Factors that guide the Supreme Court in the exercise of its advisory opinion jurisdiction.

Speaker Nairobi City County Assembly & another v Attorney General & 3 others (Interested parties) [2021] eKLR

Reference 1 of 2020

Supreme Court of Kenya

PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

July 16, 2021

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - advisory opinion jurisdiction - factors that guided the Supreme Court in the exercise of its advisory opinion jurisdiction - whether the Supreme Court would exercise advisory opinion jurisdiction over issues that were also at issue in pending matters before lower courts or issues that were dealt with by an advisory opinion that was rendered in the past or issues that were hypothetical - Constitution of Kenya, 2010, article 163(6).

Brief facts

On December 6, 2019, the former Nairobi City County Governor was arrested and subsequently arraigned in court to face corruption charges. He was suspended from office. The Deputy Governor had resigned and there was no substantive Deputy Governor in office. The applicants sought an advisory opinion from the Supreme Court on the question as to how a vacancy in the office of Governor would be filled when there was no Deputy Governor.  The reference raised the following issues: -

1. Whether the pronouncement of courts in various rulings was a declaration of a vacancy in the respective offices and more specifically the County of Nairobi City.
2. Whether the Governor of Nairobi City County could appoint a Deputy Governor even after being barred by a court from accessing his office.
3. Whether in the absence of both the Governor and the Deputy Governor, the Speaker Nairobi City County could assume the office of Governor.
4. What would happen if the Speaker Nairobi County Assembly declined to assume the office of Governor County of Nairobi City?
5. What was the legal position regarding the absence of gazetting the resignation of Deputy Governor County of Nairobi City.

Issues

1. What were the factors that guided the Supreme Court in the exercise of its advisory opinion jurisdiction?
2. When would the Supreme Court exercise its advisory opinion jurisdiction when the matters it was asked to pronounce itself on were also matters that were pending determination at lower courts?
3. Whether the Supreme Court could issue an advisory opinion about an issue which was the subject of another reference in which the Supreme Court had already rendered an advisory opinion.
4. Whether an advisory opinion could be issued by the Supreme Court in relation to a hypothetical issue.

Held

1. Article 163(6) of the Constitution provided for the Supreme Court's jurisdiction to issue advisory opinions. Jurisdiction to issue advisory opinions was also recognized in section 13 of the Supreme Court Act and rule 50(1) of the Supreme Court Rules 2020. The exercise of the court's advisory opinion jurisdiction was discretionary and only deserving cases would justify the exercise of such jurisdiction.
2. The guidelines related to the exercise of the Supreme Court's advisory opinion jurisdiction were the following: -

1. The reference had to fall within the four corners of article 163(6) of the Constitution; it had to be a matter concerning county governments and the question as to whether a matter concerned county governments should be determined on a case-by-case basis;
2. The parties that could make a request for an advisory opinion were the national Government, a State organ or a county government. Any other person or institution could be enjoined in such proceedings as an intervener (interested party) or as amicus curiae.
3. The court would be hesitant to exercise its discretion to render an advisory opinion where the reference related to matters that were the subject of proceedings before a lower court. However, where court proceedings in question were instituted after a request had been made to the Supreme Court for an advisory opinion, if the Supreme Court was satisfied that it was in public interest to do so, it could proceed and render an advisory opinion.
4. Where a reference had been made to the Supreme Court the subject matter of which was also pending in a lower Court, the court could nonetheless render an advisory opinion if the applicant could demonstrate that the issue was of great public importance and requiring urgent resolution through an advisory opinion. In addition, the applicant could be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial court process.
3. The reference was about filling the position of a Governor and Deputy Governor upon a double vacancy, following a court order barring a County Governor from accessing office, and in the absence of a substantive Deputy Governor following a resignation; the procedure for filling the two vacancies should a Speaker decline to assume the office of Governor, and lastly the legal position regarding the absence of gazetting the resignation of a Deputy Governor. Those were matters that concerned county governments.
4. One of the applicants was the Speaker of the County Assembly of Nairobi and he was a proper applicant as provided for in article 163(6) of the Constitution. However, the other applicant, the Clerk of the County Assembly, unlike the Speaker, did not have the locus standi to bring a request for an advisory opinion before the court. Consequently, the 2^nd Applicant was struck out.
5. Two issues raised in the reference were the subject of proceedings at the lower courts. The first issue was on whether the pronouncement of the courts in various rulings were declarations of vacancies in offices at the Nairobi City County. The issue was pending determination before the Supreme Court in Petition 2 of 2020, Ferdinand Waititu v Republic and in the High Court Petition No. E 312 of 2020. The Court of Appeal had pronounced itself on the issue in Moses Kasaine Lenolkulal v Republic, Criminal Appeal No. 109 of 2019. The second issue, which was on whether the Governor could appoint a Deputy Governor after being barred by a court from accessing his office, was pending determination at the High Court in ACEC Petition No. 1 of 2020. For the Supreme Court to render an advisory opinion on the two issues, the applicant had to demonstrate that they were of great public importance and that they required urgent resolution through an advisory opinion. The applicant could also be required to show that they were not amenable to resolution through an adversarial court process. The applicant's reference as concerned the two issues met the criteria of public importance but did not meet that of urgency. The Supreme Court would not determine the two issues through an advisory opinion but would allow them to reach the court through the normal appellate mechanism.
6. A third issue raised in the reference, which was about whether in the absence of both the Governor and Deputy Governor, the Speaker City County Assembly could assume the office of Governor, was determined by the Supreme Court in reference No 1 of 2015 - Re Speaker, County Assembly of Embu. The answer was that the office of Deputy Governor would remain vacant until the election of a new Governor. The new Governor had to nominate a person to fill the vacancy within 14 days after assuming office. The County Assembly had to vote on the nomination within sixty days after receiving.  Since a decision had been issued as concerned that issue, there was no need for the Supreme Court to render further advice on it.
7. The fourth issue in the reference on what would happen if the Speaker of the Nairobi City County Assembly declined to assume office of Governor was hypothetical as it was yet to occur. There were practical and legal constraints attendant on advisory opinions and the Supreme  Court would not exercise jurisdiction in hypothetical situations.
8. The fifth issue was about what the legal position regarding the absence of gazetting the resignation of a Deputy Governor of Nairobi City County was. That question should be dealt with through the advice of the Attorney General or by lower court and could reach the Supreme Court through the normal appellate process.

Reference dismissed.

Cases

 East Africa

1.In re  the Matter of the Interim Independent Electoral Commission, [2011] 2 KLR 32 - (Followed)

2.In re the Matter of the Principle of Gender Representation in the National Assembly and the Senate,  [2012] 3 KLR 718 – (Followed)

3. In re Speaker, County Assembly of Embu Reference No 1 of 2015; [2018] eKLR- (Followed)

Statutes

 East Africa

1. Constitution of Kenya, 2010 articles 163(6); 178; 182(2) (4); 260 – (Interpreted)

2. Supreme Court Act, 2011(Act No 7 of 2011) section 13 –(Interpreted)

3. Supreme Court Rules, 2020 (Act No 7 of 2011 Sub Leg) rule 50(1) – (Interpreted)

Legal threshold to be met for the Supreme Court to entertain a matter as one that involved matters of constitutional interpretation and application.

United Millers Limited v Kenya Bureau of Standards, Director, Directorate of Criminal Investigations & 5 others [2021] eKLR

Petition (Application) 4 of 2021

Supreme Court of Kenya

PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

July 16, 2021

Reported by Beryl Ikamari

Jurisdiction – jurisdiction of the Supreme Court – matters of constitutional interpretation and application - whether an appeal that arose from a matter that was dismissed on grounds that alternative dispute resolution mechanisms had not be exhausted was a matter that court be heard and determined by the Supreme Court – Constitution of Kenya 2010, article 163(4)(a).

Brief facts

At the High Court, the applicant filed judicial review proceedings to quash a decision not to release sugar for sale and to condemn it for destruction. The sugar failed the yeast and mould test when tested against the KS EAS 749:2010 Brown Sugar - Specification. The High Court dismissed the application on grounds that available statutory remedies had not been exhausted and the applicant's case did not fall within the exceptions to the doctrine of exhaustion. In the alternative, the High Court held that it was not demonstrated that the 1^st respondent's decision was tainted with illegality. On appeal, the Court of Appeal upheld the High Court's determination and reasoning.

The applicant filed an appeal at the Supreme Court. The applicant also filed an application that sought conservatory orders or in the alternative a stay of the Court of Appeal judgment pending hearing and determination of the substantive appeal before the Supreme Court.

The 1^st respondent stated that the petition did not raise matters of constitutional interpretation or application and that the Supreme Court's jurisdiction had not been invoked properly. The 1^st respondent added that it would be futile for the court to grant any orders as the quality of the sugar had deteriorated further and it could not be released for public consumption. The 1^st respondent also said that the application could not be entertained as there was no proper appeal before the court. 

Issue

Whether the Supreme Court had jurisdiction to hear and determine the appeal as one that raised matters of constitutional interpretation and application.

Held

1. Where any party to proceedings raised an objection as concerned the court's jurisdiction, the objection had to be dealt with as a preliminary issue before the meritorious determination of the cause. The court had to consider whether the application met the set jurisdictional principles under article 163(4)(a) of the Constitution.
2. Article 163(4)(a) of the Constitution provided that an appeal from the Court of Appeal to the Supreme Court would lie as of right in any case involving the interpretation or application of the Constitution. The appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court.
3. At the High Court the suit was dismissed on grounds of failure to exhaust alternative remedies, failure to fall within the exceptions to the exhaustion doctrine and failure to show that grounds for the grant of judicial review remedies, such as illegality, were in existence. The issues framed for determination at the Court of Appeal included whether the High Court had properly exercised its jurisdiction, whether it had invoked the exhaustion doctrine properly and whether it was right in finding that the application failed to meet the threshold for the grant of judicial review orders. It was clear that the determination of the matter was on the basis of a preliminary jurisdiction issue.
4. While issues of constitutional interpretation and application had been raised in the substantive application for Judicial Review, they were nipped in the bud when the preliminary objection was upheld for failure to exhaust the statutory alternative dispute resolution mechanisms. Courts had to exercise restraint in exercising their jurisdiction and had to give deference to the dispute resolution bodies established in statutes.

Application dismissed.

Orders: -

1. The petition of appeal No. 4 of 2021 dated February 23, 2021 and filed on February 25, 2021, was struck out for want of jurisdiction.
2. The notice of motion dated March 4, 2021 and filed on March 16, 2021, was dismissed.
3. The petitioner/applicant had to bear the 1^st respondent’s costs.

Equality in undivided shares of a group ranch is based on acreage as opposed to value of the property

John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2021] eKLR

Petition No. 9 of 2020

Supreme Court of Kenya

PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

July 16, 2021

Reported by Kakai Toili

Land Law – tenancy – proprietorship in land - community of ownership (co-ownership) of land vis a vis community or communal ownership of land - what was the distinction between community of ownership (co-ownership) of land and community or communal ownership of land - what was the type of land tenure operating in a group ranch - whether the equality in undivided shares of a group ranch should be based on acreage as opposed to value of the property.

Land Law – tenancy – tenancy in common - what was the nature of tenancy in common.

Brief facts

The appellant was the administrator of the deceased’s estate, whom it was alleged that at the time of his death he had been in occupation and possession of the suit property. The 3^rd respondent was a group ranch comprised of about 519 members and owned about 100,000 hectares in a parcel of land from which the suit property was excised. The Ministry of Lands consented to the dissolution and subdivision of the ranch into equal individual holdings to the registered members. After subdivision, the deceased’s estate was allocated a different parcel of land (the allocated land) and not the originally occupied land. The import therefore was that the appellant and other beneficiaries of the deceased’s estate had to vacate the suit land and relocate to the allocated land.

The appellant and one of his brothers failed to vacate the suit property thereby compelling the 1^st respondent to institute a suit at the trial court in a bid to evict them. The appellant claimed that the dissolution of the 3^rd respondent was conditioned on the principle that, all the members would be allocated a share of all that parcel occupied at the time of dissolution. It was contended that the 2^nd and 3^rd respondents contravened that condition and allocated the suit property to the 1^st respondent. He therefore claimed that his and the dependents’ fundamental rights to a fair administrative action, to own property, equality and freedom from discrimination had been violated.

The trial court found that the 1^st respondent had been lawfully allocated the suit property, ordered the appellant to vacate and deliver the same with vacant possession to the 1^st respondent within 90 days of the date of the judgment and in default thereof, be evicted. Aggrieved, the appellant filed an appeal at the Court of Appeal which dismissed the appeal with costs. The appellant was further aggrieved and thus filed the instant appeal.

Issues

1. What was the type of land tenure operating in a group ranch?
2. What was the distinction between community of ownership (co-ownership) of land and community or communal ownership of land?
3. What was the nature of tenancy in common?
4. Whether the equality in undivided shares of a group ranch should be based on acreage as opposed to value of the property?

Held

1. The nature of the issues before the court left no doubt that the court had jurisdiction to entertain the appeal.
2. The repealed Land Group Representatives Act was introduced to enable the inhabitants of large swathes of land in largely semi-arid pastoralist areas, to hold such land as a group, under one title. The title would be issued to and held by elected representatives on behalf of the group. Through that instrumentality, the group ranch not only acquired a corporate character, but became legally insulated from the tragedy of the commons. The group ranch was therefore owned by members of the group, in equal but undivided shares, until such time that each member acquired their individual titles. In the law of property in land, that was what could be characterized as a community of ownership (or co-ownership) as opposed to community or communal ownership.
3.  In community of ownership (or co-ownership), each member had an equal share, though undivided, while in community or communal ownership, there was no equality of shares. The members derived their security of tenure qua members of that community. The nature of that security would also differ depending on the status of the members. Therefore, the type of tenure operative in a group ranch under the Land (Group Representatives) Act, was what was known at common law as a tenancy in common, as opposed to a joint tenancy (the ingredients of which could be clarified in future litigation). Members of the group ranch were tenants in common as opposed to joint tenants.
4. At common law, each co-owner was as much entitled to possession of any part of the land as the others. He could not point to any part of the land as his own to the exclusion of the others; if he could, there would be separate ownership and not co-ownership. No one co-owner had a better right to the property than another. Tenants in common held property in undivided shares. Each tenant in common had a distinct share in property which had not yet been divided among the co-tenants. The only fact which brought them into co-ownership was that they both had shares in a single property which had not yet been divided among them. Therefore, while the tenancy in common lasted, no one could say which of them owned any particular parcel of land.
5. There was no legal basis upon which the appellant could lay claim to the parcel of land in question, to the exclusion of any other member of the group ranch. For as long as the group ranch remained undivided, his share in the land was equal to the other members of the group. It remained a tenancy in common until each member went their separate ways, having acquired their individual titles. The equality in the undivided shares of a group ranch, could only be based on acreage as opposed to value, for that was what brought its members into a community of ownership.
6. A group ranch hardly came into existence on the basis of its value as opposed to its acreage. The frontiers of a group ranch could only be determined by its acreage as established by a survey which then mapped its boundaries. That explained why the mechanism that was used by the group representatives at the time of sub-division was balloting. Balloting was acreage sensitive but value blind. After sub-division, individual parcels were bound to differ in terms of value, depending on various factors. However, such differences in the value of distinct parcels were a post sub-division phenomenon, and therefore irrelevant to the process.

Petition of appeal dismissed; judgment of the Court of Appeal dated December 1, 2017 upheld; appellant to bear the costs of the instant appeal.

Effect of reliance on repealed rules in an application before the Supreme Court where a statute which is in force is also relied on

Ann Waiguru & another v Martha Wangari Karua & 2 others [2021] eKLR

Petition (Application) No. 5 of 2018

Supreme Court of Kenya

PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

July 16, 2021

Reported by Kakai Toili

Civil Practice and Procedure – applications – reliance of statutory provisions in filing applications – claim that a repealed rule was relied on when filing an application before a court – whether reliance on repealed Rules was fatal in an application before the Supreme Court where a statute which was in force was also relied on.

Brief facts

The applicants filed Petition No. 5 of 2018: Anne Mumbi Waiguru & another v Martha Wangari Karua & 2 others (Petition of Appeal No. 5 of 2018) seeking to challenge the Court of Appeal’s judgment in Nyeri Election Appeal No. 1 of 2017. The appellate court had allowed the 1^st respondent’s appeal against a High Court judgment which struck out her petition challenging the election of the 1^st applicant. The Court of Appeal remitted the petition to the High Court and ordered the High Court to hear it on merit. The parties to the instant application by consent agreed to withdraw the Petition No. 5 of 2018. Later, the Deputy Registrar directed the applicants to file written submissions on costs and a formal notice of withdrawal.

The applicants in the instant application sought among others orders that a declaration be issued that the issues raised in Petition No. 5 of 2018 were fully determined by the instant court in its judgment delivered on August 6, 2019 in Petition No. 3 of 2019: Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3others (Petition No. 3 of 2019).

According to the applicants, the main issue for determination was whether the High Court had jurisdiction to hear and determine the 1^st respondent’s election petition after the lapse of the six months. The applicants urged that that issue was determined by the High Court, the Court of Appeal and by the instant court in Petition No. 3 of 2019. The applicants submitted that the issues raised were the same as those raised in Petition No. 3 of 2019 and were fully determined. The 1^st respondent submitted that although there was a similarity in some of the issues, an appeal could not be determined by way of an interlocutory application unless such an application contested its competency which was not the case in the instant application.

Issue

Whether reliance on repealed Rules was fatal in an application before the Supreme Court where a statute which was in force was also relied on.

Held

1. From the court’s proceedings before the Deputy Registrar, the applicants had for a long time intended to withdraw the appeal before the instant court and that the 1^st respondent had no issue with the withdrawal save for costs. The 2^nd and 3^rd respondents were on record leaving the issue of costs for the court to determine. From the 1^st respondent’s submissions, there was a similarity of issues in the instant appeal and the issues in Petition No. 3 of 2019. The 1^st respondent had not highlighted an issue in the instant appeal which, in her opinion, ought to proceed to full determination. From the 1^st respondent’s arguments, her only problem seemed to be the procedure for terminating the instant appeal and the attendant costs. It was not clear what aspect of the appeal remained pending for canvasing before the instant court for determination.
2. The applicants premised their application on rule 23 of the repealed Supreme Court Rules, 2012. That rule made provision for filing of interlocutory applications. The applicants’ application should not be struck out for relying on a repealed rule because, other than rule 23, the applicants also relied on section 24 of the Supreme Court Act which was in force. The court was cognizant of the unique circumstances of the instant case, that was, the long time and judicial processes the parties had engaged themselves in. Reliance on rule 23 of the repealed Rules did not in itself make the application fatal. However, counsel ought to continuously keep themselves updated with legal developments to avoid recurrence of similar situations in the future.
3. Despite indicating severally before the Deputy Registrar that they sought to withdraw the petition, the applicants did not prefer the procedure provided for under section 18 of the Supreme Court Act and rule 27 of the Supreme Court Rules, 2020. Be it as it may, the issues in the Petition No. 5 of 2018 were determined in Petition No. 3 of 2019.
4. Section 18 of the Supreme Court Act provided that a party could at any time before judgment, with leave of court, withdraw any proceedings and the application for leave could be made orally. Rule 27 of the Supreme Court Rules, 2020 also gave a party the liberty to withdraw proceedings at any stage before judgment subject to any orders as to costs following such withdrawal of proceedings. Even though the applicants did not seek further orders, premised on the court’s mandate under section 21 of the Supreme Court Act which empowered the court to issue ancillary orders, the petition of appeal was deemed to have been dispensed with. That determination would bring an end to litigation, protect the parties from repetitive litigation over the same issues, save the court’s time, promote stability of judgments by reducing the possibility of inconsistency in judgments, promote confidence and predictability.
5. The award of costs would normally be guided by the principle that costs followed the event, the effect being that the party who called forth the event by instituting suit would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs. The vital factor in setting the preference, was the judiciously exercised discretion of the court accommodating the special circumstances of the case while being guided by ends of justice.

Application allowed; each party to bear its own costs in the instant matter and the proceedings at the Court of Appeal.

Orders

1. A declaration was issued that the issues raised in Petition No. 5 of 2018: Anne Mumbi Waiguru & another v Martha Wangari Karua & 2others were fully determined by the court in its judgment delivered on August 6, 2019 in Petition No. 3 of 2019: Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3others.
2. The petition of appeal dated March 28,2018 and filed on March 29, 2018 was dispensed with.

Forest land is not available for reallocation.

Pati Limited v Funzi Island Development Limited & 4 others [2021] eKLR

Petition 37 of 2019

Supreme Court of Kenya

PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

July 16, 2021

Reported by Beryl Ikamari

Land Law - nature of land - forest land - difference between forest land and trust land - claim that Proclamation No 44 of 1932 declared disputed land as a mangrove forest - whether Proclamation No 44 of 1932 was still in effect by virtue of the provisions of the Third Schedule of the Forest Conservation and Management Act - whether the disputed land was forest land which was unavailable for reallocation - Forest Conservation and Management Act No. 34 of 2016, section 77.

Land Law - trust land - setting aside of trust land - applicable legal requirements - whether the setting aside of purported trust land while changing the size of the land to be set aside and the purpose of the setting aside without effecting legal instrument reflecting those changes meant that the land had been set aside irregularly - Constitution of Kenya (repealed) sections 115 and 117(1)(c).

Brief facts

A dispute arose when the Commissioner of Lands, for and on behalf of the County Council of Kwale allocated land to the appellant while the 1^st to 3^rd respondents contended that it was forest and public land. They sought orders of certiorari to set aside the land allocation and orders of prohibition to prevent the appellant from engaging in dealings with the land. The 4^th and 5^th respondents argued that the land was Trust Land and the legal procedures relating to its allotment under the Trust Land Act had been complied with. An issue was raised as to whether the 1^st to 3^rd respondents had locus standi. On the issue of locus standi the court held that it was the Minister in Charge of forests that could challenge the allocation. The High Court dismissed the application. It stated that the 1^st to 3^rd respondents did not prove that the land was forest land.

The decision of the High Court on the issue of locus standi, on whether the land was trust land or forest land and on whether the legal requirements for allotment of the land had been complied with, was challenged by the 1^st to 3^rd respondents at the Court of Appeal. The appeal was unanimously allowed and an order quashing the allocation of the suit land to the appellant was granted.

The appellant lodged an appeal at the Supreme Court.

Issues

1. When would land be deemed to be forest land?
2. When would legal requirements regarding the setting aside of trust land to third parties have been complied with?

Held

1. Section 4 of the Forests Ordinance, Cap 176, allowed for proclamations that any areas of native land would be forest land. Under Proclamation No 44 of 1932, mangrove swamp forest reserves were declared as all land between high water and low water marks (ordinary spring tides) in the localities as described below, viz on the mainland and islands adjacent to the coast from Chale Point in the North, to the boundary of the Trust Territory of Tanganyika in the South. Subsequently, under Legal Notice No 174 of 1964, mangrove swamp forests in Mombasa, Kwale, Lamu and Kilifi Districts were declared as comprising those pieces of land approximately 111.366 acres, situated between the high and low water marks on the coast of Kenya, which were declared to be forest areas by Proclamation No 44 of 1932.
2. The Forest Act, Cap 385, was enacted in 1942 and revised in 2012 and under section 4 it provided that the Minister could by notice in the gazette declare any unalienated government land to be a forest area. In the subsidiary legislation to the Forest Act, Cap 385, all proclamations under section 4 of the Forest Act, Cap 385, were omitted, by virtue of section 5 of the Revision of the Laws Act.
3. The Forest Act, Cap 385, was repealed by the Forest Act No. 7 of 2005 while the latter was repealed by the Forest Conservation and Management Act No. 34 of 2016.  It should be noted that Proclamation No. 44 of 1932 was not made under the Forest Act, Cap 385. The Proclamation was made under the provisions of the Forests Ordinance Cap 176, which was not one of the laws repealed by the Forest Act Cap 385, the Forest Act No 7 of 2005 or the Forest Conservation and Management Act No. 34 of 2016. Of significance, was the fact that the Minister, never degazetted the suit land as a mangrove forest. A clear reading of section 5 of the Revision of Laws Act, left no doubt that Proclamation No. 44 of 1932 could not have formed part of the contents of that which was omitted by section 4 of the Forests Act, Cap 385.
4. Section 77 of the Forest Conservation and Management Act No. 34 of 2016, were to the effect that any land that was a forest or nature reserve under the repealed Act had to be deemed to be a state or local authority forest or nature reserve under the succeeding Act. Under the Third Schedule of the Forest Conservation and Management Act   public forests included swamp forests declared as such under Notice No 44 of 1932. The word "Notice" therein made reference to "Proclamation" and it could only be referring to Proclamation No 44 of 1932. Therefore, the legal status of mangrove forests as declared in Proclamation No. 44 was saved by the Third Schedule of the Forest Conservation and Management Act.
5. The status of the suit land was as a matter of law declared in Proclamation No. 44 of 1932, and subsequently in Legal Notice No. 174 of 1964, and the said land was situated between the high and low water-mark on the Coast of Kenya. The inescapable conclusion was that the suit land fell within the frontiers of what constituted a mangrove forest as per the Proclamation. The same could therefore, not have been available for allocation within the meaning of the repealed Constitution or the Trust Land Act.
6. Section 115 of the repealed Constitution vested all trust land within the jurisdiction of any County Council in the County Council for the benefit of the residents in that land. Section 117 (1)(c) of the repealed Constitution provided that trust land could be set aside by the County Council for use and occupation by any person or persons for a purpose which in the opinion of that County Council was likely to benefit the persons ordinarily resident in that area or any other area of Trust land vested in that County Council, either by reason of the use to which the area so set apart was to be put or by reason of the revenue to be derived from rent in respect thereof.
7. If the land in question had been trust land, it would not have been allocated in compliance with the law.  Gazette Notice 3831 of 1994 specified the size of the land to be allocated as 0.7 hectares and the Msambweni Land Control Board gave consent to set aside the same 0.7 hectares but the size of land set aside was 3.126 hectares. Further, contrary to section 7(3) of the Trust Land Act (repealed) Gazette Notice No. 3831 of 1994 did not specify a date before which applications for compensation were to be made to the District Commissioner. Lastly, while there was no notice for change of purpose of setting aside, the land which was set aside for use as a boat landing base had a five-star hotel constructed on it.

Petition of Appeal dismissed. Appellant to bear to costs of appeal.

Computation of time for actions before the Supreme Court

Bookpoint Limited v Guardian Bank Limited & another [2021] eKLR

Application No. 4 (E006) of 2021

Supreme Court of Kenya

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Njoki, I Lenaola, SCJJ

July 16, 2021

Reported by Chelimo Eunice

Civil Practice & Procedure – appeals – appeals to the Supreme Court – filing of appeals – extension of time within which to file an appeal – computation of time for any action before the Supreme Court – whether an applicant seeking extension of time could rely on the provisions of the Civil Procedure Code or the Court of Appeal Rules - timelines for filing appeals to the Supreme Court – whether without a valid notice of appeal, a motion for extension to file an appeal out of time would be allowed - Supreme Court Rules, 2020, rules 15 & 36.

Brief facts

The applicant sought for extension of time to file an appeal out of time against the judgement and order of the Court of Appeal delivered on December 18, 2020.  The applicant argued that the judges’ notes were not obtained in good time, and that there was a misunderstanding regarding timelines, the petition having been lodged on February 24, 2021 when it ought to have been lodged on or about February 19, 2021. It submitted that there was only a two-day delay in the filing of the record of appeal, and that the delay was not detrimental to the respondents as their advocates were served with the notice of appeal by January 26, 2021.

The respondents opposed the application arguing that the purported appeal had been filed irregularly and was predicated on a notice of appeal that was filed 15 days out of time. They argued that even in the application, there was no request made to regularize the irregularity by way of extension of time for filing a proper notice of appeal.

Issues

1. What were the timelines for filing appeals to the Supreme Court?
2. Whether litigants could rely on the Court of Appeal Rules in applications before the Supreme Court.
3. Whether without a valid notice of appeal, a motion for extension to file an appeal out of time would be allowed.

Held:

1. By dint of rule 15 (2) of the Supreme Court Rules, 2020, the Supreme Court was clothed with the power to extend time provided therein.
2. Under rule 36 (1) of the Supreme Court Rules, 2020, a person intending to appeal to the Supreme Court ought to file a notice of appeal within fourteen days from the date of judgment or ruling which was subject of the appeal. Consequently, in the instant matter, the notice of appeal ought to have been filed on the 14^th day, which was January 1, 2021 given that the judgment of the Court of Appeal was delivered on December 18, 2020. However, since that date was a public holiday and was a Friday, the immediate next working day was January 4, 2021. That was the day the notice of appeal ought to have been filed.
3. The applicant filed its notice of appeal 15 days out of time. The applicant argument that it relied on rule 3(e) of the Court of Appeal Rules asserting that the same excluded time for filing of a notice of appeal during the Christmas vacation was misguided. The only regime of law that governed proceedings before the Supreme Court was the Constitution, the Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the Supreme Court or the Chief Justice. A court of law had to be moved under the correct provisions of the law. Hence, without identifying the proper legal framework for the motion, an application was liable to be struck out.
4. An applicant seeking extension of time, could not rely on the provisions of the Civil Procedure Code to submit that time did not run between December 19^th to January 21^st. The Court of Appeal Rules could not also be imported for matters before the Supreme Court. Reference had to be made to the Supreme Court Rules, 2020 and not any other rules of procedure.
5. Rule 15 of the Supreme Court Rules, 2020, provided that the computation of time for any action ought to be in accordance with any timeline provided for under the Constitution, section 57 of the Interpretations and General Provisions Act and any directions of the Supreme Court. It therefore, followed that the applicant ought to have lodged its notice of appeal on or before January 4, 2021. It did not, and neither had it sought extension of time to file its notice of appeal out of time.
6. There was no valid notice of appeal on record and given the jurisdictional importance of a notice of appeal, the motion for extension to file an appeal out of time was an act in futility. For even if the court was to be persuaded, upon consideration of the motion on its merit, and be inclined to extend time for filing of the appeal, there was no foundation (notice of appeal) upon which such an appeal would be premised.

Application dismissed with costs.

It is improper for a county government to levy a charge for a road service for a road that is vested in the National Government

Base Titanium Limited v County Government of Mombasa & another [2021] eKLR

Petition No. 22 of 2018

Supreme Court of Kenya

PM Mwilu, DCJ &VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

July 16, 2021

Reported by Kakai Toili

Devolution – county governments – power of county governments – power to charge cess, levy or tax - circumstances in which a county government could charge a cess, levy or tax – claim that a county government charged cess for a road service for a road vested in the National Government - whether a county government could levy a charge for a road service for a road that was vested in the National Government – Constitution of Kenya, 2010, article 209 and Fourth Schedule Part 2 section 5.

Constitutional Law – public finance – accounting for payment – claim that a receipt for payment of cess to a county government was indicated as miscellaneous - whether the use of the term miscellaneous to account for payment was ambiguous and was against the spirit of article 201 of the Constitution on the principles of public finance – Constitution of Kenya, 2010, article 201(a).

Words and Phrases – service – definition of service – a system that provides something that the public needs, organized by the government or a private company - Oxford Dictionary of English 3^rd Edition 2015.

Words and Phrases – miscellaneous -definition of miscellaneous - consisting of many different kinds of things that are not connected and do not easily form a group - Oxford Dictionary of English 3^rd Edition, 2015.

Brief facts

The appeal concerned a cess of Kshs 3000 imposed upon each of the appellant’s trucks from June 17, 2014, whenever transporting its minerals from Kwale County to Mombasa Port (port) which was within the 1^st respondent’s jurisdiction. The 1^st respondent continued to impose the cess despite a protest from the appellant that the same contravened the Constitution of Kenya, 2010, (Constitution) and a further confirmation from the Attorney General that the cess imposed was unconstitutional.

Aggrieved by the 1^st respondent’s action, the appellant filed a suit at the High Court and sought among others a declaration that the actions of the 1^st respondent to charge the cess and a declaration that the 1^st respondent had no mandate under the Constitution to pass any legislation that restricted the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1^st respondent’s boundaries.

The High Court dismissed the appellant’s petition with costs and stated that county governments had, under article 209(3) and (4) of the Constitution, the power to levy taxes and charges for services that they provide including road transport services. Dissatisfied by the High Court’s finding, the appellant lodged an appeal at the Court of Appeal. The Court of Appeal dismissed the appeal with costs hence the appellant filed the instant petition of appeal.

Issues

1. What were the circumstances in which a county government could charge a cess, levy or tax?
2. Whether a county government could levy a charge for a road service for a road that was vested in the National Government.
3. Whether the use of the term miscellaneous to account for payment was ambiguous and was against the spirit of article 201 of the Constitution on the principles of public finance.

Held

1. Under the provisions of article 209 of the Constitution, a county was empowered to raise revenue and levy taxes, rates, or other charges. Additionally, under article 209(4), the 1^st respondent was authorized to impose charges for services provided. The definition of the word service could include county transport which entailed county roads; street lighting; traffic and parking; public rods transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprised some of the functions and powers of county governments under section 5 Part 2 of Schedule Four to the Constitution. The intention of article 209(4) of the Constitution was to confer county governments the discretionary powers to impose charges for services, more specifically, that they could charge or impose a payment in exchange of a public need or amenity.
2. The insertion of the words ‘for services’ in article 209(4) of the Constitution were a qualification to the charge of the services. Whereas a county could levy charges, it had to do so in exchange for an amenity. Put differently, a county did not have the authority to charge a cess, levy or tax where they did not offer anything in return.
3. The Constitution permitted county governments to impose charges for the realization of its powers under the Fourth schedule. But that power did not go unchecked, in the spirit of harmonious interpretation of the Constitution, in enacting the law, county governments had to heed the provisions of article 209(5) of the Constitution and ensure that the charges invoked would not be detrimental to national economic policies, economic activities across boundaries or the national mobility of goods, services, capital or labor.
4. Mobility of goods in Kenya was governed by the Kenya Roads Act (the Act). Under that Act, the Kenya National Highways Authority (KeNHA), the Kenya Urban Roads Authority (KURA) and the Kenya Rural Roads Authority (KERRA), were established for among others constructing, upgrading, rehabilitating and maintaining roads, controlling and implementing policies relating to national roads, rural roads and urban roads.
5. A Kenya Roads Board was established whose mandate under the Kenya Roads Board Act was to oversee the road network in Kenya and coordinate maintenance, rehabilitation and development, all funded by the Kenya Road Board Fund established under section 31 of the Kenya Roads Board Act.
6. KeNHA was responsible for the development, rehabilitation, management, and maintenance of all national trunk roads comprising classes S, A, and B roads:
   1. A class-S road was defined as a highway that connected two or more cities and carried safely a large volume of traffic at the highest speed of operation.
   2. A class-A road was defined as a highway that formed a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports.
   3. A class-B road was a highway that formed an important national route linking national trading or economic hubs, county headquarters and other nationally important centres to each other and to the national capital or to class A roads.
7. KURA was responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads were categorized as national roads. After the January 2016 gazettement, KURA’s mandate was expanded to all counties in line with article 6(3) of the Constitution. On their part, KERRA was in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA was in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.
8. There was a distinction between national roads and county roads. National roads were maintained solely by the national government through KeNHA while counties, maintain their roads in collaboration with the other authorities.
9. To access the port, the appellant had to use the Likoni-Ukunda Road which the Kenyan road system identified as an A14 road. That road, A14 fell directly into the category of a national road. That category fell directly under the mandate of KeNHA and the National Government which was in charge of its development, rehabilitation, management and maintenance. The 1^st respondent had not clarified how the charge meet the categories it set out in item 90 of the Mombasa County Finance, 2014.
10. The 1^st respondent had not stated if they provided street lighting, parking or maintenance of the road accessed by the petitioners. While the superior courts were in agreement with them that the charge was a road service charge, the instant court was of a contrary opinion, as the 1^st respondent did not illustrate how such road services were provided. It was improper for the1st respondent to levy a charge for road service for the same road that vested in the National Government.
11. In plain language, article 201(a) of the Constitution called for openness and accountability including public participation in financial matters. The intention of that provision was to ensure efficiency within the public financial management sector which had faced tremendous challenges occasioned by gaps that had resulted in the past embezzlement of public funds. Article 201(a) sought to curb the problem of abuse of public resources and corruption, by calling for transparency in the handling of those resources. Public finances should be managed efficiently with firm checks and balances.
12. In issuing receipts marked ‘miscellaneous income’ the 1^st respondent had created avenues for possible abuse. The word miscellaneous was vague and it was not easily discernable what the payments were directed at. Using the term miscellaneous to account for payment led to ambiguity which went against the spirit of article 201 of the Constitution. Miscellaneous could refer to any number of things and it was essential that that form of opaqueness in accountability was discouraged. It was imperative that any payments to counties should clearly state in precise, unambiguous words what the payments were for.
13. The National Government was the provider of the road service in the instant case. Should an access fee be owing, then the proper entity to which that amount was owed should be the National Government not the 1^st respondent. In that regard, the cess imposed by the 1^st respondent under item 90 of the Schedule to the Mombasa County Act, 2014 was improperly imposed as a charge for services rendered for services provided by the County Government and was not a charge for service as contemplated by article 209(4) of the Constitution.

Petition of appeal allowed; the 1^st respondent was to bear the costs of the appeal.

Orders:

1. Judgment of the Court of Appeal dated July 5, 2018 set aside.
2. Judgment of the High Court dated February 21, 2018 set aside.
3. A declaration was issued declaring that the actions of the 1^st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1^st respondent’s County was unconstitutional, null and void.
4. The 1^st respondent was directed to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1^st respondent as of December 31, 2014.
5. Any other additional sums that the appellant had paid to the 1^st respondent from January 1, 2015, to the date of the judgment as cess on trucks transporting goods across the 1^st respondent’s boundaries were to be pursued at the High Court.

A supplementary record of appeal filed irregularly could not be deemed as properly filed

Kenya Hotel Properties Limited v Attorney General & 5 others [2021] eKLR

Application No. 2 of 2021 (E004 of 2021)

Supreme Court of Kenya

PM Mwilu, DCJ & V P, MK Ibrahim, SC Wanjala, NS Ndungu Njoki, I Lenaola, SCJJ

July 16, 2021

Reported by Chelimo Eunice

Jurisdiction – appellate jurisdiction of the Supreme Court – extension of time for filing appeals to the Supreme Court – what was the appropriate remedy for curing a delay in filing an appeal to the Supreme Court – what was the effect of filing an appeal out of time without leave of the court - extension of time for filing supplementary record of appeal - claim where the delay in filing the supplementary record of appeal was alleged to have been caused by the Court of Appeal by failing to furnish the applicant with certified order and typed proceedings to lodge an appeal to the Supreme Court – Supreme Court Rules, 2020, rules 12(1) & 15(2).

Brief Facts

The applicant sought for extension of time to file a supplementary record of appeal out of time and to have supplementary record of appeal dated to be deemed as duly and properly filed. The applicant argued that it was not able to file the certified order and typed proceedings from the Court of Appeal within the stipulated timelines due to a delay occasioned by the Court of Appeal in issuing the same. It submitted further that the same was filed within five days of receipt of the same and that no prejudice would be occasioned to the respondents. It maintained that the issues raised in the petition were of general public importance hence the need to allow the application.

 Issues

1. Whether the Supreme Court had jurisdiction to grant an extension of time for filing a supplementary record of appeal.
2. Whether a supplementary record of appeal filed irregularly could be deemed as properly filed.
3. What was the appropriate remedy for curing a delay in filing an appeal?
4. What was the effect of filing an appeal out of time without leave of the court?

Held

1. Under rule 15(2) of the Supreme Court Rules, 2020, (the Rules), the Supreme Court had the discretion to extend the time limited by the Rules or by any decision of the court.
2. The applicant provided a plausible and reasonable explanation for the delay in filing the supplementary record. The delay in the circumstances was not inordinate. In addition, the documents sought to be introduced through the supplementary record of appeal were not prejudicial to any of the respondents and were considered necessary by the applicant. Consequently, the court was inclined to extend time for the applicant to file its supplementary record.
3. The appropriate remedy for curing a delay in filing an appeal was to seek an order from the court extending the time within which to file the same. An appeal filed out of time without leave of the court was irregular and the court could not invoke novel principles so as to validate such a petition and deem it properly filed. The applicant had not demonstrated why the court ought to depart from the laid down principles.
4. The applicant’s purported supplementary record, although electronically filed, did not comply with the filing procedures provided for under rule 12(1) of the Rules, 2020 which stated that filing was complete when a party submitted both printed and electronic form. Therefore, it was not properly filed. Further, even if the same was filed in compliance with rule 12(1) of the Rules, the same was invalid for having been filed out of time.

Application partly allowed with costs abiding the cause.

 Orders

1. The applicant was ordered to file and serve its supplementary record within 14 days from the date of the ruling.
2. The purported supplementary record dated February 8, 2021 and filed electronically on February 9, 2021 in Petition No. 16 of 2020, was struck out and expunged from the court’s record.