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

February27, 2014

Reported by Teddy Musiga

Issues:

1. Whether a petition could be filed at the High Court challenging rules made by the Supreme Court.
2. 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.
3. 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)

Held:

1. The main principles/parameters that guided the Supreme Court when exercising their jurisdiction to offer advisory opinions were:

1. 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.
2. 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)

2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Cases:

East Africa;

1. Commission on Administrative Justice v Attorney General Petition No 284 of 2012 –(Followed)
2. In Re Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011 – (Followed)
3. Macharia, Samuel Kamau v Kenya Commercial Bank Limited Civil Application No 2 of 2011 – (Followed)

Statutes:

East Africa;

1. Constitution of Kenya, 2010 articles 1,19,20,21,22, 27,48,50,163(6)(8) – (Interpreted)
2. Supreme Court Act, 2011 section 14,16(2)(b) – (Interpreted)
3. Supreme Court Act, 2011(Act No 7 of 2011 Sub Leg) rule 17,40(1); 41; 41(1); 42; 43 – (Interpreted)

Text and Journal

1. Garner. BA., (Ed) (2004) Black’s Law Dictionary  Thomson West Minnesota: 8th Edn p 1347 

Constitutional Law            Advisory opinion of the Supreme Court in the matter of the Principle of Gender Representation in the National Assembly and the Senate

By: Rose Wachuka & Samuel Ngure (Legal Researchers, Supreme Court of Kenya)

Issues:

1. Whether Article 81 (b) applies in respect of the very next general elections to be held on March 4th, 2013, or on the contrary, apply progressively over an extended period of time.
2. Whether an unsuccessful candidate in the first round of presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution.

Constitutional Law -jurisdiction - Advisory opinion jurisdiction of the Supreme Court –whether the gender question in the electoral process concerned National Government exclusively and was unrelated to County Government - whether the Supreme Court had the authority to issue an advisory opinion

Constitutional Law -Progressive realization of a right - what constitutes Progressive realization of a right - the role of the legislature in enacting legislation for time - specified rights, crystallization of rights in the absence of specific legislation as contemplated by the Constitution - whether the gender principle in the Constitution should be realized immediately or progressively - whether an interpretation in favour of a progressive approach contradicts the principle of a holistic implementation of the Constitution - whether an interpretation calling for progressivity offends the principle of separation of powers

Constitutional Law -Gender quotas - the implementation of soft and hard quotas - implementation of the one-third to two-thirds gender principle

Statutes -interpretation of statutes - interpreting the word “shall” when used in different contexts within the Constitution - whether the word shall connotes a mandatory obligation – whether the general guiding principles in the Constitution should be interpreted in the same way as specific quantized rights under the Constitution.

Constitutional Law -Supreme Court of Kenya, the role of the Supreme Court as the guardian of public interest in constitutional governance

Constitutional Law -Presidential election petitions - the jurisdiction of the Supreme Court in resolving disputes not covered under Article 140 of the Constitution - whether there are other categories of disputes arising in Presidential elections other than those envisaged under Article 140 of the Constitution - whether a dispute arising out of the first round of Presidential elections can be resolved by the Supreme Court and within 30 days in accordance with Article 138 (5) in time for the second round of Presidential elections

Article 81b provides.

 “Not more than two-thirds of the members of elective public bodies shall be of the same gender.”

Article 140 provides.

 “(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the Presidential election.”

Held:

1. An advisory opinion will be given only in exceptional circumstances, when the various organs established under the Constitution are for cause, unable to exercise their authority to resolve major governance issue, when the issues involved are weighty and of constitutional significance; and when the public interest in the matter is manifest.

2. Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance Court litigation.

3. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political  growth.

4. The basic requirement for an application for an opinion is that it should, as contemplated by Article 163(6) of the Constitution, be seeking to unravel a legal uncertainty in such a manner as to promote the rule of law and the public interest.

5. The Attorney-General’s request for an Advisory Opinion raises issues of great public importance. The forthcoming general elections are not only the most important since independence, but are complex and novel in many ways. The elections come in the context of the first progressive, public-welfare-oriented, historic Constitution which embodies the people’s hopes and aspirations. Not only are these elections one of the vital processes instituted under the Constitution, but they constitute the first act of establishing a whole set of permanent governance organs.  Any ambivalence or uncertainty in the path of such crucial elections must, as a matter of public interest, be resolved in time: and the task of resolution rests, in the circumstances prevailing, with the Supreme Court, by its Advisory-Opinion jurisdiction.

6. Progressive realization connotes a phased out attainment of an identified goal.

7. The expression progressive realization is neither a stand-alone nor a technical phrase. It simply refers to the gradual or phased-out attainment of a goal, a human rights goal which by its very nature, cannot be achieved on its own, unless first, a certain set of supportive measures are taken by the State. The exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including affirmative action.

8. Whether a right is to be realized “progressively” or “immediately” is not a self-evident question: it depends on factors such as the language used in the normative safeguard, or in the expression of principle; it depends on the mechanisms provided for attainment of gender-equity; the nature of the right in question; the mode of constitution of the public body in question e.g. appointive of elective; if elective, the mode and control process for the election); the identity and character of the players who introduce the candidates for appointment or election and on the manner of presenting candidature for election or nomination.
9. The expression “progressive realization” as apprehended in the context of the human rights jurisprudence, would signify that there is no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle, save where a time-frame is prescribed.

10. It is not the classification of a right as economic, social, cultural, civil or political that should suit a particular gender-equity claim to the progressive mode of realization; it is the inherent nature of the right, that should determine its mode of realization.

11. Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the National Assembly and senate are concerned. This is the burden of the court’s opinion on the matter, that it cannot be enforced immediately.

12. If the legislative measures contemplated to ensure crystallization of the two-thirds gender principle into an enforceable right are not taken before the elections of 4th March 2013, then Article 81(b) will not be applicable to the said elections. The effect is that Article 81(b) of the Constitution is amenable only to progressive realization – even though it is immediately applicable in the case of County Assemblies under Article 177.

13. The Provision in Article 27(6) for the State to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups presupposes open-ended schemes of decision making and programming, which can only be effected over a span of time. By accommodating such prolonged time-spans of action by the legislative and Executive branches, the Judiciary by no means negates the principle of separation of powers.

14. Hard gender quotas such as may be prescribed, are immediately realizable whereas soft gender quotas as represented in Article 81(b) with regard to the National Assembly and Senate are for progressive realization.

15. Bearing in mind the terms of Article 100 on promotion of representation of marginalized groups and of the Fifth Schedule prescribing time-frames for the enactment of required legislation, legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27th August, 2015.

16. The word “shall” will translate to immediate command only where the task in question is a cut-and-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency.

17. The word “shall” may be used in a different context, to imply the broad obligation which is more institutionally spread-out, and which calls for a chain of actions involving a plurality of agencies; when “shall” is used in this sense, it calls not for immediate action, but for the faithful and responsible discharge of a public obligation; in this sense, the word “shall” incorporates the element of management discretion on the part of the responsible agency or agencies.

18. In the context of human rights, the word “shall” is perceived as an emphasis on the obligation to take appropriate action, in the course of the progressive realization of a right conferred by the Constitution.

19. There are potential disputes from Presidential elections other than those expressly mentioned in Article 140 of the Constitution. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages.

20. Article 163(3) suggests that the Supreme Court was intended to adjudicate upon all disputes as would arise from the Presidential election. There is no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might arise during the conduct of the election.

21. The validity of the Presidential election is not for determination only after the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity.

22. Presidential-election disputes, in their whole range, should be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body, within practical time-lines to be read into Article 138(5); and in the event of a second round of election, the words “within thirty days after the previous election” should be read to mean thirty days from the date on which disputes in respect of the first round will have been resolved. Within such guidelines, the Supreme Court, acting by virtue of its rule making powers under  Article 163(8) of the Constitution, would establish more specific and efficient time-lines to guide the hearing of first round election disputes.

23. (Obiter) Article 140(1) provides, a person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the Presidential election.
24. “There is a lacuna in the foregoing provision. Election of the President is a process, beginning from primary elections to the final election which will lead to the identification of the President-elect. Article 140(1) provides for dispute settlement only at the final stage, and not at earlier stages. With no provision on the mode of resolution of disputes at the earlier stages, there would be no express right to seek the Court’s intervention, for instance, in respect of the runner-up position. Such a dispute may be, on the facts, one of merit and, therefore, one to be resolved judicially. The urgency of the issue would remain the same as that which attends dispute-settlement in relation to the position of the President-elect; and accordingly, this would still be a contest on an issue of the Presidential election.”

Dissenting as per W. Mutunga, C. J.

25. Matters of who are people’s representatives in Parliament and the Senate are central to county governments. The Constitution and validity of these two houses of Parliament therefore will affect their ability to deliver on these key obligations to County Governments. The gender question is one that is quintessential to determining their validity. The issue of two-third gender principle in the elections to Parliament and the Senate is a matter “concerning county government.” So is the election of the President. Thus the Supreme Court has jurisdiction to hear the Reference by the Attorney General and deliver an Advisory Opinion.

26. In interpreting the Constitution and developing jurisprudence, the Court will always take a purposive interpretation of the Constitution as guided by the Constitution itself.

27. The obligation of the Supreme Court is to cultivate progressive indigenous jurisprudence- grown out of Kenya’s own needs, without unthinking deference to that of our other jurisdictions and courts, however distinguished.

28. There is no violation of the principle of separation of powers in the Supreme Court's rendering of this Advisory Opinion under Article 163 (6). The Court's role is clearly defined in the Constitution. There is no evidence that the Court in exercising its constitutional mandate in this Reference has in any way entered the constitutionally preserved mandates of the Executive and Parliament.

29. Furthermore, the Supreme Court has power to declare Parliament unconstitutionally constituted. It is the Supreme Court's duty to defend the Constitution, and ensure that all bodies within it are constituted constitutionally and employ all powers donated by the People to it constitutionally.

30. The Constitution's view to equality, as one of the values provided under the Constitution is not the traditional view of providing equality before the law. Equality is substantive, and involves undertaking certain measures, including affirmative action, to reverse negative positions that have been taken by society. Where such negative exclusions pertain to political and civil rights, the measures undertaken are immediate and not progressive.

31. Article 27 of the Constitution, is clear that disenfranchisement of the Kenyan women in the political arena is a form of discrimination. Kenyans, particularly women, when they voted for a new constitution, had in mind the continuous and consistent struggle for their equity and equality in all spheres of life.

32. Article 177 (giving a formula for gender equality in county government) is a clear proof of the submission for immediate realization of the two-thirds gender principle. There is no reason that a Constitution that decrees non-discrimination would discriminate against women running for Parliament and the Senate. There is no constitutional basis for discrimination among women themselves as the consequence of the progressive realization of the two-thirds gender principle would entail. A Constitution does not subvert itself. Deciding that women vying for county representation have rights under the Constitution while their counterparts vying for Parliament and the Senate are discriminated against would result in that unconstitutional position.

33. The State has been implementing the principle as a matter of clear policy. Stakeholder convening and discussions on the two-thirds gender principle has always been about implementation and not interpretation. Parliament cannot then, by its silence, deprive women the right to equal representation. There is no reason to doubt the patriotism of the current Parliament that is fully aware of the constitutional consequences of refusing to legislate. In the event that Parliament fails to legislate, any of the elected houses that violate this principle will be unconstitutional and the election of that house shall be null and void.

34. The immediate implementation of the two-thirds gender principle is reinforced by values of patriotism, equity, social justice, human rights, inclusiveness, equality and protection of the marginalized. Such values would be subverted by an interpretation of the provisions that accepts progressive realization of this principle.

Reported By Njeri Githang’a Kamau

Issues
Scope of the Supreme Court's appellate Jurisdiction in an appeal to resolve the constitutional question as to the appearance of the Attorney-General- in “criminal Proceedings”

Role of the Attorney-General in the main cause before the Court of Appeal where the core question had to do with: the relationship between the Kenyan judicial system and the International Criminal Court; the applicability in Kenya of international customary law; the law relating to the immunity of serving Heads of State; the functioning of the Rome Statute within national jurisdictions.

Concept of “abuse of the process of the Court”

Jurisdiction-appellate jurisdiction of the Supreme Court- circumstances where the appellate jurisdiction can be invoked-appeal on an interlocutory order from the court of appeal-duty of the Supreme Court to settle the law on uncertain jural questions-whether the appearance of the Attorney-General in “criminal Proceedings” was a constitutional question justifying an appeal to the Supreme Court as of right

Attorney General- role of the Attorney-General under the Constitution of Kenya 2010-where the AG was excluded from Criminal Proceedings-meaning of criminal proceedings- whether the relationship between the Kenyan judicial system and the International Criminal Court; the applicability in Kenya of international customary law; the law relating to the immunity of serving Heads of State; the functioning of the Rome Statute within national jurisdictions were issues amounting to criminal proceedings

Civil Practice and procedure- abuse of the process of the Court-meaning of

Words and Phrases
“Criminal proceeding” A proceeding instituted to determine a person’s guilt or innocence or to set a convicted person’s punishment; a criminal hearing or trial.”

Held;

1. The Supreme Court’s jurisdiction and scope had been defined in various case laws and the effect was;

a) Appeals to the Supreme Court, in general, require grant of leave by the Court of Appeal – except where the Court of Appeal’s refusal of leave has been reversed by the Supreme Court;

b) In matters of interpretation or application of the Constitution, an appeal will be entertained by the Supreme Court as of right;

c) The issue for interpretation or application of the Constitution coming on appeal to the Supreme Court, is not to be a collateral question, only minimally related to the substantive cause pending in the Court of Appeal, and if it is such, then leave of the Court of Appeal is required – unless the Supreme Court has reversed the refusal to grant leave by the Court of Appeal;

d) Subject to the foregoing principles, an appeal to the Supreme Court is not limited by the mere fact of the issue being preliminary or interlocutory.

2. Section 3 of the Supreme Court Act (Act No. 7 of 2011) assigned to the Court the mandate to “assert the supremacy of the Constitution” – a task which required that the court prescribe the ultimate meanings and directions of all law that gives effect to the terms of the Constitution. By s.3(b) of the Supreme Court Act, it was the Court’s responsibility to “provide authoritative and impartial interpretation of the Constitution”; and by s.3(c) it was the Supreme Court’s mandate to settle the law on uncertain jural questions and to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”

3. The entry into the sphere of emerging jurisprudence is located at the High Court, which bears original jurisdiction to interpret the Constitution and which has an appellate jurisdiction from lower Courts that address the basic scenarios of fact that spawn issues of jural character. Such early stage of the pronouncement on critical ideas of law is also to be found in the special Courts having the same jurisdiction as the High Court  –  such as those on employment and labour relations; and on environment and land [Article 162(2)] Constitution of Kenya 2010.

4. The Supreme Court all by itself, and without the benefit of the works of such other Courts, would be insufficiently resourced and empowered to develop rich jurisprudence as provided for. The law-making chain, goes back to the Subordinate Courts, which constitute the “grassroots” entry-point into the varied intellectual dimensions of law that guide the process of construction of legal ideas.

5. The Supreme Court, to best situate itself so as to address the complexity of the construction of law, must safeguard the proper jurisdiction of the Courts below it.

6. In the common law tradition and in the general practice of countries sharing historical linkages with Great Britain, such as the United States, the Attorney-General is recognized as “the chief law officer of a state”

7. The meaning of “criminal proceeding”, the category of mandate which Article 156(4)(b) excludes from the Attorney-General’s remit, is much more restricted than the counsel for the appellant urged it to be.

8. A criminal proceeding was defined as a proceeding instituted to determine a person’s guilt or innocence or to set a convicted person’s punishment; a criminal hearing or trial.The foregoing signification of “criminal proceeding” was not reflected in the mere intituling of the original High Court case as “Miscellaneous Criminal Application No. 685 of 2010”; when that matter came up before the Court of Appeal, it was re-intituled as “Civil Application No. Nai. 275 of 2011 (UR.179/2011)”

9. The questions in the appeal pending in the Court of Appeal were matters of primary relevance to the mandate of the State Law Office, which is led by the Attorney-General; and it followed that no litigation in such matters could take place in which the Attorney-General is not intimately involved.

10. There was no legitimate issue of interpretation or application of the Constitution, regarding the role of the Attorney-General in the proceedings before the Court of Appeal, which merited an appeal to the Supreme Court. The issue raised before the Court of Appeal and was sought to be brought to the Supreme Court, squarely fell within the category of a collateral case – a matter not appealable save with the leave and certificate of the Court of Appeal. There being no such certificate, and there not having been a reference, leading to a differing position taken in the Supreme Court, it was a typical case in which no appellate jurisdiction lay in the Supreme Court.

11. The concept of “abuse of the process of the Court” bears no fixed meaning, but has to do with the motives behind the guilty party’s actions; and with a perceived attempt to manoeuvre the Court’s jurisdiction in a manner incompatible with the goals of justice. The case appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption.

12. The appellant’s counsel had canvassed his case in a manner that steers clear of the emerging principle that no collateral case should seek to introduce a “constitutional point”, which does not form a vital aspect of the cause pending in the Court of Appeal. That did not amount to an abuse of the process of the Court as the Supreme Court was in the process of clarifying its appellate jurisdiction, through interpretation of statute law in the context of varying case-scenarios. The appellant by lodging the appeal had laid before the Court an opportunity to further consolidate the jurisprudential gains in the earlier decisions.

Appeal Dismissed

Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others

Supreme Court of Kenya

Application 2 of 2011

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

October 23, 2012

Issues

1. Whether Section 14 of the Supreme Court Act in so far as it provides the Supreme Court with special jurisdiction was unconstitutional.
2. whether the failure to enjoin the Liquidator, who has to seek leave of the Court to sue on behalf of the Company as required by s. 241 of the Companies Act, in a suit instituted by the major shareholder of a company under receivership fatal.
3. Whether the first applicant needed to obtain leave of the Court before joining the second applicant in the proceedings within the wording of Section 241(1) of the Companies Act while it was under receivership and if so, whether failure to apply and obtain such leave was so fatal as to render the application untenable.
4. Whether the facts as deponed in the application by the first applicant and all surrounding circumstances met the threshold set out in Section 14 of the Supreme Court Act so as to bring the application within the ambit of the Court’s special jurisdiction.
5. Whether the special jurisdiction under Section 14 was appellate in nature and therefore one of the categories of appeal contemplated by Article 163 (4) of the Constitution.
6. Whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010.
7. Whether the Supreme Court had jurisdiction to hear applications for leave to appeal.

Jurisdiction –special jurisdiction of the Supreme Court- special jurisdiction under Section 14 of the Supreme Court Act- where the Supreme Court Act was enacted pursuant to Article 163 (9) of the Constitution-where the Act contemplated by Article 163(9) was operational in nature-where the Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution-whether the section was constitutional insofar as it conferred “special jurisdiction” upon the Supreme Court- Constitution of Kenya, 2010 Article 163 (9)-Supreme Court Act section 14

Civil Practice and Procedure–application for leave-application for leave to appeal against the judgment of the Court of Appeal-application brought under Article 163 of the Constitution, as read together with Sections 14 to 16 of the Supreme Court Act, 2011 and Rule 21 of the Supreme Court Rules-where section 14 of the Supreme Court Act provided for review of judgment of a judge who had been removed, resigned or retired from office- whether the Supreme court had jurisdiction to entertain the application under the circumstances- Constitution of Kenya, 2010 Article 163- Supreme Court Act, 2011 Sections 14 to 16

Interpretation of statutes –retrospective or retroactive legislation- where the judgment against which an appeal was sought was delivered before the Constitution of Kenya 2010 was promulgated and the Supreme Court established-whether Article 163 (4) (b) of the Constitution was intended to confer appellate jurisdiction upon the Supreme Court the exercise of which would have retrospective effect upon the vested rights of individuals

Jurisdiction –sAppellate Jurisdiction- Supreme Court’s Appellate Jurisdiction- circumstances under which to be invoked- Constitution of Kenya 2010, Article 163 (4) (b)

Words and Phrases –review and appeal-where an appeal entailed some form of review of a lower Court’s decision in terms of assessing that Court’s interpretation and application of the law-whether “ an appeal” was the same as a “review” in the technical sense-whether the two could be used interchangeably

Company Law –joinder of liquidator – lack of joinder of liquidator in a suit where the company is being wound up – whether directors or shareholders can sue on behalf of a company being wound up – whether the lack of joinder of liquidator to a suit is fatal to the suit

Section 14 of the Supreme Court Act Unconstitutional

Section 14 of the Supreme Court Act provides;
Special Jurisdiction

14. (1) To ensure that the ends of justice are met, the Supreme Court shall, within twelve months of the commencement of this Act, either on its own motion or on the application of any person, review the judgments and decisions of any judge—

(a) removed from office on account of a recommendation by a tribunal appointed by the President, whether before or after the commencement of this Act; or

(b) removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011 (No. 2 of 2011); or

(c) who resigns or opts to retire, whether before or after the commencement of this Act, in consequence of a complaint of misconduct or misbehaviour.

(2) To qualify for review under subsection (1), the judgment or decision shall have been the basis of the removal, resignation or retirement of, or complaint against, the judge.

Held:

1. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. The issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
2. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
3. The “special jurisdiction” conferred upon the Supreme Court by section 14 of the Supreme Court Act is not appellate in nature. The Supreme Court Act was enacted pursuant to Article 163 (9) of the Constitution. The Preamble to the Act states that it is “An Act of Parliament to make further provision with respect to the operation of the Supreme Court pursuant to Article 163(9) of the Constitution.”
4. The Act contemplated by Article 163(9) was operational in nature. Such an Act was intended to augment the Rules made by the Supreme Court for the purpose of regulating the exercise of its jurisdiction. It is an Act that must confine itself to the administrative aspects of the Court. It is a law that addresses the manner in which the Supreme Court exercises its jurisdiction as conferred by the Constitution or any other legislation within the meaning of Article 163 (4) (b) (ii). Such an Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution. The national legislation referred to in Article 163 (4) (b) (ii) is not the same as the one referred to in Article 163 (9). The former is capable of conferring jurisdiction upon the Supreme Court. The latter is not.
5. Section 14 of the Supreme Court Act was unconstitutional insofar as it purports to confer “special jurisdiction” upon the Supreme Court, contrary to the express terms of the Constitution. Although Parliament had good intentions in providing for the “extra” jurisdiction for the Supreme Court, as embodied in Section 14 of the Supreme Court Act, ought to have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule on “Transitional Provisions”.
6. Section 241 of the Companies Act is an enabling provision, enabling the Liquidator to represent the company, but does not divest the power of the directors to sue on behalf of the company. The application of section 241 in the case in question was a procedural technicality which could not be upheld as against Article 159 of the Constitution of Kenya, 2010.
7. A plain reading of section 241(1) of the Companies Act clearly showed that its main purpose is to establish the frontiers of the liquidator’s powers in a winding-up of a company by the Court. One of those powers was to bring or defend any action or other legal proceeding in the name and on behalf of the company. However, before the liquidator commences proceedings or participates in proceedings on behalf of the company, he must obtain the sanction or leave of the Court. The requirement of sanction of the Court was directed at the liquidator.
8. The respondents were no longer debenture-holders. Their only interest in the matter was to maintain the status quo, following the Court of Appeal’s decision pursuant to which they were relieved of paying a huge sum of money to the applicants. Hence they had no interest whatsoever in the affairs of the second applicant. Neither were they affected in any way by the liquidation of the second applicant. Their opposition to the application for leave on the basis of Section 241(1) of the Companies Act was an attempt to frustrate the first applicant’s pursuit of what he believed either rightly or wrongly belonged to him. Even if the respondents were debenture-holders and the second applicant had been placed under receivership at their instance, the facts in the case were such that the court would have been inclined to apply the principle in Newhart Development Ltd.
9. Under section 14 of the Supreme Court Act, only the judgment of a judge who had been removed, resigned or retired from office could be reviewed under section 14. While the judgment of the Court of Appeal was the basis of the complaint against the three judges, (Tunoi JA, as he then was, Githinji and Onyango, JJA) none of them was removed, retired or opted to resign from office following their vetting by the Vetting Board. No other meaning could be imported into section 14 hence the applicant could not avail himself of the promise for justice embedded in that section.
10. The words “review” and “appeal” could not be used interchangeably at the litigant’s election when seeking a higher Court’s intervention in a matter already decided by a lower Court. Neither section 23 of the “Transitional Provisions” to the Constitution of Kenya, 2010 nor Article 163 (3) and (4) of the Constitution gave the impression that an appeal bears the same meaning as a review.
11. While an appeal entails some form of review of a lower Court’s decision in terms of assessing that Court’s interpretation and application of the law, it is not the same as a “review” in the technical sense. In that regard, Section 14 of the Supreme Court Act conferred powers of review upon the Supreme Court through a special jurisdictional regime. “The Supreme Court can even act on its own motion and review judgments that fall within the ambit of that section. It has powers to conduct preliminary enquiries and call for evidence.” This kind of jurisdiction was inconsistent with an appellate jurisdiction whose features were readily recognizable. The application for leave to appeal could not be grounded on Section 14 of the Supreme Court Act.
12. Only two types of appeal lay to the supreme court
    1. The first type of appeal lies as of right if it is a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from the Supreme Court or Court of Appeal.
    2. The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave.
    3. That meant that where a party wished to invoke the appellate jurisdiction of the Court, then such intending appellant had to convince the Court that the case was one involving a matter of general public importance.
    The appellants could not hence base their application for leave to appeal against the decision of the Court of Appeal on section 14 of the Supreme Court Act.

13. IIt would be good practice to originate the application for leave to appeal against a decision of the Court of Appeal under Article 163 (4) (b) of the Constitution of Kenya, 2010 in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. If the Applicant should be dissatisfied with the Court of Appeal’s decision in that regard, it is at liberty to seek a review of that decision by this Court as provided for by Article 163 (5) of the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to the Supreme Court in search of a certificate for leave would lead to abuse of the process of Court..
14. Article 163 (4) (b) of the Constitution of Kenya, 2010 clearly intended to give the Court of Appeal the first option to consider an application for certification. It also intended to give the would-be respondent the earliest opportunity to challenge an intended appeal to the Supreme Court. Such a party would be expected to argue that the case does not qualify to be accelerated to this Court, because it is “not one involving a matter of general public importance.” Another feature of Article 163 (5) is that it affords the “intending appellant” a second chance to seek certification to appeal to the Supreme Court.
15. Those seeking certification to appeal from the Court of Appeal on the basis of Article 163 (4) (b) have to originate their applications in that Court. The Court of Appeal when faced with such an application must entertain it notwithstanding the fact that there is no rule of procedure providing for how the said application is to be made. The right to seek certification stems from the Constitution and it is on that basis that it is exercised. For the course of experience shows cases in which appeal to the Supreme Court has been sought on grounds other than of merit, the Court of Appeal has the case-management obligation to grant leave only for weighty cause.
16. The general rule for non-criminal legislation was that all statutes other than those which were merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.
17. A retroactive law is not unconstitutional unless it:
    1. is in the nature of a bill of attainder;
    2. impairs the obligation under contracts;
    3. divests vested rights; or
    4. is constitutionally forbidden.
18. A Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a Court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the Court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution.
19. The applicants could not reopen a case that was finalized by the Court of Appeal (by then the highest Court in the land) before the commencement of the Constitution of Kenya, 2010. Decisions of the Court of Appeal were final. The parties to the appeal derived rights, and incurred obligations from the judgments of that Court. If the Supreme Court were to allow appeals from cases that had been finalized by the Court of Appeal before the Commencement of the Constitution of Kenya, 2010, it would trigger a turbulence of pernicious proportions in the private legal relations of the citizens.
20. A final judgment by the highest court in the land at the time vested certain property rights in, and imposed certain obligations upon the parties to the dispute. Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.

Application dismissed.

Adjournment of Supreme Court's hearing 


Reported by Njeri Githang’a Kamau

Issue:

1.     Application for adjournment of the hearing of an appeal on the ground of absenteeism of the appellant's counsel- The appellant's counsel having been on a retreat in Europe that had been organized by the Law Society of Kenya

Civil Practice and Procedure–adjournment-application for adjournment-appellant's advocate having been absent to prosecute the appeal without briefing another counsel to argue the matter- where the matter was of public interest-whether the application could be allowed

Held:

1.     The reasons for the counsel's absence to prosecute the appeal, and her failure to fully brief any other Counsel to argue the matter smacked of arrogance, disrespect and negligence on her part.

2.     The Court would not allow Counsel to treat it with disrespect or arrogance. The matter was one of public interest and the Court in giving Counsel the hearing date of the appeal was fully aware of that fact. The court was the Supreme Court of Kenya, the apex Court in the nation. The courts schedule would not be based on the convenience of Counsel and all counsel appearing before the Supreme Court needed to take heed.

3.     The advocate would personally pay the costs of the adjournment.

Orders:

      i.        Application for adjournment allowed.

     ii.        Appeal to be heard at 10.00 a.m. on October 23, 2012.

    iii.        The Court would not entertain further applications for adjournment.

    iv.        If the appellant wished to respond to the Respondent's submissions then this had to be done on or before Monday, October 22, 2012.

     v.        Mrs. Guserwa (advocate for the appellant) to personally pay the costs of the adjournment.

Appellate Jurisdiction of the Supreme Court 

 

Jurisdiction –Appellate Jurisdiction of the Supreme Court-appeal on an interlocutory order from the court of appeal- Whether the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal-whether the Court was required to assume “supervisory appellate jurisdiction” and inquire into the matter-Constitution of Kenya, 2010, Article 163 (4) (b)

Issues

1. Whether the Appellants required to obtain leave of the Court before filing their Appeal to the Court? If so, from which Court was the leave to be obtained?
2. whether the appeal constituted an abuse of the process of court on grounds that it canvassed matters that were pending for determination before the Court of Appeal hence Sub- Judice
3. Whether the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal and whether the Court required to assume “supervisory appellate jurisdiction” and inquire into the matter.

Held,

1. Only two types of appeals lie to the Supreme Court from the Court of Appeal.
   1. The first type of appeal lies as of right if it is from a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from this Court or Court of Appeal.
   2. The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. This means that where a party wishes to invoke the appellate jurisdiction of the Court on grounds other than that the case is one which involves the interpretation or application of the Constitution, then such intending appellant must convince the Court that the case is one involving a matter of general public importance. If the Court of Appeal is convinced that such is the case and the certification is affirmed by the Supreme Court, then the intending appellant may proceed and file the substantive appeal. The question as to what constitutes “a matter of general public importance” is one that is bound to be addressed by the Supreme Court in the foreseeable future as litigants seek certification or leave to lodge appeals on that basis.
2. The appeal was not based on Article 163 (4) (b) of the Constitution of Kenya, 2010 hence the appellants did not need to obtain prior leave or certification by either the court of Appeal or the Supreme Court before filing their Appeal.
3. Even if it were to be assumed that the Court had appellate jurisdiction in appeals against interlocutory orders, the interlocutory order the nature of which was being appealed against in the case in question was not one that would inspire the Court to exercise jurisdiction in favour of the appellants. At any rate, such a scenario could revive the question as to whether prior leave of the Court would be necessary.
4. The court had no jurisdiction in respect of the appeal. The appellants had to take advantage of the stay granted by the Court of Appeal and seek a quick disposal of the issue of legal representation by the Court of Appeal so that proceedings in the main High Court Case Number 279 of 2003 could commence expeditiously. That was the only logical course of action open to the appellants.

Petition dismissed.

Cases referred to

Erad Suppliers &General Contractors Limited V. National Cereals & Produce Board SC Petition No. 5 of 2012. (Supreme Court)

Jurisdiction of the Courts’ to Interpret The Constitution

Constitutional Law – interpretation and application of the Constitution-constitution of a supreme court bench - definition of the word “proceedings” under Art.163 (2) of the Constitution-where steps of the Court run in a series of events the last being, the hearing and determination of the substantive cause, which had to be before the full Bench of five Judges- responsibility of the Court to fix the operative meanings of the relevant provisions – circumstance under which a bench of less than five can sit-where a limited bench of the court could deal with the preparatory steps including settling of deserving legal procedural issues to facilitate case management -whether a two judge bench had jurisdiction to determine the issue of jurisdiction of the Supreme court to determine a matter -Constitution of Kenya, 2010 Art.159 (2) (d)

Constitutional Law – Interpretation of the constitution-jurisdiction to interpret the Constitution- whether the Supreme Court can entertain a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance 

Issues:

1. Whether the Supreme Court can entertain a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance.
2. Whether a two-judge bench of the Supreme Court has the competence to hear such a matter especially on the issue jurisdiction.

Held:

1. The Court, in giving meaning and effect to the drafts-person’s language, cannot be purely technical or literal. The Court must take into account the reality and the context as a whole – so as to give meaning to the provisions: in particular the definition of the word “proceedings” under Art.163 (2) of the Constitution. The steps of the Court run in a series of events – and it is the last event, namely, the hearing and determination of the substantive cause, that must come before the full Bench of five Judges; and that is what amounts to hearing-proceedings before the Supreme Court.
2. In the run-up to the hearing before the five-Judge Bench, there are preparatory steps – beginning with proceedings on record before the Supreme Court Registrar, to any settling of deserving legal-procedural issues before a more limited Bench of the Court, and ending up with the substantive hearing before a Bench of five Judges. Without this mode of case-management, the task of the Court under the Constitution would be incapacitated. This would be contrary to Art.159 (2) (d) of the Constitution. It was therefore, the courts’ duty to give full meaning to the terms of the Constitution as regards the determination of contested questions – i.e., the questions of merit.
3. The bench as constituted was valid and lawful framework for clearing initial and preliminary questions preceding the hearing and determination of the substantive cause, before arriving at the stage of a Bench of five Judges. While the category of preliminary issues preparatory to a hearing before five Judges is by no means closed, the bench as constituted was a lawful forum for determining and directing on issues of jurisdiction – as a basis for intended hearings before the full Bench.
4. A question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance is to be resolved at that forum in the first place, before an appeal can be entertained.
5. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, it will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court. That principle would in particular apply in relation to interlocutory matters that do not fall within the terms of Article 163(4) of the Constitution. The matter before the court had a collateral nature falling outside the Court’s jurisdiction, failing the express consent of the Court of Appeal.
6. The Supreme Court, as the ultimate judicial agency, ought to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals.

Petition dismissed at the preliminary stage

Issues:

i) Whether the Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave. 

ii) Whether an ordinary subject of leave-to-appeal could trans-mutate to a meritorious theme involving the interpretation or application of the Constitution.

Held:

1. The appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19 of the Supreme Court Act and the petitioner’s case which had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court.

2. The petitioner had not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court.

3. There was nothing improper with the rulings delivered by both the High Court and the Court of Appeal, holding the petitioner’s interlocutory proceedings to be merely frivolous.

4. In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.

Petition dismissed at the preliminary stage.

Reported by BA Ikamari
 

Issue:-
i. Whether the review of the judgments and decisions of judges removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011, could be carried on while a review of the decisions of the Vetting Board concerning the removal of the same judges was still pending.
Constitutional law - appointment, tenure and removal of judges of the Court of Appeal- the jurisdiction of the Supreme Court concerning the review of the judgments and decisions of judges removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011-the effect of a pending application to review the decision to remove a judge from office, before the Magistrates and Judges Vetting Board, on the Supreme Court’s jurisdiction to review the decisions and judgments of a judge who has been removed from office

Held:
1. Section 14 of the Supreme Court Act, 2011 provides for the Supreme Court’s jurisdiction to review the judgments and decisions of any judge removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011. However, the decisions of the Vetting Board are subject to review pursuant to section 2(1) of the Vetting of Judges and Magistrates Act, 2011.
2. In the circumstances, it was imperative that there was no pre-emption or prejudice of the fair and just consideration of the Review application by the Vetting Board. The Vetting Board is an Independent Tribunal and it should be allowed to conduct its functions/duties without being interfered with unless the matter is expressly or directly brought to the courts subject of course to the question of jurisdiction.
3. In view of the provisions of the Constitution of Kenya, 2010, and as a matter of natural justice, there should be no interference with the rights of the two judges in respect of the pending review proceedings before the Judges and Magistrates Vetting Board.

Matter Stood Over Generally
Cases
None referred to
Statutes
East Africa;
1. Constitution of Kenya, 2010 article 141(b) – (Interpreted)
2. Supreme Court Act, 2011 (Act No 7 of 2011) section 14(3)(a)(b) – (Interpreted)
3. Vetting of Judges and Magistrates Act, 2011 (Act No 2 of 2011) section 21(1); 22(3) – (Interpreted)
Advocates
None mentioned