In The Matter Of Kenya National Commission On Human Rights  EKLR
|Reference 1 of 2012||27 Feb 2014|
Philip Kiptoo Tunoi, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Smokin C Wanjala, Susanna Njoki Ndungu
Supreme Court of Kenya
Kenya National Commission on Human Rights v Attorney-General & Commission on Administrative Justice (Office of the Ombudsman
In the Matter of Kenya National Commission on Human Rights  eKLR
Supreme Court Re-affirms Constitutionality of Rule 41(1) of the Supreme Court Rules, 2012
In the Matter of Kenya National Commission on Human Rights& 2 others
Reference No 1 of 2012
Supreme Court of Kenya at Nairobi
P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Ndungu, SCJJ
Reported by Teddy Musiga
- Whether a petition could be filed at the High Court challenging rules made by the Supreme Court.
- Whether Rule 41(1) of the Supreme Court Rules, 2012 was restrictive and required re-drafting/ amendment to enable other parties other than the national government, county governments and state organs to seek the advisory opinion of the Supreme Court under article 163(6) of the Constitution.
- Whether individuals, NGO’s and professional bodies were excluded from the restrictive words of Rule 41(1) of the Supreme Court Rules, 2012.
Constitutional Law – Jurisdiction - Supreme Court jurisdiction on Advisory opinion – scope of Supreme Court jurisdiction on advisory opinions – whether Rule 41(1) of Supreme Court Rules were restrictive and required amendment – Supreme Court Rules, 2012, Rule 41(1), Constitution of Kenya, 2010, article 163(6)
- The main principles/parameters that guided the Supreme Court when exercising their jurisdiction to offer advisory opinions were:
- It had to be a matter concerning the County government. The question as to whether a matter concerned the county government was determined on a case by case basis.
- The only parties that could make a request for an Advisory opinion were the national government, a state organ or county government. Any other person could only be enjoined in the proceedings with leave of court either as an intervener (interested party) or as amicus curiae.
(In the Matter of the Interim Independent Electoral Commission: Constitutional Application No. 2 of 2011)
- The Reference as filed was not one seeking an advisory opinion within the meaning of article 163(6) of the Constitution of Kenya, 2010. Because, there was no matter concerning county government in the issues framed by the applicant. The “reference for an advisory opinion” was actually a constitutional reference in disguise. The main objective was to elicit a declaration from the Supreme Court regarding the Constitutionality or otherwise of Rule 41(1). It ought to have been filed at the High Court.
- There was no hierarchical impropriety if a party were to challenge a Supreme Court rule in the High court. In such a case, what would be at stake was not the reputation of the Supreme Court but the unconstitutionality of the rule in question. The High court was seized with original jurisdiction to determine whether a piece of legislation or subsidiary legislation was unconstitutional.
- Rule 41(1) of the Supreme Court Rules, 2012 was a replica article 163(6) of the Constitution. Therefore, it could not be said to be either restrictive or discriminative in any manner.
- Persons in general did not have a right to an advisory opinion of the Supreme Court. Rights declared under article 22 (such as access to justice) were enforceable by way of ordinary “court proceedings”. Such proceedings did not necessarily include the Supreme Court’s advisory opinions. By their very nature and design, Advisory opinions were meant to serve as a device in aid of the main tasks of the institutional conduct of governance. And thus, those entitled to resort to such opinion were the national government, any state organ or any county government.
- Contrary to the applicants’ apprehension, other parties other than the national government, state organ or county government could participate in advisory-opinion proceedings, as interveners or amici curiae.Therefore, there was no way Rule 41(1) of the Supreme Court Rules hindered one’s enjoyment of the Bill of Rights as stipulated in Chapter 4 of the Constitution of Kenya, 2010. All the rights therein were enforceable in the High court, with avenues for appeal open all the way to the Supreme Court. The advisory-opinion jurisdiction, on the other hand was not only discretionary, but exercisable in the manner provided for in Article 163(6).
Reference for advisory opinion dismissed.
- Commission on Administrative Justice v Attorney General Petition No 284 of 2012 –(Followed)
- In Re Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011 – (Followed)
- Macharia, Samuel Kamau v Kenya Commercial Bank Limited Civil Application No 2 of 2011 – (Followed)
- Constitution of Kenya, 2010 articles 1,19,20,21,22, 27,48,50,163(6)(8) – (Interpreted)
- Supreme Court Act, 2011 section 14,16(2)(b) – (Interpreted)
- Supreme Court Act, 2011(Act No 7 of 2011 Sub Leg) rule 17,40(1); 41; 41(1); 42; 43 – (Interpreted)
Text and Journal
- Garner. BA., (Ed) (2004) Black’s Law Dictionary Thomson West Minnesota: 8th Edn p 1347