Whether the provisions of article 47 of the Constitution on the right to fair administrative action could be applied retrospectively

Kiluwa Limited & another v Business Liaison Company Limited & 3 others [2021] eKLR

Petition No. 14 of 2017

Supreme Court of Kenya

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

August 6, 2021

Reported by Chelimo Eunice

Constitutional Law – constitutional provisions - interpretation of constitutional provisions – interpretation of article 47 of the Constitution on the right to fair administrative action – whether the provisions of article 47 of the Constitution could require the further input of the legislature so as to attain prescriptive force – where the trial court relied on the provision of article 47 of the Constitution before the enactment of a legislation to give effect to the right to fair administrative action as envisaged in article 47(3) of the Constitution - whether in the absence of legislation, the High Court was divested of jurisdiction to review administrative action - retrospective or retroactive application of constitutional provisions - whether the provisions of article 47 of the Constitution could be applied retrospectively – Constitution of Kenya, 2010, articles 20(3) & 47.

Land Law – land tenure – classification of land – public land – what amounted to public land – whether un-alienated government land was public land – whether a foreshore felt within the category of a public land – whether any right to a foreshore would be conferred to a private entity – whether the government or a private entity could interfere with or limit the enjoyment of a public easement through acts of commission or omission - Constitution of Kenya, 2010, article 62; Survey Act, section 45; Survey (Amendments) Regulations, 1994, regulation 110; Government Lands Act (repealed), section 82.

Brief facts

The petitioners challenged the judgment and orders of the Court of Appeal delivered on November 11, 2016. The dispute revolved around three first-row beach adjoining three pieces of land (suit lands). By a constitutional petition lodged at the High Court, the appellants sought numerous declaratory, judicial review and injunctive orders against the respondents. It was the appellants’ claim, among others, that initially, between the first-row beach plots and the Indian Ocean’s high-water mark, there was a strip of land that was reserved for public use (reserve land). That the 3^rd respondent illegally demarcated from the reserve land and granted title to the 1^st respondent as a first allottee for a term of 99 years. That in the process of consolidating various parcels of land owned by the 2^nd respondent, the boundary of the consolidated plot was extended from its original location which resulted in the encroachment of a portion of the reserve land. They claimed that such actions were unlawful and a violation of their right to property and unrestricted access to the Indian Ocean sandy beach through the reserve land. By a decision delivered on October 13, 2015, the High Court allowed the petition.

Aggrieved, the 1^st and 2^nd respondents appealed to the Court of Appeal arguing, among others, that all the transfers affecting suit properties were commenced and concluded between 1989 – 1992 while the petition was filed over 20 years later, and the High Court Judge therefore erred in applying article 47(1) and (3) of the Constitution while failing to appreciate that the same was forward looking and not retrospective in nature. In a judgment delivered on November 11, 2016, the Court of Appeal allowed the appeal with costs and set aside the High Court’s decision and orders.

Dissatisfied by the Court of Appeal’s judgment, the appellants lodged the instant appeal. They challenged, among others, the Appellate Court’s finding that article 47 of the Constitution could not be applied retrospectively. They also urged that the Appellate Court failed to appreciate that there was sufficient evidence adduced showing that the reserve land was public land which was incapable of alienation. The respondents opposed the appeal challenging, among others, the jurisdiction of the Supreme Court to determine the appeal. They argued that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the 2010 Constitution and that the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the Commencement of the 2010 Constitution. They also submitted that the suit properties were un-alienated government land pursuant to which they were allocated and accused the appellants of unreasonable delay in bringing a claim against them.

Issues

1. Whether the provisions of article 47 of the Constitution on the right to fair administrative action could be applied retrospectively.
2. Whether in the absence of legislation giving effect to the right to fair administrative action, the High Court was divested of jurisdiction to review administrative action.
3. What amounted to public land?
4. Whether un-alienated government land was public land.
5. Whether a foreshore felt within the category of a public land.
6. Whether any right to a foreshore would be conferred to a private entity.
7. Whether the government or a private entity could interfere with or limit the enjoyment of a public easement through acts of commission or omission.

Held

1. The arguments by the respondents when challenging the jurisdiction of the Supreme Court to determine the appeal were baffling for two reasons. First, the jurisdiction of the High Court was never challenged at the Court of Appeal, nor was the issue raised in any manner at the two superior courts. Secondly, the basis upon which the jurisdiction of the Supreme Court was being impugned was not borne out of fact, in that, the dispute before the court had never been finalized by the Court of Appeal before the commencement of the Constitution. The judgment of the Court of Appeal which gave rise to the appeal was delivered on November 11, 2016. That being the case, the Supreme Court was properly seized with jurisdiction to entertain and determine the appeal.
2. Although the respondents relied on the Supreme Court’s decision in the case of Samuel Kamau Macharia v. Kenya Commercial Bank [2012] eKLR (Macharia case) to argue that the Constitution did not apply retrospectively, a clear reading of the court’s pronouncement left no doubt that the court did not out-rightly rule out the retrospective application of the Constitution. The court, however, cautioned that where the language of a particular provision in the Constitution did not contain even a whiff of retrospectivity, then such provision could not apply retroactively. Noteworthy, the court in other cases had gone ahead to identify a number of provisions in the Constitution which it considered relevant to the dispute before it, notwithstanding the fact that the questions before it had arisen out of a set of circumstances that had long crystallized before the promulgation of the Constitution. Such provisions were considered to be both backward and forward looking.
3. Article 47 of the Constitution was a Bill of Rights provision which was stated in deliberate and clear normative terms. It set out clear and un-ambiguous entitlements within the language of the Bill of Rights. They were expressed in normative terms as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. Contrary to the holding by the Court of Appeal, those were substantive entitlements whose enjoyment was not intended to be suspended by article 47(3) of the Constitution. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution. The supreme law required that such legislation provided for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action was already provided for in article 47(1) of the Constitution, being expedition, efficiency, lawfulness, reasonableness and procedural fairness. The effect of sub-article 3 was therefore to perfect the enjoyment of those rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action.
4. In that regard, the absence of legislation did not render a court helpless given the interpretative refuge afforded by article 20 (3) of the Constitution. Thus, the High Court correctly applied article 47 of the Constitution in addressing the original claim.
5. The assertions by both parties regarding the dates of completion of the transfer of the suit lands and the commencement of the erection of the wall had not been factually controverted. For a party to be time-barred from litigating its claim, such limitation of time had to be stated in the Constitution, statute or as a principle of common law. To be successfully raised against a litigant, a court had to determine when the time started running. In other words, the question as to when the cause of action arose had to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor were they evident on the face of the Appellate Court’s conclusions. It was not lost to the court that the gravamen of the appellants’ grievance was the allocation of the disputed land by the 3^rd respondent to the 1^st and 2^nd respondents and consequent erection of the wall thereon by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. Thus, there was no basis upon which the appellants could be said to have slept on their rights.
6. The status of the suit properties could only be determined by an examination of the relevant provisions of the Constitution and applicable statutes. Towards that end, article 62 (1) (a) and (i) provided that public land was inter alia, a land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date and all land between the high and low water marks.
7. Pursuant to section 45 of the Survey Act, the Survey (Amendments) Regulations 1994, were enacted. Regulation 110 thereof provided that coastal offshore reservation where un-alienated government land fronting on the area coast was being surveyed for alienation, a strip of land not less than 60 metres in width could normally be reserved above the high-water mark for government purposes provided that, if the interests of development require, the Minister would direct that the width of that reservation be less, than 60 metres in special cases.
8. Section 82 of the repealed Government Lands Act provided that a conveyance, lease or license under it ought not, unless otherwise expressly provided therein, confer any right to the foreshore. Therefore, un-alienated government land was public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). That notwithstanding the fact that the expression public land only came to the fore with the promulgation of the 2010 Constitution.
9. Article 62 of the Constitution clearly delimited the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of public tenure. The repealed Constitution used the term government instead of public to define such lands. Therefore, it was incorrect for the respondents to assert that the lands in question were un-alienated government land but not public land. It was even more inaccurate to argue that the said parcels had never been public land. Un-alienated government land remained public until it was privatized through allocation to individuals or other private entities.
10. Secondly, to the extent that the assertion by the appellants remained un-controverted, the additional portion of land which was allocated to the 2^nd and 1^st respondents was hived off the coastal foreshore by the 3^rd respondent. Such foreshore consisted of land lying between the low-water mark and the high-water mark plus an additional 60 metres above the high-water mark within the meaning of regulation 110 (1) of the Survey Regulations of 1994. Such land was reserved for government/public use.
11. Although article 62 (1) (l) of the Constitution made no reference to the 60 metres above the high-water mark, only limiting itself to the language of the high and low water mark. Article 62 (1) (n) of the Constitution provided for another category of public land as being any other land declared to be public land by an Act of Parliament in force at the effective date or enacted after the effective date, hence the relevance of regulation 110 (1) of the Survey Regulations of 1994 which was enacted before the effective date pursuant to section 45 of the Survey Act. Further, section 82 of the Government Lands Act (repealed) which predated the Survey Act, and under which the suit lands fell as un-alienated government land, out-rightly forbade the conferment of any right to the foreshore by a conveyance, lease or license.
12. Thirdly, the right of access to the ocean through the foreshore by members of the public or any other owner of land along the coast, being the appellants, whether for economic, recreational or aesthetic reasons, was a public right secured by a public easement. Such right was not acquired through a private treaty. It followed that a person or private entity who had encroached on the foreshore could not interfere with or limit the enjoyment of a public easement through acts of commission or omission. On the other hand, the government would interfere with or limit such easement only in promotion or protection of the public interest as guaranteed by the Constitution and the law.

Appeal allowed with costs being borne by the 1^st and 2^nd respondents.

Orders

1. Declaration issued that the 3^rd respondent acted illegally by allocating land parcel No. MN/1/5901 to the 2^nd respondent, which land he had partly curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110 (1) of the Survey Regulations of 1994.
2. Declaration issued that the 3^rd respondent acted illegally by allocating land parcel No. MN/1/5902 to the 1^st respondent, which land he had curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110 (1) of the Survey Regulations of 1994.
3. Declaration issued that the actions of the 3^rd respondent violated the appellants’ right to fair administrative action as guaranteed by article 47 of the Constitution.
4. Judgment of the Court of Appeal dated November 11, 2016 was set aside.
5. Judgment of the High Court dated October 13, 2015 was affirmed only to the extent consistent with and limited to the court’s declarations.
6. The 1^st and 2^nd respondents ordered to take immediate action to remove the offending wall and any other structures that they would have caused to be erected on land parcels No. MN/1/5901 and MN/1/5902.

Applicability of the doctrine of res judicata in constitutional litigation.

John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR

Petition 17 of 2015

Supreme Court of Kenya

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

August 6, 2021

Reported by Beryl Ikamari

Constitutional Law - fair hearing - right to be heard in court proceedings - where a constitutional petition was concluded without a consideration of the merits by the court - whether parties were afforded a reasonable opportunity to be heard where High Court proceedings were brought to an end because a plea of res judicata was successfully raised - Constitution of Kenya, 2010, article 50.

Civil Practice and Procedure - res judicata - elements that a party would need to establish in order for the doctrine of res judicata to be applicable - parties litigating under the same and same issues - considerations of the court in determining whether parties were litigating under the same title and whether the issues were the same - whether a determination arising from a judicial review application could form the basis of a plea of res judicata raised in a constitutional petition- Civil Procedure Act, cap 21, section 7.

Constitutional Law - applicable procedural law - res judicata - the extent to which the doctrine of res judicata was applicable to constitutional litigation.

Brief facts

A Bilateral Agreement on Maritime Freight Management entered into on May 30, 200, between the Democratic Republic of Congo (DRC) Government and the Kenyan Government, provided for the Kenyan Government through the 1^st to 3^rd respondents, to collect taxes on freight charges of goods imported to and on transit to the DRC through the port of Mombasa.  DRC entered into the agreement through its Ministry of Information, Transport and Communication, acting through the 4^th Respondent, a body known as Office De Gestion Du Freit Maritime (OGEFREM) while Kenya entered into the agreement through its Ministry of Information, Transport and Communication. The agreement provided for the assessment, levying and collection of a commission to the tune of 1.8% of the gross freight charges on the imports on behalf of Office De Gestion Du Freit Maritime (OGEFREM).

The parties' agreement was to remain in force for a three-year period subject to a on-off renewal for a further period of three years. It was alleged that the agreement expired on May 29, 2003 and was renewed on December 18, 2003, after the lapse of seven months outside the agreement renewal period.

On October 26, 2012, the 4^th respondent issued circulars to shippers, forwarders and agents stating that effective October 29, 2012, payments for Fiche Electronique de Renseigment Certificate (FERI) as well as Certificate of Destination (COD) were to be made to its account in US Dollars subject to all documents being submitted and validated at its offices. The requirements introduced new charges at a rate of USD 100.

The appellants stated that the requirements were in breach of the Bilateral Agreement. They stated that the payments could only be collected by the 1^st respondent on behalf of the DRC Government but not by payment to a private individual’s bank account in Italy, as the receipts issued did not bear the Coat of Arms of the DRC Government or the address of the recipient.

The dispute was entertained by the High Court. The High Court made the finding that the petition was res judicata because of a previous decision by the High Court in Judicial Review No 130 of 2011 (JR No 130 of 2011). In Judicial Review No 130 of 2011, the court held that the imposition of FERI and COD had a legal basis. The High Court held that the judgment issued was a judgment in rem as opposed to one that was in personam or inter parties and it operated against the parties to the petition.

On appeal, the Court of Appeal dismissed the appeal and found that the High Court was justified in holding that the suit was res judicata.

Issues

1. Whether the parties were given a reasonable opportunity to be heard before the High Court made its determination.
2. For purposes of establishing a plea of res judicata, when would parties be said to be litigating under the same title?
3. Whether the doctrine of res judicata was applicable to constitutional litigation.
4. Whether the doctrine of res judicata was applicable where a constitutional petition included issues that had not previously been determined in a cause of action.
5. Whether a determination arising from a judicial review application could form the basis of a plea of res judicata raised in a constitutional petition.

Held

1. In considering whether the High Court procedurally considered the plea of res judicata, it was necessary for the Supreme Court to consider whether the appellants were accorded a fair hearing and whether that opportunity was reasonable. To do that, it was necessary to examine the court record of the proceedings before the High Court. On November 5, 2013, the appellants filed an application seeking inter alia conservatory orders to restrain the respondents from levying the disputed fees. On the same day, the application was placed before the duty court and the appellants were given an opportunity to address the court. The court certified the matter as urgent and directed the appellant's counsel to serve the respondents with the application for hearing on November 14, 2013. The 3^rd respondent filed grounds of opposition to oppose the  application on the basis of the plea of res judicata. The Attorney General also filed grounds of opposition raising the same objection. 
2. On December 4, 2013, all parties appeared before the court and were each granted opportunities to address the court. At that point, the appellants felt that there had little time to address the plea of res judicata and the parties were unable to conclude their oral submissions. The matter was stood over to January 21, 2014. On that date in January, the parties finalised their oral submissions and the appellants were granted an opportunity to counter the respondent's submissions. Thereafter on July 31, 2014, the court rendered its ruling where it found that the petition was res judicata. It was evident that the appellants were not condemned unheard.
3. The court record of the High Court proceedings demonstrated that the court accorded the appellants two justiciable elements of a fair hearing. The elements were an opportunity to be heard which amounted to a reasonable opportunity.
4. The doctrine of res judicata was provided for under section 7 of the Civil Procedure Act. It was a doctrine to the effect that once the rights of parties had been determined judicially, such edict stood as a conclusive statement as to those rights. It was apparent that the doctrine was applicable to matters of all categories including issues of constitutional rights.
5. The doctrine of res judicata allowed a litigant only one bite at the cherry. It prevented a litigant or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It served the cause of order and efficacy in the adjudication process. It ensured that litigation came to an end and prevented a multiplicity of suits.
6. Courts differed on whether the doctrine of res judicata was applicable to constitutional litigation. Some courts were of the view that the doctrine of res judicate should only be invoked in constitutional matters in the clearest of cases and where a party was relitigating the same matter before the constitutional court and where the court was called upon to redetermine an issue between the same parties on the same subject matter. It should be sparingly invoked in constitutional matters. Other courts stated that the doctrine of res judicata applied with equal force to constitutional litigation though it was important that caution was exercised lest a person whose rights were being violated afresh was unjustly locked out from the wheels and seat of justice.
7. A finding that the doctrine of res judicata did not apply to constitutional litigation would mean that the doctrine could lose much of its legitimacy and validity. Constitutional tenets permeated all litigation, starting with the application of article 159 of the Constitution to both civil and criminal litigation and its application to all procedural statutes.  A finding that res judicata was inapplicable to constitutional litigation would mean that whenever parties needed to circumscribe the doctrine, they would only need to invoke some constitutional provision.
8. Though the doctrine of res judicata served the orderly administration of justice it should not cause injustice. Exemptions to the doctrine of res judicata should be permissible where there was real potential for substantial injustice if a constitutional matter was not heard on its merits. In order to arrive at such a conclusion on injustice, the court would have to examine the entirety of the circumstances and address factors relating to the exercise of such discretion.
9. For res judicata to be invoked in a civil matter the following elements had to be demonstrated:

1. There was a former judgment or order which was final;
2. The judgment or order was on merit;
3. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
4. There had to be between the first and the second action identical parties, subject matter and cause of action.

10. The parties in Judicial Review No 130 of 2011 were not the same as the parties to the constitutional petition. The appellants in the petition and those in JR No 130 of 2011 were similar in character and in the nature of business they engaged in. They were litigating under the same title because they had the same rights and interests and they raised the same complaints about FERI and COD. The conclusion of the High Court and the Court of Appeal on the question as to whether the parties were litigating under the same title were not erroneous.
11. On whether the issues in the petition were substantially and directly in issue in JR No 130 of 2011 it was clear that in both suits, the parties were challenging the validity, scope and legality of the agreement which was the basis for the requirement of the two certificates (FERI & COD), as well as the authority of the respondents to continue levying freight charges. The issues raised were similar but the appellants raised an additional issue on the need for Parliamentary approval before the bilateral agreement could gain the force of law. They also said that the FERI and COD certificates threatened to infringe on their property rights. The issues on parliamentary approval and property rights were not considered in the judicial review application. Therefore, on those grounds, the principle of res judicata was wrongly involved.
12. Judicial review was generally concerned with the legal and procedural validity of a decision and it did not allow the court to examine the evidence and form its own views about the substantial merits of the case.  In a constitutional petition the court looked beyond the process and it delved into the merits of a matter of a decision. In determining a judicial review application, the High Court exercised only a fraction of the jurisdiction it had to determine a constitutional petition. Therefore, a determination of a judicial review application could not be termed as final determination of issues under a constitutional petition.
13. After hearing a constitutional petition, a court could arrive at conclusions that were the same as those it would have made in a judicial review application. However, the considerations, procedures and reliefs that the court could grant were different. The Court of Appeal erred in holding that the doctrine of res judicata applied to the petition.

Petition of Appeal allowed.

Orders: -

1. The judgment and order of the Court of Appeal dated July 31, 2015 was quashed and set aside.
2. The ruling and order of the High Court dated July 31, 2014 was quashed and set aside.
3. For the avoidance of doubt, the ruling of the High Court was null and void.
4. The matter was remitted to the High Court for determination on its merits.
5. Each party was to bear its own costs.

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

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

Reference 1 of 2020

Supreme Court of Kenya

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

July 16, 2021

Reported by Beryl Ikamari

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

Brief facts

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

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

Issues

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

Held

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

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

Reference dismissed.

Cases

 East Africa

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

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

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

Statutes

 East Africa

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

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

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

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

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

Petition (Application) 4 of 2021

Supreme Court of Kenya

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

July 16, 2021

Reported by Beryl Ikamari

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

Brief facts

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

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

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

Issue

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

Held

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

Application dismissed.

Orders: -

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

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

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

Petition No. 9 of 2020

Supreme Court of Kenya

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

July 16, 2021

Reported by Kakai Toili

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

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

Brief facts

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

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

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

Issues

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

Held

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

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

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

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

Petition (Application) No. 5 of 2018

Supreme Court of Kenya

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

July 16, 2021

Reported by Kakai Toili

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

Brief facts

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

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

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

Issue

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

Held

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

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

Orders

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

Circumstances where Supreme Court has the Jurisdiction to Determine an Appeal from the Court of Appeal as of Right.

Surya Holdings Limited & 2 others v CFC Stanbic Bank Limited & 2 others [2021] eKLR

Supreme Court of Kenya

Petition No. 8 of 2019

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

July 16, 2021

Reported by Ribia John

Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeal to the Supreme Court as of right in cases involving the interpretation of the Constitution - under what circumstances would the Supreme Court have the jurisdiction to determine an appeal from the Court of Appeal as of right in cases involving the interpretation and application of the Constitution - Constitution of Kenya, 2010 article163(4)(a); Supreme Court Rules, 2012 rules 9 and 33(1)(a)and(2) (repealed).

Brief Facts

The 1^st and 2^nd appellants were guarantors to a facility agreement between the 3^rd appellant and the 1^st respondent. The 3^rd appellant defaulted in its repayment obligations to the 1^st respondent. That led to the appointment of receivers on February 10, 2014, in accordance with the power annexed to the debenture, as issued by the 3^rd appellant. That appointment was challenged by the appellants at the High Court. By a Ruling dated June 11, 2014, the High Court confirmed the appointment of the receivers, but restrained them from selling the charged properties, and ordered the 3^rd appellant to continue operating as a going concern in the interest of all the parties. Later, on March 30, 2016, the High Court in Winding up Cause 12/2013 issued Winding up Orders against the 3^rd appellant.

By a ruling dated October 13, 2016, the Court found that the appellants had made an admission that the 3^rd appellant owed the 1^st respondent a pre-receivership sum of US$ 4,028,194.30 and Kshs. 2,706,966.13 together with interest thereon. The court further directed the parties to agree on a forensic audit. The parties agreed on the auditor, Deloitte Consulting Group. The audit report was duly filed in court, and the parties addressed the court extensively on it. The High Court found that the 3^rd appellant owed the 1^st respondent a sum of USD 4,028,194.30 and Kshs. 2,706,994.13, together with contractual interest as contained in the facility agreement executed between the 3^rd appellant and the 1^st respondent, being the pre-receivership debt.

Aggrieved the appellants filed an appeal before the Court of Appeal. The court of appeal found that the orders granted by the High Court did not constitute a wrong exercise of judicial discretion. As such, the Court of Appeal did not interfere with the orders made by the High Court and dismissed the appeal with costs to the respondents. Aggrieved, the appellants filed the instant appeal.

Issues

1. Under what circumstances would the Supreme Court have the jurisdiction to determine an appeal from the Court of Appeal as of right in cases involving the interpretation and application of the Constitution (under article163(4)(a) of the Constitution).

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 163(4)(a)

163. Supreme Court

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

(a)      as of right in any case involving the interpretation or application of this Constitution;

Held

1. Under article 163(4)(a) of the Constitution of Kenya, 2010, the Supreme Court had jurisdiction to entertain appeals from the Court of Appeal as of right in any case involving the interpretation or application of the Constitution. An appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. An appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
2. The pleadings before the High Court confirmed that the constitutional issues raised before the Supreme Court were never pleaded and also that the trial court did not interpret or apply the same. The Court of Appeal, just like the High Court did not interrogate or apply any of the articles of the Constitution alleged to have been violated, that was, articles 25 and 50 of the Constitution.
3. Several issues were pending determination before the trial court. There was no substantive determination by the superior courts below of a Constitutional nature, to warrant the Supreme Court to exercise its jurisdiction under article 163(4)(a) of the Constitution. Non-determination of the constitutional issues raised before the Court of Appeal, that was, violation of their right to be heard pursuant to articles 25 and 50 of the Constitution, did not form a basis for the instant court to entertain the instant appeal under article 163(4)(a) of the Constitution. It would have been pre-mature for the Court of Appeal to make a finding on the constitutional issue raised since the trial court had not fully determined the rights of the parties before it. The Supreme Court lacked the jurisdiction to entertain the instant appeal.

The petition of appeal dismissed. The appellants were to bear the respondents’ costs.

Forest land is not available for reallocation.

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

Petition 37 of 2019

Supreme Court of Kenya

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

July 16, 2021

Reported by Beryl Ikamari

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

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

Brief facts

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

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

The appellant lodged an appeal at the Supreme Court.

Issues

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

Held

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

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

Mandate of the State Progressive Realization of the Right to Accessible and Adequate Housing.

William Musembi 13 others v Moi Educational Centre Co. Ltd & 3 others [2021] eKLR

Petition No. 2 of 2018

Supreme Court of Kenya

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

July 16, 2021

Reported by Ribia John

Constitutional Law – fundamental rights and freedoms - violation of fundamental rights and freedoms – right to property - right to inherent human dignity and security of the person – evictions - illegally acquired property - whether the constitutional guarantees of the right to property extend to property that had been unlawfully acquired - whether the demolition of the petitioners’ houses and property and their forced eviction by the 1st and 2nd respondents without a valid court order was a violation of their fundamental right to inherent human dignity and security of the person  – Constitution of Kenya, 2010 articles 28, 29(c) and 40.

Constitutional Law – social and economic rights – progressive realization of social and economic rights – obligations of the State – what were the obligations of the State in applying economic and social rights – whether the mandate of the progressive realization of economic and social rights extent by the State extended to private entities - Constitution of Kenya, 2010 article 43.

Constitutional Law – fundamental rights and freedoms – violation of fundamental rights and freedoms – remedies – award of damages – considerations – award of damages for constitutional violations vis-à-vis award for damages in tortious or civil liability - whether the questions and issues that a court has to consider in order to make an award of damages with regards to constitutional violations was different to what the court would consider in tortious or civil liability claims  – Constitution of Kenya, 2010 article 23.

Brief Facts

At the High Court, the appellants/petitioners filed a petition concerning the alleged forceful and illegal eviction of the petitioners, who were inhabitants of City Cotton and Upendo villages, two informal settlements within the County of Nairobi.

The petitioners’ claim was that they had settled on the suit property sometime in 1968, which they contended, was alienated public land, and that since settlement, they had constructed semi-permanent houses and business structures; had been supplied with social amenities and services such as water and electricity, and had been legally licensed to carry on and operate businesses on the suit property. They also alleged that their children attended nearby public primary schools.

In its Judgment delivered on  October 14,2014, the High Court found that the demolition of the petitioners’ houses and their forced eviction from the suit property without providing them and their children with alternative land or shelter was a violation of their fundamental right to inherent human dignity, security of the person and access to adequate housing, a violation of the fundamental rights of children guaranteed by article 53 of the Constitution of Kenya, 2010 (Constitution) and a violation of the rights of elderly persons guaranteed by article 57. In addition to those declarations, the Court awarded the Petitioners, damages.

Aggrieved by the decision of the High Court, the respondents filed an appeal, Nairobi Civil Appeal No.363 of 2014. The Court of Appeal set aside parts of the decision of the High Court, and the appeal was rendered partially successful. The appellate court substituted the judgment with a declaration that the forced evictions and demolition of the petitioners’ houses without a valid court order was a violation of their right to inherent human dignity and security of the person. The appellate court found that there was no evidence placed before the trial court to enable it assess damages and that whereas it was the duty of the State to take measures, (legislative, policy and other measures) to achieve the progressive realization of the rights guaranteed under article 43 of the Constitution, it was not under a positive obligation to provide the evictees with housing.

Aggrieved by the judgment and orders of the appellate Court, the appellants/petitioners filed the instant petition of appeal arguing that the learned Judges of the Court of Appeal erred in law and in fact in failing to find that the 1^st respondent violated the petitioners’ right to adequate housing and for not awarding damages.

Issues

1. Whether the constitutional guarantees of the right to property extend to property that had been unlawfully acquired.
2. What were the obligations of the State in applying article 43 rights (economic and social rights – provided in article 43 of the Constitution).
3. Whether the mandate of the progressive realization of economic and social rights extend by the State extended to private entities?
4. Whether the questions and issues that a court had to consider in order to make an award of damages with regards to constitutional violations was different to What the court would consider in say, tortious or civil liability claim.
5. Whether the demolition of the petitioners’ houses and property and their forced eviction by the 1^st and 2^nd respondents without a valid court order was a violation of their fundamental right to inherent human dignity and security of the person.
6. Whether the demolition of the petitioners’ houses and property and their forced eviction by the 2^nd and 3^rd respondent was a violation of the fundamental rights of children guaranteed under article 53 of the Constitution.

Relevant Provision of the Law

Constitution of Kenya, 2010

Article 43

43.     Economic and social rights

(1)       Every person has the right—

(a)      to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

(b)      to accessible and adequate housing, and to reasonable standards of sanitation;

(c)       to be free from hunger, and to have adequate food of acceptable quality;

(d)      to clean and safe water in adequate quantities;

(e)       to social security; and

(f)        to education.

(2)       A person shall not be denied emergency medical treatment.

(3)       The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

Held

1. The constitutional guarantees of the right to property ownership and entitlement under articles 40 of the Constitution were only in relation to property that had been legally acquired, and did not extend to property that had been unlawfully acquired. In that regard, article 40(6) of the Constitution was instructive and provided that the rights under article 40 did not extend to any property that had been found to have been unlawfully acquired.
2. The High Court correctly held that the issue of the legality of the letter of allotment would be better determined by the National Land Commission as provided under section 152(C) of the Land Act, and which provision further allowed for the procedure to be followed in the event of an eviction(s).
3. The procedures enacted in the amendments to the Land Act, through the Land Laws (Amendments) Act No. 28 of 2016, amended the provisions of the Land Act to include the powers of the National Land Commission in land eviction matters, and were only enacted in September, 2016, when the instant matter had already been instituted and determined by the High Court. The High Court also correctly held that the relevant court seized of jurisdiction over land matters – the Environment and the Land Court – should have determined that question.
4. Forced evictions generally constituted a violation of fundamental rights and freedoms and an abuse of inherent human rights and dignity under article 43 of the Constitution, including, but not limited to, the right to the highest attainable standards of health and healthcare services, accessible and adequate housing, freedom from hunger and to adequate food, clean and safe water, social security and education. The onus of ensuring that those rights and freedoms were attained and provided for fell squarely under the ambit of the State; and that it was the obligation of the State to ensure that those rights and freedoms were not limited without reasonable justification in an open and democratic society based on human dignity, equality and freedom as provided for under article 24(1) of the Constitution.
5. In ensuring that social and economic rights were protected, the State had to strike a delicate balance between the rights of those that were most vulnerable in the society and those that were in economic advantage. The State thus had to ensure that in the protection of the rights of an individual or group of persons, it did not inadvertently abuse the rights of other individuals or other groups of persons. There was no abuse of the rights of the parties and thus, that the State’s negative obligation not to abuse or violate those rights and fundamental freedoms was carried out.
6. The eviction of the petitioners was violent and did not accord with the expected constitutional obligation of the State to ensure that those in informal settlements were treated with the dignity that was conferred on article 28 of the Constitution. The petitioners were evicted when the 1^st respondent had already acquired certain private rights over the suit property but they entered the land well aware of the presence of the petitioners who occupied the land when it was public land. Even without prescriptive rights, where the landless occupied public land and established houses thereon, they acquired no title to the land, but a protectable right to housing over the same. The participation of State agents in violent evictions only pointed to the fact that the 1^st respondent ultimately acquired favoured status outside the law in acquiring ultimate and total control of the suit property at the cost of violation of the rights of the petitioners including the elderly and children.
7. The principles laid out by the High Court in Mitubell and Satrose Ayuma which were crystallised in law in section 152(a) to (h) of the Land Act were applicable to the instant matter. The principles included the duty to give notice in writing; to carry out the eviction in a manner that respected the dignity, right to life and security of those affected; to protect the rights of women, the elderly, children and persons with disabilities and the duty to give the affected persons the first priority to demolish and salvage their property. Those principles flowed from United Nations Guidelines on Evictions: General Comment No.7 were intended to breathe life into the right to dignity and the right to housing under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights   respectively.
8. The trial court was correct to hold that it was redundant to ask whether the eviction of the petitioners resulted in a violation of their rights under the Constitution. Even the ordinary man in the street, confronted with the facts before him/her, would answer the question in the affirmative
9. The Court of Appeal, whose judgment embodied the generalities of the doctrine of progressive realization as pronounced in General Comment No. 4 of the Committee on Economic, Social and Cultural Rights, correctly held that it was the responsibility of the State to ensure that the rights guaranteed in article 43 of the Constitution were realized progressively. The obligation to ensure the rights of petitioners under article 43 thus fell on the State, and that the State was imbued with the duty to ensure that those rights were realized, in consideration of prevailing circumstances such as the availability of resources, or the implementation of policy and structural programs to ensure that the rights were realized.
10. The mandate to ensure the realization and protection of social and economic rights did not extend to the 1^st respondent, a private entity. Even though the 1^st respondent had a negative obligation to ensure that it did not violate the rights of the petitioners, it was not under any obligation to ensure that those rights were realized, either progressively or immediately. The Court of Appeal thus correctly held that the progressive realization of article 43 rights (economic and social rights) was the mandate of the State, and that obligation did not extend horizontally to private entities. Private entities had the obligation, under article 20(1) not to violate article 43 rights as non-violation of all rights in the Bill of Rights applied both horizontally and vertically and bound both the State and all persons.
11. Although the Court of Appeal conceded that it was within the mandate of the trial court to make an order for the award of damages for constitutional violations against the petitioners by the respondents, it did not however, show how the award, as issued, went against the provisions of article 23(3) of the Constitution. It had to be shown or established that the judge proceeded on the wrong principle or misapprehension of the evidence to arrive at a disproportionate award.
12. There was sufficient evidence that was presented before the trial court which enabled it to arrive at the decision that it did. With regard to the 1^st respondent, they admittedly stated that they had participated in, and engaged with the 2^nd respondent in the unlawful and illegal demolition of property belonging to and eviction of the petitioners from the suit property. The evidence presented before the trial court was that the demolition and evictions were carried out without lawful court orders, that the evictions and demolition were carried out in a manner that violated the petitioners’ right to human dignity and security, and that there was a violation of their rights to exercise and enjoy social and economic rights pronounced under article 43, as read together with articles 53 and 57 of the Constitution.
13. The Court of Appeal in disturbing the award of damages issued by the trial court did not also show how the court abused its discretionary powers to award damages, or that the court exercised its discretion whimsically or capriciously. The appellate court also held that an appellate Court should not disturb an award of damages on the mere notion that if it had tried the matter in the first instance, it would have awarded differently. The question therefore should not have been what it would have awarded, but rather whether the trial court had proceeded on the wrong principle. An appellate court in deciding whether it was justified in disturbing the quantum of damages awarded by a trial court in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of that, the amount was so inordinately low or so inordinately high that it had to be a wholly erroneous estimate of the damage.
14. what the Court of Appeal failed to consider, in our opinion, was that the questions and issues that a Court had to consider in order to make an award of damages with regards to constitutional violation was manifestly different to what the court would consider in say, tortious or civil liability claim. In the latter, the issues were clear cut and quantification of the appropriate award was in most instances, straight forward. The same, however, was not true of constitutional violation matters, such as the instant one. Quantification of damages in such matters did not present an explicit consideration of the issues; other issues such as public policy considerations also come into play.
15. A court obligated and mandated in evaluating the appropriate awards for compensation in constitutional violations did not have an easy task; there was no adequate damage standard that had been developed in our jurisprudence that recognized that an award for damages in constitutional violations was quite separate and distinct from other injuries. In that regard, the Court of Appeal was unclear on what other material that the petitioners needed to present before the trial court to establish that there was a violation of their constitutional rights by the respondents, and that the court therefore abused its discretionary powers in issuing the award of damages.
16. There was a working formula, approach and guidelines to unravel problems brought about by the Constitution which was with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. Courts when interpreting the Constitution owe that interpretative framework of its interpretation to the Constitution itself.
17. It was indeed a sad state of affairs that ten years into the promulgation of the Constitution in 2010, the State sought to rid itself of its mandate and obligations by hiding behind the perceived inconsistencies sometimes presented in the Constitution, and in the present context, the provisions of article 21(2) of the Constitution, and to abdicate its role in ensuring that article 43 rights were realized. Article 21(2) did not protect the State from realizing those rights, but rather sought to ensure that even though those rights were not immediately achieved, there was at least some modicum of effort by the State to realize those rights. There should have been continued concerted efforts by the State in the progressive realization of those rights and therefore, the State should have taken deliberate steps, both immediately and in the future, towards the full realization of the rights.
18. Policy and legislative formulation and lack of adequate resources had been the reasons given by the State in the realization of article 43  of the Constitution rights. It was evidenced as such; in October 2009, the Ministry of Lands formulated the Eviction and Resettlement Guidelines, which provided that forced evictions were not only illegal and unjust, but also counterproductive to economic growth and development. The guidelines also provided for insights and procedures on how to deal with the issue of evictions and resettlement by the State, noting that the State was under an obligation to provide alternative resettlement to those that had been evicted.
19. In 2012, a Bill was presented in the National Assembly titled the Evictions and Resettlement Procedures Bill No.44 of 2012. The Bill had never gone past the 1^st Reading – on September 12, 2012. The Senate also introduced the Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill No.27 of 2018. The Bill proposed that each County should have an integrated development plan and to establish mechanisms to monitor and promote adherence to article 43 of the Constitution. It had not gone past the 1^st Reading – on September 25, 2018. Those may be just some of the few, if not only, legislative and policy structures that the State had sought to come up with in the past few years.  Nevertheless, few amendments had been made to land laws, and in particular the Land Act, through the Land Laws (Amendments) Act No. 28 of 2016, which amended sections 152 of the Land Act, to include provisions for the procedures of eviction of illegal settlers in both public and private land. Those amendments were made following the decision of the High Court in Satrose Ayuma and indeed the language of the amendments to section 152(a)to(g) was borrowed directly from that decision. Although the State could therefore seem to be at the forefront in the realization of article 43 of the Constitution rights, more was yet to be done, especially in the realization aspect. As for the enforcement of those rights, nothing much could be achieved if the legislative and policy processes were at the nascent stage.
20. Those acts by the State could be regarded and considered by some, as acts of regression, which ended up depriving the people of the rights that they should be enjoying. They were a contradiction to the progressive realization principle and constituted a violation of those rights. Those acts, unless they were limitations to the realization of those rights which were justifiable and reasonable in accordance with article 24(1) of the Constitution, were counter-intuitive to the realization of social economic rights under article 43 of the Constitution. The State had to take a more drastic and purposive approach to its mandate and obligations in ensuring that the rights to the people of Kenya were not violated, or in the very least, that those rights were not deprived or denied.

Appeal partly allowed.

Orders:

1. A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 1^st and 2^nd respondents without a valid court order was a violation of their fundamental right to inherent human dignity and security of the person guaranteed under articles 28 and 29(c) of the Constitution.
2. A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2^nd and 3^rd Respondents was a violation of their fundamental right to inherent human dignity, security of the person, and to accessible and adequate housing guaranteed under article 43 of the Constitution
3.  A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2^nd and 3^rd respondent was a violation of the fundamental rights of children guaranteed under article 53 of the Constitution.
4.  A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2^nd and 3^rd respondent was a violation of the fundamental rights of elderly persons guaranteed under article 57 of the Constitution.
5.  The 1^st respondent were to pay a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs.150,000) to each of the petitioners.
6.  The State was to pay a sum of Kenya shillings One Hundred Thousand (Kshs.100,000) to each of the petitioners.
7.  Costs awarded to the petitioners.

Computation of time for actions before the Supreme Court

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

Application No. 4 (E006) of 2021

Supreme Court of Kenya

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

July 16, 2021

Reported by Chelimo Eunice

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

Brief facts

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

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

Issues

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

Held:

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

Application dismissed with costs.