Principles to be complied with when invoking the Supreme Court’s appellate jurisdiction on a matter that originated under Judicial Review

Kiliswa & 3 Others v Shitandi

Petition No 28 of 2014

Supreme Court of Kenya at Nairobi

Rawal DCJ, Tunoi, Ibrahim, Ojwang & Wanjala SCJJ

April 16, 2015

Reported by Andrew Halonyere

Brief facts

The appeal emanated from a complaint lodged before the dispute Resolution Committee of the IEBC, claiming that the appellant’s name had been erroneously removed, as the gender top-up nominee on the Ford Kenya party-list for Bungoma County, by being replaced with that of the third respondent. The Committee in its ruling dismissed the appellant’s complaint on the ground, that no evidence had been adduced in support of the allegations made.

The appellant challenged the Committee’s decision before the High Court by way of Judicial Review. She contested the proceedings and decision of the Committee on the basis, that the committee had overlooked the evidence placed before it, and failed to give reasons for the decision arrived at, thus detracting from the principle of fair and impartial hearing. The High Court however dismissed the appellant’s case.

The appellant, thereafter moved to the Court of Appeal. The Court of Appeal in its ruling upheld the High Court’s decision. Being dissatisfied, the appellant moved to the Supreme Court on an appeal.

The respondent on its part challenged the appeal by raising a preliminary objection on a point of law that the Supreme Court lacked jurisdiction to hear and determine the petition.

Issue

1. Whether the appeal raised any issue involving the interpretation or application of the Constitution, as contemplated under article 163(4)(a) of the Constitution, so as to activate the Supreme Court’s jurisdiction.

Judicial Review - jurisdiction of the Supreme Court to entertain appeals on judicial review – principals to be complied with when  moving to the Supreme Court in an appeal that originated under judicial review – whether there was a basis for invoking the Supreme Court’s appellate jurisdiction – Constitution of Kenya, 2010 article 163 (4) (a)

Held

1. By merely alleging that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of article 163(4)(a) of the Constitution. Article 163 (4) (a) had to be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court.  Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court.
2. For an appeal to lie to the Supreme Court in a matter that originated under judicial review, the issues had to fall under the canopy of article 163(4)(a). Judicial Review was concerned with the process and when appealing to the Supreme Court in a matter that originated before the High Court by way of Judicial Review, the party concerned should comply with the following principles.
   1. Not all Judicial Review matters were appealable to the Supreme Court, as of right.
   2. It was open to the party concerned to move the Court on appeal under article 163(4)(b) of the Constitution, in which case, the normal certification process applied.
   3. Where such an appeal comes under article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal.
   4. The party concerned should demonstrate that the superior Courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
3. The Supreme Court is by no means an open forum for all cases from the Court of Appeal on judicial review matters. Each appeal is to be considered on its merits on a case-to-case basis. Only those causes bearing a real constitutional issue can be heard by the Supreme Court and a bare claim that a matter raises issues of interpretation or application of the Constitution does not suffice.
4. The law recognizes that the Supreme Court as the apex Court, stands not in good stead to evaluate evidence and to make factual findings, and so in respect of such fact-material, there would be no basis for invoking the Supreme Court’s appellate jurisdiction under article 163(4) (a) of the Constitution.

Preliminary Objection upheld, petition struck out.

 Petitioner to pay costs of the respondent.

Supreme Court stays execution of court orders

Justus Kariuki Mate & Another v Martin Nyaga Wambora & another

Supreme Court of Kenya

Civil Application No. 37 of 2014

P.K. Tunoi & N.S. Ndungu, SCJJ.

December 29, 2014

Reported by Emma Kinya Mwobobia

Issues:

1. Whether the matter before Court of general public importance under article 163(4)(b) of the Constitution and thus merit a determination by the Supreme Court
2. Whether the appeal raised sufficient grounds to warrant a stay of execution of the Court of Appeal’s decision

Jurisdiction – jurisdiction of the Supreme Court – interpretation and application of the Constitution – jurisdiction of the Supreme Court in interpretation or application of the Constitution in matters of general public importance – whether the issues raised were considered matters of general public importance – Constitution of Kenya, 2010 article 163(4)

Civil Practice and Procedure – stay – stay of execution – stay of execution of the Court of appeal decision – application for a stay of execution of the court judgment and orders pending hearing and determination of the appeal – whether the application was valid in the circumstances

Held:

1. The determination of the question whether the High Court exceeded its jurisdiction by finding the applicants to be in contempt of a Court Order called for the interpretation and application of the Constitution which was the criterion of jurisdiction of the Supreme Court by the terms of article 163(4)(a) of the Constitution.
2. The issues raised were not only cognizable but also weighty constitutional questions that were, prima facie, arguable. As significant as the issues in contest were, it was not possible to resolve them with finality in the context of the preliminary motion.
3. If the Supreme Court was to decline to maintain the status quo, the High Court would proceed to take mitigation and then sentence the applicants. There was a likelihood, in that case, that the applicants would be incarcerated and the substratum of the appeal-cause would have been spent. In the event that the Supreme Court eventually found in favour of the applicants, it would be impossible to compensate them by way of costs. In the alternative, if the Court found in favour of the respondents, no harm would have been occasioned to them.
4. The determination of the extent of application of the doctrine of separation of powers, which was a vital constitutional concept was a matter of public interest.
5. The respondents’ case rested on fundamental constitutional questions not yet interpreted and which bore a close relation to the appellants’ case and hence the need for an interpretation of the Constitution ahead of the application of the standard law of contempt. 

Application allowed. Execution of the Court of Appeal orders to rest in abeyance and status quo to be maintained pending the determination of the appeal. Hearing date of the pending appeal to be issued by the Registrar on priority basis. The costs of this application shall abide the appeal.

Cases

East Africa

1. Aramat, Lemanken v Harun Meitamei Lempaka & 2 others Civil Application No 8 of 2014 – (Mentioned)

2. Commercial Bank of Africa v Ndirangu, (1990-1994) EA 64 – (Explained)

3. Erad Suppliers & General Contractors limited v National Cereals and Produce Board Petition No 5 of 2012 - (Mentioned)

4. Joho ,Hassan Ali & Another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 – (Explained)

5. Kenya Section of the International Commission of Jurist v Attorney-General & 2 others Criminal Appeal No 1 of 2012 – (Mentioned)

6. Kidero ,Evans Odhiambo & 5 others v Ferdinand Ndungu Waititu & 4 others Petition No 18 of 2014 – (Followed)

7. Macharia,SK & Another v Kenya Commercial Bank & 2 others Application no 2 of 2011 - (Explained)

8. Munene ,Mary Wambui v Peter Gichuki Kangara & 2 others Application No 12 of 2014 – (Explained)

9. Munya ,Gatirau Peter v Dickson Mwenda Kithinji & 2 ohers Application No 5 of 2014 – (Followed)

10. Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No 290 of 2012 – (Explained)

11. Mwangi ,Njenga & Another v Truth Justice and Reconciliation Commission & 4 others, Court Petition No 286 of 2013 – (Explained)

12. Okoiti ,Okiya Omtatah & 3 others v Attorney-General & 5 others Petition 227 ,281 & 282 of 2013 (consolidated) – (Explained)

13. Speaker of Senate & Another v Attorney General & 3 others, Advisory Opinion No2 of 2013- (Explained)

14. Wanjohi ,George v Steven Kariuki & 2 others Application No 6 of 2014.

South Africa

1. Doctors for Life International v Speaker of the National Assembly & others (CCT 12/05), [2006] ZACC 11 - (Explained)

2. National Coalition for Gay and Lesbian Equity & 13 others v Minister for Home Affairs and others, (CCT10/99), [1999] ZACC 17– Petition 227 ,281 & 282 of 2013 (consolidated) - (Explained)

United Kingdom

1. Hadkinson v Hadkinson [1952] 2 All ER 567 - (Explained)

Statutes

East Africa

1. Constitution of Kenya,2010 articles 6,10, 159 (2) (e); 163(4)(a) ;174; 175 ; 177(1) (d) ; 178; 179 ; 185 (1) (2) ;196 (3) - (Interpreted)

2. Supreme Court Act, 2011 (Act No 7 of 2011) sections 15,16, 19, 24(1) - (Interpreted)

3. Supreme Court Rules, 2012 (Sub Leg Act No 7 of 2011) rules 23 , 24, 26(1) - (Interpreted)

International Instruments

1. Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence (1998)

2. Commonwealth Principles on the Accountability of and the Relationship between the three Arms of Government (2003)

Advocates

1. Prof Tom Ojienda for the Applicant's

2. Mr Muite for the Respondent's

Vetting Board has no jurisdiction to examine complaints after the promulgation of the Constitution

Judges and Magistrates Vetting Board  v Kenya Magistrates and Judges Association & another

Supreme Court of Kenya

Petition No. 29 of 2014

W.M.Mutunga CJ, K.H Rawal DCJ, P.K. Tunoi, J.B. Ojwang’, S.C. Wanjala, N.S. Ndungu, SCJJ.

December 19, 2014

Reported by Emma Kinya Mwobobia

Issues

1. Whether the Supreme Court had jurisdiction determine the appeal on the limitation period of vetting the conduct of the Judges and Magistrates 
2. Whether the Judges and Magistrates Vetting Board (Vetting Board), in determining the suitability of a Judge or Magistrate to continue to serve in the Judiciary could consider conduct after the effective date
3. On what basis could the vetting board determine that a Judge or magistrate who was in office on the effective date was suitable to continue to serve?
4. Whether there was a conflict in the mandate of the vetting Board vis a vis the Judicial Service Commission(JSC)
5. What process would be followed where a Judge or a Magistrate who was being vetted faced a real prospect of disciplinary proceedings against him by the JSC or where the Board came across an incident of misconduct after the due date?

Jurisdiction – jurisdiction of the Supreme Court – interpretation of the Constitution - Jurisdiction of the Supreme Court in the interpretation and application of the Constitution – whether the Supreme Court had jurisdiction in the appeal – Constitution of Kenya 2010, article 163(4)

Constitutional Law – statutes – constitutionality of a statute – where an Act of Parliament is found to be in conflict with the Constitution – effect of the conflict – whether the declaration by the Supreme Court in the Joho case that section 76(1)  of the Elections Act was invalid and had retrospective effect – Constitution of Kenya, 2010 articles 10, 159

Constitutional law – vetting of Judges and Magistrates – mandate of the Judges and Magistrates Vetting Board – mandate to scrutinize conduct of judicial officers before the promulgation of the Constitution – vetting board’s mandate to determine the suitability of a judicial officer to serve – basis of the vetting board’s decision on the acts and omissions of the judicial officer before the promulgation of the Constitution - whether the Judges and Magistrates Vetting Board could vet judicial officers in respect to acts or omissions occurring after the promulgation of the Constitution  - Constitution of Kenya, 2010  articles 10, 159, Sixth Schedule section 23; Vetting of Judges and Magistrates Act section 18(1)

Held:

1. The appeal was filed as of right pursuant to Article 163 (4) (a) of the Constitution because it involved the interpretation or application of the Constitution. It was properly before the Supreme Court and the Court had jurisdiction in every aspect to determine the issue. To decline to determine the question as framed on the basis of an unsubstantiated claim of lack of jurisdiction would defeat the vetting process, notwithstanding the clear terms of the Constitution.
2. Section 23(1) of the Sixth Schedule to the Constitution required that the mechanisms and procedures for vetting occur in terms of the Judges and Magistrates Vetting Act, subject to the values and principles set out in Articles 10 and 159 of the Constitution.
3. The essence of Section 23(2) as read together with section 23(1) of the Sixth Schedule to the Constitution was that the removal or process leading to a removal by virtue of the Judges and Magistrates Vetting Act was not subject to a review by a Court. 
4. The extent and reach of the vetting process was captured in the wording of section 23(1) of the Sixth Schedule to the Constitution as being “within a time frame to be determined in the legislation” meaning the Judges and Magistrates Vetting Act. However, that time frame even as determined by legislation was not elastic. It was to serve a limited purpose of determining the suitability of those judicial officers who were in office on the effective date to continue to serve.
5. The inescapable conclusions from the wording of Section 23(1) of the Sixth Schedule to the Constitution which stated in part that “the suitability of all judges and Magistrates who were in office on the effective date to continue to serve…” were:

1. That the Vetting Board was at liberty to inquire into the conduct of all the Judges and Magistrates who were in office on the effective date, to determine their suitability to continue to serve.
2. That the Vetting Board had no jurisdiction to inquire into the conduct of any Judge or Magistrate who was not in office on the effective date. The logic of this exclusion from vetting was that the latter, not having been in office before the promulgation of the Constitution of 2010, could not have done or omitted to have done anything in his/her capacity as a judicial officer to warrant the scrutiny of the Vetting Board. Conversely, a Judge or Magistrate “who was in office on the effective date” may or may not have done something at the time he was in office before the promulgation of the Constitution of 2010 to warrant the scrutiny of the Vetting Board.

6. The Vetting Board could only make determination on the suitability of a Judge or Magistrate to continue to serve on the basis of what the Judge or Magistrate was alleged to have done or omitted to do during his tenure in office before the Constitution of 2010, for it was his actions or omissions, that will determine whether he/she was to be vindicated or condemned.  The Board could not wait to act on the basis of what such Judge or Magistrate would do after the promulgation of the Constitution of 2010.
7. The Constitution had in-built mechanisms which had ensured a harmonious coexistence between the vetting process for Judges and Magistrates who were in office on the effective date (an exclusive mandate of the Board), and the disciplinary process for all judicial officers who were not in office on the effective date, including those who have already been vetted (an exclusive mandate of the JSC).  The Constitution did not envisage vetting to be a continuous process.  Yet this was what vetting could become if the Vetting Board encroached upon the jurisdiction of the JSC.
8. The institutions under the Constitutional set up were not established to pursue sibling rivalries at the expense of the public good. They ought to consult and where necessary coordinate their operations so as to maximize the public good in conformity with their constitutional responsibilities.
9. The court took judicial notice of the fact that upon commencement of the vetting process by the Vetting Board, the JSC handed over to it all the complaints within the Commission’s possession relating to the conduct of judicial officers before the effective date which was in conformity with the requirements of the Judges and Magistrates Vetting Act.
10. There would be no reason for the JSC not to hold its hands until the officer in question had been vetted. Similarly, there would be no reason as to why the Board should not have reported an officer to the Commission for appropriate disciplinary action. The vetting would date as far back as from the date of the appointment under the retired constitution up to and until the effective date but not beyond.
11. The Vetting Board in execution of its mandate as stipulated in Section 23 of the Sixth Schedule to the Constitution could only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date and not after. To hold otherwise would not only defeat the transitional nature of the vetting process but would transform the Board into something akin to what Lord Mersey in G & C Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd (1913) once called an unruly dog which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be. In the instant matter, this analogy was used to refer to a jurisdictional mandate within the constitutional set up and not the vetting Board per se.

Per N. S Ndungu, SCJ (Dissenting)

1. The intention of the vetting process was to bring all judicial officers appointed under the repealed constitution in line with the 2010 constitutional framework.  This process was conceptualized to legitimize the concerned judicial officers’ exercise of people-drawn judicial authority in accordance with Article 159 of the Constitution.
2. The mandate of the Vetting Board was to determine the suitability of Judges and Magistrates to continue to serve in accordance with the values under Article 10 and 159.  Therefore, the intention of the vetting process was to the individual conduct of every serving Judge or Magistrate appointed under the repealed Constitution as well as the institutional reformulation of the Judiciary.  The process was also intrinsically linked to the overall objectives of Chapter Six of the Constitution, which included suitability as one of the guiding principles of leadership and integrity in accordance with Article 73(2)(a) of the Constitution. 
3. The determination of suitability involved an extensive interrogation of one’s essential quality of nature, conduct and disposition when adjudged against the parameters of Article 10 and 159 and ought to take into account a multiplicity of factors including past and present dealings and inclinations. Such values such as patriotism, human dignity, integrity, transparency and accountability were matters intrinsically tied to a person’s attributes, conduct and character in both public and private spheres of life. A person’s ethical and moral values were a product of nurture observable in the day-to-day relationships and dealings with others.
4. To find that a judicial officer did not exhibit integrity, was unpatriotic or had disregarded the human dignity of litigants was a conclusion that could only be drawn after an assessment of a series of previous personal traits, habits, ethos and behavior in both private and public life. It was an assessment done in total disregard of a point in time when it happened. It was therefore not plausible to argue that a Judge could not be declared unsuitable to continue to serve because evidence of gross misconduct leading to a removal was in relation to things that happened after the effective date.
5. A removal of a judge or magistrate from office by the vetting Board pursuant to Section 23(1) and (2) of the Sixth Schedule to the Constitution upon a finding of unsuitability on account of complaints emanating from conduct after the effective date could not in any way be perceived as the usurpation of the role of JSC under Articles 168(2) and 172(1)(c) of the Constitution. That was because the evidential material led in proof of suitability, under Article 10 and 159, or failure thereof should have been tendered by any person or body in pursuance of a lawful and constitutionally sanctioned process of vetting of the serving judicial officers.  As the constitutional foundation and pillar for Kenya’s judicial vetting process, Section 23(1) had been given effect by the Judges and Magistrates Vetting Act, particularly Section 18(1) which had not specified a time-limitation for occurrence of complaints to be considered in determining suitability of a judge or magistrate.
6. As a basis of institutional transition, the Vetting Board was not barred either by the Constitution or legislation from examining complaints on the basis of conduct after the effective date.  The consideration of post-effective date allegations by the Vetting Board did not usurp the investigative and disciplinary powers of the JSC.  The restricted timeframe of the Vetting Board pointed to the temporary nature of its existence and the JSC’s constitutional duty for the continuous facilitation of judicial independence and accountability.
7. The mandate of the Vetting Board was transitional, both in individual and institutional scope. Once the vetting process was complete, and the mechanisms constitutionally and statutorily given to the Vetting Board were exhausted, then the Vetting Board was precluded from recalling a vetted Judicial Officer on the basis of evidence emerging whether of a pre or post constitutional duration.  Such command constitutionally belonged to the JSC. 
8. The essence of the vetting process was to bring major reforms into the institution of the Judiciary through the evaluation of suitability of individual Judges and Magistrates. Considerations of suitability ought not to be confined to specific periods of time, unless expressly provided by the Constitution or statute.  The critical aspect of vetting in the Kenyan context was judicial service in accordance with the values and principles under Articles 10 and 159 of the Constitution which had a continuous lifespan and applied prospectively from the effective date.  As such, the duty by every judicial officer to uphold the Constitution at all material times warranted the consideration of acts or omissions after the effective date on the strength of the continuous applicability of the Constitution.  While the vetting process was a transitional requirement bearing on the holistic institutional transformation, the mandate of the JSC was in its disciplinary mandate isolated to individual Judicial Officers. 
9. The prospective applicability of the Constitution guided the role of the Vetting Board as well as that of the JSC. During the life of the Vetting Board nothing barred the JSC or the Vetting Board from legitimately carrying on their mandates concurrently.  Section 23 of the Sixth Schedule insulated the vetting procedure and the Vetting Board from the limitations of Articles 160, 167 and 168 of the Constitution, in consequence of the inquiries by the Vetting Board and the probable collision with the mandate of the JSC. However, the insulation was only applicable during the life of the Vetting of Judges and Magistrates(VJM) Act.
10. Article 168 of the Constitution outlined the procedure for the removal of a Judge from office. The Article required that the process of initiating the removal of a Judge be initiated only through the JSC or upon the petition of any person to the JSC. The import of having Section 23 of the Sixth Schedule and Article 168 of the Constitution could only mean that there were various measures put in place to govern the constitutional transition and continuity of the Judiciary.  That could be drawn from the ratione temporis of the Vetting Board and the language of Section 23 of the Sixth schedule sanctioning the operation of the VJM Act despite Articles 160, 167 and 168.  An interpretation of Section 23(1) could only be complete with that of Section 23(2) of the Sixth Schedule to the Constitution. The operation of the VJM Act was imperative in the sense that it overrode Articles 160, 167 and 168 and Section 23(1) of the sixth Schedule to the Constitution. That cleared the path for the Vetting Board to consider the suitability of Judges and Magistrates to continue to serve using the relevant considerations provided for under Section 18 of the VJM Act, including those arising after the effective date.
11. The removal of a Judge or the process leading to such removal by virtue of its operation was further insulated from consideration by any Court by virtue of the Ouster clause in Section 23(2) of the Sixth Schedule to the Constitution. Such removal was based on considerations of suitability, which therefore and in line with the VJM Act were constitutionally sanctioned and guarded against any interference.
12. Based on the provisions of the Constitution, the VJM Act and the Judicial Service Act, the mechanisms of the JSC were neither pegged upon those of the Vetting Board nor were those of the Vetting Board pegged upon the JSC. The system created by the Constitution in that regard was one of institutional parallelism but with different purposes and review mechanisms, each on its own foundation and lifespan.  That arrangement was designed to yield optimal results in institutional alignment and not necessarily lead to an institutional paralysis.  The Constitution of Kenya was replete with concurrent jurisdictions in important spheres of national governance.  An example was the Fourth Schedule to the Constitution which outlined a clear scheme of vertical devolution with various national organs performing similar functions for various differentiated or reinforcing purposes. 
13. The enactment of Section 23 into the transitional schedule of the Constitution was a laborious exercise calling for the invocation of a ‘notwithstanding mechanism’ to find a compromise and a balance of the competing but reinforcing constitutional principles. 
14. Unlike Section 33(1) of the Canadian Charter that gave the legislatures an open window in enactment of laws that override certain provisions of the Charter and which has been sparingly invoked, Section 23(1) of the Sixth Schedule to the Constitution was very narrow and squarely restricted to only three Articles of the Constitution and a defined category of persons (Judges and Magistrates serving before the effective date). It only allowed the operations of the VJM Act to override Article 160 of the Constitution on Independence of the Judiciary, Article 167 on Tenure of Office of the Chief Justice and other Judges and Article 168 on Removal from Office. The narrow and pointed approach bore comparative jurisprudential approval from the decision of the Supreme Court of Canada in Ford vs. Quebec [1988] 2 S.C.R. 712 at page 33, where the Supreme Court confirmed that Section 33 of the Canadian Charter did not impose any obligation on a legislative body to substantively justify or explain its use of the notwithstanding clause as long as the requirement of an express declaration was met.
15. The operation of the VJM Act despite the outlined provisions of the Constitution effectively mooted any argument that the Vetting Board risked encroaching into a jurisdiction reserved for the JSC.
16. The finding of the majority in the purposive interpretation of the Constitution challenged the procedure of vetting as outlined under Section 19(1) and (2) of the VJM Act. The challenge bore several far-reaching consequences:

1. The reversal of the Supreme Court’s decision in Judges and Magistrates Vetting Board & Others v. The Centre For Human Rights And Democracy, Petition No 13A of 2013 consolidated with Petition No 14 of 2013 and Petition 15 of 2013 (JMVB (I));
2.  The introduction of the potential question or review of the Vetting Board’s processes by other Courts including the Supreme Court contrary to the provisions of Section 23(2) of the Sixth schedule and Section 22(4) of the VJM Act.
3. The inferred unconstitutionality of Section 18 and 19 (1) and (2) of the VJM Act, despite the fact that the constitutionality of the VJM Act was in fact affirmed by the High Court in the case of Dennis Mogambi Mong’are v. The Attorney-General and Two Others, Nairobi High Court Petition No. 146 of 2011 (Ngugi, Majanja and Odunga, JJ), and re-affirmed by the Court of Appeal and subsequently by the Supreme Court in JMVB (I)

These consequences stem from a literal and narrow interpretation of the Constitution and the law.

17. The transitional aspect of the Vetting Board was conceived to denote the period within which it would conclude its mandate as opposed to a timeframe for limitation of the admissible conduct for its consideration. 
18. Section 18 of the VJM Act outlined the relevant considerations in determining the suitability of a Judge or Magistrate to continue in service after the effective date.  Some of these considerations included past work record of the Judge or Magistrate including prior judicial pronouncements, competence and diligence, any recommendations for prosecution of the Judge or Magistrate by the Attorney General or the Kenya Anti-Corruption Commission, pending complaints or other relevant information received from any person or body including post-effective date institutions such as the Commission on Administrative Justice. The section also called for a consideration of integrity proven by a demonstrable consistent history of honesty and high moral character in professional and personal life.  These provisions bear the intention of a comprehensive consideration of suitability not truncated between the pre and post-2010 periods as had been held by the majority.
19. Neither by its letter nor spirit or tenor did Section 23(1) of the Sixth Schedule to the Constitution rationally support a conclusion that evaluation of suitability of serving judicial officers on the basis of complaints of conduct was subject to a period in time of occurrence of such conduct.  To do so was to place undue fetters of time and to unnecessarily ring-fence the mandate of the Vetting Board in respect of conduct under review, in a manner antithetical and unintended, by the clear language, spirit and object of judicial reforms as envisaged by the Constitution. As such, the bar to the admissibility of acts or omissions after the effective date by the Vetting Board was a constitutional misinterpretation and the disruption of a sanctioned constitutional process.
20. Most Judges have been vetted and exhausted the review mechanisms of the Vetting Board. There are many other judicial officers whose suitability through vetting had yet to be determined. Therefore, the finality and predictability of the Supreme Court’s decision in JMVB (I) and the purpose of vetting as the people’s command now stood at a compromise.

Petition disallowed. Court of Appeal judgment upheld. Costs to be borne by the defendant.

Supreme Court lacks jurisdiction to determine appeals concluded before the promulgation of the Constitution

Menginya Salim Murgani v Kenya Revenue Authority

Supreme Court of Kenya

Civil Application No.4 of 2014

P.K. Tunoi, M.K. Ibrahim,J.B. Ojwang’, S.C. Wanjala & S.N. Ndungu, SCJJ.

December 19, 2014

Reported by Emma Kinya Mwobobia

Issues:

1. Whether the Supreme Court has jurisdiction to determine an appeal from the Court of Appeal which had been heard and determined before the promulgation of the Constitution of Kenya, 2010
2. Whether the matter before the Court was of general public importance under article 163(4)(b) of the Constitution and thus merit a determination by the Supreme Court

Jurisdiction- jurisdiction of the Supreme Court – establishment of the Supreme Court by the Constitution - jurisdiction of the Supreme Court in matters where the matter was determined and concluded before the promulgation of the Constitution – where the instant matter had been concluded by the Court of Appeal which was the apex court at the time – whether the Supreme Court has jurisdiction to hear and determine the appeal – Constitution of Kenya 2010, article 163(4)

Held:

1. It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merit or purport to exercise a judicial power over the same matter, save as provided by law.
2. There was no appeal pending before the appellate court at the date of the promulgation of the Constitution as the subject-matter of the appeal in question had been heard and determined before the promulgation. To grant the said application would have meant the Court of Appeal quashing and setting aside its own decision and that would amount to going beyond the scope of the powers of review as conceived in legal parlance.
3. The instant matter was not distinguishable from the Samuel Kamau Macharia & another v Kenya Commercial Bank  Ltd & 2 Others Application of 2 of 2011 (S.K Macharia case), as it was evident that the rights of the parties to the dispute had been determined in a decision of the Court of Appeal which was the apex Court prior to the promulgation of the 2010 Constitution.  
4. In respect of the interplay between natural justice and disciplinary proceedings in employment relations, especially in circumstances such as those obtaining in the instant matter in which the employer was the State’s foremost agency of financial power was eminently meritorious.
5. In the context of the facts and the history of the instant matter, the binding effect of the S. K. Macharia case as regards the appellate Court determinations made before the promulgation date of the Constitution had not been distinguished.

Orders:

Notice of Motion disallowed. Court of Appeal decision upheld. Costs to be borne by the applicant.

Cases

East Africa

1. Bell, Malcom v Daniel Toroitich Arap Moi & another Application No 1 of 2013 – (Mentioned)
2. Benjoh amalgamated Ltd & another v Kenya Commercial Bank Ltd Civil Case No 1219 of 1992 – (Explained)
3. Lakhamshi Brothers v Raja & Sons [1966] EA 313 – (Explained)
4. Macharia, Samuel Kamau & Another v Kenya Commercial Bank & 2 others Civil Application No 2 of 2012 – (Explained)
5. Musiara Ltd v William Ole Ntimama, Civil Application No 271 of 2003 - (Mentioned)
6. Ngoge, Peter Oduor v Francis ole Kaparo & 4 others Miscellaneous Application No 22 of 2004 - (Mentioned)
7. Njiroine, Daniel Shumari Njiroine v Naliaka Maroro Civil Application No 5 of 2013 – (Explained)
8. Rafiki Enterprises Ltd v Kingsway & Automart Ltd Civil Application No 375 of 1996 – (Explained)
9. Rai, Jasbir Singh & 3 others v Tarlochan Singh Rai & 4 others Petition 4 of 2012 – (Followed)
10. Steyn, Phillipus v Giovanni Gnecci-Ruscone Civil Appeal No 171 of 2009 – (Mentioned)

Statutes

East Africa

1. Constitution of Kenya, 1969 (Repealed) section 77 – (Interpreted)
2. Constitution of Kenya, 2010 articles 163(4)(b); 163(5) – (Interpreted)
3. Court of Appeal Rules, 2010 (cap 9 Sub Leg) rule 52,56(3) – (Interpreted)
4. Supreme Court Rules, 2012 (Act No 7 of 2011) rules 11, 22(1); 35

Advocates

1. Mr Kurauka for the Applicant
2. Mr Amoko for the Respondent

Declaration of invalidity of section 76(1)(a) of the Elections Act must apply from the date of commencement of the Act

Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 Others

Supreme Court of Kenya

Petition No. 21 of 2014

K. H. Rawal DCJ, P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang’, S.C. Wanjala, N.S. Ndungu, SCJJ.

December 19, 2014

Reported by Emma Kinya Mwobobia

Issue

Whether the appellate court could retrospectively apply the Supreme Court’s decision on declaration of invalidity of section 76(1)(a) of the Elections Act notwithstanding that the said declaration was silent on its application timespan

Constitutional Law – retrospectively – application of a law – application of a law invalidating a section of the statute – where the Supreme Court had declared section of the Elections Act invalid – the extent of the invalidity – whether the invalidity of the section applied retrospectively to run from the commencement of the Act – whether acts committed under the invalidated law were a nullity – Elections Act 2011, section 76(1)

Held:

1. The declaration of invalidity of Section 76(1)(a) of the Elections Act, applied retrospectively in the instant case, as in the case of Mary Wambui Munene v Peter Gichuki King’ara & 2 Others Sup Ct Applic. No. 12 of 2014 (Mary Wambui), because the Elections Act was an essential derivative of the Constitution enacted after the promulgation of the Constitution and was meant to set out the guidelines for the proper and effective conduct of elections and necessarily incorporated the element of time and timelines.
2. The lesson of comparative jurisprudence was that while a declaration of nullity for inconsistency with the Constitution annulled statute law, it did not necessarily entail that all acts previously done were invalidated. In general, laws have a prospective outlook and prior to annulling declarations, situations otherwise entirely legitimate may have come to pass and differing rights may have accrued that have acquired entrenched foundations. That gave justification for a case-by-case approach to time-span effect in relation to nullification of statute law. In that regard, the Court had a scope for discretion, including the suspension of invalidity and the application of prospective annulment. Such recourses, however, were for sparing and most judicious application in view of the overriding principle of the supremacy of the Constitution as it stood.
3. The High Court bore the primary responsibility for determining whether any law was inconsistent with or in contravention of the Constitution.  The discretion also vested in the Court of Appeal as well as the Supreme Court. In Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others Sup Ct Petition No. 10 of 2013(Joho case) and Mary Wambui cases, the Supreme Court considered the impugned statutory provision in light of the entire scheme of the Constitution before making the declaration of invalidity and further in the Mary Wambui case, before deciding upon the retrospective application of that declaration.  That was the appropriate approach as regards the instant case.
4. The provisions of Section 76(1)(a) of the Elections Act were inconsistent with the terms  of Article 87(1) of the Constitution and were invalid to the extent of that inconsistency. 

Orders:

1. The Petition of Appeal dated 3^rd June, 2014 disallowed.
2. The Judgment and consequential Orders of the Court of Appeal, upheld.
3. The appellant to bear the costs of the appeal before this Court.

The locus standi of an NGO deregistered in the course of legal proceedings

Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others

Civil Application No 29 of 2014

Supreme Court of Kenya at Nairobi

W M Mutunga, CJ & P, K H Rawal, DCJ &VP, P K Tunoi, M K Ibrahim, J B Ojwang & N S Ndungu, SCJJ

December 9, 2014

Reported by Beryl A Ikamari

Brief facts

The Trusted Society of Human Rights Alliance, the 1^st Respondent, a Non-Governmental Organization lodged a suit, in public interest, to challenge the appointment of Mr Mumo Matemu as the Chairperson of the Ethics and Anti-Corruption Commission at the High Court. At the time the suit was lodged at the High Court, the 1^st Respondent was duly registered as a Non-Governmental Organization.

In its judgment, the High Court annulled the appointment of Mr Mumo Matemu and there was an appeal to the Court of Appeal, wherein the annulment of the appointment was set aside. The 1^st Respondent lodged a Petition of Appeal at the Supreme Court against the Court of Appeal decision.

At the Supreme Court the question as to whether the 1^st Respondent had become a non-entity, which could not lodge a suit in court, due to its deregistration was raised.

On August 16, 2013 Gazette Notice No 11962 was published pursuant to section 16 of the Non-Governmental Organizations Co-ordination Act (Cap 134), it announced the intention to cancel the registration of certain Non-Governmental Organizations (NGOs) which included the 1^st Respondent. The cancellation of the registration of those NGOs was on the basis of breaches of the requirements of the Non-Governmental Organizations Co-ordination Act (Cap 134).

Later, on July 8, 2014, a letter was written on behalf of the Executive Director of the Non-Governmental Organization Co-ordination Board to the 1^st Respondent stating that the 1^st Respondent was deregistered on August 16, 2013 and was not on the Board register as at September 2, 2013. A second letter written on behalf of the Executive Director of the same Board was a recommendation letter dated October 7, 2014, indicating that the 1^st Respondent had complied with the Rules and Regulations governing Non-Governmental Organizations as well as the terms and conditions of registration.

Issue

1. Whether the deregistration of an NGO rendered it a non-existent entity and it therefore lacked the locus standi to institute an appeal.
2. Nature of notice required for the deregistration of an NGO.

Constitutional Law-locus standi-locus standi in public interest litigation-whether a Non-Governmental Organization which had purportedly been deregistered could institute an appeal at the Supreme Court-Constitution of Kenya 2010, articles 22, 258 & 260; Non-Governmental Organizations Co-ordination Act (Cap 134), sections 12(2), 12(3) & 16(2).

Statutes-statutory interpretation-mode of cancelling the registration of a Non-Governmental Organization-statutory requirement for notice of cancellation to be served upon the affected Non-Governmental Organization- whether a Gazette Notice would be sufficient- Non-Governmental Organizations Co-ordination Act (Cap 134), sections 12(2), 12(3) & 16(2).

Constitution of Kenya 2010, article 260;

“person” includes a company, association or other body of persons whether incorporated or unincorporated;

Constitution of Kenya 2010, article 258;

258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.

Non-Governmental Organizations Co-ordination Act (Cap 134), section 16;

16. Cancellation of certificate

(1) The Board may cancel a certificate issued under this Part, if it is satisfied that—

(a) the terms or conditions attached to the certificate have been violated; or

(b) the organisation has breached this Act; or

(c) the Council has submitted a satisfactory recommendation for the cancellation of the certificate.

(2) Notice of the cancellation of a certificate shall be served on the Organisation in respect of whom such cancellation relates and shall take effect within fourteen days after the date of that notice.

Held

1. The notice of cancellation or suspension of a Non-Governmental Organization, as required in section 16(2) of the Non-Governmental Organizations Co-ordination Act (Cap 134) was a notice to be served upon the affected Organization and not a Gazette Notice. The applicable legal provision on the issue of the cancellation of the registration of an NGO made no reference to the issuance of a Gazette Notice.
2. The requirements of section 16(2) of the Non-Governmental Organizations Co-ordination Act (Cap 134) were that a notice would have to be served upon the Non-Governmental Organization whose registration was being cancelled. There was no evidence of service of such a notice to the 1^st Respondent.
3. The Gazette notice was not the notice contemplated by the law as it was not served upon the 1^st Respondent but was published for the public's information. Further, the import of the Gazette Notice was that it was a notification of an intention to cancel or suspend certificates of registration for various Non-Governmental Organizations.  In and of itself, the Gazette Notice was not the instrument of deregistration. In the circumstances, it was not possible to ascertain if and when the 1^st Respondent was deregistered as a Non-Governmental Organization.
4. The two letters, one written on July 8, 2014 stating that the 1^st Respondent had been deregistered and was not on the Board register as at September 2, 2013 and the second letter, written on October 7, 2014, a recommendation letter indicated that the 1^st Respondent was duly registered at that date, without stating whether the 1^st Respondent had ever been deregistered, created uncertainty with respect to the 1^st Respondent's registration status.
5. The 1^st Respondent was not directly aggrieved and had filed the Petition on behalf of the public at large. Articles 22 and 258 of the Constitution of Kenya 2010 provided that every person had the right to institute proceedings claiming that the Constitution had been contravened and 'person' in that regard, included one who acts in the public interest.
6. The definition of a Non-Governmental Organization under section 2 of the Non-Governmental Organizations Co-ordination Act (Cap 134) as read with article 260 of the Constitution of Kenya 2010 justified the categorization of a Non-Governmental Organization as a person as it was an association, under article 260, despite the question on whether it was incorporated or unincorporated.
7. Under section 12(3) of the Non-Governmental Organizations Co-ordination Act (Cap 134) it was registration that made an NGO a body corporate capable of suing and being sued.
8. The Non-Governmental Organizations Co-ordination Act (Cap 134) had to be interpreted in conformity with the Constitution of Kenya 2010. Although sections 12(2) and 12(3) of the Act provided for the legal status of the 1^st Respondent, when read together with articles 22, 258 and 260 of the Constitution and in the public interest, the inference that the 1^st Respondent did not lose locus standi, even if it lacked registration status, could be drawn.
9. The facts applicable to the case were such that the act of de-registering the 1^st Respondent had not deprived the 1^st Respondent of the standing in law to lodge an appeal before the Supreme Court in a matter of public interest.
10. As the case raised constitutional issues of a public nature, it was in public interest for each party to bear its own costs.

The Concurring opinion of Njoki Ndungu, SCJ

11. Public interest litigation had a transformative role in society. It allowed various issues affecting different spheres of society to be presented for litigation. For such reasons, the Constitution of Kenya 2010 aimed at enlarging locus standi in human rights and constitutional litigation.
12. Locus standi had a close relationship to the right of access to justice. In instances where public interest suits were threatened by administrative action, to the detriment of constitutional interpretation and application, the Court had discretion, on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it.  That discretion was drawn from article 259 (1) of the Constitution of Kenya 2010 wherein the Courts were required to interpret the Constitution in a manner that promoted its values and purposes, advanced the rule of law, human rights and fundamental freedoms, permitted the development of the law and contributed to good governance.
13. Section 16 of the Non-Governmental Organizations Co-ordination Act (Cap 134) permitted the Non-Governmental Organizations Co-ordination Board to cancel the registration of a Non-Governmental Organization, in certain prescribed instances.
14. There was a clear lacuna in the law which failed to protect the legal interests of a Non-Governmental Organization or its creditors upon its deregistration and also threatened the role of NGOs in public interest litigation, and in effect, social change and human rights defence through litigation. The lacuna needed resolution through legislative initiative or through a challenge of constitutionality in line with the provisions of articles 22 and 258 of the Constitution of Kenya 2010.
15. The Constitution of Kenya 2010 enlarged the capacity to file a claim in defence of the Constitution. Article 3(1) provided that every person had an obligation to respect, uphold and defend the Constitution and it defined a person in article 260 to include a company, associate or other body of persons whether incorporated or unincorporated. Pursuant to article 258(1) of the Constitution, every person had the right to institute court proceedings claiming that the Constitution had been infringed or threatened with contravention.
16. An interpretation of section 16 of the Non-Governmental Organizations Co-ordination Act (Cap 134) in line with the Constitution and the special circumstances of the case, meant that the deregistration of the 1^st Respondent did not fatally compromise the validity of the Appeal lodged at the Supreme Court.

Application dismissed.

Supreme Court affirms the unconstitutionality of Section 76(1) (a) of the Elections Act.

Hassan Nyanje Charo v Khatib Mwashetani & 3 others

Civil Application No. 23 OF 2014

Supreme Court of Kenya at Nairobi

Ibrahim and Ojwang, SCJJ

December 8, 2014

Reported by Phoebe Ayaya & Kipkemoi Sang

Brief Facts

The applicant sought a review of a Court of Appeal ruling refusing to certify his intended appeal as one involving a matter of general public importance. The same was set down for hearing but the respondents filed a notice of preliminary objection on the grounds that the Court lacked jurisdiction to hear and determine the matter, as it originated from proceedings that were a nullity, and thus, void ab initio; and that the petition from which the application for review emanated, was filed out of time, and in contravention of Article 87(2) of the Constitution of Kenya, 2010.

The matter had begun as Election Petition No 9 of 2013 at the High Court at Mombasa, and as both the petition and Election Petition No 4 were in respect of the same election for the same constituency they were consolidated. The subject matter of the petition was the elections held on 4^th March, 2013 whose results were released on 5^th/6^th March 2013. However the petition was filed on 10^th April 2013 – 35 days after declaration of the results.

The ruling of the High Court held that the provisions of section 76(1) (a) of the Elections Act were not inconsistent with the Constitution. The Judge directed the Attorney-General to initiate the process of legislative amendment within 60 days, failure to which, it would be deemed that an amendment to section 76(1) (a) of the Elections Act would have had been effected. (Gideon Mwangangi Wambua & another v Independent Electoral and Boundaries commission & 2 others [2013] eKLR)

However, the Supreme Court made a contrary finding holding that section 76(1) (a) of the Elections Act was inconsistent with the Constitution, and hence a nullity. (Hassan Ali Joho & others v Suleiman Sais Shabal & 2 others [2014] eKLR)

The matter proceeded on merit, and the Election Court set aside the election results.  However, an appeal to Court of Appeal led to the High Court decision being set aside and it was the said Appellate Court finding that the applicant sought to contest in the Supreme Court.

Issues:

1. Whether the Supreme Court had the jurisdiction to entertain an application for review where the said matter had been filed outside the constitutional timelines at the trial court.
2. Whether the preliminary objection as raised by the respondents challenging the legality of the Supreme Court’s jurisdiction to entertain the matter was lawful.
3. Whether the High Court while determining the issue of time, as provided under section 76(1) (a) of the Election Act No.24 of 2011 amended the said section. 
4. Whether the Supreme Court decision in the Joho case which had found  Section 76(1)(a) of the Elections Act inconsistent with the Constitution, apply in this matter

Constitution al Law – amendment of statute – the principle of “reading-into legislation” – where the High Court ordered the Attorney General to initiate the process of legislative amendment within a given time frame, failure of which the section would stand amended as per the Courts’ orders – where such amendment was not done during the time frame given by the Court – where the legislation in question was one passed after the promulgation of the Constitution  of Kenya, 2010 – whether the directions of the Court amounted to an amendment of the legislation – whether the legislation could be amended for being inconsistent with the Constitution  in light of the unconstitutionality clause contained in the Constitution  – whether the principle of “reading into legislation” was applicable in the instance – Constitution  of Kenya, 2010 articles 2(4), 94(1), 159(1); Sixth Schedule, section 7(1)

Constitution al Law- supremacy of the Constitution -sovereignty of the people of Kenya-the role of the Supreme Court to provide authoritative and impartial interpretation of the Constitution -the derivative  judicial  authority of the Supreme Court from the people of the Republic of Kenya-Separation of powers-objective and purpose of governance. Constitution of Kenya 2010, article 159(1) the Supreme Court Act, 2011 Section 3.

Civil Practice and procedure – preliminary objection – principles established for a preliminary objection to be granted – where the respondents sought a preliminary objection – whether the preliminary objection raised “a point of law” as a basic test signalled in the Mukisa Biscuits case– whether the preliminary objection would be granted as sought.

Constitution of Kenya, 2010

Article 2(4) “Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”.

Article 94(1) “The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament”

Article 159(1) “Judicial authority is derived from the people and vests in, and shall be exercised by, the Courts and tribunals established by or under this Constitution”

Sixth schedule, section 7(1), “All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution ”.

Held:

1. The petition filed in the High Court which had challenged the election results of Lunga Lunga Constituency, had its foundation in article 87(2) of the Constitution  of Kenya, 2010 which provided that; petitions concerning election other than the presidential election be filed within twenty eight days after the declaration of election results by the Independent   Electoral and Boundaries Commission. The Constitution required that: there ought to be “election results which must be “declared.”  The two were mutually inclusive, and it was not possible to isolate them, for a legitimate election to be deemed as having taken place.  It was the declaration of results that concluded the election cycle.  The declaration of results for Lunga Lunga Constituency indeed took place. Therefore the applicant’s contention that there was no declaration of results failed.
2. The principle in Mukisa Case required that, a preliminary objection could only be raised on a “point of law”. Points of law could only be raised on assumption that all the facts pleaded by the other side were correct. 
3. Objection to Jurisdiction was a good example of preliminary objection. The case before the Supreme Court raised two issues which fell in such category, firstly, that the Supreme Court lacked jurisdiction to hear and determine that matter, as it derived from proceedings that were a nullity, and were void ab initio. Secondly, that the petition from which the application emanated was filed out of time and contravened article 87(2) of the Constitution of Kenya, 2010.
4. Crystallization of the two issues singled out the issue as to whether the Supreme Court had jurisdiction to admit the application for review, when it was filed outside the Constitution al timeline specified in article 87(2) of the Constitution of Kenya, 2010. That issue in itself was a “pure point of law” and fell within the principle in Mukisa Biscuit Case  (Mary Wambui case; Lisamula case and Lemanken Aramat v. Harun Meitamei Lempanka & Two Others [2014]eKLR)
5. “Reading-into legislation” might have been a new phraseology in the forensic language of the Court; but the ultimate object touched on by the South African Case, was not entirely different from the object of section 7(1) of the sixth schedule of the Constitution  of Kenya, 2010 which declared the validity of all laws in force immediately before the effective date, to continue in force and remain to be construed with alteration, adoption, qualifications and exceptions necessary to bring into conformity with the Constitution . (National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others (CCT10/99) [1999 ZACC}
6. The position was clear for the law that were enacted after the promulgation date, of the Constitution of Kenya, 2010. Article 2(4) provided that any law, including customary law, that was inconsistent with the Constitution was void to the extent of the inconsistency, therefore, any act or omission in contravention of the Constitution was invalid.
7. The inevitable inference resolved into the principle that the Constitution of Kenya, 2010 did not envisage or create a legal vacuum, and all process regulated by law were to continue in progress as signalled by the Constitution. The Supreme Court was duty bound to signal a direction in respect of the “reading-into” for section 76(1) (a) of the Elections Act, on the basis of the persuasive authority from the South African jurisdiction in the case of National Coalition for Gay and Lesbian Equality the adoption of such an alternative principle, was not proper for the present case since the statute in question was enacted after the promulgation of the Constitution of Kenya, 2010. (Communications Commission of Kenya & Five Others v. Royal Media Services Ltd & Five Others [2014] eKLR).
8.  Since the Election Act 2011 was enacted after the promulgation of the Constitution of Kenya, 2010, section 76(1) (a) was void ab initio. If a statute enacted after the inception of the Constitution was found to be inconsistent, the inconsistency would date back to the date on which the statute came into operation in the face of the inconsistent Constitution al norms.  An order declaring a provision of a statute invalid by reason of inconsistency with the Constitution automatically operated retrospectively to the date of inception of the Constitution. (Sias Moise v. Transitional Local Council of Greater Germiston, Case CCT 54/00, Justice Kriegler)
9. Section 3 of the Supreme Court Act, 2011, gave the Supreme Court the mandate to assert the supremacy of the Constitution and the sovereignty of the people of Kenya and provide authoritative and impartial interpretation of the Constitution. Article 94(1) of the Constitution of Kenya, 2010 provided for the legislative authority as being derived from the people of the Republic of Kenya and vested to the exercise of parliament at the national level. Article 159(1) provided that judicial authority was derived from the people and vests in, and ought to be exercised by the Court and tribunals established by or under the Constitution.  The separation of powers did indeed serve an objective governance-purpose. The High Court had no power to amend Section 76(1) (a) of the Election Act.
10. The Constitution of Kenya, 2010 had been set upon judicial foundations long fashioned by common law principles and practices including the doctrine of precedent. The common law principle was designed to ensure certainty and predictability in the law. The doctrine required that cases with similar facts were to be decided in a similar manner. The Supreme Court entertained no notion that the prescribed time-lines were anything but a matter of substantive law— and not a technicality.
11. The High Court in petition No. 9 of 2013 consolidated with Petition No. 4 of 2013, while determining the issue of time, held that section 76(1)(a) of the Election Act to be judicially amended to conform to the Constitution .   In Joho case, the Supreme Court had ruled the relevant statutory provision to be unconstitutional and struck out. The declaration of results in the matter was made on 5^th March, 2013 and the election petition filed on 10^th April, 2013, was outside the 28-day limit after the declaration of results. The election petition was filed out of time, and on that account, could not be sustained. The High Court lacked jurisdiction to admit and determine it; and the proceedings before that Court were a nullity ab initio. Parties could not reopen concluded causes of action.

Preliminary objection by the 2^nd and 3^rd respondents dated 31^st July, 2014 were upheld.

Application for review of refusal of Appellate Court certification, dated 3^rd June, 2014 disallowed.

Determinations in the Judgments of the High Court and the Court of Appeal declared null.

Declaration of election results by the Independent Electoral and Boundaries Commission, in respect of the Lunga Lunga Constituency seat, affirmed

Parties to bear their own costs at the High Court, Court of Appeal and the Supreme Court, respectively

Supreme Court allows withdrawal of the application by Council of Governors that sought to bar the Senate from summoning their members

Council of Governors v Senate & another

Reference No. 1 of 2014

Supreme Court of Kenya at Nairobi

Mutunga, CJ & P and Ibrahim, SCJ

December 8, 2014

Reported by Phoebe Ayaya & Kipkemoi Sang

Brief Facts

The applicant, filed a reference seeking an advisory opinion on various issues including the question as to whether the Senate could summon a Governor to personally appear before the Senate or a Committee of the Senate to answer questions on county public financial management

Subsequently, the applicant made an application for leave to amend the reference. Leave was granted but the amendment was not done. An oral application for stay of proceedings was then made, pending the judgment of the High Court in a matter that was canvassing a similar issue as the one before the Supreme Court.  The applicant was ordered to formally apply for stay but the applicant did not.

As a result of favourable orders in the High Court, the applicant then sat back and waited until the 1^st interested party filed a preliminary objection, and the matter was listed for hearing before a two-judge bench. During the intended hearing of the preliminary objection, the applicant made an application orally for withdrawal of the reference. The interested parties did not object to such withdrawal, but prayed for costs.

Issues

1. Whether, the applicants could withdraw the matter as a consequence of an incidental order from the High Court
2. Whether Supreme Court could make an order for costs upon withdrawal of a matter before it at any time after the Appeal had been lodged and further steps taken.

Civil Practice and Procedure -constitutional principle-prima facie jurisdiction of the Supreme Court-discretionary power of Court to make an order for costs-Whether, the Court can make an order for costs upon withdrawal of a matter before it Whether Supreme Court could make an order for costs upon withdrawal of a matter before it at any time after the Appeal had been lodged and further steps taken. -Supreme Court Act of 2011; Section 2(1)-Supreme Court Rules of 2012; Rule 3(5)

Civil Practice and Procedure – withdrawal of suit – withdrawal of suit as a matter of right – where the applicant sought to withdraw a suit filed in the Supreme Court – where the withdrawal was on the basis of allowing the suit to progress through the legal system from the High Court upwards – where the respondent claimed that the claim for withdrawal was done in bad faith – where the respondent sought costs of the suit – whether the Court could order for costs against the applicant – Supreme Court Act, section 21(1); Supreme Court Rules, Rule 3(5).

Alternative Dispute Resolutions- dispute resolution mechanisms- mediation, arbitration and traditional dispute resolution mechanisms-Constitution of Kenya article 159(2)

Supreme Court Act, 2011

Section 21(1) “In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award.”

Supreme Court Rules, 2012

Rule 3(5) “Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Held:

1. The law allowed a party who had approached the Court to withdraw a matter if he deemed so fit to do so. Barring parties from withdrawing matters once filed in Courts of law would be contrary to the constitutional principle of alternative dispute resolution under article 159 (2) which provided that; alternative forums of dispute resolution which included mediation, arbitration and traditional dispute resolution mechanisms ought to be promoted.
2. The Court had the discretionary power to make an order for costs as mandated under the Supreme Court Act, 2011 and Rules, 2012. Section 2(1) of the Supreme Court Act 2011, gave an option to the Supreme Court to make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award. Rule 3(5) of the Supreme Court Rules 2012, provided that nothing could otherwise affect the inherent powers of the Court to make orders or give directions as would be necessary for the end of justice or to prevent abuse of the process of the Court. A party who moved the Court to seek an order for costs had the obligation to lay firm basis by giving sufficient reasons why he had to be awarded cost.
3. The award for cost ought to be guided by the principle that, cost followed the event; the effect was that the party, who called forth the event by instituting suit, bore the costs if the suit failed, but if a party showed legitimate occasion by successful suit, then the defendant or respondent bore the costs. The vital factor in setting the preference was a judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by the end of justice. (Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Petition No. 4 of 2012)
4. The claim of public interest would be relevant factor in exercise of such discretion as would also be motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation  (supra Jasbir)
5. An advocate had a duty to aid the Court reach a legitimate determination founded on sound law. Hence, he had to abreast with the law and keep pace with the various developments in the applicant’s reference before the Court and his advocate’s conduct amounted to abuse of Court process (Nicholas Kiptoo Arap Korir Salat v. The Independent Election and Boundaries Commission & 7 others, Application No. 16 of 2014)

The applicant was ordered to bear the costs of the interested parties in the reference, which costs were to be agreed upon or taxed by the taxing master of the Court.

The Supreme Court’s jurisdiction to entertain appeals from the Court of Appeal

Peter Odiwuor Ngoge T/A O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni T/A Namada & Co Advocates & 725 others

Petition No 13 of 2013

Supreme Court of Kenya at Nairobi

K H Rawal, DCJ, P K Tunoi, M K Ibrahim, J B Ojwang & N S Njoki, SCJJ

November 25, 2014

Reported by Beryl A Ikamari

Brief facts

The main suit concerned 6000 former employees, of Kenya Breweries Limited, whose employment contracts were terminated pursuant to a restructuring process. It was decided that the suit would be filed as a representative suit in which four Plaintiffs were selected to prosecute the suit on behalf of all the other Plaintiffs. At the time of filing the suit, the Plaintiffs were represented by the firm of Ngoge & Associates Advocates and a notice, concerning the suit, was issued to all interested parties as per Order 1 Rule 8(2) of the Civil Procedure Rules 2010.

In response to the notice, some persons sought to be joined as Plaintiffs and they appointed the firm of J H Kinyanjui & Co Advocates to represent them while others sought to appear in person.

Mr Ngoge of Ngoge & Associates Advocates raised an objection against Mr Kinyanjui’s appearance in the suit. The High Court heard the objection and allowed Mr Kinyanjui to continue to offer legal representation in the matter. Mr Ngoge appealed against that decision at the Court of Appeal.

The remedies Mr Ngoge sought at the Court of Appeal included an injunction and a stay of execution. The Court of Appeal granted the stay of execution which was to be in effect until the dispute on legal representation was sorted. In response, Mr Ngoge filed a Petition of Appeal at the Supreme Court.

In the Petition of Appeal at the Supreme Court, Mr Ngoge sought damages from the Respondents, claiming that there had been violations of constitutional provisions at the High Court and the Court of Appeal. The Respondents objected to the appeal on grounds that leave had not been sought and granted for the appeal to the Supreme Court and the Supreme Court lacked jurisdiction to entertain the matter.

In the Petition of Appeal at the Supreme Court, Mr Ngoge enjoined himself together with Mr Namada and Mr Kinyanjui (all of whom were acting as advocates for the parties to the suit), as parties to the Petition of Appeal. His basis for such a joinder of parties was that there had been breaches of his rights and his clients' fundamental rights and freedoms which involved those advocates.

Issues

1. Whether in the circumstances, it was necessary to seek leave to appeal to the Supreme Court, as stipulated under article 163(4)(b) of the Constitution of Kenya 2010.
2. Whether the Petition of Appeal raised issues of constitutional interpretation or application, which were within the Supreme Court's jurisdiction under article 163(4)(a) of the Constitution of Kenya 2010.
3. The implication of the joinder of an advocate as a party to a suit in which he was representing a party.
4. Whether the Supreme Court had jurisdiction in the matter.

Jurisdiction-jurisdiction of the Supreme Court-jurisdiction of the Supreme Court in matters of constitutional interpretation and application-the threshold required in establishing the existence of questions of constitutional interpretation and application-Constitution of Kenya 2010; article 163(4)(a).

Jurisdiction-jurisdiction of the Supreme Court-appeal to the Supreme Court with leave of court-certification that a matter of general public importance was involved-effect of failure to indicate whether the matter required certification or leave or was one involving constitutional interpretation and application, before lodging a Petition of Appeal at the Supreme Court –Constitution of Kenya 2010, article 163(4)(b); Supreme Court Act, No 7 of 2011, section 15.

Civil Practice and Procedure-joinder of parties-joinder of parties at an appellate stage-the appropriateness of joinder of parties who served as advocates in the lower court as litigants in the appellate court.

Constitution of Kenya 2010, article 163(4)

(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

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

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

Held

1. The Petitioner had failed to indicate the provision under which the Petition of Appeal had been filed at the Supreme Court. It was not indicated whether the Petition had been filed as of right in a case involving the interpretation or application of the Constitution or had been filed as a suit involving a matter of general public importance, for which leave was necessary.
2. Given that jurisdiction was an integral element in any proceedings, the enabling provisions of the law ought to be cited. However, the omission was not fatal as the document filed was titled, 'Petition of Appeal' and it was clear that the Supreme Court's appellate jurisdiction was being invoked.
3. The Petitioner had not pleaded that the Petition of Appeal was one that would require leave as it was one involving a matter of general public importance.
4. As the matter was an appeal against an appellate Court's exercise of discretion to strike out a Notice of Appeal, it was not an issue that involved constitutional interpretation or application. The Petition of Appeal did not meet the constitutional threshold provided for in article 163(4)(a) of the Constitution of Kenya 2010.
5. It was clear in article 163(4)(b) of the Constitution that for the Supreme Court to entertain an appeal from the Court of Appeal, the matter must have received certification as one that raised an issue of general public importance. However, an appeal could be filed at the Supreme Court as of right, without the requirement for leave or certification, where it concerned the interpretation or application of the Constitution.
6. While the Petition of Appeal at the Supreme Court raised constitutional issues, the matter from which the appeal arose at the Court of Appeal was not one that concerned interpretation or application of the Constitution.
7. The proper forum in which constitutional issues that were integrally linked to the main cause were to be heard, in the first instance, was the Court in which such issues arose.
8. Article 163(4) of the Constitution of Kenya 2010 did not contemplate appeals to the Supreme Court in the form of fresh matters with new parties who were not previously parties to the suit.
9. Where a person appealed against a decision of a lower court to a higher court, it implied that the matter in dispute was originating from the lower court and it was the same matter that the higher court was being called to re-examine. It was not going to become a fresh matter as opposed to an appeal.
10. It was only in exceptional circumstances, and with leave of court, that persons who were not parties at the Court of Appeal could be parties to an appeal at the Supreme Court.
11. The new parties introduced in the Petition of Appeal were not parties but advocates who represented clients at the Court of Appeal. When an advocate represented clients in any matter, the advocate's position rested on a purely professional platform and such an advocate, as a player of a professional role, was not to be joined as a litigant whether in that matter or in an appeal, in respect of acts or omissions arising in the conduct of the suit.
12. The advocate, on the question of joinder, benefitted from a cover of privilege, while remaining amenable for professional negligence or malpractice, in a personal capacity, in a separate action in a relevant trial court.
13. In the Petition of Appeal, the Petitioners claimed that there had been an infringement of their fundamental rights and freedoms by the Respondents but did not raise issues of professional negligence or malpractice. However, the Supreme Court was not the proper forum for the prosecution of issues of professional negligence or malpractice in the first instance.
14. The joinder of advocates as parties to a Petition of Appeal at the Supreme Court, as had been done by the Petitioner, was inapt and was incompatible with the provisions of the Advocates Act (Cap 16).

Petition of Appeal dismissed.

Cases

East Africa

1.     Erad Supplies & another v National Cereals & Produce Board Petition 5 of 2012 –(Followed)

2.     Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone Application No 4 of 2012 – (Followed)

3.     In Re The Matter of the Interim Independent Electoral Commission Constitutional Application 2 of 2011 – (Followed)

4.     Macharia ,Samuel Kamau & Another v Kenya Commercial Bank Limited & 2 others, Application 2 of 2011 –(Followed)

5.     Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others Application No 5 of 2014 – (Followed)

6.     Nduttu ,Lawrence & 6000 others v Kenya Breweries Limited & Another Petition 3 of 2012 – (Followed)

7.     Ngoge, Peter v Honourable Francis Ole Kaparo &5 others Petition 2 of 2012 – (Explained)

Statutes

East Africa

1.     Constitution of Kenya,2010 articles 1(3)(c);  10; 19; 20;  21; 22; 25; 27; 28; 42; 43; 47; 48 ; 50; 158 ; 159 (2); 163(2) (4) (a) (b) ; 258 – (Interpreted)

2.     Court of Appeal Rules (cap 9 Sub Leg)  rule 5 (2) (b) ; 81- (Interpreted)

3.     Advocates Act (cap 16) section 55 – (Interpreted)

4.     Civil Procedure Rules ,2010 (cap 21 Sub Leg) order I, rule 8 (2) – (Interpreted)

5.     Supreme Court Act, 2011 (Act No 7 of 2011) sections 3(3);  15(1)  (2) – (Interpreted)

6.     Supreme Court Rules,2011 (Act No 7 of 2011 Sub Leg) rules 32 – (Interpreted)

Texts & Journals

1.     Garner,B A., (Ed) (2009) Black’s Law Dictionary   St Paul Minnesota : West Group 9^th Ed

International Instruments

1.     African Charter on Human and People’s Rights (1998) articles   3, 5, 7, 8 14 , 22

Advocates

1.     Mr Ngoge for  the 1^st,  2^nd   Appellants

2.     Mr Namada for the 1^st and 2^nd Respondents

3.     Mr Kinyanjui for  the 3^rd and 4^th  Respondents

4.     Mr Gachuhi for the 5^th and 6^th Respondents

Principles to be considered in exercising discretion to extend time for filing appeals

John Ochanda & 996 others v Telkom Kenya Limited [2014] eKLR

Motion No 24 of 2014

Supreme Court of Kenya at Nairobi

M K Ibrahim & S C Wanjala, SCJJ

November 25, 2014

Reported by Nelson K Tunoi

Brief facts:

The applicants filed an application before the Supreme Court for extension of time within which to file and serve a notice of appeal against part of the judgment and orders of the Court of Appeal. The applicants had inadvertently cited rule 30 instead of rule 31 of the Supreme Court Rules in their already filed notice of appeal. In addition they erroneously indicated that they intended to appeal to the Court of Appeal instead of the Supreme Court. In response, the respondent contended that thatwas an abuse of the courts process as the applicants did not have an automatic right of appeal to theSupreme Court. The respondents further argued that the Supreme Court lacked jurisdiction to determine the application for extension of time as the applicants had neither sought nor been granted leave to appeal to the Supreme Court.

Issues:

i.                     Whether the applicant had established a satisfactory basis to warrant the Supreme Court to extend time to file a notice of appeal.

ii.                   Whether the Supreme Court had jurisdiction to entertain an application where leave to file such an application had not been granted by the Court of Appeal.

Civil Practice and Procedure – extension of time – application for extension of time to file and serve a notice of appeal – where the applicants, inter alia, had inadvertently cited rule 30 instead of rule 31 of the Supreme Court Rules in their already filed notice of appeal – whether that was sufficient reason to warrant the extension of time by the court – whether the respondents would suffer prejudice if the application was granted – whether the application was merited – Supreme Court Rules, 2012, rules 3(1), (5), 23 & 53

Jurisdiction – jurisdiction of the Supreme Court - Whether the Supreme Court had jurisdiction to entertain an application where leave to file such an application had not been granted by the Court of Appeal – Constitution of Kenya, 2010, article 163(8); Supreme Court Rules, 2012, rule53

Held:

1.      Extension of time was a discretionary and a very powerful tool which should be exercised with abundant caution, care and fairness. It should be used judiciously and not whimsically to ensure that the principles enshrined in the Constitution were realized.

2.      The Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission& Others(the Nick Salat case laid down the following principles to consider in exercising its discretion to extend time:

i.            Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;

ii.            A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.

iii.            Whether the court should exercise the discretion to extend time, was a consideration to be made on a case to case basis;

iv.            Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

v.            Whether there would be any prejudice suffered by the respondents if the extension was granted;

vi.            Whether  the  application  had  been  brought  without  undue delay; and

vii.            Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

3.      The question of jurisdiction to extend time to file a notice of appeal to appeal to the Supreme Court was not an issue subject to controversy. The notice of appeal was provided by Rule 31 of the Supreme Court Rules 2012. Further, the power to extend time was provided for by Rule 53 of the same Court Rules. These Supreme Court Rules were enforced by the Supreme Court as provided by article 163(8) of the Constitution.

4.      The Supreme Court was a new court in the Kenyan legal system and its modus operandiwas still not conversant to most litigants and members of the bar at large. While the Nick Salat case (supra) the Supreme Court on its own motion moved to correct the anomaly after noting that the counsel for the applicant had cited the old Supreme Court Rules, 2011, in the instant case, it was the advocate for the  applicant who noted the anomaly and took steps to correct it. Though he may have opted for a longer route of withdrawal and not amendment, the Court took into consideration the principles in article 159(2)(d) of the Constitution to focus on substantive justice in disregard to procedural technicality in that case.

5.      The applicants complied with the substantive requirement and filed a notice of appeal within time. However due to what they confessed to be some inadvertent errors, the notice of appeal had apparent errors and they withdrew it. Without appearing to sanction the errors on the face of the notice of appeal, it was not in doubt that the ‘notice of appeal’ served its substantive purpose: the respondents were informed of the appellants intent to appeal and any subsequent proceedings thereafter could not be said to constitute an ambush to the respondents. Consequently, that settled any prejudice that the respondents may be apprehensive of: there was none as they already had notice.

6.      Counsel for the respondent contended that the applicants did not have an automatic right of appeal to the Supreme Court and having neither sought nor been granted leave, the Court lacked jurisdiction to determine the application. They did not however, challenge the fact that the applicant acted in a timely manner to correct the error and that the error was accidental. Court disagreed with the respondents that the applicants ought to have first sought leave from the Court of Appeal. The question under inquiry was one of a notice of appeal. The law was categorical that a notice of appeal had to be filed fourteen (14) days from the date of judgment whether or not leave was required.

The applicants’ notice of motion dated June 5, 2014 allowed; Time to file and serve a notice of appealextended. The applicant to file and serve a notice of appeal within 7 days of the date hereof; The applicants to bear the costs of the respondents in the application.