SCOPE AND PRINCIPLES APPLICABLE UNDER RULE 5 (2) OF THE COURT OF APPEAL RULES

Reported by Phoebe Ayaya and Derrick Nzioka

Issues

1. Whether the scope of Rule 5 (2) of the Court of Appeal Rules was exercisable in the present suit.
2. Whether on application of the principles under Rule 5 (2) of the Court of Appeal Rules, the Court had the jurisdiction to exercise its discretion

Civil Procedure and Practice - jurisdiction of the Court of Appeal – discretion of the court in exercise of its jurisdiction under Rule 5 (2) of the Court of Appeal rules – scope of application of the rule – principles on which the Court acts in exercising its jurisdiction under the rule - Rule 5 (2) of the Court of Appeal rules. Read More...

Held:

1. From precedent on Rule 5(2)(b) of the Court of Appeal rules, the common vein running through the cases and the jurisprudence underlying the decisions could be summarized as follows:
2. In dealing with Rule 5(2) (b) the court exercised original and discretionary jurisdiction and that exercise did not constitute an appeal from the trial judge's discretion to the court.

3. The discretion of this court under the rule to grant a stay or injunction was wide and unfettered provided it was just to do so.

4. The court became seized of the matter only after the notice of appeal had been filed under Rule 75.

5. In considering whether an appeal would be rendered nugatory the court had to bear in mind that each case depended on its own facts and peculiar circumstances.

6. An applicant had to satisfy the court on both of the twin principles.

7. On whether the appeal was arguable, it was sufficient if a single bona fide arguable ground of appeal was raised.

8. An arguable appeal was not one which had to necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.

9. In considering an application brought under the rule the court must have not made definitive or final findings of either fact or law at that stage as doing so could embarrass the ultimate hearing of the main appeal.

10. The term “nugatory” had to be given its full meaning. It did not only mean worthless, futile or invalid. It also meant trifling.

11. Whether or not an appeal would be rendered nugatory depended on whether or not what was sought to be stayed if allowed to happen was reversible; or if it was not reversible whether damages would reasonably compensate the party aggrieved.

12. Where it was alleged by the applicant that an appeal would be rendered nugatory on account of the respondent's alleged impecunity, the onus shifted to the latter to rebut by evidence in the claim.

Application allowed.

Case History
(Being an appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Hon. Justice J. W. Mwera) dated 6th May, 2010 in H.C. MISC. APPL. NO. 585 OF 2008)

Issue

Calculation of Advocate/client’s costs for contested matters under the Law of Succession Act in Probate and Administration cases

Taxation of costs– advocate and client costs – Calculation of Advocate/client’s costs for contested matters under the Law of Succession Act- Probate and Administration cases- Advocates Remuneration Order Schedule X, clause 1(a) of Part (A) -Party & Party Costs, Schedule X clause (a) of Part (B) Advocates & Clients Costs,

“SCHEDULE X
PROBATE AND ADMINISTRATION
A-PARTY AND PARTY COSTS

1.  INSTRUCTION FEES
a)  To apply for grant of probate of written Will, or proof of oral Will, or letters of administration with or without Will annexed, the proceedings not being contested: where the gross capital value of property comprised in the grant –

Exceeds                     but does not exceed                  
Kshs                           Kshs.                                     Kshs.
   -                                10,000                                    3,000
10,000                       50,000                                    4,500
50,000                       200,000                                 6,000
200,000                    1,000,000           1.5 per cent of the value
1,000,000                         -                   1.5 per cent of the value on the first
Sh.1,000,000 thereof and three quarters per cent over Sh. 1,000,000”
…….…..
 

B- ADVOCATE AND CLIENT COSTS
In contested maters under the Law of Succession Act, the fees as between advocate and client shall be –
a)  the fees prescribed in A above increased by one-half; or
b)  the fees ordered by the court, increased by one-half; or
c)  the fees agreed by the parties under paragraph 57 of this order increased by one-half as the case may be, such increase to include all proper attendances on the client and all necessary correspondence.”

Held;
1.  The advocate/client’s costs for contested matters under the Law of Succession Act, is calculated under Schedule X, clause 1(a) of Part (A) -Party & Party Costs of the Advocates Remuneration Order, as read with Schedule X clause (a) of Part (B) Advocates & Clients Costs, of the Advocates Remuneration Order. The costs were dependent on the gross capital value of property comprised in the grant calculated in accordance with the scale. 

Appeal allowed

COURT OF APPEAL SETS THE PROCEDURE FOR CERTIFICATION OF A MATTER TO BE HEARD BY THE SUPREME COURT OF KENYA

Reported by Sylvie Nyamunga

Issues

i. Procedure for making an application for a certificate that a matter or matters of general public importance is or are involved in the intended appeal to the Supreme Court against the judgment and orders of the Court of Appeal

ii. Constitutional test to be applied when considering certification of a matter

iii. What constitutes a matter of general public importance

Criminal Practice and Procedure - procedure for application for certification from the Court of Appeal that a matter can be heard in the Supreme Court-whether a matter is of general public importance-what constitutes a matter of general public importance- constitutional test to be applied in determination- Article 163(4) (b) of the Constitution of Kenya, 2010- Section 16(3) of the Supreme Court Act 2011

Held:

1.The Supreme Court Rules, 2011 are silent on whether or not an application for certification should first be made in the Court of Appeal. Currently, there are no rules of procedure regulating the manner in which an application for certification should be filed and handled, the reason being that until the creation of the Supreme Court by the Constitution of Kenya, 2010 the Court of Appeal was hierarchically the highest judicial organ. 

2. Until rules are made to specifically prescribe a different procedure for making an application for certification to the Court of Appeal, such an application should be made by a notice of motion supported by one or more affidavits in accordance with the practice of the Court.

3. The Constitutional test is that a matter of general public importance must be involved in the case. When considering this test, care should be taken to ensure that the Court does not apply any other test which is not expressly provided.  The test to be applied is not universal.  It may vary from jurisdiction to jurisdiction. 

4. Article 163(4) (b) of the Constitution of Kenya, 2010 does not refer to questions of law or questions of law of great public importance or to point of law of exceptional public importance or to a matter of great general public importance.  It merely refers to a matter.  The Article does not also distinguish between criminal and civil matters.  Although the expression ‘a matter of general public importance’ used in the Article is ex facie susceptible of liberal interpretation as opposed to restrictive interpretation, the true meaning of the phrase will ultimately depend on the construction that the Supreme Court will give to the phraseology.

5. The requirement for certification by both the Court of Appeal and the Supreme Court is a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court.

6. The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance.  Where the matter involves a point of law, the applicant must demonstrate that there is uncertainty as to the point of law and that it is for the common good that such law should be clarified so as to enable the courts to administer that law, not only in the case at hand, but also in such cases in future .  It is not enough to show that a difficult question of law arose.  It must be an important question of law.

7. The matter sought to be certified must arise from determination of the Court of Appeal in the case and not out of the argument or discussions at the hearing. There should exist between the parties a matter in actual controversy for consideration of the Supreme Court as a living issue and not a hypothetical case. 

8. Section 16(3) of the Supreme Court Act 2011 lays down a principle of law, in essence, that the Supreme Court should not entertain interlocutory appeals which have no final effect on the substantive dispute between the parties except in exceptional cases.  That principle also binds this Court when considering applications for certification. Thus, until such time that the Supreme Court determines that it has no jurisdiction to entertain interlocutory appeals, if at all; the Court of Appeal should grant a certificate to appeal to the Supreme Court from interlocutory rulings of the Court of Appeal, only in exceptional cases.

The court declined to grant a certificate and dismissed the application with costs to the respondent.

Kenyan Courts have Jurisdiction to try Piracy Offences.

Reported by C W Lupao

Issues

i. Whether Kenyan courts have jurisdiction to try suspects in respect of Piracy Jure Gentium committed outside the Kenyan Territorial Waters i.e., in the High Seas.

ii.Is the law of piracy jure gentium a crime recognized under the International Law?

iii. Which court in Kenya has jurisdiction to try the offence of piracy, the High Court or the Subordinate Courts?

iv. Whether there is a "legislative" misnomer regarding the provisions of Section 69 (1) of the Penal Code as read with Section 5;

v. Does the repeal of a section of an Act of parliament have an effect on the prosecution of a criminal case which occurred before the repeal of the section?

Jurisdiction-  concept of universal jurisdiction -jurisdiction of the states to try extra -territorial offences that threaten peace-nature of the offences to be tried under universal jurisdiction-nature of courts with jurisdiction to try piracy offences in Kenya

Statutes - interpretation of statutes-whether a repeal of a section of an Act of parliament has any effect on the prosecution of a criminal case which occurred before the repeal of the section

Statutory Law -international statutes- Kenya being a signatory to an international statute i.e. United Nations Law of the Sea Convention [UNCLOS] of 1982-applicability of the statute to the Kenyan Jurisdiction-Constitution of Kenya, 2010, Article 2(5) and (6). Read More...

Words and phrases:

Piracy jure gentium - The phrase "piracy jure gentium" is a Latin phrase which means piracy by the law of nations or piracy as known in international law.

A pirate is defined as one who, without legal authority from any State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand.

High Seas- means "all parts of the sea that are not included in territorial sea or internal waters of a State.

The Concept of Universal Jurisdiction- The principle of universal jurisdiction holds that certain crimes are of such a serious nature that any state is entitled, or even required, to apprehend and prosecute alleged offenders regardless of the nationality of the offenders or victims, or the location where the offence took place.

Held:

1. Though the suspects had been charged under section 69 of the Penal Code which was subsequently repealed by the Merchant Shipping Act, 2009, the repeal of section 69 of the Penal Code did not affect the continued prosecution of the case against the suspects. By dint of Section 23 (3) of the Interpretation and General Priorities Act, a repeal of a law unless a contrary intention is expressly provided does not affect an ongoing prosecution

2. The repealed section 69 fell within Chapter VIII of the Penal Code which dealt with "offences affecting relations with foreign states and external tranquility" which provided in very clear terms and gave jurisdiction to Kenyan courts to deal with crimes of piracy jure gentium which were committed in the "territorial waters or upon the high seas".

3. Section 5 of the Penal Code provided for local jurisdiction while Section 69 (1) as read with Section 69 (3) of the Code donated as at that effective time jurisdiction to try piracy Jure Gentium on the High Seas. The High Court misconstrued the territorial application of the law as provided for under Section 5 of the Penal Code, which defined the geographical jurisdiction of the courts. There was therefore no basis for the court's finding that Section 5 superseded Section 69. That section should have been read together with Section 69 which extended the jurisdiction of offences partly committed in Kenya and beyond the Kenyan courts. Thus, the Kenyan courts have jurisdiction to try such cases.

4. Even if the High Court found that there was legislative misnomer, that could easily have been resolved by falling back on the provisions of the United Nations Law of the Sea Convention [UNCLOS] of 1982, to which Kenya is signatory and by dint of Article 2 (5) of the Constitution, UNCLOS is part of the Kenyan laws. UNCLOS provides for offences of piracy and gives any state jurisdiction to try them. Any crime committed outside the jurisdiction of any state is governed by international law. So the impression the High Court created that by repealing Section 69 of the Penal Code Parliament abolished the international crime of piracy in Kenya was clearly wrong.

5. Even if the repeal of Section 69 of the Penal Code abolished the international crime of piracy, that could not have availed the suspects in this matter in view of Section 23(3) of the Interpretation and General Provisions Act. The relevant portions of the latter in essence provides that the repeal of a statutory provision does not affect any existing legal proceeding under it and that the same shall proceed "as if the repealing written law had not been made."

6. The customary international law gives universal jurisdiction to all countries to deal with crimes committed outside the territorial jurisdiction. Offences that threaten world peace are also threats to humanity and the courts have ruled that such crimes are punishable in martial courts. Piracy jure gentium has for centuries been considered a universal jurisdiction crime based also on international agreements that authorizes all nations to capture and punish a pirate.

7. Based on the rationale that the international community should ensure there is no safe haven for those responsible for the most serious crimes, the concept of universal jurisdiction therefore allows all international states to bring the perpetrators to justice. This authority derives from the principle that every state has an interest in bringing to justice the perpetrators of international crimes. All states are therefore obliged to act as guardians of international law and on behalf of the international community to prosecute international crimes regardless of the place of commission of the crime, or the nationality of the author or of the victim.

8. The offence of piracy jure gentium is an offence against international customary law; it is part of the laws of nations. The offence of piracy jure gentium is codified through treaties and also domesticated through the penal code and presently the Merchant Shipping Act.

9. For the piracy offences committed after the 27th August 2010 when the Constitution of Kenya, 2010 ,was promulgated, Article 2(5) and (6) which have respectively incorporated the general rules of international law and the treaties Kenya has and continues to ratify into Kenyan law, Kenyan courts, have added constitutional authority to prosecute piracy and other international crimes.

10. It is the Kenyan subordinate courts presided over by a Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate or a Senior Resident Magistrate, which have jurisdiction to try the offence of piracy.

11. The High Court, in making its decision based on some seminal materials that had been canvassed at a seminar outside Kenya. These were, as is normal with seminars and conferences, proposals that were canvassed, but they remained no more than that. They never crystallized into any legal authorities that could be relied upon to make a judicial decision of the magnitude that was made by the High Court.

12. (Obiter Per Koome, JA): ''This judgment also failed to recognize that Kenyan courts were beginning to develop jurisprudence in this area of law along the internationally recognized principles which were sadly set back by this judgment under review. For example, in the case of United States District Court For Eastern District of Virginia Norfolk Division, USA v. Mohamed Madin Hassan & 4 Others, a court in the United States made reference to the application of UNCLOSS as part of customary international law and also made reference to a Kenyan decision as thus:

13. "Moreover, the courts of other countries have held UNCLOSS to be applicable as customary international law in concrete cases, as reflected in recent judicial decisions from Kenya, the country currently handling many modern piracy cases. Courts in Kenya have relied on the piracy provisions in UNCLOSS to interpret their own domestic criminal code proscribing general piracy."

14. This decision as rightly observed even by the US Federal Court in the case of USA v. Hassan (supra) represents the correct interpretation of the law.