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In Re Adoption Of Baby N K [2015] eKLR

Case Number: Adoption Cause 176 of 2014 Date Delivered: 05 Nov 2015

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Adoption of Baby N K

Citation: In Re Adoption Of Baby N K [2015] eKLR

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A N N V H N M [2015] eKLR

Case Number: Divorce Cause 145 of 2014 Date Delivered: 05 Nov 2015

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: A N N v H N M

Citation: A N N V H N M [2015] eKLR

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Akkad Systems Limited V County Gorvernment Of Nairobi [2015] eKLR

Case Number: Miscellaneous Civil Application 317 of 2014 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Akkad Systems Limited v County Gorvernment of Nairobi

Citation: Akkad Systems Limited V County Gorvernment Of Nairobi [2015] eKLR

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T A M (Minor Suing Thro’ Her Father And Next Friend J O. M) V Richard Kirimi Kinoti & Another [2015] eKLR

Case Number: Civil Appeal 82 of 2008 Date Delivered: 05 Nov 2015

Judge: Lucy Mwihaki Njuguna

Court: High Court at Nairobi (Milimani Law Courts)

Parties: T A M (Minor Suing Thro’ her father and next friend J O. M) v Richard Kirimi Kinoti & Peter Kabiru Wanjohi

Citation: T A M (Minor Suing Thro’ Her Father And Next Friend J O. M) V Richard Kirimi Kinoti & Another [2015] eKLR

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Republic V Disciplinary Tribunal Of The Law Society Of Kenya & Another Exparte John Maina Mburu [2015] eKLR

Case Number: Judicial Review Case 226 of 2015 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Disciplinary Tribunal of the Law Society of Kenya & John Francis Njomo exparte John Maina Mburu

Citation: Republic V Disciplinary Tribunal Of The Law Society Of Kenya & Another Exparte John Maina Mburu [2015] eKLR

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M A A V M S A [2015] eKLR

Case Number: Civil Appeal 52 of 2015 Date Delivered: 05 Nov 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: M A A v M S A

Citation: M A A V M S A [2015] eKLR

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Republic V Nairobi City County Ex Parte Senco Limited W.H.E. Edgley’s Trust Trustees Registered [2015] eKLR

Case Number: JR Case 461 of 2014 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Nairobi City County Ex Parte Senco Limited W.H.E. Edgley’s Trust Trustees Registered

Citation: Republic V Nairobi City County Ex Parte Senco Limited W.H.E. Edgley’s Trust Trustees Registered [2015] eKLR

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Mutali Nyamwea Alias Mokaka V Republic [2015] eKLR

Case Number: Criminal Appeal 31 of 2015 Date Delivered: 05 Nov 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Mutali Nyamwea Alias Mokaka v Republic

Citation: Mutali Nyamwea Alias Mokaka V Republic [2015] eKLR

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Lai Mohamed Mwango Alias Mzogah V Republic [2015] eKLR

Case Number: Criminal Appeal 144 of 2011 Date Delivered: 05 Nov 2015

Judge: Said Juma Chitembwe, Martin Muya

Court: High Court at Malindi

Parties: Lai Mohamed Mwango alias Mzogah v Republic

Citation: Lai Mohamed Mwango Alias Mzogah V Republic [2015] eKLR

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Republic V Retirement Benefits Appeals Tribunal & 5 Others Ex-parte Kenya Airports Authority Staff Superannuation Scheme [2015[] eKLR

Case Number: Judicial Review Application 58 of 2015 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v The Retirement Benefits Appeals Tribunal,The Attorney General,The Retirement Benefits Authority, Christopher Wachira Gathiteri,Caleb Juma Hongo & Francis Muema Mwendwa Ex-Parte Kenya Airports Authority Staff Superannuation Scheme (Suing Thro’ Its Trustees John Tito, John Thumbi, Yatich Kanyugo & Ken Kaunda) & Kenya Airports Authority

Citation: Republic V Retirement Benefits Appeals Tribunal & 5 Others Ex-parte Kenya Airports Authority Staff Superannuation Scheme [2015[] eKLR

Jurisdiction of a statutory tribunal is not limited to what is expressly conferred to it by its governing statute.

Republic vs. Retirement Benefits Appeals Tribunal & 5 others Ex-Parte Kenya Airport Authority Superannuation Scheme

Judicial Review Application No. 58 of 2015

High Court of Kenya at Nairobi

W. Korir J

November 5, 2015

Reported by Kipkemoi Sang

Brief facts

On the 3rd March, 2015, the Applicants sought orders from the court, to quash the orders of the 1st respondent, to prohibit the 1st respondent from hearing or entering any further proceedings in the tribunal. The 1st Applicant was a retirement benefits scheme set up for the 2nd Applicant’s employees.  The scheme was registered by the 3rd Respondent and had been in operation since 1996. The 1st, 2nd and 3rd interested parties retired on 31st December, 2005, 31st March, 2007 and 31st December, 2006 respectively. In June, 2012, the interested parties filed a complaint with the 3rd Respondent in which they alleged that the applicants had failed to give them annual pension increases as required by the law.

According to the applicants, the 3rd Respondent’s reply to the interested parties’ complaint was that, it had investigated and addressed the issue in the year 2007.  The interested parties nevertheless sought a review of the 3rd Respondent’s position but the request was declined by the 3rd Respondent through a letter dated 12th August, 2013. The interested parties being dissatisfied with this state of affairs proceeded to file an appeal against the 3rd Respondent’s decision with the 1st Respondent seeking various judicial review orders. The applicants submitted that the jurisdiction of a statutory tribunal was limited to what was expressly conferred to it by its governing statute.  According to the applicant, section 49 of the Retirement Benefits Act much as it provided for the jurisdiction of the 1st Respondent, the said section did not provide for the grant of substantive relief by the 1st Respondent and as such the 1st respondent could not issue such relief.

Issues

i. Whether the 1st Respondent had jurisdiction to grant the orders of certiorari and prohibition  to the interested parties;

ii. Whether the 1st Respondent failed to give reasons for its decision and if so, whether that amounted to a breach of fair administrative action as guaranteed by Article 47 of the Constitution;

iii. Whether the decision of the 1st Respondent in issuing an order of certiorari was unreasonable.

 

Judicial Review-order of certiorari, mandamus and prohibitions-jurisdiction of a tribunal to issue judicial review orders- whether the 1st Respondent had jurisdiction to grant the orders of certiorari and prohibition to the interested parties-Constitution of Kenya, 2010, article 47

Constitutional Law- fair administrative action- reasons for decision while effecting an administrative action-whether the 1st Respondent failed to give reasons for its decision and if so, whether that amounted to a breach of fair administrative action as guaranteed by the Constitution- Whether the decision of the 1st Respondent in issuing an order of certiorari was unreasonable-Constitution of Kenya, 2010, article 47

Words and Phrases- definition of words- “appeal” means- A proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal- Black’s Law Dictionary 9th edition, page 112

Words and Phrases- definition of words - stare decisis means- the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation- Black’s Law Dictionary 9th edition, page 1537

Constitution of Kenya, 2010

Article 47- Fair administrative action

(1)  Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2)  If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3)  Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.

Retirement Benefits Act, (cap 197)

Section 48- Appeals to the Tribunal  

(1)  Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.

(2)  Where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by this Act, either party may appeal to the Tribunal in such manner as may be prescribed.

Section 49- Powers of Appeals Tribunal

(1)  On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.

(2)  Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories  are   administered  to   make  a   full   and  true   reply  to   the interrogatories within the time specified by the Tribunal.

(3)  In   its   determination   of   any   matter,   the   Tribunal   may   take   into consideration any evidence which it  considers relevant to  the subject of  an appeal  before  it,  notwithstanding that  the  evidence  would  not  otherwise  be admissible under the law relating to admissibility of evidence.

(4)  The Tribunal shall have power to award the costs of any proceedings before it and to direct that costs shall be paid in accordance with any scale prescribed for suits in the High Court or to award a specific sum as costs.

(5)  All summons, notices or other documents issued under the hand of the chairman of the Tribunal shall be deemed to be issued by the Tribunal.

(6)  Any  interested  party  may  be  represented  before  the  Tribunal  by  an advocate or by any other person whom the Tribunal may, in its discretion, admit to be heard on behalf of the party.

Held

  1. The 1st Respondent was a creature of section 47 of the Retirement Benefits Act.  The reason for its establishment was to hear appeals under the Act.  Section 48(1) reduced accessibility to any person aggrieved by a decision made under the provision of the Act or its regulations by the Retirement Benefits Authority or its Chief Executive Officer.  An appeal could also be filed in regard to any dispute between any person and the Retirement Benefits Authority as to the exercise of powers conferred upon the Retirement Benefits Authority by the Retirement Benefits Act.
  2. Sections 48 and 49 clearly revealed that in creating the 1st Respondent, Parliament intended it to be an appellate body. Accordingly, appeal was defined as proceeding undertaken to have a decision reconsidered by a higher authority, especially the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal.
  3. In interpreting a statute, the court should give life to the intention of the lawmaker instead of stifling it.  Whereas it was important to limit the powers of a statutory body to the letter of the law that created it, the reading of the law should not be done in a manner that gave rise to absurdities.  In creating the 1st Respondent, Parliament’s intention was to give a chance to any aggrieved person to appeal to the 1st Respondent.  Parliament could not then have made the 1st Respondent incapable of granting tangible relief. Although it was important for drafters of laws to specify the functions of the bodies created by the laws, it would defeat the intention of Parliament to say that the 1st Respondent could not overturn the decisions appealed against and issue appropriate orders.
  4. Where the law was silent on the remedies that an appellate tribunal or court could give, it would not be wrong to imply that the appellate body was mandated to grant the minimal orders that an ordinary appellate body could grant.  Such power would include the power-

i. to determine a case finally;

ii. to remand a case;

iii. to take additional evidence or require the evidence to be taken; and

iv. to order a new trial.

  1. Where  the proceedings were regular upon their face and the inferior tribunal had     jurisdiction in the original narrow sense and did not commit any of the errors which went to jurisdiction in the wider sense, the quashing order of certiorari would not be ordinarily granted on the ground that its decision was considered to be wrong either because it misconceived a point of law or misconstrued a statute (except a misconstruction of a statute relating to its own jurisdiction) or that its decision was wrong in matters of fact or that it misdirected itself in some matter.  That the 1st Respondent’s decision was unreasonable.
  2. It was not the responsibility of a party who appeared before a tribunal or a court to go looking for other decisions of that court or tribunal in order to understand the reasons behind the decision in his/her case.  The tribunal or court should give the reasons in the case of that particular party. Pursuant to article 47 (2) giving of written reasons where the right of a person was adversely affected by administrative action was now a constitutional imperative. Decisions should be backed by reasons. In the instant case, the 1st Respondent failed to give reasons for its decision.  That amounted to procedural impropriety as the applicants were left to speculate on the reasons behind the decision. Judicial review was available where there was illegality, irrationality or procedural impropriety on the part of the decision maker.

An order of certiorari issued; Order of prohibition dismissed 

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Michael Damson Mahugu V Ministry Of Interior & Co-Ordination Of National Government [2015] eKLR

Case Number: Misc. Applications 47 of 2014 Date Delivered: 05 Nov 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Michael Damson Mahugu v Ministry of Interior & Co-Ordination of National Government

Citation: Michael Damson Mahugu V Ministry Of Interior & Co-Ordination Of National Government [2015] eKLR

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Mwalimu Wasi Kalume & Another V Republic [2015] eKLR

Case Number: Criminal Appeal 128 & 131 of 2011 Date Delivered: 05 Nov 2015

Judge: Said Juma Chitembwe, Martin Muya

Court: High Court at Malindi

Parties: Mwalimu Wasi Kalume & Amini Saidi Kibao v Republic

Citation: Mwalimu Wasi Kalume & Another V Republic [2015] eKLR

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C M K V Republic [2015] eKLR

Case Number: Criminal Appeal 7 of 2015 Date Delivered: 05 Nov 2015

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: C M K v Republic

Citation: C M K V Republic [2015] eKLR

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Republic V Public Private Partnerships Petition Committee (The Petition Committee) &3 Others Ex Parte A P M Terminals [2015] eKLR

Case Number: Judicial Review Case 298 & 325 of 2015 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Public Private Partnerships Petition Committee (The Petition Committee) , Kenya Ports Authority , Bollore/Toyota Tusho Corporation, Kamigumi Co. Ltd, Mitsui Engineering & Ship Building Co. Ltd Mombasa Maize Millers Ltd & International Container Terminal Ex Parte Apm Terminals

Citation: Republic V Public Private Partnerships Petition Committee (The Petition Committee) &3 Others Ex Parte A P M Terminals [2015] eKLR

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General Plastics Ltd V Patrick K. Molo [2015] eKLR

Case Number: Civil Appeal 364 of 2003 Date Delivered: 05 Nov 2015

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: General Plastics Ltd v Patrick K. Molo

Citation: General Plastics Ltd V Patrick K. Molo [2015] eKLR

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Republic V OCPD Nairobi County Police Headquarters & 7 Others Ex-parte Mary Gathoni Ndungu [2015] eKLR

Case Number: Judicial Review Case 45 of 2015 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v OCPD Nairobi County Police Headquarters, OCPD Kilimani Police Station, OCPD Central Police Station, In-charge CID Nairobi County Police Headquarters, In-charge CID Kilimani Police Station, In-charge CID Central Police Station, In-charge Flying Squad Pangani Police Station, Director of Public Prosecutions & Attorney General Ex-parte Mary Gathoni Ndungu

Citation: Republic V OCPD Nairobi County Police Headquarters & 7 Others Ex-parte Mary Gathoni Ndungu [2015] eKLR

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Republic V Retirement Benefits Appeals Tribunal & 91 Others Ex Parte Trustees Barclay Bank Of Kenya Staff Pension Fund & Barclays Bank Of Kenya [2015] eKLR

Case Number: Judicial Review Case 110 of 2015 Date Delivered: 05 Nov 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Retirement Benefits Appeals Tribunal, Retirement Benefits Authority, Attorney General, Serah Wahu Njoroge & 88 others Ex parte Trustees Barclay Bank of Kenya Staff Pension Fund & Barclays Bank of Kenya

Citation: Republic V Retirement Benefits Appeals Tribunal & 91 Others Ex Parte Trustees Barclay Bank Of Kenya Staff Pension Fund & Barclays Bank Of Kenya [2015] eKLR

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In Re C L (Baby) [2015] eKLR

Case Number: Adoption Cause 9 of 2015 (O.S.) Date Delivered: 05 Nov 2015

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: In re C L Alias S M (Baby)

Citation: In Re C L (Baby) [2015] eKLR

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Simeon Munyeti Andashe V Joel Kangwana Andashe & Another [2015] eKLR

Case Number: Succession Cause 92 of 2011 Date Delivered: 05 Nov 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Simeon Munyeti Andashe v Joel Kangwana Andashe & Iddi Yahuma Andashe

Citation: Simeon Munyeti Andashe V Joel Kangwana Andashe & Another [2015] eKLR

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James Ngethe V Tom Mulongo Sakwa [2015] eKLR

Case Number: Civil Appeal 87 of 2011 Date Delivered: 05 Nov 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: James Ngethe v Tom Mulongo Sakwa

Citation: James Ngethe V Tom Mulongo Sakwa [2015] eKLR

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Joshua Kipchirchir Kurgat V Eastern Produce (K) Ltd [2016] eKLR

Case Number: Civil Appeal 16 of 2013 Date Delivered: 05 Nov 2015

Judge: Cecilia Wathaiya Githua

Court: High Court at Eldoret

Parties: Joshua Kipchirchir Kurgat v Eastern Produce (K) Ltd

Citation: Joshua Kipchirchir Kurgat V Eastern Produce (K) Ltd [2016] eKLR

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Benard Njeru Kamwara V Republic [2015] eKLR

Case Number: Cra 36 of 2012 Date Delivered: 05 Nov 2015

Judge: Said Juma Chitembwe, Martin Muya

Court: High Court at Malindi

Parties: Benard Njeru Kamwara v Republic

Citation: Benard Njeru Kamwara V Republic [2015] eKLR

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Richard Oduol Opole V Commissioner Of Lands & 2 Others [2015] eKLR

Case Number: Civil Appeal 285 of 2007 Date Delivered: 05 Nov 2015

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Kisumu

Parties: Richard Oduol Opole v Commissioner Of Lands, Attorney General & Michael Thomas Kinyany

Citation: Richard Oduol Opole V Commissioner Of Lands & 2 Others [2015] eKLR

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Masinga Ndonga Ndonge V Kualam Limited [2016] eKLR

Case Number: Civil Appeal 29 of 2010 Date Delivered: 04 Nov 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Masinga Ndonga Ndonge v Kualam Limited

Citation: Masinga Ndonga Ndonge V Kualam Limited [2016] eKLR

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Mohamed Ndoge V Mohamed Golo Ndogo & 3 Others [2015] eKLR

Case Number: Civil Appeal 24 of 2015 Date Delivered: 04 Nov 2015

Judge: Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti

Court: Court of Appeal at Malindi

Parties: Mohamed Ndoge v Mohamed Golo Ndogo & 3 others

Citation: Mohamed Ndoge V Mohamed Golo Ndogo & 3 Others [2015] eKLR

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Lucy Muthoni Mucaki V Fridah Nyaguthii [2015] eKLR

Case Number: Civil Appeal 61 of 2013 Date Delivered: 04 Nov 2015

Judge: Florence Nyaguthii Muchemi

Court: High Court at Embu

Parties: Lucy Muthoni Mucaki v Fridah Nyaguthii

Citation: Lucy Muthoni Mucaki V Fridah Nyaguthii [2015] eKLR

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Republic V Margaret Ndunge Mutua [2015] eKLR

Case Number: Criminal Case 80 of 2012 Date Delivered: 04 Nov 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Margaret Ndunge Mutua

Citation: Republic V Margaret Ndunge Mutua [2015] eKLR

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David Wironja V Republic [2015] eKLR

Case Number: Criminal Appeal 108 of 2014 Date Delivered: 04 Nov 2015

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: David Wironja v Republic

Citation: David Wironja V Republic [2015] eKLR

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Patrick Kanga Luseka V Bedrock Holdings Ltd [2015] eKLR

Case Number: Cause 238 of 2013 Date Delivered: 04 Nov 2015

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Patrick Kanga Luseka v Bedrock Holdings Ltd

Citation: Patrick Kanga Luseka V Bedrock Holdings Ltd [2015] eKLR

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Muriungi Kanoru Jeremiah V Stephen Ungu M’mwirabua [2015] eKLR

Case Number: Civil Appeal 29 of 2012 Date Delivered: 04 Nov 2015

Judge: Francis Gikonyo

Court: High Court at Meru

Parties: Muriungi Kanoru Jeremiah v Stephen Ungu M’mwirabua

Citation: Muriungi Kanoru Jeremiah V Stephen Ungu M’mwirabua [2015] eKLR

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Jesse Muthiga Albert V Republic [2015] eKLR

Case Number: Criminal Appeal 43 of 2012 Date Delivered: 04 Nov 2015

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jesse Muthiga Albert v Republic

Citation: Jesse Muthiga Albert V Republic [2015] eKLR

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Rachael Nyambura Muraya V Margaret Waithera Njihia [2015] eKLR

Case Number: ELC 44 of 2012 Date Delivered: 04 Nov 2015

Judge: Munyao Sila

Court: Environment and Land Court at Nakuru

Parties: Rachael Nyambura Muraya v Margaret Waithera Njihia

Citation: Rachael Nyambura Muraya V Margaret Waithera Njihia [2015] eKLR

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Republic V Agriculture Fisheries And Food Authority & 3 Others Ex-Parte West Kenya Sugar Company Limited [2015] eKLR

Case Number: Judicial Review Application 426 of 2014 Date Delivered: 04 Nov 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Agriculture Fisheries and Food Authority,Cabinet Secretary Ministry of Agriculture Livestock and Fisheries,Alfred Busolo Tabu & Rosemary Mkok Ex-Parte West Kenya Sugar Company Limited

Citation: Republic V Agriculture Fisheries And Food Authority & 3 Others Ex-Parte West Kenya Sugar Company Limited [2015] eKLR

Judicial Review Orders should not Abet Actions that Jeopardize Public Interest

Republic v Agriculture Fisheries and Food Authority ex parte The Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & 2 others Ex-parte West Kenya Sugar Company Ltd

Judicial Review Application No 426 of 2014

High Court of Kenya at Nairobi

GV Odunga J

 November 4, 2015

Reported by Phoebe Ida Ayaya

 

Brief facts

Section 3 of the Agriculture, Fisheries and Food Authority Act (AFFA Act) established the AFFA which was the successor to various institutions including the Kenya Sugar Board whose functions included the administration of the Crops Act and the Fisheries Act in accordance with the provisions of the said Act and to carry out such other functions as was assigned to it by the AFFA Act and the Crops Act, 2013. Pursuant to sections 2 and 20 of the Crops Act, 2013, AFFA was the registration and licensing authority of scheduled crops which included sugar cane and the licensing procedures were set out in sections 20(6), (7) and (8) of the Crops Act, 2013. However, whereas the AFFA Act came into force on January 25, 2013 and the Crops Act, 2013 came into force in early, 2014, the Board of AFFA was yet to be established. Similarly, though section 5(1) of the AFFA Act vested the Management of the authority in a Board, the same had not been established. Section 5(1) of AFFA Act provided for the composition of the Board of the Authority and it included eight persons, being farmers’ representatives, elected by the farmers to represent the major crop subsectors in Kenya. By dint of section 5(2) the Cabinet Secretary (CS) was required to make rules for election of the members of the Board to represent the farmers whose rules, the 2nd Respondent had not made. Consequently, the 1st Respondent had been operating without a Board despite the provisions of section 7 of the AFFA Act. In view of non-existence of the Board, the 1st – 4th Respondents could not lawfully exercise the registration and licensing powers under Parts III and IV of the Crops Act, 2013. The Crops Act, 2013 and AFFA Act, 2013 were not being administered in accordance with the laws hence pursuant the provisions of section 20 of the Crops Act, 2013 the Respondents had no powers either severally or jointly to consider and determine the application by 1st Interested Party (Butali) for an operating licence.

 

Issues

i. Whether the management of AAFA had Authority to appoint the members of the Board;

ii. Whether the Devolution process played a role in the implementation and enactment of AFFA;

iii. Whether the court could exercise its inherent jurisdiction in the decision making process of a local authority;

iv. What was the role of the Executive in the Devolution process;

v. Whether Parliament vested the power to grant licenses and renewal of the licenses to Kenya Sugar Board;

vi. Whether the courts in reconciling and keeping in balance, in the interest of fairness, of the public authorities was a usurpation of their powers;

vii. Whether section 20(6), (7) and (8) of the Crops Act was being flouted or not adhered to by delaying to issue a license to Butali;

viii. Whether the philanthropic acts and investments undertaken by Butali for the benefit of the residents and its contribution to the national development amounted to justification that AFFA was not legally constutituted;

ix. Whether or not to grant judicial review reliefs was an exercise of discretion for the court and the circumstances under which a court could grant the same;

x. Whether the Applicant was guilty of gross abuse of judicial process and whether the court invoked its inherent jurisdiction to prevent the abuse of the due judicial process.

 

Constitutional Law– public officers – appointment of public officers- procedure prescribed for the nomination and approval of public officers

Constitutional law – national values and principles of public governance- public participation – threshold required for public participation – facilitation, providing information and education appointment of public officers

Constitutional Law - -separation of powers -principles of separation of powers and checks and balances among state organs vis a vis independence of each state organ, independence offices and state agencies- Constitution of Kenya, 2010 article 132, 135

Constitutional law- Executive –what was the role of the Executive in the devolution process- independence of branches of democratic government in performing functions  - Constitution of Kenya, 2010 article 132, 135

Constitutional Law- fair administrative action- reasons for decision while effecting an administrative action-whether there was a limitation to enjoyment of fair administration - what amounted to a breach of fair administrative action as guaranteed by the Constitution- whether section 20(6), (7) and (8) of the Crops Act was being flouted or not adhered to by delaying to issue a license to Butali- Constitution of Kenya, 2010, article 47

Judicial Review – nature of Judicial Review proceedings  - subject matter of judicial review -principles of natural justice –-remedies in judicial review proceedings-–propriety of judicial review proceedings where there existed express legal stipulations providing procedures for the settlement of a particular dispute –Constitution of Kenya, 2010, article 47

Judicial Review-, mandamus -jurisdiction of a court to issue judicial review orders- whether the court jurisdiction to grant the orders of mandumus to the interested partie was lawfls-Constitution of Kenya, 2010, article 47

Administrative Law  – legitimate expectation –whether a public body’s conduct which was contrary to written law could create a legitimate expectation on members of the public and interested parties to the public bodys mandate

Statutes – interpretation of statutes – subsidiary legislation-test of subsidiary legislations- purpose of subsidiary legislations -interpretation of the jurisdiction of the High Court to interpret whether an Act of Parliament was inconsistent with or otherwise incontravention of the Constitution – Interpretation of Statutes Act section 5;2,53 ; Constituion of Kenya , 2010

Civil Practice and Procedure - abuse of court process – what amounted to abuse of court judicial process- whether the Applicant was guilty of gross abuse of judicial process - when the court invoked its inherent jurisdiction to prevent the abuse of the due judicial process

 

Relevant Statutes

Agriculture, Fisheries and Food Authority Act

Section 3

 The Authority shall, in consultation with the county governments, perform the following functions—

 (a) administer the Crops Act, and the Fisheries Act in accordance with the provisions of these Acts;

 (b) promote best practices in, and regulate, the production, processing, marketing, grading, storage, collection, transportation and warehousing of agricultural and aquatic products excluding livestock livestock products as may be provided for under the Crops Act, and the Fisheries Act;

 (c) collect and collate data, maintain a database on agricultural and aquatic products excluding livestock products, documents and monitor agriculture through registration of players as provided for in the Crops Act and the Fisheries Act;

 (d) be responsible for determining the research priorities in agriculture and aquaculture and to advise generally on research thereof;

 (e) advise the national government and the county governments on agricultural and aquatic levies for purposes of planning, enhancing harmony and equity in the sector;

 (f) carry out such other functions as may be assigned to it by this Act, the Crops Act, the Fisheries Act and any written law while respecting the roles of the two levels of governments.’

Section 5

(1)  The management of the Authority shall vest in a Board which shall consist of—

 a.  chairperson appointed by the President with the approval of the National Assembly;

 b.  the Principal Secretary in the Ministry responsible for agriculture;

 c.  the Principal Secretary in the Ministry responsible for finance;

 d.  the Principal Secretary in the Ministry responsible for matters relating to county governments;

 e.  the Principal Secretary in the Ministry responsible for lands;

 f.  the Principal Secretary in the Ministry responsible for environment;

 g.  the Principal Secretary in the Ministry responsible for co-operatives;

 h.  a representative of the National Land Commission;

 i.  eight persons, being farmers’ representatives, elected by the farmers to represent the major crop subsectors in Kenya;

 j.  the Director General who shall be the secretary to the Board and chief executive officer of the Authority; and

 k.  the Chairperson of the Transition Authority or his representative.

 

Interpretation and General Provisions Act

Section 52

 Where by or under a written law a board, commission, committee or similar body, whether corporate or unincorporate, is established, then, unless a contrary intention appears, a person who is by that written law empowered to appoint any or all of the members thereof may—

 (a)     appoint one or more duly qualified persons to be alternate members, and any one alternate member may attend a meeting when a substantive member is temporarily unable to attend;

 (b)     appoint a duly qualified person to be a temporary member in the place of a substantive member who is precluded by illness, absence from Kenya or other cause from exercising his functions, and, when attending a meeting of the board, commission, committee or similar body, the alternate or temporary member shall be deemed for all purposes to be a member thereof

Section 53

 Where by or under a written law a board, commission, committee or similar body, whether corporate or un-incorporate, is established, then, unless a contrary intention appears, the powers of the board, commission, committee or similar body shall not be affected by—

 (a)     a vacancy in the membership thereof; or

 (b)     a defect afterwards discovered in the appointment or qualification of a person purporting to be a member thereof

 

Crops Act sections 20(6), (7) and (8)

(6)  The licensing authority shall, at least thirty days before granting a licence under this Act, give notice of the proposed grant in the Gazette and in such other manner as the authority may determine.

 (7)  The notice referred to in subsection (6) shall—

 

 a.  specify the name or other particulars of the person or class of persons to whom the licence is to be granted;

 b.  state the purpose for the proposed licence and indicate the date such licence is proposed to be issued to the successful applicant; and

 c.  invite objections to the proposed grant of licence and direct that such objections be lodged with the Authority within fourteen days next following the date of the notice.

 

 (8)     The licensing authority may after considering the objections, if any, made under this section, grant the licence applied for, subject to such terms and conditions as may be specified therein.

Held:

  1. The Authority of AFFA was established under section 3 and 4 of the AFFA Act. Following the repeal of the Sugar Act, AFFA was the licensing authority pursuant to section 20 of the Crops Act. Section 18 of AFFA Act prohibited any person from manufacturing or processing a scheduled crop except under and in accordance with the licences issued under the said Act.
  2. The various members of AFFA represented different constituencies with distinct provisions for their appointments. For the Farmers’ representatives, for example, regulations had to be enacted to guide their appointments to the Authority. It could not reasonably be expected that the appointments of the Farmer’s representatives would happen at the same time as that of the other members. With respect to chairperson of the Authority, his appointment was by the President and was subject to approval by the National Assembly.
  3. The role of AFFA was vital to the smooth implementation of the respective functions of the National Government and County Governments set out in the Fourth Schedule of the Constitution in so far as Agricultural Policy and Agriculture was concerned. Under article 10 of the Constitution sharing and devolution of power and participation of the people constituted some of the values and principles of governance which state officers were bound by in inter alia making or implementing policy decisions, a task entrusted to AFFA. Therefore even without an express provision requiring the consideration of the said values and principles State Officers were under an obligation to as much as possible infuse these principles whenever they made or implemented policies.
  4. The requirement was given statutory underpinning by the very manner in which AFFA was to be constituted. The requirements were the core of our system of governance. One of the objectives and principles of devolved government under article 174 of the Constitution was to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them. The object of incorporation of Farmer’s representatives in AFFA was to ensure that the farmers who were the major stakeholders in the Agriculture industry participated in the process of decision-making in the said industry. To deliberately lock them out in the constitution of the AFFA would amount to a perpetuation of an era long discarded by Kenyans when they retired the former Constitution.
  5. That scheme of things was unacceptable in the current constitutional dispensation and where it was shown that due to inaction on the part of the Executive, the values and principles under article 10 of the Constitution were being brazenly disregarded and the court was entitled to step in and protect the said principle hence such decision ought not to be termed as interference with the mandate donated to AFFA.
  6. The purpose of the court was to ensure that the decision making process was done fairly and justly to all parties and blatant breaches of statutory provisions could not be termed as mere technicalities by the Respondent. That the law must be followed was not a choice and the courts was to ensure that it was so followed and the Respondent’s statements that the court’s role was only supervisory would not be accepted and neither that the court could usurp the functions of the valuation court in determining the matter.
  7. The court had inherent and unlimited jurisdiction and it was its duty to ensure that the law was followed. If a local authority did not fulfill the requirements of law, the court was to see that it did fulfill them and that the procedure laid down in the relevant statute was properly observed. Public Bodies were to be compelled to observe the law: and it was essential that bureaucracy be kept in place.
  8. Public interest played no part in enforcing the law. It was trite law that contravention of the Constitution or a Statute could not be justified on the plea of public interest as public interest was best served by enforcing the Constitution and Statute.
  9. There could never be public interest in breach of the law, and the decision of the Respondent was indefensible on public interest because public interest was to accord to the Constitution and the law as the rule of law was one of the national values of the Constitution under article 10. Moreover, the defence of public interest ought to have been considered in a forum where in accordance with the law, the ex-parte applicant members were granted an opportunity to be heard. There could not be public interest inconsistent with the rule of law.
  10. The AFFA Act was clearly an Act of Parliament that was promulgated with the principle of devolution in mind.  It reflected the constitutional principle of devolution. An Act of Parliament or provisions of an Act of Parliament that was promulgated with the provisions of the Constitution in mind reflected the sovereign will of the people expressed in the spirit of the Constitution. Such will and spirit could not be trashed under the guise of public interest since public interest was presumed to be captured in the Act and the Constitution and any action that was contrary could not be justified under the guise of public interest.
  11. The Executive was under an obligation to ensure that the provisions meant to advance devolution were expeditiously adhered to and the Court could not tolerate situations where the Executive by its omissions took actions meant to perpetuate the old order of things long buried with the former Constitution. The Respondents took the position that since the Court of Appeal compelled them to consider Butali’s application their action was in compliance.
  12. The Act showed that the original license expired after one year but was subject to renewal upon application. Parliament vested the power to grant a license and a renewal of the license to Kenya Sugar Board (KSB). If the application for an order of mandamus was not based on lawful grounds upon which the court could exercise jurisdiction as in the present case or if it unlawfully usurped the jurisdiction vested on the decision making body by Parliament, the court in granting an order of mandamus had acted outside its jurisdiction and the order of mandamus was invalid. KSB had never exercised its statutory discretion to grant a license nor to consider an application for renewal based on original license issued by it.
  13. The court essentially issued the original license and the subsequent renewals sprung from or rested on the court order. The effect of court order being void for lack of jurisdiction was that there had never been a license capable of renewal within the ambit of the Act
  14. The order of mandamus was of a most extensive remedial nature, and was, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing specified which appertained to his or their office and was in the nature of a public duty. Its purpose was to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there was a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there was an alternative legal remedy, yet that mode of redress was less convenient, beneficial and effectual. The order was to command no more than the party against whom the application was legally bound to perform. Where a general duty was imposed, a mandamus did not require it to be done at once.
  15. An order of mandamus compelled the performance of a duty imposed by statute where the person or body on whom the duty was imposed failed or refused to perform the same but if the complaint was that the duty had been wrongfully performed i.e. that the duty had not been performed according to the law, then mandamus was a wrong remedy to apply for because, like an order of prohibition, an order of mandamus could not quash what had already been done.
  16. The High Court had no power to compel the Board to issue a license to Butali. The farthest it could go was to compel the Board to consider the application otherwise the court would itself be guilty of usurpation of power.
  17. It was clear that the Court of Appeal did not direct the Respondents to proceed in a particular manner. What the Court of Appeal did was to compel the Respondents to exercise the discretion placed upon them in accordance with the law. However, as the law had changed, the Respondents, as rightly submitted by them, had to construe the decision of the Court of Appeal in light of the changed legal position.
  18. It had to comply with the prevailing legal position one of which was that Butali’s application had to be considered by the AFFA under the prevailing legal regime. It had to comply with the Crops Act and any violation of the provisions of the said Act could not be excused on the basis that the Respondents complied with the decision of the Court of Appeal. To the contrary, to ignore the provisions of the Act would be a violation of the decision of the Court of Appeal which enjoined the Respondents in considering the Butali’s application for license to do so in accordance with the law and the law contemplated by the Court of Appeal was not the repealed law but the law current at the time of the consideration of the application.
  19. The current devolution provisions in Chapter 11 of the new Constitution were a major shift from the fiscal and administrative decentralisation initiatives that preceded it. It encompassed elements of political, administrative and fiscal devolution. There was a vertical and horizontal dispersal of power that put the exercise of State power in check. Devolution was the core promise of the new Constitution. It reversed the system of control and authority established by the colonial powers and continued by successive Presidents. The large panoply of institutions that played a role in devolution matters evidenced the central place of devolution in the deconstruction-reconstruction of the Kenyan state.
  20. The court’s inclination would not be any different if some other State organ approached it. Thus, if the process of devolution was threatened, whether by Parliamentary or other institutional acts, a basis emerged for remedial action by the Courts in general, and by the Supreme Court in particular. It was relevant to consider the range of responsibilities shouldered by these nascent county governments. The Bill of Rights (Chapter 4 of the Constitution) was one of the most progressive and most modern in the world. It not only contained political and civil rights, but also expanded the canvas of rights to include cultural, social, and economic rights.
  21. Significantly, some of the second-generation rights, such as food, health, environment, and education, fell under the mandate of the County Governments, and would have to be realized at that level. That meant that County Governments required substantial resources, to enable them to deliver on these rights, and fulfill their own constitutional responsibilities. National values and principles were important anchors of interpretive frameworks of the Constitution, under article 259 (a). Devolution was a fundamental principle of the Constitution. It was pivotal to the facilitation of Kenya’s social, economic and political growth, as the historical account clearly indicated. The constitutional duty imposed on the Supreme Court to promote devolution was not in doubt. The basis of developing rich jurisprudence on devolution could not have been more clearly reflected than in the provisions of the Constitution and the Supreme Court Act.
  22. Section 53 of Interpretation of Statutes Act was an exception to the norm and was meant to cure the exigencies occasioned by vacancies in the Board or Authority that ought to be of temporary rather than permanent nature. Where the vacancy was of permanent nature, the Board or Authority could not operate without the statutory numbers in perpetuity. To do so amounted to an illegality.
  23. Where the Executive set out to constitute a Board or Authority other than in the manner decreed by the law, such Board or Authority as constituted was illegal and its actions were a proper candidate for quashing by an order of certiorari. Similarly, where the authority tasked with the constitution of a Board dragged its feet in order to micro-manage the Board by having his cronies in position of authority for an unnecessarily long period, the court would step in to bring to an end such abuse of power.
  24. A power that was abused was to be treated as a power that had not been lawfully exercised. Thus the courts role could not be put in a straight jacket.  The courts task was not to interfere or impede Executive activity or interfere with policy concerns, but to reconcile and keep in balance, in the interest of fairness, the public authorities needed to initiate or respond to change with the legitimate interests or expectation of citizens. The court was there to ensure that the power to make and alter policy was not abused by unfairly frustrating legitimate individual expectations. A public authority was not to be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as had happened in this matter, and in so acting abuse its powers. 
  25. With respect to the obligation to exercise administrative power expeditiously, article 47(1) of the Constitution provided every person had the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. This however, was different from a situation where the full Board or Authority was in the process of full constitution and the process had not come to an end.
  26. The provision applied to situations where there were substantive members but they were either temporarily unable to attend or were precluded by illness, absence from Kenya or other cause from exercising their functions. With due respect none of these situations applied to this case. The persons who are acting as officers of AFFA were not doing so because the substantive holders of these offices were unable to exercise their mandate. The position was simply that the substantive holders had not been appointed. Those in position were acting officials: Acting Interim Head of Sugar Directorate and Director General and the CEO of the Authority.
  27. The office of the Director General of AFFA was vacant at the time of the appointment of the 3rd Respondent. It was clear that the CS had power to appoint the 3rd Respondent and having been so appointed he was empowered to undertake his mandate as a member of the Board subject to his conditions of appointment and the Authority was composed of 9 members. The 1st Respondent was established and operationalized, no contrary intention appeared from Statute barred it from functioning until all the 18 members were constituted since under rule 1(4) in the Second Schedule to AFFA Act, the quorum of the AFFA Board was one half of all the members which was 9 members and that quorum was met by the members so far appointed.
  28. The appointment of the members so far appointed to the Authority could not be faulted as their appointment was supported by the relevant legislation. Rules envisaged under section 5(2) had been made in draft and awaited Parliament’s approval while the place of chairperson awaited vetting. The Respondents were taking actions towards the operationalisation of a fully constituted AFFA and the process ought to be permitted to come to fruition despite having taken an appreciable longer time. The court was to support rather than stultify the due process of the law. It was the need to avoid stultification of the law
  29. The ground for faulting the intended consideration of Butali’s application was that section 20(6), (7) and (8) of the Crops Act was flouted or not adhered to. This provision was problematic no doubt. However, that was an issue that cannot be blamed on the Respondents. It was for Parliament to correct that anomaly. There was no indication as to when the AFFA intended to issue the subject licence to Butali. However, if and when that intention became certain, as readily admitted by the Respondents, a notice under the aforesaid provision would have to be given. It would be premature to find that the said provision had been or was likely to be flouted at this stage.
  30. Kenya was a country governed by the rule of law and any such philanthropic activities and the development of the country was to be anchored in the rule of law and where such activities did not pass the legality test, the court would not turn a blind eye as to do so could amount to sacrificing the rule of law at the altar of philanthropy and benevolence. Whereas, those activities were laudable, they, without more could not justify the court in ignoring express provisions of the law and if the court was to find that the AFFA was not legally constituted, Butali’s intentions however noble, could not be a basis for the court to rubberstamp illegalities. This was a court of law not of morals and if the Applicant’s contentions were well founded in law, the court’s clear duty was to give effect to them.
  31. It was a travesty of justice and a sad day in the realm of justice if the court proceeded to grant the judicial review orders sought by the ex-parte Applicant without taking into consideration a multitude of factors amongst them the far reaching consequences of the orders sought as weighed with the dictates of public interest.
  32. The 1st Respondent was the entity empowered by law to administer the provisions of the Crops Act and those of the Fisheries Act. By operation of the law and as provided for in the transitional provisions it was deemed to be vested with the necessary functional and operational mandate assigned to it by statute. Any argument to the contrary, would create an artificial vacuum not contemplated by the legislative intent.
  33. The effect of the operationalisation of AFFA by dint of section 1 of the AFFA Act and the Crops Act in January 2014 and August 1, 2014 respectively was that the agricultural sector in the Republic of Kenya had no agencies to operationalise its different segments other than those created by the said Acts. The two Acts, abolished all the existing agencies and consolidated their functions into a single apex authority and all Directorates in the agriculture sector in the country existed as delegates of the AFFA, under section 11 of the AFFA Act. Absence, dysfunction, or staying the operation of AFFA, correspondingly meant that the functioning of the several named Directorates was equally stayed.
  34. The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus) were all discretionary. The court had a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court was to take into account the conduct of the party applying, and consider whether it had not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object could also result in the court declining to grant relief.
  35. Another consideration in deciding whether or not to grant relief was the effect of doing so. Other factors that may be relevant included whether the grant of the remedy was unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question, resulted from the order and whether the form of the order required close supervision by the court or be incapable of practical fulfillment.
  36. The court had an ultimate discretion whether to set aside decisions and could decline to do so in the public interest, notwithstanding that it held and declared the decision to have been made unlawfully. Account of demands of good public administration led to a refusal of relief. Similarly, where public bodies were involved the court could allow contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders.
  37. The factors enumerated clearly militated against the grant of the orders in the manner sought in this instant case. The reliefs sought in the nature of quashing order, if granted transcended the interests of the parties in dispute. The grant of the same would lead to monumental consequences not only in the Sugar industry but to the whole of the agricultural sector in the Country and agriculture it could not be gainsaid as the backbone of Kenya’s economy. To grant the orders sought would bring the economy of this great nation to its knees literally. That decision would crush the backbone of Kenya’s economy thus incapacitating the country and rendering it frail, feeble thus transforming the country into an invalid. That could not be the intention of any judiciary worth its name. The judiciary ought not to abet an action whose effect was to place the economy of the Country in a bedridden state for an indefinite
  38. Judicial review orders being discretionary were not guaranteed and hence a court could refuse to grant them even where the requisite grounds existed since the court had to weigh one thing against another and see whether or not the remedy was the most efficacious in the circumstances obtaining and since the discretion of the court was a judicial one, it was to be exercised on the evidence of sound legal principles.
  39. The court was perfectly entitled to withhold the gravity of the order where the public body had done all that it could be expected to do to fulfill its duty. The Respondents were not in control of the appointment of the chairperson of the AFFA and they had reasonably explained the steps they had taken to operationalise the AFFA. Such a decision could violate the sovereignty of the people. It could not be in the public interest to grant the orders sought.
  40. The court was also entitled to consider the conduct of the Applicant. The Applicant was a beneficiary of the very process it was now challenging. From the records, after obtaining the orders of stay it instituted legal proceedings in Kakamega High Court and sought orders to compel the AFFA, a body whose legality, it challenged to halt the operations of Butali. The applicant was approbating and reprobating at the same time. A court of equity could not countenance approbation and reprobation. The main motive for instituting the proceedings was to incapacitate Butali. The court could not countenance any reason why an Applicant could genuinely opt for a remedy whose effect could likewise cripple its operations and the country as a whole unless such action was meant to achieve some collateral considerations rather than a genuine desire to uphold the Constitution and the rule of law.
  41. The Applicant was guilty of gross abuse of judicial process. The term abuse of court process had the same meaning as abuse of judicial process. The employment of judicial process was regarded as an abuse when a party used the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It was a term generally applied to a proceeding, that was wanting in bona fides, was frivolous, vexatious or oppressive. The term abuse of process had an element of malice in it. The concept of abuse of judicial process was imprecise; it implied circumstances and situations of infinite variety and conditions.
  42. Its one feature was the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process were: -                        

i. Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there existed a right to begin the action.

ii. Instituting different actions between the same parties simultaneously in different courts even though on different grounds.

iii. Where two similar processes were used in respect of the exercise of the same right for example, a cross appeal and a Respondent’s notice.

iv. Where there was no iota of law supporting a court process or where it was premised on frivolity or recklessness.

  1. The court always invoked its inherent jurisdiction to prevent the abuse of the due process of the court. The jurisdiction of the court, which was comprised within the term inherent, was that which enabled it to fulfill itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court was that it was part of procedural law, both civil and criminal, and not part of the substantive law; it was exercisable by summary process, without plenary trial, it could be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it could be distinguished from the exercise of judicial discretion; it could be exercised even in circumstances governed by rules of the court.
  2. The inherent jurisdiction of the court enabled it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process. In sum, it could be said that the inherent jurisdiction of the court was virile and viable doctrine and had been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it was just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.
  3. The parties had persistently engaged in an unhelpful litigation geared towards championing protectionist interests in a manner reminiscence of the old imperialist tendencies to the detriment of the people who toiled to ensure their industries thrived. They had turned the courts of the country into the legal drama theatres bordering on circuses to the detriment of the farmers’ interest. The court could not perpetuate this course. The Applicant and Butali were to learn to co-exist in an atmosphere of civilized competition without resorting to Machiavellian tactics with the legal process as the go-between. Parties ought not to hog the judicial process by instituting a multiplicity of suits one after another thus denying other litigants of the opportunity to have their grievances addressed.
  4. The practice was inimical to the overriding objective set out in sections 1A and 1B of the Civil Procedure Act. One of the principle aims of the objective was the need to allot appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. When the same parties engaged in incessant litigation one after another without any end in sight, such conduct did not augur well for the administration of justice and amounted to an abuse of the court process.
  5. The Respondents were put on notice that they were under a constitutional duty to ensure that AFFA was fully constituted and operational. Any unjustified delay in doing so amounted to violation of article 10 of the Constitution and could justify the Court in making such declaration with attendant consequences.

Application dismissed with costs to the respondents and interested parties.

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Circumstances under which the High Court may order for a re-trial

 

Geoffey Mwangi GithinjI v Republic

Criminal Petition No 1 of 2014

High Court at Nakuru

Janet Mulwa, J

November 3, 2015

 

Brief Facts

The applicant sought a re-trial on the contention that he had discovered new important and material evidence that was not available to him during the hearing and the appeal stage. He believed that if the new evidence had been availed to the court, it could have influenced the outcome of the trial court.

 

Issues

  1. What are the pre-requisites for the High Court to make an order for re-trial?
  2. Whether an order for re-trial under article 50 of the Constitution of Kenya, 2010 would lead to the re-opening of the entire prosecution case.

 

Criminal Practice and Procedure-  - Retrial- circumstances in which the high court may order for a retrial- whether an order for re-trial may lead to the re-opening of the entire prosecution case – Constitution of Kenya, 2010; article 50(6)

Constitutional Law – fundamental rights and freedoms – right to fair trial – right to a re-trial – what are the pre-requisites for the High Court to make an order for re-trial – whether an order for a re-trial may lead to the re-opening of the entire prosecution case – Constitution of Kenya, 2010; article 50(6)

 

Article 50(6) of the Kenya Constitution provides that:

 A person who is convicted of a criminal offence may petition     the High Court for a new trial if:-

(a)    The person's appeal, if any has been dismissed by the      highest court to which the person is entitled to appeal, or the person did not appeal with the time allowed for appeal.

(b)  And new and compelling evidence has become available.

 

Held

1.       Article 50(6) (a) of the Constitution, 2010  gave a right to a convict to petition for a new trial after the person’s appeal had been dismissed by the highest court or after time for appealing had lapsed.

2.       For a party to take advantage of article 50 of the Constitution, they had to understand that the right to a re-trial was not an avenue to a further appeal as the High Court had no jurisdiction to consider and determine matters already adjudicated upon by the Court of Appeal as was the case in the instant matter.  It was limited to the court to test whether the said new and compelling evidence could not have been  available to the petitioner at the time of trial and even appeal with exercise of utmost and due diligence. 

3.       The burden of satisfying the conditions of article 50 (6) of the Constitution, 2010 lay on the applicant who had to show that:

(a) There was new evidence which had not have been available to him during the trial, and that evidence could not have been obtained with reasonable diligence for use at the trial or at the time of hearing of the two appeals;

(b) That the evidence was compelling, was admissible and credible and not merely corroborative, cumulative collateral or impeaching;

 (c)  Such evidence did not have to only be favourable to the applicant but it had to be such evidence as was likely to persuade the court to reach an entirely different decision from the decision already reached by the two appellate Courts.

4.       In the instant matter, the petitioner despite reasonable diligence was not able to obtain the new evidence at the time of his trial and hearing of the two appeals.

5.       There was, in view of the new evidence, reasonable doubt as to the conviction and eventual sentence of the petitioner to life imprisonment for the offence of Robbery with Violence Contrary to section 292(2) of the Penal Code.

6.       Had the two reports at Eldoret and Nakuru, and the OB extracts been produced in the trial court and for consideration by the appellate court, a different verdict would have been arrived at by both the trial court and the appellate Courts.

7.       Under Section 134 of the evidence Act, chapter 80 Laws of Kenya, the evidence of police officers could be adopted by the court conducting the re-trial should their attendance in court have proved to be difficult. However, that should not be the case if such officers were still in service or by consent of the defence and the prosecution.

8.       The Petitioner would be at liberty to recall any of the prosecution witnesses in respect of the new evidence for cross examination, and also use the same in his defence.  The mode of retrial was left to the directions of the trial court, the Chief Magistrates Court at Nakuru.

Petition allowed; new trial ordered.

 

Cases

East Africa

  1. DL Lowe & Co Ltd v Banque Indosuez Civil Application No 217 of 1998 – (Explained)
  2. Mwangi, Wilson Thirimba v Director of Public Prosecution Judicial Review Miscellaneous Application No 271 of 2011 – (Mentioned)
  3. Nyakundi, Rodgers Ondiek & 2 others v Republic Criminal Appeal No 135 of 2006 – (Explained)

Statutes

East Africa

  1. Constitution of Kenya, 2010 articles 35(1),(b); 50,(6) – (Interpreted)
  2. Evidence Act (cap 80) section 134 – (Interpreted)
  3. Penal Code (cap 63) section 292(2); 296(2); 322 – (Interpreted)

Advocates

  1. Mr Maragia for the Petitioner
  2. Ms Rugut for the Director of Public Prosecution 

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Judge: Onguto Joseph Louis Omondi

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Parties: Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board

Citation: Nicholas Randa Owano Ombija V Judges And Magistrates Vetting Board [2015] eKLR

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