The Declaration of an Act as Unconstitutional by the Courts did not Prohibit Parliament from Subsequent Enactment of Law that would Repeal the Impugned Unconstitutional Act.

Institute of Social Accountability & another v National Assembly of Kenya & 3 others [2021] eKLR

Petition No. 1 of 2018

Supreme Court of Kenya

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

August 6, 2021

Reported by John Ribia

Evidence Law – judicial notice – judicial notice of the Hansard – applicability of the Hansard in proceedings before a court of law - whether courts could make reference to the Hansard while making judicial determinations.

Constitutional Law – separation of powers – Legislature – parliamentary privilege – extent of parliamentary privilege - whether parliamentary privilege extended to acts that could be considered a violation of the Constitution.

Legal Systems – Acts of Parliament – constitutionality of Acts of Parliament – where an Act had been declared unconstitutional – whether the declaration of a law as unconstitutional by the courts prohibited Parliament from subsequent enactment of law that would repeal the impugned unconstitutional Act.

Civil Practice and Procedure – appeals – hierarchy of courts – where an issue was pending before the High Court but a party was seeking determination of the issue in a higher appellate court - whether a party could seek determination of a matter that was still pending in the High Court at the Supreme Court.

Brief Facts

The petitioners moved to the Supreme Court vide a petition of appeal that sought to overturn the judgment and orders of the Court of Appeal save for the declaration that sections 24(3)(c) and (f) and 37(1)(a) of the Constituencies Development Fund Act, 2013 violated the principle of separation of powers. In essence, they sought to invalidate the Constituency Development Fund Act 2013 as amended by the Constituencies Development Fund (Amendment) Act 2015 for various reasons stated in the petition. On its part, the 1^st respondent filed a notice of cross appeal that sought to uphold the Court of Appeal’s decision.

The petitioners filed an application that sought leave to attach additional evidence, being copies of the Hansard which were not available to them at the time of filing the petition of appeal.  The petitioners claimed that the additional evidence removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit and the respondents could easily respond to and the Court could as well take judicial notice of the evidence. Further, that the additional evidence fit the issues framed in the petition relating to the Constituency Development Fund Act offending the division of functions, principles of public finance and division of revenue.

The respondents objected to the application on grounds that that the additional evidence was not directly relevant to the matter and that the petitioners should not be allowed to patch up points that they had not raised at the trial court at the appellate court.

Issues

1. Whether courts could make reference to the Hansard while making judicial determinations.
2. Whether parliamentary privilege extended to acts that could be considered a violation of the Constitution.
3. Whether the declaration of a law as unconstitutional by the courts prohibited Parliament from subsequent enactment of law that would repeal the impugned unconstitutional Act.
4. Whether a party could seek determination of a matter that was still pending in the High Court at the Supreme Court.

Held

1. Under section 60(1)(b) of the Evidence Act, the courts had to take judicial notice of the general course of proceedings and privileges of parliament, but not the transactions in their journals. It was not uncommon for courts to make reference to the Hansard in making their determinations as they had done in the past. As elected representatives of the citizens, there was public interest in allowing citizens to access proceedings of Parliament which included broadcast to the public particularly under the dispensation of the Constitution of Kenya, 2010.  Such proceedings were reduced into a Hansard that was readily accessible to the public which could explain why the petitioners had ready access to it, notwithstanding that it was not an original or a certified copy.
2. Parliament in Kenya could not enjoy privilege, immunities and powers which were inconsistent with the fundamental rights guaranteed in the Constitution. Thus, whereas parliamentary privilege was recognized, it did not extend to violation of the Constitution hence Parliament could not flout the Constitution and the law and then plead immunity; where a claim to parliamentary privilege violated Constitutional provisions, the court’s jurisdiction would not be defeated by the claim to privilege; that the concept of statutory finality did not detract from or abrogate the Court’s jurisdiction in so far as the complaints made were based on violation of Constitutional mandates or non-compliance with rules of natural justice; that whereas the people of Kenya gave the responsibility of making laws to Parliament, and such legislative power had to be fully respected, the courts could however interfere with the work of Parliament in situations where Parliament acted in a manner that defied logic and violated the Constitution.
3. The parliamentary privileges and immunities were not absolute in the event of a valid grievance by a litigant based on the violation of the Constitution. The petitioners had brought action against the National Assembly alleging infringement of the Constitution. At the instant juncture, before the appeal was heard, the court could not say that Parliament had violated the Constitution in debating or expressing itself on any legislative action. That issue had to await the hearing and determination of the appeal and parties allowed to respond to the new evidence, if at all it was eventually admitted.
4. The proposed additional evidence was subject to litigation before the High Court in which the petitioners were involved. There was no justification for destabilizing the same to enable the Supreme Court to render itself, as the apex court, on an issue that could otherwise end up before it using the normal litigation and appellate channels. The evidence sought to be introduced would be best interrogated in those pending litigations before the High Court and subsequently through appeal should it have come to that.
5. The relevance of the debates to the appeal was not readily apparent to the deponent. The instant proceedings did not relate to the Constitutionality of the National Government Constituency Development Fund and the Division of Revenue Bill 2021. A perusal of the issues for determination and reliefs sought in the petition of appeal and the notice of cross appeal before the Supreme Court revealed that the remedies sought related to the constitutionality of the Constituency Development Fund Act, 2013.
6. While the High Court had declared the Constituency Development Fund Act as unconstitutional, the order of invalidity was suspended for a period of 12 months and the National Government was allowed to remedy the defect within the suspension of invalidity period or by repeal whichever came first. That did not prevent Parliament from subsequent enactment of law that would repeal the impugned Constituency Development Fund Act 2013. The National Government Constituency Development Fund Act was enacted in that context.
7. The Constitution gave recourse for any party to challenge the Constitutionality of any laws to the extent of the contravention. The petitioners were engaged in challenging the National Government Constituency Development Fund Act before the High Court as alluded to earlier in the ruling.
8. The additional evidence should have been admitted. Introducing evidence seven years after the time the Constituency Development Fund Act was enacted in 2013 and to seek that such evidence be considered in determining the Constitutionality of the 2013 Statute was quite inappropriate as it not only introduced fresh facts but also introduced them at the penultimate stage of the proceedings before the apex court. That was compounded by the fact that the main appeal was ready for hearing. The interests of justice were better served in having the appeal disposed with expeditiously.

Application dismissed, costs would abide with the outcome of the main appeal

Extension of time is an Equitable remedy to be issued at the Discretion of the Court.

County Executive of Kisumu v County Government of Kisumu & 8 others

Civil Application No 3 of 2016

Supreme Court of Kenya

M Ibrahim, S Wanjala SCJJ

April 12, 2017

Reported by Phoebe Ida Ayaya

Civil Practice and Procedure – extension of time – application for extension of time within which to file an appeal to the Supreme Court – grounds for allowing extension of time within which to file an appeal- the circumstances in which a court may grant orders for extension of time to litigants-whether the Applicant could rely on the Civil Procedure Rules when making his application to extend time vis a vis the regime of law that governed proceedings before the Supreme Court- whether there would be any prejudice suffered by the Respondents if the extension was granted - Civil Procedure Rules order 50 ; Supreme Court Rules rule 33(6)

Brief facts

Aggrieved by a decision of the Court of Appeal, the Applicant filed a notice of appeal at the instant Court on October, 2015. The notice of appeal was accompanied by a letter addressed to the Registrar requesting for typed copies of the proceedings and the Judges’ notes, which documents formed part of the record of appeal as a mandatory requirement. The typed copies of the proceedings were however, only furnished to the Applicant on December 4, 2015, outside the time limitation period provided by the Rules of the Court for filing an appeal. A certificate of delay by the Deputy Registrar was supplied on December 16, 2015. Hence, it was submitted that the delay was due to reasons beyond the Applicant’s control.

The application was also based on the ground that it was in the best public interest that the appeal herein be heard for the enrichment of jurisprudence. The appeal had been brought by a State organ as against another and as such, it was in the best public interest that the appeal be heard and determined on merit. Lastly, it was stated that the appeal had been lodged without inordinate delay and the Respondents stood to suffer no prejudice whatsoever if the application was allowed.

Issues

1. What were the circumstances in which a court may grant orders for extension of time to litigants?
2. Whether the Applicant could rely on the Civil Procedure Rules when making his application to extend time vis a vis the regime of law that governed proceedings before the Supreme Court.
3. Whether there would be any prejudice suffered by the Respondents if the extension was granted.

Held

1. In an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. The Court settled the principles that were to guide it in the exercise of its discretion to extend time. The Court delineated the following as the under-lying principles that a Court should consider in exercise of such discretion: -

                      i.        Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;

                     ii.        A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;

                    iii.        The Court’s exercise of its discretion to extend time, is a consideration to be made on a case to case basis;

                   iv.        Where there is a sensible reason for the delay, the delay should be explained to the satisfaction of the Court;

                    v.        Whether there will be any prejudice suffered by the respondents if the extension is granted;

                   vi.        Whether the application has been brought without undue delay; and

                  vii.        Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

2. A ground of delay of getting typed proceedings was not a prima facie panacea in the case of delay whenever it was pleaded. Each case had to be determined on its own merit and all relevant circumstances considered. It was worth reiterating that in considering whether or not to extend time, the whole period of delay was to be stated and explained to the satisfaction of the Court.
3. In the instant case, while there was indeed a certificate of delay from the Deputy Registrar of the Court of Appeal, that alone did not suffice for the Court to indulge the Applicant and grant an extension. The proceedings were availed to the Applicant on December 4, 2015. It filed its application more than two months later. While it submitted that it filed the application on February 8, 2016, the record from the receipt of payment and the stamp on the face of the application showed that the application was filed on February 12, 2016.
4. The regime of law that governed proceedings before the Supreme Court was the Constitution, Supreme Court Act, the Supreme Court Rules, 2012 and any practice directions made by the Court or by the Chief Justice. The Civil Procedure Rules were not applicable. Consequently, the Applicant could not rely on the provisions of the Civil Procedure Act to submit that time was not running.
5. In filing the notice of appeal on time, the counsel had already received instructions to appeal. In seeking the typed proceedings, counsel was acting under the instructions that he should appeal; hence he had started the process of preparing the record of appeal as early as October, 2015. Having filed a notice of appeal, having requested and received typed proceedings, and also having requested and been issued with a certificate of delay, it could not be probable that counsel was yet to get instructions from the Applicant to lodge an appeal.
6. The Applicant had an option of filing a timely petition of appeal and putting in those documents which ordinarily should form part of the record of appeal but were not there through a supplementary record of appeal. That procedure was provided for by rule 33(6) of the Court Rules which allowed for filing of the requisite documents late, but without leave.
7. Whether the Court would have refused to accept the filing a supplementary record of appeal delayed for a day or two was not an issue here but at the very least, that would have demonstrated some vigilance on the Applicant’s side. The applicant did not satisfactorily explain the inordinate delay of two months upon receipt of the typed proceedings.
8. Whereas the issues as highlighted were germane and novel, that alone could not be a reason for grant of extension. The Court would not admit a matter for hearing on the premise of the novelty of a matter, but upon due exercise of its jurisdiction and within the laid out legal framework.  Arguability of a matter was not a ground alone for extension of time.
9. An appeal filed in the Court out of time without leave of the Court was irregular and the Court could not invoke such ‘novel’ principles so as to validate that petition and deem it as properly filed. Pursuant to rule 33(1) of the Supreme Court Rules, it was mandatory that an appeal could only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, the Court indeed extended time.  However, it could not be gainsaid that where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required.  By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, was tantamount to moving the Court to remedy an illegality. That, the Court could not do.
10. To file an appeal out of time and seek the Court to extend time was presumptive and in-appropriate. No appeal could be filed out of time without leave of the Court. Such a filing rendered the ‘document’ so filed a nullity and of no legal consequence. Consequently, the Court could not accept a document filed out of time without leave of the Court. Where one intended to file an appeal out of time and sought extension of time, the least he could do was to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and sought to legalize it.
11. If the Court was to grant extension of time in the matter, it would not hesitate to accede to the Respondents’ request, if the same was found to be the position that a petition of appeal had in fact been filed in the Court without leave of Court extending time.
12. On perusal of the Court Registry records there was no evidence of a petition of appeal already filed in the matter. From the application before the Court, the Applicant stated that it had already filed a petition of appeal and urged that the Court were inclined to extend time, to deem that petition of appeal as properly filed. It then appeared to change tune in its written submissions when it stated that the ‘said appeal’ be taken as a draft for purposes of showing urgency of the matter.
13. It was upon the Court Registrar to check against such scenarios. Whatever it was that happened in the matter was to be investigated and not allowed to recur. However, as the Court was unable to trace the said petition in the Court’s records at the registry it was of the position that there was no petition of appeal already filed in the matter, hence the issue rested there.

Application dismissed and Applicant to bear costs of the 3^rd, 4^th, 7^th and 8^th Respondents.

Joseph Kinyua Gachaki v Pauline Wandia Kinyua

Application 1 of 2016

Supreme Court of Kenya

M K Ibrahim & S C Wanjala, SCJJ

March 24, 2017

Reported by Nelson Tunoi

Civil Practice and Procedure – extension of time – application for extension of time and review of the decision of the Court of Appeal – where the Court of Appeal denied certificate of leave to file an appeal in the Supreme Court – whether the application had merit – Supreme Court Act, section 23(2)(b); Supreme Court Rules, 2015, Rule 21

An application for extension of time to file a Notice of Appeal was lodged before the Supreme Court. The Applicant contended that the delay in filing a Notice of Appeal was occasioned by financial difficulties on his part, and a misapprehension of the law on the part of his Advocate. The Respondent opposed the application on grounds that, the reasons advanced by the Applicant could not justify the extension of time as sought.

Held:

1.    No compelling reasons were presented to the Court as a justification for the inordinate delay.

Application dismissed with costs.

Supreme Court sets out circumstances where a party can be admitted as amicus in proceedings before court

Trusted Society of Human Rights Alliance v Mumo Matemu & 6 others

Supreme Court of Kenya

Petition No. 12 of 2013

M K Ibrahim & N S Ndungu SCJJ

June 17, 2015

Reported by Emma Kinya Mwobobia

Brief facts

This is a Notice of Motion filed by Katiba Institute seeking leave to be enjoined in the substantive appeal as amicus curiae. The applicant is an institution with expertise in constitution-making and design and would therefore contribute to the resolution of the issue at hand.  Counsel submitted that the applicant was non-partisan in the matter and was only keen to aid the Court in interpreting and applying constitutional principles on the issues arising by proposing a comparative approach.  Further, that the applicant had no special interest in the matter personal or commercial, and its sole motivation was fidelity to the law and the Constitution of Kenya, 2010. The applicant stated that it would assist the Court by providing the relevant historical context, constitutional design and principles relating to institutional comity, judicial and quasi-judicial processes, integrity, transparency and accountability, and comparative foreign law on the issues entailed.

Issues:

1. Whether Katiba Institute should be admitted to the proceedings before the Supreme Court as amicus curiae
2. At what stage of the proceedings could the court admit a party as amicus curiae?
3. Whether a party could be enjoined as amicus at the final appellate stage especially where other parties had opposed the application
4. What were the attributes of amicus status in the special context of Kenya’s legal system?

Civil Practice & Procedure – parties – parties to a suit – where applicant applied to be admitted as amicus in the proceedings before court – circumstances when a party can be admitted as amicus in a matter – what stage of the proceedings can a party be admitted as amicus – attributes of an amicus in the special context of the Kenyan legal system – whether the applicant could be admitted as amicus in the circumstances – Supreme Court Rules, rule 25

Supreme Court Rules

Rule 25

25. (1) A person may at any time in any proceedings before the Court apply     for leave to be joined as an interested party.

 (2) An application under this rule shall include−

 (a) a description of the interested party;

 (b) any prejudice that the interested party would suffer if the intervention    was denied; and

 (c) the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties.

Held:

1. Article 20 (3)(a) of the Constitution of Kenya, 2010, by express terms required Courts to develop the law to the extent that it did not give effect to a right or fundamental freedom.  That was the very foundation for well -informed inputs before the Court which inherently justified the admission of amici curiae.  The Court had a duty to ensure that its decisions enhanced the right of access to justice, as well as open up positive lines of development in jurisprudence to serve the judicial system within the terms of the Constitution. 
2. The Constitution bestowed upon all State Organs and all public officers the duty to respond to the needs of vulnerable groups within the society under article 21(3).  That obligation in the context of an enlarged locus in the enforcement of fundamental rights and freedoms (article 22(2), and of the enforcement of the Constitution itself (article 258), enjoined that a person seeking to canvass the values and principles under the Constitution, by applying legal expertise, materials, or information available was a potential friend of the Court. The role of a friend of the court could therefore, be characterised as one that assisted the courts in effectively promoting and protecting the rights enshrined in the Constitution.
3. There was a trend of applications by persons seeking amicus status to aid the Court in the execution of its duty.  The Court approbated the inclination as the transformative cast of the Constitution invited due diligence on the part of all persons.  Judicial authority flows from the people as the final arbiter, with the capacity to affect any settled precedent.  It justified any person with special legal expertise in matters coming up before the Supreme Court, coming as a friend of the Court. 
4. Rule 54 beckoned the invitation of persons as amici curiae and also recognized the need to allow from time to time and on a case-by-case basis, the appearance of legal or technical experts and advocates in proceedings before the court.  The dichotomy of interest and expertise shredded any doubt as to the role of a party in any proceedings before the Court. 
5. The expanded forum by the Constitution was a testament that the Court continued to witness various forms of legal mobilization in pursuit of a constitutionally engineered rights-based jurisprudence. However, that opening ought to be regulated in order to protect the rights of the parties to the causes before the Court.  Amicus briefs ought to be carefully appraised so as not to interfere with the causes of the parties or the bounds of jurisdiction. While the Court may admit a motion to appear in any proceedings as amicus, there was the risk of the real interest of the amicus threatening the position of the original suitors whose rights and obligations stood to be upset by the outcome of the appeal.
6. The legitimacy of amicus briefs flows from their engagement with points of law. Cases involving matters of general public interest may occasion the Court inviting certain parties such as the Attorney - General to participate in proceedings as amicus curiae.  Indeed the position of the Attorney - General as the custodian of the legal instruments of the Executive Branch, and as advisor in matters of public interest could not be challenged. 
7. The Court considered the position of the Attorney - General in the performance of the Executive’s role vis-a-vis the operationalization of the Constitution and the nature of the Supreme Court’s discretion to regulate the extent of the Attorney - General’s participation in the proceedings.  The Attorney - General in a proper case therefore may be admitted to take part in proceedings as amicus curiae where great public interest was involved. 
8. Section 5 (2) the Office of the Attorney General Act reinforced the centrality of the Supreme Court office in relation to the facilitation, promotion and monitoring the rule of law, the protection of human rights and democracy in Kenya. Section 7 of the Act gave a statutory right of audience in proceedings of any suit or inquiry in matters involving public interest and those concerning the legislature, Judiciary and any other independent department or agency in government.  It was to be observed however, that despite the Attorney General’s extraordinary role, certain exceptions, could be made by a Court in considering an application by the Attorney General seeking audience before it.
9. The evolution of the amicus role in Kenya was distinguishable from the position in jurisdictions such as the United States, Australia, South Africa and Ireland. While such jurisdictions require amicus to have bona fide interest in the matter the Kenyan practice was that amicus ought to come into the proceedings on a foundation of neutrality and by virtue of  the express terms of the Constitution, parties with an interest in the proceedings were accommodated in the capacity of interveners.
10. Amicus participation was a matter of privilege rather than of right. Intervention in a case, as provided under Rule 25 of the Supreme Court Rules allowed parties with sufficient interest in the matter to apply to be enjoined as interveners or interested parties.  That avenue was set apart from that of amicus. As opposed to amicus, interveners had an interest in the res of the suit as to be affected by the resulting Judgement of the Court. Amicus curiae on the other hand, were advisors to the Court and not to the parties, and were in no way bound by the resulting Judgement, except by way of precedent. 
11. Amici curiae could not be perceived as an extension of the Court and they were not to advance any party’s case and ought not to extend their participation to the realm of interveners in any legal proceedings. The interposition of amici in judicial proceedings was terminated when they had put forward the points of law outlined in their amici brief. There was, however, an exception in amicus interventions, in the case of advisory-opinion proceedings before the Supreme Court as signalled in Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No.2 of 2011.  The absence of a live controversy in such proceedings opened a window for the amicus to steer the Court, by specific proposals, towards a definite legal position.  The ultimate decision, however, lay with the Court.
12. The Court set out certain guidelines in relation to the role of amicus curiae:

1. An amicus brief should be limited to legal arguments.
2. The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
3. An amicus brief ought to be made timeously, and presented within reasonable time.   Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay.  The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.
4. An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
5. The Court may call upon the Attorney- General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General was not defeated solely by the subsistence of a State interest, in a matter of public interest.
6. Where, in adversarial proceedings, parties allege that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court would consider such an objection by allowing the respective parties to be heard on the issue.
7. An amicus curiae was not entitled to costs in litigation.  In instances where the Court requests the appearance of any person or expert as amicus, the legal expenses may be borne by the Judiciary.
8. The Court would regulate the extent of amicus participation in proceedings to forestall the degeneration of amicus role to partisan role.
9. In appropriate cases and at its discretion, the Court may assign questions for amicus research and presentation.
10. An amicus curiae shall not participate in interlocutory applications, unless called upon by the Court to address specific issues.
11. The applicant ought to raise any perception of bias or partisanship, by documents filed or by his submissions.
12. The applicant ought to be neutral in the dispute, where the dispute was adversarial in nature.
13. The applicant ought to show that the submissions intended to be advanced will give such assistance to the Court as would otherwise not have been available. The applicant ought to draw the attention of the Court to relevant matters of law or fact which would otherwise not have been taken into account. Therefore, the applicant ought to show that there was no intention of repeating arguments already made by the parties.  And such new matter as the applicant seeks to advance, ought to be based on the data already laid before the Court and not fresh evidence.
14. The applicant ought to show expertise in the field relevant to the matter in dispute and in this regard, general expertise in law did not suffice.
15. Whereas consent of the parties, to proposed amicus role was a factor to be taken into consideration, it was not the determining factor.

13. In addition to the above guiding principles, the following directions may be applied by a Court considering an amicus application:

1. A party seeking to appear in any proceedings as amicus curiae should prepare an amicus brief, detailing the points of law set to be canvassed during oral presentation.  The brief should accompany the motion seeking leave to be enjoined in the proceedings as amicus.
2. The Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae.
3. In proceedings before the Supreme Court, the Bench as constituted by the President of the Court may exercise its discretion to admit or decline an application from a party seeking to appear in any proceedings as amicus curiae and denial or acceptance of such an application should have finality.
4. The Court reserves the right to summarily examine amicus motions, accompanied by amicus briefs, on paper without any oral hearing.
5. The Court may also consider suggestions from parties to any proceedings, to have a particular person, State Organ or Organisation admitted in any proceedings as amicus curiae.

14. Impartiality to a party’s cause was one of the conditions for admission to the status of amicus curiae. An evaluation of the submissions annexed to the amicus brief signalled that the intended amicus curiae inclined towards sustaining the decision of the High Court to the detriment of the 1^st respondent.
15. Impartiality was a central tenet in the conduct of judicial proceedings.  As counsellor before the Court, amicus curiae should not exhibit partiality towards any party’s because otherwise some party would be prejudiced. Given the role of amicus as friend of the Court, impartiality was required of amicus curiae.  The role of an amicus was to aid the Court to reach a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty.  In an adversarial legal system such as in Kenya, impartiality on the part of the Court and all its agencies such as amici curiae, ought to withstand all compromise.  The Court, in an adversarial system, was but an umpire, not to be seen to descend into the arena of conflict in the cause before it.  An amicus curiae had to stay aloof, assisting the Court, without being seen to take sides.
16. Justice from the Court had to be assessed from the eyes of the ordinary litigant. When determining whether amicus was partisan, the test ought to be that of the ordinary litigant rather than of a legal expert examining the dichotomy between factual matter and legal matter.  The applicant had scrutinized the decisions of the superior Courts, and taken the stand that the Court of Appeal erred in upsetting the finding of the High Court.  A perception of bias beckoned, when the ordinary litigant read the submissions. 
17. The only course open to an amicus was to aid the Court in arriving at a determination based on the law, and upon uncontroverted, scientific and verifiable facts.  Whether the superior Courts erred in arriving at their determination was to be left to the value judgement of the Court, as the ultimate decision maker, following a conscientious evaluation of the parties’ respective cases.  It was not for an amicus to suggest to the Court whether a decision was wrong or right, nor to advise on which resolution to arrive at.  The pursuit of a particular outcome was reserved to the parties to the controversy, including the interested parties or interveners.  Consequently, the applicant had demonstrated partiality and did not satisfy the threshold of admission as amicus in the proceedings.
18. The intended amicus curiae had, besides, delayed in seeking admission into the instant case. The applicant neither sought to be enjoined as amicus in the matter at the High Court nor the Court of Appeal.  For purposes of proper administration in   the Supreme Court, applications seeking the exercise of discretionary powers were to be made within a reasonable time. It ensured expedition in the proceedings and gave fulfilment to parties’ constitutional right of access to justice. That was a statement of principle and by no means attributes blame to the applicant, in this instance. The application failed not on the limb, but on that of alignment and partiality.

Order:

The application for admission to the status of amicus curiae is disallowed, with no orders as to costs.

Cases

East Africa

1. In the Matter of the Principle of Gender Representation in the National Assembly & the Senate [2012] 3 KLR 720– (Followed)

 2. Judicial Service Commission v Speaker of the National Assembly & another Petition No 518 of 2013-(Followed)

 3. Kuria, Moses Kiarie & 2 others v Ahmed Isaack Hassan & another Petition No 3 of 2013 – (Explained)

 4. Muriu & others v Republic (1955) 22 EACA 417 – (Mentioned)

 5. Odinga, Raila & 2 others v Independent Electoral & Boundaries Commission & 3 others Petition 5, 4 & 3 of 2013 (Consolidated) – (Mentioned)

6. Re the Matter of the Interim Independent Electoral Commission Constitution   Application No 2 of 2011 – (Followed)

 7. Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others Petition No 12 of 2013 – (Explained)

8. Tunoi, Justice Philip K & another v Judicial Service Commission & 2 others Petition No 244 of 2014 – (Followed)

South Africa

1. Children's Institute v Presiding Officer of the Children's Court, District of Krugersdorp & others (CCT 69/12) [2012] ZACC 25; 2013 (1) BCLR 1 (CC) – (Followed)

2. Re: Certain Amicus Curiae Applications; Minister of Health and others v Treatment Action Campaign & others, (CCT 8/02) [2002] – (Followed)

3. Republic of South Africa & others v Grootboom & others 2001 (1) SA 46 (CC) [2000] ZACC 19

Ireland

1. I v Minister for Justice Equality and Law Reform, [2004] 1 ILRM 27; [2003] IESC 38 – (Distinguished)

United States of America

1. Florida v Georgia, 58 US 17 How 478 (1854) - (Followed)

2. State v Finley, 242 Minn 288 (1954) – (Followed)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 20(3) (a); 21(3); 22(2); 258  - (Interpreted)

2. Office of the Attorney General Act, 2012 (No 49 of 2012) sections 5(2); 7 - (Interpreted)

3. Supreme Court Rules, 2012 (Act No 7 of 2012 Sub Leg) rule 3, 25, 54(1) - (Interpreted)

Texts & Journals

1. M Ssekaana, M., Ssekaana, SN., (Eds) (2010) Civil Procedure and Practice in Uganda  Kampala: LawAfica Publishers  p50

Advocates

1. Mr Waikwa, Mr Lempaa, Mr Mwongela for the Applicant,

2. Mr Muiruri for the 2nd and 3rd Respondents

3. Mr Okello for the 4th Respondent

4. Mr Nderitu, Kilonzo for the 1st and 2nd amici curiae

Competency by a Two Judge To Hear an Application in a Matter where the Orders sought could Affect the Decisions of a Seven Judge Bench

Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others

Petitions 14, 14A, 14B & 14C of 2014 (Consolidated)

Supreme Court of Kenya at Nairobi

W. M. Mutunga, CJ; M. K. Ibrahim, SCJ

January 5, 2015

Reported by Phoebe Ida Ayaya

Brief Facts

A preliminary objection was raised to the hearing of a Notice of Motion, on the grounds that the application sought final substantive orders which would determine the proceedings and/or dispose of the issues before Court. This was argued as falling outside the purview of section 24(1) of the Supreme Court Act, 2011 and as such could not be heard and determined by a two judge bench.

Issues

1. Whether a two judge bench was competent to hear an application in a matter where the orders sought could affect the decision of a seven judge bench.

Civil Practice and Procedure – preliminary objection – where the preliminary objection sought was filed subsequent to a notice of motion – where the matter was pending enforcement of judgment of a seven judge bench – where the preliminary objection was filed before a two judge bench – whether the two judge bench was competent to hear an application of a seven judge bench when the orders sought in the said objection could affect the orders of the seven judge bench – Supreme Court Act, 2011

Supreme Court Act, 2011

Section 24 Interlocutory orders and directions by the Court

(1) In any proceeding before the Supreme Court, any Judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit , other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding

Held

1. The Court when constituted by two judges had to protect the integrity of the decision of a 7 Judge Bench.
2. In the preliminary objection, the Court held that although the party had invoked section 24(1) of the Supreme Court Act, the provisions of the section usually contemplated interlocutory matters filed simultaneously with a petition or shortly after seeking interlocutory orders or directions at the onset of the proceedings. Presently, judgment had been rendered and all questions and issues conclusively disposed. The only remaining aspect was the enforcement and compliance of court orders.
3. Through the orders previously given, and which were subject to the notice of motion and subsequent preliminary objection, the Court retained a residual jurisdiction to monitor and ensure compliance with the orders in the judgment through a mention to be heard by the full bench that initially heard the appeal.
4. Any orders given by a two-judge bench of the Court, as constituted, could lead to inconsistency and even interference with the judgment. The right bench to hear the application would be the full bench of seven judges who heard the case in the first place.

Preliminary objection upheld

Supreme Court allows withdrawal of the application by Council of Governors that sought to bar the Senate from summoning their members

Council of Governors v Senate & another

Reference No. 1 of 2014

Supreme Court of Kenya at Nairobi

Mutunga, CJ & P and Ibrahim, SCJ

December 8, 2014

Reported by Phoebe Ayaya & Kipkemoi Sang

Brief Facts

The applicant, filed a reference seeking an advisory opinion on various issues including the question as to whether the Senate could summon a Governor to personally appear before the Senate or a Committee of the Senate to answer questions on county public financial management

Subsequently, the applicant made an application for leave to amend the reference. Leave was granted but the amendment was not done. An oral application for stay of proceedings was then made, pending the judgment of the High Court in a matter that was canvassing a similar issue as the one before the Supreme Court.  The applicant was ordered to formally apply for stay but the applicant did not.

As a result of favourable orders in the High Court, the applicant then sat back and waited until the 1^st interested party filed a preliminary objection, and the matter was listed for hearing before a two-judge bench. During the intended hearing of the preliminary objection, the applicant made an application orally for withdrawal of the reference. The interested parties did not object to such withdrawal, but prayed for costs.

Issues

1. Whether, the applicants could withdraw the matter as a consequence of an incidental order from the High Court
2. Whether Supreme Court could make an order for costs upon withdrawal of a matter before it at any time after the Appeal had been lodged and further steps taken.

Civil Practice and Procedure -constitutional principle-prima facie jurisdiction of the Supreme Court-discretionary power of Court to make an order for costs-Whether, the Court can make an order for costs upon withdrawal of a matter before it Whether Supreme Court could make an order for costs upon withdrawal of a matter before it at any time after the Appeal had been lodged and further steps taken. -Supreme Court Act of 2011; Section 2(1)-Supreme Court Rules of 2012; Rule 3(5)

Civil Practice and Procedure – withdrawal of suit – withdrawal of suit as a matter of right – where the applicant sought to withdraw a suit filed in the Supreme Court – where the withdrawal was on the basis of allowing the suit to progress through the legal system from the High Court upwards – where the respondent claimed that the claim for withdrawal was done in bad faith – where the respondent sought costs of the suit – whether the Court could order for costs against the applicant – Supreme Court Act, section 21(1); Supreme Court Rules, Rule 3(5).

Alternative Dispute Resolutions- dispute resolution mechanisms- mediation, arbitration and traditional dispute resolution mechanisms-Constitution of Kenya article 159(2)

Supreme Court Act, 2011

Section 21(1) “In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award.”

Supreme Court Rules, 2012

Rule 3(5) “Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Held:

1. The law allowed a party who had approached the Court to withdraw a matter if he deemed so fit to do so. Barring parties from withdrawing matters once filed in Courts of law would be contrary to the constitutional principle of alternative dispute resolution under article 159 (2) which provided that; alternative forums of dispute resolution which included mediation, arbitration and traditional dispute resolution mechanisms ought to be promoted.
2. The Court had the discretionary power to make an order for costs as mandated under the Supreme Court Act, 2011 and Rules, 2012. Section 2(1) of the Supreme Court Act 2011, gave an option to the Supreme Court to make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award. Rule 3(5) of the Supreme Court Rules 2012, provided that nothing could otherwise affect the inherent powers of the Court to make orders or give directions as would be necessary for the end of justice or to prevent abuse of the process of the Court. A party who moved the Court to seek an order for costs had the obligation to lay firm basis by giving sufficient reasons why he had to be awarded cost.
3. The award for cost ought to be guided by the principle that, cost followed the event; the effect was that the party, who called forth the event by instituting suit, bore the costs if the suit failed, but if a party showed legitimate occasion by successful suit, then the defendant or respondent bore the costs. The vital factor in setting the preference was a judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by the end of justice. (Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Petition No. 4 of 2012)
4. The claim of public interest would be relevant factor in exercise of such discretion as would also be motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation  (supra Jasbir)
5. An advocate had a duty to aid the Court reach a legitimate determination founded on sound law. Hence, he had to abreast with the law and keep pace with the various developments in the applicant’s reference before the Court and his advocate’s conduct amounted to abuse of Court process (Nicholas Kiptoo Arap Korir Salat v. The Independent Election and Boundaries Commission & 7 others, Application No. 16 of 2014)

The applicant was ordered to bear the costs of the interested parties in the reference, which costs were to be agreed upon or taxed by the taxing master of the Court.

Principles to be considered in exercising discretion to extend time for filing appeals

John Ochanda & 996 others v Telkom Kenya Limited [2014] eKLR

Motion No 24 of 2014

Supreme Court of Kenya at Nairobi

M K Ibrahim & S C Wanjala, SCJJ

November 25, 2014

Reported by Nelson K Tunoi

Brief facts:

The applicants filed an application before the Supreme Court for extension of time within which to file and serve a notice of appeal against part of the judgment and orders of the Court of Appeal. The applicants had inadvertently cited rule 30 instead of rule 31 of the Supreme Court Rules in their already filed notice of appeal. In addition they erroneously indicated that they intended to appeal to the Court of Appeal instead of the Supreme Court. In response, the respondent contended that thatwas an abuse of the courts process as the applicants did not have an automatic right of appeal to theSupreme Court. The respondents further argued that the Supreme Court lacked jurisdiction to determine the application for extension of time as the applicants had neither sought nor been granted leave to appeal to the Supreme Court.

Issues:

i.                     Whether the applicant had established a satisfactory basis to warrant the Supreme Court to extend time to file a notice of appeal.

ii.                   Whether the Supreme Court had jurisdiction to entertain an application where leave to file such an application had not been granted by the Court of Appeal.

Civil Practice and Procedure – extension of time – application for extension of time to file and serve a notice of appeal – where the applicants, inter alia, had inadvertently cited rule 30 instead of rule 31 of the Supreme Court Rules in their already filed notice of appeal – whether that was sufficient reason to warrant the extension of time by the court – whether the respondents would suffer prejudice if the application was granted – whether the application was merited – Supreme Court Rules, 2012, rules 3(1), (5), 23 & 53

Jurisdiction – jurisdiction of the Supreme Court - Whether the Supreme Court had jurisdiction to entertain an application where leave to file such an application had not been granted by the Court of Appeal – Constitution of Kenya, 2010, article 163(8); Supreme Court Rules, 2012, rule53

Held:

1.      Extension of time was a discretionary and a very powerful tool which should be exercised with abundant caution, care and fairness. It should be used judiciously and not whimsically to ensure that the principles enshrined in the Constitution were realized.

2.      The Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission& Others(the Nick Salat case laid down the following principles to consider in exercising its discretion to extend time:

i.            Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;

ii.            A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.

iii.            Whether the court should exercise the discretion to extend time, was a consideration to be made on a case to case basis;

iv.            Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

v.            Whether there would be any prejudice suffered by the respondents if the extension was granted;

vi.            Whether  the  application  had  been  brought  without  undue delay; and

vii.            Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

3.      The question of jurisdiction to extend time to file a notice of appeal to appeal to the Supreme Court was not an issue subject to controversy. The notice of appeal was provided by Rule 31 of the Supreme Court Rules 2012. Further, the power to extend time was provided for by Rule 53 of the same Court Rules. These Supreme Court Rules were enforced by the Supreme Court as provided by article 163(8) of the Constitution.

4.      The Supreme Court was a new court in the Kenyan legal system and its modus operandiwas still not conversant to most litigants and members of the bar at large. While the Nick Salat case (supra) the Supreme Court on its own motion moved to correct the anomaly after noting that the counsel for the applicant had cited the old Supreme Court Rules, 2011, in the instant case, it was the advocate for the  applicant who noted the anomaly and took steps to correct it. Though he may have opted for a longer route of withdrawal and not amendment, the Court took into consideration the principles in article 159(2)(d) of the Constitution to focus on substantive justice in disregard to procedural technicality in that case.

5.      The applicants complied with the substantive requirement and filed a notice of appeal within time. However due to what they confessed to be some inadvertent errors, the notice of appeal had apparent errors and they withdrew it. Without appearing to sanction the errors on the face of the notice of appeal, it was not in doubt that the ‘notice of appeal’ served its substantive purpose: the respondents were informed of the appellants intent to appeal and any subsequent proceedings thereafter could not be said to constitute an ambush to the respondents. Consequently, that settled any prejudice that the respondents may be apprehensive of: there was none as they already had notice.

6.      Counsel for the respondent contended that the applicants did not have an automatic right of appeal to the Supreme Court and having neither sought nor been granted leave, the Court lacked jurisdiction to determine the application. They did not however, challenge the fact that the applicant acted in a timely manner to correct the error and that the error was accidental. Court disagreed with the respondents that the applicants ought to have first sought leave from the Court of Appeal. The question under inquiry was one of a notice of appeal. The law was categorical that a notice of appeal had to be filed fourteen (14) days from the date of judgment whether or not leave was required.

The applicants’ notice of motion dated June 5, 2014 allowed; Time to file and serve a notice of appealextended. The applicant to file and serve a notice of appeal within 7 days of the date hereof; The applicants to bear the costs of the respondents in the application.

Supreme Court lacks jurisdiction to hear matters pending before another Court

Yusuf Gitau Abdallah v The Building Centre (K) Ltd & 4 others

Petition No 27 of 2014

Supreme Court of Kenya

August 13 2014

Reported by Phoebe Ida Ayaya

Brief facts:

The petitioner filed a plaint in the High Court in 1998 the subject of which was termination of an employment contract entered into between himself and the 1^st respondent. Three rulings were delivered: the first two being orders granted to the petitioner to enjoin further respondents; and the third being orders dismissing the respondents’ application that the petitioner deposit security for costs before the commencement of the hearing of this matter. Thereafter, an ex-parte judgment in favor of the petitioner herein was entered where he was awarded damages for irregular termination from employment

Subsequently, from the record, the respondents filed an application in the High Court seeking to set aside the ex-parte judgment. The matter was heard the High Court which allowed the application and set aside the ex parte judgment. The court then directed that the matter be referred to the Industrial Court for hearing and determination.

The matter was still pending before the Industrial Court following the last orders the High Court yet before the Supreme Court was a litigant who, knowing very well that his matter was still pending before the Industrial Court – a Court with the status of the High Court – decided to approach the Supreme Court directly.

Issues:

1. Whether the Supreme Court of Kenya had jurisdiction to hear a matter that was still pending before the Industrial Court.
2. Whether the form of pleadings through which the petitioner came before the court were tenable.

Jurisdiction – Supreme Court’s Jurisdiction – Instances in which the original jurisdiction of the Supreme Court could be invoked – whether the Supreme Court could hear matters pending before the Industrial Court – Supreme Court of Kenya Rules, 2012, rules 24, 33 and 4.

Pleadings – form of pleadings before the Supreme Court of Kenya – where the pleadings before the court were in a form not recognized by the Supreme Court rules – whether the Court could entertain a matter instituted in a wrong form – whether a single judge had jurisdiction to hear and determine a matter instituted in a wrong form – Supreme Court of Kenya rules, 2012.

Held:

1. The Supreme Court of Kenya was the apex court as provided by Article 162 of the Constitution. Article 163(3) of the Constitution provided for its jurisdiction. It had exclusive original jurisdiction to hear presidential petitions, appellate jurisdiction to hear and determine cases from the Court of Appeal and any other court or tribunal as prescribed by national legislation and jurisdiction to give an advisory opinion.
2. A litigant who approached the Court had to be clear which jurisdiction; he/she intended to invoke – Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, Application No 2 of 2011.
3. The Court could only assume jurisdiction bestowed to it by the Constitution and/or Statute – it could not assume jurisdiction by way of judicial craft. In this regard, although the Court’s mandate was to do justice, it had to do so through the laid down legal framework. A party could not be heard by moving a Court in glaring contradiction of the judicial hierarchical system on the pretext that the lower court would perpetrate an injustice.
4. As it stood, the matter was still pending before the Industrial court. The petitioner had gone to the Supreme Court too early in the day and the Court could not admit him. The allegations of the petitioner that his fundamental rights had been infringed were questions that the High Court had the original jurisdiction to look into as Article 165 of the Constitution decreed.
5. All courts had the constitutional competence to hear and determine matters that fell within their jurisdictions and the Supreme Court not being vested with ‘general’ original jurisdiction but only exclusive original jurisdiction in presidential petitions, would only hear those matters once they reached it through the laid down hierarchical framework.
6. Upon careful perusal, there was no petition before the Court to commence or institute any proceedings before the Court. The question of deciding whether to certify the matter as urgent or not could be deemed as an interlocutory matter. What was before the Court was a purported “Notice of Motion”. A Petition or Originating Motion were the only pleadings through which proceedings could be commenced or instituted in the Supreme Court under the Supreme Court Rules, 2012 – except for a Reference for an Advisory Opinion which was a special pleading.
7. The purported Notice of Motion could not commence any proceedings, as it was not a proceeding before the Court, and in the absence of any legislation or appropriate Rules, a single judge had the discretion to strike out the “Notice of Motion”.
8. (Obiter per Ibrahim (J)): “Finally, this matter has brought to the fore the glaring lacuna in the Supreme Court Act and Rules. Judicial time is very precious and should not be wasted by a judge or judges of the Court sitting at the preliminary stage to determine whether a matter has met the prima facie jurisdiction threshold to be admitted to the Supreme Court. Time is now ripe for an amendment to the Act and Rules of this Court to cure this malady. The Registrar of the Court should be empowered to be able to assess cases before filing or even after filing and dismiss matters that do not fall within the four corners of the Supreme Court jurisdiction. I recommend that the Parliament and/or Rules Committee move with speed to implement such an amendment if not for good order then for the preservation of judicial time and for the dignity of this Court. The wheels of justice at the Supreme Court should not be clogged by matters that should not have been admitted in the first place.”

Matter struck out for want of jurisdiction; Petitioner directed to pursue his matter in the Industrial Court; Industrial Court ordered to fast track the matter; and no order as to costs.