The provisions of the Constitution requiring the interpretation or application by the Supreme Court, had to be the same provisions upon which the Courts decision was based.

Brief facts

At the High Court, the appellants concerns were that the 2^nd to 16^th respondents conduct, in changing their political party while still holding office as Member of County Assembly (MCA), was in violation of national values and principles of governance; that they did not satisfy the moral and ethical requirements to continue serving in the County Assembly after being cleared as independent candidates; and that they were deemed to have resigned from the sponsoring party. The appellant pleaded that the respondents were in contravention of sections 2 and 45 of the Anti-Corruption and Economic Crimes Act, section 313 of the Penal Code and section 13(1) (b) of the Leadership and Integrity Act, and therefore did not satisfy the moral and ethical requirements to continue being MCAs.

The Committee did not address itself to any of those grounds, but instead downed tools, finding that it had no jurisdiction to entertain or determine issues involving constitutional interpretation and application; that a similar question was pending determination before the High Court and was, therefore, sub judice; and that it had no criminal jurisdiction to determine the guilt or otherwise of the respondents. 

Aggrieved by the Committees decision, the appellant sought to review it in the High Court at Kisumu by directly, without leave, lodging a notice of motion. The High Court dismissed the appellants application with costs to the respondents. The appellant appealed to the Court of Appeal and it was dismissed on the same grounds as in the High Court. 

Aggrieved the appellant filed the instant appeal before the Supreme Court. The appellant contended that his application at the High Court was competent as it was anchored on inter alia articles 47 of the Constitution and on sections 7(2) and 11(2) of the Fair Administrative Action Act; and that the procedure contemplated in the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules were not applicable to his application. Furthermore, he faulted the High Court for failing to pronounce itself on the conduct of the 2^nd to 16^th respondents which amounted to resignation from the Assembly in accordance with Article 194(1)(e) of the Constitution.

Issues

What was the effect of invoking different constitutional provisions during an appeal at the Supreme Court on matters regarding interpretation and application of the Constitution where they appeared to be materially different from the constitutional questions challenged at the trial court?

Held

1. Jurisdiction was everything. If a court found that it did not have jurisdiction, it  had to down its tools at that point, save in exceptional circumstances. A point of jurisdiction could be raised at any time, formally by a notice of preliminary objection, grounds of opposition, viva voce during arguments, or by the Court suo motu because challenging the jurisdiction of a Court was a threshold issue. Jurisdiction could only be conferred on a court by either the Constitution or statute. A court could not expand its jurisdiction through judicial craft or innovation. Nor could a party confer on a court power it did not have. Parties could not by mutual consent confer jurisdiction when there was none.
2. Article 163(4), the Constitution provided that the Supreme Court was not to treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process, recalling that not every grievance from the decision of the Court of Appeal lay to the Supreme Court. An appeal from the decision of the Court of Appeal had to meet the test under article 163(4)(a) and (b), upon which the Court had made several decisions over the years.
3. Whether or not the jurisdiction under article 163(4) of the Constitution had been properly invoked would depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed, or the decisions of the superior courts below, or in some cases, all the four. That required a party relying on article 163(4)(a), like here, to demonstrate that the grievance he had presented, concerns the application or interpretation of the Constitution. It was not the mere statement in the pleadings or submissions by a party to the effect that the appeal involved constitutional interpretation or application that clothed the Court with jurisdiction.
4. The party had to identify precisely the relevant articles of the Constitution, the subject of the impugned decision and further demonstrate that the subject of the appeal was the same issue in controversy and around which both the High Court and the Court of Appeal based their respective decisions on. Where the decision being challenged on appeal had nothing or little to do with the interpretation or application of the Constitution, such a decision could not be the subject of a further appeal to the Supreme Court.
5. It had to, as consequence, follow that the provisions of the Constitution cited by a party as requiring the interpretation or application by the Supreme Court, had to be the same provisions upon which the High Courts decision was based, and the subsequent subject of appeal to the Court of Appeal; in other words, the article in question must have remained a central theme of constitutional controversy, in the life of the cause. Whether a matter was originated as a judicial review application or a constitutional reference, the considerations were constant and the strictures of article 163(4)(a) of the Constitution had to be satisfied.
6. The grievance did not concern the application or interpretation of the Constitution. The cause in the High Court was distinctly short on the interpretation or application of the Constitution. The lengthy arguments about articles 23 and 47 of the Constitution had nothing to do with the original grievance. Their citation could be the basis for the assumption of the Supreme Court's jurisdiction.
7. The instant appeal having emanated from the High Court in a judicial review application, the appellant was required to identify the particular(s) of constitutional character that were canvassed at both the High Court and the Court of Appeal; and to demonstrate that both superior courts below 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.
8. The decision being challenged in the instant appeal had nothing to do with the interpretation or application of articles 23 and 47 of the Constitution. The Supreme Court lacked jurisdiction, the appeal failed and the court downed tools at the instant stage. The instant case presented neither exceptional circumstances nor opportunity for the Supreme Court to provide interpretive guidance on the Constitution.

Due process was followed in the impeachment of the County Governor of Nairobi

Brief facts

The appellant, the former County Governor of Nairobi had filed a petition challenging his impeachment. His petition at the High Court was dismissed and so was his subsequent appeal. Aggrieved the appellant filed an appeal before the Supreme Court where he challenged the impeachment on grounds that it was unconstitutional as it violated the sovereignty of his constituents and undermine the vote at the ballot box, on grounds that the impeachment was done without due process and that he was not accorded a fair trial.

The respondents filed a preliminary objection on grounds that the Supreme Court did not have the jurisdiction to determine the appeal owing to failure to cite which provision the appeal was based on. 

Issues

1. Whether the Supreme Court had the jurisdiction to determine an appeal which did not specify which of the two grounds of appeal under article 163(4) of the Constitution   the appeal was brought under.
2. What was the duty of counsel in preparation and presentation of cases before the Supreme Court?
3. Whether due process was followed in the impeachment of the County Governor of Nairobi.
4. Whether the appellants constitutional right to due process was compromised.
5. Whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate.
6. Whether it was mandatory to verify the impeachment Motion by affidavits or other statements on oath by members of the County Assembly who allegedly supported the motion.
7. Whether the impeachment charges were substantiated to the prescribed standard to warrant the appellants impeachment.
8. Whether public participation was undertaken in the impeachment of the governor of Nairobi County.
9. Under what circumstances could the Supreme Court disturb the concurrent findings of fact and evidence by the High Court and the Court of Appeal?
10. Whether the process of impeachment of the County Governor of Nairobi contravened the sovereignty of the constituents that elected him.

Held

1. Without jurisdiction, a court had no power and had to down tools in respect of the matter under review. Appeals from the Court of Appeal lay to the Supreme Court pursuant to articles 163(4) or 163(4)(b) of the Constitution as a matter of right or upon certification that a matter of general public importance was involved; and that an appeal could not to lie to the Supreme Court, unless brought within the compass of either of the two jurisdictional limbs.
2. The appeal was filed pursuant to two repealed rules. Rules 9 and 33 of the Supreme Court Rules, 2012, (repealed) essentially dealt with contents of a petition and institution of appeals. Rules 9 and 33 of the 2020 Rules, on the other hand related to sealing of Court documents and application for certification, respectively. All those provisions could not be the basis for invoking the Supreme Courts jurisdiction. A party appealing to the Supreme Court from the Court of Appeal had to bear in mind the limits of its jurisdiction and had to decide, either to seek a certification as a matter of general public importance under article 163 (4)(b) of the Constitution or come as a matter of right under article 163 (4)(a) thereof. Even when a party invoked the latter, it was upon that party to identify and specify how the appeal concerned interpretation and application of the Constitution.
3. It could never be the role of the Supreme Court to wander around in the maze of pleadings and averments to ascertain by way of elimination which of the two limbs of article 163(4) of the Constitution   a party intended to rely on. Such impetuous presentation of pleadings was discouraged. An appeal to the Supreme Court would not lie, unless convincingly preferred within the confines of either of the two jurisdictional limbs of article 163(4). It was paramount for any party moving it for any relief under that article 163(4) to identify which one of the two limbs was being invoked.
4. The applicable considerations and principles for each of the limbs were different. In Kenyas adversarial system, the rules of pleading also served to ensure that parties defined succinctly the issues for determination so as not to take the rest of the parties by surprise. On the other hand, courts adjudicated upon the specific matters in dispute, which the parties themselves had raised by their pleadings. Failure to align an appeal to the guidelines of article 163(4) of the Constitution   would lead to dismissal of the petition.
5. Counsel intending to represent parties before the Supreme Court had to recognize that, like any appearance before any apex court in the world, practice of law before the Supreme Court as Kenyas court of last resort had to truly represent and reflect strict standards of professional responsibility. As an officer of the court upon whose shoulders rest, in part, the responsibility for the administration of justice, counsel had to, before bringing an action to the Supreme Court, identify the elementary legal foundation and ascertain as a minimum, whether the Supreme Court had jurisdiction, because as a general proposition, the relief available to a party depended not only on the pleadings but more significantly on the jurisdiction. As a matter of practice, the pleadings had to always carry, at the very top, reference to the relevant provisions of the Constitution, the law and rules relied upon and specify at the end, the relief claimed. Counsel was required to be fully abreast with the jurisprudence of the Supreme Court.
6. At the apex court, there was no room for indolent and lackadaisical approach to preparation and presentation of cases. The Supreme Court expected nothing but precision, diligence and above all, professionalism. The Supreme Court cautioned against sloppiness in the invocation of the Courts jurisdiction.
7. The appellant had failed to demonstrate how the appeal involved application or interpretation of the Constitution and the manner in which the Court of Appeal erred in determining those very questions.
8. The preliminary objection was sustained. It would have been sufficient to dispose of the instant appeal in its entirety, and the Supreme Court would have to down tools. However, in view of the public interest and nature of the dispute, the broad interests of the parties, the need for due guidance to the judicial process and to the courts below; for the sake of posterity and development of jurisprudence; the right course was for the Supreme Court to determine all the pertinent questions raised in the appeal.
9. By the very nature of its position in the hierarchy of courts, the Supreme Court had a constitutional obligation to develop jurisprudence and guide the courts below it on matters of general public interest, as well as on those involving the interpretation and application of the Constitution. That duty could not be curtailed by a decision of any court, just the way Justices of the Supreme Court could not be rendered superfluous, or their work made perfunctory and mechanical. The function of the Supreme Court in resolving questions of interpretation and application of the Constitution was to remove any doubts and ambiguities in the law; mitigating hardships and correcting wrongs and not avoiding them.
10. The generally accepted position and widely applied that jurisdiction was everything, and that a court lacking jurisdiction had to down its tools, held good and retained validity. As far as the Supreme Court was concerned, in appropriate cases and only the instant final court, would rise to the occasion and not down tools, to resolve disputes that related to its constitutional mandate. Even where it declined jurisdiction to entertain any particular questions, the court could wish to achieve quality jurisprudence and also to resolve specific issues raised in the particular matter, in order to draw the whole dispute to a meaningful conclusion and to settle the law. It was not in all situations.
11. The approach taken by the court was not a departure from Owners of the Motor Vessel Lillians v. Caltex Oil Kenya Limited [1989] KLR 1 but an extended horizon to cater for the Supreme Court, with its specialized and wider jurisdiction than would have been contemplated at the time the decision in Owners of the Motor Vessel Lillians v. Caltex Oil Kenya Limited [1989] KLR 1 was made.
12. The Supreme Court was fortified in its decision to consider the appeal because whether the court down tools at the instant stage or go to the end, the inevitable result was that the decision of the Court of Appeal stood upheld. There were exceptional circumstances and proper justification not to down tools but to consider and determine the main grounds before the Supreme Court.
13. Not all the six grounds of appeal involved the interpretation or application of the Constitution or were matters of general public importance, the two permanent and defined coordinates of the Courts jurisdiction in respect of appeals arising from the decisions of the Court of Appeal. Matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Courts review on appeal. Some of the grounds of appeal though framed partly as matters of law, were not constitutional or matters of law but of fact.
14. The duty to re-evaluate evidence was the function of a first appellate court. A first appellate court should accord deference to the trial courts conclusions of fact and only interfere with those conclusions if it appeared to it, either that the trial court had failed to take into account any relevant facts or circumstances or based the conclusions on no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions. Only cardinal issues of law or of jurisprudential moment, would deserve the further input of the Supreme Court.
15. The removal proceedings for a county Governor were textually committed by the County Assembly and the Senate. The constitutional mandate and the process to impeach a Governor commenced in the County Assembly and terminated in the Senate. The County Assembly and Senate were the only organs involved because of their special roles in devolved governments.
16. The Senate specifically represented the counties and served to protect the interests of the counties and their governments. The Assembly, on the other hand, was the legislative arm in the county governments. The respective roles of the two institutions were important because, one of the objects of devolution was to promote democratic and accountable exercise of power. The governor and all officials in the county governments were subject to oversight and scrutiny by both the County Assembly and the Senate
17. The Constitution committed to both institutions the exclusive power to remove the Governor subject only to procedural requirements set out in the County Governments Act and the respective Standing Orders of the County Assemblies and the Senate: and proof of the charges. Both institutions through their Standing Orders were at liberty to determine the procedures for receipt and consideration of evidence necessary to satisfy the duty to conduct an impeachment hearing.
18. In considering applications to review decisions of the other branches of Government, courts should strive to achieve a balance between their role as guardians of the Constitution and of the rule of law, including an obligation to respect what Parliament was constitutionally required to fulfill. In other words, where the Constitution required Parliament to determine a matter in the first place as part of its constitutional mandate, Parliament would have the discretion and power to regulate its own affairs and the courts would be slow to interfere with the exercise of that discretion.
19. The Supreme Court would be reluctant to question parliamentary procedures as long as they did not breach the Constitution; and that the mandate of the courts was restricted by the doctrine of separation of powers to deciding on matters of individual rights and fundamental freedoms and not to enquire into how the County Assembly and Senate perform duties in which they alone had discretion or to review the merit of the decision by the County Assembly and Senate to impeach a Governor.
20. Both the County Assembly and the Senate could not act outside the confines of the Constitution and the law. To do so would invariably invite the courts intervention. Courts were permitted to intervene where matters of constitutional violations arose.
21. The audi alteram partem rule required that those who were likely to be directly affected by the outcome of a decision should be given prior notification of the action proposed to be taken, of the time and place of any hearing that was to be conducted, and of the charge or case they would be called upon to meet. They had to be given an opportunity to be heard, to call witnesses, to be represented by counsel, to be availed adequate time and facilities to prepare, and if the accusations were proved, to be given the reasons for the decision. They were also entitled to challenge the decision, if against them, before a higher tribunal or court.
22. In the process of removal of a county Governor, the right to fair administrative action under article 47 and the right to fair hearing under article 50 of the Constitution all accrued to the Governor before a decision to remove him or her from office was reached. An unfair removal as one which went against the principles of natural justice; which implied that no adequate notice was given; that there was bias and where the hearing was not fair. Though a political process, impeachment was sanctioned by the Constitution and the law and was not a platform to settle political scores. The standing orders were designed to achieve accountability, political governance and personal responsibility and were not aimed necessarily to find criminal responsibility.
23. The Standing Orders of the two Houses of Parliament and of the County Assemblies played a critical role in guiding the orderly proceedings in those houses because of their constitutional underpinning in article 124 of the Constitution. The Nairobi City County Assembly Standing Orders provided for the steps for the removal of a Governor.
24. The process was sequential based on two-stages. In the first stage, a Member of the County Assembly initiated the process by filing a notice of the Motion for removal with the Speaker. The notice had to be supported by at least a third of all the members. It was only if the Motion was supported and passed by at least two-thirds of all the MCAs that the Speaker of the County Assembly informed the Speaker of the Senate of that resolution within two days. Up to that point, the Governor continued to perform the functions of the office pending the outcome of the proceedings in the Senate, because that was where the impeachment proceedings were conducted.
25. The court had not been shown any form of misdirection on material issues or instances where conclusions were based on no evidence, or where the conclusions were not supported by the established facts or evidence on record, so as to qualify those matters of fact as matters of law. There was no reason to depart from the concurrent conclusions of fact by the High Court and Court of Appeal. Due process was followed to remove the appellant from office.
26. The Senates role in impeachment did not include re-assessing the procedure before the County Assembly. It was not an appellate process. Once a resolution had been passed by the County Assembly to confirm the charges for the removal of a Governor, the Speaker of the County Assemblys role was to notify the Speaker of the Senate, who in turn was required to summon the Senate to consider the Motion.
27. There was no fault in the manner the Speaker of the Senate treated the objection. He could not be accused of having failed and/or ignored altogether to consider the appellants preliminary objection when he in fact allowed the appellants counsel to submit on the objection at length, adjourned the sitting to consider the arguments before rendering the ruling. He properly directed his mind to the relevant procedural laws and judiciously exercised his discretion. Despite the voluminous documents containing the charges and proceedings before the County Assembly, the appellant had sufficient time and did prepare well to defend himself.
28. There was no basis to depart from the findings of the Court of Appeal, especially considering that the proceedings took place during Covid-19 season and in view of tight timelines set by Orders 75 and 76 of the Senate Standing Orders. The procedure under these Standing Orders appeared to have been meticulously followed by the Senate. The Motion was properly moved; adequate notice was given to the appellant; he was aware of the allegations facing him; he was given an opportunity to defend himself; to adduce and challenge evidence; the hearing was in public; and the proceedings began and concluded without unreasonable delay.
29. No step was taken outside the timelines set out in order 72 and 75 of the  Senate Standing Orders. Both the Court of Appeal and the High Court were convinced that the appellant had sufficient time within which to prepare and present his response.
30. The multi-stage nature of the process of removal from office, and the attendant litigation that followed had produced in the recent past a worrying trend that amounted to abuse of court process by parties. Parties employed all delay tactics in the book in order to avoid the consequences of the lustration provisions in Chapter Six of the Constitution that disqualified an individual from holding a State or public office since such disqualification was dependent on all possibilities of appeal or review of the relevant sentence or decision being exhausted.
31. If the phenomenon of parking appeals were to be allowed as the norm, the result would be to forget the constitutional aspirations of good governance and integrity in public service. In such a context, courts were not helpless. To begin with, the mandate of interpretation and application of the Constitution was vested in the courts.
32. The courts could not sit back and helplessly watch as the constitutional and national values and principles were being subverted by deliberate acts of the parties. Parties who were appealing or applying for review of decisions that made them ineligible for public or state office pursuant to chapter six of the Constitution, had a singular obligation to diligently prosecute such cases. Justice had to be done and was also to be seen to be done. That had to be the overriding objective of every party, counsel and the court.
33. The appellant was accorded a fair hearing within the meaning of article 50 and fair administrative action in terms of article 47 of the Constitution, and under the standing orders.
34. The Motion for the removal from office of Governor Nairobi County was duly verified in accordance with Order 67(1) of the Nairobi City County Assembly Standing Orders; and that the verification was not in the form of an affidavit or any other forms of deposition.
35. Whereas public participation was a major pillar and bedrock of the Kenyan democracy and good governance, proving public participation was not depended upon proof by evidence.  On account of the restrictions placed on physical and personal public interactions due to the Covid- 19 pandemic, all the foregoing avenues satisfied the requirements of public participation.
36. Impeachment or removal proceedings, though quasi-judicial were not in the nature of criminal proceedings. They did not necessarily require or depend on criminal culpability to succeed. All that was required was that the allegations be substantiated. But as a constitutional remedy, impeachment served as an important check on the exercise of executive power. The purpose of impeachment was generally to protect public interest and to preserve constitutional norms, while at the same time observing the rules of natural justice throughout the process. Both interests had to be balanced.
37. The High Court received and evaluated the evidence presented to it in support and in rebuttal of the four charges. The Court of Appeal re-evaluated that evidence before coming to its own independent determination. The two courts came to a common conclusion that articles 47 and 50 of the Constitution were adhered to by both the County Assembly and the Senate; that the process was, in the circumstances, expeditious, lawful and procedurally fair.
38. The Supreme Court could not substitute itself into the High Court and Court of Appeal and take up their roles by re-analyzing the evidence afresh for the third time. The Supreme Court could only disturb the concurrent factual conclusions. If those conclusions were based on no evidence or not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable court would have arrived at the same. The four charges against the appellant were, no doubt weighty, but they were not vague. They contained detailed particulars of the alleged violations of the Constitution and the law, specifying with precision the provisions of the Constitution and the law that were alleged to have been contravened.
39. Before the question of impeachment was escalated to the two courts, both the County Assembly and the Senate had equally and independently found merit in the charges. Though there was no obligation in impeachment charges to prove each and every charge, in that instance all the organs involved, from the County Assembly to the Court of Appeal, found proof of all the charges. Nothing had been placed before the Supreme Court to warrant interference with those conclusions by the two superior courts.
40. Under article 1 of the Constitution all sovereign power belonged to the people of Kenya. That power could only be exercised in accordance with the Constitution itself. Further, the people may exercise that power either directly or through their democratically elected representatives. Specifically, in the instant case, sovereign power of the people was delegated to State organs such as Parliament at the national level and the County Assemblies in the devolved governments. Delegated power was to be exercised solely for the benefit of the people.
41. To completely lock out the electorate from being heard in a matter as important as the removal of their Governor, would be against the spirit of article 1(2) of the Constitution. There having been meaningful public participation, the people participated directly and also exercised their power through their elected representatives, at both national and county levels to uphold and defend chapter six of the Constitution.
42. The removal from office of the appellant was in compliance with the Constitution and the law.

Per P.M Mwilu, DCJ and VP; and SC Wanjala, SCJJ (Concurring)

1. The appeal had been rightly dismissed for lack of merit. However, the concurring court would have struck out the appeal at the instant stage without more.
2. A party had to properly and specifically invoke the Supreme Courts appellate jurisdiction under article 163(4)(a) or 163 (4)(b) of the Constitution. Failure to do so would lead to the intended appeal being struck out. The concurring court would have downed its tools.

Per MK Ibrahim, SCJ (Concurring)

1. The Supreme Court as the Court of final judicial authority in Kenya, was bestowed with jurisdiction and mandate pursuant to section 3 of the Supreme Court Act, No. 7 of 2011, to settle constitutional questions with finality. The Supreme Court should be ready to pronounce itself on the interpretation of constitutional issues.
2. The instant case was one that warranted the Supreme Court to depart from the long-held decision in Owners of the Motor Vessel Lillians v. Caltex Oil Kenya Limited [1989] KLR 1. That was not an endorsement for departure from the principles in the Owners of the Motor Vessel Lillians v. Caltex Oil Kenya Limited [1989] KLR 1 decision, rather a singular exemption for the Supreme Court due to its specialised mandate pursuant to the Constitution and the Supreme Court Act.
3. The authority assigned to a State officer was a public trust that vested the responsibility to serve the people, rather than the power to rule them. To take up a State Office, whether it be by election or appointment, required commitment to good governance, transparency and accountability. That commitment had to be espoused in both the words and deeds of the office holder in both public and official lives as well as their private lives. In every association, that commitment had to, at all times, be consistent with the purposes and objects of the Constitution, demonstrate honour for the people of Kenya, bring honour to the nation and dignity to the office as well as promote public confidence in the integrity of the office. Chapter Six codifies the guardrails against autocratic exercise of power by the leaders.
4. The context of the instant case presented an opportunity for the Supreme Court to settle fundamental questions of law surrounding impeachment proceedings in the framework of the Constitution of Kenya, 2010. Impeachment being a remedy for breaching the public trust entrusted to State Officers. The instant case was an opportunity to provide high yielding interpretive guidance on the Constitution that the court had an obligation and duty to seize.
5. The concurring court fully supported the principles and the final orders of the majority court.

The Supreme Court cannot consider the merits of the issues sought to be certified at the point of certification

Brief facts

The 1^st - 4^th applicants and the 5^th and 6^th applicants filed two applications both dated July 22, 2022 wherein they sought among others, orders; that pending the hearing and determination of the application inter- parties, the court to stay the ruling, certification, and order issued on July 8, 2022 and any further progression of the main appeal arising from the ruling in Supreme Court Application No. 3 (E008) of 2022; and that the court reviews and/or set aside its ruling of July 8, 2022 in Supreme Court Application No. 3 (E008) of 2022.

The applicants argued that on May 23, 2022, the Deputy Registrar gave directions that the preliminary objection was to be heard and determined first vacating and superseding prior directions given and that by the ruling delivered on July 8, 2022, the court proceeded to determine the preliminary objection as well as the substantive application by the respondents seeking review of the decision of the Court of Appeal denying certification, and the application for leave to file a supplementary affidavit to produce a notice of appeal; hence condemning the applicants unheard. The applicants further argued that the court had not taken directions for the applications since the directions issued on May 23, 2022 were limited to the preliminary objection.

Issues

1. Whether the Supreme Court could consider the merits of the issues in an application for certification when reviewing the Court of Appeals decision declining to certify the issues. 
2. What were the factors to consider when determining an application for review of an application for certification of a matter as of general public importance warranting an appeal to the Supreme Court?

Held

1. The applicants were not condemned unheard since they were aware of the directions of the court with regard to the application dated April 19, 2022. It was their prerogative to file the preliminary objection and submissions in support of the objections as opposed to or in addition to submissions with regard to the application. They chose to only limit themselves to their objection. In any event, the applicants objections raised substantive grounds as to the merit of the application including that the application did not raise issues amounting to general public importance to warrant the review of the decision of the Court of Appeal. In addition, the applicants filed grounds of objection and a replying affidavit which raised issues that transcended the preliminary objection, an objection being a pure point of law.
2. The court was in charge of how it conducted its proceedings, upon the direction to comply, it was incumbent upon the parties to do so, as they eventually did, within the specified timelines. At no time should parties imagine that they could direct the court on its preferred course of action over a matter before it. It was not feasible to the court, in the application before it, based on the pleadings on record to first determine the preliminary objection and thereafter revert to the application considering the scarce judicial time and resources.
3. The ruling delivered on July 8, 2022 considered all the pleadings and went ahead to determine the main question before it, to wit, whether the application for review of certification was with merit, the Court of Appeal having declined the same. At the point of certification, the court could not consider the merits of the issues sought to be certified. The applicants would in the fullness of time have the opportunity to submit on the certified issue at the hearing.
4. Nothing turned on the application dated June 16, 2022 for leave to file a supplementary affidavit to produce a notice of appeal it. Hence, that was a non-issue and the court did not determine the application as submitted by the applicant. The parties were at liberty to pursue the same further, if they so wished.
5. The applicants had not met the threshold for review of the courts decision. There was no exceptional circumstance, error apparent on the record, illegality, fraud or deceit to warrant such a decision. The alleged violation of the right to be heard and fair trial as submitted by the applicants did not satisfy the criteria for exceptional circumstance to warrant a review of  the court's ruling.

Supreme Court declines to award costs against a petitioner seeking to withdraw a petition as bad faith had not been demonstrated on the part of the petitioner

Brief facts

The petitioner filed the instant notice of withdrawal of the petition of appeal in which he sought to withdraw the petition of appeal with no order as to costs. The only dispute for the courts determination was that of costs upon withdrawal of the petition. The petitioner contended that the notice of withdrawal was filed due to the courts decision on July 25, 2022 dismissing the petitioners application with no order as to costs. It was the petitioners argument that; costs followed the event though courts had the ultimate and unfettered discretion with respect to costs; the purpose for an award of costs was to indemnify fully or partially the successful party for the expenses incurred; and that the issues raised were of a constitutional nature and of public interest. 

The 4^th and 5^th respondents prayed for costs upon withdrawal of the petition on grounds that; the matter was not a public interest litigation; the petitioner had abused the judicial process by filing another petition of appeal raising similar issues that had been raised in a prior suit and that they had spent considerable resources in hiring advocates to defend them in the proceedings. 

Issues

1. What was the purpose of issuing orders as to costs? 
2. Whether in the absence of bad faith in public interest litigation each party should bear its costs? 

Held

1. The court had the power under section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to make any ancillary or interlocutory orders including any orders as to costs that it thought fit to award as it deemed necessary for the ends of justice or prevent abuse of the process of the court. Ordinarily, costs followed the event and costs should not be used to punish the losing party but to compensate the successful party for the trouble taken in prosecuting or defending a suit.
2. In public interest litigation which existed to serve the purpose of protecting the rights of the public at large, in a case that raised constitutional issues which were public in nature, in the absence of bad faith being exhibited, each party should bear its costs.
3. In view of the courts ruling delivered on July 25, 2022, the court could not substantially determine the instant petition in the absence of reasons for the impugned judgment of the appellate court in Civil Appeal No. E168 of 2022 which resulted in the petitioner filing Petition No E024 of 2022 before the instant court upon delivery of the reasons for the judgment by the appellate court.
4. The instant case fell within the domain of public interest litigation surrounding the nomination of a person for the general election that was slated for August 9, 2022 and the defending of such proceedings by the respondents was similarly in exercise of public interest. In addition, the withdrawal of the petition of appeal was largely informed by the courts ruling on July 25, 2022. As no bad faith had been demonstrated on the part of the petitioner, the court was not inclined to make any order for costs against him.

Supreme Court allows an application seeking the withdrawal of an appeal and orders each party to bear its costs

Brief facts

The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicants contention that having been aggrieved by the Court of Appeals ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources. 

The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2^nd respondent who filed a notice of preliminary objection. 

Issues

Whether costs could be awarded where a matter was not ripe for hearing and the respondents did not stand to suffer prejudice in the withdrawal of an appeal.

Held

1. None of the parties were opposed to the withdrawal of the petition, save for the prayer for costs by the 1^st to 4^th respondents. In the premises, the prayer to have the petition of appeal withdrawn was allowed. The substratum of the appeal, being of the nature of public interest, was overtaken by events necessitating the withdrawal of the appeal. 
2. The matter was not ripe for hearing despite the 2^nd respondent having filed a notice of preliminary objection which had not been heard or directions given. While applying the principle that costs followed the event, the event to which costs would follow had not materialized and the respondents did not stand to suffer prejudice if the petition of appeal was withdrawn without costs. There was no reason to award costs, the limited court attendances by the respondents, which were in any event of the nature of mentions notwithstanding. 

Delays caused by a courts administrative process cannot be visited upon a party seeking to file a supplementary record of appeal

Brief facts

The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. It was their argument that the record of appeal arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 352 of 2019 dated September 23, 2021 was incomplete as the duly sealed notice of appeal and order appealed from had not been filed. It was further their contention that on September 28, 2021 an application was made for the certified copy of the order arising from that judgment, however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules, 2010, which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. 

In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the notice of appeal by the Court of Appeal on January 26, 2022. The applicants further contended that the certified order dated September 23, 2021 was issued following further follow up efforts resulting in the filing of the instant application. The respondents argued that the delay was evidently inordinate and offended the principle that there should be an end to litigation and that they would suffer irreparable loss if the orders sought were granted. 

Issues

1. Whether delays caused by courts administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party.
2. What were the principles for grant of an order of extension of time to file a supplementary record of appeal?

Held

1. Under rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions and any person intending to appeal to the court was required by rule 31(1) of the Rules to file the notice of appeal within fourteen days from the date of the decision intended to be challenged.
2. From the record, after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021. The applicants follow up efforts preceding the issuance of the order were not disputed by the respondents. Delays caused by courts administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a partys reach.
3. The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the courts exercise of discretion to grant or deny the extension.
4. In spite of the respondents argument that the applicants ought to have followed up physically at the registry, the application met the threshold of extension of time as the delay of two months in the instant matter was not inordinate as it was sufficiently explained, and it was not occasioned by the applicant but by the court. That explanation was reasonable and there was no prejudice to be occasioned to the respondents.