Factors to consider when exercising judicial discretion to extend time for filing an application for review to the Supreme Court

Sammy Mwangangi & 10 others v Commissioner of Lands & 3 others [2020] eKLR

Civil Application No. 21 of 2020

Supreme Court of Kenya

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

October 9, 2020

Reported by Kakai Toili

Civil Practice and Procedure – extension of time – application for extension of time within which to file an application for review to the Supreme Court – factors to consider when exercising judicial discretion to extend the time for filing the application - whether issues raised in an intended application for review could be determined in an application for enlargement of time to file the intended application - Supreme Court Act, 2012, section 26 and 53.

Brief facts

The applicants filed the instant application seeking enlargement of time to file an application for review of the ruling of the Court of Appeal. The applicants contended that the delay in filing the application for review to the instant court was inadvertent, and was occasioned by delay in the assessment of filing fees and uploading of documents on the court’s e-filing portal. The 3^rd and 4^th respondents in opposing the application submitted that no purpose would be served by the extension as the matter they sought to pursue was not a matter of general public importance, but was one seeking to enforce private rights.

Issues

1. What were the factors to be considered when exercising judicial discretion to enlarge the time for filing an application for review to the Supreme Court?
2. Whether issues raised in an intended application for review could be determined in an application for enlargement of time to file the intended application.

Held

1. Grant or refusal of extension of time was a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The applicants had explained, cogently and reasonably, that the delay in filing their application for review of the Court of Appeal’s decision denying them timeous access to the court was not of their own making. The delay of six days was in any event not inordinate and there was no prejudice caused to the respondents, especially the 3^rd and 4^th respondents.
2. The question whether the applicants had established that the issues in contest were of general public importance was a matter that could not be determined in the instant application, it being the gravamen of the intended review application under article 163(5) of the Constitution.
3. Prayer 3 of the motion under consideration seeking orders that the originating motion dated July 22, 2020 under Reference No.SC APP;/E007/2020 be deemed as dully filed was not one for granting in the instant instance. It was best that a proper motion for review under the Constitution, the Supreme Court Act and Rules be filed pursuant to the orders granted.

Application allowed; each party to bear its costs of the application.

Orders:

1. The time within which to file the application for review of the ruling of the Court of Appeal dated July 10, 2020 was enlarged and the same was to be filed within 7 days of the ruling.
2. Directions were to be taken before the Deputy Registrar thereafter.

Factors to consider in awarding costs where a suit involved matters of public interest

Director of Public Prosecution v Michael Sistu Mwaura Kamau & 4 others [2020] eKLR

Petition of Appeal No. 18 of 2019

Supreme Court of Kenya

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

September 23, 2020

Reported by Kakai Toili

Civil Practice and Procedure – costs – awarding of costs – where parties had withdrawn a suit but failed to agree on costs – where the suit involved matters of public interest - what were the factors to consider in awarding costs.

Brief facts

In September 2019 the court recorded a consent order marking the instant petition as withdrawn. The parties were however unable to agree on costs and thus the court directed parties to file submissions limited to the question whether costs should be paid to the respondents consequent upon the withdrawal of the petition. The appellant, the Director of Public Prosecutions, argued that no order as regards costs should be made as the issue of costs was never raised at both the High Court and the Court of Appeal. The respondents, save the 3^rd, 4^th and 5^th respondents disagreed and submitted that costs had to follow the event even as it was a matter of discretion for the court.

Issue

What were the factors to consider in awarding costs where a suit involved matters of public interest?

Held

1. 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. However, 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. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.
2. Although there was good sense in the basic rule of costs, that costs followed the event, it was not an invariable rule. The ultimate factor on award or non-award of costs was a judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
3. The fact that the appellant was a public entity was not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance. Each case had to be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the court.
4. Whereas the appellant had withdrawn the petition when it was ready for hearing and while the respondents had spent time and resources preparing for the hearing, the issues raised in the appeal were of great public interest, the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences could be initiated when the Commission was not properly constituted and whether the President could direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. Those matters transcended the specific interests of the parties and had settled in the public sphere thus attracting the public interest. An order of costs against any party would in the circumstances not be fair.

Petition marked as withdrawn; each party to bear its costs of the appeal.

Failure to obtain judges’ notes timeously on account of the slow administrative processes was good reason to warrant leave to extend time to file an appeal before the Supreme Court.

GEO Chem Middle East v Kenya Bureau of Standards

Petition (Application) 47 of 2019

Supreme Court of Kenya

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

September 23, 2020

Reported by Ribia John

Civil Practice and Procedure – appeals – appeals to the Supreme Court - extension of time – extension of time to file an appeal to the Supreme Court – applicable principles - failure to obtain judges’ notes timeously on account of the slow administrative processes - whether failure to obtain judges’ notes timeously on account of the slow administrative processes was sufficient reason to warrant the Supreme Court to allow an application  that sought for leave to extend time to file an appeal - Supreme Court Rules, rule 15(b)

Brief Facts

The applicant filed an application for leave to extend time to file an appeal. The applicant contended that the delay was inadvertent the delay in filing the supplementary record of appeal was occasioned by inability to obtain the judges’ notes as they were not available at the time of filing the appeal and that three letters; from the respondent to the Commissioner General, Kenya Revenue Authority; another from the appellant’s lawyers, to the respondent and another from the respondent to the appellant’s lawyers were all inadvertently omitted from the record of appeal.

The respondent opposed the application on grounds that the application was incompetent as the documents sought to be admitted were not annexed and therefore their authenticity and relevance could not be authenticated. In addition, that the entire record of appeal was jumbled up and the letters in question were deliberately excluded to prejudice the respondent’s case and in any event, the Judges’ notes had not been served on the respondent and on the whole, allowing the application would greatly inconvenience the respondent.

Issue

Whether failure to obtain judges’ notes timeously on account of the slow administrative processes was sufficient reason to warrant the Supreme Court to allow an application that sought for leave to extend time to file an appeal.

Held

1. By rule 15(b) of the Supreme Court Rules, 2020, the court could, at its discretion extend time for any action under the rules. The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
2.  The explanation given by the applicant was reasonable and there was no prejudice to be caused to the respondent as the three letters sought to be admitted had certainly been in its custody in proceedings before the superior courts below and failure to obtain judges’ notes timeously could not be blamed on the applicant but on slow administrative Court processes.

Application allowed; the supplementary record of appeal was to be served within 3 days of the instant ruling; each party was to bear their own costs.

Attributes that were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution

Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others [2020] eKLR

Petition No. 45 of 2018

Supreme Court of Kenya

P M Mwilu (DCJ & V-P), M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ

September 23, 2020

Reported by Chelimo Eunice

Jurisdiction – appellate jurisdiction – appellate jurisdiction of the Supreme Court – guiding principle when interpreting law touching on the appellate jurisdiction of the Supreme Court – which appeals lay from the Court of Appeal to the Supreme Court - appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution – where article 163(4)(a) of the Constitution provided that appeals lay from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution – components of a matter that involved application and interpretation of the Constitution - Supreme Court’s discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution – what were the attributes that were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution – whether a decision that a claim was not ascertainable and could not be determined interpreted or applied the Constitution – Constitution of Kenya, 2010, article 163(4)(a).

Brief facts

The petitioners claimed to be poor landless people who had been relocated to Korogocho from various parts of Nairobi. They claimed ownership of the land in Korogocho contending that they were allocated the plots in the 1970s and 1990s and had put up various structures where they resided and had even developed the plots. It was alleged that in 1986, the then President visited the area and ordered roads to be constructed and electricity installed, which directive was implemented. The petitioners averred that they had severally petitioned the Government for titles and on November 22, 2000, in a public rally (baraza), the President directed the respondents together with the City Council of Nairobi to issue them with titles.

That notwithstanding the President’s directive, the Provincial Administration started interfering with the petitioners’ possession of the plots. On May 11, 2001 they were informed of Government plan to pull down their houses and come up with new permanent houses. They argued that because of the promises made to them, which they believed to be true, they were entitled to be issued with the title deeds for the plots. It was on that basis that they moved to the High Court seeking various orders, including, a declaration that they were entitled to be registered as proprietors/owners of the plots on which their semi-permanent houses stood (suit land).

The High Court dismissed the petition holding, inter alia, that it did not disclose any cause of action, hence there was nothing for it to consider in relation to whether the petitioners were to be issued with title deeds for the suit land. Aggrieved by that decision, the petitioners appealed to the Court of Appeal. The Court of Appeal held that their claim was not supported by evidence, was not ascertainable and therefore could not be determined. It dismissed the appeal. Aggrieved, the petitioners appealed to the Supreme Court arguing, among others, that they had an automatic right of appeal under article 163(4)(a) of the Constitution as the matters involved touched on constitutional interpretation.

Issues

1. Which appeals lay from the Court of Appeal to the Supreme Court?
2. What was the guiding principle when interpreting law touching on the appellate jurisdiction of the Supreme Court?
3. What were the attributes that were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution?
4. Whether a decision that a claim was not ascertainable and could not be determined interpreted or applied the Constitution.

Held

1. The Supreme Court in exercise of jurisdiction under article 163(4)(a) of the Constitution had to await and respect the superior courts’ exercise of their jurisdictions on the issue. The rationale being that the Supreme Court would only sit on appeal on matters which the other courts had already determined so that as an apex court, it benefitted from the reasoning of those other courts.
2. In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was to be that the chain of courts in the constitutional set-up, running up to the Court of Appeal, had 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, deserved the further input of the Supreme Court.
3. Article 163(4)(a) of the Constitution had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court.
4. The petitioners moved to the High Court under section 84 of the repealed Constitution seeking to enforce their rights under sections 71, 74, 75, 77, 81 and 82 of the repealed Constitution. At the core of the case was the question whether their right to life under section 71, and right to property under section 75 of the repealed Constitution had been infringed or threatened by the respondents. Consequently, a prima facie case touching on the interpretation and application of the Constitution was brought to the Supreme Court. Thus, the appeal had ably invoked the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution.
5. The invocation of the court’s jurisdiction was not however a panacea for a finding that a meritorious case had been made before the court. A finding that a court had jurisdiction to hear and determine a matter was a preliminary finding that the matter before the court was one for which the court was, by law permitted to determine.
6. For a successful and competent appeal to the Supreme Court under article 163(4)(a) of the Constitution, it was not enough for a litigant to allege that his/her case before the superior courts involved interpretation and application of the Constitution. The Supreme Court’s appellate jurisdiction under article 163(4)(a) was a qualified one. The Supreme Court was not just another tier of appeal for constitutional matters. A litigant had to categorically outline the various constitutional issues of interpretation and application which were in issue from the High Court and which the Court of Appeal subsequently considered, and erred in its interpretation and application to warrant appeal to the Supreme Court. While the Supreme Court would find that its jurisdiction had been invoked under article 163(4)(a) of the Constitution, it had the discretion on what issue(s) to determine or whether the alleged issues legitimately fell within that jurisdiction.
7. The Supreme Court retained the discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution. Such a matter had to be founded on cogent issues of constitutional controversy, which issues were to be so determined by the Supreme Court itself. So that, while a litigant would file his/her appeal, it was the Supreme Court which had the sole discretion of determining whether the issues brought before it raised cogent constitutional controversies to warrant its input.
8. The appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution was not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone was not enough for one to invoke and sustain an appeal before the Supreme Court. A party had to steer his/her appeal in the direction of constitutional interpretation and application. A party needed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues.
9. The following attributes were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:

1. The jurisdiction revered judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court had to have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
2. The jurisdiction was discretionary in nature at the instance of the Supreme Court. It did not guarantee a blanket route to appeal. A party had to categorically state to the satisfaction of the Supreme Court and with precision those aspects/issues of his matter, which in his opinion fell for determination on appeal in the Supreme Court as of right. It was not enough for one to generally plead that his case involved issues of Constitution interpretation and application.
3. A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involved little or nothing to do with the application or interpretation of the Constitution did not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
4. Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserved the further input of the Supreme Court under article 163(4)(a) of the Constitution.
5. Challenges of findings or conclusions on matters of fact by the trial Court of competent jurisdiction after receiving, testing and evaluation of evidence did not bring up an appeal within the ambit of article 163(4)(a) of the Constitution.

10. In dealing with an appeal, the Supreme Court’s first hurdle was the delimiting of issues that legitimately fell for its determination. That was important since it was an appellate court with a very qualified jurisdiction. Not every issue that was before the superior courts was open for its determination in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution. Matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Court’s review on appeal. The same was also true of matters that purely dealt with interpretation and application of statutory provisions.
11. As regards the issues framed by the petitioners for determination, save for the Supreme Court’s jurisdictional issue, no other issue lay for determination by the Supreme Court in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution.
12. Both the Court of Appeal and the High Court agreed that there was no evidence upon which the petitioners had laid their claim to the suit land. That decision was majorly an evidentiary matter. The Court of Appeal had observed that the appeal raised constitutional issues of the right to housing and it was ready to make a determination on the issue. The only hurdle was that there was no evidence by the petitioners to back their claim. On that basis, the appellate court downed its tools and upheld the High Court decision.
13. The Court of Appeal in making the conclusion that the petitioners’ claim was not ascertainable and therefore could not be determined, neither interpreted nor applied the Constitution. In no way did the Court of Appeal’s conclusion of lack of evidence took any constitutional trajectory so as to warrant the Supreme Court’s intervention. Some of the issues framed for determination by the petitioners touched on matters of fact and statutes. Some issues were being raised before the Supreme Court for the first time. The petitioners were under a duty to frame the issues they considered were of a constitutional nature which the Court of Appeal erred in its interpretation or application but they failed in that duty. No cogent issue of constitutional controversy arose and/or was in issue at the Court of Appeal that warranted the Supreme Court’s further input.
14. At the time of filing the matter before the High Court, the petitioners were not facing any eviction threat or order. Before determining whether any of the orders they sought warranted being granted, the petitioners had to first prove their entitlement and right to the property. As the superior courts found, no evidence was tendered hence the case was not proved. Consequently, the Supreme Court found no basis upon which to delve into the interrogation of the matter whether reliefs such as structural interdicts were available.
15. The petitioners did not marshall a satisfactory case before the Supreme Court for it to exercise its jurisdiction under article 163(4)(a) of the Constitution. The petition lacked merit.

Petition dismissed with no orders as to costs.

Adverse effects of the Covid 19 pandemic deemed to be reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court.

William Olotch v Pan Africa Insurance Co. Limited

Civil Application No. 14 of 2020

Supreme Court of Kenya

DK Maraga, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala and SN Ndungu, SCJJ

September 4, 2020

Reported by Ribia John

Civil Practice and Procedure – review – review of Court of Appeal decision by the Supreme Court – inadvertent delay – application for enlargement of time - whether the adverse effects of the Covid 19 pandemic could be considered as reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court – Supreme Court Act, section 21(3); Supreme Court Rules, rule 53.

Brief Facts

The applicant sought enlargement of time to file an application for review of the ruling of the Court of Appeal in Civil Application No. SUPP 15 of 2019. The applicant contended that the delay in filing the application for review was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, including restrictions on travel imposed by the Government and coupled with the challenges in accessing reliable internet

Issue

Whether the adverse effects of the Covid 19 pandemic could be considered as reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court.

Held

1. The Supreme Court had the jurisdiction to consider and allow an application for leave to extend time as settled   as pronounced under section 21(3) of the Supreme Court Act and rule 53 of the Supreme Court Rules, 2012. The application by the applicant satisfied the principles set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others (2014) eKLR
2. The applicant had a reasonable and cogent explanation and adduced sufficient reasons for the inadvertent delay in filing his application for review of the Court of Appeal decision on certification in Civil Application No. SUPP 15 of 2019. The respondent had not shown what prejudice would be occasioned upon him if the applicant’s application was allowed.

Application allowed.

Orders

1. The Respondent was to file and serve its response to the originating motion within 14 days of service.
2. The Deputy Registrar was to issue any and further directions as could be deemed necessary in the circumstances.
3. Each party shall bear its own costs.

The rejection of a nominee to a county executive committee for lack of experience and relation to another nominee does not violate the Constitution

Moses Kiprotich Langat v Kericho County Assembly Committee on Appointments & 2 others [2020] eKLR

Petition No. 28 of 2019

Supreme Court of Kenya

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

August 6, 2020

Reported by Kakai Toili

Labour Law – employment – public appointments – procedure to be followed – where an applicant sought to be appointed a county executive committee member -  where the county assembly rejected the nominee’s name for appointment to the county executive committee for lack of experience and for being related to another nominee - what were the factors to be considered in making county government appointments – whether the decision of the county assembly to reject the nominee violated the Constitution - Public Appointments Act, 2011, sections 3, 5, 7 and 10; County Governments Act, 2012, section 35.

Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – where an appellant challenged the decision of a county assembly to reject his name for appointment to the county executive committee for lack of experience and being related to another nominee - whether the Supreme Court had the jurisdiction to determine the appeal – Constitution of Kenya, 2010, articles 160(1) and 163(4); Supreme Court Act, 2011, sections 15(1) and (2).

Brief facts

The County Government of Kericho by way of an advertisement invited suitable candidates to apply for various positions in the county executive committee. Following the advertisement, the appellant applied to be the member of the education, culture and social services committee. He was successful and his name, alongside nine others, was submitted to the 3^rd respondent by the Governor of Kericho County (Governor) for vetting. During the vetting, the appellant’s name was rejected for appointment for two reasons: that he lacked the experience for management of ECDE and village polytechnics and that he was related to a nominee for finance and economic planning. Aggrieved by the decision, the appellant filed a petition before the Employment and Labour Relations Court terming the reasons for his rejection as unconstitutional.

The appellant sought for among others a declaration that the proceedings of the 3^rd respondent (county assembly) rejecting his appointment was void and prohibitory orders against the Governor from presenting to the Speaker of the county assembly any fresh names of nominees for approval by the county assembly for appointment as members of Kericho County Executive Committee. The Employment and Labour Relations Court granted all the prayers sought by the appellant. Dissatisfied by that decision, the respondents filed an appeal at the Court of Appeal which allowed the appeal and set aside the Employment and Labour Relations Court orders. Aggrieved by the Court of Appeal’s decision the appellant filed the instant appeal.

Issues

1. Whether the Supreme Court had the jurisdiction to determine an appeal challenging the decision of a county assembly to reject the name of a nominee to a county executive committee?
2. What was the procedure to be followed in making public appointments?
3. What were the factors to be considered in making county government appointments?
4. Whether the decision of the County Assembly of Kericho to reject a nominee to the county executive committee for lack of experience and relation to another nominee violated the Constitution.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 163

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

1. As of right in any case involving the interpretation or application of this Constitution; and
2. In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)

 (5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Supreme Court Act, 2011

Section 15 - Appeals to be by leave

1. Appeals to the Supreme Court shall be heard only with the leave of the Court.
2. Subsection (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.

Held

1. The test to evaluate the jurisdictional standing of the court in handling the appeal was whether the appeal raised a question of constitutional interpretation or application, and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the court by way of an appeal as contemplated under article 163(4)(a) of the Constitution. The issue of the constitutionality of the respondents’ decision in rejecting the name of the appellant in the County Executive Committee was consistent from the Employment and Labour Relations Court to the Court of Appeal and to the court. Consequently, the appeal fell within the ambit of article 163(4)(a) of the Constitution.
2. Article 176(2) of the Constitution mandated every county government to decentralize its functions and the provision of its services to the extent that it was efficient and practicable to do so. County executive committees thus comprised members appointed by the county governor, with the approval of the assembly, and who were not members of the assembly as provided for under article 179(2)(b) of the Constitution.
3. The procedure for public appointments was governed by the Public Appointments Act No. 33 of 2011. Section 3 of the Public Appointments Act provided that all appointments under the Constitution or any other law for which the approval of Parliament was required would not be made unless the appointment was approved or deemed to have been approved by Parliament. Section 5 of the Act set the procedure for nominating a candidate for a public appointment, upon nomination, under section 5, a candidate whose position required approval by Parliament had to undergo the approval hearing as set out in section 6 of the Act. Accordingly, section 7 of the Act provided that an approval hearing had to focus on a candidate’s academic credentials, professional training and experience, personal integrity and background. When approving a candidate, the House of Parliament had to be guided by the procedure used to arrive at the nominee; any constitutional or statutory requirements to the office in question; and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s abilities, experience and qualities met the needs of the body to which nomination was being made.
4. On rejection of a nomination, section 10 of the Public Appointments Act provided that where the nomination of a candidate was rejected by Parliament, the appointing authority could submit to the relevant House the name of another candidate, and the procedure for approval was specified in the Act. In the context of county government appointments under section 35 of the County Governments Act No. 17 of 2012, the governor should, when nominating members of the executive committee, ensure that to the fullest extent possible, the composition of the executive committee reflected the community and cultural diversity of the county; and took into account the principles of affirmative action as provided for in the Constitution. The county assembly was mandated to ensure that all nominations for appointments to the executive committee took into account two thirds-gender rule, representation of minorities, marginalized groups and communities and community and cultural diversity recognized in Kenya among other considerations.
5. A county assembly could reject the name of a nominee if it failed the test set out in section 35 of the County Governments Act and the provisions of the Public Appointments Act. The appellant did not fault the vetting process (which the constitutional and statutory threshold required) but the outcome. There was no reason to depart from the Court of Appeal’s finding.
6. Separation of powers was an integral principle in the Constitution: for instance, chapter 8 was devoted to the Legislature; chapter 9 to the Executive and chapter 10 on the Judiciary provided (article 160(1)) that: in the exercise of judicial authority, the Judiciary as constituted by article 161 was subject only to the Constitution and the law and was not to be subject to the control or direction of any person or authority. If courts decided only those cases that met certain justiciability requirements, they respected the spheres of their co-equal branches and minimized the troubling aspects of counter-majoritarian judicial review in a democratic society by maintaining a duly limited place in government.
7.  The respondent’s decision to reject the appellant’s appointment did not flout any constitutional or statutory provisions. There was no reason to interfere with the manner in which the county assembly exercised its powers on the issue. 

Appeal dismissed; each party to bear their own costs of appeal.

A claim for restitution of emoluments and pensions under statute were not constitutional in nature

Alfred Asidiga Mulima & 2 others (Suing as Representatives of Ex-East African Airways Staff Welfare Association) v Attorney General & 8 others [2020] eKLR

Petition No. 17 of 2019

Supreme Court of Kenya

P M Mwilu (DCJ & VP), M K Ibrahim, S C Wanjala, N Njoki and I Lenaola, SCJJ

August 4, 2020

Reported by Chelimo Eunice

Jurisdiction – appellate jurisdiction of the Supreme Court – appeal on non-payment of emoluments and pensions – whether a claim for restitution of emoluments and pensions under statute were constitutional in nature - whether a claim that non-payment of pensions and emoluments violated a litigant’s constitutional rights gave the Supreme Court jurisdiction to entertain the matter - whether the Supreme Court could entertain a claim for restitution of emoluments and pensions – Constitution of Kenya, 2010, article 163(4)(a).

Brief facts

The petitioners who were former employees of the East African Airways Corporation (EAAC) which fell under the ambit of the East African Community (EAC) had filed a petition in the High Court (trial court). In the petition, they alleged violation of their constitutional rights under the Constitution as a result of non-payment of various amounts of money they alleged were due to them following the disbandment and dissolution of the EAC as well as the winding up of the EAAC. Their claim involved payment of emoluments accruing and owing to them as former employees of the defunct EAAC. They highlighted various provisions of the Constitution as the basis for their claim against the respondents.

The trial court dismissed the petition stating that it was res judicata, the issues that it raised having been the subject of consideration by courts of competent jurisdiction. Aggrieved by the decision of the trial court, the petitioners moved the Court of Appeal where the appeal was dismissed on grounds that the matter was time-barred as the real issue in contest was one based on contractual and statutory obligations and not violation of the Constitution per se. Aggrieved by that decision, the petitioners filed the instant appeal.

Issues

1. Whether a claim for restitution of emoluments and pensions under statute were constitutional in nature.
2. Whether the Supreme Court could entertain a claim for restitution of emoluments and pensions.

Held

1. The trial court and the appellate court in holding that there was no violation of any constitutional rights and that the claim arose from a contract of employment proceeded to interrogate the claims against the East African Community Mediation Agreement Act (EACMAA), a statute, and not any part of the Constitution. None interpreted or applied the Constitution in any substantive manner.
2. Where a matter or claim was for restitution of emoluments and payments under statute, not of violated constitutional rights per se, then the Supreme Court would decline to assume jurisdiction under article 163(4)(a) of the Constitution. The instant claim was a civil claim against the respondents for unsettled or unpaid dues following the redundancy of the petitioners. The petitioners had not shown how the issues were of a constitutional nature, and hence, a requirement of them to make a determination on the same.
3. It was perturbing why the petitioners would seek constitutional reprieve for issues that were about statutory application and had no nexus whatsoever with violation of constitutional rights. It was the applicability or otherwise of the EACMAA that was at the centre of the dispute and not the interpretation or application of the Constitution per se. None of the issues parties submitted on called for such interpretation or application of the Constitution in any substantive or even peripheral manner.
4. Having held that the issues before court were not constitutional in nature, there was no reason to delve into the other issues set out for determination. As long as EACMAA remained valid, the petitioners were at liberty to pursue their emoluments and pensions under that Act. The petitioners would as well pursue the trial court’s order directed at the National Bank of Kenya to pay retired staff of the EAC from funds it was holding.
5. A simple, otherwise straight forward claim for emoluments and pensions should never have taken almost 40 years to commence and prosecute.
6. Since the court had no jurisdiction, it would not address the place of the principle of res judicata in constitutional matters as well as the retrospectivity or otherwise of the Constitution.

Petition dismissed with no orders as to costs.