The Senate had a role to play in the processing of the Division of Revenue Bill

Speaker of the Senate & another v Attorney General & 3 others

Advisory Opinion Reference No 2 of 2013

Supreme Court at Nairobi

W M Mutunga, CJ; K H Rawal, DCJ; P K Tunoi, M K Ibrahim, J B Ojwang,

S C Wanjala & N S Ndungu, SCJJ

November 1, 2013

Reported by Njeri Githang’a & Victor Andande

Brief facts

The Reference herein was occasioned by the act of the Speaker of one parliamentary Chamber, the National Assembly, reversing his action of referring a legislative matter to the other Chamber, the Senate, and having the National Assembly alone conclude deliberations on a Bill, which was then transmitted to the President for assent and which thereafter became enacted law. This was the Division of Revenue Bill, providing for a sharing in finances between the national and the county governments. Whereas the National Assembly’s stand was that the Bill was only concerned with the financing of county government by the national government, and therefore was the exclusive legislative responsibility of the National Assembly, the applicants maintained that as the county governments had a major interest in the monies in question, service of that interest, by the Constitution, involved the Senate’s legislative contribution; and that no valid law could be enacted without such legislative contribution. Being anxious about the due functioning of the several institutions established under the Constitution of Kenya, 2010 and in particular, about the Senatorial function, as a safeguard for the principle of devolved government, the applicants moved the Supreme Court for an advisory opinion.

Issues

1. What was the scope of the Supreme Court’s jurisdiction to render an advisory opinion?
2. Whether the Supreme Court had jurisdiction to render an Advisory Opinion regarding the constitutional process attending the enactment of the Division of Revenue Act, 2013 (Act No. 31 of 2013).
3. What was the Senate’s role in the legislative process for Bills concerning county government?
4. When and how did a question for the consideration of the two Speakers in the two houses arise under Article 110(3) of the Constitution?
5. What was the role of the National Assembly vis-à-vis the Senate in the origination, consideration and enactment of the division and allocation of revenue bills?
6. Whether the Supreme Court had jurisdiction to determine a dispute arising between the Senate and the National Assembly.
7. Whether the Supreme Court could interfere with the Parliament’s legislative authority, and if so in what circumstances.

Jurisdiction – Supreme Court – advisory opinion – jurisdiction of the court to give an advisory opinion – where the applicants moved the Supreme Court for an advisory opinion regarding the role of the Senate in legislative process leading to the enactment of the Division and Allocation of Revenue Act – claim by the interested parties that the relevant issues properly fell within the domain of the litigated cause rather than that of the advisory opinion – whether in the circumstances of the case the Supreme Court had jurisdiction to render an advisory opinion – Constitution of Kenya, 2010, article 163(6); Supreme Court Act, Section 3(d) .

Constitutional law – devolution – the role of the Senate in legislation – where the concerned division of revenue – whether the Senate had a role to play in the enactment of the Division and Allocation of Revenue Act – Constitution of Kenya, 2010, articles 110(3) & 112

Held

1. The Division of Revenue Bill (which had since become an Act) made provision for the division of revenue that was nationally collected, and for its sharing between the two levels of government. It certainly had a significant impact on the county governments. In the circumstances, therefore, the Reference in the instant case properly fell under article 163(6) of the Constitution, as a matter that concerned county governments. The Supreme Court thus, had to exercise its discretion in favour of rendering an Advisory Opinion.
2. A matter qualified to be regarded as one of county government only where: that was the case in the terms of the Constitution; it was the case in the terms of statute law; it was 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 would conscientiously consider the relationship between the two units as this emerged from the governance operation in question, or from any pertinent scenarios of fact.
3. An Opinion from the Supreme Court would not only resolve procedural uncertainties in the deliberation upon and passing of Bills, but would also chart out the proper constitutional path, and establish lines of legality. This was not a proper matter for litigation in the High Court. The public interest consideration was a relevant factor as to the issue whether the Supreme Court would, in the circumstances of the case, proceed to give an Advisory Opinion.
4. The separation of powers concept had to take into account the context, design and purpose of the Constitution; the values and principles enshrined in the Constitution; the vision and ideals reflected in the Constitution.
5. The Supreme Court had the responsibility for casting the devolution concept, and its instruments in the shape of county government, in the legitimate course intended by the people.  It devolved upon the Court to signal directions of compliance by state organs, with the principles, values and prescriptions of the Constitution; and as regards the functional machinery of governance which expressed those values, such as devolution and its scheme of financing, the Court had the legitimate charge of showing the proper course.
6. The context and terms of the Constitution of Kenya 2010, vested in the Supreme Court the mandate when called upon to consider and pronounce itself upon the legality and propriety of all constitutional processes and functions of State organs. The effect was that the Supreme Court’s jurisdiction included resolving any question touching on the mode of discharge of the legislative mandate.
7. It would be illogical to contend that as the Standing Orders were recognized by the Constitution, the Supreme Court, which had the mandate to authoritatively interpret the Constitution itself, was precluded from considering their constitutionality merely because the Standing Orders are an element in the internal procedures of Parliament. As a legal and constitutional principle, Courts had the competence to pronounce on the compliance of a legislative body, with the processes prescribed for the passing of legislation.
8. The scope for the Supreme Court’s intervention in the course of a running legislative process had to be left to the discretion of the Court, exercised on the basis of the circumstances of each case. The relevant considerations could be factors such as: the likelihood of the resulting statute being valid or invalid; the harm that could be occasioned by an invalid statute; the prospects of securing remedy, where invalidity was the outcome; the risk that would attend a possible violation of the Constitution.
9. Kenya’s legislative bodies had an obligation to discharge their mandate in accordance with the terms of the Constitution, and they could not plead any internal rule or indeed, any statutory scheme, as a reprieve from that obligation. The Supreme Court recognized the fact that the Constitution vested the legislative authority of the Republic in Parliament. Such authority was derived from the people. This position was embodied in Article 94(1) thereof
10.  Article 93(2) provided that the national Assembly and the Senate were to perform their respective functions in accordance with the Constitution. It was therefore clear that while the legislative authority lay with Parliament, the same was to be exercised subject to the dictates of the Constitution.
11. While Parliament was within its general legislative mandate to establish procedures of how it conducted its business, it had always to abide by the prescriptions of the Constitution. It could not operate besides or outside the four corners of the Constitution. The Supreme Court would not question each and every procedural infraction that would occur in either of the Houses of Parliament. The Court could not supervise the workings of Parliament. The institutional comity between the three arms of government could not be endangered by the unwarranted intrusions into the workings of one arm by another.
12. Where a question arose as to the interpretation of the Constitution, the Supreme Court, being the apex judicial organ in the land, could not invoke institutional comity to avoid its constitutional duty. Parliament had to operate under the Constitution which was the supreme law of the land.
13. Where the Constitution decreed a specific procedure to be followed in the enactment of legislation, both Houses of Parliament were bound to follow that procedure. If Parliament violated the procedural requirements of the supreme law of the land, it was for the courts of law, not least the Supreme Court to assert the authority and supremacy of the Constitution.
14. The Supreme Court would be averse to questioning Parliamentary procedures that were formulated by the Houses to regulate their internal workings as long as the same did not breach the Constitution. Where however, as in the instant case, one of the Houses was alleging that the other had violated the Constitution, and moved the Court to make a determination by way of an Advisory Opinion, it would be remiss of the Court to look the other way. Understood in this context therefore, by rendering the Opinion, the Court would not be violating the doctrine of separation of powers. It would simply be performing its solemn duty under the Constitution and the Supreme Court Act.
15.  Whereas all State organs, for instance, the two Chambers of Parliament, were under obligation to discharge their mandates as described or signalled in the Constitution, there came a time when the prosecution of such mandates raised conflicts touching on the integrity of the Constitution itself. All reading of the Constitution indicated that the ultimate judge of right and wrong in such cases, short was only the Courts and, ultimately, the Supreme Court. Therefore, the Supreme Court had the jurisdiction to hear and determine the dispute which arose between the two Chambers of Parliament.
16. A Bill concerning county government could be categorized as special or ordinary. Article 110(3) provided that prior to a consideration of the Bill, the Speakers of the National Assembly and Senate had to jointly resolve any question as to whether it was a Bill concerning counties and, if so, whether it was a special or an ordinary Bill.
17. The Division of Revenue Bill was a Bill bearing provisions that dealt with the equitable sharing of revenue which would certainly affect the functioning of county government. The Bill dealt with equitable allocation of funds to the counties, and so any improper design in its scheme would certainly occasion inability on the part of the county-units to exercise their powers and to discharge their functions as contemplated under the Constitution.
18. The Senate had a clear role to play, in the processing of the Division of Revenue Bill. The Speaker of the National Assembly should have complied with the terms of Article 112 of the Constitution; and the National Assembly should have considered the deliberations of the Senate on record and, failing concurrence on legislative choices, the matter should have been brought before a mediation committee, in accordance with the terms of Article 113 of the Constitution.
19. The internal parliamentary mechanism for consultation, co-ordination and harmony, though a constitutional prescription and a device of the democratic dispensation, had to be engaged in the first place by individual persons, in the shape of the two Speakers who, however, in the instant case, had disempowered the institutional design, by simply showing a disinclination to reach out to each other.
20. The Senate’s initial filtering role fell well within the design and purpose of the Constitution, and expressed the sovereign intent of the people:  this could not be taken away by either Chamber or either Speaker thereof.
21. The dominant perception at the time of constitution-making was that the decentralization of powers would not only give greater access to the social goods previously regulated centrally, but would also open up the scope for political self-fulfilment, through an enlarged scheme of actual participation in governance mechanisms by the people thus giving more fulfilment to the concept of democracy.
22. Devolution as a required constitutional practice ran in parallel with an attendant set of values, declared in Article 10 of the Constitution:  the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and the protection of the marginalized.
23. It was obvious that the Speaker of the National Assembly by abandoning all engagement or consultation with the Speaker of the Senate, and proceeding as he did in the matter before the Supreme Court had acted contrary to the Constitution and its fundamental principles regarding the harmonious motion of State institutions.
24. Neither Speaker could, to the exclusion of the other, determine the nature of a Bill for that would inevitably result in usurpations of jurisdiction, to the prejudice of the constitutional principle of the harmonious interplay of State institutions.
25. It was evident that the Senate, though entrusted with a less expansive legislative role than the National Assembly, stood as the Constitution’s safeguard for the principle of devolved government. This purpose would be negated if the Senate were not to participate in the enactment of legislation pertaining to the devolved units, the counties.
26. From a broad purposive view of the Constitution, the intent of the drafters as regards the exercise of legislative powers was that any disagreement as to the nature of a Bill had to be harmoniously settled through mediation.  An obligation was thus placed on the two Speakers, where they could not agree between themselves, to engage the mediation mechanism.
27. In the instant case, only the Court’s guidance on critical constitutional questions was sought; but the Court was not asked to make a conventional judicial order annulling the Division of Revenue Act, 2013.  Thus, the applicants options in the rectification of a problematic statute, such, for instance, as regular amendment procedures, remained uncompromised.
28. The object of efficacy in law-making, as a constitutional task, stood in favour of sustaining the legislation already achieved. The Court’s inclination in this respect, however, would not compromise its options in the future, in any matter akin to the instant one.
29. Devolution fell within the ambit of important constitutional and other legal matters, by the meaning of Section 3(d) of the Supreme Court Act. That was why Advisory Opinions under Article 163 (6) was one of the two matters in which the Supreme Court was entrusted with exclusive jurisdiction. The other matter was the determination of disputes relating to election to the office of the President (Article 163 (3) (a)).
30. The creation of the Supreme Court as the apex Court in the Constitution of Kenya 2010 was informed by a desire and need to have a fresh Court oversee the constitutional birth of a new order. In executing its mandate the Court had, therefore, to be appreciative of its unique constitutional mission as a substantive rather than a decorative device, deliberately created to oversee Kenya’s successful constitutional and institutional transition.
31. The devolution provisions in Chapter 11 of the 2010 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. Importantly, the Constitution had created a Senate, an institution that enjoyed direct legitimacy and a popular mandate, commanding it to be the protector of devolution.
32. It would be completely out of order for the Speaker of the National Assembly to interpret the powers of the National Assembly by only looking at Article 95 of the Constitution, without paying regard to Articles 96 and 110 of the Constitution which unequivocally incorporated the role of the Senate and of its Speaker.
33. The constitutional commitment to protect, and its signal of the search for a more perfect devolution, implied that, in interpreting the devolution provisions, where contestations regarding power and resources arose, the Supreme Court had to take a generous approach. The competing claims were not supposed to descend into institutional anarchy or dysfunctionality as that would compromise the developmental aspirations invested by the people, in devolution. The Supreme Court would not hesitate to pronounce itself with final authority, by laying down the proper juridical structures consolidating the devolution-concept where they are required, and stabilizing our Constitution, as was expected.
34. The fact that the constitutional clauses on devolution were founded on political compromise by the elite was not sufficient reason to compromise the popular desire for a devolved system of government that empowered communities, and unlocked the developmental potential of the country.
35. Article 96 of the Constitution represented the purpose of the Senate as to protect devolution. Therefore, when there was even a scintilla of a threat to devolution, and the Senate approached the Court to exercise its advisory jurisdiction under Article 163 (6) of the Constitution, the Court had a duty to ward off the threat. 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.
36. The politics of formulae yielded the minimum allocation-provision of not less than fifteen per cent, a plain indication that more was anticipated. If there was no expectation for more, the framers would have prescribed not a floor, but an upper ceiling or, in the alternative, a specific and static percentage. However, the justice of formulae, which was the arena of the Supreme Court, moved the Court’s interpretative indicator in the direction of the Senate’s application, which stood for more resources to the counties, in the future.
37. The Division of Revenue Bill was neither classified as an ordinary Bill nor a special Bill, in clear contrast to the County Allocation of Revenue Bill. Article 218 distinguished the purposes of the two Bills. Article 218(1)(a) provided that the Division of Revenue Bill was to divide revenue raised by national government amongst the two levels of government, in accordance with the Constitution.  On the other hand, the County Revenue Allocation Bill was to divide among the counties the revenue allocated to the county level of government, on a basis determined by Senate resolution in force under Article 217.

Dissenting Per N.S Ndungu, SCJ

1. The instant case was not one where the Supreme Court’s advisory jurisdiction was exercisable. The drafters of the Constitution no doubt knowingly used the term may under article 163(6), implying that the exercise of this jurisdiction was discretionary. This discretion was to be exercised in a manner that ascribed to the institutional architecture of the Constitution while protecting the authority of the Supreme Court and, effectively utilizing the principle of judicial restraint whenever necessary. Restraint covered other activities of judges such as applying strictly the rules of standing, declining to consider a case until the applicant had exhausted other remedies, and avoidance of determinations on political questions.
2. The exercise of powers by the Legislature and the Executive was subject to judicial restraint. However, the court’s exercise of such power could only be subject to the self-imposed discipline of judicial restraint. (Asif Hameed & Others v State of Jammu & Kashmir & Others (1989) AIR 1899, 1989 SCR (3) 19).
3. The Legislature was supreme in its own sphere under the Constitution and it was solely upon the Legislature to determine when and in respect of what matter the laws were to be enacted.  Accordingly, to render an advisory opinion in this reference would inevitably interfere with the principle of separation of powers between the Judicial and the Legislative arms of government. The Judiciary was only obliged to consider the constitutionality of the substance of the impugned statute but not the legislative process. The instant matter only raised issues of process of arriving at, and not the constitutionality of the content of the subject statute - the Division of Revenue Bill.
4. The court’s role was to check that the legislature did not overstep its mandate and legislate on matters it was not mandated to legislate on, but the court was not supposed to delve into the legislative process to find out whether the Parliamentary proceedings were carried on as required. This was for the separation of powers between the legislative and judicial arm of government to be preserved.
5. The Constitution did not oust the doctrine of separation of powers between the three arms of government. Just as Parliament was expected to operate within its constitutional powers as an arm of government so was the Judiciary. The system of checks and balances that prevented autocracy, restrained institutional excesses and prevented abuse of power applied equally to the Executive, the Legislature and the Judiciary. No one arm of government was infallible and all were equally vulnerable to the dangers of acting ultra vires the Constitution.
6. The Court’s jurisdiction to render an advisory opinion in a reference of this nature that directly questioned internal workings of the legislature was not to be exercised as it would encroach on separation of powers between the legislative and judicial arm of government. Even if the courts were to intervene, they had to satisfy themselves that formal and informal dispute resolution mechanisms had first been fully exhausted.
7. This was a dispute requiring an interpretation of the Constitution, and which had been disguised as a matter for an advisory opinion, in order to come before the Supreme Court.  The Applicants requested for an advisory opinion, on a matter which was clearly adversarial and which should have followed a number of political or judicial processes before reaching the apex court.  It left no room for any appeal or review and placed the Court in the difficult and inappropriate position of being arbiter in a dispute in the first and not last instance. This was a clearly a situation in which the Supreme Court had to exercise its discretion not to give an advisory opinion.
8. Judicial resolution was not appropriate where it was clear in a matter such as in the instant case that the political question doctrine would apply. This doctrine was well established by, and has been in practice since, the decision of Marbury v. Madison 5 U.S. 137 (1803), in which the US Supreme Court deemed a question of law inappropriate for judicial review because it could be resolved by the political and not judicial process. Under this doctrine, the interpretation of the Constitution was left to the politically accountable branches of government.
9. The interpretation of the Constitution was not an exclusive duty and preserve of the Courts but applied to all State organs including Parliament. What was exclusive to the Courts was interpretation of the Constitution within a legal dispute brought in the normal manner before a superior court and which was afforded the necessary processes of appeals, right up to the Supreme Court. Disputes, however, did exist in other forms that required not judicial intervention and determination, but rather resolution of a political nature.
10. The division of revenue was a process that concerned the application of national resources to development and indeed how the resources would be allocated. The nature of the question was one of perennial debate and argumentative character. It required a combination of several political processes of demands, negotiations, debates, stand-offs, retreats and finally resolution. These disputes would also be multi-layered; inter-party, intra-party, inter-regional and even as in the instant case inter-chamber or internal institutional disagreements. 
11. It was the National Assembly that determined the appropriation and allocation of revenue at the national level and between the levels of government; conversely it was the Senate that allocated revenue among counties. There was certainly no doubt that the drafters of the Constitution intended on drawing a clear distinction between the functions of the National Assembly and the functions of the Senate with regard to division of revenue between the national government and the county government.
12. Only Bills that concerned county government would be considered by Senate. All other Bills were to be originated in and considered by the National Assembly, exclusively.
13. The devolved system in Kenya was based on a unitary system of Government that decentralizes key functions and services to the county unit. The Kenyan State model was not federal in nature and did not envisage the workings of a county as a politically and financially independent state.
14. For any Bill to be deemed as one concerning county government it had to specifically affect the functions and powers of the county governments as set out in the Fourth Schedule of the Constitution. In addition, the provisions of the Bill had to be limited to the ambit of Part 2 of that Schedule which provided for the functions and powers of county governments.  In the event that such a Bill went beyond the scope of Part 2 of that Schedule it could not in any way be deemed to be a Bill concerning county government. 
15. A Bill that concerned the funding of functions outside of those specified to the Counties under the Fourth Schedule, such as the Division of Revenue Bill would fail the test of being considered as a Bill relating to county government. To Allowing the Senate to participate in the enactment of a Bill that went beyond the parameters of what counties could do within the Fourth Schedule, would certainly then be unconstitutional.
16. It was clear that a Money Bill was one that provided for levying taxes, altering taxes or appropriation of the consolidated funds. In quite a number of countries the Speaker of the House that corresponded to the Kenyan National Assembly was the final determinant of what Bill would be considered to be a Money Bill and his decision was final. The Division of Revenue Bill would be considered a money bill and was subject to the same procedure as a Money Bill under article 114, which was the purview of the National Assembly.
17. In the same context the County Allocation of Revenue Bill would also be considered a money or supply Bill but was a Special Bill as the procedure for dealing with it was completely different. It was specifically provided for as a process within the Senate and not the National Assembly under article 217.
18. Once the Division of Revenue Bill that divided revenue between the national and county levels of Government was introduced in the National Assembly, Senate had no role to play. The Supreme law clearly gave the Senate an opportunity to make input into the Division of Revenue Bill but only before it was introduced into the National Assembly for debate.
19. Under Article 215 the Senate commanded a majority in the nine-member commission that had five representatives from Senate alone, compared with only two from the National Assembly and only two from the Executive arm of Government. This meant that the Senate commanded a decisive vote with regard to the recommendations that went into the drafting of the Division of Revenue Bill, long before it reached the National Assembly for determination. Any significant deviation from such recommendations would require a written explanation from the Cabinet Secretary responsible for finance, the intention and the rationale of the drafters of the Constitution was to ensure that the Senate had comprehensive input into the allocation of revenue at that stage, deeming unnecessary any more activity at the legislative stage.
20. The process of dealing with inter-chamber deadlock as applied to other Bills under Article 110(3) was not suitable for the Division of Revenue Bill as the mediation process under that Article presupposed a Bill that reached deadlock between the two houses could fail with the possibility of reintroduction after six months. This could not be done with regard to the Division of Revenue Bill as it was not a Bill that could be shelved without precipitating a constitutional financial crisis that would paralyze the workings of the entire Government and even cause its collapse.
21. The Senate would also canvass for expansion of its mandate by initiating an amendment of the Constitution through referendum as articulated under Article 255(1) of the Constitution. Such an amendment could introduce common constitutional measures as practiced in other bicameral jurisdictions such as the introduction of a suspensive veto, joint sessions of the houses and even the possibility of dissolution of both houses in the event of deadlock.
22. To ask the Supreme Court to give Senate powers that belonged in plain language to the National Assembly would be to seek an amendment to the Constitution in a manner not recognized by the supreme law. The tools for reviewing the Constitution to address restructuring of authority, power and functions of the Legislature and the roles of the Senate and the National Assembly lay squarely in a political and not judicial process.

Scope of Supreme Court’s appellate jurisdiction

Malcolm Bell v Daniel Toroitich Arap Moi & another

Application No 1 of 2013

Supreme Court at Nairobi

K Rawal, DCJ; P K Tunoi, M Ibrahim, J B Ojwang, N S Ndungu, SCJJ

October 24, 2013

Reported by Njeri Githang’a Kamau & Victor L Andande

The applicant was the registered owner of the suit property located in the Kabarak area of Nakuru, adjacent to Moi High School Kabarak. The property was transferred to him pursuant to the will of his deceased father, Walter Bell, through a transfer and assent dated April 11, 2000 and registered on May 19, 2000.

The 2nd respondent (The Board of Governors Moi High School Kabarak) through Moi High School Kabarak, had been in occupation of the suit land since 1982,but the circumstances under which the respondent came into possession of the suit land had been contested.

The applicant claimed that when the land was encroached upon, the 1^strespondent was the President of the Republic of Kenya, and was protected by the Constitution from any civil or criminal proceedings during his term of office.

Accordingly, it was only upon retirement from office of the 1st respondent, that the applicant was able to institute a suit against him.

The respondents, on their part, contended that the suit property was gifted to the School by Walter Bell in 1993,prior to his demise. In addition to this, they argued that the School’s long occupancy of the land had conferred adversepossessory rights upon it effectively, in their view, rendering Malcolm Bell’s claim against Kabarak High School time-barred.

In January 2004, the applicant instituted proceedings in the High Court asking that a perpetual injunction order be issued restraining therespondent (then defendant) from interfering with the applicant’s use, enjoyment and ownership of the suit land. The High Court held that the second respondent had acquired title to the land through adverse possession.

The applicant was aggrieved and appealed to the Court of Appeal. At the Court of Appeal, the matter was heard by a bench of three judges but judgment was written by two of the judges pursuant to the provisions of rule 32 (2) of the Courtof Appeal Rules, 2010.

The Court of Appeal allowed the appeal and set aside theorders of the High Court.

Aggrieved by the said judgment, the respondents sought leave of the Courtof Appeal, to appeal further to the Supreme Court. The Court granted leave on the grounds that the suit raised matters of general public importance, and also,that substantial miscarriage of justice had occurred or would occur, if the proposed appeal was not heard by the Supreme Court.

For the respondents, it was contended, eachjudge at the Court of Appeal ought to have written a separate reasoned judgment, and there should have been no concurring opinion: and this was urged before the Court to bring the intended appeal under the category of “matters of general public importance”, meriting a hearing before the Supreme Court.

Issues

1. In what circumstances could the appellate jurisdiction of the Supreme Court be invoked?
2. Whether a party appealing to the Supreme Court could apply to the same court (Supreme Court) for certification of a matter as being of general Public importance.
3. When could a matter be said to be of general public importance?
4. Whether a claim involving the issue of adverse possession could be the basis for certifying a matter as being of general public importance.
5. Whether, in the absence of one judge, the remaining ones in a collegiate bench had to each formulate a fully detailed and reasoned judgment.
6. Whether section 16(1) and 16(2)(b) of the Supreme Court Actwas unconstitutional, as it purported to extend the basis for issuing certification for appeal beyond the terms set out in article 163 of the Constitution.

Statutes  – interpretation of statutes – interpretation of  section 16(1) and 16(2) of the supreme Court Act – where the section extended the basis of issuing certification to appeal to Supreme Court – whether the section contravened constitutional provisions - Constitution of Kenya, 2010, article 163, Supreme Court Act, 2011; section 16(1) and (2) (b).

Jurisdiction – appellate jurisdiction - appellate jurisdiction of the Supreme Court – scope of the Supreme Court’s appellate jurisdiction – where the Court of Appeal had granted the respondents leave to appeal to the Supreme Court on the ground of a matter of general public importance and possible miscarriage of justice – whether in the circumstances the Court of Appeal had rightfully granted leave to appeal – Constitution of Kenya, 2010, article 163.

Jurisdiction – appellate jurisdiction of the Supreme Court – certification to appeal to the Supreme Court on the basis that the matter was of general public importance–which court between the Supreme Court and the Court of Appeal had jurisdiction to grant certification for an appeal to the Supreme Court – Constitution, 2010, article 163(4)(b).

Article 163(4) of the Constitution of Kenya, 2010provided as follows:

“(4) Appeals shall lie from the Court of Appeal to the SupremeCourt –

 (a) as of right in any case involving the interpretation orapplication of this Constitution; and

(b) in any other case in which the Supreme Court, or the Courtof Appeal, certifies that a matter of general public importanceis involved, subject to clause 5.”

Section 16(1) and (2) (b) of the Supreme Court Act, 2011 (Act No. 7 of 2011) provided that:

“(1) The Supreme Court shall not grant leave to appeal to the Court unless it is satisfied that it is in the interests of justice for the Court to hear and determine the proposed appeal.

(2) It shall be in the interests of justice for the Supreme Court to hear and determine a proposed appeal if –

(a)....

(b) a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard.”

Held

1. Article 163 (4)(b) required that appeals lie from the Court of Appeal to the SupremeCourt upon certification, on the basis that a matter was one of general public importance. Such certification could be done either by the Court of Appeal itself, or by the SupremeCourt.
2. The Supreme Court had affirmed its position on the instances in which its appellate jurisdiction would be invoked. One, on an appeal from the Court of Appeal, as a matter of right, in a matter involving the application orinterpretation of the Constitution;and two, on an appeal from the Court ofAppeal on a matter certified as involving a matter of general public importance.
3. The application for certification had to be made in the Court of Appeal first before a party could seek certification from the Supreme Court, as the former was privy to the proceedings and issues before it on first appeal, and would be aptly placed to determine whether the matter was one of general public importance.
4. The Supreme Court, as the ultimate judicial agency, had to exercise its powers strictly within the jurisdictional limits prescribed; it also had to safeguard the autonomous exercise of the respective jurisdictions of the other courts and tribunals. In the instant case,the Court could not assume ajurisdiction which, by law, was reposed in the Court of Appeal, andwhich that Court has duly exercised and exhausted.(Peter Ngoge v Ole Kaparo).
5. As a matter of principle and of judicial policy, the appellate jurisdiction of the Supreme Court was not to be invoked savein accordance with the terms of the Constitution and the law, and not merely forthe purpose of rectifying errors with regard to matters of settled law.
6. The question or questions of law must have arisen in the Court or courts below, and must have been the subject of judicial determination for them to become a matter of general public importance meriting the Supreme Court’s appellate jurisdiction. By this test, matters only tangentially adverted to, without a trial focus or a clear consideration of facts in the other Courts would often be found to fall outside the proper appeal cause in the Supreme Court.
7. Not only was the adverse-possession question a subject sufficiently settled in law as to lend itself to normal interpretation and disposalby superior courts other than the Supreme Court, but the Court of Appeal had conscientiously and judiciously applied its mind to the subject. It was no longer a proper subject on any account, and least of all as a matter of general public importance, to be the subject of an appeal before the Supreme Court.
8. Interests of justice as a criterion of decision-making by the Supreme Court and other Courts, was already declared by the Constitution in the national values and principles of governance under article 10. Such values included the rule of law; human dignity; equity; social justice; equality; human rights; non-discrimination; and the protection of the marginalised. As the jurisdiction to render justice was thus clearly conferred by the Constitution, it was not to be attributed to the provision of section 16(1) of the Supreme Court Act.
9. The Supreme Court had to operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. The instant appeal wasone invoking a jurisdiction that did not coincide with the Constitution’s donation. (Samuel Kamau Macharia and another v Kenya Commercial Bank Limited and 2 others, Sup. Ct. Appl. No. 2 of 2011.)
10. Not only did section 16(1) and (2) (b) of the Supreme Court Actappear to vest a diffuse kind of appellate competence in the Supreme Court, it was contrary to the mandatory appellate-jurisdiction clause in article 163(4)(b) of the Constitution.
11. Rule 32 of the Court of Appeal Rules 2010did not prescribe the length of judgment, nor did they inhibit the rendering of a concurring opinion by a judge. There was, thus, nothing judicially unbecoming for a judge to turn in a concurrence which indicated she had read the opinion of another judge and agreed in full measure.
12. The question as to whether, in the absence of one judge the remaining ones in a collegiate Bench had to each formulate a fully detailed and reasoned Judgment, fell in an ordinary class, and did not raise any matter of general importance warranting the engagement of the Supreme Court’s appellate jurisdiction.
13. The point of law regarding the mode of rendering Judgment by the Justices of Appeal, was neither substantial, nor would it have a significant bearing upon the public interest.
14. The respondents had failed to establish a foundation for the lodgment of an ultimate appeal in the Supreme Court. As the cause raised no matters of general public importance, the Supreme Court’s jurisdiction was not properly invoked, and the Court of Appeal was in error, as a matter of law, in granting certification for a further appeal.
15. The guiding principles for determining whether a question was one of general public importance and therefore merited such an appeal, had been elaborated in the case Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup. Ct. Appl. No. 4 of 2012and the proposed appeal in the instant case failed the test, notwithstanding that its subject-matter was landed property.
16. All questions pertaining to claims under adverse possession fell squarely within the Court of Appeal’s jurisdiction, and there would be no basis for invoking the Supreme Court’s jurisdiction in that regard.
17. Obiter per K Rawal DCJ. The Court has observed that the provision of section 16(2)(b) is beyond the domain of the Court. That leaves section 16 with sub-section (1) and (2) (a), as the appropriate provisions. Considering closely the aforesaid provisions, it appears that it simply reiterates (i) the fundamental principle of interest of justice, which is a pivotal aspect of the function of any Court; and (i) the matter of public importance, which is in any event clearly stipulated in article 163(4) (b). Retaining this provision, especially section 16(1) and 2(a) will, in my humble opinion, restrict the meaning of interest of justice, as well as the discretion of the Court to develop the scope of interest of justice, which inherently is a broad concept.In the premises, I would like to recommend to the Hon. Attorney- General that an amendment be effected in the said provision of the Act.

Application allowed the certification for appeal overturned.

The Supreme Court can issue summons in the cause of its orders made during the pendency of the main hearing

Brief facts

The instant case arose during the hearing of the presidential election petition involving Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others. The petition had elicited keen public interest and generated endless media coverage and commentary. Due to the highly charged environment, the Supreme Court issued certain directions whereby everyone was ordered to desist from prosecuting the merits and demerits of the case in any forum other than the Supreme Court.

During the hearing of the petition, the court noted a news item published in the Daily Nation Newspaper, which was attributed to Mr. Eric Mutua, the Chairman of the Law Society of Kenya (LSK). The said article was faulting the Supreme Courts rejection of the 839 page affidavit filed by Coalition for Reforms and Democracy. Further, in another report on the same page, Mr. Mutua had indicated of LSKs intention to determine circumstances that led to the failure of the technology system used in the elections.

After considering the contents of the said publications, the Supreme Court issued summons to Mr. Mutua to appear before it on a date to be notified by the Registrar of the court. Thereafter, the Registrar of the Supreme Court issued summons dated July 22, 2013 to Mr. Mutua directing him to appear before the court on August 1, 2013.

Counsel appearing for the LSK, however, raised certain preliminary issues to be heard and determined before the court could proceed with the intended clarification from Mr. Mutua. Thereafter, the court directed all the parties present to make their respective written submissions to enable the court to make its ruling.

Issues

1. Whether the Supreme Court had jurisdiction to hear a case arising from summons issued in the course of the presidential election petition, where the petition had already been heard and finally determined.
2. What could be said to amount to a preliminary objection in law?

Held

1. A preliminary objection consisted of a point of law which had been pleaded or which arose by clear implication out of pleadings, and which if argued as a preliminary point would dispose of the suit. Examples were an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties were bound by the contract giving rise to the suit or to refer the dispute to litigation.(Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 at 700.)
2. The issue in the instant case emanated not from the substantive facts or issues raised in the petition, but from an ancillary order issued by the court during the proceedings totally unrelated to the main cause of action. That order had not been acted upon or perfected, and the summons issued pursuant thereto by the Registrar of the Supreme Court, was meant to give effect to the courts observation and consequent directions made on March 28, 2013.
3. It was a legal and constitutional obligation of any court, from the basic level to the highest level, to preserve and protect the adjudicatory forum of governance,and to uphold decorum and integrity in the scheme of justice delivery. It followed that the Supreme Courts jurisdiction, in oversight of the question of conscientious and dignified management of the judicial process, and in safeguarding the scheme of the rendering of justice, would not be exhausted until the court was satisfied and declared as much.
4. Even though the court had concluded the hearing of the petition by delivery of judgment, its jurisdiction for upholding the dignity of the judicial process, and in relation to the proceedings of the petition, remained uncompromised. The court therefore could, as it did, issue summons in the cause of its orders made during the pendency of the main hearing.

Supreme Court upholds its earlier ruling on unconstitutionality of section 14 of the Supreme Court Act which conferred ‘special jurisdiction’ on the Supreme Court

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai& 4 others

Petition No 4 of 2012

Supreme Court at Nairobi

W M Mutunga, CJ& P; K H Rawal, DCJ& V-P; P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala, N S Ndungu, SCJJ

August 20, 2013

Reported by Njeri Githang’a Kamau & Victor L Andande

Upon the promulgation of the Constitution of Kenya, 2010 and the enactment of the Supreme Court Act, 2011 (No. 7 of 2011), the petitioners moved the newly-established Supreme Court, seeking redress, by invoking the Supreme Court’s ‘special jurisdiction’ under Section 14 of the Supreme Court Act, by way of petition.

While the petition was pending, the Supreme Court delivered pertinent ruling in another matter, Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & two Others, Supreme Court Application No. 2 of 2011 (Macharia Case). The burden of that Ruling, in relation to the present case, was the declaration of Section 14 of the Supreme Court Act to be unconstitutional, insofar as it purported to give the Supreme Court a ‘special jurisdiction’.

Soon after the Ruling in the Macharia Case, and as the petition herein was pending before the Supreme Court, the respondents raised a preliminary objection to the petitioners’ case. They contended that the Court lacked jurisdiction to entertain the matter.

In response to the preliminary objection on jurisdiction, as lodged, the petitioners applied to the Court for a review of the Macharia ruling, on the basis that the declaration of section 14 of the Supreme Court Act, 2011 as unconstitutional was “wrong”, and ought to be reversed.

Issues

1. Whether the Supreme Court could depart from its earlier decision and if so under what circumstances?
2. Whether the Supreme Court’s declaration that section 14 of the Supreme Court Act was unconstitutional could be reversed.
3. Whether the Supreme Court could deal with matters on violation of fundamental rights.
4. What is the distinction between an obiter dictum and per incuram decision?

Constitutional law – constitutionality of a statutory provision -constitutionality of section 14 of the Supreme Court Act – where the Supreme Court had declared the section unconstitutional – whether the Supreme Court rightly declared section 14 unconstitutional.

Jurisdiction – Supreme Court – Jurisdiction of the Supreme Court – scope of jurisdiction of the Supreme Court – where the Supreme Court Act conferred special jurisdiction upon the Supreme Court – whether in the circumstances the Supreme Court could exercise special jurisdiction  – Supreme Court Act, section 14, Constitution of Kenya 2010, article 163.

Precedent – stare decisis – distinction between obiter dictum and per incuriam decision - where the petitioners requested the Supreme Court to depart from its earlier decision –whether the decision could be said to have been per incuriam – what were the circumstances under which the Supreme Court could depart from its earlier decisions –Constitution of Kenya, 2010, article163(7).

Article 163(7) of the Constitution of Kenya 2010 provided that:

“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”

Held

1. As a matter of consistent practice, the decisions of the higher Courts were to be maintained as precedent; and the foundation laid by such Courts was to be sustained in principle. This left an opening for the special circumstances which would occasionally dictate a departure from previous decisions.
2. Whether or not the apex court could adhere to its precedent, or depart therefrom, was dependent on that court’s perception of the claims of justice and equity, or of the fundamental constitutional or related principles coming to bear upon the issues raised.
3. The immediate pragmatic purpose of such an orientation of the judicial process was to ensure predictability, certainty, uniformity and stability in the application of law. Such institutionalization of the play of the law gave scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marked also other spheres of social and economic relations.
4. The Supreme Court, as an apex Court, could indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight. Such a latitude for departure from precedent existed not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution.
5. The following factors had to be considered, where the Supreme Court was called upon to overturn its past decision:

(i)whether the precedent set had become impracticable or intolerable;

(ii)whether overturning the precedent would occasion hardship, or inequities to those who had already relied on the authority of the precedent;

(iii)whether, since the setting of the precedent, related principles had evolved to such an extent that it was fair to conclude that the society’s conditions and expectations had taken new dimensions;

(iv)whether the facts had significantly changed, or were currently viewed so differently, that the design of the precedent had become irrelevant, or unjustifiable.

6. The Supreme Court, if it was to “develop the law”, had to have the liberty to depart from previous decisions such as could stand as a constraint to the growth of the law.
7. An obiter dictum statement was one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. On the other hand, a decision per incuriam was mistaken, as it was not founded on the valid and governing pillars of law.
8. Comparative judicial experience showed that the decision of a superior Court was not to be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process; the test of per incuriam was a strict one, the relevant decision having not taken into account some specific applicable instrument, rule or authority.
9. The decisions of Kenya’s Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, were to stand as the binding reference-point in the norms governing the judicial process. Such a position was vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustained the principles of the Constitution, and the rights and duties flowing from the legal set-up, and which provided sanctity for the legitimate actions of the people.
10. Subject to the broad principle, the following directions had to be considered by the court when dealing with precedents:

(i) where there were conflicting past decisions of the court, it could opt to sustain and to apply one of them;

(ii) the court could disregard a previous decision if it was shown that such decision was given per incuriam;

(iii) a previous decision would not be disregarded merely because some or all of the members of the Bench that decided it would presently arrive at a different conclusion;

(iv)the court would not depart from its earlier decision on grounds of mere doubts as to its correctness.

11. The decision of the Supreme Court on the issue of the constitutionality of Section 14 of the Supreme Court Act was to be considered an element in the ratio decidendi of the Macharia Case in which the issue was handled, rather than an obiter dictum.
12. If it would be thought that any error was entailed in the Court’s perception of jurisdiction, such an apprehension by itself, could not justify the reversal of the ruling declaring section 14 unconstitutional. That decision established itself as a mark of certainty and predictability in the law, and on the basis of which numbers of people would have figured out their rights and expectations. In these circumstances, public policy would not stand on the side of reversal of precedent.
13. Section 14 of the Supreme Court Act was unconstitutional on two additional grounds:

1. it was discriminatory, contrary to Articles 10(1)(b), 10(2)(b), and 27 of the Constitution; and
2. it violated private property rights contrary to article 40 of the Constitution.

14. Article 10 of the Constitution required Parliament to be non-discriminatory when it enacted laws. Parliament violated article 10 when it enacted section 14 of the Supreme Court Act because it limited the remedy of a new trial only to those who could prove that the judge in their case had been removed, retired or resigned on the basis of their complaints.
15. Section 14 did not provide any criteria for the taking away of property rights properly vested after a judgment. It only provided for the re-opening of a case in which a complaint was filed against a judge leading to his or her removal, without an effective enquiry into how this affected the property rights already vested. Section 14 also did not address how “just compensation to the person” with such vested rights would be paid to them and by whom.
16. While our jurisprudence could benefit from the strengths of foreign jurisprudence, it had to obviate the weaknesses of such jurisprudence, so that ours was suitably enriched, as decreed by the Supreme Court Act. Thus, the Supreme Court would have to avoid mechanistic approaches to precedent.
17. The Kenyan Constitution gave the High Court the exclusive jurisdiction to deal with matters of violations of fundamental rights. This was found under article 23 as read with article 165 of the Constitution. The High Court had jurisdiction to redress a violation that arose from the operation of law through the system of courts, even if the case had gone through the appellate level.
18. The canvassing of section 14 of the Supreme Court Act, and more particularly, the fact that it touched on jurisdiction required the Court to consider the constitutionality of that Section; and the outcome, in the circumstances, would stand as a declaration of status in rem.
19. The conclusion arrived at in the Macharia Case was correct, in that section 14 of the Supreme Court Act was unconstitutional, insofar as it purported to give the Supreme Court a ‘special jurisdiction’. The Supreme Court, as an iconic court in the land, should however have approached the issue of the constitutionality, or lack thereof, of section 14 of the Supreme Court Act, in a more comprehensive manner, and  strived to explain its background and context extensively, or even painstakingly, so that the people of Kenya, and the litigants (present or prospective), could fully grasp the reasons behind its refusal to exercise jurisdiction as purportedly provided under Section 14 of the Supreme Court Act.

Per Ibrahim SCJ Dissenting:

1. The Court was to take into account the following principles , in addition to those already stated when considering whether to depart from its precedents:

1. A decision that was manifestly wrong on the face of it would occasion a departure by the Court. What was manifestly wrong would depend on a conscientious determination by the Court, and would vary from case to case.
2. Whether a decision was erroneous, and severely affected the lives of people, and impacted negatively on the general welfare of the public.
3. Upon consideration of such elements, the Court would be ready and willing to depart from an erroneous decision, where the decision was a recent one and the decision had not as yet created property rights around which individuals’ interests had vested.

2. A question of jurisdiction when raised, occasionally by way of a preliminary objection, did not necessarily address the issue of the constitutionality of a piece of legislation. It would be questioning the applicability of that law to the issues forming the subject-matter under consideration.
3. The issue of jurisdiction in the Macharia Case was framed not on the question of the constitutionality of Section 14 of the Supreme Court Act, but on whether the case as presented by the Applicant had met the threshold set by Section 14 of the Act: that a judge had been removed, retired or resigned; secondly, whether the procedural requirement of moving the Court by way of petition, provided for by the rules, had been followed; and if not, whether that was fatal to the application before the Court. The issue of the constitutionality of Section 14 never formed part of the jurisdictional challenge, and the Court should not have delved into it.
4. The respondents’ opposition on jurisdiction was on the basis that Section 14 did not apply, and not that section 14 was unconstitutional. There was no single prayer, or relief sought, for the declaration of Section 14 of the Supreme Court Act as unconstitutional. Thus, in holding Section 14 to be unconstitutional, the Supreme Court acted suo motu. This was unnecessary, as it was never prayed for.
5. The Supreme Court, or even the High Court, was not supposed to decide upon the constitutionality or unconstitutionality of a statutory provision, without the involvement of the Attorney-General as a respondent or as amicus curiae. The constitutionality of legislative provisions ought not to be determined as between private parties alone. This was because statutory laws belonged to, and affected the people of Kenya and the State; it was not a private matter, but rather, it was of a public nature, and it affected the public interest.
6. Kenya operated an adversarial system, and the Court as an impartial umpire could not rightly descend into the arena of conflict. However, a matter touching on the constitutionality of a provision of the law was not a matter of conflict as between parties. It transcended the parties, and became a matter of general concern, that was to bind all persons as signified by article 3 of the Constitution.
7. A Court of law had to be hesitant in declaring legislation unconstitutional in a private matter, where Parliament was not a party. Where such an application was made, the Court was supposed to invite all stakeholders on board. This would enhance fidelity to the doctrine of separation of powers, and contributed to respect for all constitutional organs, and for their mandates. This way, the principle of checks and balances would be seen to be truly operational, within the constitutional framework, in the terms of article 2 of the Constitution.
8. Until the contrary was proved, a legislation was presumed to be constitutional. The onus was upon those who challenged the constitutionality of the legislation to rebut the presumption.
9. An issue touching on a procedure challenging the constitutionality of statutory law was not a matter of procedural technicality. It was a matter of procedural substance.  The procedure towards the declaration of Section 14 of the Supreme Court Act as unconstitutional was a substantive procedure that went to the core of the constitutionality of a legislative activity. Thus, the declaration of Section 14 as being unconstitutional lacked the procedural substantive requirement, and it ought not to be left to stand as a precedent.
10.  The declaration of Section 14 as being unconstitutional was made when the instant matter was pending before the Court. Therefore, the premature declaration in proceedings which did not call for such a determination, prejudiced litigants who were properly before the Court, given that the prima facie threshold requirement under Section 14 had been attained as the particular judge at the centre of the instant case retired as a consequence of the allegations made against him.

Application disallowed but an order as to costs to be made in the cause.

Reported by Emma Kinya Mwobobia

This was an application for review of the decision of the Court of Appeal dismissing the applicant’s Notice of Motion which sought leave of the Court to Appeal to the Supreme Court in respect to matters of general public importance. The applicant sought the Supreme Court to set aside the decision of the Court of Appeal and issue an order allowing the application for leave to appeal.

Issues

i. Whether the Constitution of Kenya, 2010 had conferred concurrent jurisdiction both to the Court of Appeal and the Supreme Court in certification of matters that were of great public importance

ii. Whether the application was incompetent due to the omission of citing Article 163(5) of the Constitution which was the enabling clause that gave the applicant locus standi for review in the Supreme Court

iii. Whether the applicant was invoking the original jurisdiction of the Supreme Court in the application thus occasioning res judicata

iv. Whether the jurisdiction of the Supreme Court with regard to review only lay where a matter had been certified as being of general public importance

v. What amounts to matters of general public importance? Did the case raise issues of general public importance?

vi. Whether a substantial miscarriage of justice could have occurred unless the appeal was heard

vii. Whether brokers and commission agents constituted a category of matters of general importance in the process of litigation

Jurisdiction – concurrent jurisdiction – jurisdiction of the Court of Appeal and the Supreme Court in granting leave to appeal to the Supreme Court – concurrent original jurisdiction - where the applicant had to first apply for leave in the Court of Appeal – whether the Court of Appeal and the Supreme Court had concurrent jurisdiction – whether the matter raised an issue of res judicata due to the concurrent jurisdiction – Constitution of Kenya, 2010 article 163(4)(b)

Jurisdiction – jurisdiction of the Supreme Court – review – jurisdiction of the Supreme Court to review a decision of the Court of Appeal with respect to certification of a matter for appeal to the Supreme Court  – where the Court of Appeal had dismissed an application for leave to file an appeal to the Supreme Court – constitutional provision for review by the Supreme Court in respect of matters of general public importance in an intended appeal – whether the application had merit – Constitution of Kenya, 2010 article 163(4)(b),(5);Supreme Court Act section 19(b)

Civil Practice and Procedure – leave – leave to appeal – leave to apply to the Supreme Court on a matter of general public importance - application for leave to appeal against the decision of the Court of Appeal to the Supreme Court with respect to a  matter of general public importance –requirement for leave to be sought in the Court of Appeal for certification for appeal in the Supreme Court – criteria to be considered by the Court of Appeal in the certification of a matter that would merit an appeal to the Supreme Court –  what amounts to a matter of public importance – criteria to be considered – whether the application had merit

Words and Phrases

Meaning of “concurrent jurisdiction”

Meaning of matters of “general public importance”

Article 163(5) of the Constitution of Kenya, 2010

A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Section 19(b) of the Supreme Court Act, provides:

  The Supreme Court shall hear and determine appeals from the Court of Appeal or any other court or tribunal against any decision made in proceedings, only to the extent that--

(b) the decision is not a refusal to grant leave to appeal to the Court of Appeal

Held:

11. This being an application for leave to appeal against a decision of the Court of Appeal, it would have been good practice to originate the application in the Court of Appeal, which was better placed to certify whether a matter of public importance was involved. It was the Court of Appeal, which had all along been seized of the matter on appeal and had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties. Accordingly, that Court would be afforded the first opportunity to express an opinion as to whether an appeal would lie to the Supreme Court or not. If the applicant was dissatisfied with the Court of Appeal’s decision in this regard, it was at liberty to seek review of that decision by the Supreme Court as provided for by Article 163(5) of the Constitution.

2. In the interest of justice, the Court did not interpret procedural provisions as being cast in stone. The Court was alive to the principles to be adhered to in the interpretation of the Constitution as stipulated in Article 259. Consequently, the failure to cite Article 163(5) as a basis for the proceedings with respect to jurisdiction of the Supreme Court to review a decision on certification of a matter for appeal was not fatal to the applicant’s cause.

3. Concurrent jurisdiction was jurisdiction which could have been exercised simultaneously by more than one court over the same subject matter and within the same territory, giving a litigant the right to choose the court in which to file the action.

4. The Supreme Court had concurrent jurisdiction with the Court of Appeal and when one opted to exercise their right under either of the entities with jurisdiction, one could not go before the other entity with the same subject matter. That was the reasoning behind the principle of res judicata in civil matters when choosing the court (forum) in which to institute a matter. It was also the reasoning held sacrosanct in criminal matters under the doctrine of double jeopardy (especially with reference to international crimes like genocide, piracy and war crimes where all nations have jurisdiction.

5. When an applicant had first proceeded to the Court of Appeal as in this case and then to the Supreme Court, one could not invoke the original jurisdiction so as to warrant a question of res judicata. Hence, on this consideration, the applicant was properly before the Court.

6. The relevant provision of the Constitution was Article 163(5) which provided that a certification by the Court of Appeal under clause (4) (b)of the Constitution could be reviewedby the Supreme Court and either affirmed, varied or overturned. The Constitution had not alluded to appealing the decision but had provided for review.

7. Section 19 (b) of the Supreme Court Act had nothing to do with Article 163 (5) of the Constitution.  It had not dealt with refusal to certify a case as one involving a matter of general public importance but dealt with refusal to grant leave to appeal to the Court of Appeal. The implication was that the envisaged refusal to grant leave must have emanated from a lower court such as the High Court or tribunal.

8. The Supreme Court Act and the Supreme Court Rules (Rules) had not provided for appeals with respect to a case where the Court of Appeal had pronounced itself on a matter for grant of leave to appeal to the Supreme Court. The legal framework provided for was for review. Consequently, where one had applied to the Court of Appeal for leave to appeal to the Supreme Court and the party was not satisfied by the decision of the Court of Appeal, no appeal could lie. The only course was for the party to apply for review of the matter in the Supreme Court. The appeals procedure provided for by the Supreme Court Act and under the Rules was for the  matters where one had been granted leave to appeal and was approaching the Supreme Court in relation to the substantive matter of appeal. Hence, the applicant had rightly sought for review and not for an appeal.

9. In interpreting the review competence of the Supreme Court, the mandate had to be harmonized with the Constitution. One of the fundamental rights under the Constitution was access to justice for all and non-discrimination. Consequently, all litigants were to be accorded equal right of access to the court and either party could approach the Supreme Court for review under article 163(5) of the Constitution where a party could seek a review of the decision of the Court of Appeal granting or denying leave. Hence, certification under Article 163(5) should have been broadly read as alluding to certification by the Court that a matter of public importance was or was not involved. The applicant was therefore rightly before the Court despite seeking a review where there was no leave granted by the Court of Appeal.

10. Not all matters in the Court of Appeal could be appealed to the Supreme Court. There were only two instances in which one could appeal to the Supreme Court under Article 163(4) of the Constitution viz:-

a. As of right in any case involving the interpretation or application of the 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).

11. The exact image of a matter of general public importance varied in different situations save that there were broad guiding principles to ascertain the stature of a particular case.  Besides, the comparative judicial experience indicated that the criteria of varying shades had been adopted in different jurisdictions.  The general phraseology in the laws of most jurisdictions was a point of law of general public importance. However, article 163(4)(b) of the Constitution referred to a matter of general public importance as a basis for invoking the Supreme Court’s appellate jurisdiction.  The Kenyan phraseology reposed in the Supreme Court in principle, a broader discretion that certainly encapsulated the point of law of general public importance.

12. The Constitution under Article 163 (4)(b) contemplated that a matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact provided only that its impacts and consequences were substantial, broad-based and transcending the litigation interests of the parties and bearing upon the public interest.  As the categories constituting the public interest were not closed, the burden fell on the intending appellant to demonstrate that the matter in question carried specific elements of real public interest and concern.

13. The governing principles that a matter before court merited certification as one of general public importance were that:

i. For a case to be certified as one involving a matter of general public importance, the intending appellant ought to have satisfied the Court that the issue to be canvassed on appeal was one the determination of which transcendedthe circumstances of the particular caseand had a significant bearing on the public interest;

ii. Where the matter in respect of which certification was sought raised a point of law, the intending appellant ought to have demonstrated that such a point was a substantial one, the determination of which would have a significant bearing on the public interest;

iii. Such question or questions of law must have arisen in the lower courts and must have been the subject of judicial determination;

iv. Where the application for certification had been occasioned by a state of uncertainty in the law arising from contradictory precedents, the Supreme Court could 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 in a matter most apt for resolution in the lower superior courts was 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 Courtought to fall within the terms of Article 163 (4)(b) of the Constitution;

vi. The intending applicant had an obligation to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought;

vii. Determinations of fact in contests between parties were not by themselves a basis for granting certification for an appeal before the Supreme Court.

14. The miscarriage of justice was an unfair outcome in a judicial proceeding such as when a defendant was convicted despite the lack of evidence on an essential element of the crime.. It was more consistent with the failings in the judicial process of a rather glaring nature and in the threshold trial stages rather than with the adjudication of complex questions of law at tertiary level Courts.

15. If the Supreme Court were to certify the case as warranting a further appeal, the main issue for determination in the substantive appeal would have been whether the applicant was paid the sum pleaded through the efforts of the respondent. There was no substantial question of law that would have arisen for determination on appeal to the Court. No such question of law arose for determination either at the High Court or Court of Appeal.  At stake in the main appeal therefore, would have been the findings of fact by the two lower superior courts. Therefore, such a determination of fact in contests between parties could not have been a basis for granting certification for an appeal before the Supreme Court.

16. The nature of the commission agreement and the dispute that arose could not have affected all business people in Kenya including all agents and investors. The applicant had therefore not demonstrated to the Court’s satisfaction the existence of specific elements of general public importance.

Per M.K. Ibrahim & J.B. Ojwang SCJJ (Dissenting)

17. The appellant had lodged before the court a matter of general public importance and consequently, the Supreme Court should have entertained his appeal. 

18. The respondent’s position was not focused on the detailed elements of the motion but was instead more concerned with the issue of general policy in administration of justice and in the discharge of the Supreme Court’s functions.  Such an had approach sidestepped the burden of the applicant’s case.

19. Although this was a dispute of immediate relevance only to the parties, the course of judicial resolution would have established the legal principles of general application in future cases.

20. The court took judicial notice of the fact that the case was a dispute regarding commercial transactions in a sector of a growing economy and it was expected that such legal principles that would emerge from the adjudication of the intended appeal would in time have a significant recurrence in the incidence of a dispute settlement. Not only would considerable numbers of litigants be affected, but the proper conduct of administration of justice and the workings of the judicial organs would be affected by the lines of principle which the Court had the occasion to lay out.

21. In addition to the matters considered as being of general public importance, the judges also found the following factors as important considerations:

(i) issues of law of repeated occurrence in the general course of litigation;

(ii) questions of law that were, as a fact or as appears from the very nature of things, set to affect considerable numbers of persons in general or of litigants;

(iii) questions of law that are destined to continually engage the workings of the judicial organs;

(iv) questions bearing on the proper conduct of the administration of justice.

22. The question in the intended appeal was one that should have been settled as a matter of law regarding categories of business persons namely brokers and commission agents likely to grow in numbers over time and who ought in principle to have been regarded as legitimate actors within the economy. That was a public outlook that was focused on a matter of public interestand involving the judicial process as an avenue of fulfillment of the Bill of Rights as a safeguard for social justice and the realization of the potential of all human beings.

23. The question brought forward by the applicant was certainly one of general public importance both when perceived as a matter of law and when viewed as a factual matter of individual initiatives in the fields of commerce and the economy.

Application dismissed. Costs to the respondent

Reported by Emma Kinya Mwobobia

The Petitioner had filed the petition 27 days before the March 4, 2013 General Elections where he contested the validity of the nominations and approvals made by the Independent Electoral and Boundaries Commission (IEBC) in respect of the candidature for the Office of the President. He contested the actions of the sponsoring Political Parties in their initial nominations of candidates who would at the time have been classified as State Officers under Article 260 of the Constitution of Kenya, 2010.

A preliminary objection was raised by the respondents on the grounds that the Supreme Court lacked jurisdiction to entertain the petition and further that the Constitution under Article 88(4)(e) had conferred exclusive responsibility for settling of nomination disputes upon the IEBC and thus the nominations of Presidential election candidates was insulated from the Supreme Court’s jurisdiction and from the jurisdiction of any other courts.

In light of the contending positions at the preliminary stage, the urgency of attending to the process of the National General Elections and of the limited amount of time available to the court, a ruling was first rendered and the reasons delivered at a later date on May 3, 2013.

Issues:

i. Whether the Supreme Court had jurisdiction to hear and determine the petition challenging the validity of the nominations and approvals made by the Independent Electoral and Boundaries Commission (IEBC) in respect of the candidature for the Office of the President.

ii. Whether the Supreme Court’s exercise of its exclusive original jurisdiction in the case of Presidential election matters was limited by time in respect of Articles 163 (3)(a) and 140 of the Constitution

iii. Whether the petitioner had prematurely invoked the Supreme Court’s exclusive original jurisdiction

Jurisdiction – Supreme Court – Presidential Election Petition – jurisdiction of the court to hear and determine Presidential Election Petitions – constitutional provision providing for the filing of a petition challenging the election of a President in the Supreme Court – where the petitioner challenged the nominations and approval made by the Independent Electoral and Electoral Commission (IEBC)  in respect of the presidential candidature - whether Supreme Court had jurisdiction to hear the petition which was filed before the General Elections – Constitution of Kenya, 2010 Article 140,163

Electoral law – Presidential Election – jurisdiction of the Supreme Court – scope of the Supreme Court’s jurisdiction in presidential election petitions -  constitutional provision providing for the filing of a petition challenging the nominations and approvals in respect of candidature for the office of thePresident – requirement for a presidential election petition to be filed after the declaration of the election results – where the petitioner had filed the petition twenty seven days before the General Elections and therefore before declarations of the election results -  whether Supreme Court had jurisdiction to hear the petition – whether the jurisdiction extends to disputes arising in the run-up to the election or it can only be exercised after the announcement of the election result - Constitution of Kenya, 2010 Article 140

Words & Phrases – definition – meaning of the phrase exclusive jurisdiction – definition according to the dictionary – Black’s Law Dictionary, 8th ed, 2004

Article 163(3)(a) of the Constitution of Kenya, 2010 provides that:-

The Supreme Court has exclusive jurisdiction to hear and determine disputes relating to the elections to the office of the President arising under Article 140.

Article 140(1) of the Constitution 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.

Held

1. The Supreme Court (Presidential Election Petition) Rules, 2013 had  specifically provided that a presidential election petition was to be filed only after the declaration of the outcome of the elections. At that stage, as had been provided in rule 12, a variety of pleas could be made including those that had been raised by the petitioner.

2. Rule 12 of the Supreme Court Rules had provided for the grounds upon which a petition may have been filed which included:

a. the validity of the conduct of a presidential election;

b. the validity of the qualification of a president-elect;

c. the commission of an election offence as provided for under Part VI of the Elections Act;

d. the validity of the nomination of a presidential candidate; or

e. any other ground that the court deemed sufficient provided such ground shall not be frivolous, vexatious or scandalous.

The petitioner’s grievance had therefore been provided for save that he had to seek it after the declaration of the election results. He did not clearly render  in court the cause for pursuing the requisite redress at a premature stage.

3. Article 163(8) of the Constitution required the Court to gazette rules for the exercise of its jurisdiction and the same had been duly made and it provided for the lodging of the Presidential Election grievances. However, the petitioner presented as an excuse from compliance with the Rules, an earlier Supreme Court Advisory Opinion No. 2 of 2012 which had broad indications of situations in which a grievance may have been expressed in regard to elections.

4. The petitioner’s election between the broader principles in the Advisory Opinion and the formal rules of the Supreme Court was in departure from the legal principle and defeated his cause at the preliminary stage. Whereas the prescribed Rules of the Supreme Court made by virtue of the Constitution constituted a directly operative code in specific terms, the Advisory Opinion was not similarly structured, and largely bore a broad principle, imbued with elements of ethos and spirit. It was therefore not tenable for a party to elect between the two bodies of law as a basis for lodging a claim. The prescribed Rules were for immediate and unexceptional application.

5. The court’s exclusive original jurisdiction covered the matters in the gravamen of the petitioner’s grievance. The law had defined the time of the declaration of the Presidential election results as the operative moment in the exercise of that jurisdiction. Therefore, the span of the Court’s jurisdiction occasioned no injustice to the petitioner who was allowed under the Supreme Court (Presidential Election Petition) Rules, 2013 to raise and canvass each of his current grievances.

6. The Supreme Court had the powers to exercise exclusive original jurisdiction when dealing with issues as to the validity of the presidential election. Exclusive jurisdiction meant a court’s power to adjudicate an action or class of actions to the exclusion of all other courts.

7. The exercise of the original jurisdiction was to be attended with considerations of the public interest, justice and constitutional integrity and the court’s decision ought to have served the cause of upholding the purpose and intent of the Constitution.

8. The Supreme Court therefore lacked jurisdiction to entertain the petition in the circumstances.

Preliminary Objection upheld.

Reported By Njeri Githang’a Kamau

Brief Facts

The preliminary objection was filed by the 1st respondent seeking the dismissal of an appeal filed in the court on November 20, 2012 by the applicant/petitioner challenging the decision of the Court of Appeal in the matter.

Leave to appeal to the Supreme Court had been granted on the basis that the intended appeal raised weighty issues of general public importance relating to the law of international child abduction.

The appellant filed a Notice of Appeal before the Supreme Court on 20th November 2012 and a Petition of Appeal on the 5th February 2013 under Rules 9, 33 and 42 of the Supreme Court Rules and the inherent powers of the Court.

The preliminary objection was raised on the grounds that the appeal was filed out of time; the matters raised in the petition were not matters of general public importance, and that; the Court did not have jurisdiction to entertain the matter.

Issues

1. Whether the court could allow the preliminary objection considering that the matter at hand was one where the Court had been called upon to determine if the questions raised were of general public importance while the court was yet to pronounce itself on what constitutes a matter   of general public importance under Article 163(4) (b) of the Constitution of Kenya, 2010.  

2. Whether the Supreme Court under Rule 53 of the Supreme Court Rules had power to extend the time limited by the rules.

3. Whether the Court could disregard procedural technicalities in favour of substantive justice having regard to all relevant circumstances obtaining in the case.

Civil practice and procedure-notice of appeal-time within which to file-preliminary objection on the ground that the appeal was filed out of time and that the matters raised in the petition were not matters of general public importance- Whether the Supreme Court under Rule 53 of the Supreme Court Rules had power to extend the time limited by the rules- Whether the Court could disregard procedural technicalities - whether the court could allow the preliminary objection- Supreme Court Rules, Rule 53

Supreme Court Rules

Rule 55 states;

55. These Rules and Practice Directions issued there under shall bind all parties in all proceedings before the Court provided that:

(a) where any provision in these Rules or any relevant practice direction is not complied with, the Court may give such directions as may be appropriate, having regard to the gravity of the non-compliance, and generally to the circumstances of the case.

(b) any direction given under this rule may include the dismissal of the petition, reference or application

Held,

1. The Court was yet to pronounce itself on what constitutes a matter   of general public importance under Article 163(4) (b) of the Constitution of Kenya.   The matter at hand was one where the Court had been called upon to determine if the questions raised were of general public importance. Allowing the preliminary objection would deny the Court an opportunity to determine the important question of law and examine the substantive issues raised by the appeal to enable it make a jurisprudential finding on whether issues of child custody were indeed matters of general public importance.

2. The Supreme Court under Rule 53 of the Supreme Court Rules had power to extend the time limited by the rules and the court could exercise the power and deem the Notice of Appeal and Record of Appeal to have been filed within time.

3. The Supreme Court under Rule 55 of the Supreme Court Rules had discretion to issue appropriate orders where the rules of procedure had not been followed.

4. No injustice would be occasioned to the applicant if the matter was allowed to proceed to its determination under Article 163 (4) (b) of the Constitution of Kenya, 2010.

5. Article 159 (2) (d) of the Constitution of Kenya, 2010 required the Court to administer justice without undue regard to procedural technicalities. The essence of that provision was that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. That principle of merit bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the Court as an agency of the processes of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course. Raila Odinga v IEBC and 4 others, Petition (No. 5 of 2013).

6. The case before the court was one where the Court could disregard procedural technicalities in favour of substantive justice having regard to all relevant circumstances obtaining in the case.

7. (Dicta) “In arriving at this decision, this Court is guided by rules and regulations and urges all parties to follow the same since they guide the court and the parties in obtaining justice”

Preliminary objection dismissed, matter to proceed to full hearing

The Presidential Election (2013) was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all the relevant provisions of the law.

Brief facts

On 4^th March, 2013 Kenya held its the first general election under the Constitution of Kenya, 20210. The election was conducted by the Independent Electoral and Boundaries Commission (IEBC). Under article 138 (4) of the Constitution it was provided that a candidate shall be declared elected as President if the candidate received more than half of all the votes cast in the election and at least twenty five per cent of the votes cast in each of more than half of the counties.

During the tallying process by the IEBC, there was a failure of the electronic results transmission system which left the IEBC with no other option but to resort to the manual tallying of results which resulted in an inability on the part of the IEBC to declare results as and when they were available.

In its computation of the total votes cast, IEBC had included the rejected votes in the calculation of the threshold-percentages in the tallying of the presidential election votes with the IEBC chairman declaring that the rejected votes would count towards the final tally and that percentages of all the votes tallied for each candidate would have to be updated to reflect the inclusion of the rejected votes.

On 9^th March 2013, the Chairman of the IEBC, lssack Hassan (the 2^nd respondent), announced that Uhuru Kenyatta (the 3^rd respondent) had received 6,173,433 votes out of a total of 12, 338,667 (50.07% of all votes cast), while Raila Odinga (the main petitioner) had received 5,340,546 votes (43.31% of the votes cast). Pursuant to article 138(4) of the Constitution, Uhuru Kenyatta was declared the President-elect.

Subsequent to this declaration, three petitions were filed in the Supreme Court. The first petition contested the inclusion of the rejected votes in the final tally which the petitioners alleged had a distorting effect on the percentage votes won by each candidate. The second petition contested the manner in which the electoral process was conducted by the IEBC with regard to the presidential election. The third petition challenged the legality of the IEBC's declaration of the 3^rd respondent and 4^th respondent as President-elect and Deputy President-elect respectively. The final petition which was filed by Raila Odinga and which was later designated as the pilot petition in the consolidation of the petitions was based on the allegation that the electoral process was so fundamentally flawed, that it was impossible to ascertain whether the presidential results declared were lawful.

On 30^th March, 2013, the court delivered its findings on these issues and the reasons for its decisions were delivered on 16^th April, 2013.

Issues

1. Whether the 3^rd respondent and the 4^th respondent were validly elected and declared as the President-elect and Deputy President-elect of the Republic of Kenya;
2. Whether the presidential election was conducted in a free, fair, transparent and credible manner in compliance with the Constitution and the law;
3. Whether in determining that a candidate had met the threshold stipulated in article 138(4)(a) of the Constitution, the term " all the votes cast" included
   1. Only valid votes, or
   2. Both valid and rejected votes;
4. What consequential declarations, orders and reliefs were available to the petitioners?

Held

1. The Supreme Court's jurisdiction in a presidential election was both original and exclusive. No court other than the Supreme Court had the jurisdiction to hear and determine disputes relating to an election for the office of the President. This jurisdiction, however, was not boundless in scope as it is circumscribed in extent and in time. Limited in extent, in that it related only to an inquiry into the legal, factual and evidentiary questions relevant to the determination of the validity or invalidity of a presidential election.
2. The court must take care not to usurp the jurisdiction of the lower courts in electoral disputes. The annulment of a presidential election would not necessarily vitiate the entire general election and need not occasion a constitutional crisis, as the authority to declare a presidential election invalid was granted by the Constitution itself. The petitioner was required to present a specific, concise and focused claim, which did not purport to extend the Supreme Court's jurisdiction beyond the bounds set out in the Constitution. The Supreme Court would only grant orders specific to the Presidential election.
3. According to article 140 of the Constitution, it was clear that expedition of the presidential election disputes was of the essence. As the electoral process had led to the declaration of a winner who could not have assumed office pending the determination of the petition, the protracted holding on of a President-elect, as well as a  retiring President,  would have presented a state of anticipation and uncertainty, which would not have served the public interest.
4. Where  a party alleged  non-conformity  with the electoral  law, the petitioner  must  not only prove that there  had been non-compliance with the  law, but  that such  failure of compliance  had affected  the  validity of  the  elections. That  emerged from  a  longstanding common  law approach in  respect  of alleged irregularity  in  the acts of public bodies. Therefore the petitioner must have set out his petition by raising firm and credible evidence of the public authority's departures from the prescriptions of the law.
5. An  electoral cause  was established  much in  the  same way  as  a civil  cause  where the legal burden rested on  the petitioner, but depending on the effectiveness with which the petitioner discharged the burden, the evidential burden could keep shifting.  Ultimately, it was upon the court to determine whether a firm and unanswered case has been made.
6. The threshold of proof should in principle be above the balance of probability though not as high as beyond reasonable doubt save that it would not affect the normal standards where criminal charges linked to an election were in question.  In the case of data specific  electoral  requirements (such as the threshold specified  in  article 138(4) of the Constitution for an outright win  in the presidential election), the party that bore the legal burden of proof had to discharge it beyond any reasonable doubt.
7. As a basic principle, it should not be for the court to determine who would come to occupy the presidential office, save that the Supreme Court, as the ultimate judicial forum, entrusted under the Supreme Court Act, 2011 (Act No 7 of 2011) with the obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya must safeguard the electoral process and ensure that individuals accede to power in the presidential office in compliance with the law regarding elections. The Supreme Court must hold in reserve the authority, legitimacy and readiness to pronounce on the validity of the occupancy of that office, if there was any major breach of the electoral law, as provided in the Constitution and the governing law.
8. The special circumstances in the presidential election petition required an insightful judicial approach and there may have been unlimited number of ways in which such an approach would have guided the court. The fundamental one was the fidelity to the terms of the Constitution and of such other law that objectively reflected the intent and purpose of the Constitution which represented the special and historic compact among the people and had expressly declared that all powers of governance emanated from the people and were to serve the people.
9. The purpose of the pre-trial conference was set out in rule 10 of the Supreme Court (Presidential Election Petition) Rules, 2013. It was a preparatory forum used to lay the ground rules for the expeditious, fair and efficient disposal of the petition. The pre-trial conference enabled the court, upon hearing the parties and if need be, on its motion to make appropriate orders and give directions for ensuring the fair determination of the dispute.
10. The evidence on record portrayed that the tallying was indeed conducted in accordance with the law and the relocation of the political party agents had not undermined the credibility of the tallying nor provided a basis for annulling the outcome of the presidential election.
11. The voter registration process was essentially transparent, accurate and verifiable and the voter register compiled from this process served to facilitate the conduct of free, fair and transparent elections. The explanations given on the discrepancies in the published registers were sound and in accordance with the laws.
12. The court declined to make orders or grant reliefs sought by the petitioner, which would have occasioned conflicts between its jurisdiction and that of other lower courts especially as regarded other sets of election, which had proceeded on the same Voter Register.
13. The conduct of the presidential election was not perfect, even though the election had been of the greatest interest to the Kenyan people who had voluntarily voted. Although there were many irregularities in the data and information capture during the registration process, they were not so substantial as to affect the credibility of the electoral process and besides, no credible evidence had been adduced to show that such irregularities were premeditated and introduced by the 1^st respondent, for the purpose of causing prejudice to any particular candidate.
14. In regard to rejected votes being added in computing the final results, once a ballot paper which had been cast did not satisfy the requirements under the law, it could not be added in determining the election. The progressive character of the Constitution, and the interpretation of the provisions of article 138(4) of the Constitution which stated that a candidate shall be declared elected as President if the candidate received more than half of all votes cast in the election and at least twenty-five per cent of the votes cast in each of more than half of the counties, referred only to valid votes cast, and did not include ballot papers, or votes cast but were later rejected for non-compliance with the terms of the governing law.
15. IEBC was entitled to resort to the use of the manual tallying system as the Constitution and the electoral laws had specifically given the IEBC the discretion to either work with a full electronic system or a manual system. The court recognized that due to the inherent failure of the electronic systems and the fact that the manual tallying had not been faulted as being erroneous, the computation could not be challenged. Therefore the IEBC had no option after the transmission technology failed but to revert to the manual electoral system.
16. The applicable law entrusted the discretion to IEBC on the application of such technology as may be found appropriate. Since such technology has not yet achieved the necessary level of reliability, it could not as yet be considered a permanent or irreversible foundation for the conduct of the electoral process.
17. It was clear that a fresh election under article 140(3) of the Constitution would be triggered by the invalidation of the election of the declared President-elect by the Supreme Court following a successful petition against such election. Such a fresh election would be built on the foundations of the invalidated election and could only involve candidates who had participated in the original election. There would therefore be no basis for a fresh nomination of candidates for the resultant electoral contest.
18. According to the law, the fresh election would have been confined to the petitioner and the President-elect while all the remaining candidates who had not contested the election of the President-elect would be assumed to have either conceded defeat or acquiesced in the results as declared by the IEBC and such candidates could not participate in the fresh election.
19. There was no evidence to prove that the candidate declared as the President-elect had not obtained the basic vote threshold and therefore that fact justified his being declared the validly elected President of Kenya.
20. The presidential election was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all the relevant provisions of the law.
21. The 3^rd and 4^th respondents were validly elected and declared as the President and Deputy President elect by the 2^nd respondent in the presidential elections.
22. Rejected votes should not have been included by the 2^nd respondent in calculating and determining the final tallies in favour of each of the presidential candidates.