Recommendations made by the Commission on Administrative Justice to public bodies are not binding.

Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] eKLR

Petition 42 of 2019

Supreme Court of Kenya

PM Mwilu, Ag CJ & Ag P, MK Ibrahim, SC Wanjala, NS Njoki & I Lenaola, SCJJ

March 24, 2021

Reported by Beryl Ikamari

Constitutional Law - constitutional commissions - Commission on Administrative Justice (CAJ) - mandate and powers of CAJ - whether the recommendations made to public bodies by CAJ were binding - Constitution of Kenya 2010, article 254; Commission on Administrative Justice Act, No 23 of 2011, section 43(3).

Judicial Review – unfair administrative action - remedies - damages - whether the Court of Appeal could award damages in a judicial review appeal whose subject matter was a failure to implement the recommendations of the Commission on Administrative Justice.

Brief facts

The 3^rd respondent was employed under a three-year empployment contract by the Kenya Vision 2030 Delivery Board (the Board) in the position of Director (Enablers and Macro). The contract was renewable six months before its expiry. The 3^rd respondent's employment contract was not renewed on grounds that his performance was below par. The 3^rd respondent appealed to the Minister for Planning and National Development and Vision 2030 (the Minister). The Minister renewed his contract for a year but the Board declined to allow him back to work.

The 3^rd respondent then sought the assistance of the Commission on Administrative Justice (CAJ). The conclusions of CAJ were that the Board violated article 47 and 59 of the Constitution as well as sections 2 and 8(a), 8(b) and 8(d) of the Commission of Administrative Justice Act on fair administrative action. CAJ recommended the Board to pay the respondent the equivalent of twelve months salary and allowances in compensation for the one year period of the reviewed contract, to allow the 3^rd respondent to collect his personal effects from his former office and offer him an unconditional apology for how they had treated him. The Board declined to implement the recommendations and CAJ filed judicial review proceedings at the High Court.

The High Court's findings were that it could not compel the implementation of CAJ's recommendations and that the only thing that CAJ could do when an organization failed to implement its recommendations was to make a report to the National Assembly which would take appropriate action under section 44(4) of the Commission on Administration of Justice Act (CAJA). Generally, the High Court stated that since CAJ lacked coercive power to compel the implementation of its recommendations, the court could also not compel a government agency to implement the recommendations. An exception to those rules which would allow the court to compel the implementation of such recommendations was where there was gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right which the petitioner was entitled, and there was no other plain, speedy and accurate remedy. An appeal was lodged against the High Court's decision.

The Court of Appeal allowed the appeal and granted the orders of mandamus as sought and also monetary compensation for violation of fair administrative action rights. The Court of Appeal stated that CAJ's options in situations where its recommendations were not implemented were not limited to reporting to the National Assembly. It explained that article 254 of the Constitution did not suggest that recommendations had no force of law or were incapable of enforcement by a court of law.

Issues

1. Whether the recommendations of the Commission on Administrative Justice were binding on public bodies.
2. Whether the Court of Appeal had jurisdiction to award damages in a judicial review appeal, where the said damages were a remedy sought for a failure to implement the recommendations of the Commission on Administrative Justice.

Held

1. Section 5 of CAJA implied that the powers conferred upon CAJ were in addition to the power of commissions in article 253 of the Constitution. Like any other constitutional commission, CAJ was required as soon as practicable, after the end of each financial year, to submit a report to the President and to Parliament. It was wrong for the Court of Appeal to conclude that the report required under article 254(1) of the Constitution was different from reporting on its investigative reports made in discharge of its mandate.
2. A reading of section 8 of CAJA which set out the functions of CAJ indicated that CAJ was mandated to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector. Therefore, the finding by both superior courts that CAJ had the mandate to entertain and make recommendations with regard to the 3^rd respondent's complaint, were accurate.
3. Section 29 of CAJA provided that after investigating a complaint about how administrative action had been undertaken by a public officer or public body, CAJ was under a mandatory obligation to resolve the complaint through conciliation, mediation or negotiation. If the matter could not be resolved, and CAJ found that administrative action was undertaken unjustly or unreasonably, CAJ would make recommendations as it deemed fit.
4. Whereas CAJ had the requisite mandate to make recommendations to public officers or public bodies, the recommendations were not binding. A recommendation could only be binding when its binding nature was specifically provided for under the Constitution or the law. Neither the Constitution nor CAJA provided that CAJ's recommendations were binding. Consequently, the Board had discretion to determine the manner in which they were to implement CAJ's recommendations.
5. Under section 42(4) of the CAJA, the remedy where there had been non-compliance with the recommendations of the CAJ, was for the CAJ to prepare a report of the Board’s failure to implement the recommendations to the National Assembly for appropriate action. Not even a court of law could dictate the manner in which a CAJ recommendation should be implemented. The only exception was where there was gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right which the aggrieved party was entitled and there was no other plain, speedy and accurate remedy. The 3^rd respondent's circumstances did not fall within the exception.
6. Where exceptional circumstances were pleaded, the party aggrieved by the alleged abuse of discretion by a public officer, had to prove that the exceptional circumstances existed. The 3^rd respondent did not discharge that burden of proof.
7. The following were the guiding principles on recommendations from commissions to public bodies: -

1. Any power to make a recommendation ought to be specifically provided for in the Constitution or in law;
2. Recommendations did not necessarily bind the person to whom, or entity to which, it was addressed;
3. A recommendation from a commission was only binding upon a public entity where it has been specifically provided for in the Constitution or in law;
4. The manner in which a recommendation was to be implemented by a public entity was discretionary;
5. Exercise of discretion in implementing a recommendation could only be interfered where there was gross abuse of discretion, manifest injustice or palpable excess of authority;
6. Any recommendation by a commission which was not implemented could be reported to Parliament for any further action, if necessary.

8. Since CAJ's recommendations were not binding on the Board, there was no basis for the Court of Appeal to award monetary compensation to the 3^rd respondent.
9. Under section 8(c) of the CAJA, CAJ had the mandate to award compensation but that provision should not be read in isolation. Section 41 of CAJA provided for options that CAJ had after the conclusion of an inquiry. They included referring the matter to the relevant authority (which included the National Assembly) or recommending to the 3^rd respondent a course of other judicial redress, recommending to the complainant appropriate methods of settling the complaint or obtaining relief and providing a copy of the inquiry report to all interested parties or submitting summons as it deemed fit to fulfill its mandate.
10. Since the dispute was an employer-employee dispute, CAJ ought to have recommended to the 3^rd respondent an appropriate method of settling the dispute. One of those methods would be to seek redress at the Employment and Labour Relations Court (ELRC).
11. CAJ could not usurp the role of the ELRC over employment disputes and award compensation. CAJ, under section 8(g) of the CAJA, could only recommend compensation or other appropriate remedies against a person or bodies to which the Act applied.

Appeal allowed.

Orders:-

1. The petition of appeal dated November 6, 2019 and filed on November 7, 2019 was allowed.
2. The judgment of the Court of Appeal sitting at Nairobi, September 27, 2019 was quashed and set aside.
3. For the avoidance of doubt, the judgment of the High Court delivered on February 26, 2015, was upheld.
4. Costs of the appeal were awarded to the appellant.

Supreme Court declines to extend the time allowed for the filing of a notice of appeal.

Ecobank Kenya Limited v Meya Agri Traders Limited [2021] eKLR

Civil Application 20 of 2020

Supreme Court of Kenya

PM Mwilu, Ag CJ & P, MK Ibrahim, SC Wanjala, NS Njoki & I Lenaola, SCJJ

March 24, 2021

Reported by Beryl Ikamari

Civil Practice and Procedure – computation of time - extension of time - delay in filing a notice of appeal - where a delay of 51 days was explained as the consequence of movement restrictions meant to contain the coronavirus pandemic - whether the Supreme Court would extend time for the filing of a notice of appeal - Supreme Court Rules 2020, rules 15(2) and 36(1).

Brief facts

An application for the extension of time in which to file a notice of appeal at the Supreme Court was made. The application was made after the lapse of 51 days from the last date in which the notice of appeal ought to have been filed. The reason offered for the delay was that travel restrictions meant to contain the coronavirus pandemic did not allow the applicant's advocates to travel from Nakuru in order to discuss the judgment, which would be the subject of the intended appeal, and lodge a notice of appeal at the Court of Appeal registry at Nairobi.

Issues

1. What were the principles applicable to the extension of time for filing a notice of appeal at the Supreme Court?
2. Whether the Supreme Court would allow a party to file a notice of appeal out of time.

Held

1. Under rule 36(1) of the Supreme Court Rules, a notice of appeal had to be filed within fourteen days from the date of the judgment or ruling that was the subject of appeal. If the matter was one of general public importance, it was not necessary to obtain certification before filing the notice of appeal. Rule 15(2) of the Supreme Court Rules, 2020 granted the court discretion to extend time where time for undertaking certain actions was limited under the rules or by an order of the court. Therefore, the court had discretion to extend time for the filing of the notice of appeal.
2. The principles underlying the exercise of discretion by the court for purposes of extending time were the following:-

1. extension of time was not a right of a party - it was an equitable remedy that was only available to a deserving party, at the discretion of the court;
2. a party who sought extension of time had the burden of laying a basis, to the satisfaction of the court;
3. whether the court should exercise the discretion to extend time, was a consideration to be made on a case- to- case basis;
4. where there was a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the court;
5. whether there would be any prejudice suffered by the respondents, if extension was granted;
6. whether the application had been brought without undue delay; and
7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.

3. There was need for the applicant to explain the whole period of delay to the court. The applicant said that there were movement restrictions which hindered discussions and the issuance of instructions for the filing of a notice of appeal. The applicant did not explain why other means of communication such as e-mail, zoom, skype, teleconferencing or google teams were not used to issue instructions for the filing of a notice of appeal.
4. The judgment which would be the subject of the intended appeal arose from the High Court at Nakuru. Under rule 6(3) of the Court of Appeal Rules, the appropriate registry for the filing of the notice of appeal was the Court of Appeal sub-registry at Nakuru. The applicant's advocates were at Nakuru and the cessation of movement would not have affected their ability to file the notice of appeal at the appropriate registry.
5. Pursant to the orders of the court in Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others ; Kenya National Commission on Human Rights & 3 others (Interested Parties), HC Petition No. 120 of 2020 (COVID 025); [2020] eKLR, the Schedule to the Public Order (State Curfew) Order, 2020, was amended to include members of the Law Society of Kenya in the list of services, personnel or workers that were exempted from the provision of the Public Order (State Curfew) Order, 2020. Lawyers were subsequently issued with an essential service provider Identity card to enable them to move within and out of the areas restricted by Public Order (State Curfew) Order, 2020. The applicant's argument that its advocates were unable to travel was untenable.
6. The applicant's argument that the notice of appeal could not be filed in tIme because of the closure of both the Supreme Court and Court of Appeal registries in Nairobi was incorrect. Even though service delivery in the Judiciary was scaled down, the Judiciary still offered services when there were movement restrictions. The applicant failed to utilize the online filing platform in order to comply with set timelines.
7. The issues that arose for determination both at the High Court and the Court of Appeal were not of public interest and they did not persuade the court to extend time.

Application dismissed with costs to the respondent.

Supreme Court refers hospital property ownership dispute to the Environment and Land Court

Attorney General & another v Uasin Gishu Memorial Hospital Limited & another [2021] eKLR

Petition 20 of 2019

Supreme Court of Kenya

PM Mwilu, Ag CJ & Ag P, MK Ibrahim, SC Wanjala, NS Njoki & I Lenaola, SCJJ

March 24, 2021

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application - whether an appeal met the constitutional threshold for the exercise of the Supreme Court's jurisdiction - Constitution of Kenya 2010, article 163(4)(a).

Jurisdiction - jurisdiction of the High Court - unlimited and original jurisdiction and jurisdiction to enforce the Bill of Rights - whether the High Court had jurisdiction to entertain a dispute about the ownership of a hospital and its assets and liabilities - Constitution of Kenya 2010, article 165.

Jurisdiction - jurisdiction of the Court of Appeal - appellate jurisdiction - whether the Court of Appeal had jurisdiction to make determinations about the ownership of a hospital and its assets and liabilities where the High Court had not heard and determined the dispute on its merits.

Brief facts

Legal Notice Number 78 of 1998 established the 2^nd respondent as a state corporation and appointed a Board to take over the 1^st respondent's hospital and properties including rights, duties, obligations, assets and liabilities. Pursuant to the Legal Notice, the appellants and the 2^nd respondent, without following due process, compulsorily acquired the 1^st respondent hospital and suit properties by ordering that its assets, rights and interests be transferred and managed by 2^nd Respondent under the provisions of the State Corporations Act.

The 1^st respondent filed HCCC No 123 of 1998 seeking temporary orders to restrain the 2^nd respondent from interfering with the hospital and its properties and the orders were granted.  After publishing gazette notice No 6623 of August 20, 2004, expressing the intent to dissolve a number of companies, the Registrar of Companies published gazette notice No 815 of February 4, 2005 through which the 1^st respondent was dissolved and struck off the register. On March 11, 2001, the 2^nd respondent forcefully entered and took over possession of the hospital and its property. The 2^nd respondent also successfully applied for HCCC no 123 of 1998 to be struck out on grounds that the 1^st respondent was no longer a legal entity.

Later, the 1^st respondent filed Miscellaneous Cause No. 350 of 2005, and it obtained orders for its reinstatement on the Companies Register. The 1^st respondent then filed HC Constitutional & Judicial Review Misc. Civil Case No. 12A of 2006 (OS). In that matter it sought various reliefs including declaratory reliefs to the effect that Legal Notice No 78 of 1998 which led to the transfer of its assets and liabilities to the 2^nd respondent was illegal and that its rights to property had been violated. The High Court found that the originating summons raised a property ownership dispute whose determination required viva voce evidence and not affidavit evidence. The originating summons was dismissed by the High Court which cited lack of jurisdiction to determine who the real owner of the suit property was or the nature of the 1^st respondent's interest.

On appeal, the Court of Appeal found that the originating summons was competent as it raised allegations of violations of property rights. It also found that the 1^st respondent was the lawful owner of the disputed property and that the High Court should have made determinations on the alleged violation of property rights and the legality of the legal notice. The Court of Appeal found that the impugned legal notice (Legal Notice No. 78 of 1998) violated the 1^st respondent's rights to property and was illegal and unconstitutional. An appeal against the Court of Appeal's decision was lodged at the Supreme Court.

A cross-appeal was also filed at the Supreme Court by the 2^nd respondent. Amongst the contentions of the 2^nd respondent were that the suit premises comprised of public land acquired by the Government in 1961 and the Government made capital investments on the land in 1998. The 2^nd respondent said that the 1^st respondent had no interest or investment in the land. The 2^nd respondent contended that the Court of Appeal had awarded a wrong-doer as the 1^st respondent had fraudulently alleged that its title deed was lost and converted the land registration regime from the Registration of Titles Act to the Registered Land Act. The 2^nd respondent also said that the Court of Appeal, after finding that the originating summons was competent, should have referred the matter to the High Court to exercise its original jurisdiction.

Issues

1. Whether an appeal met the constitutional threshold under article 163(4)(a) of the Constitution, which was about the Supreme Court's appellate jurisdiction in matters of constitutional interpretation and application.
2. Whether the High Court had jurisdiction to entertain a suit about the ownership of a hospital and its assets and liabilities.
3. Whether the Court of Appeal had jurisdiction to make determinations about the ownership of a hospital and its assets and liabilities where the High Court did not hear and determine the dispute on its merits.

Held

1. The appeal was filed under article 163(4)(a) of the Constitution as one that lay as of right as it involved the interpretation or application of the Constitution. For the Supreme Court to entertain the appeal, it should raise matters of constitutional interpretation and application and those matters should have been canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach the Supreme Court. Considering the issues raised at the High Court and the Court of Appeal, the matter fell within the ambit of article 163(4)(a) of the Constitution and the court had jurisdiction to hear and determine it.
2. The High Court's jurisdiction under article 165 of the Constitution included unlimited original jurisdiction in criminal and civil matters and jurisdiction to enforce the Bill of Rights. Under section 60(1) of the repealed Constitution, provision was made for the High Court’s unlimited original jurisdiction in civil and criminal matters. The High Court had an obligation to determine the issues raised by the parties and in failing to do so, the High Court failed to fulfil its constitutional mandate.
3. The High Court finding was correct only to the extent that the property ownership dispute between the parties was highly contested and it required viva voce evidence and affidavit evidence could not be used to determine it.
4. The Court of Appeal finding that the High Court failed to execute its constitutional mandate was correct. In proceeding to determine the matter on the basis of affidavit evidence, without giving the parties an opportunity to present and examine evidence, the Court of Appeal denied the parties the right to be heard as provided for under article 25 and 50 of the Constitution. The High Court also denied the parties a right to be heard when it made the finding that it had no jurisdiction.
5. The High Court erred in not exercising its original jurisdiction and the Court of Appeal erred in exhaustively determining the issues before it without having them exhaustively determined by the High Court and affording the parties an opportunity to test the affidavit evidence.
6. Pursuant to article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, it was appropriate for the matter to be heard afresh before the Environment and Land Court. The Environment and Land Court would have to address the following issues: -

1. Who was the owner of Eldoret Municipality/ Block 7/125 and Eldoret Municipality/Block 7/126? How was the land acquired?
2. Who owned the investment on Eldoret Municipality/ Block 7/125 and Eldoret Municipality/Block 7/126? By what means were the investments made?
3. Was the Hospital on the suit land? Was it a public or a private hospital? If it was a private hospital when was it licensed to operate as such? If it was public, did it have a license to operate as such? When was the license given? How had the hospital been running?
4. Who was the 1^st respondent? Was it a public body or a private entity? Had the 1^st respondent been paying taxes? If not, why?
5. Who had been the Board Members of the 1^st respondent? Had they ever changed? If yes, why and when did they change?
6. Who was the Board? Why did the District Commissioner significantly chair the affairs of the 1^st respondent over the years? On whose authority did District Commissioner chair?
7. How did the directorship of the 1^st respondent move to the Government?
8. If the 1^st respondent were to be found to be entitled to compensation and could claim compensation, what mechanism should be used to quantify the compensation?
9. What was Legal Notice No. 78 of 1998? What was its legal status?
10. What was the legal status of Gazette Notice No. 6623 of August 20, 2004, published by the Registrar of Companies giving a notice of intended dissolution of a number of companies, including the 1^st respondent?
11. What was the legality of Gazette Notice No. 815 of February 4, 2005 by which the 1^st respondent was dissolved?

Appeal and cross-appeal allowed.

Orders:-

1. The Petition of Appeal dated May 28, 2019 and filed on an even date and the cross-appeal dated and filed on June 7, 2020 were allowed in the following specific terms: -

1. The Judgment and order of the Court of Appeal dated October 6, 2017 was set aside.
2. The Judgement of the High Court dated March 19, 2010 was set aside.
3. For the avoidance of doubt, the Judgment of the High Court was null and void.
4. The matter was remitted to the Environment and Land Court for determination of specified issues.

2. Each party was to bear its own costs.

Cases

East Africa

1.     Five Forty Aviation Limited v Erwan Lanoe Civil Appeal 55 of 2016;[2019] eKLR –(Mentioned)

2.      Joho & another v Shahbal & 2 others [2014] 1 KLR 111-(Followed)

3.     Kariuki, Peter M v Attorney General Civil Appeal 79 of 2012; [2014] eKLR-(Mentioned)

4.     Kenya Commercial Bank Limited & another v Samuel Kamau Macharia & 2 others Civil Appeal 181 of 2004; [2008] eKLR- (Mentioned)

5.     Kiguoya, Joseph Kamau v Rose Wambui Muthike Environment and Land Case 203 of 2016;[2016] eKLR –(Mentioned)

6.     Kuria Greens Limited v Registrar of Titles & another [2013] 1 EA 162-(Mentioned)

7.    Masek Ole Tinkol & 3 others v Kenya Grain Growers Limited & 2 others Case 272 of 2015;[2018] eKLR-(Mentioned)

8.      Munya v Kithinji & 2 others [2014] eKLR –(Followed)

9.    Narok County Government v Livingstone Kunini Ntutu & 2 others Petition No 3 of 2015; [2018] eKLR –(Mentioned)

10.   Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] 2 KLR 804 -(Followed)

11.  Ngoge v Kaparo & 6 others [2012] 2 KLR 419-(Followed)

12.  Njogu, D N & Co advocates v National Bank of Kenya Miscellaneous Civil Case 730 of 2006;[2009] eKLR-(Mentioned)

13.  Rai & 3 others v Rai & 4 others  [2014] 2 KLR 253 –(Followed)

India

N Nagendra Rao and Co v the State of AP AIR (1994) SC- (Mentioned)

United Kingdom

1.     Attorney General of Gambia v Jobe [1985] LRC (Const) 556- (Mentioned)

2.     Attorney general v Lawrence [1985] LRC (CONST) 921-(Mentioned)

3.    Attorney General v Ramanoop [2005] UKPC 15-(Mentioned)

4.    Gairy v Attorney General of Grenada [2001] UKPC 30- (Mentioned)

5.      Maharaj v Attorney General of Trinidad and Tobago (No 2) [1978] 2 All ER 670 –(Mentioned)

6.     Merson v Cartwright [2006] 3 LRC 264, 272-3- (Mentioned)

7.     Ramlogan v The Mayor, Aldermen & Burgesses of San Fernando [1986] LRC (Const) 377 –(Mentioned)

8.    Salmon v Salmon Co [1897] AC 22 –(Mentioned)

9.    Windward Properties Limited & another v Williams & another [1988] LRC (Const) 406-(Mentioned)

Statutes

East Africa

1.    Constitution of Kenya (Repealed) sections 70 (a)  (c); 75(2); 84 –(Interpreted)

2.     Constitution of Kenya, 2010 articles 25,40,50,162(2)(b); 163(4) (a); 165-(Interpreted)

3.    Appellate Jurisdiction Act (cap 9) sections 3(2); 60(1) –(Interpreted)

4.    Environment and Land Court Act, 2011 (Act No 19 of 2011) section 13(7) –(Interpreted)

5.     Land Acquisition Act (cap 284) – In general (Cited)

6.    Land Registration Act, 2012 (Act No 3 of 2012) section 25, 26,27 –(Interpreted)

7.    Registered Land Act (Repealed) section 27, 28 – (Interpreted)

8.    Registration of Titles Act (cap 281) –In general (Cited)

9.     State Corporations Act (cap 446) section 2- (Interpreted)

10. Supreme Court Act, 2011 (Act No 7 of 2011) section 15 (1)(2); 17-(Interpreted)

11.  Supreme Court Rules, 2012 (Repealed) rules 32; 33 –(Interpreted)

Advocates

None Mentioned

The Supreme Court had the discretion to extend time to file a petition of appeal out of time

Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party)

Civil Application No. 19 of 2020

Supreme Court of Kenya

P.M. Mwilu, Ag. CJ & Ag. P, M. Ibrahim, S.C Wanjala, S.N Njoki, & I. Lenaola, SCJJ

March 24, 2021

Reported by Chelimo Eunice

Civil Practice & Procedure – appeals – appeals to the Supreme Court -  extension of time for filing appeals - whether the Supreme Court had the discretion to extend time to file a petition of appeal out of time – where it was contended that the delay was occasioned by technical issues and failure of the e-filing system of the Supreme Court to upload the petition of appeal - whether the applicant had provided sufficient explanation to warrant the extension of time to file the appeal - Supreme Court Rules, 2020, rule 15(b).

Brief facts

The applicant sought for extension of time to file an appeal out time. It contended that the delay was occasioned by technical issues and failure of the e-filing system of the Supreme Court to upload the petition of appeal in spite of numerous attempts to do so. The respondent did not file any response or submissions with regard to the application.

Issues

1. Whether the Supreme Court could extend time to file a petition of appeal out of time.
2. Whether the applicant had laid satisfactory basis to warrant extension of time to file the appeal.

Held

1. Under rule 15(b) of the Supreme Court Rules, 2020 (Rules), the Supreme Court would on its discretion extend time for any action under the Rules. Extension of time was not a right of a party, but would be considered on a case by case basis with the onus on the applicant seeking extension to lay the basis and give proper explanation to the satisfaction of the court on the reason for delay.
2. The applicant timeously lodged its notice of appeal and also provided sufficient explanation for the delay in filing of the petition of appeal.

Application allowed, with the applicant bearing the costs of the application.

Circumstances under which an intended appeal would be certified as one that involved matters of general public importance.

Dhanjal Investments Limited v Cosmos Holidays PLC [2021] eKLR

Application 12 of 2020

Supreme Court of Kenya

PM Mwilu, Ag CJ & Ag P, MK Ibrahim, SC Wanjala, NS Njoki, & I Lenaola, SCJJ

March 24, 2021

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - matters of general public importance – claim relating to recognition and enforcement of a foreign judgment in which nine tourists were awarded damages for injuries suffered in a robbery while being accommodated at a Kenyan hotel - circumstances under which the Supreme Court would certify an intended appeal as one that raised matters of general public importance.

Brief facts

The applicant was a hotelier who operated the Travellers Beach Hotel and the Mwalunganje Elephant Camp in Kwale County. The applicant entered into a contract with the respondent, a tour operator based in the United Kingdom to supply package holiday tourists to be accomodated at the applicant's hotels. On the night between May 3 and May 4 2000, nine tourists at Mwaluganje Elephant Camp Kwale County were attacked by a group of robbers and injured. They filed a suit at the United Kingdom to recover damages for the injuries they suffered. The tourists were awarded damages in suit No 6LS90055 in the Queen’s Bench Division of the High Court in England dated 10 August 2009. The judgment was registered in Kenya on March 16, 2012.

The applicant filed HCCC No 112 of 2012 (OS) at the High Court whilst stating that the foreign court lacked jurisdiction over the claim as it was a personal injuries claim arising in Kenya. The application was dismissed by the High Court which found that sections 3(3)(b) and 4(1)(i) of the Foreign Judgments Reciprocal Enforcement Act were inapplicable to the matter and that the foreign court had jurisdiction to handle the matter. The High Court also made the finding that the applicant had submitted to that court's jurisdiction by appearing in the proceedings. On appeal by the applicant, the Court of Appeal dismissed the appeal and upheld the High Court's decision.

The applicant then filed a notice of motion at the Court of Appeal seeking leave to lodge an appeal at the Supreme Court. According to the applicant, the intended appeal raised issues of general public importance as well as issues of law, specifically on enforcement of the provisions of the Foreign Judgments (Reciprocal) Enforcement Act. The Court of Appeal declined to grant certification and stated that the intended appeal did not raise a substantial point of law or matter of general public interest to be determined at the Supreme Court. The applicant then filed a review application at the Supreme Court seeking a review of the Court of Appeal's decision declining to grant certification that the intended appeal involved matters of general public importance.

Issue

When would the Supreme Court certify an intended appeal as one that involved matters of general public importance?

Held

1. For an intended appeal to qualify as a matter of general public importance, it had to be one, the determination of which transcended the circumstances of the particular case and had a significant bearing on the public interest.
2. As was correctly noted by the High Court and the Court of Appeal, the decision of the foreign court did not include the payment of money relating to exemplary, punitive or multiple damages. It therefore did not invoke the application of section 3(3)(b) of the Foreign Judgments Reciprocal Enforcement Act. Section 4(1)(i) of the Act was also inapplicable. Further, section 10(2)(c) and 10(4) of the Foreign Judgments Reciprocal Enforcement Act clearly gave the foreign court jurisdiction over matters arising out of the contract between the parties including indemnity as provided for in the contract.
3. The circumstances surrounding the claim of indemnity or damages under the contract with respect to the respondent's liability for the injuries suffered by the nine tourists, were evidentiary matters that were specific to the parties involved and they were not grounds for the grant of certification.
4. The applicant willingly participated in the foreign court proceedings where they litigated the matter until the appellate stage. In doing so they exhaustively addressed the initial claim. The opportunity to invoke the Supreme Court's jurisdiction on grounds that a matter was of public importance, was not an opportunity to continue litigation or obtain an extra tier of appeal from the Court of Appeal.

Orders: -

1. The application dated June 3, 2020 was dismissed.
2. The applicant was to bear the costs of the application.

Whether an application for joinder as an interested party could be allowed where the applicant introduced new issues that were not pending before the court

County Assemblies Forum v Attorney General & 3 others (Interested parties) Parliamentary Service Commission & another [2021] eKLR

Petition (Application) No. 22 of 2017

Supreme Court of Kenya

PM Mwilu; Ag. CJ & P; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

March 24, 2021

Reported by Kakai Toili

Civil Practice and Procedure - parties to a suit - joinder of parties – requirements for joinder of parties - where a party sought to be enjoined to the proceedings as an interested party - whether an application for joinder as an interested party could be allowed where the applicant introduced new issues that were not pending before the court - Supreme Court Rules, 2020, rule 24.

Brief facts

The applicant filed the instant application seeking joinder in the capacity of an interested party. It was the applicant’s case that between the year 2013 and 2014, it advanced car and mortgage loan facilities to former members of the first Assembly to be repaid within five years of their term in office from their salaries.

The applicant submitted that it intended to raise issues related to the appeal, which issues included that: a majority of Members of Siaya County Assembly Service Board had been unable to repay their outstanding loans; that the members had petitioned it to write off the outstanding mortgage debt and accruing interest as at January 8, 2019, and extended the loan repayment period until the final conclusion and determination of the Supreme Court matter. The applicant alleged further that the petitioner had failed to accommodate the foregoing concerns within the body of the petition and declined to update it on the case pending before the court. It also contended that no prejudice would be occasioned to the petitioner and the respondents.

Issue

Whether an application for joinder as an interested party could be allowed where the applicant introduced new issues that were not pending before the court.

Relevant provisions of the law

Supreme Court Rules, 2020

Rule 24

1. A person may, within seven days of filling a response in any proceedings, apply for leave to be enjoined as an interested party.
2. An application under sub-rule (1) shall include-
   1. A description of the interested party;
   2. A depiction of such prejudice as the interested party would suffer if the intervention was denied; and
   3. The grounds or submissions to be adduced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties…

Held

1. An applicant for joinder had to satisfy the court that he or she had fulfilled the legal requirements for joinder. The applicant sought joinder to have its concerns included within the body of the petition of appeal. The applicant was in essence introducing new issues that were not pending before the court. The applicant had not advanced any submissions that would be helpful to the court as regards the main issue before the court. The applicant would not suffer any prejudice if its intervention was denied as its interest would be well ventilated by the petitioner, whereby the applicant was a member.

Application dismissed; applicant to bear the costs of the 2^nd respondent.

Exceptional circumstances in which the Supreme Court can review its decisions

Kenya Bureau of Standards v Geo Chem Middle East [2021] eKLR

Application No. 33 of 2020

Supreme Court of Kenya

PM Mwilu, Ag. CJ & Ag. P; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

March 17, 2021

Reported by Kakai Toili

Jurisdiction – jurisdiction of the Supreme Court – review jurisdiction - what were the exceptional circumstances in which the Supreme Court could review its decisions.

Brief facts

The applicant filed the instant application seeking to review and stay the Supreme Court’s judgment and orders in a decision where the court had overturned the Court of Appeal’s judgment and affirmed the High Court’s judgment where in, the trial court adopted an arbitral award and directed the applicant to pay the sum of USD 15, 401,504.70 and costs of the arbitration. The applicant submitted that, the Supreme Court had review jurisdiction under rule 28(5) of the Supreme Court Rules, 2020, as read together with article 163(8) of the Constitution.

Issue

What were the exceptional circumstances in which the Supreme Court could review its decisions?

Held

1. As a general rule, the Supreme Court neither had the jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, the Supreme Court could, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. The exceptional circumstances in which the court could vary any of its judgments, rulings or orders were where;
   1. the judgment, ruling, or order, was obtained, by fraud or deceit;
   2. the judgment, ruling, or order, was a nullity, such as, when the court itself was not competent;
   3. the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
   4. the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.

The applicant had failed to demonstrate, how, if at all, the judgment they sought to review could be impugned on any of the four grounds set out above.

2. The instant application was a disguised appeal which sought to reopen matters already determined with finality by the Supreme Court. An application for review, was not intended to give a party an opportunity to appeal, or relitigate its case. Where such a review was sought, an applicant had to lay a basis, to the satisfaction of the court, that the application for review satisfied the set criteria.

Application dismissed; applicant to bear the costs of the application.