to be so. They put that in their agreement. They desired limited participation by the courts in their affairs and that has been achieved.”
39.
He went on to state:
“
I do not agree that article 164(3) of the Constitution, section 3(1) of the Appellate Jurisdiction Act and even section 75 of the Civil Procedure Act, giving this court jurisdiction to hear appeals from the High Court, should be read to mean that these provisions of law also confer the right of appeal on the litigants. … this court has jurisdiction to hear any matters coming on appeal from the High Court and any other court or tribunal prescribed by law. But a party who desires his appeal to be heard here has a duty to demonstrate under what law that right to be heard is conferred, or if not, show that leave has been granted to lodge the appeal before us. However, be it appreciated that such leave does not constitute the right to appeal (sic). The right must precede leave.”
40.
Unlike in the above cases, in the earlier case of Kenya Shell Limited v Kobil Petroleum Limited, Civil Application No 57 of 2006 (unreported), (Kenya Shell) Omolo JA had been of a different view. In holding that the Court of Appeal had jurisdiction, he noted thus:
“
[T]he provisions of section 35 of the Arbitration Act have not taken away the jurisdiction of either the High Court or the Court of Appeal to grant leave to appeal from a decision of the High Court made under that section. If that was the intention, there was nothing to stop Parliament from specifically providing in section 35 that there shall be no appeal from a decision made by the High Court under that section.”
41.
In the same case, Onyango Otieno JA while dissenting, expressed himself as follows:
“
The use of the words “ Notwithstanding sections 10 and 35” to me means that this provision in section 39(3) is meant by the legislature to provide an exception to the provision of section 10 that no Court should interfere in matters governed by the Act and as to section 35 the phrase is used to indicate that the decision of the superior court on application for setting aside can only be challenged in the Court of Appeal by way of an appeal if conditions in section 39(3) are satisfied…Thus in my view, other than as provided under section 39(3), this court would have no direct jurisdiction donated by the Arbitration Act No 4 of 1995 to entertain an appeal from an award given under the Act.” [Emphasis added.]
42.
Just like the majority in Kenya Shell (supra), in the case of DHL Excel Supply Chain Kenya Limited v Tilton Investments Limited Civil Application No NAI 302 of 2015; [2017] eKLR, the Court of Appeal held that it had jurisdiction to entertain an appeal under section 35. In that case, the applicant had made an application to the Court of Appeal under section 39(3)(b) of the Arbitration Act seeking to appeal a decision of the High Court made under section 35. the respondent on its part contended that no appeal lay against decisions made under section 35 and in resolving the controversy at paragraph 24, the Court of Appeal rendered itself thus:
“
In our view, the fact that section 35 of the Act is silent on whether such a decision is appealable to this court by itself does not bar the right of appeal. The section grants the High Court jurisdiction to intervene in arbitral proceedings wherein it is invoked. It follows therefore that the decision thereunder is appealable to this court by virtue of the Constitution.”
43.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/12/eng@2019-12-06 |
Petition 4 of 2019 | Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR) (3 December 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 3 December 2019 | 2,019 | Nairobi | Civil | Law Society of Kenya v Attorney General & another | [2019] KESC 16 (KLR) | null | A. Introduction
1.
This Petition of appeal is dated February 1, 2019 and was filed on February 4, 2019. The petitioners in this matter, the Law Society of Kenya (LSK), have appealed under article 163(4)(a) of the Constitution, challenging the decision of the Court of Appeal (Waki, Makhandia & Ouko JJA) dated November 17, 2017 in Civil Appeal No 133 of 2011. The Court of Appeal in its Judgment, had reversed the order of the High Court that had declared sections 4; 7(1) and (2); 10(4); 16; 21(1); 23(1); 25(1) and (3); 52(1) and (2) and 58(2) of the Work Injuries Benefit Act 2007 (the Act) null and void, as they contravened certain sections of the former Constitution.
B.Background
2.
Pursuant to Gazette Notice No 3204 of May 16, 2001, the Attorney General (AG) appointed a seven member Task Force to examine and review all labour laws and make recommendations for appropriate legislative intervention to replace or amend existing laws. The Task Force submitted a report that formed the basis of the enactment of the Work Injuries Benefits Act 2007 (WIBA) which came into force on June 2, 2008 by Gazette Notice No 60 of May 23, 2008.
| E. Analysis
(i) Unconstitutionality of statutory provisions
36.
Before determining the above issues, we consider it pertinent to restate the approach that every court should take when determining the question whether any statutory provision is unconstitutional or not. It is alleged in the Petition of Appeal that the cited provisions of WIBA should be struck off for being in violation of the former and present Constitutions. In addressing that issue, it must always be borne in mind that the Legislature’s primary constitutional mandate is the making of laws. Those laws set the ultimate direction of all activities in a State and the actions of all persons. Thus, there exists principles that underline the determination of constitutional validity of a statute, or its provisions because it is the function of the courts to test ordinary legislation against the governing yardstick: the Constitution.
37.
At the forefront of these principles is a general but rebuttable presumption that a statutory provision is consistent with the Constitution. The party that alleges inconsistency has the burden of proving such a contention. In construing whether statutory provisions offend the Constitution, courts must therefore subject the same to an objective inquiry as to whether they conform with the Constitution. That is why in Hamdarddawa Khana v Union of India and Others 1960 AIR 554 it was stated thus;
“
Another principle which has to borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment.”
38.
In addition to the above, and to fully comprehend whether a statutory provision is unconstitutional or not, its true essence must also be considered. This gives rise to the second principle which is the determination of the purpose and effect of such a statutory provision. In other words, what is the provision directed or aimed at? Can the intention of the drafters be discerned with clarity? These were our sentiments expressed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No 26 of 2014 [2014] eKLR, where we opined that a purposive interpretation should be given to statutes so as to reveal the intention of the Legislature and the Statute itself. We thus observed as follows:
“
In Pepper v Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the court is not to be held captive to such phraseology. Where the court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:
“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous, I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
39.
Therefore intention is construed by scrutinising the language used in the provision which inevitably discloses its purpose and effect. It is the task of a court to give a literal meaning to the words used and the language of the provision must be taken as conclusive unless there is an expressed legislative intention to the contrary.
These sentiments were also expressed by the court of Appeal while analysing how to determine the intention of a statute, in County Government of Nyeri & Anor v Cecilia Wangechi Ndungu [2015] eKLR where the learned judges held thus:
“
Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”
40.
All the principles above were well expressed in The Queen v Big M Drug mart Ltd, 1986 LRC (Const) 332, where the Supreme Court of Canada noted:
“
Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. The object is realized through impact produced by the operation and applications of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and ultimate impact, are clearly limited, but indivisible. Intended and achieved effect have been looked to for guidance in ascertaining the legislation’s object and thus validity.”
41.
On interpretation, specifically of a statute or even the Constitution itself, the Supreme Court of India in Reserve Bank of India v Peerless General Finance and Investment Co Ltd {1987} 1 SCC 424 and others observed that: -
“
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”
42.
In addition to the above we also note that our Court of Appeal, in Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others, Civil Appeal No 74 and 82 of 2012, observed that in determining whether a statute is consistent with the Constitution, a court must determine the object and purpose of the impugned Act and this can be discerned from the intention expressed in the Act itself.
43.
In searching for the purpose, therefore, it is also legitimate to seek to identify the mischief sought to be remedied. The historical background of the legislation is one of the factors to consider in that regard and this allows the provision (s) to be understood within the context of the grid of other related provisions and of the Constitution as a whole. In this light, it is necessary to reflect on WIBA; how it came into being and its purpose.
44.
WIBA defines itself as an Act of Parliament to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. In addition, a glimpse at the history of the Act would help us to further understand its purpose.
45.
In May 2001, a Taskforce to review all Labour Laws was appointed by the Attorney General vide Gazette Notice No 3204. The tripartite Taskforce, comprised of members from the Government, the trade unions the Central Organisation (COTU) and the employers’ organization; Kenya Federation of Kenya Employers (FKE). The terms of reference for the Taskforce were:
a)
To examine and review all the labour laws including the Employment Act (Cap 226); the Regulation of Wages and Conditions of Employment Act (cap 229); the Trade Unions Act (cap 233), the Trade Disputes Act (cap 234), the Workmen’s Compensation Act (cap 236),the Factories Act (cap 514) and make recommendations for appropriate legislation to replace or amend any of the labour law statutes;
b)
To make recommendations on proposals for reform or amendment of labour laws to ensure that they are consistent with the Conventions and Recommendations of the International Labour Organisation to which Kenya is a party; and
c)
To make recommendations on such other matters related to or incidental to the foregoing.
46.
The major points of concern addressed by the Taskforce relevant to this matter were: The merging and redrafting of the different relevant Acts in order to produce a user-friendly and comprehensive labour legislation for the benefit of the people; the introduction of an Industrial Court of Appeal to overcome the contradicting jurisdiction between the High Court and the Industrial Court; the setting up of an administration system to promote involvement and democratic participation of the social partners (role of the Labour Advisory Board, possible involvement of civil society concerned in specific fields, etc.); review of possible limitations of excessive powers and influence by the Minister for Labour in industrial relations and the creation of an efficient labour administration system capable of effectively enforcing the laws.
47.
The taskforce proposed five new statutes, one being the Work Injury Benefits Act (WIBA). This Act was to provide for compensation to employees for injuries suffered and occupational diseases contracted in the course of employment. Until the enactment of the WIBA, the Workmen’s Compensation Act cap 236 (Repealed) was the only Act of Parliament enacted to provide for compensation for injuries suffered by a worker in the course of his/her employment.
48.
The Work Injury Benefits Act (WIBA) also sought to provide for insurance of employees and related matters. It further incorporated the 1998 International Labour Organisation Declaration on Fundamental Principles and Right at Work ensuring basic human values vital to our social and economic development.
49.
The International Labour Organisation’s Policy document, Occupation, safety and health profiles in Kenya (October 1, 2004), also lent insight as to what WIBA was meant to achieve. A snippet is reproduced below:
“
Agencies responsible for administration
• The Ministry of Labour and Human Resource Development is responsible for the administration of the workmen compensation services through Labour department.
• However, with the recent review of the core Labour Laws, workmen’s compensation Act will be referred as Work Injury Benefit Act (WIBA) and will be administered by the Director of Directorate of Occupational Health and Safety Services (DOHSS) in the same Ministry.
• With this new arrangement the reporting of work injuries and accidents will be well captured in the most relevant department already charged with the responsibility of prevention of occupational accidents and diseases.
• The data collected will enable the officers concerned to institute investigation and hence hasten remedial measures to avoid further occurrence of the same.” (emphasis added)
50.
While the repealed Workmen’s Compensation Act (cap 236) only provided for compensation to workmen for injuries suffered in the course of their employment, WIBAprovides for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. WIBA also goes further and makes it compulsory for every employer to provide an insurance cover for all their employees against bodily injury, disease or death sustained and arising out of and in the course of their employment.
51.
It is therefore evident that WIBA’s purpose is a noble one. It is meant to offer protection to employees should they get injured or contract disease in the course of their duties. In addition, its reach is far wider than its predecessor; the Workmen’s Compensation Act cap 236.
52.
It is against this background that we now consider whether the petitioner has a valid case on the alleged unconstitutional statutory provisions of WIBA. For clarity, we shall determine the alleged unconstitutionality related provisions as delineated here below. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/16/eng@2019-12-03 |
Civil Application 18 of 2019 | Beth Muthoni Njau & Eddie Njau v City Finance Bank Limited (Civil Application 18 of 2019) [2019] KESC 10 (KLR) (Civ) (29 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 29 November 2019 | 2,019 | Nairobi | Civil | Beth Muthoni Njau & Eddie Njau v City Finance Bank Limited | [2019] KESC 10 (KLR) | null | Upon perusing the Notice of Motion application by the Applicants dated 7th June 2019 and filed on 10th June 2019 brought under Sections 3 and 31(d) of the Supreme Court Act as well as Rules 3, 26 and 53 of the Supreme Court Rules, 2012 seeking an extension of time to file an appeal out of time against the Ruling and Orders of the Court of Appeal in Nairobi Civil (Application) No.271 of 2010; and;
(2)
Upon reading the Applicant’s grounds in support of the Application together with the Supporting Affidavit of Beth Muthoni Njau sworn on 7th June 2019 and;
(3)
Upon considering the Applicant’s written submissions dated and filed on 28th June 2019 wherein the Applicants urge that they are seeking an extension of time to file an appeal against a Ruling delivered by the Court of Appeal on 9th November 2019; and that the delay in filing it was occasioned by the Court of Appeal’s failure to supply the relevant Judges’ notes until 8th May 2019, and that therefore the delay in filing an appeal on time is excusable and the grant of the orders sought will cause no prejudice to the Respondents and;
(4)
Upon reading the Respondent’s Replying Affidavit sworn and filed on 11th October 2019 in which it opposed the Application arguing that the same is totally misconceived as the intended appeal is neither one that raises constitutional questions for determination by this Court under Article 163(4)(a) of the Constitution nor was it certified as being one of general public importance under Article 163(4)(b) thereof, and;
(5)
Further, the Respondent having contended that the substantive appeal of the Court of Appeal, in which all contested issues were determined, has not been appealed from that but the intended appeal relates to a Ruling declining review of that Judgment and that therefore there is no basis for this Court to seize the intended appeal, and; | Upon considering the Applicant’s written submissions dated and filed on 28th June 2019 wherein the Applicants urge that they are seeking an extension of time to file an appeal against a Ruling delivered by the Court of Appeal on 9th November 2019; and that the delay in filing it was occasioned by the Court of Appeal’s failure to supply the relevant Judges’ notes until 8th May 2019, and that therefore the delay in filing an appeal on time is excusable and the grant of the orders sought will cause no prejudice to the Respondents and;
(4)
Upon reading the Respondent’s Replying Affidavit sworn and filed on 11th October 2019 in which it opposed the Application arguing that the same is totally misconceived as the intended appeal is neither one that raises constitutional questions for determination by this Court under Article 163(4)(a) of the Constitution nor was it certified as being one of general public importance under Article 163(4)(b) thereof, and;
(5)
Further, the Respondent having contended that the substantive appeal of the Court of Appeal, in which all contested issues were determined, has not been appealed from that but the intended appeal relates to a Ruling declining review of that Judgment and that therefore there is no basis for this Court to seize the intended appeal, and;
(6)
Upon considering the Respondent’s submissions filed on 11th October 2019 in which the above matters are reiterated, We Now Opine as follows;
(a)
In Charo v Mwashetani & 3 Others (2014) KLR-SCK and Application No.16 of 2014, Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others among other cases, this Court laid down the criteria for grant or denial of all application for extension of time to file an appeal before it.
(b)
The criteria includes the question whether the explanation given for any delay is reasonable and credible. That there must also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction in favour of an applicant. Inordinate delay cannot thus attract favourable exercise of discretion.
(c)
The above notwithstanding, the Respondent has raised a fundamental issue which we must consider in limine; whether in fact the intended appeal would properly be before us under Article 163(4) (a) and (b) of the Constitution.
(d)
In that context, in Erad Suppliers & General Contractors Limited v National Cereals & Produce Board SC Petition No. 5 of 2012 we stated as follows:
“In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of First Instance is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”
(e)
We thus note that the substantive appeal before the Court of Appeal delivered on 16th June 2017 is not the subject of the intended appeal and so it remains unchallenged. The Ruling sought to be appealed was one of review of that Judgment on the question of interest on the decretal sum awarded to the Respondent.
(f)
It is obvious to us that such a matter cannot be the basis for an appeal as of right under Article 163(4)(a) of the Constitution and because no certification has been granted on the basis of the matter being one of great public importance, it means that any extension of time to file an appeal is a waste of this Court’s time.
(g)
It follows therefore that whatever the reasons for delay, once we have accepted the Respondent’s point on the law applicable to the intended appeal, it means that the Application before us is misconceived and the Applicants, represented by Counsel, ought to have known that it was also a non-starter.
(7)
Having therefore considered the Application, the Affidavit in support and the Replying Affidavit in opposition thereof and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012; | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/10/eng@2019-11-29 |
Application 12 of 2019 | Githiga & 5 others v Kiru Tea Factory Company Limited (Application 12 of 2019) [2019] KESC 80 (KLR) (Civ) (29 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 29 November 2019 | 2,019 | Nairobi | Civil | Githiga & 5 others v Kiru Tea Factory Company Limited | [2019] KESC 80 (KLR) | null | A. Introduction
1
The applicants, having been convicted and sentenced for contempt of the Court of Appeal’s Orders dated 6 December 2017, have filed an application before this Court to stay further contempt application by the respondent. Their prayers are contained in the Notice of Motion application dated 2 July 2019, supported by the affidavit of Stephen Maina Githiga, the 1st applicant herein. The motion is seeking the following Orders:
i
that, pending the hearing and determination of this application, this Court do grant stay of further proceedings by way of hearing and prosecution of the contempt application dated 30 May 2019, as filed on 31 May 2019 in Nyeri Court of Appeal Civil Application No. 132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 others;
ii
that this Court do grant leave to the applicants, to amend the application dated 3 April 2019, as per the draft amended-application attached herein;
iii
that, following grant of prayer ii above, this Court do grant stay of further proceedings, and of the hearing and prosecution of the application dated 30 May 2019, as filed on 31 May 2019, in Nyeri Court of Appeal Civil Application No. 132 0f 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others, pending the inter partes hearing and final determination of the amended application.
iv
that the costs of the application be provided for.
2
A number of other applications, some requiring determination by this Court, have also arisen, as will be indicated in this Ruling.
B. Background
3
The 1st – 4th applicants are either current, former, or disputed directors of Kiru Tea Factory Company Limited, the respondent herein. The 5th applicant is the group Chief Executive Officer of the KTDA Group of Companies, while the 6th applicant is now the Corporation Secretary of KTDA.
4
A dispute arose between various members of the board of directors of the respondent, and its company secretary. This involves two factions, each one competing for the control of the affairs of the company. One faction, led Mr. Geoffrey Chege Kirundi, moved the Court of Appeal by way of Notice of Motion, in Nyeri Civil Application No. 133 of 2013, seeking to stop the holding of a parallel Annual General Meeting of the respondent, convened by the opposing faction led by Mr. Stephen Maina Githiga. The motion was heard on 6 December 2017, the Court issuing injunctive interim Orders as follows:
“
Upon hearing learned counsel in this Motion, and in the Motion in Civil Application No. 133 of 2013, we are unable to deliver a reasoned Ruling right away . . .
“Considering the nature of the prayers sought we invoke Sections 3A and 3B of the Appellate Jurisdiction Act, and order that status quo be and is hereby maintained as of today, pending our Ruling as stated. No elections will be held until the Ruling is delivered.”
5
Notwithstanding the injunctive Orders above, an Annual General Meeting AGM was held on 14 December 2017. Pursuant to a resolution made at the said AGM, Mr. Stephen Maina Githiga’s faction was mandated to take over the Board, as Chairman. Another key resolution passed was that “any and all purported previous resolutions and/or authority granting Messrs. Geoffrey Chege Kirundi, Paul K. Muite and Kithinji Marete & Company Advocates mandate to plead, depone, appear, act and/or represent the respondent in Court proceedings is hereby revoked in its entirety.” A further resolution passed was that Dr. John F. Kennedy Omanga was reinstated as the respondent’s Company Secretary.
6
| C. Applications Before The Supreme Court
16
In order for the judicial process to function normally, as must be the Constitution’s intent, we have to first deal with the issue of the respondent’s representation. We remain cognizant of the fact that the respondents are entitled to participate, and to respond to the applicants’ application, even though it is the applicants who moved the Court in the first instance, in pursuit of urgent recourse. In consequence, at this stage, only two applications fall due for disposal — the third and the fourth. This will pave the way for further directions on the current matters as a whole, including the other pending applications. The main cause in this setting is that we are reluctant to consider the merits of the application on the basis of contentious representation, on the part of the respondent.
17
We proceed, on that basis, to consider the two applications – application dated 3 July 2019 fourth application , and the one on respondent’s legal representation third application .
Application Dated 3rd July 2019
18
Only the applicants filed submissions, on 11 July 2019, and these are limited to the fourth application. The respondent, evidently, would not have filed submissions, as its legal representation is contentious, and it is not settled which counsel would be responsible.
19
In support of the Notice of Motion of 3 July 2019, the applicants filed written submissions dated 10 July 2019 and these propose two issues for determination, namely:
whether the applicants have satisfied the conditions-precedent for amendment to the Notice of Motion application dated 3 April 2019; * whether the applicants have established the conditions-precedent for grant of Orders of stay of proceedings.PARAGRAPH 22.
20.
On the first issue, it has been submitted that this Court, pursuant to Section 21 1 b and 2 of the Supreme Court Act, has same powers as the Court of Appeal, and, therefore, has powers in respect of amendment under Rule 44 1 of the Court of Appeal Rules. Court of Appeal practice in such matters was invoked, through case law: Kenya Hotels Limited v. Oriental Commercial Bank Limited [2018] eKLR; and John Gakuo & another v. County Government of Nairobi & another [2017] eKLR. It was urged that, allowing amendment of filed documents is discretionary, and that, amendment of pleadings before hearing should be allowed, especially as the application has been made in good faith, and there is no prejudice to the respondent if amendment is allowed.
21
It is submitted that the substratum of the applicants’ current application is in the earlier application dated 3 April 2019; and the respondent having filed a second contempt application at Court of Appeal, which raises similar issues to the one before this Court, an amendment to the application dated 3 April 2019, will enable this Court to deal comprehensively with all issues relating to contempt proceedings.
22
On the second issue, the applicants have made reference to a decision of this Court: The Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, SC Applications Nos. 12 and 13 of 2012 — where this Court held 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 merit of appeal would be substantially diminished. It is thus argued that the Court has jurisdiction to determine the application for stay, for purposes of sustaining the subject-matter.
23
The applicants, in submitting that they have met the threshold in an application for Order of stay, have cited this Court’s decision in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where three principles were set out for grant of an Order for stay of execution. On the first principle, it is urged that the application/appeal is arguable, on the basis that the Court of Appeal had convicted the appellants on Orders that had lapsed, on 20 December 2017; they have filed Supreme Court Petition No. 13 of 2019, which has challenged the Court of Appeal decision in respect of Orders of 6 December 2017; 22 February 2019; and 28 March 2019. They urge that an amendment to the application dated 3 April 2019, to include further contempt claims, will bring to light all the issues that are live in the petition and the application, for determination once and for all.
24
The applicants urge that the proposed amendments seek to introduce the prayer that there be a stay of the proceedings, prosecution and determination of the further contempt dated 30 May 2019. They apprehend that, if the Court declines to grant stay, they will be prosecuted, and finally, the prayer of stay in the amended application will be rendered otiose.
25
On the issue of public interest, it is submitted that the respondent is a public company with approximately 8,000 shareholders, and it has become a matter of public notoriety, that there has been strife amongst directors, with consequential, unresolved controversies in the management of the company. It is in the public interest, they submit, that the company is not disrupted by further contempt proceedings.
26
This application seeks to amend the application dated 3 April 2019 first application , and to stay the subsequent contempt proceedings against the applicants. From a perusal of the draft amended application sought to be filed, we note that the applicant seeks to stay further proceedings arising from the application dated 30 May 2019 at the Court of Appeal, pending the determination of the appeal. This is in effect the same prayer sought in the present application. With this in mind, and considering the nature of the dispute, we are not inclined to consider the merits of the stay application at this stage, as considering it will in effect be an ex parte process, a practice that rarely carries the essentials of fairness. We prefer to accord the respondent, after a determination of its legal representation, an opportunity to reply; a duplication, by considering the prayer at this juncture, and again in the amended application, should be averted.
27
This, in effect, leaves us with the question of whether the applicants have satisfied the conditions to be allowed to amend their application. It is evident that there have been developments in the case before the Court of Appeal, which would be adequately captured in the amended application as proposed. Rule 3 5 of the Supreme Court Rules gives this Court inherent power to make such Orders, or give such directions as may be necessary for the ends of justice. We are satisfied that the purpose of the proposed amendment is to define the real question in controversy, and that the respondents will still have an opportunity to respond to the amendment, thereby addressing any potential prejudice that they may have suffered. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/80/eng@2019-11-29 |
Petition 13 of 2019 | Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2019] KESC 81 (KLR) (29 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 29 November 2019 | 2,019 | Nairobi | Civil | Githiga & 5 others v Kiru Tea Factory Company Ltd | [2019] KESC 81 (KLR) | null | 1.
Coming up before this Court are two Notice of Motion applications filed by the firm of Kithinji Marete & Company advocates, dated 3 May 2019 and filed on 6 May 2019. The first application is seeking the following Orders:
(i)
that the notice of appointment of Advocates dated 4 April 2019, and filed on even date by M/s. Ochieng, Onyango, Kibet & Ohaga Advocates [M/s. Triple OK Law] be struck out with costs;
(ii)
that the notice of change of Advocates dated 15 April 2019, and filed on 17 April 2019 by M/s. Ochieng, Onyango, Kibet&Ohaga Advocates, be struck out with costs;
(iii)
that all pleadings filed by M/s. Ochieng, Onyango, Kibet & Ohaga Advocates, on behalf of Kiru Tea Factory Company Limited in relation to this matter, be struck out with costs;
(iv)
that the costs of, and incidental to this application be provided for.
2.
In the second application, the respondent is praying for the following orders:
(i)
that the notice of appeal dated 29 March 2019, and filed on 1 April 2019, be struck out with costs;
(ii)
that Supreme Court Petition No. 13 of 2019 — Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited — as instituted by the Petition of 3 April 2019 be struck out with costs; and
(iii)
that the costs of, and incidental to this application be provided for.
3.
Petition No. 13 of 2019 (Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited) is an appeal against the decision of the Court of Appeal delivered on 28 March 2019, an application for review of that Court’s Ruling of 22 February 2019, which had found the appellants in contempt of its Orders. The appellants argue, inter alia, that the Appellate Court committed grave injustice, and a breach of vital principles falling under Articles 27(1), 50(1) and 159(2)(a) & (e) of the Constitution. These applications were filed just after the filing of the petition. The background to these two applications has been clearly set out in our Ruling in Supreme Court Application No. 12 of 2019 (Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited), and there is no need to restate the pertinent facts here. | The appellants have not responded to the second application. Following our earlier Ruling on representation, we allow scope for a reply within 21 days of the date hereof: in which event the question shall be placed before the Court for expeditious hearing and disposal.
8.
Accordingly, we now make the following Orders:
(a)
The Notice of Appointment of Advocates dated 4 April 2019, and filed on even date by M/s. Ochieng’, Onyango, Kibet & Ohaga Advocates, is hereby struck out.
(b)
The notice of change of advocates dated 15 April 2019, and filed on 17 April 2019 by M/s. Ochieng’, Onyango, Kibet & Ohaga Advocates is hereby struck out.
(c)
All pleadings filed by M/s. Ochieng’, Onyango, Kibet & Ohaga Advocates on behalf of Kiru Tea Factory Company Limited, in relation to this matter, are hereby struck out.
(d)
The appellants shall, within 21 days of the date of this Ruling, file a response to the second Notice of Motion, dated 3 May 2019.
(e)
The determination of the application to strike out the Notice of Appeal dated 29 March 2019, and filed 1 April 2019, and Supreme Court Petition No. 13 of 2019 (i.e., the second application), shall await further directions of this Court.
(f)
| Court issues further directions | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/81/eng@2019-11-29 |
Petition 20 of 2019 | Minister for Health & another v Uasin Gishu Memorial Hospital Limited & another; Attorney General & another (Interested Parties) (Petition 20 of 2019) [2019] KESC 14 (KLR) (29 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 29 November 2019 | 2,019 | Nairobi | Civil | Minister for Health & another v Uasin Gishu Memorial Hospital Limited & another; Attorney General & another | [2019] KESC 14 (KLR) | null | Upon perusing the Notice of Motion Application by the 2nd Respondent/Applicant The Moi Teaching and Referral hospital, dated 2nd July 2019 and filed on 10th July 2019 premised upon the provisions of Articles 159(3)(d), 164(3) of the Constitution, Sections 3(e) and 31 of the Supreme Court Act, 2011, Rules 3(2), (4), 5, 18(1) and 53 of the Supreme Court Rules, 2012 seeking leave to adduce additional evidence prior to the hearing of the Petition herein and;
2.
Upon reading the 2nd Respondent’s/Applicant’s Affidavit sworn by one Sylvia Nyariki, its Legal Officer on 2nd July 2019 and;
3.
Upon reading the 1st Respondent’s Grounds of Opposition dated 2nd August 2019 and filed on 5th August 2019 and;
4.
Upon considering the 2nd Respondent’s/Applicant’s written submissions dated and filed on 2nd July 2019 wherein it submits that it intends to adduce additional evidence before this Court, the nature of which relates to the question whether the parcels of land, subject of the Appeal, and the developments thereon, have been public property, acquired, developed and maintained at the expense of the public and using tax payers’ resources;
5.
And which evidence, it was argued, could not be obtained with reasonable diligence for use at the trial; was not within its knowledge nor could it be produced at the time of filing the original suit at the High Court and the Appeal at the Court of Appeal; and that its officers had not been able to access its archives until Sylvia Nyariki aforesaid suggested a visit to the Hospital Archive and therefore the oversight was inadvertent and bonafide: and that the additional evidence does not introduce new substance to the dispute but would remove vagueness or doubt on issues already on trial by providing additional examples, details and particulars; and that the application has met the threshold for grant of orders to adduce additional evidence and; | In the above context, We now opine as follows:
(a)
The law regarding the introduction of additional evidence before this Court was settled in Petition No. 7 of 2018 Hon. Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others where the Court stated as follows regarding the principles for allowing such evidence:
…we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. 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 wilful 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.” [Emphasis added]
(b)
Noting that it is largely principles (b) and (c) above that the 2nd Respondent/Applicant has relied on, we see no evidence that save for Sylvia Nyariki’s “suggestion”, on an unknown date, that the Hospital Archive may have useful and relevant information, no other evidence is given as to how, over the last 7 years when the appeal before the Court of Appeal was pending and prior to that, while the matter was before the High Court, the 2nd Respondent’s officers acted to secure its case to the highest possible level. Where then is the evidence of diligence? We submit none and we agree with the 1st Respondent’s submission in that regard.
(c)
It is also our opinion that the evidence sought to be adduced is certainly meant to fill gaps in evidence and remove lacunae in the 2nd Respondent’s case in a second appeal where the issues to be addressed are matters of law and not of fact.
SUBPARA (d)
Having read the additional evidence, we doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties.
10.
Having therefore considered the Application and submissions by the respective parties, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act and Rules 21 and 23 of the Supreme Court Rules, 2012:
Orders
(a)
The Notice of Motion Application dated 2nd July 2019 and filed on 10th July 2019 is hereby dismissed.
(b)
Each Party shall bear its costs of the Application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/14/eng@2019-11-29 |
Petition 3 of 2018 | Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa (ISLA) (Applicant) (Petition 3 of 2018) [2019] KESC 18 (KLR) (29 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, I Lenaola | 29 November 2019 | 2,019 | Nairobi | Civil | Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa | [2019] KESC 18 (KLR) | null | A. Application
1.
The Applicant’s Notice of Motion, dated 5th March 2019 was filed on 7th March 2019. The Application is supported by the Affidavit of Sibongile Cherrol Ndashe sworn on the same date. It is attended with an amicus brief of even date and is premised on Articles 22(3)(e) and 163(8) of the Constitution as well as Rules 3(2), (4)(5), 54(1)(a) and (2) of the Supreme Court Rules, 2012.
2.
The Orders sought are:
1.
That Initiative for Strategic Litigation in Africa (ISLA), the Applicant herein, be granted leave to be admitted in these proceedings as Amicus Curiae.
2.
That leave be granted to ISLA to present written and oral submissions by way of an amicus brief in these proceedings.
3.
That upon granting leave to participate in the proceedings, the honourable Court give direction on how the amicus curiae shall participate in further proceedings herein on such other or further directions as this honourable Court may deem fit to give.
4.
That there be no award of costs for or against the amicus curiae.
3.
The grounds of the application are as follows:
1.
That the intended amicus curiae is a non-governmental organization established in 2014 based in Johannesburg, South Africa and uses the rule of law and African domestic and regional Courts to promote and protect women’s human rights, inter alia.
2.
That the intended amicus curiae has a legitimate interest in being enjoined in the Petition, so as to make submissions on the meaning of the right to remedy in the context of human rights’ violations; demonstrate how remedies in human rights have evolved and present comparative jurisprudence on the subject.
3.
That the intended amicus curiae will make submissions as an independent expert which action will assist the Court in the determination of the issues raised in the Petition.
4.
In submissions filed on 7th March 2019, the intended amicus curiae has added that it has satisfied the criteria set by this Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR, and that it also filed its Application timeously.
5.
The application is not contested by the Petitioner but the 1st Respondent filed Grounds of Opposition on 27th March 2019 stating that the Applicant has not demonstrated any expertise in the matters to be addressed at the hearing; has not raised any novel point of law separate from what the Petitioner has raised; is not a neutral party and did not file its Application timeously.
3.
In submissions filed on 15th October 2019, the 1st Respondent has reiterated the above grounds but adds that the criteria for admission of an amicus curiae as set in Trusted Society of Human Rights Alliance (supra) has not been met and that the Application is misconceived and ought to be dismissed with costs. | B. Determination
7.
We have noted the submissions by the parties and further note that Rule 54 of the Supreme Court Rules, 2012 provides:
(1)
The Court may –
(a)
in any matter allow amicus curiae;
(b)
appoint a legal expert to assist the Court in legal admissions;
(c)
at the request of a party or on its own initiative, appoint an independent expert to assist the court on any technical matter;
(2)
The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest or any other relevant factor.”
8.
In expounding on the criteria for admission of an amicus curiae, in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR, we stated as follows:
(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…
“(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.”
9.
Later, in Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR we affirmed the above guidelines and the parties herein have disagreed on whether the Applicant has met the criteria above. In that regard, we note that the Applicant has addressed its expertise and has filed an amicus brief limiting itself to the grounds of its intended participation in the hearing of the Petition of Appeal.
10.
We have furthermore noted that the Applicant has in its brief limited itself to legal arguments and although only 5 years old since its inception, it claims to have had extensive experience in human rights litigation particularly in the protection of the rights of women. Not one case has been cited where that expertise has been applied.
11.
As regards its neutrality, although the 1st Respondent has challenged the Applicant on that issue, we have seen nothing in the amicus brief which points to a lack of impartiality on the part of the Applicant. Nothing also exists on the record as to whether the Applicant has any special relationship with the Petitioner or that its brief is deliberately skewed towards the Petitioner.
12.
In the circumstances, and despite our concern about lack of evidence of previous engagements in litigation by the Applicant, its amicus brief is detailed enough and useful to the Court and we shall therefore exercise discretion and grant the orders sought. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/18/eng@2019-11-29 |
Petition 18 of 2015 | Ngoge t/a OP Ngoge & Associates v Onyango & 4 others; Attorney General & another (Interested Parties) (Petition 18 of 2015) [2019] KESC 8 (KLR) (29 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, I Lenaola | 29 November 2019 | 2,019 | Nairobi | Civil | Ngoge t/a OP Ngoge & Associates v Onyango & 4 others; Attorney General & another | [2019] KESC 8 (KLR) | null | Upon perusing the Notice of Motion application dated 22nd October 2018 and filed on 23rd October 2019 which is brought under the provisions of Articles 1(5)(6), 10, 19, 20, 21, 22, 27, 28, 29, 40, 50 and 258 of the Constitution as well as Section 14(5) of the Supreme Court Act seeks Orders for review of the Judgment and order of this Court dated 2nd October 2015 and;
2.
Upon considering the Supporting Affidavit of Peter O. Ngoge Advocate, sworn on 22nd October 2015 and a further Affidavit sworn on 3rd May 2019 as well as the 6th Respondent’s Grounds of Opposition dated 29th March 2019 and filed on the same date and;
3.
Upon reading written submissions by the Applicant dated and filed on 11th June 2019 together with submissions in response to the 1st and 2nd Respondents’ submissions wherein the Applicant has submitted afresh on matters that have been heard and determined by the High Court, Court of Appeal and this Court, faulting all of them for allegedly misconstruing and misunderstanding the case as argued before them; and adding that he has filed a complaint against the Republic of Kenya at the African Commission on Human and Peoples Rights on matters touching on those decisions and;
4.
Noting that the Applicant also submits that a review of this Court’s Judgment is necessary because he is now at the risk of execution of the 1st and 2nd Respondents’ Bill of Costs taxed at Kshs.5,000,000 or thereabouts which action will be highly prejudicial to him during the pendency of the proceedings before the African Commission on Human and Peoples Rights and;
5.
Upon reading the 1st and 2nd Respondent’s submissions dated and filed on 26th July 2019, where it was submitted that once this Court delivered its Judgment on the appeal on which the present Application is predicated, it became functus officio and has no jurisdiction to stay or review the said Judgment and further, that the African Court on Human and Peoples Rights has no superiority over this Court neither can it supervise it and therefore its proceedings are of no consequence to the present Application and; | We note that the law as regards review of Judgments of this Court was settled on a Ruling delivered on 24th February in Petition No.6 of 2014 Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others e[KLR] wherein we rendered ourselves as follows:
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.
These principles are no doubt informed by various judicial authorities, in other jurisdictions, such as the ones we have cited from Nigeria, United Kingdom, India and South Africa”. [Emphasis added]
9.
Upon applying the above principles to the present case, it is quite obvious to us that none of the exceptional circumstances set out above are properly applicable to this case. It can in fact be seen that the Applicant only moved this Court for a review of its Judgment, 3 years after delivery of the said Judgment and only because he was threatened with execution by the 1st and 2nd Respondents. That action is not a ground for seeking a review of the Judgment.
10.
Furthermore, whereas the African Commission on Human and Peoples Rights is indeed seized of a complaint against the Republic of Kenya by the Applicant, that fact alone is not sufficient to move this Court to review its Judgment.
11.
And in the circumstances, the Application, Affidavit in support, verbose as they are, and the largely irrelevant submissions by the Applicant, have not swayed our collective minds towards a review of our Judgment as prayed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/8/eng@2019-11-29 |
Petition 5 of 2017 | British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, JB Ojwang, SC Wanjala, N Ndungu | 26 November 2019 | 2,019 | Nairobi | Civil | British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another | [2019] KESC 15 (KLR) | null | I. Introduction
1.
The appellant moved the court via a petition dated March 31, 2017, being an appeal against the Judgment of the Court of Appeal (Okwengu, Azangalala and Sichale, JJA) in Civil Appeal No 112 of 2016, which decision upheld the Judgment of the High Court, in High Court Petition No 143 of 2015, British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others that judgment held that there was adequate consultation or public participation in the formulation of Tobacco Control Regulations, 2014 and that, except for regulations 1, 13(b) and 45, the provisions are neither unconstitutional nor unlawful nor do they violate any right of the appellant, the affected party or the Tobacco industry players.
2.
The appellant sought the following reliefs (produced verbatim), that:
i.
The appeal to be allowed.
ii.
The Judgment of the Court of Appeal in Civil Appeal 112 of 2016 be set aside and judgement be entered as prayed in the petition in the High Court on April 15, 2015.
iii.
The costs in this Appeal, Civil Appeal 112 of 2016 British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others, and High court Petition Number 143 of 2015 British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others, be awarded to the appellant.
iv.
Any further or alternative relief this Honourable Court may deem fit to grant.
II. Background
3.
In a Notice in the Kenya Gazette dated December 5, 2014, the 1st Respondent published the Tobacco Control Regulations, 2014 (herein after referred to the Regulations) by way of Legal Notice No 169 (Legal Supplement No 161). The Regulations were made pursuant to section 53 of the Tobacco Control Act, 2007 (herein after referred to the Act) and sought to regulate various aspects of the Tobacco sector in Kenya. section 53 of the Act gives powers for making Regulations prescribing or prohibiting anything required by the Act to be prohibited, or for the better carrying out of the objects of the Act. | VI. Analysis And Determination
(i) Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public participation and consultation ?
85.
Public participation has been entrenched in our Constitution as a national value and a principle of governance under article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with article 1(4) of the Constitution is exercised at both national and county levels”.
86.
Article 118 of the Constitution provides for public participation in the legislation making process, as follows:
“
Public access and participation
(1)
Parliament shall-
(a)
conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and
(b)
Facilitate public participation and involvement in the legislative and other business of Parliament and its committees”.
Therefore, while the legislative mandate is delegated to Parliament, it must facilitate public participation as the onus of ensuring public participation rests with it.
87.
Since the promulgation of the Constitution 2010, the question of the rationale, scope and application of public participation as a principle of governance has been subject of numerous decisions by the courts. The High Court in this matter appraised itself of the various decisions on the same, which appraisal the Court of Appeal readily endorsed. In the Matter of the National Land Commission,the Supreme Court placed the principle of public participation at the core of the concept of checks and balances in governance in the execution of their functions by the various arms of government, when we stated:
“
[308] The conditioning medium within which these functions have to be conducted, is constituted by the national values and principles outlined in article 10 of the Constitution: in particular,the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It is to be noted that, the very essence of checks-and-balances touches on the principles ofpublic participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions is to be in line with values ofintegrity, transparency, good governance and accountability…”
88.
The Retired Chief Justice, Dr. Willy Mutunga, in his concurring opinion expounded on the principle and traced the place of the People in the Constitution making process thus:
“
[320] In the entire history of constitution-making in Kenya, the participation of the people was a fundamental pillar. That is why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, and then defining a new social, economic, political, and cultural order for themselves. It is, indeed, a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the sovereign will of the Kenyan population. Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority is derived from the people of Kenya, is the indestructible fidelity to the value and principle of public participation.
89.
The Rtd Chief Justice drew from caselaw on the principles for public participation in various court decisions including Speaker of the Senate & another v. Attorney General& 4 others Sup. Ct. Advisory Opinion No 2 of 2013; [2013] eKLR; Thuku Kirori & 4 others v. County Government of Murang’a Petition No 1 of 2014; [2014] eKLR; Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County of Nairobi Government & 3 others Petition No 418 of 2013; [2013] eKLR; and Robert N. Gakuru & others v. Governor Kiambu County & 3 others, Petition No 532 of 2013 consolidated with Petition Nos. 12 of 2014, 35, 36 of 2014, 42 of 2014, & 72 of 2014 and JudicialReview Miscellaneous Application No 61 of 2014;[2014] eKLR [Robert Gakuru case](Most of these cases were also referred to by the High Court in this matter). He also referred to the jurisprudence from the South African Constitutional Court decision, Doctors for Life International v. Speaker of the National Assembly and others[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) which also considered the role of the public in the law-making process.It in part stated as follows:
“
The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.
116. Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in accordance with the principles of our participatory democracy”
90.
Earlier on, the Supreme Court had reiterated the centrality of public participation as regards the issue of digital migration, in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others,[2014] eKLR. We stated inter alia:
“
Public participation is the cornerstone of sustainable development and it is so provided in the Constitution…
[381] Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are under article 34. In the cases of establishment, licensing, promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they did the word and spirit of the Constitution would both be subverted.”
91.
The High Court in this matter, as observed by the Court of Appeal, appropriately referred to several decisions on public participation and consultation. All these cases are illuminating on the place of public participation in governance under the Constitution 2010.
92.
In Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others Judicial Review No 378 of 2017; [2017] eKLR among the issues for consideration before the High Court was whether the IEBC was constitutionally obliged to facilitate public participation as part of the tendering process. The High Court allowed the Petition and quashed the award of the tender for lack of public participation. It ordered that the procurement process begin de novo in accordance with the Constitution. IEBC appealed to the Court of Appeal. In upholding the appeal, setting aside the High Court decision, the Court of Appeal considered the big issue of justifiability and enforceability of article 10 of the Constitution, which encompasses the principle of public participation. The appellate court in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance(NASA) Kenya & 6 others,Civil Appeal No 224 of 2017; [2017] eKLR held that article 10(2) and the principles therein are for immediate realization, thus:
“
80. In our view, analysis of the jurisprudence from the Supreme Court leads us to the clear conclusion that article 10 (2) of the Constitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused in article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles.
We agree with this pronouncement and reiterate that the principle of public participation as anchored in article 10 of the Constitution is alive and the same is equally justiciable before our courts. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/15/eng@2019-11-26 |
Civil Application 7 of 2019 | Bunei & 8 others v Lorien Ranching Company & another (Civil Application 7 of 2019) [2019] KESC 17 (KLR) (26 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu | 26 November 2019 | 2,019 | Nairobi | Civil | Bunei & 8 others v Lorien Ranching Company & another | [2019] KESC 17 (KLR) | null | A. Introduction
1.
This is an application by way of a Notice of Motion dated 6th March 2019 brought under Articles 10, 20(3), 25(c), 40, 50, 159(2) (a) and (d), 163(4)(b) and 259(1) of the Constitution, Section 15(1) and 16 of the Supreme Court Act, Rule 30(2) of the Supreme Court Rules, Rules 42 and 43 of the Court of Appeal Rules, and all other enabling provisions of the Law. The Application seeks the following orders:
1.
That the Court be pleased to recall, review and /or set aside the decision of the Court of Appeal at Nyeri (Waki, Sichale, Kantai, JJA) ruling delivered on 13th February, 2019 in Civil Application SUP No. 3 of 2018 (UR 1/2018).
2.
That in the event the application for review is disallowed , leave be granted to the Applicant to lodge an appeal to the Supreme Court against the Court’s judgment delivered on 22nd November 2017 in Nyeri Civil Appeal No. 66 of 2015 pursuant to 163 (4)(b) of the Constitution and Section 16 of the Supreme Court Act, 2011, and
3.
That the Court be pleased to extend time for giving Notice of Appeal, and for leave to appeal out of time the proposed appeal to this Court, pursuant to Rule 33 of the Supreme Court Rules, against the judgment delivered on 22nd November 2017 in Nyeri Civil Appeal No. 66 of 2015, and
4.
That the Court be at liberty to make any order in the interest of justice.
5.
That costs be awarded in favour of the Applicants.
2.
The application is anchored on several grounds in the body of the application and the supporting affidavit of Richard Koskei Bunei sworn on 5th March, 2019.
3.
The application is vehemently opposed by the 1st Respondent through their Replying Affidavit and Supplementary Affidavit sworn by Jackson Kipkemoi Too on 26th March, 2019 and 8th May, 2019 respectively.
B. Background
Proceedings at the High Court
4.
This suit can be traced to 1970 when the 1st Respondent, Lorien Ranching Company, purchased two parcels of land which it subsequently allocated to its members. The 1st Respondent’s former secretary/director, William Arap Birgen, together with others collected funds from members of the public in the promise that they had land to sell to them. Later, in 1979, those members together with Willian Arap Birgen (herein referred to as the second Respondents) attempted to settle in the 1st Respondent’s farm but the genuine members who were already in occupation and who ejected them. Consequently, the 2nd Respondent filed a suit at the High Court at Nyeri being HCCC No. 80 of 1983 seeking certain injunctions against the 1st Respondent. On 2nd October 1992, a consent order was recorded before Tunoi, J (as he then was), (hereafter the Tunoi consent) to not only settle the membership and control of the Company, but also provided for the sub-division of the Farm and allocation of it to various groups of people comprising the 2nd Respondent.
5.
As the sub-division was going on, the second Respondent, proceeded to the High Court in Nyeri and filed a Judicial Review Application No. Nyeri Misc. Cause No. 253 of 1994 seeking to prohibit the Chief Land Registrar, the Land Registrar and the District Commissioner, Laikipia, from processing or issuing title deeds. The High Court issued orders prohibiting the issuance of title deeds and an order of certiorari quashing the subdivision of the Farm that had been made, and the respective title deeds issued.
6.
As a result of the Judicial Review orders, the 1st Respondent moved to the High Court and urged the Court to set aside orders obtained in HCCC 80/1983, HC MISC. 253/1994, Nyeri High Court Miscelleneous Civil Application NO. 264 OF 2008 , prohibit the second Respondent from trespassing its members’ property, nullify the land control board consent obtained by the second Respondent, among other orders. Before the trial commenced, a group of ten people led by Richard Koskei Bunei, and who are the Applicants herein, filed an application on 15th April 2012 seeking to be enjoined in the suit as interested parties. They defended the impugned orders in the other suits as lawful, just and expedient for the welfare of the Company, while terming the suit as appropriate for stated reasons.
7.
The case proceeded to full hearing and after receiving submissions from the respective parties, Ombwayo J by a considered judgment signed and dated 27th March 2015 and read on his behalf by Waithaka J on 22nd April 2015, found the 1st Respondent’s case proved and granted the prayers sought. The Applicants were condemned to pay the costs of the suit. | D. Analysis
21.
The Court of Appeal Judgement was delivered on 22nd November, 2017 yet no notice of Appeal was filed. The Notice of Appeal ought to have been filed on or before 6th December, 2017. The Applicant submits that the Notice of Appeal is only due once the Court has certified that a mater of general public importance is involved. The 1st Respondent urge that the instant application is time barred and that the Applicants have not sought extension of time to file the same thereby making it incompetent before the Court. The Applicant waited for more than a year to seek for an extension to file a Notice of appeal.
22.
In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; Appl. No. 16 of 2014, [2014] eKLR, this Court made it clear that a Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.
23.
Rule 53 of the Supreme Court Rules provides that the Court may extend the time limited by its Rules, or by any other decision of the Court. This Court’s inherent power to extend time does not operate in a vacuum, that is why this Court set the guiding principles 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” [emphasis supplied]
25.
In the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court 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. Without a satisfactory explanation, we are not able to exercise our discretion to extend time to file the Notice of Appeal.
26.
In the present case, we note there is no plausible explanation why the Notice of Appeal was not filed on time. Even if this Court has inherent jurisdiction to extend time in order to sustain the ends of justice, we can only do so when an Applicant presents a reasonable ground for doing so and justifying the delay.
Does the intended appeal raise matters of general public importance?
27.
At the High Court, we note, the Learned Judge was asked to prohibit the second Respondent from trespassing the 1st Respondent’s members’ property, nullify the land control board consent obtained by the second Respondent among other orders. At the Court of Appeal, three issues arose for determination, namely, whether the suit was properly before the Court? Who were the members of the plaintiff Company? and whether the orders obtained in Nyeri HCCC No. 80 of 1983, 253 of 1994 and 264 of 2008 were fraudulent?
28.
In the case of Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone,Civil Appl. No. Sup.4 of 2012 (UR3/2012), [2013] eKLR (Par. 60), we emphasized that to succeed in an application for certification under Article 163(4)(b) of the Constitution, an applicant has to demonstrate that the issue to be raised in the intended appeal involves a matter of general public importance;
the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest; …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….; 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.” [Emphasis supplied].
29.
Having perused the application before us, the supporting affidavit, the replying affidavit, supplementary replying affidavit, and the parties’ submissions, we agree with the Court of Appeal that intended appeal does not meet these criteria to warrant a review of the Court of Appeal’s decision. We need to note that the question as to whether a Court of law can set aside proceedings of another court of equal rank was never an issue for determination at the Court of Appeal and is being raised in this Court for the first time. We therefore cannot entertain this issue at this stage for the first time. This Court has in previous decision emphasized the significance of respecting the hierarchy of the judicial system. For instance, in the Peter Oduor Ngoge v Francis Ole Kaparo & others [2012] eKLR case we stated thus:
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.” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/17/eng@2019-11-26 |
Civil Application 8 of 2019 | Kenya National Capital Corporation Ltd v Galot & 5 others (Civil Application 8 of 2019) [2019] KESC 82 (KLR) (Civ) (26 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu | 26 November 2019 | 2,019 | Nairobi | Civil | Kenya National Capital Corporation Ltd v Galot & 5 others | [2019] KESC 82 (KLR) | null | A. Introduction
1.
This is an application by way of a Notice of Motion dated 7th March, 2019 brought under Rules 3, 24(1), 31, 53 of the Supreme Court Rules, 2012, and Articles 159(2)(d) and 163(4)(b) of the Constitution. The application seeks the following substantive orders:
1.
That this Honourable Court be pleased to extend the time limited for filing a Notice of Appeal and grant the Applicant leave to file the Notice of Appeal herewith annexed against the Judgment of the Court of Appeal at Nairobi (Musinga, Murgor, Kantai, JJA) dated 8th February, 2019.
2.
That this Honourable Court be pleased to extend time and grant the Applicant leave to file at the Court of Appeal the Application herewith annexed for certification that a matter of general public importance is involved in the Applicant’s intended appeal to the Supreme Court of Kenya against the Judgment of the Court of Appeal at Nairobi (Musinga, Murgor, Kantai, JJA) dated 8th February, 2019.
3.
That the costs of, and incidental to this application abide the result of the intended appeal.
2.
The application is founded on eleven (11) grounds in the body of the application and the supporting affidavit of the Manager Recoveries Department of the Applicant, sworn on 7th March, 2019.
B. Background
i. The High Court
3.
On 8th October, 2002 the Court, Ringera J (as he then was) found that the Appellant had not placed before the court any material to enable him exercise his jurisdiction on an application for review. He also found that the consent order required the Registrar to do what amounted to judicial acts in addition to ministerial acts and further, that reference of the parties on the dispute on accounts to the Registrar did not involve an issue of jurisdiction. The Learned Judge held that the consent order as agreed was capable of implementation because the interest rates and the periods for their application had been agreed, that the application had been brought with inordinate delay and dismissed the same. He however found that the consent order could not dispose of the whole dispute between the parties because there were reliefs sought in the plaint which went beyond accounts. The Judge therefore corrected the omission or oversight and ordered that once the Registrar had concluded his mandate of determining accounts, he should submit his report and findings to the Court for further proceedings and final orders in the suit. This ruling was never appealed.
4.
Subsequently, parties appeared before A.L. Kindy, Deputy Registrar and made their respective cases, through their accountants on the issue of accounts. The Deputy Registrar delivered a ruling on 27th August, 2004 and found that the Applicant owed the Respondents an overpayment of Kshs. 48, 951, 536/=, which ruling was reduced into a formal order dated 22nd October, 2004. Based on the aforementioned order, the Respondents filed an application to have the Registrar’s finding adopted as the judgment of the Court, a decree issued, discharged of charged and mortgaged properties, and a release of the title deeds of the properties.
5.
On 29th October, 2008, Kimaru J found merit in the Respondent’s application effectively adopting the Deputy Registrar’s decision and entered judgment in favour of the Respondents against the Applicant for the Sum of Kshs. 48, 951, 536/= together with interest at 19% per annum. The Court directed further that the other prayers of the plaint and counter-claim to be determined in a full trial.
| E. Analysis
16.
Rule 31(1) of the Supreme Court Rules thus provides:
“
A person who intends to appeal to the Court shall file a notice of appeal within fourteen days from the date of judgment or ruling, in Form B set out in the First Schedule, with the Registrar of the Court or with the tribunal, it is desired to appeal from.”
17.
The Applicant therefore had 14 days from the delivery of the judgment of the Court of Appeal, to file a Notice of Appeal. Consequently, the Applicant ought to have filed the Notice of Appeal on or before 22nd February, 2019 since the Court of Appeal delivered its judgment on 8th February, 2019. It is the Applicant’s submission that upon the delivery of judgment they could not file the Notice of appeal and the application to have the matter certified as one involving a matter of general public importance(before the Court of Appeal) within time for two reasons namely, its advocates had not yet received instructions to file the Notice of Appeal due to time spent by the Applicant in deliberating on the matter and acquiring requisite board approvals and the same advocates experienced power disruption at their office premises due to the ongoing expansion of Ngong road near Karen which resulted in destruction of data relevant to these proceedings on multiple occasion.
18.
Concerning extension of time, this Court has already set the guiding principles in Nicolas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC. App. No. 16 of 2014; [2015] eKLR (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” [emphasis supplied]
19.
It is critical for us to determine if the application herein meets the criteria set in Nick Salat Case. One of the requirements is that the applicant should furnish the Court with sufficient reasons for the delay. Of the two reasons cited by the Applicant, none is substantiated. The Applicant has not annexed any correspondence to its affidavit to confirm that there were indeed consultations going on, in its organization. Additionally, there is nothing annexed to the Applicant’s supporting affidavit to ascertain that there were power interruptions during the entire period when the Applicant was expected to file the Notice of Appeal. If the Applicant had been diligent, it would have had its notice of appeal, which is about a page, typed elsewhere and filed in this Court.
Consequently, it is our finding that the applicant has not satisfactorily explained the inordinate delay as decided by this 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, where this Court 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 and the first prayer of the application therefore is disallowed.
20.
In the foregoing, we are inclined to disallow the application in entirety | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/82/eng@2019-11-26 |
Petition (Application) 14 of 2017 | Kiluwa Limited & another v Business Liason Company Limited & 3 others (Petition (Application) 14 of 2017) [2019] KESC 13 (KLR) (26 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 26 November 2019 | 2,019 | Nairobi | Civil | Kiluwa Limited & another v Business Liason Company Limited & 3 others | [2019] KESC 13 (KLR) | null |
A. Background
1 .
This is a Notice of Motion Application dated 11th September 2017 and filed on the 13th of September 2017.
2 .
The Applicants have moved the Court for orders that:
1.
This Honorable Court be pleased to grant leave to the Applicants to file a Supplementary Record of Appeal to the Petition No 14 of 2017 filed on the 3rd August 2017.
2.
The costs of and incidental to this Application be provided for and do abide the result of the Appeal in the said Petition.
3 .
The Applicants previously moved this Court via an Application by Notice of Motion dated 2nd February 2017, seeking to extend time for filing and serving the Petition and Record of Appeal. A single Judge of this Court J.B. Ojwang SCJ, allowed the Application via Ruing dated 26th July 2017.
4 .
Subsequently, the Applicants filed the Petition and Record of Appeal on the 3rd of August 2017, serving the same on the 3rd and 4th Respondents on the 4th August 2017, and on the 1st and 2nd Respondents on the 7th of August 2017.
5 .
On the 22nd of August 2017, the 1st and 2nd Respondents filed grounds of objection raising a preliminary objection that the complete proceedings of the Court of Appeal, specifically the court notes of Makhandia & Ouko JJA were omitted from the record as well as the order extending time by the J. B. Ojwang SCJ which was also not attached to the Petition and Record of Appeal.
6 .
The Applicants have therefore sought to file a Supplementary Record of Appeal to include the entire set of the Court of Appeal proceedings.
7 .
It is their case in that regard that the Application has been brought without undue delay and that there would be no prejudice suffered by the Respondent if leave to file a supplementary record of appeal is granted.
8 .
The 1st and 2nd Respondents on their part submit that the Record of Appeal is defective as it does not comply with the mandatory provisions of Rule 33 of the Supreme Court Rules.
9 .
It is their case that the Applicants in their Supportive Affidavit, have admitted failure in compliance with the Rules when they excluded the Court Notes of Makhandia and Ouko, JJA | B. Analysis
10.
We have considered the grounds in support of the Notice of Motion dated 11th September 2018, the grounds of objection and the submissions by counsel. Rule 33(1) of the Supreme Court Rules provides;
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a)
a petition of appeal;
b)
a record of appeal; and
c)
the prescribed fee.”
11 .
Rule 33(4) of the Supreme Court Rules also provides as follows:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order.”
12 .
Further, Rule 33(6) of the Supreme Court Rules states as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
13 .
As to the extension of time, this Court has already set the guiding principles in Nicholas Kiptoo arap Korir Salat v. Independent Electoral and Boundaries Commission and 7 Others, Sup. Ct Application No. 16 of 2014 where we stated:
“
… 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.”
14 .
In the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicants, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:
“
24)
a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.”
15)
While it is stated that a court has the discretion to extend time, for this to be favorably exercised, a plausible and satisfactory explanation ought to be given by an applicant. Similarly, it is imperative that such an applicant demonstrates that no prejudice will be suffered by the other parties to an appeal.
16)
Having examined the record, we note that the Applicants have stated that the exclusion aforesaid was an oversight when preparing the Record of Appeal, mistakenly believing that the Court of Appeal proceedings received from the Court of Appeal Registry were sent in triplicate and so they proceeded to include only part of the court notes and not all the notes.
17 .
We also note that the Court notes are necessary for canvassing claims advanced in the Appeal, providing a just opportunity to all parties in the Petition including the Respondents and the explanation preferred for the oversight is also reasonable. Therefore, no prejudice will be suffered by the Respondents if we allow the Application.
18 .
For the above reasons, we are inclined to allow the Application. The Applicants should bear the costs thereof.
D. Orders
19 .
Consequently, we make the following Orders:
i.
The Notice of Motion dated 11th of September, 2017 be and is hereby allowed.
ii.
The Applicants shall file and serve their Supplementary Record of Appeal within 7 days hereof.
iii.
The Applicants shall bear the costs of the Respondents in this Application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/13/eng@2019-11-26 |
Application 3 of 2018 | Getao v Mokare & 4 others (Application 3 of 2018) [2019] KESC 1 (KLR) (8 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 8 November 2019 | 2,019 | Nairobi | Civil | Getao v Mokare & 4 others | [2019] KESC 1 (KLR) | null | Upon perusing the amended Notice of Motion application dated and lodged in the Registry on 24th May, 2018 and filed under certificate of urgency for leave to lodge and serve an appeal out of time and for stay of execution against the decree and orders of the Environment and Land Court (Hon. J.M. Mutungi, J) made on 25th September, 2014 in ELC Civil Misc No.929 of 2012 pending the hearing and determination of the applicant’s intended appeal against the entire judgment and orders of the Court of Appeal made on 1st December, 2017 in Civil Appeal No. 361 of 2014. In the alternative, the applicant prays for an order that there be status quo prevailing prior to the ELC judgment of 25th September 2014. The application is premised on Article 159(2)(d) and 163(4) of the Constitution, sections 3, 21(2), 24(1) of the Supreme Court Act, Rules 3 and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the applicant’s supporting affidavit sworn on 24th May, 2018; and the written submissions filed by the applicant wherein it is contended that the delay in filing the appeal was occasioned by the Court of Appeal’s failure to provide certified copies of typed proceedings, despite having applied for the same vide a letter dated 6th December, 2017, the same day they filed a Notice of Appeal against the Court of Appeal decision, and further that the failure to file the appeal was as a result of inadvertence by the applicant’s advocates, whose mistakes should not be visited Upon the applicant; and
3.
Upon reading the applicant’s written submissions in reply to the 1st, 2nd and 3rd respondents’ Preliminary Objection wherein they submit that their intended appeal is anchored on the interpretation of the Constitution as stipulated under Article 163(4)(a) of the Constitution and section 15(2) of the Supreme Court Act, the applicant having filed a constitutional petition in the Environmental and Land Court being ELC Civil Misc. No. 929 of 2012 in which he sought the interpretation of Articles 27 on equality and freedom from discrimination, 40 on the right to own property, 47 on fair administrative action, and 50 on the right to be heard; and
4.
Upon reading the 1st 2nd and 3rd respondents’ Notices of Preliminary Objections dated and filed on 5th April 2018 and 19th July 2018 respectively, wherein they contend that this court lacks jurisdiction as per Article 163(3) and (4) of the Constitution and sections 15 and 16 of the Supreme Court Act to hear and determine the application; and
5.
Upon reading the 1st 2nd and 3rdrespondents’ submissions reiterating their objections that the application and intended appeal are incompetent and non-starter, the matter involving a personal and selfish interest that does not engage our jurisdiction, echoing the decision in Teachers Service Commission v Kenya National Union of Teachers & 3 others SC App. No. 16 of 2015 [2015] eKLR that the application should be dismissed and that the applicant nether meets this court’s principles for extension of time nor establishes the conditions for the grant of an order for stay of execution. | We have considered the application, preliminary objections and written submissions of the parties. The core of the application is whether to grant leave to file the intended appeal out of time and whether to grant stay of execution.
7.
On the first issue, it is apparent that the matter arose out of a petition for the interpretation and application of Articles 23, 27, 50, 63, 40, and 47 of the Constitution. This clothes us with jurisdiction as of right under Article 163(4)(a) of the Constitution. The preliminary objections in our view go to the merit of whether the issues raised qualify as constitutional matters and upholding them at this instance is premature as the issues raised can be sufficiently argued and considered in the substantive appeal. Back to the issue at hand, if the matter raised constitutional issues as contended, the applicant has not explained why he could not file his appeal, as he was obliged to, within the stipulated timelines under this court rules. He merely states that there was inadvertence on the part of his advocate, without elaborating. Does this reason, compel us to exercise our discretion in his favour?
8.
Without seeking to validate the inadvertence on the advocates’ part, we note that the delay in issue is 19 days as the appeal ought to have been filed by 28th January 2018 and the applicant filed his initial application for extension of time on 22nd February 2018. Moreover, it is uncontroverted that the applicant is yet to receive certified copies of proceedings, which remains a prerequisite for a record of appeal under the applicable rule of this court. We therefore find that the applicant has satisfied the threshold for us to exercise our discretion to extend time within which to lodge his appeal. Under the circumstances, we find it appropriate that the applicant meets the 1st 2nd and 3rd respondents’ costs for this application.
9.
On the second issue, we are guided by the conditions set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC App. No. 5 of 2014 [2014] eKLR. These are – arguability of intended appeal, whether the appeal would be rendered nugatory if the stay orders are not granted and if it is in public interest to grant the stay orders. It follows that the intended appeal raises arguable points, the merits of which we cannot venture in at this juncture. The interests of justice tilt towards the protection of the substratum of the matter. Should the appeal eventually not succeed, appropriate remedy will be granted at the time based on parties’ positions as presented during the prosecution of the appeal.
10.
From the foregoing, by a unanimous decision of this bench, pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21(1) and 53 of the Supreme Court Rules, 2012; we make the following Orders:
a.
The preliminary objections by the 1st respondent dated 5th April 2018 and by the 2nd and 3rd respondents dated 18th July, 2018 are hereby disallowed.
b.
The Application dated 24th May, 2018 is hereby allowed.
c.
The Applicant shall file its appeal within 7 days from receipt of the typed proceedings from the Court of Appeal;
d.
The Applicant to take measures towards pursuing the proceedings from the Court of Appeal in order to expedite the filing of the appeal;
e.
The Applicant to meet the costs of the respondents in this application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/1/eng@2019-11-08 |
Petition 1 of 2018 | Institute for Social Accountability & Centre for Enhancincing Democracy and Good Governance v Institute for Social Accountability & Centre for Enhancincing Democracy and Good Governance (Petition 1 of 2018) [2019] KESC 90 (KLR) (8 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu | 8 November 2019 | 2,019 | Nairobi | Civil | Institute for Social Accountability & Centre for Enhancincing Democracy and Good Governance v Institute for Social Accountability & Centre for Enhancincing Democracy and Good Governance | [2019] KESC 90 (KLR) | null | Upon perusing the Notice of Motion application dated 30th January, 2018 and lodged in the Supreme Court Registry on 31st January, 2018 for extension of time limited to file a Supplementary Record of Appeal under rules 3(5) and 53 of the Supreme Court of Rules 2012 against the entire Judgment and Orders of the Court of Appeal delivered on 24th November, 2017 in Civil Appeal No. 92 of 2015; and
2.
Upon reading the supporting affidavit by Michael Kioko Munguti sworn on 30thJanuary, 2018 and the written submissions filed by the applicants including the supplementary submissions in reply to those by the 1st and 4th respondents wherein it is contended that the delay in filing the supplementary record of appeal was occasioned by the Court of Appeal’s failure to provide its certified order and copies of typed proceedings, despite the applicants having applied for the same vide two letters dated 27th November, 2017 and 10th January 2018 respectively; and that having been aggrieved by the Court of Appeal decision they filed a Notice of Appeal on 27th November, 2017; that on the 2nd January 2018, the applicants lodged an appeal in this Honorable Court; that they filed this application for extension of time soon after the 15 day period within which to file a supplementary record of appeal thus demonstrating due diligence on their part especially given that the request is occasioned by circumstances that are beyond the applicants; and
3.
Upon reading the respective grounds of opposition and written submissions by the 1st respondent and 4th respondent wherein they contend that the application is an abuse of the process of this Honorable Court and should be dismissed as the applicants are yet to appear before a single judge at the Court of Appeal to canvass the issue of the documents which they seek to file and the motion in the Court of Appeal should as a matter of priority be allowed to run its full course; the application is ambiguous to the extent that the applicants seek leave for an open ended period; the applicants are not clear or certain on when they will file the supplementary record; and the orders the applicants are seeking at this juncture are speculative and premature as they could not seek leave to file documents that are not ready. In addition, they submit that the applicants have not complied with timelines set out in Rule 33(6) of this Court’s Rules and fault the applicants for relying on the supporting affidavit of Michael Kioko Munguti, who they submit is not a party to the proceedings or authorized to swear the affidavit on the applicant’s behalf. | Having Considered the question at the core of the application viz: whether on the basis of the rival affidavits and written submissions of the parties, the applicants herein, have made a compelling case for this Court to exercise discretion in their favor and thereby grant the orders sought, we are satisfied that the applicants satisfy the principles set out by this Court in the cases of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others SC Application No.16 of 2014 [2014] eKLR and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014 [2014] eKLR on extension of time by this Court.
5.
The applicants took the necessary steps in requesting for the proceedings and the order from the Court of Appeal. They filed the notice of appeal and the appeal within time. Unlike the 4th respondent who agreed to the draft consent as presented by the applicants, it is the 1st respondent’s refusal that has necessitated the resultant process of having the matter placed before a single judge of the Court of Appeal without which the present application would not arise. The prayers sought are not speculative or open ended as they depend on a certain event by the Court of Appeal which is beyond the control of this Court or the applicants. In any event, we have a live matter in form of an appeal filed by the applicants before us which we shall have to dispose of it one way or the other, including when moved appropriately by any party.
6.
As for the supporting affidavit by Michael Kioko Munguti, we are not persuaded by the respondents’ argument that the said Michael Kioko Munguti is a stranger. His affidavit accompanies the formal application filed by the applicants as the actual litigants as an addition to the grounds set out on the face of the application and not the only ground. On considering the affidavit itself, the said Michael Kioko Munguti depones in paragraph 8 of his affidavit that he was instructed by counsel for the applicants. This is not rebutted by the respondents. Moreover, the matters to which he states are factual in nature and in his personal knowledge following instructions from counsel for the applicants. The annexed letters to the affidavit are made by the instructing advocate. We are therefore not persuaded by the respondents’ arguments on this matter.
7.
In the end, pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 53 of the Supreme Court Rules, 2012; we make the following Orders:
a)
The Application dated 30th January, 2018 is hereby allowed;
b)
The Applicant(s) 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; and
c)
Costs shall be in the cause. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/90/eng@2019-11-08 |
Application 31 of 2018 | Katana & 15 others v Mombasa Teachers Co-operative Savings &Credit Society Limited (Application 31 of 2018) [2019] KESC 91 (KLR) (8 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, I Lenaola | 8 November 2019 | 2,019 | Nairobi | Civil | Katana & 15 others v Mombasa Teachers Co-operative Savings &Credit Society Limited | [2019] KESC 91 (KLR) | null | The applicants, through their Notice of Motion filed under certificate of urgency seek the following orders that:
a)
The application be certified urgent and initial service be dispensed with in the first instance.
b)
The court be pleased to order a stay of the execution of the Order issued by the Court of Appeal on 2/10/2018, ordering the Applicants and other 200 families to be evicted through for and demolitions (sic), pending the hearing and determination of this application
c)
The Honorable court be pleased to extend time for filing the Notice of Appeal.
d)
The applicant be at liberty to file the Record of Appeal within 30 days of the Order in prayer (C) above (sic).
e)
Costs.
2.
The application is brought under section 24(1) of the Supreme Court Act and rule 53 of the Supreme Court Rules. It is premised on the grounds that the appeal involves the interpretation and application of the constitution as envisaged under Article 163(4)(a); that the respondent is threatening to execute the Court of Appeal order by eviction through violence making the applicants apprehensive; that the applicants have been in possession and undertaking farming on the suit property since 1960; that the court should exercise its discretion and extend time for filing the notice of appeal mainly because they had instructed their previous Advocates, Marende Birir & Company to file the Notice of Appeal and only realized on 2nd October 2018 that the same had not been filed when they were served with the Court of Appeal order and that the overriding objective of Court will not be achieved if the orders sought are not granted. The application is supported by the affidavit of the 1st applicant, Robert Muhambi Katana on his own behalf and on behalf of the other applicants.
3.
The applicants reiterate the above arguments through their written submissions and submit that this Court has jurisdiction to extend time and that they meet the applicable principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others SC Application No.16 of 2014 [2014]eKLR. They argue that the delay in filing the Notice of Appeal and the Appeal of approximately 4 months and 3 months respectively is not inordinate but excusable. In any event, they submit, the Court of Appeal order was not issued until 2nd October 2018. Further, they argue that this application was filed promptly and no party will suffer prejudice and public interest tilts in favour of allowing the application in order to settle the law in order to create a binding precedent on the law of adverse possession.
4.
The application is opposed by the respondent by way of a replying affidavit sworn by its Chairman, Jonah Makau Mutuku. He depones that no reasonable grounds for the unreasonable delay have been advanced and that the prayer for stay is baseless in the absence of a pending petition. He further states that the applicants’ claim was purely a land dispute on the basis of adverse possession and any constitutional aspect is an afterthought which cannot be raised at this stage not having been raised in the pleadings, at the High Court or Court of Appeal. Accordingly, the application does not meet the jurisdiction threshold under Article 163(4) of the Constitution and is merely aimed at denying the respondent and its members from enjoying their rights as registered proprietors furthering fruits of the Court of Appeal judgment.
5.
| Whereas the applicants seek to invoke article 163(4)(a) of the Constitution that the intended appeal is as of right, the applicants are not supported by the pleadings or the judgment. There is no evidence of any constitutional question having been raised and determined, or the same raising through the court hierarchy. Even if the applicants’ case is that the matter took a constitutional trajectory to warrant our jurisdiction as we held in Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others Petition No.2B of 2014 [2014]eKLR the applicants have not demonstrated the same, having not cited any constitutional provision that is applicable either in the application or the draft petition. We agree with the respondent in this respect.
9.
Rule 31 of the Supreme Court Rules mandates any person who intends to appeal to file a notice of appeal within 14 days from the date of judgment. In this matter, judgment having been entered on 14th June 2018, the appellant ought to have filed its notice by 3rd July 2018. The applicants argue that they had engaged their previous lawyers. From the evidence annexed by way of receipt for fees paid, the same is issued by Marende Necheza & Company Advocates and not Marende Birir & Company as stated in the supporting affidavit. Moreover, the same is dated 23rd July 2018, which was 14 days after the date by which the Notice of Appeal was due and does not specify that the fees paid relate to the present matter. It was only on 22nd October 2014 that the application was filed through the firm of Karina & Associates Advocates now on record for the applicants. We are not in a position to discern what really happened between the applicants and their advocates. It is nevertheless apparent that the applicants were jolted into action by being served with the Court of Appeal order issued on 2nd October 2018.
10.
The filing of a notice of appeal is not dependent upon any other event and could be filed as a matter of course regardless of our appellate jurisdiction sought to be invoked. Whereas we are willing to indulge the applicants that they have acted promptly and their reason for delay, we are still not satisfied that the intended appeal raises constitutional questions as contended. The issue seems to be largely related to the applicability of the doctrine of adverse possession as against the registered proprietor of a parcel of land and how the same was applied to the facts of this matter. The doctrine of adverse possession is a fairly developed doctrine and the applicants have not made any spirited attempt to have the same declared unconstitutional as we expected of them.
11.
For this reason, we see no practical purpose to be served if we were to grant the applicant leave to file an appeal out of time. There must be some prospects that the intended appeal is sustainable on the jurisdiction invoked, which is lacking of the applicants herein. Having found as above, we do not find it necessary to consider the prayer for stay of execution as no appeal lies before us the basis upon which the application for leave would suffice. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/91/eng@2019-11-08 |
Petition 3 of 2016 | Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (Petition 3 of 2016) [2019] KESC 83 (KLR) (8 November 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola | 8 November 2019 | 2,019 | Nairobi | Civil | Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) | [2019] KESC 83 (KLR) | null | I. Introduction
1.
This is a Petition of appeal from the judgment of the Court of Appeal sitting in Malindi affirming the decision of the Environment and Labour Relations Court sitting in Mombasa (ON Makau J) dated 14th February, 2014. The appeal is founded on article 163(4) of the Constitution, as of right, and seeks this Court’s determination of the following questions:
a)
Whether articles 162(2)(a) and 162(3) of the Constitution as read together with section 12 of the Employment and Labour Relations Court Act, 2011 confers jurisdiction on the Employment and Labour Relations Court to hear and determine disputes between Pensioners (herein the “respondents”) and Trustees of a Pension Scheme (herein the “appellants”);
b)
Whether article 165(1) of the Constitution and section 60 of the 1963 Constitution (repealed) conferred the High Court with original jurisdiction to hear and determine disputes between the appellants and the respondents;
c)
Whether the appellants’ constitutional rights to have the dispute determined by a court or tribunal of competent jurisdiction under articles 47(1) and 50(1) of the Constitution was violated;
d)
Whether the Court of Appeal violated the appellants’ rights by proceeding to re-evaluate the evidence of a court which was not competent to hear and determine the dispute;
e)
Whether as a matter of law the honourable judges of the Court of Appeal erred by proceeding to determine matters not pleaded or canvassed in both the trial court and in the appellate court resulting in an infringement of the Appellant’s rights under articles 47(1) and 50(1) of the Constitution;
f)
Whether as a matter of law the Honourable Judges of the Court of Appeal erred by upholding the judgment and decree of the trial court that was incompetent to hear and determine the matters before it. | IV. Analysis
67.
This is another juridical moment when this Court is called upon to adjudicate and give guidance as the court of last resort on a matter having a central bearing in the daily lives of our senior citizens and the general work force. The subject dispute does not only bring into sharp focus the controversies surrounding the mismanagement of pension schemes but also beckons for settlement by this court of the constitutional questions as to the right adjudicatory fora and the jurisdictional limits of the superior courts in the resolution of disputes between pensioners or members, beneficiaries of a pension scheme, the Registered Trustees of the pension schemes, and the Sponsors of the schemes or employers in regard to the management of the pension schemes.
68.
Despite the abundance of arguments on other issues in this appeal, we shall for the purpose of this appeal restrict ourselves within the contours of the following issues for determination:
(a)
Supreme Court’s Jurisdiction over the dispute;
(b)
Which is the forum with original jurisdiction in the first instance to hear and determine the dispute between Pensioners and the Trustees of a Pension Scheme;
(c)
Whether in the circumstances of this case the appellants’ constitutional right to a fair hearing was violated;
(d)
Cross appeal;
(e)
Reliefs to be awarded if any.
a. Supreme Court’s jurisdiction
69.
We have time and again determined the question whether a litigant has properly invoked this Court’s jurisdiction under article 163(4)(a) of the Constitution. The established guiding principles were settled indeed in the cases of Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others, SC Petition No. 10 of 2013; [2014]eKLR and Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No.5 of 2012; [2012]eKLR where we 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.
70.
Further, in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; (2012) eKLR we pronounced ourselves 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.” (Emphasis ours)
71.
The above position was even more succinctly explained in Gatirau Peter Munya v Dickson Mwenda & 2 others SC Application No. 5 of 2014; [2014] eKLR 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.
72.
In the case before us, the issue is the correct interpretation to be accorded to articles 162(2)(a) and 162(3) of the Constitution as read together with section 12 of the Employment and Labour Relations Court Act, 2011 on one hand and whether article 165 of the Constitution and section 60 of the 1963 Constitution (repealed) conferred the High Court with original Jurisdiction to hear and determine dispute between the appellants and the Respondents.
73.
A review of the record before us reveals that these legal questions were subject of litigation before the trial court and on the first appeal. Consequently, we are persuaded that this case is in accord with the laid down jurisprudence cited above and worthy of our admission and considering under the court’s jurisdiction reposed under article 163(4)(a) of the Constitution. We accordingly proceed to exercise our jurisdiction as sought.
b. Which is the forum with original jurisdiction in the first instance to hear and determine the dispute between Pensioners and the Trustees of a Pension
74.
Our critical examination of the recent decisions before the courts and quasi-judicial bodies in regard to disputes between members and beneficiaries of pension schemes and Trustees of the pension schemes reveals that despite the existence of sections 46(1) and 48(1) of the RBA Act, the High Court, the Employment and Labour Relations Court, the Retirement Benefits Appeals Tribunal and the CEO have heard and determined pension disputes involving retired employees.
75.
For instance, in Director of Pensions -v- Cockar (2000) 1 EA 37, a pension dispute arose between the appellant and respondent; a suit was filed at the High Court and a subsequent appeal was heard and determined by the Court of Appeal. In Teachers Service Commission -v- Simon P Kamau & 19 others, Civil Appeal No 300 of 2009, the respondents were retired teachers and the High Court and Court of Appeal heard and determined a pension dispute between the parties. In the High Court case of The Trustees of Teleposta Pension Scheme v Mackenzie M Mogere, Nairobi HC Civil Appeal No 141 of 2012, Mr Mackenzie complained that the appellant had calculated and paid him a retirement benefit using a wrong pension method, period or formula which led to a lower pension sum being offered to him. Mr Mackenzie complained to the Chief Executive Officer of the Authority who dismissed the complaint and he appealed to the Appeals Tribunal which found merit in his complaint. The Court of Appeal in Kenya Ports Authority -v- Industrial Court of Kenya & 2 others, Civil Appeal No 236 of 2012 held that pension disputes are not trade disputes and the Labour Court has no jurisdiction to hear pension disputes which is a jurisdiction reserved for the Authority.
76.
In Stephen Wahome Ihiga & 16 others v Retirement Benefits Authority & Kenya Airports Authority Staff Superannuation Scheme, Retirement Benefits Appeals Tribunal (RBAT) at Nairobi Civil Appeal No 3 of 2013, the members had appealed to the Tribunal alleging that the Authority and the Trustees of the pension scheme had failed to give the members annual pension increases as required by the law and for unlawfully and wrongfully applying the Trust Deed and Rules dated June 26, 2002 instead of the Trust Deed and Rules dated 2nd October, 2006 in the calculation of their benefits. The RBAT at Nairobi Civil Appeal Number 4 of 2013, Christopher Wachira Gathiteri & 2 others v Retirement Benefits Authority & Kenya Airports Authority Staff Superannuation Scheme, except for few allowances, this case bears a similarity with Stephen Wahome Ihiga & 16 others (supra). Other similar cases from the RBAT are Appeal No 5 of 2013 SMEP Staff Retirement Benefits Scheme v Retirement Benefits Authority, RBAT Appeal No 3 of 2010 Anne Wangui Ngugi & others v Retirement Benefits Authority, Kenya Commercial Bank Staff Retirement Benefits Scheme & Kenya Commercial Bank DC Scheme, RBAT Appeal No 8 of 2010, Elias Maina Murigi & 133 others v Retirement Benefits Authority, National Bank of Kenya Staff Retirement Benefits Scheme, Bank of Kenya Staff Pension Fund Registered Trustees & Alexander Forbes Financial Services (East Africa) Limited, and many others.
77.
What is emerging from the above observations is a situation where disputing parties have options to choose the forum to approach in the quest for justice which in our view is an injustice in itself and a mortification of our judiciary and the jurisdictional competence set by the Constitution in our judicial hierarchy. Such bridled state of events leaves the powers of the courts to the whims of judicial forum seeking litigants who practise before our courts to decide and choose at their own will the fora for dispute resolution in total disregard to the jurisdictional limits set out in the Constitution. It portends an imitable case of judicial forum shopping and an abuse of the court process.
78.
The blowback to this is the uncertainty in law created by the discordant and inharmonious manner in which similar disputes related to pensioners and Trustees of pension schemes have been adjudicated before our courts, tribunals and statutory bodies with quasi-judicial authority. Certainty in law enables planning of human affairs in reliance on the law, and the realization of expectations based on such planning. It makes for uniformity in the administration of justice, and prevents the unbridled discretion of the state organs mandated to perform judicial and quasi judicial functions.
79.
The place of certainty in law was explained in the decision of Sir Charles Newbold, P in Dodhia v National & Grindlays Bank Limited and another [1970] EA 195, where he pronounced himself in the following terms, thus:
“
A system of law requires considerable degree of certainty and uniformity and such certainty and uniformity would not exist if the courts were free to arrive at a decision without regard to any previous decision of its own.”
80.
As a basic principle, as a neutral arbiter, it should not be for the court to enter into the litigation forum and advise litigants in an adversarial system such as ours on how, when and where to ventilate their grievances, save for the Court to speak through its judgment. This Court, as the ultimate judicial forum and whose decisions are binding on all the courts as provided for under article 163(7) of the Constitution and with an obligation under section 3(a) of the Supreme Court Act 2011 (Act No 7 of 2011) to “assert the supremacy of the Constitution and the sovereignty of the people of Kenya and to provide authoritative and impartial interpretation of the Constitution, this Court therefore must safeguard the processes of administration of justice in this Country and by dint of section 3(d) to improve access to justice and to ensure that the administration of justice and judicial processes in the Country are in compliance with the Constitution and the primary laws regulation such processes.
81.
On the other hand, article 259(1) of the Constitution introduced a new approach to the interpretation of the Constitution. It decrees the Courts to interpret the Constitution in a manner that “promotes its purposes, values and principles, advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights, permits the development of law and contributes to good governance.” [Emphasis ours]
82.
The inference to be drawn from the above Constitutional provisions and case law is that in its constitutional mandate to develop the law, the Supreme Court will be occasionally and in momentous occasions called upon, as in this case, to settle the inconsistencies in the lower courts and thereby bring clarity, uniformity and certainty such as may stand as a constraint to the growth of the law. It is on the above legal principles and the constitutional mandate of this court that we have stated above that we undertake to settle the law in this regard.
83.
As already noted, it is imperative to consider each of these fora and its attendant jurisdiction over disputes. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/83/eng@2019-11-08 |
Application 34 of 2018 | Onchiri (Suing on Behalf and in the Interest of 475 Person Being Former Inhabitants of KPA Maasai Village within Nairobi) v Kenya Airports Authority & 4 others (Application 34 of 2018) [2019] KESC 3 (KLR) (8 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, I Lenaola | 8 November 2019 | 2,019 | Nairobi | Civil | Onchiri (Suing on Behalf and in the Interest of 475 Person Being Former Inhabitants of KPA Maasai Village within Nairobi) v Kenya Airports Authority & 4 others | [2019] KESC 3 (KLR) | null | A. Introduction
1.
This is an application by way of a Notice of Motion dated 26th November, 2018 brought Under Article 163(4), (5) and (6) of the constitution, section 5 of the Supreme Court Act, rules 24, 3(1), 35(3) and 53 of the Supreme Court Rules. The application seeks the following orders:
a.
That the Application is urgent and should be dispensed with in the first instance.
b.
That this Honorable court be inclined to issue or order granting the Applicant leave to file an appeal out of time.
c.
That this honorable court do grant or order certifying that this matter raises issues of general public importance.
B. Background
i. Proceedings at the High Court
2.
The genesis of this cause is the evictions that took place in Maasai Village in Embakasi area of Nairobi County on the morning of 29th October, 2011 where the applicant together with many others had made their homes and complimentary social amenities. It is their case that they had settled in an area comprised in thirteen (13) titles from 1982, constructed permanent and semi-permanent dwelling houses, schools, churches, medical facilities and other establishments; that they enjoyed actual and uninterrupted possession for a period of 18 years; and that the Government also provided additional social amenities and security to the residents. However, on the 15th September, 2011 the Kenya Airports Authority (the 1st respondent) placed a notice which the applicant described as a reminder in the Daily Nation newspaper of 18th September, 2011 that read;
Notice to Vacate Illegally Developed and Encroached Portions of Kenya Airports Authority Land LR No. 21919 at Kyangombe, and Syokimau, Jomo Kenyatta International Airport and LR No. 209/13080 Mitumba Village at Wilson Airport.”
The notice required those who had encroached upon the identified parcels to vacate them within seven days of the reminder. The notice did not affect the applicant as the portions they occupied were only adjacent to LR No. 21919.
They nonetheless, through their advocate wrote to the 1st respondent drawing its attention to a pending suit being Petition No.103 of 2011 and the existence of an order therein in respect of the parcels of land adjacent to the parcels forming the subject matter of the notice. On the morning of 29th October, 2011 despite this letter, a battalion of police officers, said to be acting on the instructions of the 3rd respondent, officials of the 2nd respondent and other state officials descended on the applicant’s structures on the suit land with bulldozers and earth movers evicting the applicant and the families in occupation of the suit land, after razing to the ground their dwellings and all other amenities. | D. Analysis
23.
Rule 53 of the Supreme Court Rules, 2012 grants this Court discretion to extend time. It provides that “
“
the Court may extend the time limited by these Rules, or by any other decision of the Court.”
24.
It is the applicant’s submission that upon the Court of Appeal delivering its verdict on 24th March 2017, it filed a Notice of Appeal immediately. Nevertheless, the applicant claims that his delay in filing within the prescribed time is due to facts that were beyond his control and further that the delay was occasioned by the financial difficulties of the applicant and those on whose behalf the suit was instituted owing to their eviction. The respondents on the other hand oppose this application by stating that there has been inordinate delay by the applicant, he has not offered an explanation for the delay and they have also not complied with the proper procedure for seeking certification from the Court of Appeal in order to bring this matter to the Supreme Court.
25.
Rule 33(1) of the Supreme Court Rules thus provides:
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a.
a petition of appeal;
b.
a record of appeal; and
c.
the prescribed fee”.
26.
Rule 33(4) of the Supreme Court Rules thus provides:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order” [emphasis supplied].
27.
Further, Rule 33(6) of the Supreme Court Rules, provides as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
28.
Concerning extension of time, this Court has already set the guiding principles in the Nick Salat Case (supra) 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]
29.
Further, in the case of County Executive of Kisumu case (supra), this Court 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.
30.
In the present case, we note that there is no certificate of delay from the Deputy Registrar of the Court of Appeal.
31.
In considering the applicant’s explanation that there were financial challenges, we take note of the number of persons involved in the application vis-a-vis the requisite court filing fees and are not satisfied that the 476 of the affected parties could not raise the court registry filing fee which is about Kshs.1,500/-. Moreover, the applicant being represented by counsel, it is inconceivable that counsel would not have invoked the provisions of section 50 of the Supreme Court Act on proceedings in forma pauperis, which is designed to assist financially challenged litigants.
32.
Consequently, in light of all the above, it is our finding that the applicant has not satisfactorily explained the inordinate delay of twenty (20) months and has thus not met the threshold required for extension of time as per the guidelines/principles laid down by this court in the Nick Salat Case.
33.
We are thus inclined to*disallow the application for extension of time with costs against the applicant.
34.
Having said so, we now turn to the remaining prayer seeking to have the matter certified as that raising issues of general public importance. The applicant seems to invoke our jurisdiction under Article 163(4), (5) and (6) and section 5 of the Supreme Court Act. As rightly submitted by the 2nd respondent, section 5 of the Supreme Court Act and Article 163(5) and (6) of the Constitution do not suffice as they do not bear relevance in the matter at hand. This leaves us with Article 163(4) that grants us appellate jurisdiction from the Court of Appeal. This provision relates to our appellate jurisdiction in two respects – as of right and pursuant to certification as involving general public importance.
35.
We note that the matter originated by way of a petition for enforcement of fundamental rights and freedoms under several provisions of the Bill of Rights enshrined in our Constitution following a forceful eviction process that involved demolition and razing to the ground dwellings situated at Maasai Village along North Airport Road inhabited by the applicant, those he represents and their families with the aid of a battalion of police, bulldozers and earthmovers. The applicant had sought declaratory reliefs relating to violation of Articles 27, 28, 29, 31, 40, 3, 45, 47, 53, 54, 56 and 57. He had also sought other reliefs for injunction, restoration of property, compensation, general and exemplary damages.
36.
From the foregoing, we see no basis for the applicant failing to invoke Article 163(4)(a) of the Constitution to lodge his appeal as of right involving the application and interpretation of the Constitution. The enforcement of the Bill of Rights transcended to the Court of Appeal although the Court of Appeal noted that the dispute had been settled by consent, leaving only the question of damages for its determination. These damages may as well be considered in the context of violation of the applicant’s constitutional rights, the basis upon which the suit was instituted.
37.
However, even if the applicant opted to pursue his case under Article 163(4)(b) of the Constitution, as he seems to be doing and to which he is entitled, then it is clear, as we have stated in the past that such an application ought to be originated at the first instance before the Court of Appeal. In any event, should he be unsuccessful in that process, he retains further recourse to invoke our jurisdiction under article 163(5) of the Constitution to review such a decision by the Court of Appeal on certification. Unfortunately, the applicant makes no reference to this step or why he should be exempted from it, leading to our inevitable conclusion that the present application for certification before us is premature. We cannot therefore grant the said prayer as sought.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/3/eng@2019-11-08 |
Originating Motion 23 of 2017 | Wandabusi & another v Attorney General for and on behalf of the Commissioner for Lands & 3 others (Originating Motion 23 of 2017) [2019] KESC 4 (KLR) (8 November 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 8 November 2019 | 2,019 | Nairobi | Civil | Wandabusi & another v Attorney General for and on behalf of the Commissioner for Lands & 3 others | [2019] KESC 4 (KLR) | null | The applicants in this matter filed an Originating Motion on 20th December 2017 seeking a review of the refusal to grant certification by the Court of Appeal at Eldoret in Civil Appeal No.118 of 2017, through it’s ruling delivered on 16th November 2017. The application is supported by respective affidavits by the applicants. The applicants also filed written submissions and a list of authorities on 14th September 2018.
2.
The applicants submit that the intended appeal involves a matter of general public importance that deserves to be admitted to appeal before this court and as such for it involves public land namely parcels numbers 1062 later subdivided into 6666 registered to Mohammed Noor, the 3rd respondent and 6668 registered to Bungoma County Council, which has since been succeeded by the Bungoma County Government under the new constitutional dispensation following the promulgation of the 2010 Constitution. The applicants seek restoration of the original title No. 1062 in their favour and faults the Court of Appeal for failing to take into account additional evidence introduced and allowed in which the 2nd respondent consented to giving back part of the said parcel to the applicants; that the judgment is a nullity having been delivered by a bench that included a judge who did not participate in the hearing of the appeal and that the application to the Court of Appeal was refused and rejected on wrong principles of law and fact.
3.
The applicants argue that their intended appeal meets the threshold for certification as laid down by this court in Hermanus Phillips Steyn v Giovanni G Ruscone Sup. Ct App No.4 of 2012 [2013]eKLR, Malcolm Bell v Daniel Toroitich Arap Moi & Another Sup. Ct Appl. No. 1 of 2013 [2013]eKLR and Town Council of Awendo v Nelson Oduor Onyango & 13 others Misc. Appl. No.49 of 2014 [2015]eKLR; that the County is registered as trustees for the benefit of the residents of Bungoma and the Bukusu people whose original land was taken including the deceased’s parcel; that the decision over the land will affect the many residents of Bungoma County who would otherwise be entitled to get the land as the 3rd respondent did; that the land might be put into public use by building a school or market or hospital and other public facilities or utilities; that the issue of other people whose land may have been taken and registered in the name of the County Council can assert their claim even after many years, needs to be considered and that the issue that the County Council recommended in their full Council meeting to give at least 1.5 acres of the suit land to the applicants as the original owners before the land adjudication process needs to be considered as binding on them.
4.
In response to the 2nd respondent’s ground of objection that the application is filed out of time, the applicants submit that the fourteen day rule under Rule 24(2) of this Court’s Rules is not mandatory as this Court has discretion to waive certain forms on the conduct of proceedings. The applicants cite this Court’s decisions in Telcom Kenya Limited v John Ochanda & 996 others [2015] eKLR and Dhanjal Investments Limited v Kenindia Insurance Company Limited Sup Ct. Civil Appl. No.39 of 2014 [2016]eKLR. With regard to failure to annex the decision of the High Court to the application for review of certification and the failure to put in written submissions in support of the application, the applicants submit that the same is not fatal and urge this Court to consider its duty to deliver substantive justice.
5.
Despite several mentions before the Hon. Deputy Registrar of this Court to ensure compliance by all the parties, only the 2nd respondent filed grounds of opposition, written submissions and a list of authorities all on 29th June 2018. It appears from the heading of the applicants’ pleadings that the 3rd respondent has already died. The 4th respondent no longer exists under the new constitution with the establishment of the Bungoma County Government, represented by counsel for the 2nd respondent. This effectively left the Hon. Attorney General as the party who has not complied with the directions issued by the Hon. Deputy Registrar.
6.
| Back to the issue of certification, we reiterate that the applicants have to demonstrate satisfactorily that there is a legal question the subject matter of which transcends the present litigation. We note that the Court of Appeal was not satisfied that the subject of the intended appeal is public land, the subject property having been compulsorily acquired. Instead, the learned Judges of Appeal discerned from the claim that the intended appeal relates to a dispute involving private interests of the deceased from which the applicants accrue their rights.
14.
We have perused the pleadings, the judgments by the High Court and by the Court of Appeal. Whereas, were it a fact that the subject property was public land could have been persuasive to warrant the grant of a certification, the applicants have fallen short of demonstrating the same to our satisfaction beyond a mere restatement that the intended appeal raises issues of general public importance. It is apparent that the basis of submissions and ultimate decision of this Court is likely to revolve around determination of the applicants’ rights over the suit property as opposed to the then County Council’s rights over the suit property. The following caution in our judgment in Dhanjal Investments Limited v Kenindia Insurance Company Limited Sup Ct. Petition No.7 of 2016 is imperative under the circumstances:
(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.”
15.
On the new evidence adduced before the Court of Appeal, it was rather puzzling that despite the then County Council passing a resolution to award the applicants property, they went ahead to oppose the suit right from the High Court to this Court. As a public body, we expected them to conduct themselves better on the matter. As the evidence of the Council Minutes is not in issue in light of the Court of Appeal’s determination of the question before it, and the same being uncontested, we expected the 2nd respondent to adopt a more responsible approach towards the applicants in resolving the dispute at hand. For this, they have to bear their own costs before us.
16.
Based on the above findings and pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 24(5) and 53 of the Supreme Court Rules, 2012, we make the following Orders:
a)
The Originating Motion filed on 20th December 2017 is hereby disallowed.
b)
Each party to bear their respective costs in this application.
It is so ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/4/eng@2019-11-08 |
Petition 17 of 2015 | John Florence Maritime Services Limited & Conken Cargo Forwarders Limited v Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office De Gestion Du Freit Maritime (Ogefrem) (Petition 17 of 2015) [2019] KESC 20 (KLR) (Civ) (25 October 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola | 25 October 2019 | 2,019 | Nairobi | Civil | John Florence Maritime Services Limited & Conken Cargo Forwarders Limited v Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office De Gestion Du Freit Maritime | [2019] KESC 20 (KLR) | null | The Appellants moved this Court invoking Article 163(4)(a) of the Constitution, Section 15 of the Supreme Court Act and Rules 9, 33 and 42 of the Supreme Court Rules 2012. They filed a petition of appeal dated 9th September, 2015 seeking the following orders:
a.
An order does issue restraining the 1st, 2nd and 3rd Respondents from levying any fees that are not provided for under the Bilateral Agreement dated 30th May, 2000, thereafter gazetted on 30th August, 2002, and more specifically restraining them from demanding for the payment of any monies, taxes or levies in addition to the collection of the commission specified of only 1.8% of the Gross Freight Charges paid by shipping lines on imported cargo destined for the Democratic Republic of Congo, and then only on the condition that all such payments must and shall be made or effected and receipted only to, and by the Merchant Shipping Office.
b.
A declaration be made that any provision(s) not having the force of Law in Kenya and which require the payment of anything over and above the sum of 1.8% of the Gross Freight Charges paid by shipping lines on imported cargo destined for the Democratic Republic of Congo are in contravention of the Petitioners’ fundamental rights and freedoms under Article 95 of the Constitution and are therefore null and void ab initio.
c.
A declaration that the Bilateral Agreement entered into on 30th May, 2000 and known as the “AGREEMENT ON MARITIME FREIGHT MANAGEMENT” is null and void and that its continued enforcement by any person as part of the Laws of Kenya contravenes the Petitioners’ fundamental rights and freedoms under Articles 2, 40, and 95 of the Constitution and are therefore null and void ab initio.
d.
A declaration be made that any and all provisos not having the force of law in Kenya and that contravene the Petitioners’ fundamental rights and freedoms under Article 95 of the Constitution be held to be null and void ab initio.
.e.
A declaration be made that any provisions of law that contravene the Petitioners’ fundamental rights and freedoms under Article 40 of the Constitution be held to be null and void ab initio.
f.
A declaration be made that any provisions of the Agreement that (sic) contravenes the terms of Article 2 of the Kenyan Constitution be held to be null and void ab initio.
g.
Such further and or other orders, directions or writs as the Court may deem fit, just and appropriate to grant.
h.
Costs of and incidental to the petition.
The petition is supported by affidavits sworn by Mr. Gilbert Ojwang and Mr. Joseph Gacheru who are Directors of the 1st Petitioner.
2.
Upon being served by the petition, the 3rd Respondent, Kenya Maritime Authority, filed a Notice of Motion application dated 4th October, 2015 seeking to strike it out. The application was grounded on the following, that:
i.
This Honourable Court does not have jurisdiction to entertain this appeal as it has not certified the same to be an appeal involving a matter of general public importance and there will not be any and/or any substantial miscarriage of justice if the appeal is not heard.
ii.
The intended appellant has not deigned it necessary to make an application either to this Honourable Court or to the Court of Appeal to have its intended appeal certified as an appeal involving a matter of general public importance.
iii.
The appeal has no reasonable prospects of success and will be a burden on the taxpayer as the petition in the High Court from which the appeal emanates, to wit, HC Constitutional Petition No. 64 of 2013, Mombasa is res judicata as the issues raised therein were directly and/or substantially in issue in Judicial Review Application No. 130 of 2011 and Court of Appeal Civil Appeal No. 42 of 2014.
iv.
The appeal is scandalous, frivolous and vexatious and would otherwise be an abuse of the court process.
It is this application for striking out of the Petition that is subject of this Ruling.
II. Litigation Background
3.
The Appellants are Kenyan registered companies carrying on the business of clearing and forwarding of imported goods within the Mombasa port. They claim that they ran into problems with the 4th Respondent, an agent of the Democratic Republic of Congo (DRC), in respect of all imported cargo destined for DRC.
4.
They argue that a bilateral agreement on Maritime Freight Management was entered into on 30th May, 2000 between Kenya and DRC. Under the agreement, Kenya was tasked with collection of taxes and levies for DRC through the 1st to 3rd Respondents. The agreement was to remain in force for a period of three years subject to a one-off renewal for a further period of three years. 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.
5.
On 26th October, 2012 the 4th Respondent issued circulars to Shippers, Forwarders and Agents stating that effective 29th October, 2012, all payments for Fiche Electronique de Renseigment Certificate (“FERI”) as well as Certificate of Destination (“COD”) would be made to its account and that such payments were to be made in US Dollars only after all documents were submitted and validated at its offices.
6.
These new requirements aggrieved the Appellants who alleged that they were onerous and in blatant breach of the bilateral agreement and that the payments could only be collected by the 1st Respondent on behalf of DRC but not by payment to a private individual’s bank account in Italy. They also opined that the bilateral agreement should have been subjected to Parliamentary approval so as to form part of laws of Kenya, which was not the case, hence its enforcement amounted to a constitutional violation to the detriment of the Appellants. | V. Analysis
25.
The 3rd Respondent’s case is that the Appellants’ appeal raises no issue involving interpretation and application of the Constitution and as such this Court has no jurisdiction under Article 163(4)(a) of the Constitution to hear and determine that appeal. They also urge that neither has the appeal received certification by either the Court of Appeal or Supreme Court under Article 163(4)(b) of the Constitution.
26.
We reiterate that this Court’s appellate jurisdiction as exercised under Articles 163(4)(a) and 163(4)(b) are quite distinct. This dichotomy was outlined by the Court in the case of Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd. and J. Harrison Kinyanjui & Co. Advocates, SC Petition No. 3 of 2012, at para 20-21, thus:
“
At the outset, we consider it crucial to lay down once again the principle that only two types of appeal lie to the Supreme Court from the Court of Appeal. The first type of appeal lies as of right if it is a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from this Court or Court of Appeal.
The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. This means that where a party wishes to invoke the appellate jurisdiction of this Court…….then such intending appellant must convince the Court that the case is one involving a matter of general public importance.”
27.
As the two kinds of appeals are different, where a party before the Court invokes a particular appellate jurisdiction, his/her appeal cannot be challenged on the premise that it does not meet the threshold of invoking the other parallel appellate jurisdiction. We would therefore examine the matter before this Court not on whether it meets the certification criterion, but whether it involves matters of constitutional interpretation and application. This is because the Appellants have been clear that their appeal is brought under Article 163(4)(a) of the Constitution. Consequently, we would disregard any submissions bordering on the need for or lack of certification.
28.
Urging lack of jurisdiction, the Respondents’ case is that the Appellants’ case before the High Court was struck out because it was found to be res judicata. The Court stated that the matter had purported to raise issues already raised and determined in an earlier case: JR Application No. 130 of 2011. This finding was upheld by the Court of Appeal. The Appellants’ response is an interesting one. They aver that the ruling striking out of their matter as being res judicata, is what they are aggrieved with, but on the basis that it denied them an opportunity to be heard. They contend that as a consequence of the res judicata finding, their right to a fair hearing under Article 50(1) of the Constitution was denied. This, they submit raised a constitutional matter under Article 163(4)(a) of the Constitution.
29.
We take note that we are dealing with an application to strike out an appeal for want of jurisdiction. Before the Court is not the determination of the substantive appeal. We are cognizant of the fact that we need to examine the Appellants’ appeal not on its factual merit, but within the legal lens of whether the appeal invokes this Court’s appellate jurisdiction under Article 163(4)(a), to wit: Is there a constitutional issue for determination in this matter?
30.
The Respondents’ answer to the above question is in the negative. They urge that res judicata is a common law principle that raises no constitutional question, that res judicata as a principle only aids the course of justice by ensuring finality in litigation. On the other hand, the Petitioners’ are emphatic that the way that principle was invoked and applied in this matter infringed on their constitutional right to be heard.
31.
Quite clearly, the contest before the Court is not on the principle of res judicata, per se. We find that no party is challenging the rationale or otherwise of this principle in this application. Hence, the Court will not belabor on what constitutes res judicata. It is worth stating that this Court has already pronounced itself on this res judicata principle in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR. The contention before this Court, therefore is that in its consideration of the principle of res judicata, the High Court did not grant the Petitioners a fair hearing. Is this a matter of constitutional interpretation and/or application?
32.
As to what constitutes a matter involving interpretation and application of the Constitution, the conventional approach is that a particular provision of the Constitution must have been in issue for an interpretation and/or application from the High Court and the Court of Appeal. However, that is not the final point of inquiry. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application 5 of 2014, [2014] eKLR (The Munya I case) this Court developed a broader approach. Relying on its earlier decision in the Peter Oduor Ngoge v Francis Ole Kaparo & 5 Others, [2012] eKLR case, the Court stated at [paragraph] 69 thus:
“
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.”
33.
Therefore, a pragmatic understanding of that jurisprudence is, that it is not only specific provisions of the Constitution that brings a matter under the ambit of Article 163(4)(a) of the Constitution. There may be other factors. This point was also well elaborated in the Hassan Ali Joho & another v Suleiman Said shabaal & 2 others, Petition No. 10 of 2013 (The Joho case), when this Court held as follows:
“
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. Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture the principles and values embodied in it.”
34.
It therefore emerges that in evaluating whether a matter raises a constitutional issue of interpretation and/or application, this Court should not be narrow-minded in its inquiry. The quest for discovery should not start and stop with a determination of whether or not there is a specific provision of the Constitution that was at issue before the Superior courts. Instead, there is need for a holistic inquiry of all the various facets of the law as pleaded by the parties if they do indeed raise a constitutional question. This is the constitutional trajectory that requires a look at a Court(s)’ reasoning and even the processes and procedures adopted by a court in its proceedings.
35.
Consequently, to para-phrase what we laid out in the Joho case, a question regarding the interpretation and application of the Constitution may arise from a multiplicity of factors and not necessarily an interpretation and application of a specific provision of the Constitution. Upon consideration, we are inclined to find that the Appellants’ case fits this bill. While the High Court and Court of Appeal were only charged with a common law doctrine of res judicata, it is alleged that the manner in which the High Court applied the doctrine in its proceedings infringed upon Article 50(1) of the Constitution, by denying the Petitioners a right to be heard.
36
Such a contention by a litigant before this Court draws the Court’s attention particularly given the fact that the right to Fair hearing provided for by Article 50(1) of the Constitution is a non-derogable right under Article 25 of the Constitution. If the Petitioners’ contentions were to be found to have merit, then it cannot be otiose to conclude that, the determination of the High Court took a constitutional trajectory by infringing on a fundamental right. The Appellants’ allegations, if affirmed, would suffice to conclude that while the Court was considering the application of a common law doctrine of res judicata; its determination took a trajectory that infringed on Article 50(1) of the Constitution.
37.
To ably dissect and interrogate the Appellants’ case, this Court has to peruse the Record of Appeal filed alongside the Petition of Appeal. However, as a Court of law, such a venture can only be embarked on upon a satisfaction that this Court is ably clothed with jurisdiction, something the respondents have alleged this Court does not have. In determining whether the Court has jurisdiction in this matter, we take note that the Supreme Court is not only charged with the interpretation and application of the Constitution, but the protection of the Constitution as well.
38.
The Court has to be always cognizant of its mandate under section 3 of the Supreme Court Act, which mandate is partly effectuated via the appellate jurisdiction in Article 163(4)(a). This was well noted in the Joho Case thus:
“
(51)
In defending the Constitution and the aspirations of the Kenyan people, this Court must always be forward-looking, bearing in mind the consequences of legal uncertainty upon the enforcement of any provision of the Constitution. This aspect of defending the Constitution is replicated under Article 163 (4) (a), which allows appeals from the Court of Appeal to the Supreme Court as of right, in any case involving the interpretation or application of the Constitution. Such is the approach that this Court in hearing this appeal must seek to apply.
(52)
Applying a principled reading of the Constitution, this Court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of Article 163 (4) (a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this Court, in furtherance of the objects laid out under Section 3 of the Supreme Court Act, 2011 (Act No. 7 of 2011)."
39.
It again follows that a determination of whether a matter has met the appellate jurisdictional threshold embodied in Article 163(4)(a) of the Constitution is not based on principles cast in stone. This is a discretionary mandate and power that the Supreme Court exercises judiciously on a case to case basis. Therefore, where a litigant before this Court alleges that in exercise of their constitutional mandates the Superior Courts contravened the Constitution in the conduct of their proceedings, in protecting the Constitution that is the embodiment of the aspirations of the People of Kenya, this Court may assume jurisdiction to correct such an anomaly.
40
It should be noted that it does not follow as a matter of cause that where a litigant, like the Appellants before us, files a Petition of appeal, which appeal prima facie triggers the discretion of this Court and the Court assumes jurisdiction, that that appeal must succeed. Assumption of jurisdiction is a legal question at the discretion of this Court. On the contrary, succession or otherwise of an appeal is a factual issue determined on merit on the basis of the peculiarity of each case and how those facts are applied to the law.
41.
In this matter, we find that the appeal before this Court raises a novel and prima facie issue that rightly invokes this Court’s jurisdiction under Article 163(4)(a) of the Constitution. A perusal of the Petitioners’ case reveals that there is an allegation that the manner in which the High Court determined the question of res judicata was somehow summarily and unprocedural. That while a Preliminary Objection was raised; the same was not based on a pure point of law within the jurisprudence of Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696 as regards the nature of a Preliminary Objection. It is contended that the respondents raised the issue of res judicata, which issue needed material determination by a court of law through presentation and examination of material evidence, something that the Petitioner alleges was not done by the High Court. Further it is contended that while there were allegations of the Appellants being parties to the previous case, no material evidence was provided to confirm that indeed the Appellants were parties.
42.
We find that these issues as framed fall squarely within this Court’s appellate jurisdiction in Article 163(4)(a) of the Constitution and calls for the Court to exercise its discretion by taking up the matter. Once the Court assumes jurisdiction, it will then be able to consider the singular question which we consider correctly raises a matter constitutional interpretation and application before this Court, to wit: did the High Court procedurally consider the plea of res judicata or did it infringe on the Appellants’ right to fair hearing in the res judicata proceedings, hence condemning them unheard? | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/20/eng@2019-10-25 |
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) [2019] KESC 2 (KLR) (25 October 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, N Ndungu, I Lenaola | 25 October 2019 | 2,019 | Nairobi | Civil | Mulima & 2 others | [2019] KESC 2 (KLR) | null | A. Background
1.
On 2nd August 2019, the second to sixth Respondents (the Applicants) filed an application dated 29th July 2019, seeking amongst other prayers, the striking out of the Petition filed by the Petitioners on 10th May 2019. The application is premised on the grounds, inter alia, that the record of appeal filed by the Petitioners did not contain a certified copy of the decree or order from the Court of Appeal and is therefore defective for failing to comply with the provisions of Rule 33(4)(d) of the Supreme Court Rules, 2012 (the Rules).
2.
The Applicants further contend that the Petitioners did not comply with Rule 33(6) of the Rules by failing to file a supplementary record of appeal to include the missing certified copy of the order or decree of the Court of Appeal.
3.
The Applicants furthermore argue that, while the Court of Appeal Judgment was delivered on 24th February 2017, the Petitioners had failed to extract the relevant order for over two (2) years which inaction is inexcusable.
4.
It was also contended that the omission to include a copy of the certified order or decree of the Court of Appeal is fatal and inexcusable, as the Rules impose a mandatory obligation on the Petitioners to include such a the certified order or decree.
5.
The application is supported by an affidavit sworn on 29th July 2019 by the Legal Counsel of the sixth Applicant, Ms. Nereah Okanga, for and on behalf of the other Applicants. The deponent reiterates the grounds stated to be in support of the application.
B. The Applicants’ written submissions
6.
The Applicants’ written submissions are dated 29th July 2019 and filed on 2nd August 2019. They submit in that regard that the omission by the Petitioners to include a copy of the decree or order of the Court of Appeal is inexcusable, and that they ought to have prepared themselves adequately before lodging an appeal to this Court.
7.
The Applicants in that regard rely on the decision of this Court in Law Society of Kenya v Centre for Human Rights & Democracy [2014] eKLR where it was held that the use of the word ‘shall’ in Rule 33(1) of the Rules suggests the mandatory nature of the said Rule which therefore requires strict adherence and compliance with all the components thereof. They also rely on Abok James Odera t/a J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR in arguing that the omission is in breach of the overriding objectives of the Supreme Court Act from which the Rules are derived.
8.
It was further submitted that Article 159(2)(d) of the Constitution is not a panacea for all procedural shortcomings, and that the mandatory nature of Rule 33(4)(d) aforesaid is not an issue of procedural technicality, but one of procedural substance. It was thus submitted that the Petitioners have exhibited scant respect for the Rules and procedures of this Court, and cannot therefore plead and rely on Article 159(2)(d) of the Constitution as the answer to their inaction. They furthermore rely on the decision of Sammy Kemboi Kipkeu v Bowen David Kagongo & 2 Others [2018] eKLR to advance the same argument. | (D) Determination
16.
Upon careful consideration of the application, the submissions in support thereof and the response by the respective parties, the issue arising for determination is whether the Petition as filed is incomplete and incompetent for failing to comply with the provisions of Rules 33(4)(d) and 33(6) of the Rules.
17.
In that context, it is common cause that the notice of appeal and subsequent record of appeal were both filed timeously by the Petitioners on 10th May 2019. It is also common cause that the Petitioners’ record of appeal does not contain a copy of the certified decree or order from the Judgment of the Court of Appeal delivered on 24th February 2014.
18.
In determining the above issue, we note that Rule 33(4) provides that a record of appeal filed in this Court shall contain, inter alia, the following documents;
(a)
the certificate, if any, certifying that the matter is of general public importance;
(b)
the memorandum of appeal;
(c)
the record of proceedings; and
(d)
the certified decree or order.
19.
We have previously held in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others Petition (Application) No. 38 of 2018 that where a required document is lacking in the record of appeal, devoid of a sufficient explanation for the omission, then the said record is one for striking out. Have the Petitioners offered a plausible explanation for the omission of the decree or order of the Court of Appeal?
20.
We note in that regard that, on 22nd January 2018, the Petitioners wrote to the Applicants enclosing a copy of a draft decree for their approval. The Applicants responded to the Petitioners’ letter on 2nd February 2018 stating that the decree was erroneous and proposed amendments to the same. On 30th April 2019, the Petitioners wrote another letter to the Applicants and the first Respondent enclosing a draft decree for their approval. The Applicants responded to the letter on 6th May 2019 again rejecting the draft order as in their view, it was not in accordance with the Judgment of the Court of Appeal. On 13th May 2019, the Applicants finally wrote to the Petitioners approving the draft decree that the latter had previously sent to the parties on 9th May 2019. On 5th June 2019, the Petitioners then wrote to the Registrar of the Court of Appeal seeking to be issued with the extracted decree and order of the Court.
21.
From a careful perusal of the chronology of events that took place between 24th February 2014 and 10th May 2019, it is therefore deducible that the Petitioners engaged both the Applicants and the Registrar of the Court of Appeal on various occasions seeking to obtain a decree or order of the Court of Appeal. It is also deducible that the Applicants were aware that the Petitioners were making efforts to obtain a decree or order from the Court of Appeal, and had on several occasions sought to reach an agreement with them on the contents of the draft decree and order.
22.
Although not similar in substance, but definitely similar in principle, we held in Hassan Nyanje Charo v Khatib Mwashetani & 3 others [2014] eKLR that when a party fails to show that there was diligence on its part in trying to obtain proceedings, or that there was no assertion made by any of the other parties as to the industry of a party in seeking to obtain proceedings, this Court would uphold the assumption that all measures had been taken by the party to obtain the said proceedings, and that the encumbrance upon them in obtaining such proceedings was not of their own doing.
23.
In the instant matter, the Petitioners have adduced evidence that they sought, albeit unsuccessfully, to obtain a certified decree or order of the Court of Appeal. Even though there is no certificate from the Registrar of the Court of Appeal supporting or refuting this claim, it is still evident that the Petitioners took all necessary steps to obtain the said decree or order. The omission in filing the said decree or order cannot therefore be wholly attributed to the Petitioners. The Registrar of the Court of Appeal is certainly culpable of aiding this failure to obtain the certified decree or order, and as such, the Petitioners should not be punished for the indolence of the Court of Appeal’s staff and its administrative machinery.
24.
Further, this Court has the discretionary power under Rule 33(5) of the Rules to determine whether a matter before it can proceed without particular documents. That is why in Sammy Kemboi Kipkeu v Bowen David Kagongo & 2 Others (supra), we held that Rule 33(4) does not make a mandatory requirement for the proceedings or notes of a Judge from an appellate Court to be included in a record of appeal. And that the applicability of the requirement for such proceedings would only be mandatory under Rule 33(3)(h) of the Rules when appealing from a Court exercising original jurisdiction. In that case, we exercised discretion in favour of a party which had tendered a reasonable explanation for failure to file proceedings. The same principle applies to the present case albeit not in similar circumstances.
25.
Furthermore, in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others (supra) we rendered ourselves as follows;
“
(18)
… Indeed as the learned appellate Judge stated “this Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. However, in enforcing adherence to the Rules, this Court has discretion in the interest of justice. In the Obado case, despite the Notice of Appeal having not been served at all, the Court considered that no prejudice had been occasioned to the Respondent(s) and excused the same.”
26.
In reiterating the above decision, we note that the Applicants have not shown or established what prejudice they would suffer should this Court choose to exercise its discretionary power under Rule 33(5) of the Rules to disregard the inclusion of the decree or order of the Court of Appeal in the record of appeal under Rule 33(4)(d) of the Rules.
27.
The upshot of our findings above is that, while the non-filing of a document mentioned in Rule 33(4)(d) without explanation would otherwise be fatal and the whole record of appeal would attract the strict sanction of striking out, a party that explains itself sufficiently for an omission would be the beneficiary of a favourable exercise of discretion by this Court. Further, where no prejudice is shown to be caused to the opposing party, the exercise of discretion would even be more warranted. The petitioners in this case, on both fronts, are deserving of that discretion. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/2/eng@2019-10-25 |
Application 21 of 2017 | Musungu v Chesoli & another (Application 21 of 2017) [2019] KESC 19 (KLR) (25 October 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 25 October 2019 | 2,019 | Nairobi | Civil | Musungu v Chesoli & another | [2019] KESC 19 (KLR) | null |
A. Introduction
1.
This is an application by way of a Notice of Motion dated 14th November, 2017 seeking a review of the decision of the Court of Appeal (D.K Musinga & S. Gatembu Kairu JJA & A.K Murgor) dated 25th May, 2017 which refused to certify the cause as a matter of general public importance The application seeks the following substantive orders:
a)
That this Honourable Court be pleased to review and/or set aside the Court of Appeal Ruling in Eldoret Civil Application Number 68 of 2016;
b)
That this Honourable Court be pleased to grant leave to the Applicant to lodge an appeal against the judgment of the Court of Appeal given on 29th July, 2016 in respect of Eldoret Civil Appeal No. 58 of 2013;
c)
That a certificate does issue on the basis that a matter of general public importance is involved and a substantial miscarriage of justice shall occur to the Applicant unless the intended appeal to this Honourable Court against the judgment of the Court of Appeal dated 29th July, 2016 in Eldoret Civil Appeal Number 58 of 2013 is heard;
d)
That a stay of execution of the Bill of Costs of the Court of Appeal be extended until this matter is determined by this Honourable Court;
e)
That status quo of the High Court judgment where it is the Applicant to remain in the suit land is maintained until this Honourable Court determines this matter;
f)
That an inhibition Order is put on the Title Ndivisi/Ndivisi/64 to avoid any transaction on this title until this Honourable Court determines this matter;
g)
That the Director of Public prosecution investigates the fraudulent acquisition of the Title Ndivisi/Ndivisi/64 to the 1st Respondent herein and reports back to this Honourable Court;
h)
That the Land Registrar avails to this Honourable Court all documents used to issue title No. Ndivisi/Ndivisi/64 to the 1st Respondent herein; and
i)
That the costs of this application be in the cause.
2.
The application is premised upon forty (40) grounds in the body of the application and the supporting affidavit of Paul Khakina Musungu sworn on 14th November, 2017. In opposing the application, the 1st Respondent filed grounds of opposition, a replying affidavit and written submissions dated 11th January, 2018. | D. Analysis
14.
Appeals from the Court of Appeal to this Court lie upon certification, on the basis that a matter is one of general public importance as per Article 163(4)(b) of the Constitution.
15.
Further, Section 16 of the Supreme Court Act, permits the Supreme Court to grant leave to appeal to the Court, where the appeal involves “a matter of general public importance”. Section 16 provides thus:
“
(2)
It shall be in the interest of justice for the Supreme Court to hear and determine a proposed appeal if –
(a)
the appeal involves a matter of general public importance”
16.
Additionally, Rule 24 of the Supreme Court Rules, 2012 provides as follows:
“
(1)
An application for certification shall first be made in the court or tribunal it is desired to appeal from.
(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.
(3)
The Court shall in granting the certification review matters that have been certified to be of general public importance.”
17.
This Court has set the test applicable in determining whether a matter is of general public importance in the Hermanus Steyn Case. The Court outlined the governing principles as follows:
(i)
for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
(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 [other] 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 themselves, a basis for granting certification for an appeal before the Supreme Court.”
18.
We have considered the Notice of Motion, alongside the submissions made before this Court, the Replying affidavit and grounds of opposition by the 1st Respondent, and the governing law on such a matter, the principles set down by this Court in Hermanus Steyn Case, and concluded that the proposed appeal is not one fit for admission before this Court. We have already decided in the Malcom Bell Case that questions of adverse possession fall outside this Court’s Appellate jurisdiction. We therefore see no basis at all for admitting the appeal for further consideration and are persuaded to agree with the Court of Appeal’s ruling of 25th May, 2017.
19.
The effect of the above is that we are inclined to disallow the application dated 14th November, 2017. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/19/eng@2019-10-25 |
Reference 2 of 2017 | Council of Governors v Attorney General, The Senate, Law Society of Kenya, Intergovernmental Relations Technical Committee, Commission on Revenue Allocation, Controller of Budget, County Assembly Forum & Katiba Institute (Reference 2 of 2017) [2019] KESC 92 (KLR) (Civ) (18 October 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 18 October 2019 | 2,019 | Nairobi | Civil | Council of Governors v Attorney General, The Senate, Law Society of Kenya, Intergovernmental Relations Technical Committee, Commission on Revenue Allocation, Controller of Budget, County Assembly Forum & Katiba Institute | [2019] KESC 92 (KLR) | null | I. Background
1.
The Applicant, the Council of Governors (CoG), moved the Court on 26th April, 2017 by filing a Reference dated 19th April, 2017 invoking this Court’s Advisory Opinion jurisdiction under Article 163(6) of the Constitution.
2.
In laying a basis for the Reference, the Applicant averred that it receives funding from the Exchequer through allocations for operationalization of devolution activities from the Ministry of Devolution and Planning (MoDP) informed by Section 37 of the Intergovernmental Relations Act No 2 of 2012 (IRA). It however contended that the funds received are inadequate to finance all its activities and to bridge this financing gap, it works in partnership with the County Governments and development partners. However, it was contended that County Governments have been facing challenges in justifying the intergovernmental relations contributions to the Applicant and most recently the Senate Public Accounts and Investments Committee in a Report, recommended ten (10) Governors for prosecution for violating the law by making payments to the Applicant.
3.
As a consequence thereof, the Applicant has sought an advisory opinion of this Honourable Court on the following matters:
(a)
Whether the functions of the Council of Governors as stipulated under Section 20 of the Intergovernmental Relations Act No. 2 of 2012 is of a similar nature or in tandem with the functions of the County Government as enshrined in the Fourth Schedule, Part 2 of the Constitution 2010.
(b)
Whether the intergovernmental relations contributions made by the County governments to the Applicant are unconstitutional.
(c)
Whether pursuant to Section 37 of the Intergovernmental Relations Act, the fundings for the activities of the Council of Governors are restricted to annual allocations from the National Government notwithstanding the inadequacy of the said fund.
(d)
Whether on the strength of Section 37 of the Intergovernmental Relations Act the national government is under obligation to provide adequate financial provisions for operations of the Applicant.
4.
The Reference application was supported by an affidavit sworn by one, Peter Gatirau Munya (the then Chairperson of the Applicant) on 19th April, 2017.
| IV. Analysis & Determination
39.
In our view, there is only one fundamental question to answer: whether the Applicant, COG, is a State Organ within the provisions of Article 260 of the Constitution so as to be clothed with the locus standi to seek an advisory opinion before this Court.
a) Is the Applicant a state organ?
40.
The provisions of Article 163(6) of the Constitution as regards this Court’s jurisdiction have been settled in a number of cases. In Re the Matter of the Interim Independent Electoral Commission the Court, for the first time, expounded on this provision as follows [para.83]:
(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 a 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….
(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 maybe required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.”
41.
In this matter, it is common ground that CoG is neither the national government nor is it among the 47 county governments as known to the Constitution. While it insists, with the support of Katiba, that it is a State organ as it is a body established under the Constitution and/or is an agency of the 47 county governments, the other parties are adamant that it is not a State organ. Who then is a State organ? Article 260 defines a State organ in the following terms:
‘State organ’ means a commission, office, agency or other body established under this Constitution”
Does the Applicant meet this definition? Again, quite clearly, the Applicant is not a commission or an office under the Constitution. This leaves us with the single thread that the Applicant and Katiba are hanging on; that it is a body or agency established under the Constitution. In so doing, they have rendered a lot of premium on the phrase “under this Constitution”. This calls for determination of the question whether there is indeed a need to define this phrase as urged by the Applicant.
42.
Under Article 2(1), the Constitution is the Supreme law of the land. Article 259 of the Constitution then gives the approach to be adopted in interpreting the Constitution, basically in a manner that promotes its purposes, values and principles. Suffice it to say that in interpreting the Constitution, the starting point is always to look at Article 259 for it provides the matrix, or guiding principles on how it is to be interpreted and then Article 260 where specific words and phrases are interpreted. It is imperative to note that while Article 259 deals with construing of the Constitution and outlines the principles that underpin that act; Article 260 deals with interpretation, that is, it is explicit in assigning meaning to the words and phrases it addresses. Hence the opening words in that Article are: “In this Constitution, unless the context requires otherwise-”.
43.
Consequently, in search of the meaning assigned to some words and phrases as used in the Constitution, one needs to consult Article 260 to find out if that particular term or phrase has ALREADY been defined. It is only where the same has not been defined that the Court will embark on seeking a meaning by employing the various principles of constitutional interpretation. So that in looking for the meaning of a particular word or phrase in the Constitution one will go to Article 260 for ‘Interpretation”. For example in defining the word ‘adult’, the Constitution states thus: “adult” means an individual who has attained the age of eighteen years. As explicit as that is, the search for the meaning of the word ‘adult’ will end there. Where the meaning is provided in terms of a collectivity of acts and things, the Constitution in Article 260 is also clear, for instance: “affirmative action” includes any measure designed to overcome or ameliorate an inequity or system denial or infringement of a right or fundamental freedom”. So that in giving meaning to words and phrases under the Constitution, Article 260 is direct in using the term ‘means’ and also deductive in using the term ‘includes’.
44.
With this clear provision in the Constitution, we would have thought that the definition of a State organ was clear and settled by the definition in the Constitution. However, the Applicant and more so, Katiba seem to have a different opinion. They call upon us to define the term “established under this Constitution” broadly.
45.
But even as we consider the Applicant’s and Katiba’s invitation aforesaid, we cannot disengage from the guiding principles in Article 259 of the Constitution on how our Constitution should be construed. The centrality of Article 259 has been aptly stated in the persuasive decision of the High Court in Apollo Mboya v Attorney General & 2 others [2018] eKLR, thus:
20.
It is useful to bear in mind that Article 259 of the Constitution introduced a new approach to the interpretation of the Constitution. It obliges courts to promote 'the spirit, purport, values and principles of the Constitution, advance the rule of Law, Human Rights and fundamental freedoms in the Bill of Rights and contribute to good governance, an approach has been described as 'a mandatory constitutional canon of statutory and Constitutional interpretation'. The Article imposes a mandatory duty upon everyone to adopt an interpretation that conforms to Article 259.
21.
It is also an established principle of interpretation that Constitutional provisions must be construed purposively and in a contextual manner. Courts are constrained by the language used. Courts may not impose a meaning that the text is not reasonably capable of bearing. In other words, interpretation should not be “unduly strained.” It should avoid “excessive peering at the language to be interpreted.”
46.
This Court indeed alluded to the purposive interpretation of Statute in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, [2014] eKLR, where it opined that a purposive interpretation should be given to statutes so as to reveal their true intention. The Court observed as follows:
In Pepper vs. Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the Court is not to be held captive to such phraseology. Where the Court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:
The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted’.”
47.
The persuasive decision of the Court of Appeal in County Government of Nyeri & Another v Cecilia Wangechi Ndungu [2015] eKLR is also illuminating where it was held that:
Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by referen1ce to its particular factors.”
48.
Consequently, laying credence to Article 259 of the Constitution in this matter, we place specific emphasis on Article 259(2) which provides:
"If there is a conflict between different language versions of this Constitution, the English language version prevails.”
In citing Article 259(2), we are not in any way suggesting that there are different language versions of the Constitution that have been submitted before us. On the contrary we are only noting the significance of the English language as the authoritative language to the interpretation of the Constitution. Hence words have to be assigned their meaning as assigned in the English language. It therefore also follows that where a word is used in the Constitution and it appears that a different meaning is created to the known English meaning, then one has to fall back to the known English version meaning of that word. It is on this basis that, as a Court we fall back to the dictionary English meaning of the word ‘under’ as used in Article 260 of the Constitution.
49.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/92/eng@2019-10-18 |
Petition 21 of 2017 | Khalid & 16 others v Attorney General & 2 others (Petition 21 of 2017) [2019] KESC 93 (KLR) (18 October 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu | 18 October 2019 | 2,019 | Nairobi | Civil | Khalid & 16 others v Attorney General & 2 others | [2019] KESC 93 (KLR) | null | I. Introduction
1.
This is an appeal filed as of right under article 163(4)(a) of the Constitution against the decision of the Court of Appeal at Nairobi ( Makhandia, Ouko & M’Inoti JJ A ) dated September 22, 2017 in Civil Appeal No 1 of 2015. The appellants seek several declaratory reliefs against alleged violations of their constitutional rights arising from their participation in a demonstration dubbed “ Occupy Parliament ” held on May 14, 2013. In particular, they seek the following orders:
(i)
This Appeal be allowed.
(ii)
A declaration that the arrest and detention of the appellants violated their rights under articles 29, 32, 33, 36, 49 and 50 of the Constitution hence it was unconstitutional.
(iii)
A declaration that the charges leveled against the appellants are illegal and unconstitutional because they fail to meet the standards set out in article 50 of the Constitution.
(iv)
An order to bring to the Supreme Court for quashing of the trial of Criminal Case No 685 of 2013 (Republic v William Omondi and 16 others).
(v)
A declaration that sections 78(1) and (2) and 94(1) of the Penal Code cap 63 of the Laws of Kenya are unconstitutional therefore null and void.
(vi)
Costs of this Appeal.
(vii)
Any other or further relief that this Honourable Court may deem fit and just to grant.
II. Background
2.
The appellants, together with other members of the Civil Society Organization, and some members of the public organized demonstrations dubbed “Occupy Parliament’ to protest the actions of the then Members of Parliament (MPs) to scrap out the Salaries and Remuneration Commission (SRC) and inflate their salaries and benefits. They duly notified the 2nd respondent of their intentions, and he did not raise any objection.
3.
On May 14, 2013, the demonstrations started at Freedom Corner in Uhuru Park, Nairobi, through the streets of the City. Reaching Parliament buildings, the demonstrators sat down and some of them made speeches criticizing the alleged greed and actions of the MPs. By the gates of Parliament were pigs on whose bodies were painted a ‘corruption’ of the initials “MP” to “MPigs” and names of some Members of Parliament.
4.
Later on, the demonstrations were dispersed by the police with the appellants being arrested. They were detained at Parliament Police Station until the hour of 7pm when they were informed that they will be charged with the offence of cruelty to animals. It is alleged that during the period of detention, the appellants and their counsel were given conflicting information relating to the action the police intended to take; ranging from being told they would be released unconditionally, charged with offences relating to cruelty to animals, or charged with offences relating to offensive conduct conducive to a breach of peace. They were subsequently released on free bond and required to report back to Parliament Police Station on 17th March 2013.
5.
On March 17, 2013, on return to the police station, they were instructed to report to the Chief Magistrate’s Court in Milimani on May 20, 2013 to be arraigned. They duly appeared before the Chief Magistrate’s Court on the set date and were charged with the following offences: (i) Offensive conduct conducive to a breach of peace contrary to section 94(1) of the Penal Code; (ii) taking part in a riot contrary to section 78(1) and (2) as read with section 80 of the Penal Code and (iii) Cruelty to Animals contrary to section 3(1)(c) as read with section 3(3) of the Prevention of Cruelty to Animals Act cap 360 Laws of Kenya.
6.
The Appellants objected to taking plea, raising issues of violations of their constitutional rights during their demonstrations, arrest and arraignment in court. They urged that the Magistrate’s Court finds invalid the charges and/or refer the constitutional questions they raised to the High Court. The Court in a ruling made on May 26, 2013, dismissed the appellants’ requests and directed that they take plea. This Ruling aggrieved the appellants and they sought recourse in the High Court.
| VI. Analysis
(a) Whether the arrest, detention and charging of the Appellants contravened their fundamental rights and freedoms enshrined in the Constitution under articles 32, 33, 36, 49 and 50 and are therefore unconstitutional.
66.
To effectively address this issue, we will evaluate the alleged violations as regards each specific article of the Constitution. It is common ground that the appellants, in furtherance of their right to freedom of conscience, thought, belief and opinion, expression and association as guaranteed under articles 32, 33 and 36 sought to protest the actions of Members of Parliament via demonstrations dubbed ‘occupy parliament’ held on May 14, 2013. The organisers of the protest notified the 2nd respondent who had no objections.
Alleged breach of articles 32 (freedom of conscience), 33 (freedom of expression) and 36(freedom of association)
67.
Undeniably, on the day of the demonstrations, the appellants began their demonstrations peacefully and were escorted by the 2nd respondent until at some point, when the demonstrations were stopped by the Police. This, to the appellants, was unlawful as no announcement was made to the effect that the demonstrations were now unlawful and that the police were not justified in arresting them without warrants.
68.
Determining this issue, the High Court held that it was not open for the Court to determine whether the police lawfully stopped the demonstrations as the issue was germane to the criminal trial and was therefore best left for the Magistrates’s Court in light of the presumption of innocence in favour of the Appellants. In the same breadth, the Court of Appeal held that the issue before the trial Court (Magistrate’s court) will be whether the Appellants conducted themselves in a public place in a manner that was not peaceful to warrant the intervention of the 2nd respondent.
69.
The appellate Court distilled, and in our view rightly so, the constitutional question arising being whether the provisions of the Public Order Act and the Penal Code that allow the police to stop a public meeting or procession and to prosecute the Appellants are unconstitutional. Despite faulting the High Court for not having done a sequential analysis required under article 24 of the Constitution before determining whether the impugned provisions were unconstitutional, the appellate Court had recourse to the plain reading of the provisions of the said statutes against the provisions of articles 24 and 37 of the Constitution and found the provisions valid. It stated in this regards thus:
“
While it is true that the High Court did not undertake the sequential analysing required by article 24 before determining whether the impugned provisions of the Public Order Act and the Penal Code are unconstitutional, a plain reading of that Act and the Code against articles 24 and 37 does not persuade us that impugned provisions are unconstitutional. As we have noted, the freedom of assembly, demonstration, picketing and petition guaranteed by article 37 is circumscribed by the express requirement of the Constitution that it must be enjoyed peacefully and by persons who are unarmed. The issue before the trial court will be whether the appellants conducted themselves in a public place in a manner that was not peaceful.”
70.
The Court of Appeal further found the limitation of the rights under article 32, 33 and 36 by the Public Order Act and the Penal Code to be reasonable and justifiable in a democratic society and pursuant to the tenets of article 24 of the Constitution. It held thus:
“
Turning to the criteria under article 24 of the Constitution, there can be no dispute that the limitation is supplied by legislation, the Public Order Act and the Penal Code, which are laws within the meaning of that article. By its nature freedom to assemble, demonstrate, picket and petition, is critical to a free society because it makes it possible for citizens to gather and express their views, stir public debate, search for truth, and participate in public affairs. Hence the basis of its limitation must be carefully scrutinized. Having regard to the following considerations namely; that by constitutional edict freedom of assembly, demonstration, picketing and petition must be enjoyed peacefully; the public order interest that informs the limitation of the right, namely the need to avoid disorder, violence to citizens, damage to property; the fact that under the Public Order Act and the Penal Code the right is limited only when there is clear, present or imminent danger of breach of peace; the need to ensure that the enjoyment of the appellants’ right does not prejudice the rights and fundamental freedoms of other users of public spaces and thoroughfares who are not involved in the meeting or procession; we hold that the impugned provisions of the Public Order Act and Penal Code are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. We need only point out that many democratic polities have similar public order legislation, such as the Public Order Act, 1986 of the United Kingdom and the Regulation of Gatherings Act, 1993 of South Africa.’
71.
We are in agreement with the Court of Appeal. The limitation to the freedoms of assembly, demonstration, picketing and petition is a well settled principle for order in the society and does not violate the rights provided for in the Constitution. The High Court aptly noted this in the case of Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others [2016] eKLR thus:
“
…the Constitution itself has provided claw-backs. Demonstrators, picketers and petition-presenters must do so “peaceably and unarmed”. Assemblies, picketing and demonstrations which are not peaceful are excluded from the protection of the article. If they consist of violence to or intimidation of the public then the assembly or the demonstration ought to be stopped. Likewise participants in assemblies, picketers and demonstrators must not be armed. Weapons as well as defensive or protective contraptions which breed or stimulate aggression ought not to be possessed by the demonstrators or picketers.
33.
The spirit of the constitutional claw-back is to ensure that the rights of others within the vicinity of the place of assembly or of the demonstrators or picketers are also not interfered with. Thus in the South African case of Fourways Mall(Pty) Ltd v South African Commercial Catering [1999] 3 SA 752 , it was held that the Constitution as well as statute law does not protect picketers who proceed in a manner that interferes with the rights of the public or assault others. The court, in interpreting Section 17 of the South Africa’s Constitution which is pari materia with our Constitution at article 37, was clear that the Constitution does not encourage a volatile environment in a protest march.”
72.
The court continued thus:
34.
It certainly would be an antithesis of constitutional values and principles if picketers and demonstrators are allowed to participate in non-peaceful demonstrations or pickets whilst armed with implements set to stimulate aggression. It is therefore no surprise when the Constitution itself limits the right to assemble, to demonstrate, to picket and to present petitions.
35.
My preliminary view is also that the Public Order Act (cap 56) contrary to popular views does not limit the right to demonstrate or to assemble. It instead seeks to preserve and protect the precious right to public assembly and public protest marches or processions by regulating the same with a view to ensuring order. Part III of the Public Order Act seeks to regulate public meetings and processions by providing for the need to notify the police service and also the power of the police service to stop or prevent a public meeting where appropriate and where it is obvious it will not meet the constitutional objectives. Under the same Part III, the Public Order Act also prohibits the possession of “offensive weapons” at public meetings and processions. In my view, it is a small price to pay to ensure that the assembly or demonstration is peaceful by involving a body enjoined to ensure security, safety and order. Both the participants as well as the non-participants are assured of protection through involvement of security officials.”
73.
Notably, article 33(2) and (3) of the Constitution expressly excludes the freedom of expression from conduct and acts that extends to advocacy for hatred that constitutes vilification of others. The said provisions states:
33(2)
The right to freedom of expression does not extend to
(a)
propaganda for war;
(b)
incitement to violence;
(c)
hate speech; or
(d)
advocacy of hatred that-
(i)
constitute ethnic incitement, vilification of others or incitement to cause harm; or
(ii)
is based on any ground of discrimination specified or contemplated in article 2794).
(3)
In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”
74.
It therefore emerges that the exercise of the right to freedom of expression comes with a counter obligation for respect to the rights and reputation of others. However, limitations based on grounds of vilification of others or respect of the right and reputation of others are matters to be subjected to judicial determination based on specific facts rather than a carte blanche and unilateral imposition. This determination of facts is a matter that can be only legitimately undertaken by a trial Court in evaluation of the evidence presented before it.
75.
Consequently, we agree with the Court of Appeal that the rights in articles 32, 33 and 36 are not prima facie violated by the provisions of the Public Order Act and the Penal code. The limitations granted in these statutes are legitimate as the said rights are not absolute. We hasten to add that for the Appellants to successfully bring themselves within the realm of constitutional challenge of the said Public Order Act, they ought to plead with specificity the alleged provision and the manner in which it is inconsistent with the Constitution. A general attack to legislation does not suffice.
76.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/93/eng@2019-10-18 |
Reference 3 of 2019 | Council of Governors & 47 others v Attorney General & 6 others (Reference 3 of 2019) [2019] KESC 65 (KLR) (8 October 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 8 October 2019 | 2,019 | Nairobi | Civil | Council of Governors & 47 others v Attorney General & 6 others | [2019] KESC 65 (KLR) | null | A. Introduction
1.
This Reference is dated 15th July, 2019 and was filed by forty-seven County governments (herein the Applicants) seeking an Advisory Opinion, pursuant to Article 163(6) of the Constitution. The Applicants had initially sought an opinion on 14 issues which were later reframed to 8 issues by the Applicants on 29th July, 2019. The reframed issues are as follows:
a.
Whether the recommendations of the Commission on Revenue Allocation made under Articles 205 and 216(1) of the Constitution regarding the equitable share of revenue between “the national and county governments” are binding on “the Senate, National Assembly, the national executive, county assemblies and county executive;
b.
Whether the National Treasury and the National Assembly can formulate and publish a Division of Revenue Bill based on a share of revenue which is not based on the recommendations made by the Commission on Revenue Allocation and the criteria set out in Article 202 and 203(1) of the Constitution;
c.
Whether the continued impasse in the enactment of the Division of Revenue Act undermines the objects of devolution and impedes county governments from executing their mandate under Article 186 as read together with the Fourth Schedule to the Constitution;
d.
Whether the National Assembly can enact an Appropriation Act prior to enactment of a Division of Revenue Act;
e.
Whether the failure by the National Assembly and the Senate to agree on the provisions of Division of Revenue Bill triggers a vote on account within the meaning of Article 222 of the Constitution;
f.
Whether the Controller of Budget can approve withdrawal of funds from the Consolidated Fund and County Revenue Fund in accordance with Article 206(4) and 207 of the Constitution in the absence of a Division of Revenue Act for each financial year;
g.
Whether the National Treasury and Parliament can allocate funds in the national government budget for functions exclusively reserved for county governments except as provided for in Article 206 (2) of the Constitution;
h.
What is the reasonable period for release of the equitable share of the revenue to county governments envisaged by Article 219 of the Constitution;
2.
The Applicants’ Reference is supported by an affidavit sworn by Hon. Wycliffe Ambetsa Oparanya on 26th July, 2019 as the Governor of Kakamega County, one of the Applicants.
3.
On 19th July, 2019, the Speaker of the National Assembly, filed a Notice of preliminary objection dated 18th July, 2019 on the grounds that;
a.
The Applicants seek an interpretation of various constitutional and statutory provisions, matters falling within the High Court of Kenya’s jurisdiction under Article 165(3) (b) and (d) of the Constitution of Kenya;
b.
That the issues raised in the Reference are subject of pending proceedings before the High Court of Kenya, namely;
a.
Nairobi High Court Petition No. 277 of 2017, Wanjiru Gikonyo v The Attorney General & Others;
b.
Nairobi High Court Petition No. 252 of 2016, Council of County Governors v The Attorney General & Others;
c.
Nairobi High Court Constitutional Petition No. 284 of 2019, The Senate of Kenya & 3 Others v The National Assembly of Kenya & Another;
c.
That the county governments have not exhausted the mechanism set out in Article 189(3) of the Constitution, of making every reasonable effort to resolve any dispute before resorting to judicial proceedings.
d.
That the Applicants have not demonstrated that they sought the advice of the Attorney General as stipulated in Rule 41(4)(c) of the Supreme Court Rules, 2012.
4.
In response to the preliminary objection, the Applicants filed submissions dated 18th July, 2019. Other parties herein also submitted on the question of this Court’s jurisdiction.
5.
We note that the question of the revenue to be allocated to counties for the financial year 2019/2020 was settled by a joint Mediation Committee set up pursuant to Article 113 and so the issue of an impasse in revenue allocation is now moot to that extent only.
| C. Analysis
25.
The prime issue for determination at this stage is whether this Court has jurisdiction, and whether it should exercise and render an advisory opinion as sought;
26.
The National Assembly’s main argument in the preliminary objection is that this Court has no jurisdiction to entertain the Reference as filed. In that regard, we note that this Court’s jurisdiction to issue advisory opinions is anchored in the Constitution as Article 163(6), stipulates that:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”.
27.
Further, on this Court’s jurisdiction to offer advisory opinions, the Supreme Court Act, 2011 (Act No. 7 of 2011) provides in Section 13 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”.
28.
Furthermore, the Rules of the Supreme Court also provide for the exercise of this jurisdiction. Rule 41 thus states:
“
The National government, a state organ or county government may apply to the Court by way of reference for an advisory opinion under Article 163(3) of the Constitution”.
29.
In several of this Court’s decisions, we have emphasized that the exercise of this Court’s jurisdiction in Article 163(6) of the Constitution is discretionary and only deserving matters will justify the exercise of such jurisdiction. For instance, in the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2/2012; [2012] eKLR, (the Matter of the National Gender and Equality Commission) we observed as follows:
“
17.
In the earlier Advisory-Opinion matter, this Court had elected to proceed with caution in such cases. 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 Kenya’s history and traditions and facilitates its social, economic and political growth.
18.
The Supreme Court must also guard against improper transformation of normal dispute-issues for ordinary litigation, into Advisory-Opinion causes: as the Court must be disinclined to take a position in discord with core principles of the Constitution, in particular, a principle such as the separation of powers, by assuming the role of general advisor to Government”. [Emphasis added]
30.
The criteria for determining whether a matter is properly before this Court was also set by this Court in Re Matter of the Interim Independent Electoral Commission, Sup. Ct. Constitutional Application 2 of 2011 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 greatpublic 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”.
31.
In the Matter of the National Gender and Equality Commission, this Court emphasized that the locus standi of an applicant and the subject matter of a reference are the two paramount considerations although other factors may be considered on a case by case basis.
32.
Having therefore considered the above expressions of the law as well as the provisions of Article 6 and the 1st Schedule of the Constitution, it is no doubt that the Applicants(2 – 48) are County governments, hence are qualified to seek an advisory opinion from this Court.
33.
As to whether this matter concerns county governments, we have interrogated the Applicant’s reframed issues for an advisory opinion and are of the finding that the issues raised involve matters concerning county governments, namely, the formulation, publication of the Division of Revenue Bill, the reasonable period for release of the equitable share of the revenue to county governments among others and also what happens when both houses of parliament fail to agree on a Division of Revenue Bill. In Speaker of the Senate & another v Attorney-General & 4 others; Advisory Ref. o. 2 of 2013; [2013] eKLR, we found that a Division of Revenue Bill provides for sharing of revenue that is collected nationally between the two levels of governments and therefore, significantly impacts on county governments. We specifically stated as follows:
[32]
… “Now in the case of the Division of Revenue Bill (now an Act), it makes provision for the division of revenue that is nationally collected, and for its sharing between the two levels of government. It certainly has a significant impact on the county governments. We hold, in the circumstances, that the Reference herein properly falls under Article 163(6) of the Constitution, as a “matter that concerns county governments…
34.
It emerges that a matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the Court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other. In the last instance, the Court will conscientiously consider the relationship between the two units as this emerges from the governance operation in question, or from any pertinent scenarios of fact”. [Emphasis added] | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/65/eng@2019-10-08 |
Application 22 of 2019 | Jirongo v Soy Developers Limited & 9 others (Application 22 of 2019) [2019] KESC 21 (KLR) (19 September 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu | 19 September 2019 | 2,019 | Nairobi | Civil | Jirongo v Soy Developers Limited & 9 others | [2019] KESC 21 (KLR) | null | A. The Application
1.
The applicant’s Notice of Motion dated 24 July 2019 came up as an urgent matter before a single Judge (Lenaola, SCJ) on 28 July 2019, and was accorded a certificate of urgency. It is from that stage that we now come to the Ruling of the Court, arrived at after considering the application’s merits.
2.
The applicant seeks stay of execution of the Court of Appeal’s decision in Civil Appeal No. 43 of 2017 and Civil Appeal No. 48 of 2017, which had been delivered on 19 July 2019
B. Before the Appellate Court
3.
The Appellate Court had set aside the Judgment of the High Court in Nairobi (JR Misc. Application No. 78 of 2016), which had granted an Order of Certiorari, quashing a decision by prosecutorial agencies to institute criminal proceedings in Criminal Case No. 207 of 2016, against the applicant; as well as an Order of Certiorari quashing the charges in a charge sheet of 9 February 2016, in Police Case No. 121/41/206. Also reversed by the Appellate Court was the High Court’s Order of Prohibition stopping the said Police authorities from pursuing criminal proceedings in respect of the relevant subject-matter.
C. A Question of the Constitution: Applicant’s Case
4.
The applicant herein contends that the Appellate Court’s decision has compromised his personal freedom; and his contention is that “the Court of Appeal having refused to apply clear constitutional provisions … and which violation requires redress … to restore and preserve the appellant’s constitutional and [Court-upheld] rights”, he is rightly aggrieved, and the Supreme Court should uphold his position. On the basis of the foregoing argument, the applicant urges that his substantive appeal “has a high probability of success”, and so should be the basis of a final appeal which involves the interpretation and application of the terms of the Constitution — a matter thus falling within the jurisdiction of the Supreme Court.
5.
Specifically, the applicant contends that the Appellate Court had defaulted by not considering the prospect of violation of his constitutional rights; by disregarding his rights to fair trial under Article 50 (2) of the Constitution; by overlooking his right to equal protection and to the benefit of the law under Article 27 (1) of the Constitution; by default in purposive interpretation of the Constitution, such as will promote its objectives and values, in the terms of Article 259 of the Constitution; by overlooking the fact that the applicant’s contested action is essentially contractual, and had taken place more than two decades earlier, and the relevant official records are unavailable; by not considering the long delays in prosecution of the matter, which now worked to the applicant’s prejudice.
6.
The applicant sought to support the factual element in his application with averments in his affidavit of 24 July 2019. The factual basis of the application is that, it was some 25 years ago that the applicant took a land-offer which has now become the basis of a criminal case lodged against him, without the benefit of documentation and information such as were available at the material time.
7.
It is the applicant’s case that the prosecution case against him amounts to abuse of powers, guided by ulterior motives unrelated to the pursuit of justice. In the circumstances, it was urged that the application for stay of execution of the Appellate Court’s Judgment is merited.
| D. Respondents’ Case
8.
The 1st, 2nd and 3rd respondents, for their part, contend that the facts surrounding the property transaction in question, in 1989, disclose fraudulent acts by the applicant herein; and that, consequently, the Appellate Court had rightly reversed the High Court decision which stood in favour of the applicant. The three respondents denied that any issues of constitutional rights were entailed in the instant matter, maintaining that “this appeal is for the private benefit of the applicant”.
9.
For the 5th, 6th and 7th respondents, it was submitted that this matter had properly come before the Supreme Court, as the appellant is contesting the interpretation or application of certain Articles of the Constitution — notably Articles 50 and 157. The three respondents, however, urged the Court to dispose of the matter at the preliminary stage: for “the petition does not raise … [any] complex issues of constitutional interpretation or application which cannot … be determined at the interlocutory stage …” They urged, lastly, that “the appeal does not merit the threshold of arguability for purposes of grant of stay”.
10.
Of interlocutory standpoints taken judicially, Black’s Law Dictionary, 10th ed. (2014), p. 938 thus affirms:
“
[Of an order, judgment, appeal, etc.] interim or temporary; not constituting a final resolution of the whole controversy.”
11.
The 5th, 6th and 7th respondents call for a termination of the main cause at this preliminary stage: on the ground that no case of merit has come up, as compared to the foundations of the criminal case lodged against the applicant. As for the first three respondents, hardly any question of constitutional interpretation or application had arisen — and therefore, a jurisdictional question would have been pertinent, and the Supreme Court should not disturb the Appellate Court’s determination.
E. Constitution, and Supreme Court’s Remit
12.
This Court’s jurisdiction is not sharply defined in certain cases — especially as regards claims of constitutional entitlements, the content of which stands to be ascertained individually, from one case to another. So we must consider whether the circumstances in which the criminal case against the applicant was initiated, in any way stands to compromise rights as delineated in the Constitution. Does the applicant have certain constitutional rights, which can only be safeguarded through a proper hearing of his appeal before the Supreme Court?
13.
As the applicant notes, the Director of Public Prosecutions (5th respondent) has conceded that the matter before this Court had been premised upon constitutional grounds — the original cause before the High Court being founded upon Articles 22 (1); 23(1), (3); 159 (2) (a); 165 (3) (b), (d); and 258 of the Constitution.
14.
Trial issues, especially those involving the criminal law, have invariably to take into account the clear provisions of the Constitution — notably Article 50 which relates to “fair hearing”. In the instant case, it emerges that recent criminal processes rest upon old scenarios of fact, the boundaries of which may have lost clarity. Such earlier scenarios of fact, moreover, have tended to blur the boundaries between the criminal and the civil dockets. What we see is such an amalgam of civil and criminal scenarios that also touch on the processes of the Constitution, and its prescribed rights and obligations.
F. Supreme Court: Standpoint
15.
We hold, in these circumstances, that an appellate initiative before the Supreme Court, such as in the instant case, is substantially meritorious. To provide the requisite opportunity for such an inquiry of a constitutional nature, we would sustain the motions of the judicial process, and entertain the applicant’s case on the merits.
16.
Consequently, we determine the Notice of Motion of 24 July 2019 in favour of the applicant. We hereby grant stay of execution of the Appellate Court’s decision in Civil Appeal No. 43 of 2017 and No. 48 of 2018, of 19 July 2019, pending the hearing and determination of the appeal, which is to be conducted on the basis of priority. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/21/eng@2019-09-19 |
Civil Application 35 of 2018 | Abdi v Hussein & 2 others (Civil Application 35 of 2018) [2019] KESC 24 (KLR) (Civ) (6 August 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 6 August 2019 | 2,019 | Nairobi | Election Petition | Abdi v Hussein & 2 others | [2019] KESC 24 (KLR) | null | A. Introduction
1.
The application before the court is a Notice of Motion application brought under certificate of urgency dated 3rd December 2018, and filed on the 5th December 2018, seeking stay of execution of the Court of Appeal orders of 23rd November 2018. The same is supported by the affidavit of Ibrahim Noor Hussein, the 1st Respondent in the heading of the application, stating that he is the applicant in the application. The application is brought under the provisions of Sections 21 and 24 of the Supreme Court Act, 2011 and Rules 23 and 26 of the Supreme Court Rules, 2012.
(i) Litigation History
2.
The genesis of the matter is that in the 8th August 2017 general election, Ibrahim Noor Hussein was declared as the elected Member of County Assembly [MCA] Batalu Ward in Wajir County, after garnering 1099 votes against his closest rival who obtained 946 votes. His election was challenged in a petition filed by Hassan Jimal Abdi before the Wajir Magistrates’ Court, and in a judgment delivered on 2nd February 2018, his election was nullified on grounds that it was not conducted in a free and fair manner, and an order was issued for the conducting of a fresh elections and costs to be paid to Ibrahim Noor Hussein and Hassan Jimal Abdi by the 3rd Respondent.
3.
The Applicant [Ibrahim Noor Hussein], filed an appeal before the High Court in Garrisa challenging the election court’s decision. The High Court [in its judgment delivered on the 19th July 2018.] upheld the decision of the election Court, He filed a second appeal to the Court of Appeal but it was struck out on grounds that the Court of Appeal lacked jurisdiction to determine such an appeal, which finding he avers was wrong considering that under Article 164[3] [a] of the Constitution, the Appellate Court has jurisdiction to hear all appeals from the High Court, and that such a finding offends his right to fair hearing under Article 50 of the Constitution. After that loss, he instructed his counsel to file an appeal before this Court. | C. Analysis And Determination
16.
From the pleadings and submissions of the parties, the court deems that two issues arise for determination;
(a)
Whether this court has jurisdiction to deal with the matter
(b)
Whether the orders for stay sought can issue.
(i) Jurisdiction of the Court
17.
It is the applicant’s position that since the Court of Appeal found no provision granting it jurisdiction to determine second appeals in MCA election matters, then it ought to have derived jurisdiction from a purposive interpretation of several provisions of law. However, this Court dealt with a similar issue in the case of Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others [2019] eKLR, Election Appeal Application No. 38 of 2018, where the Court of Appeal had similarly struck out the appeal for lack of jurisdiction.
18.
This Court in the Mohamed Ali Sheikh Case analyzed the circumstances of the case and observed that since the Court of Appeal had not heard the appeal emanating from the High Court substantively, there was nothing before this Court to determine and then proceeded to dismiss the application. We, in this matter, reiterate that finding and hold that even if we were to enquire on the issue of jurisdiction, there will be nothing to determine for this court, since there is no substantive judgment of the Court of Appeal on the validity of the election challenged by the applicant.
19.
The other jurisdictional angle raised in opposition to the appeal is the fact that the applicant filed a Notice of Appeal on 28th November, 2018, but failed to institute an appeal. Submissions by the 1st Respondent on that point are that under Rule 33[1], the Record of Appeal ought to have been filed within 30 days of the filing of the Notice of Appeal. Rule 33[1] provides:
(1)
An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal —
(a)
A petition of appeal;
(b)
A record of appeal; and
(c)
The prescribed fee.
20.
The 1st Respondent thus contends in the above context that the applicant had not complied with the said Rule as at the time of filing the submissions. Our perusal of the Court record confirms that he has not done so to date. The 1st Respondent has thus urged the Court to dismiss the application for the reason that the non-compliance with the mandatory provision of the above Rule is fatal to the application. The 1st Applicant, it is urged, has also not offered any explanation for failure to comply with the said Rule.
21.
We have considered the submissions, the law and precedent in respect of applications filed before filing a substantive appeal. In the case of Alfred Nganga Mutua & 2 others v Wavinya Ndeti & another [2018] eKLR, Petition of Appeal No. 11 of 2018 this Court found that the record was filed piece-meal but within time, hence failure to file the appeal accompanying the application for stay was not fatal and in any case, the stay sought was to subsist pending the filing of the appeal. Similarly, in the case of Mohamed Ali Sheikh [supra], even though the application for stay was filed before the filing of the substantive appeal, the Court observed that the Record of Appeal was nevertheless filed and was considered by the Court when addressing the stay application.
22.
In addressing the circumstances of the present application, The Court is reiterates finding in the case of Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 Others SC Petition No. 27 of 2014; [2014] eKLR.) , as cited in the case of Mohamed Ali Sheikh [supra], when it held:
‘We have stated in the past that an interlocutory application cannot originate proceedings before the Court… Such a stand-alone application will not generally be considered as it is not predicated upon a substantive matter before the Court and remains unknown in law’:
Similarly in the case of Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR, Petition No. 14 of 2013, this Court held, while interpreting Rule 33,
‘[39]
If an intending appellant were to present the Court with a Notice and Petition of Appeal, but without the Record of Appeal, and expect the Court to determine “the appeal” on the basis of these two, such an appeal would be incomplete and hence incompetent. Indeed this is the gist of Rule 33(1) of the Supreme Court Rules’.
23.
We have considered these findings and hold that our exercise of discretion as sought by the applicant so as to grant the orders sought, has nothing to be based upon, because we are unable to discern whether there is an arguable appeal in absence of grounds of appeal in a real appeal.
24.
The 1st Respondent has in the alternative urged the Court to strike out the Notice of Appeal in line with the provisions of Rule 37 of this Court’s Rules, arguing that once an appeal is not launched within the prescribed time, then the Notice of Appeal is deemed as withdrawn. Rule 37 Provides:
(1)
Where a party has lodged a notice of appeal but fails to institute the appeal within the prescribed time, the notice of Appeal shall be deemed to have been withdrawn, and the Court may on its own motion or on application by any party make such orders as may be necessary.
(2)
The party in default shall be liable to pay the costs arising therefrom to any person on whom the notice of appeal was served.
25.
This Court considered a similar argument in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR, Civil Application No. 35 of 2014, holding that, Rule 37 should be read in conjunction with Rule 53 if an application for extension of time has been filed and not in isolation. However in this case, no such application for extension of time has been filed; making it distinguishable, as a safe case where this Rule can be read in isolation. Reading the Rule in isolation therefore means that the Notice of Appeal so filed is fit for deeming as withdrawn, and without an active appeal before the Court, the application is predicated on nothing. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/24/eng@2019-08-06 |
Petition 3 of 2019 | Karua v Independent Electoral and Boundaries Commission & 3 others (Petition 3 of 2019) [2019] KESC 26 (KLR) (Election Petitions) (6 August 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 6 August 2019 | 2,019 | Nairobi | Election Petition | Karua v Independent Electoral and Boundaries Commission & 3 others | [2019] KESC 26 (KLR) | null |
A. Introduction
1.
The Petition before us, dated January 25, 2019, is filed pursuant to rules 9 and 33 of the Supreme Court Rules, 2012. The petitioner contests the Judgment of the Court of Appeal delivered on December 20, 2018 which dismissed her appeal thus upholding the election of the 3rd and 4th Respondents as the Governor and Deputy Governor of Kirinyaga County, respectively.
B. Background
(i) Proceedings before the High Court and the subsequent preliminary appeals
2.
The petitioner and the 3rd respondent were candidates for the position of Governor for Kirinyaga County during the election held on August 8, 2017. After the counting of votes, the 3rd respondent was declared the winner of that election. Being dissatisfied with the outcome, the petitioner filed an election petition at the High Court in Embu seeking nullification of the election results. She alleged inter alia that the election was not credible for reasons of bribery, tampering with ballot boxes, forgery of ballot papers and the failure to comply with the statutory and constitutional requirements with regard to voting, counting, tallying and transmission of votes.
3.
In response to the Petition, the 3rd and 4th respondents filed an application to strike out the Petition for failure to comply with rule 8(1)(c) and (d) of the Elections (Parliamentary and County) Petition Rules, 2017. On November 15, 2017, the High Court upheld that application and struck out the Petition.
4.
The petitioner, being aggrieved by the striking out of her petition, successfully appealed to the Court of Appeal and on March 2, 2018, the Appellate Court remitted the matter back to the High Court for its substantive disposal. While the matter was pending before the High Court, on March 29, 2018, the 3rd and 4th respondents filed an appeal to this Court against the Order of the Court of Appeal remitting the matter back to the High Court. In that appeal, they argued that the High Court lacked jurisdiction to hear and determine the petition as the 6 months’ period provided by the law for the hearing of Petitions before the High Court had lapsed. They also sought stay of proceedings before the High Court. By a Ruling delivered on March 28, 2018, we declined to assume jurisdiction on that matter for the reason that the question then before us was also pending for determination before the High Court. We reasoned that it would have been premature of us to make a determination on that issue in those circumstances. That order paved the way for the substantive disposal of the election petition by the High Court.
5.
Upon considering the election petition, on June 11, 2018, the High Court (Gitari J) dismissed the same and held that the gubernatorial election for Kirinyaga County was conducted in accordance with the Constitution. Further, the court determined that once an appeal is filed at the Court of Appeal, it operates as a stay of proceedings at the High Court pending the outcome of the appeal thus freezing the 6 months’ period within which an election petition should be concluded upon filing.
6.
Being aggrieved by the decision of the High Court with regard to the validity of the election, the petitioner once again filed an appeal at the Court of Appeal. The 3rd and 4th respondents cross-appealed contending that the High Court’s Judgment was a nullity because that court lacked jurisdiction to hear and determine the election petition since 6 months had lapsed between the time of filing the petition and its final determination. | E. Analysis
(a) Whether the petitioner has properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution.
31.
The 3rd and 4th respondents contests this court’s jurisdiction on two fronts: Firstly, they urge that the Petition is not predicated on any constitutional provision. Secondly, that the appeal does not raise any question of constitutional interpretation or application. With regard to the first contention, they urge that the failure to identify the constitutional provision which invokes this court’s jurisdiction is grave and cannot be cured by article 159 of the Constitution. In urging so, they rely on our previous decisions in which we have emphasised on the need to quote the exact provision of the Constitution which invokes our jurisdiction.
32.
In that regard, in Nasra Ibrahim Ibren v IEBC & others SC Petition No 19 of 2018; [2018] eKLR we reiterated that the need to specify the constitutional provision through which one moves the court flows from the fact that not every appeal from the Court of Appeal is appealable to this court. Appeals are limited by article 163(4) of the Constitution, which categorises them either as of right or upon certification that a matter of general public importance is involved. Our jurisdiction therefore must be invoked within the confines of that constitutional provision. In approaching the court as of right, a party must demonstrate that questions of constitutional application or interpretation are in controversy. With regard to the second limb, one must have been granted certification to appeal to this court. Such requirements therefore dispel any notion of an automatic locus before this court. It has thus been our consistent position that the jurisdiction upon which an appeal rests should not be left for speculation. It must be outrightly stated.
33.
In that regard, in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others SC Petition No 12 of 2018; [2018] eKLR the jurisdiction of this court was contested because the Petitioners had not indicated under what provision of article 163(4) of the Constitution they were moving the court. In that case, Counsel contended that the absence of certification should be taken to mean that the appeal was premised under article 163(4)(a) of the Constitution. In declining that argument, we held that [paragraph 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.”
34.
In the present case, the petitioner’s appeal is filed pursuant to rules 9 and 33 of the Supreme Court Rules, 2012. Rule 9 specifies the contents of a petition while Rule 33 provides the timeframe for filing an appeal as well as the documents that forms the record of appeal. The importance of the rules of the court was recognised in the case of Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Application No 3 of 2014; [2015] eKLR, where we held that [paragraphs 14 & 15]:
“
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) …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.
35.
Undoubtedly, the Rules of the court thus remain an important tool in aiding the dispensation of justice. In this case however, rules 9 and 33 do not make reference to any particular jurisdiction of this court. Be that as it may be, we acknowledge that the appeal before us, in its body, is crafted in a manner that demonstrates that the petitioner invokes this court’s jurisdiction under article 163(4)(a) of the Constitution and specific provisions of the Constitution are cited as having been violated. We have already cited articles 27, 50, 81, 86 and 87 in that regard. The Warrakah case in that context is clearly distinguishable. Inelegance in drafting is not encouraged nonetheless.
36.
This brings us to the second aspect of the contestation of jurisdiction flowing from and as a corollary to the above. The 3rd and 4th respondents submit that the appeal does not raise any question of constitutional interpretations or application but rather the petitioner only makes mere reference to certain constitutional provisions. In response, the Petitioner urges that her appeal raises questions of constitutional interpretation and application.
37.
Further to our finding above, in our past decisions, we have cautioned parties against making fleeting statements alleging constitutional controversies where such questions were not pivotal for the determination of the dispute before the Court of Appeal. In this case, we note that the grounds raised in the Petition fall for this court to determine the interpretation of inter alia articles 81 and 86 of the Constitution in the context of the electoral process. Further, the petitioner alleges infringement of her right to fair hearing and fair, which proposition calls for interpretation of article 50. Above all, this appeal raises an important issue of timelines for settling electoral disputes. Such a question is deeply rooted in the Constitution and the determination of it will require an interpretation of articles 87(1) and 105 of the Constitution. To that extent therefore, it is our finding that this court has jurisdiction to determine the petitioner’s appeal under article 163(4)(a) of the Constitution.
(b) Whether the proceedings before the High Court were a nullity, and if so, what are the consequences thereof?
38.
It is the respondents’ case that the High Court had no jurisdiction to determine an election petition after the lapse of 6 months from the date of its filing. On her part, the petitioner urges that article 87 was not intended to deny a litigant the right of access to justice and especially where the 6 months’ period lapse was on account of an appellate process which the Petitioner had no control over. In order to contextualise the parties’ arguments, we will briefly narrate the background to this issue.
39.
The Petitioner filed an election Petition at the High Court in Kirinyaga on September 5, 2017. On October 17, 2017, the 3rd and 4th respondents filed an application seeking to strike out the Petition and the supporting affidavits thereto for non-compliance with rule 8(1) of the Elections (Parliamentary and County) Petition Rules 2017. By a Ruling delivered on November 15, 2017, the High Court held that the Petitioner’s failure to include the results of the elections and the date of declaration of results in the Petition was a serious non-compliance with rules 8(1)( c) and (d) aforesaid which rendered it incurably defective. On that basis, the Petition was struck out.
40.
That decision was overturned by the Court of Appeal on March 2, 2018. In doing so, the Appellate Court remitted the matter back to the High Court for its substantive determination. We note that by the time the Court of Appeal made its decision reinstating the Petition, the life span of 6 months from the date of filing of the petition was almost coming to an end. And as expected, by the time the High Court eventually determined the petition on June 11, 2018, 9 months had lapsed from the date of filing the petition. Hence the difficult question now facing the court.
41.
That question first arose in the High Court and that court took the view that once an appeal arising from any matter in an election petition is filed at the Court of Appeal, it operates as stay of proceedings at the High Court pending the outcome of the appeal. The Court of Appeal however was of a different view. It held that the 6 months’ time period limited by section 75 of the Elections Act as read with article 87 of the Constitution could not be extended. It thus held that the High Court had no jurisdiction to hear and dispose of the election petition upon expiry of 6 months after the election petition was lodged. Consequently, the proceedings at the High Court were declared a nullity. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/26/eng@2019-08-06 |
Petition 44 of 2018 | Ngunjiri & 3 others (Duly Registered Trustees of Kenya African National Union, Nakuru Branch) v Kenya Power & Lighting Company Limited (Petition 44 of 2018) [2019] KESC 25 (KLR) (Civ) (6 August 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 6 August 2019 | 2,019 | Nairobi | Civil | Ngunjiri & 3 others (Duly Registered Trustees of Kenya African National Union, Nakuru Branch) v Kenya Power & Lighting Company Limited | [2019] KESC 25 (KLR) | null | I. Litigation Background
1.
On 3rd December 2018, this Court was moved by the Petitioners/ Respondents via the filing of a Petition of Appeal dated 30th November 2018. The substantive prayers sought in the petition are that: the petition be allowed with costs; and the Court of Appeal decision of dismissal with costs of the application dated 22nd May 2018 on the 26th October 2018 be set aside and the same be replaced with orders of stay of the decree of Nairobi HCCC No. 14 of 2004.
2.
The appeal filed in this Court springs from the High Court decision in HCCC No. 14 of 2004 delivered on 7th August 2009. In that matter, Kenya Power & Lighting Company (KPLC) filed a suit against Kenya African National Union (KANU) and two of its officials, Julius Ole Sunkuli and Mohammed Yusuf Haji, in their respective capacities as Ag. Secretary General and National Treasurer. KPLC claimed a sum of Kshs. 212, 816, 986.80/- being the amount due for electricity supplied by KPLC to KANU as the landlord at Kenyatta International Conference Center (KICC), Nairobi between 1995 and March 2003.
3.
The High Court, Lesiit, J, in a judgement delivered on 7th August 2009 found that the Plaintiff, KPLC, had proved that it supplied electricity to KANU during the said period and that the latter owed it Kshs. 212, 816, 986.80/-. Consequently, the learned judge entered judgment in favour of the KPLC, against the KANU in the sum of 212, 816,986.80/- together with interest at court rates and costs from the date of filing the suit until payment in full.
4.
KANU was aggrieved and filed a notice of motion dated 26th July 2012 seeking to set aside that judgement of the High Court under Order 12 Rule 7 of the Civil Procedure Rules, 2010. The crux of its application was that due to the fact that KANU’s advocate on record, Kilonzo & Co. Advocates, had applied to cease acting for it after taking the hearing date hence the hearing date was later confirmed without it’s knowledge. The Court, Mutava J (as then was) dismissed the application with costs in a ruling delivered on 8th November, 2012.
5.
Another application was filed by KANU on 23rd November, 2012 seeking to stay the execution of the decision of Mutava J of 8th November, 2012. The application was grounded on the fact that an intended appeal by IT would be rendered nugatory if the stay was not granted and execution levied against it. KPLC had by then moved and attached land Parcel No. Nakuru Municipality Block 93/1 belonging to KANU. In a ruling delivered on 23rd May, 2013, the High Court, Havelock, J granted the application on the ground that KANU had to furnish security within 30 days in either of the following forms, failure to which the application stood dismissed, thus:
i.
A bank or insurance bond for Kshs. 483, 217, 081 or;
ii.
The deposit of the decretal amount i.e. 483, 217, 081/- in an interest earning account to be opened in the joint names of the Advocates for KANU and the Advocates for KPLC with a reputable bank to be agreed upon by the respective firms.
6.
Subsequently, in a plaint dated 28th July 2014, four litigants, the Petitioners in the substantive Petition before this Court, filed a case in the High Court at Nakuru seeking to permanently restrain the defendant from selling or disposing off land title No. Nakuru Municipality /Block 9/31, and a declaration that the said property is the exclusive property of KANU, Nakuru Branch, to the exclusion of KANU Headquarters.
7.
On the even date, by a notice of motion dated 28th July 2014, filed in the earlier suit: HCCC No. 14 of 2004, under Order 22 rule 51 and Order 51 rule 1 by the Objectors, the petitioners now before the Supreme Court, sought that there be stay of execution, attachment and sale by public auction of the property, and that the intended sale on 14th August, 2014 of the same be declared null and void. In a ruling delivered on 12th February 2015, the Deputy Registrar of the High Court, D.W. Nyambu dismissed the objectors’ application. She held that the property was indeed owned and registered in the name of KANU, Nakuru Branch. However, applying section 16(1) of the Political Parties Act, 2011, she held that KANU, Nakuru branch, was not a political party on its own. That land owned by all its branches belong to KANU as a single entity. A 30 days’ stay of execution was however granted as the objectors sought to be supplied with copies of the Ruling and typed proceedings.
8.
On 26th February 2015, the objectors filed an application dated 24th February 2015 seeking referral of a matter to the Judge or the High Court for review under the powers and duties of the Deputy Registrar Rules. The gist of their application’s argument was that KANU, Nakuru branch, by its registered Trustees is the absolute and indefeasible owner of the property and that the same cannot be attached. They further contended that having found that KANU, Nakuru branch, is the registered owner, the Deputy Registrar should have found and determined that registration was the spring board to determine objection proceedings in favour of the Objector(s).
9.
This application was however later withdrawn on 3rd November 2015 and another application dated 19th November 2015 filed on 30th November 2015 seeking extension of time to file an appeal against the decision of the Deputy Registrar. The application was opposed on the ground(s) that it was 10 months late, yet such an appeal was to be filed within 7 days of the decision of the Deputy Registrar. They also sought to preserve LR. No. Nakuru Municipality Block 9/31. In a ruling delivered on 8th April, 2016, Kariuki, J allowed the application and allowed the appeal to be filed with 7 days. The applicant was condemned to pay costs of Ksh. 30, 000 to the Respondent. Failure of the above meant that the application stood dismissed. | IV. Analysis
22.
Having perused the record before us, it is clear that despite the convoluted litigation background of this matter which we have endeavored to capture above, the petition of appeal before this Court, which the Applicant seeks to strike out, springs from the High Court ruling delivered on 17th November, 2016 by Tuiyott, J, on an appeal against the decision of the Deputy Registrar. Aggrieved by the dismissal of that appeal, the Respondents filed a Notice of Appeal to the Court of Appeal and on its basis filed an application under Rule 5(2)(b) of the Court of Appeal Rules, 2010 seeking stay of that High Court decision. It is that stay application that was dismissed by the appellate Court in a Ruling delivered on 26th October, 2018, which the Respondents now seek to appeal before this Court. It is common ground that the substantive appeal before the Court of Appeal, being Civil Appeal No. 149 of 2018, is still pending before the Court of Appeal. Also pending before the appellate Court is an application by the Applicant herein, to strike out that appeal. In a nutshell, the substantive justice of this matter still lies before the Court of Appeal for determination.
23.
This Court is now replete with jurisprudence on the import of Court of Appeal decisions under Rule 5(2)(b) of the Court of Appeal Rules, 2010. First, in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another, SC Application No. 3 of 2014; [2015] eKLR this Court expressed deference to discretionary powers of the Court of Appeal and stated that decisions made in exercise of those powers were not appealable to this Court, thus [paragraph 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.”
24.
Subsequently, in the case of Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, SC Application No. 16 of 2015; [2015] eKLR, this Court interrogated the nature of Court of Appeal’s powers under Rule 5(2)(b) and found them to fall squarely within the discretionary powers of that Court stating thus:
“
(27)
Rule 5 (2) (b) of the Court of Appeal Rules of 2010 is derived from Article 164 (3) of the Constitution. It illuminates the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal, or an intended appeal. Although we would not go as far as describing such discretionary jurisdiction as “original” (the term “inherent” more accurately in our view captures the nature of that jurisdiction), the Court of Appeal has nonetheless defined the contours of this discretion succinctly and consistently and has employed it effectively to aid the conduct of its appellate jurisdiction.”
25.
The Court then concluded thus: [paragraph 36]:
“
In these circumstances, we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.”
26.
Following that decision, this Court has been consistent in not assuming jurisdiction in matters where a Court of Appeal decision was made in exercise of its discretionary jurisdiction under Rule 5(2)(b) of it Rules. The case before this Court is a similar one and we see no reason to depart from this sound jurisprudence.
27.
The upshot is that having established that the substantive appeal in this matter is still pending in the Court of Appeal and that the decision of the Court of Appeal delivered on 26th October 2018 was subject of an application for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules 2010, no appeal lies to this Court. Hence the petition of Appeal before this Court is fatally defective for want of jurisdiction. The Application seeking its striking out is therefore merited.
28.
Consequently, we make the following orders:
(i)
The Notice of Motion application dated 4th February 2019 is hereby allowed.
(ii)
The Petition of Appeal dated 30th November 2018 and filed on 3rd December 2018 is hereby struck out for want of jurisdiction.
(iii)
The Petitioners/Respondents shall bear the Applicant’s costs of the application.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/25/eng@2019-08-06 |
Civil Application 4 of 2015 | Pati Limited v Funzi Island Development Limited & 4 others (Civil Application 4 of 2015) [2019] KESC 23 (KLR) (Civ) (6 August 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, PM Mwilu, SC Wanjala, NS Ndungu, I Lenaola | 6 August 2019 | 2,019 | Nairobi | Civil | Pati Limited v Funzi Island Development Limited & 4 others | [2019] KESC 23 (KLR) | null |
A. Introduction
1.
This is an application by way of an Originating Motion dated 2nd April 2015 that seeks an order for stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C.A No. 252 of 2005 – Funzi Island Development Ltd & 2 Others v Pati Ltd & 2 Others and the review of the Ruling of the Court of Appeal dated 20th March 2015 in Malindi Civil Application No. 10 of 2014 Pati Ltd v Funzi Island Development Ltd and 4 Others. The Motion was filed pursuant to Article 163(5) of the Constitution, Sections 15, 16 and 24 of the Supreme Court Act and Rules 24 and 26 of the Supreme Court Rules 2012.
2.
In principle, the Applicant is seeking a review of the Court of Appeal Ruling (Okwengu, Makhandia & Sichale) dated 20th March, 2015 which declined to certify its intended appeal to this Supreme Court as one involving a matter of general public importance. The application has also sought stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C. A. No. 252 of 2005, pending its hearing and determination.
B. Litigation Background
i) High Court
3.
The intended appeal, subject of this application for review of denial of certification, is traced to a Judicial Review Miscellaneous Application No. 272 of 1994 filed by the 1st, 2nd and 3rd Respondents in the High Court in which they sought the following orders:
1.
That the Gazette Notice No. 3831 dated 24.6.1994 setting apart Land on Funzi Island and letter dated 27.7.1994 addressed to interested party Pati Limited relating to the allotment of un-surveyed Plot 0.1. ha for the purpose of boat landing base issued by the Commissioner of Lands be quashed and or set aside being null and void.
2.
That the grant issued CR106 under Registration of Titles Act to Pati Limited by respondents be quashed and or set aside as being null and void.
3.
That Pati Limited , its employees, servants and agents be prohibited from having any dealings whatsoever, or carry out any development, or occupation entry upon or any access or otherwise on the said land on Funzi Island.
4.
That the costs of and incidental to this application be the applicants’ and be paid by the respondents.
4.
The main contention in the Judicial Review proceedings was that the original land allocated by Kwale County Council as Trust Land set apart under section 7 of the Trust Land Act Cap. 288, and allocated to the interested party was at all material times forest land as opposed to Trust Land. Hence, being forest land, no allotment could have legally taken place on the land unless there was a declaration that it had ceased to be such forest land. In a judgement delivered on 14th October, 2004, the High Court, Khaminwa, J (as she was then), declined to issue the orders sought and dismissed the application with costs. | E. Analysis
29.
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.
30.
The principles for certification, which all parties have alluded to were long settled in the cases of Hermanus Philipus Steyn v. Giovanni Gnecci-Ruscone, Sup. Ct. Civil Application No. 4 of 2012 and Malcolm Bell v. Hon. Daniel Toroitich arap Moi & Another, Sup.Ct. Application No. 1 of 2013.
31.
The learned appellate Judges in their Ruling delivered on 20th March 2015 held that the Applicant had not satisfied the principles set out in the above decisions. They were thus emphatic that the Applicant had failed in its application “to identify and concisely set out the elements of general public importance which it attributes to the matter of certification.” That it had “not specifically identified any matter of general public importance, or points of law that are important and substantial or have a significant bearing on public interest or any question that flows from the judgment that forms issues that transcends the facts of the case.”
32.
The learned appellate Judges also considered the draft petition of appeal and reached the conclusion that the Applicant only complained about the Judges’ error in revoking the Applicant’s title in Judicial Review proceedings and in failing to appreciate that the prayer for certiorari was made after the statutory period. These they held not to be matters of general public importance.
33.
On our part, we agree with the Court of Appeal that an applicant seeking certification should outrightly, in its application, set out with precision the issues it considers to be of general public importance. This Court has time and again cautioned parties against engaging in rhetoric and second guessing where they convolute their pleadings and grounds on the pretext that the Court will filter out what it thinks amounts to matters of general public importance and leave out what is not. For instance, in the application before us, the Court of Appeal only framed three issues for determination. We thus wonder how a matter decided on only three issues will warrant the framing of upto seventeen (17) questions for determination. We find some of the questions verbose and repetitive. We reiterate, as we have severally done, that simplicity and precision in pleading is golden in advocacy.
34.
Further, it is now cardinal law that the issues that come to this Court on appeal are those issue that have risen through the judicial hierarchy. This was aptly stated in Peter Oduour Ngoge v Hon. Francis Ole Kaparo, SC Petition 2 of 2012, [para. 29-30] where this Court rendered itself as follows:
The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. In the instant case, it will be perverse for this Court to assume a jurisdiction which, by law, is reposed in the Court of Appeal, and which that Court has duly exercised and exhausted.
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.”
35.
It therefore emerges that when a party seeks certification and leave to appeal to the Supreme Court, the questions he/she seeks to bring to this Court must have been subject of consideration/litigation in the High Court and then the Court of Appeal. One cannot frame novel matters as forming matters of general public importance when making an application for leave either in the Court of Appeal or this Court.
36.
From the foregoing, we have no hesitation in stating that we find that the majority of the issues that the Applicant has framed as matters of general public importance do not make sense considering the context of the Court of Appeal’s decision and framing of only three issues. In particular, having appreciated the tenor of the record before us, and the three issues that were considered on appeal before the Court of Appeal, we find questions to do with: the failure of the appellate Judges to reach a unanimous decision on the legal status of the suit property; amendment of the Notice of Motion out of the six months’ period; and whether judicial review proceedings are warranted for cancellation of title, are not questions that were considered by the Court of Appeal. Be that as it may, this Court wonders how lack of unanimity in reaching a decision by a collegial court, like the Court of Appeal as was constituted in the present instance, can be a matter subject of litigation. The concept of majority decisions and dissents is a legitimate tenet of judicial work. A decision of a collegial Court will always be that of unanimity or majority and it loses no import because there was a dissenting vote.
37.
As regards the substantive issues before the Court of Appeal, while the appellate Court rightfully considered the matter within the four corners of the Hermanus principles, we opine that the learned appellate Judges should have taken a broader perspective on the issue before them. The Hermanus principles are not exclusive. Another certification principle that we find applicable in this matter therefore was set in the case of Town Council Of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR which was rendered just over one month after the Ruling of the Court of Appeal under challenge herein in which this Court stated thus:-
(35)
From the content of paragraphs 32 and 34, it emerges that while this Court did, in the Hermanus Phillipus Steyn and Malcolm Bell cases, set out an elaborate set of criteria for ascertaining “matters of general public importance” for the purpose of engaging the Court’s jurisdiction, a further criterion has arisen. It may be thus stated. Issues of controversy that emerge from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, will merit a place in the category of “matters of general public importance” (Emphasis supplied).
(38)
We have considered the broad issues in the intended appeal in the above context, and found that at play is the question whether the subject matter was indeed Trust Land that could be allocated to private individuals or not? Or whether it was forest land that was not available for allocation. Indeed, a finding on whether the land was public land or not is a matter of general public importance as public land is an important and emotive issue that is fully protected and regulated by the Constitution, 2010. The fact that it might have been allocated under the old legal regime governing land places the matter squarely within the above principle in the Awendo case as a “transitional political-economic-social-cum-legal factor, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services”.
39.
We therefore find that it is in the public interest that this Court settles with finality the question whether the land subject of this matter belongs to the Applicant or whether it fraudulently acquired its title. At play also is the balancing between private interests vis-s-vis public interest. This balancing and determination is a matter of general public interests. This Court has indeed previously held that the process of conversion of public land to private land must be clean. That is why in Narok County Government v Livingstone Kunini Ntutu & 2 others [2018] eKLR, while the case was decided as an appeal filed as of right the public importance element as regards public land was captured thus:
(88)
In that regard, it is our view that the process of conversion of public land or land held in trust to private land has to be beyond reproach. Under the Constitution 2010, this was the rationale behind the formation of the National Land Commission and we note that at the core of this case is the legality of the title to the Suit Land held by 1st Respondent, an individual who obtained it upon its purported excision from public land known as the Masaai Mara National Reserve.
(89)
The issue of the constitutionality and legality of that title was live both in the High Court and the Court of Appeal. Upon finding that the constitutionality and legality of that title was not clear, the learned judge of the High Court set aside the Consent Judgment and ordered that the matter should go for trial to determine that issue.
…
(91)
Public policy goes to the protection of the public interest which is safeguarded by the national values and principles of governance in Article 10 of the Constitution.
(92)
In stating as above, we are certain that the allegations of Trust Land being annexed for private purposes have not been determined on merits. The allegation of unconstitutionality and illegality of the title to the suit land therefore raises a serious policy issue that this Court must have regard to in determining whether it has jurisdiction and to be seized of the matter before it and in making the relevant orders.”
40.
We are therefore under no illusion that as the crux of this matter is whether the title of the Applicant to the suit land was fraudulently acquired or not, which land has to be determined whether it was public land or not, and whether it was available for allocation or not, this matter raises questions of general public importance. Hence we are inclined to grant certification and allow an appeal to be filed.
41.
Before granting the leave sought, we reiterate that not all the seventeen (17) questions framed by the Applicant for determination merits appeal to this Court. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2015] eKLR, this Court in granting leave to appeal proceeded to frame the particular issue upon which the leave was granted and which was to be considered on appeal. Consequently, in this matter, duly guided by the issues that the Court of Appeal considered and for pragmatism, we certify the following as the issue of general public importance which this Court should consider in the intended appeal:
Whether the land subject matter of this suit was initially Trust Land, a public beach or a mangrove forest protected under the Forest Act; and if it was Trust Land and or public land, it was properly, regularly and legally allocated to Hon. Mwamzandi who later re-allocated it to Pati Limited, the Applicant here.”
42.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/23/eng@2019-08-06 |
Petition (Application) 3 of 2017 | Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & Kenya Aviation Workers Union (Petition (Application) 3 of 2017) [2019] KESC 22 (KLR) (23 July 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 July 2019 | 2,019 | Nairobi | Civil | Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & Kenya Aviation Workers Union | [2019] KESC 22 (KLR) | null | I. Introduction
1.
The Substantive matter before this Honorable Court is a Petition of Appeal dated and filed on the even date of 23rd February, 2017. The appeal is brought under Article 163 (4) (a) of the Constitution, sections 15 (2) of the Supreme Court Act and Rule 9 and 33 of the Supreme Court Rules, 2012. It challenges the decision of the Court of Appeal dated 13th February, 2017 which stayed execution of the judgment of the Employment and Labour Relations Court (ELRC) dated 2nd December, 2016, which ELRC decision had directed that the 2nd Respondent be deregistered as a Trade Union.
II. Litigation Background
2.
This appeal springs from a Judicial Review Application: Misc. Application No. 439 of 2013, filed by the Applicant/Petitioner herein, challenging the decision of the 1st Respondent to register the 2nd Respondent as a Trade Union. The registration was challenged on the grounds that the application for registration was defective, as the name of the proposed trade union was sufficiently similar to an existing trade union, so as to mislead or cause confusion, in contradiction to section 19 of the Labour Relations Act (LRA). The JR application was transferred to the ELRC following a jurisdictional question and assigned the number, Judicial Review No. 1 of 2015.
3.
The matter was heard and in a judgment dated and delivered on 2nd December, 2016, the Learned Judge of the ELRC (Nduma, J) allowed the application holding that the decision of the 1st Respondent to register the 2nd Respondent as a trade union in the aviation industry was a nullity and quashed it. The Court ordered the 1st Respondent to deregister the 2nd Respondent through Gazettement.
4.
The 2nd Respondent was aggrieved by this judgement and filed a Notice of Appeal dated 6th December, 2016 signaling its intention to appeal the decision to the Court of Appeal. It subsequently filed two applications both seeking stay of execution of the judgment. First was an application dated 8th December, 2016 filed in the ELRC; and secondly, an application dated 13th December 2016 filed in the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2010.
5.
Meanwhile, in compliance with the decision of the ELRC, the 1st Respondent via a letter dated 9th December 2016 notified the 2nd Respondent that it had been deregistered as from 5th December 2016. This was subsequently followed by a Gazette Notice No. 10372 notifying the Cancellation of the Registration of the 2nd Respondent on 16th December, 2016.
6.
Subsequent to these developments, the stay application filed in the Court of Appeal was heard on 17th December, 2016 and in a Ruling delivered on 3rd February, 2017, the Court of Appeal being cognizant of the fact that the 2nd Respondent had already been deregistered, stated that: “[t]he de-gazettement of the applicant (2nd Respondent herein) is merely a process of execution, which is not final until and unless the applicant’s undoubted right of appeal has been exhausted.” It thus allowed the application and ordered for stay of execution of the ELRC judgment pending the hearing and determination of the intended appeal to be filed before it. It is this Ruling by the Court of Appeal that aggrieved the Petitioner/Applicant and propelled its filing of the Petition before this Court
| VII. Analysis And Determination
(a) Whether this Court has the requisite jurisdiction to hear and determine the Application, and by extension the Petition of Appeal filed before it.
29.
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 determining the jurisdictional question in this matter, the factual background comprehensively outlined above illuminating. It is common ground that the ruling of the Court of Appeal of 3rd February 2017, which forms the subject matter of the Petition of Appeal before this Court and which this application seeks to stay its execution was subject of a Notice of Motion application under Rule 5(2)(b) of the Court of Appeal Rules. In its submissions, the 2nd Respondent at paragraph 7 has confirmed that it has filed and served the Record of Appeal upon the Applicant and the 1st Respondent. The two have not controverted this account. Hence it can be pragmatically concluded that there is a substantive appeal before the Court of Appeal pending determination.
30.
This Court is replete with decisions on the nature of the Court of Appeal decisions under Rule 5(2)(b) of the Court of Appeal Rules, 2010 as being decisions rendered in exercise of a discretion and the same not being appealable before this Court as of right. In the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, [2013] eKLR this Court emphasized the principle that decisions of this Court ought to be predictable, consistent and reliable. As such, we find no hesitation in following the set precedents on deference to Court of Appeal discretionary Rulings on applications under Rule 5(2)(b) of its Rules.
31.
Indeed, while the Applicant has cited the case of Deynes Muriithi & 4 others v Law Society of Kenya & another in urging that this Court has jurisdiction, we find no difficult in distinguishing that decision. First the Deynes case did not depart from the principles laid in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another, where the Court stated that discretionary decisions of the Court of Appeal are not appealable to the Supreme Court; and Teachers Service Commission v. Kenya National Union of Teachers and 3 Others (among others) where this Court stated that Rule 5(2)(b) Rulings are made in exercise of the Court of Appeal discretion hence not appealable to the Supreme Court. The Deynes case was decided on the basis of its unique factors which are distinguishable from the case before us.
32.
We reiterate the fundamental principle that Court of Appeal Rulings under Rule 5(2)(b) are made in exercise of a discretion and hence are not appealable to this Court as of right stands and is still good law. The substantive justice of this subject matter still lies before the Court of Appeal which is yet to hear the substantive appeal. Fundamentally, the Court of Appeal itself was cognizant of the fact that the said ‘de-registration’ had already been gazetted when it stated: “[t]he de-gazettement of the applicant (2nd Respondent herein) is merely a process of execution, which is not final until and unless the applicant’s undoubted right of appeal has been exhausted.” Hence, it considered the prevailing circumstances in making the decision it made. Courts of law seek to do justice. It cannot be that fully aware of the circumstances, the Court of Appeal outrightly made a decision to defeat the intended appeal before it.
33.
Hence it is our finding that to the extent that the Petition of Appeal before this Court, on which the application before us is predicated, emanates from a Ruling of the Court of Appeal on an application under Rule 5(2)(b), the same is fatal for want of jurisdiction. As nothing can stand on an illegality, it follows that equally, this application is also fatally defective and if for striking out.
34.
Before our final orders, we note that when this application first came before a single Judge of this Court (Ibrahim, SCJ), a consent was recorded by the parties. It is trite law that jurisdiction is a fundamental legal question and the same can even be raised by a Court of law suo motto. In Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others [2012] eKLR, this Court was categorical that, “jurisdiction of a court flows from either the Constitution or legislation or both. [That] a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” We hasten to add that, where a court has no jurisdiction, parties cannot consent to clothe the Court with jurisdiction. Consequently, the parties earlier consent in this matter is not a bar to our holding that the Court lacks jurisdiction. Parties only consent to factual issues as between/among them and not on fundamental legal issues like jurisdiction of a court.
35.
In the same breath, earlier proceedings before the single judge (Ibrahim, SCJ) does not in any way waive the consideration of the question of jurisdiction for at that preliminary stage of the proceedings the jurisdictional question was not up for consideration by the learned judge. This was captured in the case of Basil Criticos v Independent Electoral and Boundaries Commission & 2 others, [2015] eKLR”, where it was stated that at that preliminary stage before a single Judge, “[t]here was no opportunity, in the circumstances, to consider vital questions relating to this Court’s jurisdiction as regards the exercise of purely discretionary powers by other Courts.”
36.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/22/eng@2019-07-23 |
Petition 37 of 2018 | Kenfreight (EA) Limited v Nguti (Petition 37 of 2018) [2019] KESC 79 (KLR) (23 July 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 23 July 2019 | 2,019 | Nairobi | Civil | Kenfreight | [2019] KESC 79 (KLR) | null | A. Introduction
1.
This is an appeal dated October 4, 2018 and lodged on October 5, 2018 having been admitted by this court as one involving a matter of general public importance under article 1634(b) and 163(5) of the Constitution. The appellant is challenging the entire judgment and orders of the Court of Appeal Makhandia, Ouko & M’Inoti, JJ A. sitting in Mombasa, delivered on 11th March, 2016 which upheld the decision of the Employment and Labor Relations Court at Mombasa Makau J in Cause No 146 of 2013. The Court of Appeal dismissed the appellant’s appeal.
2.
While certifying this appeal as one involving a matter of general public importance, in Miscellaneous Application No 18 of 2016 this Court Maraga, CJ & P; Ojwang, Wanjala, Njoki & Lenaola, SC JJ on September 24, 2018 rendered itself thus:
“
[6]
The court has considered the question at the core of the application, namely, that the Appellate Court’s decision was not guided by the reasoning and determination in that Court’s earlier decision in CMC Aviation Ltd v Mohammed Noor, Nairobi Civil Appeal No 199 of 2013.
[7]
It is clear to this court that the particulars of inconsistency between the Appellate Court’s decisions in the two cases would only be fully evinced upon a hearing of the intended appeal.
[8]
Considering that the prospect of inconsistent determinations in relation to the law of employment would affect the process of application of the law, and would have a bearing on the interests of members of the public, we find this matter to fall within the terms of article 1635. of the Constitution.”
B. Background
i. Proceedings at the Employment and Labour Relations Court
3.
On November 26, 2010, the respondent received a letter from the appellant terminating his employment through its Group Managing Director, invoking the respondent’s contract of employment of September 5, 1996. That letter was to the effect that the respondent’s employment would be terminated with effect from December 1, 2010, having been given one-month notice. He was also informed that he would be paid his salary for the month of December 2010 in lieu of notice.
4.
Aggrieved by the termination, the respondent filed Cause No 146 of 2013 against the appellant in the former Industrial Court now Employment and Labour Relations Court. alleging that the termination of his employment was illegal, wrongful, unfair and discriminatory; that there was no justifiable reasons for the termination; that he was not given a hearing before the termination; and that the termination was actuated by the appellant’s intention to replace him with a Belgian national. As a result, the respondent contended that the amount of Kes 3,258,245 paid as his terminal dues was grossly low as it did not take into consideration an existing practice in the appellant company where full-time directors/employees whose employments were terminated would be paid terminal dues inclusive of 2 month’s as opposed to 15 day’s. salary for each year worked with the appellant. In that regard, the appellant sought the Court to declare his dismissal unfair, unlawful and a nullity, reinstate him, and order payment of his salary for the period between November, 2010 and the date of his reinstatement. In the alternative to his reinstatement, he sought payment of his full salary plus 14 % per annum interest thereon from the date of dismissal until the date of his retirement at the age of 60 years, 12 months’ salary for unfair termination, in addition to terminal dues equivalent to two months’ salary for each year worked, plus interest at 14% per annum effective November 26, 2011 until payment in full , costs and interest.
5.
The respondent’s claim was vehemently denied by the appellant who instead claimed that the respondent’s dismissal was not on disciplinary grounds but a normal termination through service of one month notice as was provided for under the employment contract. It was the appellant’s case that the respondent was not entitled to any accrued employment dues on termination but still, the respondent had granted him an ex-gratia payment.
6.
The Court Makau, J, having heard both sides, framed the following two questions for determination, namely, whether the termination of the respondent’s employment was wrongful and unfair, and whether the claimant was entitled to the reliefs sought.
7.
The learned Judge found, based on evidence on record, that in terms of sections 41, 43(a), 45(2)(a)(b), and 47(5) of the Employment Act, the appellant did not prove any justifiable cause for terminating the respondent’s employment. He held that the appellant’s suggestion that the respondent was negligent and inefficient as a result of which he caused loss to the appellant was never put to him for rebuttal and the respondent was not accorded a disciplinary hearing, nor was he given the reason or reasons for his dismissal. In that regard, the learned Judge declared the respondent’s termination unfair and unlawful, awarded him 12 months’ gross salary at the rate of Kes 676,362 per month for unfair termination, the total translating to Kes 8,116,344 with costs and interest. This award was expressed to exclude the dues of Kes 3,258,245, described in the judgment as ex-gratia. already paid. The rest of the prayers were rejected.
| D. Analysis
i. Issues for determination
26.
Having considered the pronouncement of this court admitting this appeal as one involving a matter of general public importance, the grounds of appeal, the mission of the parties, the authorities in support thereof and having further noted that the appellant has raised several other issues for determination, it is evident to us that there is only one issue for determination by this court, namely:
What is the appropriate remedy for an employee upon unfair or wrongful termination of a contract of employment? Specifically, to whom would the remedy in section 49 of the Employment Act apply where the dismissal upon notice is found to be unfair or wrongful?
27.
The appellant in that context mits that the respondent’s employment was terminated by invoking the contractual clause of terminating the contact which allowed either party to terminate the contract by issuing a one-month notice or by paying one-month salary in lieu thereof. According to the appellant, such a right can be invoked under section 35 of the Employment Act without assigning reasons for terminating the contract of employment. It is therefore the appellant’s mission that the Learned Judges of Appeal departed from previously decided cases, in upholding the decision of the trial Court, thereby creating conflicting decisions on the same issue as well as the question of interpretation and applicability of the Employment Act 2007, by making orders which are inconsistent with the decision of the Court of Appeal, albeit differently constituted in CMC Aviation Limited v Mohammed Noor; Civil Appeal No 199 of 2013, [2015] eKLR the CMC Aviation case.
28.
Conversely, it’s the respondent’s case that the circumstances leading to termination of his employment were allegations of misconduct, breach of duty, negligence and poor performance contemplated under section 41 of the Employment Act which entitles him to the right to be heard. Counsel for the respondent further mitted that the CMC Aviation case was one which the court decided uniquely and is not related to the instant case.
ii. Analysis
29.
We have considered the above mission and note that the Employment Act provides for various modes of terminating an employment one of them being by issuing a termination notice under section 35. The same section gives an employee a right to dispute the lawfulness or fairness of the termination in accordance with the provisions of sections 46; or of an employer or employee to terminate a contract of employment without notice for any cause recognized by law.
30.
Further, section 36 provides that either party to the contract of service to which section 355. applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.
31.
In that context, the Employment Act, 2007 makes provisions for appropriate remedies for wrongful dismissal or unfair termination as follows:
“
[49].
(1)
Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following—
(a)
the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;
(b)
where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph a. which the employee would have been entitled to by virtue of the contract;
(c)
or c the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
(2)
Any payments made by the employer under this section shall be ject to statutory deductions.
(3)
Where in the opinion of a labour officer an employee’s summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to—
(a)
reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or
(b)
re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.
(4)
A labour officer shall, in deciding whether to recommend the remedies specified in sections (1) and(3),take into account any or all of the following— a. the wishes of the employee;
(b)
the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and
(c)
the practicability of recommending reinstatement or re-engagement;
(d)
the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
(e)
the employee’s length of service with the employer;
(f)
the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;
(g)
the opportunities available to the employee for securing comparable or suitable employment with another employer;
(h)
the value of any severance payable by law;
(i)
the right to press claims or any unpaid wages, expenses or other claims owing to the employee;
(j)
any expenses reasonably incurred by the employee as a consequence of the termination;
(k)
any conduct of the employee which to any extent caused or contributed to the termination;
(l)
any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and
(m)
any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.”
32.
When giving an award under section 49 of the Employment Act, a court of law is expected to exercise judicial discretion on what is fair in the circumstances. The Black’s Law Dictionary 9th edition at page 534 defines judicial discretion as follows:
“
the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/79/eng@2019-07-23 |
Application 32 of 2018 | Okoiti v Central Bank of Kenya & 7 others (Application 32 of 2018) [2019] KESC 29 (KLR) (23 July 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 July 2019 | 2,019 | Nairobi | Civil | Okoiti v Central Bank of Kenya & 7 others | [2019] KESC 29 (KLR) | null | A. Introduction
[1]
Before this Court is a Notice of Motion Application dated 15th November, 2018 supported by an affidavit of Okiya Omtatah Okoiti, the Applicant. The Motion is seeking the following orders:
i.
…
ii.
That this Court be pleased to exend time for filing both the petition of appeal, record of appeal, and a supplementary record of appeal so that they can be considered as having been filed within the stipulated time;
iii.
That the costs of the application be provided.
[2]
The Application was triggered by a Judgment of the Court of Appeal dated 12th October, 2018 that set aside the Judgment of the High Court. The Applicant, who was the Petitioner in the High Court, failed to file his appeal to this Court, on time, hence the instant application.
B. Background
[3]
The 1st Respondent (Central Bank of Kenya), pursuant to Article 232 of the Constitution, commenced the procurement of design of currency banknotes in 2014 by advertising the prequalification of suppliers for production of Bank notes, originating material and currency printing services. This was done locally and internationally by Tender No. CBK/043/2013/2014, published in two local dailies, regional weekly papers and its website.
[4]
Following the pre-qualification, four firms that included the 2nd Respondent (De La Rue International Limited), were prequalified by the 1st Respondent. After prequalification, the 1st Respondent in the year 2016 floated Tender No. CBK/064/2016/2017 for origination of material and data set files for the new Kenya currency and bank notes.
[5]
On 24th October, 2017, the 1st Respondent issued the tender for printing and supply of the new design currency. The tender was restricted to candidates who had prequalified under the earlier prequalification process due to the specialized and complex nature of the goods, works and/or services required. On 8th November, 2017, the 1st Respondent issued an addendum to the tender wherein it informed the candidates of its preferences and reservations which were to be fulfilled by bidders in the performance of the proposed contract. The addendum provided inter alia that the bidders who sought to sub-contract part or whole of the contract were to obtain the express authority of the 1st Respondent. The addendums were as a result of the clarifications sought by the 2nd Respondent.
[6]
Before the award of the tender, the 4th and 6th Respondents moved to the High Court by way of Nairobi HC Petition No. 568 of 2017 against the 1st Respondent challenging the tendering process for allegedly contravening Articles 227 and 231 of the Constitution. The Petition was however withdrawn by consent of the 1st, 3rd and 4th Respondents. Following the withdrawal, the tender was evaluated and awarded to the 2nd Respondent. In awarding the tender, the 1st Respondent applied 15% margin of preference provided for under Section 28 of the Public Procurement and Disposal Regulations, 2006. The Restricted Tender for Printing & Supply of New Design Kenya Currency Banknotes, being Tender Reference No. CBK/37/2017-2018 was made on 30th November, 2017.
[7]
Aggrieved with the award, M/s Crane AB successfully petitioned the 5th Respondent (The Public Procurement Review Authority) for review of the decision on the basis that the 2nd Respondent was unlawfully awarded the tender after irregular application of the 15% preference margin inter alia. The preferential margin had been introduced to promote the participation of local industries or marginalized groups in the tendering process. The 5th Respondent thereafter annulled the award. The 1st and 2nd Respondents then moved to the High Court through Judicial Review Applications Nos. 6 and 7 of 2018 to challenge that nullification. The High Court quashed the decision of the 5th Respondent on the ground that the 5th Respondent exceeded its jurisdiction in allowing a party who was not a bidder, to wit M/s Crane AB, to initiate the review proceedings before it.
[8]
Following the above decision of the High Court, Okiya Omtatah Okoiti, the Applicant herein, petitioned the High Court challenging the entire procurement process as a nullity for allegedly failing to comply with the law on the basis misapplication of the law and regulations thus petitioned the High Court for various declarations against the Central Bank Of Kenya, “the 1st Respondent”, De La Rue International Limited, “the 2nd Respondent”, De La Rue Currency & Security Print Ltd, “the 3rd Respondent”, De La Rue Kenya EPZ, “the 4th Respondent, and Public Procurement Review Authority, “5th Respondent.
[9]
The Petition aforesaid alleged contravention of Articles 27, 35 and 47 of the Constitution and the national values and principles of governance set out in Articles 1,2,3,10,231(3), 232, and 259 (1) of the Constitution by the 1st Respondent. The Petition also alleged that the 1st Respondent, in awarding the tender, contravened not just the aforesaid provisions of the Constitution but also the Public Asset Disposal Act, 2015; the Public Procurement & Procurement & Disposal ACT, 2005; the Fair Administrative Action Act, 2015; the Central Bank of Kenya Act and the Statutory Instrument Act, 2015. The Applicant further alleged that the 1st Respondent, as the procuring entity, rigged the tender in favour of the 2nd Respondent with the collusion of the 3rd and 4th Respondents.
[10]
The High Court (Odunga J) in a Judgment delivered on 9th April, 2018 inter alia issued a declaration that the award of the tender made on 30th November, 2017 by the 1st Respondent to the 2nd Respondent was both unconstitutional and unlawful. The High Court then proceeded to quash the said award and issued an order compelling the 1st Respondent to transparently re-evaluate the bids of all compliant bidders and award the tender strictly in accordance with law.
[11]
Aggrieved by the decision of the High Court, the 1st and 2nd Respondents filed Civil Appeals Nos. 116 and 119 of 2018, respectively. The appeals were consolidated and heard together. The Court of Appeal (Githinji, Asike-Makhandia, and Sankale ole Kantai) in a judgment delivered on 12th October, 2018 set aside the Judgment and Decree of the High Court. The Applicant’s failure to file his appeal to this Court within the required period has triggered the instant application. | D. Analysis and Determination
[42]
We have set out the rival submissions by parties and in our view, there are only two issues for determination by this Court. The first issue is whether this Court has jurisdiction to entertain the Application. The second issue is, if we have jurisdiction to determine it, has the Applicant laid enough grounds to enable us extend time within which to file his appeal?
[43]
It is important to settle the issue of jurisdiction ab initio bearing in mind that the jurisdiction of this Court is limited. It would also be an exercise in futility if we were to allow the Applicant to file his appeal out of time only to find later that we are without jurisdiction. In that context, the Application is stated to have been brought under Article 163(4) (a) of the Constitution. Put differently, the intended appeal must have involved application and interpretation of the Constitution. We would thus agree with the Respondents to the extent only, that if the Applicant were to bring his appeal as a matter of great public importance, then he ought to have sought certification thereof. The Applicant has however insisted that his appeal involves interpretation and application of the Constitution and so no certification is required.
[44]
The above being the case, we shall address the Application as framed and so the issue of certification would not arise in our consideration thereof. In that regard, the 3rd and 4th Respondents have made reference to paragraph 2 of the Judgment of the Court of Appeal where the court summarized the issues for determination. In the said paragraph, the Court of Appeal listed the twin issues for determination to be: “whether the appeals ought to be struck out for want of joinder of essential or necessary parties; the applicable law to the tender; and whether the 15% preference margin was lawfully granted to the 2nd appellant and finally, costs”.
[45]
For this Court to assume jurisdiction under Article 163(4) (a) of the Constitution, the Applicant must demonstrate how certain Articles of the Constitution were applied or interpreted in the Trial Court as well as the Appellate Court. In Zebedeo John Opore v. Independent Electoral and Boundaries Commission and 2 Others, Sup. Ct. Election Petition No. 32 of 2018 (para. 57) we held that for a dispute to fall under Article 163(4) (a) of the Constitution, the conclusion reached by the trial Court must clearly emerge as one requiring constitutional interpretation or application. Although the Opore case related to an electoral dispute, we find it applicable here. We further stated in that case that a party seeking this Court’s intervention has to indicate how the Court of Appeal misinterpreted or misapplied the constitutional provision in question. Has the Applicant demonstrated how Article 227 of the Constitution was misapplied?
[46]
We have elsewhere above made reference to the Applicant’s Replying Affidavit dated 11th March 2019. At paragraph 16, he has listed a number of Articles in the Constitution that he invoked for determination. He has included Articles 22 (1) & (2) (c) and 258 (1) & (2) (c) of the Constitution. He then, at paragraph 17, stated that “there is no way an appeal to this Court resulting from the Court of Appeal’s decision in the first appeal thereof, can be said not to be a case involving the interpretation or application of this Constitution”. At paragraph 21, he concludes that his intended appeal revolves around the interpretation and application of Article 227(a) of the Constitution. However, rather than explain how the Articles were applied or interpreted, the Applicant has only made assumptions and we are at pains to find, how the conclusion reached by the Trial Court as well as the Appellate Court emerge as one requiring interpretation and Application of the Constitution. We are also unable to find any explanation by the Applicant as to how the Court of Appeal misinterpreted or misapplied the constitutional provision he has listed. We thus agree with the Respondents that the dispute did not relate to any express question of the interpretation and application of the Constitution. In our view, like the Court of Appeal, we are clear in our minds that the dispute between the parties relates to the tender for printing of new currency and the issue of the 15% preferential margin. No Articles of the Constitution require any interpretation or application in that regard. Any reference to the Constitution, as was the case at the Court of Appeal, was peripheral in addressing those two central issues.
[47]
Having made the above observations, we find that this Court has no jurisdiction to entertain the intended appeal and we cannot also cannot proceed to determine the second issue on whether the time should be extended to allow the Applicant file his intended appeal.
[48]
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.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/29/eng@2019-07-23 |
Application 33 of 2018 | Okoiti v Central Bank of Kenya & 7 others (Application 33 of 2018) [2019] KESC 27 (KLR) (23 July 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu | 23 July 2019 | 2,019 | Nairobi | Civil | Okoiti v Central Bank of Kenya & 7 others | [2019] KESC 27 (KLR) | null | A. Introduction
[1]
Before this Court is an application dated 15th November 2018 of Okiya Omtatah Okoiti, the Applicant. The Application is seeking the following orders:
(a)
…
(b)
That the Honourable Court be pleased to order a stay to the Judgment and decree/orders granted on 12th October, 2018 by the Court of Appeal in Civil Appeal No.116 of 2018 consolidated with Civil Appeal No. 119 of 2018.
(c)
The costs of the application be provided.
[2]
The Application was triggered by a Judgment of the Court of Appeal in Civil Appeal No.116 of 2018 dated 12th October, 2018 (Githinji, Asike-Makhandia, and Sankale ole Kantai) that set aside the Judgment of the High Court regarding the printing of new bank notes for use in Kenya. The background and the facts of this Application have been set out in Application No. 32 of 2018 where the Applicant herein was seeking the leave of this Court to file his Petition of appeal out of time. We find it unnecessary to restate those facts here.
(i) The Application at the Supreme Court
[3]
The Application to stay the execution of the Judgment of the Court of Appeal has been brought under Articles 1,2,3(1), 4(2), 10, 22,27, 47, 50(1), 73, 75, 159, 163(4)(a), 201(a)&(d), 227(1) & (2), and 259 (1) of the Constitution of Kenya, 2010; Section 19 of the Supreme Court Act, 2011; Rule 17 and 23 of the Supreme Court Rules, 2012; and all enabling provisions of the law.
(ii) Notice of Preliminary objection (PO)
[4]
The 2nd Respondent, De la Rue International Limited, has filed a Notice of Preliminary Objection dated 11th December, 2018, alleging that the Orders sought by the Applicant are not available in law in the absence of the certification process stipulated in Article 163(4)(b) of the Constitution. We shall deal with the objection as we determine the Application before us.
B. Submissions
(i) The Applicant’s
[5]
The Applicant has filed written submissions dated 11th March 2019 in support of his Application and has listed the issues for determination as follows:
(i)
Whether the subject matter of the intended appeal is still alive and justiciable;
(ii)
Whether the intended appeal required certification under Article 163(4)(b) of the Constitution;
(iii)
Whether the computation of time under Rule 33(1) of the Supreme Court Rules violates the Constitution and the principles of natural justice;
(iv)
Whether there was inordinate delay in making this Application;
(v)
Whether the Judgment of the Court of Appeal should be stayed;
(vi)
Whether costs are payable.
[6]
Save for submissions on the issues of whether the Judgment of the Court of Appeal should be stayed and the delay in filing the Application, the submissions are a replica of the Applicant’s submissions in Application No.32 of 2018 where the Applicant is seeking leave of this Court to file his Petition of appeal out of time.
[7]
On the first issue, the Applicant submits that since the dispute is about the issue of banknotes and not coins, the Respondents’ claim that the subject matter is moot is not backed by any material evidence. He has produced as exhibit “000-2” Legal Notice No. 235 of 7th December, 2018, for supply of coins. It is thus his submission that the subject matter is still live and justiciable.
[8]
On the second issue, the Applicant has submitted that he wishes to appeal under Article 163(4) (a) of the Constitution, as the intended appeal raises issues of the interpretation and application of the Constitution as well as statute. He thus contends that his intended appeal revolves around the application and interpretation of Article 227 of the Constitution as read with the Public Procurement and Asset Act, 2015 as well as the repealed Public Procurement and Disposal Act, 2005 which he believes the Court of Appeal misapplied. He has in the same breathe alleged misapplication of Article 50(4) of the Constitution. He thus submits that in such a situation certification was not required. | C. Analysis And Determination
[27]
In Application No. 32 of 2018, we declined the prayer by the Applicant herein to extend time to file his Petition of Appeal out of time for want of jurisdiction. It follows therefore that we have no jurisdiction to determine this application for stay of execution of Judgment of the Court of Appeal. In addition, there is no substantive appeal before us to enable us make a determination on this application for stay of execution one way or the other. Orders cannot be granted in a vacuum or on a whim. It is the Petition of Appeal that indicates the substratum of a party’s case and whether interim orders should be granted or not. Without it, no orders can ordinarily issue.
[28]
On costs, the Applicant shall pay costs to all the Respondents as costs follow the event, a submission he forcefully made in his favour but which we hereby apply as against him. We have done so because this is not a matter of general public importance, but an issue regarding the award of a tender for print of currency, involving private as well as public entities. The Applicant ought to be aware of the consequences of his actions including on costs, hence this order. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/27/eng@2019-07-23 |
Application 15 of 2018 | Okoiti v Sicpa Securities Sol. Sa & 2 others (Application 15 of 2018) [2019] KESC 28 (KLR) (23 July 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 23 July 2019 | 2,019 | Nairobi | Civil | Okoiti v Sicpa Securities Sol. Sa & 2 others | [2019] KESC 28 (KLR) | null | A. Introduction
1.
Before this Court are two Notice of Motion applications and a Notice of Preliminary Objection. The first Notice of Motion is by the Applicant in the main Okiya Omtatah Okoiti (Okoiti). The Second Notice of Motion is by the 3rd Respondent, Commissioner General, Kenya Revenue Authority (KRA). A Notice of Preliminary Objection has also been raised by the 1st Respondent, SICPA Securities SOL. SA (SICPA). The Cabinet Secretary, National Treasury (CS) is the 2nd Respondent. For purposes of this Ruling, we shall adopt the order of the parties as set out in the first Notice of Motion Application by Okoiti dated 8th June 2018.
2.
In the first Notice of Motion, supported by an affidavit dated 8th June 2018 and sworn by Okoiti, the Applicant is seeking the following orders:
(i)
That this Honourable Court be pleased to certify this matter as urgent and the same be heard as a matter of priority;
(ii)
That this Honourable Court be pleased to order a stay to the orders granted on 11th May, 2018 by the Court of Appeal in Civil Application No. 76 of 2018 (UR 67/2018) consolidated with Civil Application No. 78 of 2018 (UR 68/2018);
(iii)
That the substance of this application be certified as involving matters of general public importance;
(iv)
That this application for leave be granted;
(v)
That the costs of the application be provided.
3.
In the second Notice of Motion dated 31st July, 2018, KRA is praying for the following orders:
(i)
This Honourable Court be pleased to strike out Okiya’s Notice of Appeal dated 16th May, 2018 and filed in Court on 17th May, 2018;
(ii)
This Honourable Court be pleased to strike out Okiya’s Notice of Motion dated 8th June, 2018 and filed in Court on 14th June, 2018 as Civil Application No. 15 of 2018;
(iii)
This Court be pleased to make such other order as may be deemed fit and just in the interest of justice;
(iv)
The cost of the application be provided.
4.
In its Preliminary objection, SICPA is urging this Court to strike out Okiya’s Notice of Motion on grounds that this Court lacks jurisdiction. First, to hear and determine an application challenging the exercise of discretion by the Court of Appeal under Rules 5(2) (b) of the Appellate Court Rules. Second, the application offends Article 163(4) (a) of the Constitution. Third, that the application lacks merit, is incompetent and unlawful.
B. Background
5.
The genesis of the dispute is a public notice given in the local media in October, 2017 to announce that with effect from 1st November 2017 “Bottled water, juices, soda and other Non-Alcoholic Beverages and Cosmetics” manufactured or imported into Kenya shall be affixed with excise stamps in accordance with Legal Notice No. 110 of 18 June 2013.
6.
The regulations contained in the legal notice had been issued by the CS and had the effect of expanding the scope of the items to be covered by EGMS to include certain listed goods. According to Okiya, the Kenya branch of SICPA (having its headquarters in Switzerland) had been awarded the tender, worth between Ksh.15-17 billion to ensure the traceability of products, secure exercise duty and ultimately increase revenue to KRA.
7.
The system was also meant to seal loopholes leading to loss of revenue that had been suffered under a manual system as well as curb illicit trade in counterfeit goods. The previous manual method of affixing Excise and Revenue Stamps on excisable goods was only limited to tobacco, wines, spirit and beer but suffered alleged rampant counterfeiting of stamps resulting in manufacturers under declaring the volumes of their products, leading to under collection of exercise tax.
8.
Okiya filed constitutional Petition No.532 of 2017 in the High Court of Kenya at Nairobi challenging the legal instrument. The main grounds being that there had been no public participation or consultation before the introduction of the EGMS and that the legal instruments for the introduction of EGMS were enacted in a manner inconsistent with the Constitution. Further, that the award of Tender Number KRA/HQS/DP-423/2014-2015 by the KRA through direct procurement violated applicable laws thus necessitating its quashing.
9.
In a Judgment dated 12th March, 2018, the High Court (Mativo J) decided that Legal Notice No. 53 of 30th March 2017 was enacted in a manner inconsistent with the Constitution and the Statutory Instruments Act on account of want of adequate public participation prior to its enactment. | (v) Analysis and determination
50.
The main issue for determination, cutting across the three applications is whether this Court has jurisdiction to hear appeals arising from interlocutory orders of the Court of Appeal under Rule 5(2) (b) 0f the Court of Appeal rules. If answered in the affirmative, what are appropriate reliefs for this Court to grant? We have deliberately set out the rival submissions on this point to enable us firmly restate the law on that issue.
51.
Okiya is asking this Court to depart from its decision in Teachers Service Commission v. Kenya National Union of Teachers & 3 others (supra) where we made a determination that we have no jurisdiction to interfere with the exercise of discretion by the Court of Appeal on an application made under Rule 5(2) (b). He is instead urging this Court to be persuaded by the dicta in Deynes Muriithi (supra), where this Court found that:
“
…whenever it becomes plain that the Orders made by other Courts are destined to occasion grave injustice, and this is apparent on the fact of the decision in question, this Court, as ultimate custodian of the constitutional integrity, may not turn a blind eye to such decision, where it stands in conflict with express provisions of the Constitution.”
52.
Okiya thus believes that the Court of Appeal acted in manner that takes away fundamental rights of the citizens of Kenya; the decision has determined the pending appeals in the Court of Appeal denying him the right to be heard; and therefore it is important for this Court to interfere with the exercise of discretionary powers by the Court of Appeal.
53.
KRA, SICPA and CS on the other hand have argued that this Court lacks jurisdiction to entertain appeals in relation to Rule 5(2) (b) applications in the Court of Appeal and have urged this Court to be persuaded by the cases of Equity Bank Limited v. West Link MBO Limited; Stanley Kangethe Kinyanjui v. Tony Keter & others; Daniel Njihia v. Francis Mwangi Kimani & another; Fahim Yasim Twaha v. Timamy Issa Abdalla & 2 others; Hassan Nyaje Charo v. Khatib Mwashetani & 3 others; Sum Model Industries Ltd v. Industrial & Commercial Development Corporation; Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & another; and Hermanus Phillipus Steyn v. Gnecchi-Ruscone.
54.
From the onset, we must reiterate that the jurisdiction of this Court is limited. That jurisdiction flows from the Constitution and legislation. In Teachers Service Commission v. Kenya National Union of Teachers & 3 Others (supra) this Court held that Rule 5(2)(b) of the Court of Appeal Rules are derived from Article 164(3) of the Constitution and that it illuminates the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal. Generally thereafter, we added there will be a pending, or an intended appeal, as a basis for this Court to entertain an application for stay of execution; and 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 the Court of Appeal Rules where there is neither an appeal, nor and intended appeal pending before the Supreme Court. We are not ready to depart from these principles because no sound argument has been made in this application to demand such departure.
55.
In that regard, the issues raised in the application by Okiya have not been adjudicated upon by the Court of Appeal. The appeals are indeed still pending in the Court of Appeal. There is no Judgment by the Court of Appeal in which constitutional issues or matters of general public importance have been canvassed. This was also our finding in Basil Criticos v. Independent Electoral and Boundaries & 2 Others. We thus agree with the Respondents that interlocutory applications filed under Rule 5(2) (b) are not appeals as envisaged by Article 164(3) of the Constitution. The jurisdiction of this Court in that context is not as wide as submitted by Okiya.
56.
Okiya has also submitted that the pending appeals in the Court of Appeal were mentioned on 29th August 2018 for purposes of fixing a hearing date. We also note that Okiya made an application dated 23rd July 2018 seeking the Court of Appeal to vary or rescind its order granted on 11th May 2018. Although he is denying the contents of the application, we have perused the annexure marked “CNM-4” by KRA and we are in agreement with KRA that such conduct amounts to an abuse of Court process. An Applicant should have first pursued the application in the Court of Appeal to avoid conflicting decisions from this and that Court.
57.
If we were to follow the decision in Deynes Muriithi, which we are not, we would find that Okiya has not demonstrated that the decision of the Court of Appeal has the effect of disposing of the substratum of the substantive matter before the High Court. He has not demonstrated that the Order of the Court of Appeal has a pre-emptive effect on the appeals pending in the Court of Appeal.
58.
Okiya has further argued that the Preliminary Objection by SICPA is incompetent on the basis that it is not based on pure issues of law but raises issues of fact that need to be ascertained. We do not agree with him because the notice is mainly challenging the jurisdiction of this Court to entertain the application by Okiya which is a pure point of law. We find no contested facts that need to be ascertained in determining the issue of jurisdiction.
59.
The last issue to address is costs of the application. Okiya has urged this Court not to condemn him to pay costs, relying on the Biowatch decision cited above, in the event his application is not successful. We agree with the principle set out in that Judgment but find that it finds no application in this matter for two reasons. First, based on our finding above, we are unable to categorize this application as constitutional litigation. Secondly, all the Respondents have expended their resources in defending Okiya’s application. He should therefore pay their costs. In making that order, it is important for an applicant to be mindful of the cost implication in litigation before embarking on that journey. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/28/eng@2019-07-23 |
Application 4 of 2019 | Law Society of Kenya v Attorney General & another (Application 4 of 2019) [2019] KESC 30 (KLR) (Civ) (31 May 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, DK Maraga, SC Wanjala, NS Ndungu, I Lenaola | 31 May 2019 | 2,019 | Nairobi | Civil | Law Society of Kenya v Attorney General & another | [2019] KESC 30 (KLR) | null | Ruling Of The Court
1
The Applicant, the Law Society of Kenya, filed an application dated 1st February, 2019 and filed on 4th February, 2019, seeking orders that this application be certified urgent, that the Court grant an order staying the execution of the whole of the Judgment of the Court of Appeal in Civil Appeal No. 133 of 2011: The Hon. Attorney General v Law Society of Kenya & Another and that the status quo prevailing before delivery of the judgment be restored. The application is brought under Articles 1, 41(1), 159, 163, 258, 259, of the Constitution, Sections 3, 21(2), 24(1) of the Supreme Court Act 2011; Rules 3, 23, 26 of the Supreme Court 2012 and all other enabling provisions of the law.
2
The Applicant sets out the grounds in support of the application in a Supporting affidavit sworn on 1st February, 2019 by Peter Mwaura Kamau and Supplementary Affidavit sworn on 19th February, 2019 and filed 20th February, 2019. It is its case that as a consequence of the Court of Appeal Judgment, thousands of Work Injury Benefits Cases pending before Magistrates’ Courts were transferred to the Employment and Labour Relations Court (ELRC) which then referred them to the Director of Occupational Safety and Health Services (the Director) for adjudication in accordance with a Memo dated 11th July 2018 and titled “Handling of Work Injury Benefits Cases” circulated by the Principal Judge of the ELRC.
3
The Applicant submits in its written submissions dated 19th February, 2019 and filed on 20th February, 2019 that the effect of the Court of Appeal’s decision is to remove jurisdiction to hear Work Injury Benefits Cases arising from the Work Injury Benefits Act 2007 from Magistrates’ Courts. This has occasioned, it argues, a major crisis in the Courts as all Magistrates have refused to deal with any case falling under the Act resulting in such matters being stalled countrywide.
4
It was further submitted by the Applicant that an order of stay of execution and restoration of the status quo is merited since the appeal before this Court is arguable and not frivolous because it touches on grave violations of the Constitution. Particularly, it submits that the question who should wield judicial authority under Article 159(1) should be resolved as the Court of Appeal Judgment vests in the Director, jurisdiction to singlehandedly adjudicate on work injury claims, which is tantamount to denying claimants access to justice and a fair hearing as guaranteed by Articles 48 and 50(1) of the Constitution. Should the order of stay sought be refused, the Applicant has submitted that the appeal, were it to succeed, would be rendered nugatory since all files touching on the Act are being transferred to the Director for re-adjudication and damages would not suffice as a remedy to compensate legal practitioners and litigants. | 0.
In conclusion, the 2nd Respondent has submitted that the order sought would not serve the public interest as the filing of a claim for compensation is time sensitive and Section 27(1) of the Act specifically places a 12 month period to bring such a claim after which the right to benefits would lapse. To grant an order of stay for an indefinite period would therefore deny claimants their right to institute claims within the statutory timeframes thus causing injustice
11.
On our part, taking into account the above submissions, WE NOTE as follows;
(a)
As provided under Section 21(2) & (3) of the Supreme Court Act 2011 the Court may make any ancillary or interlocutory orders. That Section must be read with Rule 3(5) of the Supreme Court Rules, 2012, which maintains the Court’s inherent powers to make such orders or give such directions as may be necessary for the ends of justice or to prevent the abuse of the process of the Court.
(b)
In Board of Governors, Moi High School, Kabarak & Another v Melcom Bell [2013] eKLR this Court held (and later confirmed in Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2015] eKLR) that it has jurisdiction to grant declaratory orders, and more particularly, orders of stay of execution of decrees issued by other superior Courts.
(c)
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR the principles the Court on whether or not to grant a stay of execution were set out thus: “(i) The Appeal or intended appeal is arguable and not frivolous and that; (ii) Unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. (iii) These principles continue to hold sway not only at the lower courts but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added namely; (iv) That it is in the public interest that the order of stay be granted.”
(d)
The Court was also instructive in Malindi Law Society v Law Society of Kenya of Kenya, Nairobi Branch & 5 others [2018] eKLR where it said that “a grant of stay of existing orders cannot be a matter of course. It rests upon genuine conditions of urgency, merit and dispatch - which in this case are missing.”
12.
In the above context, the Applicants in the present Application do not put forward sufficiently convincing evidence of “genuine conditions of urgency, merit and dispatch” and although the appeal is certainly arguable, we agree with the Respondents that the time lapse between the delivery of the Court of Appeal Judgment, the issuing of the circular implementing the Judgment and the date of filing this application is such that the grant of an order of stay at this late hour would not serve the public interest and would only serve to confuse the on-going adjudication process in Work Injury Benefits cases. It is indeed instructive that litigation has been ongoing since delivery of the Court of Appeal Judgment on 17th November 2017 and to stay any proceedings at this late hour would unduly hamper the fair administration of justice.
13
Having therefore considered the application and affidavit in support thereto and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders under section 21(2) & (3) of the Supreme Court Act, 2011 and Rule 3(5) of the Supreme Court Rules, 2012; | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/30/eng@2019-05-31 |
Petition 4 of 2018 | Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU); Represented by its Promoters) (Petition 4 of 2018) [2019] KESC 37 (KLR) (8 May 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 8 May 2019 | 2,019 | Nairobi | Civil | Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others | [2019] KESC 37 (KLR) | null | A. Introduction
1.
This is an application by way of Notice of Motion dated 9th August, 2018 brought under Articles 36, 41(2) (c ) (4)(a), (b) & (5), 50(1), 163(3) (b), 163(4) (b), 163 (7) of the Constitution of Kenya and Rules 23, 26(1)(a), (b) (2)(3)(4) and (5) of the Supreme Court Rules, 2012 and the inherent jurisdiction/powers of the Court. The applications seek the following substantive orders:
1.
………….;
2.
That pending inter-partes hearing and determination of this application and petition, the Petitioner be prohibited and/or restrained by itself, its servants, agents or any other person(s) claiming through it from interfering in any way with the operations of the 1st to 9th Respondents’ union by instituting legal proceedings in any other lower courts other than the Supreme Court on matters arising from the impugned Judgment of the Court of Appeal in Civil Appeal No. 141 of 2014;
3.
That pending inter-partes hearing and determination of this application and the petition the proceedings in Cause No. 13 of 2018 and Cause No. 222 of 2018 in the Employment and Labour Relations Court in Nakuru on matters arising from the impugned judgment of Civil Appeal No. 141 of 2014 and any ex parte orders thereto be stayed;
4.
That pending inter-partes hearing and determination of this application and the petition the 1st to 9th Respondents’ union be and is hereby allowed to engage in Collective Bargaining Agreement negotiations on behalf of its members with employers with whom it has a Recognition Agreement;
5.
That pending inter-partes hearing and determination of this application and the petition, employers who employ more than 5 members of the 1st to 9th Respondents’ union be and are hereby directed to deduct and remit trade union dues in accordance with the Kenya Gazette Supplement No. 95, Legal Notice No. 157 of 3rd July, 2018;
6.
That after hearing of this application this Court be pleased to grant an order stopping the petitioners from interfering with operations of the 1st and 9th Respondents’ Union by filing any suit in any other matters arising out of the judgment in Civil Appeal No. 141 of 2014 and which are under consideration in petition No. 4 of 2018; and
7.
That costs of and incidental to this application abide the result of the Petition No. 4 of 2018.
2.
The application is premised upon nineteen (19) grounds in the body of the application and the supporting affidavit of David Benedict Omulama, the National Secretary of KEFHAU, sworn on 9th August, 2018.
3.
The application is opposed by Kenya Plantation & Workers’ Union (the Respondent herein) who has filed a replying affidavit sworn by Francis L. Atwoli, the National Secretary, on 17th August, 2018.
B. Background | D. Analysis
16.
The appellate jurisdiction of this Court is aptly captured in Article 163(4) of the Constitution of Kenya which state 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.
17.
Section 15 (1) of the Supreme Court Act No.7 of 2011 also provides that Appeals to the Supreme Court shall be heard only with the leave of the Court. Section (15) (2) 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.
18.
This Court has time and again stipulated the boundaries of its jurisdiction under Article 163(4)(a) of the Constitution in several decisions, which decisions are still applicable. In the case of Lawrence Nduttu case, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) the set guiding principles were affirmed 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).” [emphasis added]
19.
Further, in the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others (Joho Case), Sup.Ct. Petition 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].
20.
The same principle was also affirmed in this Court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, S.C 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.” [emphasis added]
21.
In determining this application, we shall approach the question of jurisdiction from two angles, whether this Court can stay proceedings before a court below? And whether this Court can issue orders on matters that have not arisen through the normal appellate mechanism?
Jurisdiction to stay proceedings before a court below
22.
On this, the Applicants seek this Court to prohibit the Respondent from instituting legal proceedings in any other lower Courts other than this Court on matters relating to Civil Appeal No. 141 of 2014. They also want this Court to stay proceedings in Cause No. 13 of 2018 and 222 of 2018 before the Employment and Labour Relations Court pending the hearing and determination of the Petition before this Court.
23.
We have had the opportunity to interrogate the Applicants’ application, the supporting affidavit and written submissions, and note that they have not sought stay of proceedings before the Employment and Labour Relations Court. That Court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties since the alleged causes are live before it. Accordingly, that court should ideally be afforded the first opportunity to express an opinion as to whether the causes filed and being filed before it raise similar questions as to the ones being raised before the Supreme Court. Should the Applicants be dissatisfied with the decision of that Court, they shall be free to appeal that decision before the Court of Appeal and subsequently to this Court through the normal appellate mechanism. To allow the applicant disregard the Courts below and come directly to this Court in search of stay orders, would amount to an abuse of the process of Court. This was the reasoning of this Court in the case of Sum Model Industries Ltd v Industrial & Commercial Development Corporation, SC Application No. 1 of 2011; [2011] eKLR.
24.
We are therefore reluctant to grant prayer 2, 3 and 6 of this application for the above reasons.
Jurisdiction to issue orders on issues that have not arisen through the normal appellate mechanism.
25.
It is the Applicants’ case that pending the hearing and determination of this application and the petition, this Court issues them with orders to engage in Collective Bargaining Agreement negotiations on behalf of its members with employers with whom it has recognition agreement. They also seek orders from this Court directing employers who employ more than 5 members of their Union to deduct and remit trade union dues to the union.
26.
This Court has in previous decision emphasized the significance of respecting the hierarchy of the judicial system in several cases. For instance, in the case of Peter Oduor Ngoge v Francis Ole Kaparo & others [2012] eKLR this Court stated as follows:
“
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.” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/37/eng@2019-05-08 |
Petition (Application) 17 of 2017 | Khalifa & 2 others v Chairperson, Independent Electoral & Boundaries Commission & another; Njenga (Intended Interested Party) (Petition (Application) 17 of 2017) [2019] KESC 78 (KLR) (8 May 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, DK Maraga, SC Wanjala, N Ndungu, I Lenaola | 8 May 2019 | 2,019 | Nairobi | Civil | Khalifa & 2 others v Chairperson, Independent Electoral & Boundaries Commission & another; Njenga | [2019] KESC 78 (KLR) | null | This is a Notice of Motion Application dated 25th October, 2017 and filed on even date by Adrian Kamotho Njenga, seeking to be enjoined as an Interested Party in the substantive appeal before us.
2.
The Application is supported by the Applicant’s affidavit sworn on 25th October, 2017. The Applicant urges that he has a legitimate interest to be enjoined in the proceeding, since he proposes to argue matters of “crucial public interest”. He takes the position that the Court has no jurisdiction to entertain the substantive appeal, as the subject matter therein does not arise under Article 140 of the Constitution. Further, he proposes that the petitioners have not exhausted the available judicial avenues, before approaching this Court.
3.
| 3.
Having considered the Application and even without the benefit of other parties’ responses, it is our finding that the Applicant has not satisfied the conditions for admission as an Interested Party as set out in the cases of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others Supreme Court Petition No. 12 of 2013; [2014] eKLR and Francis Karioki Muruatetu & Another v. Republic & 5 Others SC Petition No. 15 & 16 of 2015; [2016] eKLR. We say so because the applicant has not demonstrated how he will be affected by the ultimate decision of the Court or what prejudice he will suffer if he is not enjoined. In addition, the applicant’s proposed arguments are not novel, but rather a replication of what is already before the Court.
Orders | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/78/eng@2019-05-08 |
Application 38 of 2018 | Nuri v Kombe & 2 others (Application 38 of 2018) [2019] KESC 77 (KLR) (8 May 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 8 May 2019 | 2,019 | Nairobi | Civil | Nuri v Kombe & 2 others | [2019] KESC 77 (KLR) | null | The substantive matter before the Court is a Petition of appeal dated and filed on the even date of 26th October 2018. The appeal seeks to set aside the Court of Appeal (Ouko, P, Musinga & Murgor, JJA) judgment delivered in Election Petition Appeal No. 5 of 2018 as consolidated with Election Petition No. 1 of 2017, which judgment dismissed the Appellant’s appeal for lack of jurisdiction.
2.
Upon being served with the Petition of appeal, the 2nd Respondent (Applicant herein) filed a Notice of Motion Application dated 17th December 2018, subject of this Ruling. The application is stated to be brought under Rule 8 of the Supreme Court of Kenya Rules, 2012, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law.
3.
The application seeks for orders that: the 2nd Respondent be and is hereby granted leave to file an affidavit seeking to be excused from the proceedings before this Honorable Court, and that the 2nd Respondent be granted costs of this application.
4.
The application is premised on grounds in the body of the Notice of Motion and a Supporting Affidavit sworn by one, Barrack Okwaro Muluka, the 2nd Respondent’s Secretary General. The crux of the application is that the 1st Respondent colluded with the 2nd Respondent’s former officials to secure her nomination as a Member of County Assembly of Tana River County contrary to the Party’s Constitution. That while the Appellant successfully sued the 1st Respondent at the Magistrate Court the decision was quashed by the High Court on the basis of a legal technicality. Further, that the Party was not aware of the collusion until the Appellant wrote a letter to the Party.
5.
It is deposed that upon realizing the collusion, the Party instructed an advocate who went on record at the High Court and subsequently at the Court of Appeal, with the aim of bringing to the attention of the court(s), the true factual position. However, the Court of Appeal cited lack of jurisdiction and downed its tools. Consequently, the Applicant now wishes to withdraw from the matter as it deems its continued participation in this matter as amounting to perpetuating a fraud and sanitizing an illegality. Hence the current application for leave to file an affidavit to withdraw from the proceedings. | 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.” (Emphasis provided).
10.
Consequently, we find and hold that the reference to the Civil Procedure Act and Rules by the 2nd Respondent is inapplicable and insufficient to help its cause before this Court.
11.
Secondly, Rule 8 remains as the only legal provision under which the application is made. Rule 8 provides for Further pleadings, affidavits etc. It provides:
(1)
A party may, with leave of the Court or with the consent of other party, lodge further pleadings or affidavits.
(2)
An application for leave under this Rule may be made orally.
(3)
Any pleadings, affidavits or other documents filed under this rule shall be served on all parties in accordance with rule 10.
12.
Upon a pragmatic interpretation of this rule, we find that it cannot be a premise for filing of an application like the one before us: seeking leave to file an affidavit to withdraw from proceedings. This rule allows parties to seek leave (orally) to file a further affidavit or further pleading in addition to what a party might have already filed before Court. The rule cannot be invoked where a party seeks to completely withdraw from proceedings. Hence on that basis alone, we find that the application is fatal for being predicated on a wrong statutory provision.
13.
Be that as it may, we are of the considered view that the application before this Court is alien in law and it is not properly before us. A party who seeks to withdraw from proceedings is required to file a substantive application seeking to withdraw from the proceedings. One cannot withdraw from proceedings by way of an affidavit. An affidavit is a document that presents evidence on oath and cannot, on its own, be a tool for withdrawal from proceedings. Hence the proper cause of action is for the 2nd Respondent to file a substantive application seeking leave to withdraw from the proceedings and not an application seeking leave to file an affidavit to withdraw from proceedings. Such a relief is not available for granting by way of an affidavit.
14.
The upshot is that we have no hesitation in striking out the application for being fatally defective. Consequently, the Notice of Motion application dated December 17, 2017 is hereby struck out with no orders as to costs.
| Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/77/eng@2019-05-08 |
Application 4 of 2018 | Tullow Oil PLC & 3 others v Permanent Secretary, Min of Energy, Republic of Kenya & 15 others (Application 4 of 2018) [2019] KESC 36 (KLR) (Civ) (8 May 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 8 May 2019 | 2,019 | Nairobi | Civil | Tullow Oil PLC & 3 others v Permanent Secretary, Min of Energy, Republic of Kenya & 15 others | [2019] KESC 36 (KLR) | null | A. Introduction
1
This is an application by way of a Notice of Motion dated 28th February, 2018 brought under Rules 3(1), (2) and (5) and 37 of the Supreme Court Rules. The application seeks the following substantive orders:
1.
The Notice of Appeal dated 8/8/2016 lodged by Edward Kings Onyancha Maina, the 16th Respondent herein be and is hereby deemed as withdrawn;
2.
In the alternative, Notice of Appeal dated 8/8/2016 lodged by Edward Kings Onyancha Maina, the 16th Respondent be and is hereby struck out.
3.
The costs of this application be borne by the 16th Respondent.
2.
The application is based on eight (8) grounds in the body of the application and the supporting affidavit of Martin Ombogo, the Country Manager of Tullow Kenya B.V, a subsidiary of Tullow Oil Plc, sworn on 28th February, 2018.
3.
The 16th Respondent has filed a Notice of Preliminary Objection on Points of Law dated 4th April, 2018.
B. Background
I. Proceedings at the High Court
4
This cause originates from a decision of the High Court sitting at Kitale (Karanja J.R, J) delivered on 5th March, 2013. In that ruling, the Court rejected the Applicants’ applications to dismiss or strike out a judicial review application by the 16th to the 18th Respondents. The main issue for determination on the applications was, whether the subject matter or matters and indeed the issues in the subsequent judicial review application had “previously been dealt with and finalized by the court” in the previous judicial review application. While dismissing the applications dated 20th February, 2012, 18th April, 2012 and the application dated 8th May, 2012 the learned Judge held himself thus:
“
Judicial review proceedings, being sui-generis, do not fall under the Civil Procedure Act and Rules save order 53 of the Civil Procedure Rules. The main ground in the applications to set aside leave is founded on the doctrine of “res-judicata" which is provided for under Section 7 of the Civil Procedure Act in that: -
"No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
The doctrine is based on the maxims that no man should be vexed twice over the same cause, that it is in the interest of the state that there should be an end to litigation and that a judicial decision must be accepted as correct. However, the doctrine is applicable under the Civil Procedure Act which does not apply to judicial review proceedings (see, Republic vs. Judicial Service Commission ex parte Pareno (2004) KLR 203, Republic vs Communication Comm. Of Kenya (2001) 1 EA 1999 and Welamondi vs The Electoral Commission of Kenya (2002) KLR 486).
It may as well follow that “res-judicata" does not apply in judicial review proceedings. Therefore, the application dated 20th February, 2012 and the two applications dated 18th April, 2012 would be devoid of merit in so far as they relate to the setting aside of the leave granted on 30th January, 2012.” [emphasis added]
| D. Analysis
i. The preliminary Objection
15
The core of the preliminary objection is that the application before this Court the supporting affidavit and notice of address of service are defective, frivolous, the applicant’s counsel is conflicted, and that this Court lacks jurisdiction.
16.
This Court has had occasion in the past, to consider the nature of a preliminary objection and endorsed the long-standing jurisprudence set in the Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 (the Mukisa Biscuit Case), on the nature of a preliminary objection. In Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Sup. Ct. Application No. 23 of 2014, the Court cited its earlier decision in the Joho case thus:
[paragraph 51]
“The principles in the Mukisa Biscuit case were restated by this Court in the Joho case [as follows…]
‘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’.”
17
In the case of Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others; SC, Appl No. 50 of 2014 [2015] eKLR, we held as follows:
“
(18)
… a preliminary objection may only be raised on a “pure question of law”. To distinguish such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record...” [ emphasis added]
18.
In the present case, we are not able to discern the point of law that is being raised by the 16th Respondent. It is our considered opinion that the same has not met the threshold set in the Mukisa Biscuit case. Therefore, the preliminary objection fails.
ii. The case for withdrawal or striking out the Notice of Appeal
19.
We now consider the question whether this Court should withdraw or strike out the 16th Respondent’s Notice of Appeal dated 8th August, 2016. It is the Applicants’ submissions that the timelines for filling an appeal either as of right or one involving matters of general public interest has lapsed and that the 16th Respondent’s Notice of Appeal dated 8th August, 2016 should be withdrawn or struck out.
20
Rule 33(1) of the Supreme Court Rules 2012 thus provides as follows:
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a)
a petition of appeal;
b)
a record of appeal; and
c)
the prescribed fee”
21
Rule 33(4) of the Supreme Court Rules thus provides:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order” [emphasis supplied].
22
Further, Rule 33(6) of the Supreme Court Rules, provides as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
29.
In the present application, we note the Notice of Appeal was filed 8th August, 2016 and the time for filing an appeal as of right lapsed on 7th September, 2016. Up to date there is no appeal filed. The time for filling an appeal under Article 163(4)(b) lapses 30 days after the grant of certification. There is nothing on record to confirm that the 16th Respondent sought certification, and if the same was allowed, and when it was allowed. In a nutshell, it is our finding that the 16th Respondent has failed to provide sufficient grounds for his failure to file his appeal within the prescribed time. We are inclined to allow the application with costs to the applicants. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/36/eng@2019-05-08 |
Civil Application 37 of 2018 | African Merchant Assurance Company v Kenya Power & Lighting Company Limited (Civil Application 37 of 2018) [2019] KESC 75 (KLR) (30 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | African Merchant Assurance Company v Kenya Power & Lighting Company Limited | [2019] KESC 75 (KLR) | null | A. Introduction
1.
The Application before this Court is dated 12th December, 2018 and lodged on 21st December, 2018. The applicant seeks to challenge the decision of the Court of Appeal (Visram, Karanja, Koome JJ.A) sitting at Malindi, disallowing its application for certification for leave to appeal to the Supreme Court pursuant to Article 163(4)(b) of the Constitution. The applicant now seeks review of the learned Judges’ Ruling and Orders of 6th December, 2018.
B. Litigation Summary
(i) In the High Court
2.
The genesis of the suit before the trial Court was a fire incident at Kibaoni area in Malindi, where several properties were damaged. The applicant, being the insurer of the burnt properties, conducted investigations to identify the cause of the fire and thus the party responsible for the damage. Its investigations revealed that the fire was caused by a faulty electrical pole and that the respondent, was legally responsible for the fire. Relying on this finding, the applicant settled the eight insured affected parties’ claims amounting to Kshs. 76,708, 415 and the cost of investigators and loss adjusters amounting to Kshs. 5, 544, 799.
3.
Anchoring its case on the doctrine of subrogation, the applicant filed a suit in the High Court Civil Case No. 92 of 2012 seeking Kshs. 82,253,214 in the form of special damages plus interest and costs against the respondent. When the original plaint was filed on 19th July, 2012, the eleven insured were joined as the 2nd to 13th defendants. The plaint was later amended to remove them as parties to the suit.
4.
The respondent opposed the claim disputing the cause of the fire and further maintained, that no negligence on its part, had been proved to the required standard. It also claimed that some of the policies, were not valid and that without written authority from the alleged policy holders to file the suit, the applicant lacked capacity to institute the claim. It also disputed the special damages and claimed that no expert report had been produced in Court. It concluded that the doctrine of subrogation could not be invoked in the circumstances.
5.
The issues before the High Court were: What was the cause of the fire; whether the respondent was negligent; whether the polices were valid; whether the applicant had proved its case on the amount of Kshs. 82, 253,214 being claimed; whether the suit was properly filed under the principle of subrogation; and who would bear the costs.
6.
The High Court (Chitembwe, J.) in its Judgment dated 16th day of March, 2016, found that the fire was indeed caused by the electrical sparks from the electrical pole, that the applicant had proved that the respondent was negligent hence 100% liable. On the issue of special damages, it found that only eight policy documents were produced amounting to Kshs 71,527,412 and Kshs. 5,544,799/= paid to the investigators respectively. The Court entered Judgment for the applicant against the respondent for the sum of Kshs. 71, 527,412/= being the total amount incurred as a result of the fire. The applicant was awarded costs.
7.
As regards the issue of whether the suit was properly filed under the principle of subrogation, the High Court found that the suit was properly instituted. The High Court outlined the principles of subrogation. It stated that under the principle of subrogation, the insurance company that settles the claim is allowed to take up the role of the insured. In this regard, the Court was guided by the decision in Simpson & Company et al v. Thomson Kburrel et al [1877] 3 App Cas, 279 or 38 L.T. Further, the High Court found that, such proceedings had to be instituted in the name of the insured but for the benefit of the insurance company. The trial Judge held that the principle precluding an insurer from directly instituting proceedings against third parties was not only well established, it also allows an insured to assign his right against a third party to the insurer. Where upon assignment, the court found, the insurer takes up the role of the insured and was at liberty to sue the third party in its own name. This, the High Court found, was done through clause 6 of the general conditions of the applicant’s policy agreements entered into by the insured. Clause 6 reads:
“
… every right of the insured accrued or to accrue will by way of subrogation pass to and absolutely vest in the insurer to the extent that the loss or damage insured by this policy may be ultimately made good or diminished thereby.”
(ii) At the Court of Appeal
8.
Aggrieved by the High Court Judgment, the respondent appealed to the Court of Appeal, in Malindi Civil Appeal No 59 of 2017. The respondent challenged the High Court Ruling on the basis that the learned Judge erred by:
a.
finding that the suit was properly before him without considering that the respondent (applicant herein) had no capacity to institute the suit;
b.
misdirecting himself by treating the respondent’s submissions on liability and quantum superficially thus arriving at a wrong conclusion;
c.
awarding the applicant Ksh. 71,527,412 which was not just unproven, but also excessive; and
d.
delving into the litigation arena and considering matters not before him.
9.
The Court of Appeal considered the issue of whether or not the insurer had the requisite standing to bring the suit in light of the principle of subrogation. The Court held that the general rule is that an insurer that has subrogated the rights of the insured, may only pursue those rights in the name of the insured. The Court was guided by the decisions in Esso Petroleum Co. Ltd. v. Hall Russel & Co. Ltd. [1989] AC 643, [1989] 1 All ER 37 and Michael Hubert Kloss & Another v. David Seroney & 5 Others [2009] eKLR.
10.
[10] The Appellate Court also held that the only exception to this general rule is where an insured formally assigns his/her rights of action to the insurer. The Court also held that ‘clause 6’, upon which the High Court had relied, merely set out the rights of the insurer under the doctrine of subrogation, but did not have the effect of assigning the right to institute suit as argued by the insurer. On this grounding, the Court of Appeal held that the insurer lacked the requisite standing to bring the suit before the trial Court. It further held that the fact that the insured were initially parties to the suit, did not remedy the lack of standing as the insured ceased to be parties to the suit subsequent to the amendment brought by the insurer.
11.
Consequently, the Court of Appeal found in favour of the respondent herein, set aside the High Court Judgment, the effect of which, it struck out the suit with costs. | C. Issues For Determination
28.
The issue for determination by this Court is whether the matter in respect of which certification is sought is one of general public importance.
D. Analysis
(i) On Jurisdiction
29.
Having been aggrieved by the Judgment of the Court of Appeal, the applicant herein, sought certification to appeal to the Supreme Court under Article 163 (4) (b) of the Constitution. The application for certification was dismissed by the Appellate Court, thus prompting these proceedings. Thus the applicant has invoked, and rightly so, the provisions of Article 163 (4) (5) of the Constitution. What the applicant seeks is a review of the Court of Appeal’s denial to certify the matter for appeal to this Court. There is no doubt therefore, that the application for review is rightly before us. This then paves the way for the Court to consider the merits of the application.
(ii) Whether the Intended Appeal involves a Matter of General Public Importance
30.
The main question before us is: whether an insurer having indemnified the insured, can sue a third party in its own (the insurer’s) name under the doctrine of subrogation.
31.
Is this a question, the determination of which, transcends the circumstances of the case at hand? And would such determination, have a significant bearing on the public interest? Does the intended appeal raise a substantial question of law, the determination of which shall have a significant bearing on the public interest?
32.
We note that in declining to certify the appeal as one involving a matter of general public importance, the Court of Appeal held that the question before it had long been settled in past decisions of the Court. The Appellate Court observed that the High Court, notwithstanding the well settled principle of law, nonetheless invoked the provisions of Article 159 (2) (d) of the Constitution in an attempt to cure, not a procedural technicality, but a substantive requisite of locus standi. The Court also acknowledged the fact that its decision transcended the circumstances of the case at hand in that it concerned a significant community in the insurance sector.
33.
The applicant is not challenging the well settled principle, to the effect that an insurer, has no locus standi to initiate suit against a third party, under the doctrine of subrogation. Nor has the applicant demonstrated that the law on this question is in such state of flax that this Court must intervene. Apart from making reference to the International Bar Association Report, the applicant has not placed before this Court any inconsistent precedents emanating from the Court of Appeal regarding this issue. All the applicant is urging, is that this Court should pronounce itself on a question that has already been settled by other superior courts. Such an enterprise in our view, does not fall within the ambit of Article 163 (4) (b) and (5) of the Constitution. The Court of Appeal was not establishing a new principle in Insurance Law and Practice. It was simply affirming or restating a well-established legal principle. The decision of the Appellate Court transcended the circumstances of the case at hand, only because, it was a Judgment in rem, but not because, it was going to affect the already established legal relations between different actors in the insurance industry. Regarding the applicability of Article 159 (2) (d) of the Constitution to the case, all we can say, is that this Court, has already authoritatively pronounced itself, in a number of cases, as to the meaning and scope of the said Article.
34.
The foregoing analysis inevitably leads us to make the following Orders.
E. Orders
i.
The applicant’s Notice of Motion dated 12th December 2018, is hereby disallowed.
ii.
The applicant shall bear the costs of the application.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/75/eng@2019-04-30 |
Civil Application 11 of 2018 | Ali & another v Mwamutsi (As Administrator of the Estate of David Mwamutsi Muria) (Civil Application 11 of 2018) [2019] KESC 43 (KLR) (30 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | Ali & another v Mwamutsi (As Administrator of the Estate of David Mwamutsi Muria) ( | [2019] KESC 43 (KLR) | null | We have before us an Application for certification under Article 163(4)(b) of the Constitution that the applicant’s intended appeal against the judgement of the Court of Appeal involves a matter or matters of general public importance warranting a further appeal to this Court and a temporary order of stay of execution of the judgement and/or decree of the Court of Appeal made on 10th May, 2018 in Civil Appeal No. 61 of 2017.
2.
The subject matter of the intended appeal is a land dispute over Title Number Mbwaka/Maereni/311 (the suit land) allegedly dating back to 1975 pitying the applicant’s family against that of the respondent. Both Juma Ali Birwa (deceased) the father of Salim Juma Ali and Rashid Ali (the Applicants) and Mwamutsi Murira (deceased) the father Joyce Ningala Mwamutsi (the Respondent) claim to have separately bought the suit land from the original owner one Katana Chiringa. During the adjudication process in the area, the respondent’s father, who claims to have been the first purchaser of the suit land, lodged his claim and was registered as the proprietor thereof on 13th April 1987. The applicant’s father was, however, in possession of the land and his family has to date been in possession.
3.
In 1996, the respondent’s late father filed Mombasa CMCC No. 3153 of 1996 and sought the eviction of the applicants’ father. That suit was never determined. In 2016, the respondent filed another suit, Mombasa ELC No. 182 of 2016. Contemporaneous with the filing of that suit, the respondent also filed a Notice of Motion in which he sought the eviction of the applicants from and vacant possession of the suit land.
4.
In their grounds of opposition to that application, the applicants averred that the entire suit was an abuse of the court process as the matter was sub-judice Mombasa HCCC No. 44 of 2012 (OS) and that having exclusively and openly occupied the suit land since 1975, the applicants’ family had acquired title to it by adverse possession.
5.
In its ruling dated 27th July 2017, the Malindi ELC Judge, Olola, J. granted the application and compelled the applicants to immediately hand over the suit land and in default be evicted therefrom after 45 days. The learned Judge also ordered the OCS Kisurini Police Station to supervise the execution of that eviction order.
6.
Aggrieved by that ruling, the Applicants appealed to the Court of Appeal contending in 11 grounds of appeal in a nutshell that the learned judge of the Environment and Land Court erred in issuing final eviction orders in an interlocutory mandatory injunction thereby finally determining both Mombasa HCCC No. 44 of 2012 and Malindi 182/2017 even before they were formally consolidated. In its said judgment dated 10th May 2018, the Court of Appeal, declining to disturb the learned ELC Judge’s discretion, which it held was properly exercised, dismissed the Applicant’s Appeal with costs. That is the decision which is the basis of the application before this Court.
7.
From their counsel’s written submissions and the 1st applicant’s affidavit in support of the application, the applicants’ case is that the grant of final orders which determined the suit at an interlocutory stage without a hearing and directed their eviction from and demolition of their permanent buildings on the suit land they have occupied for over 20 years is a matter of general importance warranting a further appeal to this Court. | The question as to when this Court can assume jurisdiction under Article 163 (4) of the Constitution has been addressed in a number of cases. The criteria regarding the invocation of this Court’s jurisdiction as of right under Article 163(4)(a) has been stated in a number of cases including: Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another S.C Petition No. 3 of 2012; (2012) eKLR; Erad Suppliers & General Contractors Ltd. vs. National Cereals & Produce Board, Petition No. 5 of 2012 [2012] eKLR; and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No. 10 of 2013 [2014] eKLR. The ratio emanating from all these cases and others is as was stated in the Lawrence Nduttu Case: to warrant the invocation of this Court’s jurisdiction under Article 163(4)(a) of the Constitution, “an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter….”
11.
In this case, the applicants wish to invoke this Court’s jurisdiction under Article 163(4)(b). As stated in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup. Ct. Appl. No. 4 of 2012 [2013] eKLR, a decision it had also made in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo & 5 Others [2012] eKLR (Supreme Court Petition No. 2 of 2012) and reiterated in many other subsequent decisions, an applicant seeking certification under Article 163(4)(b) “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….” If it is a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”
12.
With regard to the invocation of this Court’s jurisdiction as of right under Article 163(4)(a), it was stated in Peter Ngoge (supra) and Michael Mungai v. Housing Finance Co. (K) Ltd & 5 Others SC Application No. 9 of 2015; (2017) eKLR that the matter should have progressed….. This implies that the matter must been substantially heard and the issue of constitutional interpretation and/or application determined with finality by the Superior Courts before finding its way to this Court.
13.
The same analogy must apply to matters of general public importance under Article 163(4)(b). Besides other considerations such as whether the matter in question is one, “the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest”, it must have been finally determined. In our recent decision in the case of Bia Tosha Distributors Ltd v. Kenya Breweries Ltd & Others, Civil Application No. 10 of 2017, relying on Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No. 10 of 2013 [2014] eKLR, we stated that although interlocutory orders can be the basis of appeals to this Court, there must be a definite determination or judgment on the issue.
14.
It is important to recall that the dispute between the parties was first filed before the Subordinate Court in 1996 in Mombasa CMCC No. 3153 of 1996. In 2012, another suit—Mombasa HCCC No. 44 of 2012 (OS)— was also filed. In 2016, a third suit—Malindi ELC No. 182 of 2016—was also filed. None of those cases has been heard. As stated above what was heard is an application in Malindi ELC No. 182 of 2016 pursuant to which an interlocutory mandatory injunction was granted. The main suit is still pending before the Environment and Land Court at Malindi.
15.
So the intended appeal which the applicants wish to proffer to this Court arises out of that interlocutory mandatory injunction issued by the High Court against which the applicants unsuccessfully appealed to the Court of Appeal. The mandatory injunction is itself interlocutory. It could be set aside when the main suit is ultimately heard and determined.
16.
The question we ask ourselves is: can an inchoate determination be a matter of general public importance? We think not. Allowing an appeal from an interlocutory order of the Court of Appeal without definite determination or judgment on the issue, as we recently stated in the Bia Tosha Case, this Court risks making “premature comments on the merits of issues yet to be adjudged … [in the courts below and] … expose one of the parties to prejudice, with the danger of leading to an unjust outcome.”
17.
For these reasons, we find that the application before us has not met the threshold for certification that the applicants’ intended appeal involves a matter of general public importance. Being of that view, the applicants’ additional prayer for a temporary order of stay of execution of the judgement and/or decree of the Court of Appeal made on 10th May, 2018 in Civil Appeal No. 61 of 2017 must also fail.
Justice Wanjala’s Dissenting Opinion
18.
The applicant has approached this Court seeking certification of his intended appeal, as one involving a matter of general public importance, under Article 163 (4) (b) of the Constitution. Crucially, he at the same time, seeks a temporary order of stay, of the Court of Appeal’s decision, against which he intends to appeal. The facts are as outlined in the Ruling by the Majority. At issue is an unresolved land dispute dating as far back as 1975, in which the protagonists are claiming ownership of Title Number Mbwaka/Marereni/311 in Kilifi County.
19.
The suit land has been and remains, the subject of multiple suits at the Chief Magistrate’s Court, the High Court, the Environment and Land Court, the Court of Appeal, and now the Supreme Court. At the Chief Magistrate’s Court, in CMCC No. 3153 of 1996, the respondent’s late father sought the eviction of the applicant’s father from the land, claiming that he, the plaintiff, was the legal owner thereof. This suit, was never determined. There are no discernible reasons on the record before us, as to why this case was never disposed of, one way or the other. At the High Court, the applicants filed an Originating Summons in HCCC No. 44 of 2012, seeking a declaration that he was the legal owner of the suit land on grounds of Adverse Possession. Again, the Originating Summons was never disposed of. In 2016, it was now the turn for the respondent to file suit at the Environment and Land Court in ELC No. 182 of 2016 claiming the eviction of the Applicants.
20.
In a Ruling dated 27th July 2017, the Environment and Land Court, sitting at Malindi, (Olola, J.) granted the application, and issued Orders requiring the applicants to vacate the suit land or be evicted therefrom. Aggrieved by the Court’s Orders, the applicants filed an appeal before the Court of Appeal. The crux of the appeal was to the effect that by granting a Mandatory Injunction at an interlocutory stage, evicting the applicants from the suit land, the learned Judge, had effectively and with finality disposed of the dispute, without hearing the parties on the merits. Another ground by the applicants was that the learned Judge had granted the impugned Orders, in total disregard of the fact that, the dispute was Sub-Judice, in view of HCCC. No 44 of 2012. The Court of Appeal dismissed the application for stay, on grounds that to do so would be interfering with the Superior Court’s exercise of discretion. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/43/eng@2019-04-30 |
Petition (Application) 4 of 2017 | Coast Professional Freighters Limited v Oganda & 2 others (Petition (Application) 4 of 2017) [2019] KESC 40 (KLR) (30 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | Coast Professional Freighters Limited v Oganda & 2 others | [2019] KESC 40 (KLR) | null |
1.
Upon perusing the Notice of Motion in the application by the Applicant dated and filed on 2nd June, 2017 brought under Sections 8, 17 and 20 of the Supreme Court Act 2011 and Rule 26 of the Supreme Court 2012, seeking that this application be certified urgent and that the Court does allow the Applicant to file additional grounds of appeal herein as well as a Supplementary record of appeal; and
2.
Upon reading the Applicant’s grounds in support of the application and the Supporting affidavit sworn on 1st February, 2019 which state that “the crux of the appeal and all the grounds serialized by the former applicant’s Advocates crystallize into the grounds proposed to be added” which addition is principal to understanding the dispute and the substance of which, in sum, is that the High Court erred by ignoring the pleadings filed by the Applicant and proceeded to grant remedies to the 1st Respondent (which were not sought against the Applicant) and the order returning the property in dispute to the 1st Respondent amounts to unjustified enrichment since the Applicant has since made significant improvements to the property and no compensation was awarded to the Applicant in respect of this; and without a corresponding order for recovery of the improvements amounts to an arbitrary deprivation of property of any description or of any interest in or right, over, any property of any description as provided in the Constitution; and
3.
Upon considering the Applicant’s written submissions dated 19th February, 2019 and filed on 20th February, 2019 wherein the Applicant submits that the additional grounds of appeal it now seeks to add allow it to approach this Court as of right in terms of article 163(4)(a) as the appeal concerns the application and interpretation of the property clause in article 40(1)(2) and (3) as well as the section 99 of the Land Act; and
4.
Upon reading the 1st Respondent’s grounds of opposition dated 5th February, 2018 and filed on 8th February, 2018 stating that the application is incompetent since this Court has no jurisdiction to entertain the appeal within which the application has been filed; adding that the application is baseless, bad in law and vexatious as well as an abuse of this Court’s processes; lastly, stating that the orders sought would serve no useful purpose as the additional grounds are already covered by the grounds in the appeal filed; and
5.
Upon considering the 1st Respondent’s written submissions dated and filed 7th June, 2019 in which it has submitted that because this Court lacks jurisdiction to entertain the substantive appeal then so too does it lack jurisdiction to deal with the application quoting Owners of the Motor Vessel “Lilian S” v Caltex Oil Ltd [1989] eKLR where it was said that “jurisdiction is everything. Without it, a court has no power to make one more step…”; | We find as follows;
a)
Although the 1st Respondent correctly quotes the dictum on jurisdiction, the conclusion that this Court lacks jurisdiction is premature since the jurisdiction in question is that in respect of the Courts’ power to determine this application and not the substantive appeal.
b)
Granting the orders sought by the Applicants would be prejudicial to the Respondents as it brings before this Court issues not taken on appeal in the Court of Appeal. The additional grounds of appeal are new grounds which neither formed part of the appeal in the Court of Appeal nor were the Respondents able to respond to such substantive grounds of appeal.
7.
Having therefore considered the application and affidavit in support thereto and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders;
Orders
a)
The application dated 2 June, 2017 is hereby dismissed;
b)
The Applicant shall bear the costs of this application.
8.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/40/eng@2019-04-30 |
Application 12 of 2018 | Director of Public Prosecutions v Kamau & 4 others (Application 12 of 2018) [2019] KESC 41 (KLR) (30 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | Director of Public Prosecutions v Kamau & 4 others | [2019] KESC 41 (KLR) | null | Upon perusing the Notice of Motion application dated 31st May, 2018 and filed on 6th June, 2018 for extension of time to file an appeal out of time and for stay of execution against the Judgment and Orders of the Court of Appeal delivered on 14th July, 2017 in Civil Appeal No. 102 of 2016 and brought under the Provisions of Article 163(4) of the Constitution, Section 21(2), 24(1) of the Supreme Court Act, Rules 23, 26 and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the applicant’s supporting affidavit and further affidavit sworn by Emily Kamau on 31st May, 2018 and 20th June, 2018 respectively; and
3.
Upon considering the written submissions filed by the applicant on 21st June, 2018 wherein it is contended that the delay in filing the appeal was occasioned by the Court of Appeal’s failure to provide certified copies of typed proceedings, despite having applied for the same as far back as 14th July, 2017; and
4.
Upon further considering the written submissions by the applicant and 2nd, 3rd, 4th and 5th respondents in support of the application, wherein it is contended that:
1.
The intended appeal concerns a substantial outlay of public resources amounting to approximately Kshs 17 billion.
2.
Unless the Orders for extension of time and stay of execution are granted, there is real danger that over 127 pending cases of corruption, bribery and economic crime will be prematurely terminated at this stage, thus severely dealing a blow to the administration of justice and the public interest; and | Upon reading the 1st respondent’s replying affidavit sworn on 16th July, 2018 and written submissions dated 26th July, 2018 and filed on 16th July, 2018 and 27th July, 2018 respectively, wherein he contends that:
1.
The applicant’s decision to charge him afresh before the Magistrates’ Court has rendered the intended appeal spent;
2.
the applicant has not moved the Court with clean hands, as the Application is founded on an unconstitutionality;
3.
The applicant has not demonstrated to this Court what efforts it undertook to obtain the said certified copies of typed proceedings;
6.
We Have Considered the question at the core of the application viz: whether on the basis of the rival affidavits and written submissions of the parties, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought. By a unanimous decision of this Bench, pursuant to the provisions of Sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012; we make the following Orders:
Orders
Reasons
1.
The Application dated 31st May, 2018 is hereby allowed.
The application satisfies the principles set out in the cases of Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 others Application No. 16 of 2014 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; on extension of time by this Court
¾And¾
The principles in Board of Govenors, Moi High School, Kabarak & Another v. Malcom Bell SC petition No 6 & 7 of 2013 as affirmed in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others Application No. 5 of 2014 and Wycliffe Oparanya Ambetsa v. the Director of Public Prosecutions SC Petition No 14 of 2016.
2.
The Applicant shall file its appeal within 14 days from the date hereof.
3.
Costs shall be in the cause.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/41/eng@2019-04-30 |
Application 6 of 2019 | Nyamboki v Gathuru (Application 6 of 2019) [2019] KESC 44 (KLR) (30 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | Nyamboki v Gathuru | [2019] KESC 44 (KLR) | null | Upon perusing the Notice of Motion Application by the applicant dated 20th February 2019, brought under Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31, 33 and 53 of the Supreme Court Rules 2012, seeking an extension of time to file an appeal out of time against the Judgment and Orders of 27th May, 2016 the Court of Appeal in Civil Appeal No. 184 of 2004; and
2.
Upon reading the Applicant’s grounds in support of the application and the supporting affidavit sworn on 20th February, 2019; and
3.
Upon considering the applicant’s written submissions dated 20th February, 2019 and filed on 22nd February, 2019 wherein the applicant submits that the delay in filing the Notice of appeal was occasioned by the mistaken knowledge and belief that his former advocates Messers Oraro and Company Advocates, had filed the Notice of Appeal in the Court of Appeal, and that he should not be punished for counsel’s error; that the Applicant only became aware of the advocates’ failure to file the Notice in December 2018; that further, the Applicant was advised by its advocates on record, that his case required certification before admission to the Supreme Court as was the principle set in Re The Matter of the Interim Independent Electoral Commission, Appeal No. 2 of 2011; that the decision of this Court in Geoffrey Asanyo & 3 Others v. the Attorney General Petition No. 21 of 2015 has established an exemption to the principles in the Re Interim Case allowing the Supreme Court to exercise its inherent jurisdiction to right jurisdictional wrongs committed by the superior Courts, in instances where the issues of appeal have not arisen through the judicial hierarchy; and, that the said decision has therefore presented the Applicant with a new shot at justice; and
4.
Upon reading the respondent’s replying affidavit sworn on 13th March 2019 and filed on 15th March 2019 in which he opposed the Application, on the basis that the same had been filed out of time, with no credible explanation for the inordinate delay; and that since the Applicant’s applications for certification under Article 163(4)(b) and under Article 163 (5) of the Constitution had been dismissed by the Court of Appeal and this Court respectively, the present Application is an afterthought, replete with falsehoods and deliberate distortion of facts, in an attempt to mislead the Court; and | Upon considering the respondent’s written submissions dated 13th March 2019 and filed on 15th March, 2019 in which, the respondent argues that this court has no jurisdiction to hear and determine this application, having heard and dismissed the application for certification under Article 163 (5) of the Constitution; that the delay is inordinate, inexcusable and/or unreasonable; that he has suffered great prejudice since 1983 and will continue to suffer should the application be allowed; and, that the Application is an afterthought and an abuse of Court process;
6.
We find as follows;
a.
The jurisprudence of this Court on the considerations for grant or denial of an application for extension of time was well expressed in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; and
b.
In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible; whether there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.
c.
In the present case, the four year (4) and two month (2) has neither been adequately explained, nor is the justification offered by the applicant credible. The delay is both untenable and unreasonable.
7.
Having considered the Application and the Affidavit in support filed in support thereto, the Replying Affidavit in opposition thereof, and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2) (b) of the Supreme Court Act 2011, and Rules 21 and 23 of the Supreme Court Rules, 2012; | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/44/eng@2019-04-30 |
Application 9 of 2017 | Siboe v Kenya Railways Corporation & another (Application 9 of 2017) [2019] KESC 39 (KLR) (30 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | Siboe v Kenya Railways Corporation & another | [2019] KESC 39 (KLR) | null | Upon perusing the Notice of Motion Application dated 15th May, 2017 and filed on 19th May, 2017 for stay of execution against the Judgment and Orders of the Court of Appeal of 24th March, 2017 in Civil Appeal No. 157 of 2014 and predicated on the provisions of Articles 159(2)(a), (d) & (e), 163(4) and 259(1) of the Constitution, 2010; and
2.
Upon reading the undated supporting affidavit of the applicant and a further supplementary affidavit sworn on 15th March, 2018 and filed on 16th March, 2018; and
3.
Upon considering the written submissions by the applicant dated 29th May, 2017 wherein it is urged that:
(i)
This Court is vested with jurisdiction to grant the interlocutory Orders sought under Sections 21 and 24(1) & (4) of the Supreme Court Act, 2011;
(ii)
that the intended appeal involves a matter of general public importance; and
(iii)
The application for stay satisfies the conditions set out by this Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others; Application No. 5 of 2014.
4.
Upon reading the 1st respondent’s replying affidavit sworn on 23rd February, 2018 and filed on 8th March, 2018 and considering the written submissions of even date, wherein it is contended that:
(i)
The application is fatally defective since the applicant has not sought certification to appeal from the Court of Appeal or this Court;
(ii)
The orders sought cannot be granted in a vacuum since there is no pending appeal the substratum of which is sought to be preserved; and
(iii)
The application is merely intended to prolong the applicant’s stay on the premises, there being no arguable appeal | We have considered the application and response thereto and by unanimous decision of this Bench, pursuant to the provisions of Section 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules 2012; we make the following Orders:
Orders
Reasons
1.
The Application dated 15th May, 2017 is hereby disallowed.
(i)This Court lacks jurisdiction to entertain the Application herein, there being no appeal on the basis of which a stay can be granted.
(ii) Although the application is predicated upon the provisions of Article 163(4)(b), no certification to appeal has been sought and granted either by the Court of Appeal or the Supreme Court. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/39/eng@2019-04-30 |
Petition 37 of 2014 | Town Council of Awendo v Onyango & 13 others; Mohamed & 178 others (Interested Parties) (Petition 37 of 2014) [2019] KESC 38 (KLR) (Civ) (30 April 2019) (Judgment) | Judgement | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 30 April 2019 | 2,019 | Nairobi | Civil | Town Council of Awendo v Onyango & 13 others; Mohamed & 178 others | [2019] KESC 38 (KLR) | null | A. Introduction
1.
This is a Petition of Appeal dated December 10, 2014 and filed on December 23, 2015 pursuant to its admittance by this court as one involving a matter of general public importance under articles 163(4)(b) and 163(5) of the Constitution. The appellant is challenging the entire Judgment and Orders of the Court of Appeal (Onyango Otieno, Azangalala & Kantai JJ.A) at Kisumu in Civil Appeal No 161 of 2010 delivered on the 18th day of October 2013. In certifying the Appeal as one involving a matter of general public importance, in Miscellaneous Application No 49 of 2014; (Mutunga CJ &P, Tunoi, Ibrahim, Ojwang, Njoki, SCJJ); this court stated:
“
……The issues of the intended appeal cut across the former and the current Constitutions and law regimes. It is important to reconcile these two regimes, and the instant case provides the occasion. The question whether the respondents in this case are entitled to the revisionary interest in unutilized portions of land, invokes critical sub-themes of jurisprudential significance and which, in every respect touch on matters of public interest.” [Emphasis added]
B. Background
2.
Sometime in 1976, in exercise of its powers of Eminent Domain, the Government of Kenya issued two Gazette Notices informing the public of its intention to acquire privately owned parcels of land in the then South Nyanza District. In doing so, the Government was acting pursuant to the provisions of section 75 of the retired Constitution and section 6(2) of the Land Acquisition Act of 1968 (Now repealed). The first was Gazette Notice No 2996 of 1968 (Legal Notice No 47 of 1968) dated 8th October, 1976 (herein Gazette Notice 2996); which in its preamble read as follows:
“
The Land Acquisition Act 1968 (No 47 of 1968)Notice of Intetion to Acquire Land in Pursuance of section 6(2) of the Land Acquisition Act 1968, I hereby give notice that the Government intends to acquire the following land for the South Nyanza Sugar Scheme in South Nyanza” [emphasis added].
3.
The second was Gazette Notice No 3737 (Legal Notice No 47 of 1968) dated 24th December, 1976, (herein after Gazette Notice 3737); which in its preamble read as follows:
“
The Land Acquisition Act 1968 (No 47 of 1968)Notice of Intention to Acquire Land in Pursuance of Section 6(2) of the Land Acquisition Act 1968. I hereby give Notice that the Government intends to acquire the following land for the South Nyanza Sugar Scheme (Awendo Township Expansion) in South Nyanza District”. [Emphasis added]
4.
The Government then proceeded to compulsorily acquire, various privately owned parcels of land. Some of the acquired parcels had been owned by the 1st to 13th respondents in this Appeal. Thus far, there was no legal dispute, until the year 2005, when the respondents herein filed suit in the High Court at Kisumu, in Civil Case No 133 of 2005; challenging the process of compulsory acquisition of the suit land and the allocation of unutilized portions to third parties by the Appellant.
| C. Analysis
(i) Issue for Determination
27.
Having carefully considered the grounds of appeal, the submissions of the parties, the authorities cited in support thereof, and the pronouncement of this court, admitting this appeal as one involving a matter of general public importance, it is clear to us that only one issue falls for determination. We hereby restate this single issue as being:
Whether a proprietor, whose land has been compulsorily acquired by the state, for a public purpose, in accordance with the Constitution and the Law, retains a reversionary interest in, or a pre-emptive right over any un-utilized portion of such land, should the public purpose for which it was acquired become spent?
(ii) What was the purpose for which the Suit Land was acquired?
28.
From the Record of Appeal, it is not in doubt that the suit land, was compulsorily acquired by the Government of Kenya, pursuant to the provisions of section 75 of the retired Constitution, and section 6(2) of the Land Acquisition Act 1968, (now repealed). It is also not in doubt that the proprietors of the land, including the 1st to the 13th respondents herein, were fully compensated in accordance with the applicable law. The compulsory acquisition was actualized vide the two Gazette Notices No. 2996 of October 8, 1976 and No 3737 of December 24, 1976. However, while it is clear that the parcels of land were acquired for a public purpose, what remains in contention is the specific nature of the purpose for which some of the parcels were acquired. [Emphasis Added].
29.
On the one hand, it is contended that the suit land was acquired for the sole purpose of establishing the South Nyanza Sugar Scheme In South Nyanza District. The proponents of this contention are the 1st to 13th respondents. They base their argument on the opinion of the then State Counsel, Mr Maroro, who on behalf of the Attorney General had submitted at the Court of Appeal (see Vol A Page 306, Para: 2), that the purpose of the acquisition was solely, for the establishment of the South Nyanza Sugar Scheme, and no other. This Opinion had also been expressed by the then Town Clerk of Awendo Town Council, Mr Barnaba Kosgei, in his replying Affidavit to the Originating Summons in the High Court.
30.
On the other hand, the appellant, the Interested Parties, and the Attorney General (in a departure from his earlier position at the Court of Appeal) contend that the acquisition of the suit land was for the twin purposes of establishing the South Nyanza Sugar Scheme and the Awendo Township Expansion. They submit that Gazette Notice No 2996 was issued to effect the establishment of the Scheme while Gazette Notice No 3737 was for the Township Expansion.
31.
Be that as it may, both purposes for which the various land parcels were acquired fall within the rubric of “public purpose”, within the meaning of section 75(1) of the retired Constitution of which the relevant provisions read as follows:
“
No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied:
(a)
the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and county planning or the development or utilization of property so as to promote the public benefits; and
(b)
the necessity thereof is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest or right over the property; and
(c)
provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation…”
32.
Section 6 of the Land Acquisition Act (now repealed) replicates the above provisions of the retired Constitution. On the face of the two Gazette Notices therefore, we find little difficulty in concluding that the Suit lands in question were acquired, on the one hand for town and county planning and on the other hand, for the development of, or utilization of the said lands so as to promote the public benefit. This then immediately leads us to determine the lingering controversy, as to whether the parcels of land in question were acquired solely for the establishment of the South Nyanza Sugar Scheme, or in addition thereto, for the expansion of the Awendo Township.
33.
Having taken note of the divergent opinions advanced by the parties regarding this issue, we hold that the proper basis for determining the specific nature of the purpose for which the suit lands were acquired, is the language used in the two Gazette Notices. Towards this end, Gazette Notice No 2996 states that the specified parcels of land are to be acquired for “ the South Nyanza Sugar Scheme” while Gazette Notice No 3737 states that the specified parcels are to be acquired for the South Nyanza Sugar Scheme (Awendo Township Expansion) in South Nyanza District.
34.
We also note from the Record, that the two Gazette Notices do not refer to the same parcels of land. On the contrary, the Notices are distinct and refer to different parcels of land. Thus Gazette Notice No 3737 refers to land title nos. North Sakwa/Kamasonga/204 (plot no. 204), North Sakwa/Kamasonga/34 (plot No 34), North Sakwa/Kamasonga/1081 (plot No 1081), North Sakwa/Kamasonga/1093 (plot No 1093), North Sakwa/Kamasonga/1111 (plot No 1111), North Sakwa/Kamasonga/1067 (plot No 1067), North Sakwa/Kamasonga/207 (plot No 207), North Sakwa/Kamasonga/45 (plot No 45), North Sakwa/Kamasonga/111 (plot No 111), and North Sakwa/Kamasonga/202 (plot No 202) in respect of the 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th respondents respectively (hereinafter the Suit Land).
35.
It is also noted from the Record (VolA pages 137 and 158) that land title No North Sakwa/Kamasonga/1193 (Plot No 1193) in respect of the 7th Respondent was not on the list of parcels of land acquired by the two Gazette Notices. The tentative conclusion regarding the said title therefore, is that it was never compulsorily acquired. Besides, it is noted from the Record that land title No. North Sakwa/ Kamasonga/ 46 (Plot No 46 ) in respect of the 1st respondent and Land Title No North Sakwa/ Kamasonga /168 (Plot No 168) in respect of the 13th respondent were acquired vide Gazette Notice No 2996.
36.
Finally, a perusal of the Record reveals the fact that some of the respondents herein, to wit, the 3rd, 9th, 10th, 11th and 12th were not the original proprietors of the parcels in question. However, they refer to themselves in their supporting affidavits as beneficial owners.
37.
Against this background, what meaning as to purpose ought to be attributed to the language in the two Gazette Notices? A plain reading of Gazette Notice No 2996 clearly indicates that the intention of acquiring the land parcels listed therein was for establishing the South Nyanza Sugar Scheme. This must be taken to refer to all that it entails to establish such a scheme, including the factory, sugar plantations, offices, plant and machinery and all necessary infrastructure. Towards this end, there is no dispute regarding the establishment of South Nyanza Sugar Scheme.
38.
As for Gazette Notice No 3737, it is stated that the listed parcels therein are to be acquired for the South Nyanza Sugar Scheme (Awendo township Expansion) in South Nyanza District. The operative words are the bracketed ones ie, “Awendo Township Expansion”. It was the Attorney General’s argument that the two Gazette Notices referred to one and the same purpose; the establishment of the South Nyanza Sugar Scheme. This was the same argument advanced by the 1st to 13th respondents. Much later in the appeal before the Supreme Court, the Attorney General would abandon this argument. It was now his submission that a plain reading of the two Gazette Notices reveals that under Gazette Notice No 2996 the parcels listed therein were acquired for the South Nyanza Sugar Company while Gazette Notice No 3737 was for Awendo Township Expansion. He faulted the Court of Appeal for treating the two acquisitions as if they were one and the same, when they were in fact, different. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/38/eng@2019-04-30 |
Application 21 of 2016 | Golden Lime International Limited v Blue Sea Shopping Mall Limited & 3 others; National Land Comission (Interested Party) (Application 21 of 2016) [2019] KESC 32 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Golden Lime International Limited v Blue Sea Shopping Mall Limited & 3 others; National Land Comission | [2019] KESC 32 (KLR) | null | Sometimes in 2008, the City Council of Nairobi, by an advertisement in a local daily, invited the private sector to partner with it in the development of markets at various locations in the City. Although Eastleigh Plot L.R No. 36/VII/1037 (the suit property) was not one of the plots earmarked for development of a market, its proprietor, the 1st respondent, prepared a detailed proposal and submitted it to the City Council. Subsequently, the City Council awarded a tender to the applicant to develop a market on that plot. Upon learning of the tender and contract, the 1st respondent filed a judicial review application and sought orders of certiorari to quash the tender and mandamus to compel the City Council to comply with the Public Procurement and Disposals Act.
(2)
Although the High Court found that the award of tender had flouted the Public Procurement and Disposals Act, it nonetheless declined to grant the reliefs sought on the ground that given other considerations including a dispute on the ownership of that plot pending before the Environment and Land Court, the reliefs sought were not efficacious. On appeal, the Court of Appeal set aside that decision and granted the 1st respondent the orders it had sought of certiorari and quashed the award tender. It also granted an order of mandamus compelling the City Council to comply with the Public Procurement and Disposals Act.
(3)
Aggrieved by that decision, the applicant sought the Court of Appeal’s certification under Article 163(4)(b) of the Constitution that its intended appeal to this Court involves matters of general public importance. The Court of Appeal found no merit in that application and accordingly dismissed it. The applicant has, vide its application dated 5th October 2016 brought under Article 163(5) of the Constitution, sought this Court’s review of the said decision of the Court of Appeal and an order granting it certification to appeal to this Court. That Application is pending before this Court.
(4)
In the meantime, the National Land Commission (the NLC) has applied to be enjoined as an interested party in the said application to clarify the status of the suit land as public property that was unlawfully alienated to the 1st respondent and that no structure should be erected thereon. Relying on the cases of Francis Muruatetu & Another Vs Republic & 5 Others, [2016] eKLR, Meme Vs Republic, [2004]1 EA, and Trusted society of Human Rights Alliance Vs Mumo Matemu & 5 Others, SC Petition No. 12 of 2013, the NLC argues that if it is not enjoined, the suit property may be illegally developed to the detriment of the Kenyan public. | (5)
The respondents find no merit in NLC’s application. They argue that this Court, having not granted the applicant certification to appeal, the said application is premature and bad in law. Moreover, the respondents further argue, the issue before court in this application is compliance with the public procurement law. The NLC, which has yet to proof that the suit land is public property, wishes to come on board and turn this application into an ownership dispute over the suit property. Citing several authorities, the respondents concluded that such an application is not legally tenable.
(6)
Having considered the matter, we agree with the respondents that the NLC’s application to be enjoined in this matter is for dismissing. In the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR, Petition No. 12 of 2013, this court defined an interested party as;
“
(18)
… one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.”
(7)
Although the suit land may very well be public property and that the public may suffer prejudice if construction on it is allowed, on the authority of Attorney General v Kenya Bureau of Standards & Another [2018] eKLR, Court of Appeal Civil Application No. 132 of 2017; Kensalt Limited v. Water Resources Management Authority [2018] eKLR, Petition (Application) No. 8 of 2016; Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commisson & 3 Others [2017] eKLR, Petition No. 1 of 2017, and many others, it is trite that an interested party cannot be enjoined in a matter to obfuscate issues by raising a new cause of action.
(8)
It is clear from the material placed before us that the NLC wishes to be enjoined in this matter to urge the public’s alleged ownership of the suit property and stop construction on it. That material will completely alter the character of the issues before us in this application. On its own admission, the NLC knows of ownership disputes over the suit land pending before the Environment and Land Court and other courts. It should seek to be enjoined in those suits and therein seek a resolution of the ownership dispute and not by this application.
(9)
For these reasons, we find no merit in this application and we accordingly dismiss it. As to costs, the NLC being a public entity seeking to protect what it believes to be public property, we order that each party shall bear its own costs of this application.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/32/eng@2019-04-29 |
Civil Application 14 of 2018 | Kibunja v Kibunja (Civil Application 14 of 2018) [2019] KESC 73 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | PM Mwilu, DK Maraga, MK Ibrahim, SC Wanjala, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Kibunja v Kibunja | [2019] KESC 73 (KLR) | null | Before the Court, is a Notice of Motion dated 12th June 2018 seeking orders for leave to appeal out of time against the judgment of the Court of Appeal delivered on 29th May 2013; stay of execution of the orders of the Court of Appeal; this Court’s direction as to the filing of the Notice of Appeal; and costs. The application is supported by the Applicant’s affidavit sworn on 12th June 2018.
2.
The background to this matter is that, on the 14th of February, 1992, the respondent filed an Originating Summons at the High Court seeking orders of adverse possession of 5 acres out of 14 acres in parcel No. Abothuguchi/Githongo/1825, 1826 and 1827 (formerly Abothuguchi/Githongo/494) (the suit property) as against the applicant. The respondent is the daughter of the elder Kibunja who died in or about 1948. The said Kibunja, had two wives one of whom was the respondent’s mother who had no male child and the other being the applicant’s grandmother who had sons. Apparently, under Meru customary law, a woman, especially a daughter could not get registered as proprietor of clan land. As her mother had no sons, during the land adjudication, the respondent thus opted to register the suit property in the name of the applicant who was by then a minor aged about 5 years old.
3.
The respondent nonetheless continued in occupation and developed a portion of the suit property where she built permanent and semi-permanent structures and planted coffee as well as other food crops. However, desirous of being issued with title to the suit land, sometimes in the 1970’s, the respondent sought the help of clan elders who directed that she be issued with title to a 5 acre portion out of 9.5 acres of the suit land. The respondent rejected that decision arguing that the applicant and her mother lived on the suit property as licensees and as such the title could not be split to include them as proprietors of the suit land. She therefore filed the said Originating Summons (OS) before the High Court to exert her right to the suit land.
4.
In a ruling delivered on 4th March, 1993, Kuloba J (as he then was) dismissed the Originating Motion on the ground that it was time barred by virtue of the Limitation of Actions Act. However, on Appeal, the Court of Appeal reinstated the suit for hearing on merit. Emukule J who heard the Motion granted the respondent only a life interest in the suit land.
5.
Aggrieved by that decision, the respondent once again appealed to the Court of Appeal which, by a judgement dated 29th May 2013, allowed her appeal with the result that the respondent is entitled to the entire suit land. The applicant wishes to appeal to this Court against that decision.
6.
It is the applicant’s case that the judgement of the Court of Appeal goes against previous decisions by the same Court thereby undermining the rule of law and the principle of legitimate expectation. That the decision also goes against the greater public interest and, if allowed to stand, will occasion substantial injustice to his brother, James Kimathi, who has a school by the name: Marathi Academy—Registration Number 204225—on the said portion of land which is the only private school in the whole of Marathi location, and that the school employees will also lose their employment which shall adversely affect their families and the applicant’s brothers who depend on that portion of the land and the school for their sustenance. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/73/eng@2019-04-29 |
Civil Application 16 of 2018 | Moi Teaching & Referral Hospital Board,Attorney General & Minister for Health v Uasin Gishu Memorial Hospital Ltd,Minister for Health,Attorney General & Moi Teaching & Referral Hospital Board (Civil Application 16 & 25 of 2018 (Consolidated)) [2019] KESC 72 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Moi Teaching & Referral Hospital Board,Attorney General & Minister for Health v Uasin Gishu Memorial Hospital Ltd,Minister for Health,Attorney General & Moi Teaching & Referral Hospital Board | [2019] KESC 72 (KLR) | null | By its Notice of Motion dated June 18, 2018, Moi Teaching and Referral Hospital Board (the 1st Applicant) seeks orders under Articles 159 and 163(4) of the Constitution, Sections 3, 14(5), 19, 21 (3), 31 (d) and (g) of the Supreme Court Act, Rules 17(3), 23, 31, 32, 33, 34 and 53 of the Supreme Court Rules 2013 (sic) and all other enabling provisions of law, for an extension of time to file a Notice of Appeal against the judgment of the Court of Appeal delivered on 6th October 2017.
2.
By their Notice of Motion dated 26th July 2018 (the 2nd application), the Minister for Health and the Attorney General also seek more or less the same orders.
3.
The subject matter of the suit giving rise to this application are Title Nos. Eldoret Municipality Block 7/125 & 126 (the suit property) (Original L.R. No. 2958 Eldoret Municipality) over which there has been an ownership tussle since 1998 pitying the applicants against the 1st respondent.
4.
The 1st application is based on the ground that the Applicant had no notice of delivery of the Court of Appeal’s judgment on 6th October 2017. The 1st applicant argues that it came to know of the entry of judgment against the applicants on 20th March 2018, when the 1st respondent sought compensation from it of Kshs. 1, 738, 630,267.00. Between that date and 18th June 2018 when it filed this application, the 1st applicant claims that it was involved in consultation with the 2nd and 3rd applicants. In the supporting affidavit of Silvia Nyariki, it made reference to the 3rd applicant’s letter of 25th May 2018 advising the 1st applicant to appeal as proof of the said consultations.
5.
On their part, the 2nd and 3rd applicants argue that though they were served with notice a day before delivery of judgment, the delivery notice was inadvertently filed away and the 2nd and 3rd applicants did not get to know of the judgment until 23rd February 2018, when the 1st respondent forwarded a copy the judgement to them seeking compensation in the sum of Kshs 1, 738, 630,267.00 by which time the period for filing a Notice of Appeal had lapsed. They filed a notice of appeal on 13th June 2018. | Opposing the application, the 1st respondent argues that contrary to the principles set out in the Nick Salat Case (supra), the applicants have not explained the delay between the time they learnt of the judgment and when they filed these applications. In the circumstances, the 1st respondent sees these applications as the applicants’ gimmick to continue denying it compensation for the suit property that the 1st applicant has unlawfully occupied for now over 20 years.
8.
It appears to be common ground that the 1st applicant was not given notice and the 2nd and 3rd applicants were given a day’s notice of the delivery of the impugned judgment of the Court of Appeal. As was stated in the cases of Paul Mungai Kimani & 20 others v Attorney General & 2 others [2018] eKLR, Application No. 17 of 2017 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; [2014] eKLR, an applicant cannot be blamed for the lower courts’ failures or omissions. In this case, we are satisfied by the explanation given that the delay between the date when the applicants learnt of the judgment and when they filed these applications was taken by consultations between the applicants.
9.
For these reasons, we find merit in this application and we accordingly allow it. The applicants shall file and serve fresh notices of appeal within 14 days of the date hereof failing which these applications shall stand dismissed with costs. The costs of this application shall abide the outcome of the appeal. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/72/eng@2019-04-29 |
Civil Application 1 of 2018 | Mulima & 2 others (Suing as Representatives of Ex-East African airways Staff Welfare Association) v Attorney General & 8 others (Civil Application 1 of 2018) [2019] KESC 74 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Mulima & 2 others (Suing as Representatives of Ex-East African airways Staff Welfare Association) v Attorney General & 8 others | [2019] KESC 74 (KLR) | null | Before the Court is an application dated January 22, 2018 premised upon Section 24 of Supreme Court Act, Rules 3 5 , 4 3 i and 23 of the Supreme Court Rules, 2012 seeking leave to appeal out of time and an order directing the Registrar of this Court to deem the petition and record of appeal as filed with leave. An amended application was filed on 24th May 2018 albeit without leave of the Court.
2
The applicants are chairman, secretary and treasurer of the Ex-East African Airways Staff Welfare Association the Association registered on 12th June, 2012 . They filed a representative petition in the High Court for the benefit of the members of the association and for all former Kenyan employees of the defunct East African Airways Corporation the corporation . Their claim was that when the corporation ceased operations on 13th January 1977 and they were declared redundant on 15th February 1977, as employees of the corporation engaged on diverse dates, they became entitled to their provident fund, redundancy payments, unpaid leave and other cessation of service benefits. The corporation, however, failed to pay them thus violating their Constitutional rights under Articles 20 1 , 27, 28, 29 f , 35, 40, 41, 43, 47, 48 and 57 of the Constitution of Kenya, 2010.
3
Save for the petitioners’ right to information which the High Court directed the 1st Respondent to provide them within 90 days and publish the names of those who were paid by the official receiver, as well those yet to be paid and the total amount being held by National Bank of Kenya for the petitioners, the High Court dismissed the petition on the grounds that the matter was not only statutorily barred but also unenforceable under the 2010 Constitution as the said Constitution has no retrospective application. To date, the 9th Respondent is yet to comply with the orders.
4
Aggrieved by that decision, the applicants appealed to the Court of Appeal. In its judgment delivered on the 24th of February 2017, the Court of Appeal dismissed the applicants’ Appeal No. 179 of 2015 in its entirety adding that the matter was res judicata as the East African Mediation Agreement Act had addressed the issue of the petitioners’ provident fund. The Court of Appeal also found that the applicants were guilty of laches which caused the respondents serious prejudice. | certificate of delay from the Court of Appeal and that the respondents will not suffer any prejudice if this application is allowed.
8
In response, through the replying affidavit sworn on 20th March 2018 by Paul Ndungi, the Secretary and Senior Legal Counsel with the 6th Respondent, the 2nd to 6th Respondents argued that leave to appeal out time is never granted as of right. It is an equitable remedy that is only available to a deserving party. Having failed to comply with the High Court direction to publish the names of the former employees of the corporation who had been paid and those not yet paid, the applicants are not parties deserving the exercise of this Court’s discretion in their favour.
9
The respondents further argued that the applicants are guilty of laches. To allow proceedings after a delay of 36 years during which the respondents have destroyed or lost their documents will deny them the right to a fair hearing and thus cause them great prejudice. Moreover, they concluded, the applicants have not satisfied the conditions set out in the Nicholas Salat case for allowing such an application. They therefore urged us to dismiss the said application with costs.
10.
Having perused the application and its annextures and considered the rival submissions of the parties, we find that it is the Court of Appeal which failed to supply the applicants with copies of the proceedings and judgment in time. The record shows that the judgment of the Court of Appeal that the applicants wish to appeal against was delivered on 24th February 2017. The applicants filed a Notice of Appeal and applied for a copy of the proceedings and judgment on 6th March 2017. The proceedings were supplied to them on 20th December 2018 and they filed their record of appeal out of time on 22nd January 2018.
11
In the circumstances, we allow this application. The applicants shall file a fresh record of appeal within fourteen 14 days of the date hereof. The costs of this application shall abide the outcome of the intended appeal.
| Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/74/eng@2019-04-29 |
Petition (Application) 10 of 2018 | Njenga v Republic & 3 others (Petition (Application) 10 of 2018) [2019] KESC 76 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Njenga v Republic & 3 others | [2019] KESC 76 (KLR) | null | We have an application dated December 6, 2018 and filed in Court on 10th December 2018 for orders that Jacob Njenga Muiruri and Mark Kamau Njenga, the widower and son of Leah Waithira Njenga (the deceased), respectively, and the legal representative of the deceased’s estate be enjoined in this matter as the 1st and 2nd Petitioners in place of the deceased together with the costs of the application.
2.
The facts of this case are that the deceased instituted an appeal before this Court on 18th June, 2018. Unfortunately, she passed away on the 3rd of August 2018. Jacob Njenga Muiruri and Mark Kamau Njenga (the applicants/intended petitioners) have applied to be enjoined in this appeal in place of the deceased. Upon their application, on 7th November 2018, the High Court at Nyahururu granted them letters of administration ad litem for the purposes of their joinder in this appeal in place of the deceased. | Despite service, the 1st to 3rd Respondents have not responded to this application. Though he has also not put in any written response, when the matter came up for mention on 10th January 2019 before the Deputy Registrar, the 4th Respondent attended and stated that he has no objection to this application.
4.
In the circumstances, and there being no objection to the application, the same is hereby allowed with no order as to costs.
It is so ordered. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/76/eng@2019-04-29 |
Petition (Application) 38 of 2018 | Nuri v Kombe & 2 others (Petition (Application) 38 of 2018) [2019] KESC 42 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Election Petition | Nuri v Kombe & 2 others | [2019] KESC 42 (KLR) | null |
1.
On 21st September 2018, the Court of Appeal (Ouko, P, Musinga & Murgor, JJA) delivered a judgement in Election Petition Appeal No. 5 of 2018 as consolidated with Election Petition No. 1 of 2017, in which judgment it dismissed the appellant’s appeal for lack of jurisdiction. The judgment aggrieved the appellant and she moved to this Honourable Court on appeal. Her Petition of appeal is dated and filed on the even date of 26th October 2018.
2.
Upon being served with the petition, the 1st respondent filed a Notice of Motion application dated 12th November 2018. It is this application that is the subject of this ruling. The application seeks the following orders:
(1)
That this Honorable Court be pleased to strike out the Notice of Appeal filed on the 27th of September, 2018 and served on the First Respondent on the 24th of October, 2018.
(2)
That this Honourable Court be pleased to strike out the Record of Appeal filed on the 26th of October, 2018.
(3)
That the costs of this application be provided for.
3.
In her application, the 1st respondent asserts that the Notice of Appeal, which was filed timely on 27th September 2018, was served on her on 24th October, 2018, being nineteen days after the required time of within seven days of its lodging pursuant to Rule 32 of the Supreme Court Rules, and further that the Record of Appeal does not contain the record of proceedings before the Court of Appeal. She contends that failure to comply with the mandatory provisions of the Rules renders the Notice of Appeal fatally defective and that there are no valid reasons to justify failure to comply with these mandatory provisions of the law.
4.
The application is supported by a Supporting Affidavit, deponed by the 1st respondent in which she avers that failure of the appellant to effect service on her duly appointed firm of Advocates within the statutory timelines prejudiced her as she was unable to adequately prepare for the hearing of the appeal promptly. | In the matter before us, there is a petition of appeal duly filed upon payment of the prescribed fee and a Record of Appeal. Hence, prima facie, there is an appeal on record. However, the Record of Appeal lacks the record of proceedings of the Court of Appeal, is that fatal?
22.
Under Rule 33(4), the contents of a Record of Appeal (from a court or tribunal in its appellate jurisdiction) contains the following documents from the first appellate court: the certificate, if any, certifying that the matter is of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. This Court has timely reiterated that under Rule 33(6) a document omitted may be filed in a Supplementary Record without leave of the Court with fifteen days of filing of the Record of Appeal; and subsequently with leave of the Court, the same document may be filed.
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.
24.
In the current matter, the appellant submitted that she promptly requested, for the certified copy of the typed proceedings and the decree on the 27th of September 2018. The appeal before this Court was filed on 26th October 2018, by which time the appellant states that the typed proceedings had not been received. We note that there is no evidence of any correspondence between the Court of Appeal Registry and the appellant between the time of the first letter requesting for the proceedings and the time of filing the Appeal in this Court. The letter of 1/11/2018 was filed after the lodging of the Appeal before this Court and the one on 15/11/2018 was filed after being served with this application, to strike out the Record of Appeal. Hence the appellant’s efforts and the Registry’s response(s) between the period of 27th September 2018 and 26th October 2018 are not well explained. Unfortunately, the respondents have not submitted to the lack of this information, save to say that the appellant had sufficient time of one month to collect the typed proceedings. They have not confirmed whether the proceedings were ready for collection in that period. Be that as it may, the three letters demonstrate that there was persistent inquiry at the Court of Appeal registry by the appellant for the proceedings.
25.
In the matter of Hassan Nyanje Charo v Khatib Mwashetani & 3 others [2014] eKLR, this Court buttressed the principles of access to justice in considering an application for extension of time where the delay was occasioned by the delay by the Court of Appeal in typing proceedings thus:
“
(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. We note that the last correspondence in the record before us was on 29th January, 2014 and that could cast doubt on the measure of assertion of diligence; but there is nothing to show that the applicant has not made other efforts to inquire about the proceedings, or to show that the proceedings are now ready but remain uncollected. As no respondent has called into question the assertion that the proceedings are not yet available, we would not impugn the applicant’s claim of diligence.
(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?”
26.
The upshot is that we find that the lack of filing of the record of proceedings of the Court of Appeal in the Record of Appeal cannot be attributed to the fault of the appellant, but the delay at the Court of Appeal in typing the proceedings.
27.
Further, we take note of Rule 33(5) of the Court Rules which states:
“
The Court may, on the application of any party, direct which documents or parts of documents should be excluded from the record and an application for such direction may be made orally”
This rule connotes that the Court may exclude a document from the Record. It therefore emerges that once a Record of Appeal has been filed, this Court has discretion to determine whether the matter can sufficiently proceed without particular documents. Recently, in Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 others [2018] eKLR, this Court was invited to strike out a Record of Appeal for being incompetent for lack of the proceedings of one judge of the Court of Appeal. The Court declined the invitation holding that in any event, the inclusion of the court proceedings was not a mandatory requirement. It stated thus:
“
(28)
This takes us back to the 1st Respondent’s application dated 14th September, 2018. The only prayer remaining for consideration is the one seeking the striking out of the Record of Appeal filed on 17th August 2018 for being incomplete for lacking the proceedings by J. Mohammed, JJA. Is the lack of the same fatal? Upon perusal of the Rules, we find that under Rule 33(4) of the Court Rules, the appellate Judge(s)’ notes is not a mandatory requirement in the Record of Appeal. Rule 33(3) deals with a Record of Appeal where one is appealing from a court or tribunal exercising original jurisdiction. In this case, under Rule 33(3)(h), the trial judge’s notes of the hearing, is a mandatory inclusion in the record. The same is however, not a mandatory requirement under Rule 33(4) where it is an appeal from a court or tribunal in its appellate jurisdiction.
…
(29)
The upshot is that the lack of the proceedings of J. Mohammed, JJA from the Record of Appeal filed on 17th August, 2018, by itself, is not sufficient to warrant the striking out of the Record of Appeal.”
28.
The upshot is that, it is our determination that in the matter before us, the absence of the proceedings of the Court of Appeal is not fatal to the hearing and determination of this matter. We hence decline the respondents’ invitation to struck out the Record of Appeal on that basis. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/42/eng@2019-04-29 |
Civil Application 2 of 2019 | Sundowner Lodge Limited v Kenya Tourist Development Corporation (Civil Application 2 of 2019) [2019] KESC 71 (KLR) (29 April 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | DK Maraga, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Sundowner Lodge Limited v Kenya Tourist Development Corporation | [2019] KESC 71 (KLR) | null | The applicant’s Notice of Motion dated 24th January 2019 and supported by the affidavit of Samuel Waruguru Kimotho, a director of the applicant, is brought under Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31 and 53 of the Supreme Court Rules as well as other enabling provisions of the law. It seeks an extension of time to file a Notice of Appeal against the judgement and orders of the Court of Appeal (Ouko, Kiage, and Murgor JJA) delivered at Nairobi on 28th Day of September 2018.
2.
The application is based on ground that counsel for the applicant was unaware of the amendment to the Supreme Court Rules allowing a party to file a Notice of Appeal even before obtaining certification/leave. Relying on the authorities of Belinda Murai & 9 Others vs Amos Wainaina [1979] eKLR; Tropical Africa Bank Ltd vs Grace Were Muhwana Civil Application No. 3 of 2012[2012] UGSC 8, (Ugandan SC); Horizon Coaches Ltd Vs Edward Rurangaranga & Another [Civil Application 18 of 2009 [2009] UGSC 7; Onyebuchi Iroegbu & others vs Richard Okwardu & Others Nigeria SC 291 of 1989; and The Attorney General vs Oriental Construction Co. Ltd [SC Application 7/90, the applicant argues that a procedural error of counsel should not be visited upon a litigant and urges this Court to grant it leave to file a Notice of Appeal out of time adding that no prejudice will be caused to the respondent. The applicant also relies on the case of Nicholas Kiptoo Arap Korir Sala vs Independent Electoral & Boundaries Commission & 7 Others [2014] eKLR, Application No. 16 of 2014 and urges us to exercise our unfettered discretion and allow this application.
3.
| Basing their arguments on the averments in the replying affidavit and written submissions, counsel for the respondent dismissed this application as lacking in merit. Citing the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, counsel argued that a Notice of Appeal is a jurisdictional prerequisite that every litigant should be aware of. They urged that it is every counsel’s duty to keep abreast with legal developments. In the circumstances, they argued that indolence or ignorance of the law, to make it worse, counsel’s ignorance of the law, is therefore not one of the grounds in the Nick Salat case for extending time. They argued that as was stated in the case of Charo vs Mwashetani & 3 Others [2014] eKLR, timelines are a vital ingredient for effective governance under the Constitution and urged us to dismiss this application with costs.
4.
Having considered the parties’ rival submissions, we find that counsel’s ignorance of the amendment of the Supreme Court Rules in 2012 making it unnecessary “to obtain … certification before lodging the notice of appeal”, was an innocent mistake which they have not sought to hide. Moreover, a delay of only four months is not inordinate. In the circumstances, we allow this application. The applicant shall file and serve its notice of appeal within fourteen (14) days of the date hereof failing which this application shall stand dismissed with costs. The costs of this application shall abide the result of the intended appeal. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/71/eng@2019-04-29 |
Miscellaneous Application 18 of 2018 | Mwangi & 2 others (As the Administrators of the Estate of Kenneth K Mwangi - Deceased) v City County of Nairobi & another; Fidelity Commercial Bank (Interested Party) (Miscellaneous Application 18 of 2018) [2019] KESC 35 (KLR) (29 March 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola | 29 April 2019 | 2,019 | Nairobi | Civil | Mwangi & 2 others (As the Administrators of the Estate of Kenneth K Mwangi - Deceased) v City County of Nairobi & another; Fidelity Commercial Bank (Interested Party) | [2019] KESC 35 (KLR) | null |
1.
Upon perusing the Notice of Motion application by the Applicants dated 29th June, 2018 and filed under Certificate of Urgency by the Applicants on 3rd July, 2018 brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Rules 33 and 53 of the Supreme Court Rules, Order 50 Rule 6 and Order 51 of the Civil Procedure Rules and all enabling provisions of the Law, seeking for extension of time to file an appeal out of time against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 228 of 2008; and
2.
Upon reading the Applicants’ grounds in support of the Application, the Supporting Affidavit sworn on 29th June, 2018; and
3.
Upon considering the Applicant’s written submissions dated 3rd September, 2018 and filed on 5th September, 2018 wherein the Applicants submit that the delay in filing the appeal was occasioned by the delay in receiving the typed and certified copy of the proceedings in the Court of Appeal, having only received the certified proceedings once the time for lodging the Petition to the Supreme Court had lapsed, and that: (a) the delay of less than three months cannot be considered inordinate; (b) the prejudice to the Applicant would be substantial as the denial of the right to be heard would lead to the loss of Kshs. 400 million; and (c) there would be no prejudice suffered by the Respondents as they would be able to challenge the Petition when presented in Court;
4.
Further, it was submitted by the Applicants that the Preliminary Objection raised by the 2nd Respondent that this Court has no jurisdiction to determine this matter and that the Applicants had failed to obtain certification in respect of any appeal to be filed, is ideally misplaced at this point in time because the Petition is not yet before the Supreme Court for its determination; and
5.
Upon reading the 2nd Respondent’s Preliminary Objection dated 1st August, 2018 and filed on 2nd August, 2018 wherein it submits that this Court has no jurisdiction to determine this matter and that the Applicants had failed to obtain a certification in respect of the intended appeal as required by Rule 24(1) of the Supreme Court Rules, 2012; and
6.
Upon considering the 2nd Respondent’s written submissions dated and filed on 27th September, 2018 in which it has urged that there is inordinate and unexplained delay as the Applicants have not demonstrated how they made the alleged inquiries and follow-ups on the typed proceedings or disclosed when they collected the certified typed proceedings and that in any event, Rule 33(3) of the Supreme Court Rules, 2012 does not make mention of certified typed proceedings as one of the pre-requisites for filing a Record of Appeal. And that the typed proceedings in this matter were ready for collection from 15th March, 2018 making it unclear why the Applicants took more than three months to file this Application;
7.
| We find as follows;
a.
As provided under Rule 53 of the Supreme Court Rules, 2012, the Court may give further directions and extend the time limited under the Rules upon consideration of prevailing circumstances.
b.
In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014 eKLR] this Court held that the discretionary power provided for under Rule 53 will not be exercised where one has not acted equitably since the extension of time itself is a creature of equity.
c.
In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR this Court found that a delay of 4 months in obtaining the typed proceedings was sufficient reason to justify the delay in filing a Petition.
d.
The Applicants here do not account sufficiently for the nearly 3 months delay (from the date when the typed proceedings were ready for collection) in filing the present Application other than to state that they made repeated inquires to follow up on the status of the typed proceedings.
e.
The question of prejudice has not been addressed by the Respondents who would be best placed to state what prejudice they may suffer should the Application be granted. That fact notwithstanding and while the delay has not been satisfactorily explained, on the face of it, no prejudice would be suffered by them.
f.
On the Court’s jurisdiction to extend time, this Court settled that question in John Ochanda v Telkom Kenya Limited [2014] eKLR where we stated thus: “We have already stated the Court’s jurisdiction to extend time. We reiterate that the question of jurisdiction to extend time to file a notice of appeal to appeal to the Supreme Court is not an issue subject to controversy. The notice of appeal is provided by rule 31 of the Supreme Court, Rules 2012. Further, the power to extend time is provided for by Rule 53 of the same Court Rules. These Supreme Court Rules are enforced by the Supreme Court as provided by Article 163(8) of the Constitution which….”
g.
The second aspect of this Court’s alleged lack of jurisdiction as raised by the 2nd Respondent is the lack of certification and/or there being no matters of constitutional interpretation and application in the intended appeal. That matter is premature and can only be properly determined when there is a Petition before the Court routing specific issues that may raise jurisdictional questions. At this stage, there is nothing before us to point us to that issue.
h.
We note, lastly, that the Applicants partly invoke the jurisdiction of this Court by citing Rules applicable in the High Court being the Civil Procedure Rules. Those procedural Rules are not applicable before this Court.
8.
Without a satisfactory explanation as to delay, the present Application is one for dismissal which we hereby do.
9.
Having therefore considered the Application and affidavit in support thereto, the preliminary objection in opposition thereof and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012; | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/35/eng@2019-03-29 |
Civil Application 7 of 2018 | Sarah Anyangu Ochieng v Technical University of Kenya (Civil Application 7 of 2018) [2019] KESC 34 (KLR) (29 March 2019) (Ruling) | Ruling | Supreme Court | Supreme Court | JB Ojwang, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola | 29 March 2019 | 2,019 | Nairobi | Civil | Sarah Anyangu Ochieng v Technical University of Kenya | [2019] KESC 34 (KLR) | null | Upon perusing the Notice of Motion Application by the Applicant dated 24th April, 2018 and filed on 25th April, 2018 brought under Rules 31(1) and 53 of the Supreme Court Rules, 2012 seeking an extension of time to file an appeal out of time against the Judgment and Orders of the Court of Appeal in Nairobi Civil Appeal No. 78 of 2018; and
2.
Upon reading the Applicant’s grounds in support of the Application, the Supporting Affidavit sworn on 24th April, 2018; and
3.
Upon considering the Applicant’s written submissions dated 25th May, 2018 and filed on 29th May, 2018 wherein the Applicant submits that the delay in filing the appeal was occasioned by the fact that the Court of Appeal had given a Judgment date for 26th January 2018 but did not deliver any Judgment on that date; and, that the Applicant only became aware that a Judgment had been delivered when her advocates received a letter dated 12th April 2018 from the Respondent’s Advocates demanding payment of costs by which time the 14 days period for filing an appeal to this Court had lapsed; and
4.
Upon reading the Respondent’s Replying Affidavit sworn on 8th June 2018 and filed on 11th June 2018 in which it opposed the Application arguing that the same was brought inordinately and with undue and unexplained delay, and, that all parties were called to attend delivery of the Judgment on 21st March 2018 but the Applicant’s advocates did not show up; and that, in any event, the filing of the present Application is an afterthought; and further, that no certification under Article 163(4)(b) of the Constitution was obtained at the Court of Appeal prior to its filing; and
5.
Upon considering the Respondent’s written submissions dated 8th June 2018 and filed on 11th June, 2018 in which, the Respondent has argued that the jurisdiction of this Court has not been properly invoked under Article 163 of the Constitution as read with Rule 30(2) of the Supreme Court Rules; and, that the Application is otherwise an abuse of Court process fit only for dismissal; | We find as follows;
(a)
The jurisprudence of this Court on the considerations for grant or denial of an application for extension of time was well expressed in Charo v Mwashetani and 3 others (2014) KLR-SCK and Application No.16 of 2014, Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others among other cases.
(b)
In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible. That there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction. The delay, in any event, should not be so inordinate as to show that an applicant has been slothful and filed such an application as an after-thought.
(c)
In the present case, the delay is of thirty one (31) days explained by non-attendance at the delivery of the Court of Appeal Judgment on 21st March 2018 because no notice of such delivery was given to the Applicant’s advocates, a claim vehemently denied by the Respondent. We find that explanation not tenable in view of the fact that the Court of Appeal record, which would have shown whether notice was given or not has not been placed before us and there is no denial of the Respondent’s contention that such a notice was issued hence the reason its advocates attended Court.
(d)
More fundamentally, even if the delay is excusable, we note that the Respondent has raised the issue of the jurisdiction of this Court to determine the intended appeal. In other instances, we have declined to address the issue of jurisdiction in an application for extension of time to file an appeal. In this case however, the issue is glaring and must be addressed at this stage. We say so because we have read the Judgment of the Court of Appeal and perused the draft Notice of Appeal attached to the Applicant’s Affidavit in support. The Notice seeks to challenge “the whole decision that the appeal lacked merit”.
(e)
The draft Notice of Appeal does not however indicate whether the intended Appeal is to be filed under Article 163(4)(a) of the Constitution as a matter of right or 163(4)(b) as a matter of great public importance.
(f)
It is not for this Court to speculate on whether the intended Appeal falls into either of the two categories of appeals before it. Without clarity on the crucial question of the jurisdiction being invoked, the intended appeal is rendered vague, frivolous and untenable.
7.
Having therefore considered the Application, the Affidavit in support and Supplementary Affidavit filed in support thereto, the Replying Affidavit in opposition thereof and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012; | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/34/eng@2019-03-29 |
Election Petition Appeal (Application) 38 of 2018 | Sheikh v Hathe & 3 others (Election Petition Appeal (Application) 38 of 2018) [2019] KESC 31 (KLR) (29 March 2019) (Ruling) | Ruling | Supeme Court | Supreme Court | MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola | 29 March 2019 | 2,019 | Nairobi | Election Petition | Sheikh v Hathe & 3 others (Election Petition Appeal (Application) 38 of 2018) | [2019] KESC 31 (KLR) | null |
A. INTRODUCTION
1.
The Application before us emanates from the Ruling of the Court of Appeal—Election Appeal (Application) No. 261 of 2018—in which the said Court struck out the Applicant’s Notice and Record of Appeal on grounds that the Court of Appeal had no jurisdiction to hear election petition appeals concerning membership to a County Assembly.
2.
The Application, dated 20th December, 2018 and filed under a certificate of urgency is seeking the following orders:
(a)
This application be certified urgent and allocated an early hearing date.
(b)
Pending the hearing and determination of the Application and the intended appeal, there be a stay of execution against the Ruling of the Court of Appeal in Election Appeal No. 32 of 2018; Mohamed Ali Sheikh v. Adbiwahab Osman Hathe & 3 Others delivered on 19th December, 2018.
(c)
Pending the hearing and determination of the Application herein and the intended appeal, a conservatory order do issue against the Speaker of the County Assembly of Garissa restraining him from declaring the seat of the Applicant vacant. (sic)
(d)
Pending the hearing and determination of the Application herein, a conservatory order do issue restraining the 3rd and 4th Respondents from announcing or conducting elections for Member of the County Assembly, Abakaile Ward, Garissa County.
(e)
Pending the hearing and determination of the Application herein and the Intended appeal, this Honourable Court be pleased to issue a conservatory order to stay the execution of the judgment and decree of the High Court at Garissa delivered on 29th August, 2018 in Garissa Election Petition No. 6 of 2017; Adbiwahab Osman Hathe v. Mohamed Ali Sheikh & 3 Others.
(f)
The Applicant be at liberty to apply for further orders and or directions as the Honourable Court may deem fit and just to grant.
(g)
The costs of this Application be costs in the cause.
3.
On 21st December, 2018, the Application was certified urgent by a single Judge of this Court (Wanjala SCJ) who directed the Deputy Registrar to conduct a pre-trial conference. Pursuant to those directions, the Applicant filed submissions dated 17th January, 2019, the 1st Respondent filed a Replying Affidavit sworn on 25th January, 2019, while the 2nd, 3rd and 4th Respondents filed submissions dated 24th January, 2019. On 29th January, 2019, the Chief Justice constituted this 5 Judge bench of the Court to determine the Application.
4.
The Application is premised on the following summarised grounds:
(a)
The Court of Appeal struck out the Applicant’s Record and Notice of Appeal thereby activating the execution of the judgment of the High Court dated 29th August, 2018 which had annulled the election of the Applicant and further directed the 3rd and 4th Respondent to conduct a fresh election for the position of member of County Assembly, Abakaile Ward, Daadab Constituency, Garissa County.
(b)
The Court of Appeal declared that it had no jurisdiction to hear and determine appeals relating to members of a County Assembly arising from decisions of the High Court.
(c)
By operation of the law, once served with the Order and decree of the High Court, the Speaker of the County Assembly of Garissa will declare the Applicant’s seat vacant.
(d)
The 3rd and 4th Respondents will also be obliged to commence the process of conducting a fresh election for the position of Member of County Assembly, Abakaile Ward, Daadab Constituency, Garissa County.
(e)
In the event that the election is conducted as ordered by the Court of Appeal and in the event that the intended appeal herein succeeds, the decision of this Court will be rendered nugatory, an academic exercise and overtaken by events.
(f)
The orders sought will not prejudice the Respondents and are in the public interest.
(g)
The appeal is arguable and has overwhelming chances of success.
B. BACKGROUND
5.
Following the General Election held on 8th August, 2017, the Applicant was declared as the duly elected member of the County Assembly for Abakaile Ward in Daadab Constituency. Aggrieved by that declaration, the 1st Respondent filed an election petition—No. 1 of 2017—at the Chief Magistrate’s Court in Garissa. Upon hearing the matter, the Chief Magistrate (Maundu CM) dismissed the petition and held that the declared results reflected the will of the people of Abakaile Ward.
6.
Aggrieved, the 1st Respondent filed an appeal at the High Court in Garissa—Election Petition No. 6 of 2018—seeking to overturn the decision of the Chief Magistrate. The High Court, (Dulu J) allowed the appeal, set aside the Judgment of the Chief Magistrate’s Court and ordered the Independent Electoral and Boundaries Commission to conduct a fresh election in accordance with the law.
7.
Following the High Court decision, the Applicant filed an appeal at the Court of Appeal in Nairobi—Election Petition No. 32 of 2018—challenging the decision of the High Court to nullify the election and order a fresh election. Before the appeal was heard on merits, the 1st Respondent filed an application seeking to strike out the Applicant’s Notice of Appeal and also a Preliminary Objection challenging the jurisdiction of the Court of Appeal to hear the appeal. In a Ruling delivered on 19th December, 2018 and indicated as Election Petition Appeal (Application) No. 261 of 2018, the Court of Appeal (Visram, Nambuye, Musinga, Gatembu & Odek, JJA) upheld the Preliminary Objection and struck out the Notice of Appeal for want of jurisdiction. As a consequence, the record of appeal filed in Election Petition Appeal No. 32 of 2018 was also struck out.
8.
Upon delivery of the Court of Appeal decision, on 21st December, 2018, the Applicant filed the present Application seeking stay Orders against both the High Court and the Court of Appeal decision. Subsequently, on 21st January, 2019, the Applicant filed a Petition of Appeal before this Court dated 18th January, 2019 seeking a reversal of the Court of Appeal decision. It is the stay application which is the subject of this Ruling. | D. Analsyis and Determination
12.
At the outset, we note that the Applicant filed the present application without first filing a substantive appeal before the Court. The Application was in fact filed on 21st December 2018 while the appeal was filed on 21st January 2019, a month after the filing of the Application. In that regard, we have stated in the past that an interlocutory application cannot originate proceedings before the Court. (See the case of Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 Others SC Petition No. 27 of 2014; [2014] eKLR.) Such a stand-alone application will not generally be considered as it is not predicated upon a substantive matter before the Court and remains unknown in law. In this case however, the Applicant subsequently filed his Petition of Appeal, dated 18th January, 2019 enumerating the grounds in which the intended appeal stands and the consequential orders that he seeks. We would not ordinarily consider the Applicant’s Application which was unprocedurally filed. Nonetheless, we find that at the time the Chief Justice constituted this Bench, on 29th January, 2019, the Applicant had already filed his appeal before the Court. In the interests of justice therefore, we deem this Application as properly filed in order to avoid unnecessary delay in determining it, especially considering the nature of elections petitions which are regulated by time bound procedures.
13.
Moving on to the merits of the Application therefore, the Applicant has urged us to grant stay of execution against the Ruling of the Court of Appeal and the Judgment of the High Court delivered on 19th December, 2018 and 29th August, 2018, respectively. In our previous decisions, we have considered the purpose of a stay order and particularly in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No. 5 of 2014; [2014] eKLR, we held that a stay order “denotes that no party nor interested individual or entity is to take action until the Court has given the green light.” Further, in the case of Board of Governors, Moi High School, Kabarak & another v. Malcolm Bell SC Petition No. 6& 7 of 2013; [2013] eKLR we held that we had jurisdiction to grant stay orders for the purpose of “safeguarding the character and integrity of the subject-matter of the appeal, pending the resolution of the contested issues.”
14.
It is therefore the law that stay orders are generally temporary measures meant to preserve the subject matter of an appeal, pending the final determination of the case before the Court. In this case, as is evident in the Petition of Appeal now before us—Petition 1 of 2019—the Petitioner (the Applicant herein) seeks to appeal the Ruling of the Court of Appeal that struck out his Notice and Record of Appeal on ground that it had no jurisdiction to hear appeals arising from the election of a member of a County Assembly. Consequently, the question for determination in the intended appeal, is whether the Court of Appeal has such jurisdiction. If we find that the Court of Appeal has jurisdiction to hear appeals arising from the election of a member of a County Assembly, it would then mean that the Court of Appeal wrongly struck out the Applicant’s Notice and Record of Appeal and certain consequential orders would have to be issued.
15.
In the above context and on considering the matter, we have difficulties in granting the Applicant’s prayer for stay against the Ruling of the Court of Appeal. We say so because, even if the appeal may be arguable, which we do not dispute, staying the Court of Appeal’s Ruling is unnecessary and would serve no purpose as there is no subject matter which is required to be preserved. The Court of Appeal only struck out the Notice and Record of Appeal without more. What then is to be stayed? We submit, nothing.
16.
We also note that the Applicant seeks a conservatory order against the Speaker of the County Assembly of Garissa to restrain him from declaring a vacancy in the seat of the member of County Assembly for Abakaile Ward. Further, the Applicant also seeks to restrain the 3rd and 4th Respondents from conducting fresh elections in that Ward. More particularly, the Applicant seeks a stay of execution against the Judgment and Order of the High Court if we are to grant those orders.
17.
In that regard, we are certain that, the High Court decision which nullified the Applicant’s election is not the subject of appeal before us. Since the Court of Appeal found that it had no jurisdiction to hear appeals arising from the elections of the member of County Assemblies, it did not determine the question of the validity of the election for the member of County Assembly for Abakaile Ward. As a result, the High Court decision was never determined on appeal. Indeed, in his Petition of Appeal, the Applicant appreciates the limited issue before us, when he seeks the prayer for the remittal of the matter to the Court of Appeal for hearing on merit. Therefore, since the question of the validity of the election of the member of County Assembly of Abakaile Ward is not before us, we cannot grant a stay order on an issue that cannot be legitimately solved by this Court. Accordingly, we find no basis for granting the stay orders or indeed any other orders sought.
18.
The Application, on merit is therefore one for dismissal which we hereby do. As for costs, the Applicant must bear the same. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/31/eng@2019-03-29 |
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