The guiding principles for the review of a decision of the Supreme Court

Brief facts

The application sought the review and setting aside of the order of May 26, 2023 by a single judge of the court (the judge) marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No. 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn. The applicant contended that on March 10, 2023, it filed a notice of appeal before the instant court evincing his intention to appeal against the decision of the Court of Appeal. The applicant further contended that the matters in dispute were of general public importance. 

The applicant stated that it filed an application for certification dated March 31, 2023 at the Court of Appeal and that by May 22, 2023 the Court of Appeal had not issued directions on the application for certification. The applicant further averred that on May 26, 2023, the court (the judge) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the Supreme Court Rules. 

Issues

i. What were the guiding principles for review of a decision of the Supreme Court made in exercise of discretion?

Relevant provisions of the law

Supreme Court Rules, 2020

Rule 36 - Notice of Appeal

(1) A person who intends to make an appeal to the Court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal.

(4) In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.

Rule 38 - Institution of appeal

(1) An appeal to the Court shall be filed within

(a) thirty days of the date of filing the notice of appeal, where the appeal is as of right; or

(b) thirty days after the grant of certification, where such certification is required.

Held

1. Section 23(C) of the Supreme Court Act conferred upon the court the jurisdiction to review the decision of a single judge by five or more judges, upon application by a party aggrieved by the decision of a single judge. The guiding principles for review of a decision of the court made in exercise of discretion were that the applicant had to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise of discretion and; 

1. as a result a wrong decision was arrived at; or
2. it was manifest from the decision as a whole that the judge had been clearly wrong and as a result, there had been an apparent injustice. 

2. The applicant contended that the order of May 26, 2023 deeming the notice of appeal as withdrawn was made by the single judge, unaware of the pending certification application at the Court of Appeal. The court had discretion under rule 46(1) of the Supreme Court Rules, 2020 on its own motion, or on application by any party, to make such orders as may be necessary in instances where a party lodged a notice of appeal but failed to institute the appeal within the prescribed time.

3. The applicant had not satisfactorily demonstrated that the judge misdirected himself in the exercise of the powers conferred under rule 46(1) of the Supreme Court Rules. It was not manifest from the decision that the judge was wrong and as a result, there had been an apparent injustice. Although the applicant had attached a notice of appeal and an application for certification at the Court of Appeal, there was no evidence that the notice, though filed, was lodged before the Registrar of the Court of Appeal or that the application for certification filed at the Court of Appeal was eventually lodged.

4. The applicant made no attempt to justify the continued existence of the notice of appeal on the courts record for a period outside that permitted by rules 36 and 38 of the Supreme Court Rules. The belated explanation by the applicant did not suffice at that late stage. In any event, if the application before the Court of Appeal succeeded -if it existed at all- the applicant would have sufficient time to move the court under the relevant rule and if it did not succeed, the procedure for review of that decision was available to the applicant. The notice of appeal was deemed as withdrawn. 

Circumstances in which the Supreme Court could review its own decisions

Brief facts

The applicants were aggrieved by the Court of Appeals decision in Nairobi Civil Appeal No. 21 of 2015 as consolidated with Nairobi Civil Appeal No. 180 of 2015. They filed two notices of appeal for each of the consolidated matters before the Supreme Court pending the determination of their application to certify the appeal as one of general importance. They argued that the two court orders issued by a single judge of the Supreme Court that marked the aforementioned notices of appeal as withdrawn was an apparent error on the face of the record, since time for filing their intended appeal before the Supreme Court had not started running as their certification application was still pending.

Issues

1. Whether it was mandatory for appellants before the Supreme Court to obtain certification of a matter as one of general importance before filing a notice of appeal. 
2. Whether in an application for review of the Supreme Courts decision, one could apply for correction of an error on the face of the record.
3. What were the circumstances under which the Supreme Court could review its own decision?

Held

1. Rule 36 (1) of the Supreme Court Rules 2020 required appellants to file a notice of appeal within 14 days. However, rule 36 (4) provided that it was not mandatory to obtain certification of a matter as a matter of general importance before filing a notice of appeal.  Rule 36 (4) made it optional to file a notice of appeal either before or after certification in a matter of general public importance.
2. The applicants filed two notices of appeal within the 14-day timeframe. According to rule 38 (1) of the Supreme Court Rules, an appeal should be filed within thirty days of the date of filing the notice of appeal, where the appeal was as of right; or thirty days after the grant of certification, where such certification was required. No appeal was filed within 30 days of filing of the Notice of Appeal or any indication that the applicants had filed an application for certification of matters as involving general public importance or that such an application was pending before the Court of Appeal, or at all.
3. There was nothing on record to show that, at the time the orders were issued on May 26, 2023, almost four years after the Notices of Appeal were filed, there was a pending application for certification before the Court of Appeal. Rule 46(1) of the Supreme Court Rules empowered the court, on its own motion or on application by any party, to make such orders as may be necessary in instances where a party lodged a notice of appeal but failed to institute the appeal within the prescribed time.
4. In invoking section 21(4) of the Supreme Court Act and rule 28 (5) of the Supreme Court Rules, the applicants sought to move the court to exercise two distinct jurisdictional powers: correcting an oversight or clerical error, and review its own decision. Correction of an apparent error on the face of the record, which was unavailable to the applicants, was distinct from a review.
5. The Supreme Court could only review its own decision under exceptional circumstances:

1. whether the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
2. where the judgment, ruling or order was a nullity by virtue of being made by a court which was not competent;
3. where the court was misled into giving a judgment or order under the belief that the parties have consented; or
4. where the judgment, ruling or order was rendered on the basis of repealed law, or as a result of a deliberate concealment of a statutory provision.

6. The applicants had not delineated under which of the mentioned circumstances they sought to review the orders of the court issued by a single judge. 

Supreme Court strikes out notice of appeal for lack of service within 7 days as required under rule 37 of the Supreme Court Rules.

Brief facts

The 1^st respondent filed an application that sought to strike out the notice of appeal filed by the appellants on grounds that it was not served to the respondents within the 7-day period required under rule 37 of the Supreme Court Rules. The 1^st respondent also sought to get the record of appeal struck out for being incomplete, in that it did not contain the record of appeal that was filed in the first appeal (Court of Appeal). 

The appellant opposed the application on grounds that  it was in the interest of justice that the Supreme Court exercised its discretion to admit the notice of appeal, petition, and the record of appeal, since no probable prejudice would be occasioned to the respondents; that the inadvertent omission of the supplementary record was not deliberate; and that the grounds of appeal before the Supreme Court were not dependent upon the omitted record since they did not center on a factual dispute but rather on the interpretation.

Issues

1. Whether a notice of appeal to the Supreme Court that was served on the respondents beyond the requisite seven-day timeline was defective.
2. Whether a record of appeal to the Supreme Court that did not contain a supplementary record that was filed in the first appeal before the Court of Appeal was incompetent.

Relevant provisions of the law

Supreme Court Rules 2020 (Act No 7 of 2011 Sub Leg) rule 37(1)

37.       Service of Notice of Appeal

(1)        A petitioner shall, within seven days of lodging a notice of appeal, serve transmitted copies of the notice upon all persons directly affected by the appeal.

(2)        A person upon whom a notice of appeal is served shall

(a)        within fourteen days of receiving the notice, file in the registry a notice of address for service, which shall contain that persons contact detail, including telephone numbers and email address, and shall serve the intended appellant with copies of the notice; and

(b)        within a further fourteen days, shall serve a copy of the notice of address for service on every other person named in the notice of appeal.

(3)        Where a party cannot serve a petition or a response to a petition, or cannot make any other service under these Rules, the party may apply in writing to the Court for an order of substituted service.

Held

1. The notice of appeal dated March 23, 2023 was filed on the e-filing portal of the Court of Appeal on March 30, 2023 and on April 28, 2023 in the Supreme Court and service of the same was effected on May 4, 2023, exactly thirty-five days from filing before the Court of Appeal. In terms of rule 37 of the Supreme Court Rules, the appellant was required, within seven days of lodging a notice of appeal, to serve transmitted copies of the notice upon the respondents with or without the endorsement from the Registrar of the Court of Appeal as was the practice before the court.
2. The appellant having failed to serve the notice within 7 days as prescribed by the  Rules missed a crucial preliminary step in instituting the appeal. Rules of procedure had to be applied and followed at all times by the parties and the courts to ensure there was fairness of proceedings and to afford parties the equality of arms. Because the object of judicial proceedings was to arrive at the truth by using the best available procedure and process, the infringement of the rules could have serious consequences.
3. Rule 40 of the Supreme Court Rules stipulated what the contents of a record of appeal from the Court of Appeal included, one of which was relevant pleadings required to determine the appeal. The nine documents that the appellants introduced in the record of appeal were presented before that court because the appellant believed they were important for the just determination of the first appeal. By necessary implication, they would equally be relevant for the determination of the instant appeal. 
4. The nine documents contained in the supplementary record were minutes, sketches, drawings, approvals, affidavits, and other pleadings from the Environment and Land Court. They ought to have been included in the record before the Supreme Court. The notice of appeal dated March 23, 2023 was defective for failing to comply with rule 37(1) of the Supreme Court Rules; and further that the record of appeal lodged in the Supreme Court was incomplete.

Presumption and inappropriateness of filing a document out of time and subsequently seeking for extension.

Brief facts

The instant application sought among other orders; grant leave to the applicant and enlargement of time to file a reference against the decision of the registrar on taxation of costs dated June 9, 2023; that the reference filed be deemed as properly filed; and a stay of execution of the ruling and order of the Registrar of the court dated June 9, 2023 pending re-taxation of the bill of costs. 

The applicant contended that although the decision under challenge was delivered on June 9, 2023, the applicant only became aware of it on June 20, 2023 when it was served with the proclamation notice; that the applicant was unable to issue instructions to counsel on the filing of the reference application as its legal manager was indisposed and out of the office for the whole week and that upon the legal manager resuming work, the instant application was brought without undue delay.

Issues

1. What were the guiding principles in considering an application for extension of time? 
2. What was the procedure to be followed by a person who was dissatisfied with a decision of the Registrar of the Supreme Court in the taxing of costs? 
3. What were the principles for grant of stay of execution? 

Held

1. The court, by the provisions of rule 15(5) of the Supreme Court Rules, 2020, had jurisdiction to extend the time limited by the rules. The guiding principles in considering an application for extension of time were: 

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

2. The taxation ruling in question was delivered by email to the parties on June 9, 2023. Under rule 62(1) of the Supreme Court Rules, 2020, a person who was dissatisfied with a decision of the Registrar in the taxing of costs may refer the matter, within seven days to a single judge for determination. Consequently, the applicant was required to have lodged its reference by June 16, 2023. That was not done and the reason advanced by the applicant was that the applicants legal affairs manager was indisposed as a result of which he was unable to review the ruling and give instructions to counsel on record for the applicant. Based on the evidence, the reason for the delay was plausible and satisfactory, in addition to the fact that the instant motion was brought without undue delay and the respondents had not shown any prejudice they stood to suffer if time sought was granted. 

3. The court had, under section 23A of the Supreme Court Act, jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit. The principles for grant of stay of execution were, as it were; 

1. the applicant must satisfy the court that the appeal was arguable and was not frivolous;
2. that unless the orders of stay were granted, the appeal would be rendered nugatory; and
3. it was in the public interest that the order of stay be granted.

4. The issues which were to be raised in the intended reference were indeed arguable and not frivolous. The impending and imminent threat of execution of the decree arising from the ruling would render the intended reference nugatory should the auctioneers proceed to sell and dispose of the proclaimed goods before the determination of the reference. In view of the fact that the dispute involved a statutory body funded by public coffers, it was in public interest that the order of stay be granted pending the determination of the intended reference. 

5. By the provisions of rule 62 of the Supreme Court Rules, 2020, the jurisdiction to determine a reference on taxation was donated to a single judge as opposed to the full bench. The applicants invitation of the court in the application to deem the reference filed therein as properly filed was untenable. Once time was enlarged, the applicant must properly and formally lodge the document, serve it and pay fees for it. The court could not sanitize by deeming documents irregularly lodged before granting leave. It was presumptive and inappropriate to file a document out of time and then seek the court to extend the time. The proper course was to file and serve the reference for consideration before a single judge. 

A party seeking to move the Supreme Court for an advisory opinion should first seek the advice of the Attorney-General

Brief facts

By a reference dated July 15, 2021, the County Government of Nairobi (the applicant), sought the courts advisory opinion under article 163(6) of the Constitution of Kenya, 2010 (the Constitution) on the following four issues: 

1. Whether the outstanding legal debt during the transition from the National Government to the devolved government as provided under sections 4 and 7 of the Transition to Devolved Government Act should have been absorbed by the National Government and not the County Government.
2. Whether the transfer of functions from the County Government to the National Government vide the deed of transfer dated February 25, 2020 in terms of articles 187, 189 of the Constitution and sections 24, 25 and 28 of the Intergovernmental Relations Act should have also included the transfer of liabilities including the Kshs 60 billion owed in legal debt from the County Government to the National Government.
3. Whether the county accounting officers should personally be held liable for the failure of the county governments to obey orders requiring payment of any money by way of damages or otherwise, or of any costs in legal debts.
4. Whether the arrest warrants issued against county executive officers on account of failure to pay the legal debt owed by the County Government violated their rights under articles 27, 28, 29, and 48 of the Constitution.

The respondent, the Attorney-General raised a preliminary objection on among other grounds that the applicant failed to seek his advice before moving the court for an advisory opinion. It was urged that it was settled that a party who intended to move the court for an advisory opinion must first seek the advice of the Attorney-General. The Attorney-General submitted that despite the reference having been filed in the name of the applicant, which was a county government with the requisite locus standi to seek an advisory opinion, the applicant instructed its advocates to urgently withdraw the advisory opinion. The Attorney-General thus urged the court to decline to issue an advisory opinion on all the questions raised. 

Issues

1. Whether a party who intended to move the Supreme Court for an advisory opinion had to first seek the advice of the Attorney-General.
2. Whether the independence of a State organ which sought the advice of the Attorney-General before seeking an advisory opinion from the Supreme Court was compromised. 
3. Whether a State organ which sought the advice of the Attorney-General before seeking an advisory opinion from the Supreme Court was bound by the advice of the Attorney-General.

Relevant provisions of the law

Supreme Court Rules, 2020

Rule 53 - Determining a reference

1. The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if

(c) the matter in respect of which the reference is made can, in the opinion of the Court, be resolved by the advice of the Attorney-General, and such advice has not been sought;

Held

1. An objection that disputed the jurisdiction of a court of law was one raising a pure point of law. The respondents preliminary objection fell within those demarcations and warranted the courts determination at that stage. 
2. Seeking the advice of the Attorney-General, or being required to do so by a rule of procedure, did not compromise the independence of a State organ in any way, nor did it vest a veto power in that office. While the applicant after obtaining advice from the office of the Attorney-General was not necessarily bound by the same, for the purpose of the court, the fact that such advice was sought in the first place, would demonstrate the applicants commitment, as well as fidelity to due process. 
3. There was no reason to derogate from the courts rules and set procedure, as well as settled legal standards. As a matter of good practice and anchored on rule 53 of the Supreme Court Rules, the opinion of the Attorney-General should be sought. In line with rule 53(1)(c), the court may, after allowing the parties a chance to be heard, reject a reference in whole or in part, if the matter in respect of which the reference was made, could be resolved by the advice of the Attorney General if such advice had not been sought. 
4. The applicant had not sought the legal advice of the Attorney General. The applicants advocate on record was on various occasions, when the matter came up for compliance mentions, before the Deputy Registrar of the court, directed to seek the Attorney Generals advice. Similarly, when the matter first came up for hearing on November 25, 2021, the court took the liberty to grant an adjournment to allow the applicant to seek such advice. The court took judicial notice that regrettably, the reasons for non-compliance with those directions had not been provided. In addition, and curiously, neither a representative of the applicant nor its counsel appeared at the hearing of the reference leading to the judgment. 
5. Article 156(1)(c) of the Constitution provided that, the Attorney-General was the principal adviser of the Government. The issues raised in the advisory opinion revolved around the day-to-day operations of the two levels of Government and their departments. Moreover, how would the court issue an advisory on transfer of debts without any evidence of how they were arrived at? Those were matters for resolution, initially, through the advice of the Attorney-General and the determination of debts by competent courts, respectively. 
6. Primarily, as advice of the Attorney-General was not sought, the court invoked the provisions of rule 53(1)(c) of the Supreme Court Rules and the jurisprudence of the court referred to therein, and declined to exercise its discretionary jurisdiction to give an advisory opinion. In any event, the Attorney General had demonstrated that the applicant, by its letter dated October 4, 2021, copied to the Solicitor General, categorically instructed the applicants advocates to instantly withdraw the reference, on grounds that, as drafted, it exceeded its authority and/or instructions. 
7. The contents of the Attorney-Generals letter dated October 4, 2021 had not been controverted by the applicant in its written submissions. More alarming, its advocate on record failed to appear in court when the matter came up for hearing to explain why they chose the path leading to the judgment. Moreover, the letter was highlighted by the respondent when the reference first came up for hearing on November 25, 2021 and the applicants advocate did not dispute its contents, but only sought time to seek further instructions. 
8. The applicant ought to have initially sought the Attorney-Generals advice and the instant proceedings lacked the applicants authority. Consequently, it failed the test as to who could move the court for an advisory opinion and therefore the court declined to exercise its discretion or assume jurisdiction in the matter.

Procurement and contractual agreements for the standard gauge railway done on behalf of the Kenyan and Chinese Governments were not subject to the provisions of the Public Procurement Disposal Act, 2005

Brief facts

On August 12, 2009, the Ministry of Transport executed a memorandum of understanding (MOU) with the 4^th respondent, China Road and Bridge Corporation (CRBC), a state- owned corporation of the Peoples Republic of China. Under the MOU, CRBC was to undertake, at its own cost, a feasibility study of the construction of phase 1 of the standard gauge railway (SGR) and come up with a preliminary design for the project. The feasibility and preliminary design report was approved by the 1^st appellant, Kenya Railways Corporation (KRC) with revisions on June 26, 2012. KRC and CBRC executed commercial contracts. In a bid to meet its portion of the funding of the project, the Government introduced a railway development levy at the rate of 1.5% of the customs value of imported goods to be charged on all imports. 

The 1^st, 2^nd and 3^rd respondents filed petitions at the High Court challenging the procurement process for the construction of the SGR and the resultant contracts in favour of CRBC. In their petition, the 1^st and 2^nd respondents urged that there was lack of due diligence on the part of the Government. The 1^st and 2^nd respondents argued that single sourcing or direct procurement for a mega project such as the SGR was illegal. Consequently, they sought among other orders; a declaration that there was no valid contract between the Government of Kenya and CRBC; and a declaration that the railway should be procured through competitive bidding. 

The petition by the 3^rd respondent (LSK) challenged the procurement process of the SGR project on largely similar grounds as those raised by the 1^st and 2^nd respondents, the only addition being that KRC should have ensured public participation in the procurement. LSK sought among other orders; an order of certiorari to quash the award of contract for the supply and installation of facilities, locomotives and rolling stock for the SGR or any agreement for the supply of the same. KRC lodged a cross petition challenging the reliance by the 1^st, 2^nd and 3^rd respondents on documents that were produced contrary to articles 31 and 35 of the Constitution and section 80 of the Evidence Act. 

The High Court dismissed the consolidated petitions and allowed the cross petition to the extent of expunging documents it had found inadmissible. The High Court found that the project was funded by a loan from China through Exim Bank and as such, the procurement in question was not subject to the Public Procurement and Disposal Act, 2005 (PPDA, 2005), but was governed by the terms of the negotiated loan. The court found that an autonomous environmental impact assessment (EIA) was conducted and an EIA license issued and that the respondents failed to challenge the EIA license issued to CRBC for the project at the National Environment Tribunal (the Tribunal). The High Court also found that the SGR was not a World Bank funded project and therefore the blacklisting of CBRC was not an automatic bar to participation of CRBC in any other project.

Aggrieved, the 1^st, 2^nd and 3^rd respondents filed appeals at the Court of Appeal which upheld the High Courts decision save for setting aside the finding that the procurement of the SGR project was exempt from the provisions of PPDA, 2005. It substituted the same with a declaration that KRC, as the procuring entity, failed to comply with, and violated the provisions of article 227 (1) of the Constitution of Kenya, 2010 (Constitution) sections 6(1) and 29, of the PPDA, 2005 in the procurement of the SGR project. Aggrieved by the Court of Appeals decision, the appellants filed the instant appeal.

Issues

1. Whether a State corporation qualified to be a procuring entity where it followed directives issued to it by the Executive and never allocated funds towards a project directly from the consolidated funds.
2. Whether procurement and contractual agreements between two State corporations of two governments was a government-to-government transaction and thus not subject to the provisions of the Public Procurement and Disposal Act, 2005. 
3. Whether irregularly obtained public documents/information were admissible as evidence in court. 
4. Whether documents obtained pursuant to parliamentary processes mutated into public documents where parties to a suit got into possession of the documents through an opaque process. 
5. Whether courts had the jurisdiction to determine matters relating to issuance of environment impact assessment licenses when the same had not been challenged at the National Environment Tribunal. 
6. What were the requirements for one to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution? 
7. What was the nature of the doctrine of mootness?
8. When did the right to institute an action in a claim of violation of the right to access information crystallize? 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 227 - Procurement of public goods and services

1. When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Held

1. A courts jurisdiction emanated from either the Constitution or legislation or both, and a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. A court could not arrogate itself jurisdiction exceeding that which was conferred upon it by law.
2. Under article 163(4)(a) of the Constitution, appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. For a litigant to invoke the courts appellate jurisdiction, it must be demonstrated that the matter in issue revolved around constitutional contestation that had come through the judicial hierarchy, and requiring the courts final input. Further, at the very least, an appellant must demonstrate that the courts reasoning and conclusions which led to the determination of the issue, could properly be said to have taken a trajectory of constitutional interpretation or application. Each case must, however, be evaluated on its own facts.
3. The issues identified revolved around the interpretation and application of provisions of the Constitution. In the premises, the issue of certification under article 163(4)(b) of the Constitution did not arise. The court was clothed with jurisdiction under article 163(4)(a) of the Constitution to determine the three identified issues.
4. Mootness of a matter arose where a live controversy no longer existed between parties to a suit and the decision of the court, in such instance, would have no practical effect. The doctrine of mootness enquired whether events subsequent to the filing of a suit would have eliminated the controversy between the parties.
5. At the time the petitions were presented to the High Court, the construction was yet to commence. Parties, however, opted to forego applications seeking interim conservatory relief aimed at stopping the construction. In focusing on instead, pursuing the hearing of the substantive petitions, it only meant that the respondents were alive to the fact that execution of the contract would have an impact on their pending petitions. The orders sought at the High Court, seeking to restrain the appellants from contracting with CRBC, and to ensure that there was no single sourcing in the procurement of the SGR were moot as they were overtaken by events, the contracts having been executed.
6. Completion of the construction of the SGR project did not render moot the consideration and determination of the remaining issues as to whether the SGR project complied with article 227 of the Constitution and section 6(1) of the PPDA, 2005; whether the 1^st, 2^nd and 3^rd respondents could rely on evidence provided by whistle blowers in support of their petitions, and the environmental considerations under the Constitution. Those were live issues that remained available for the courts consideration. Further, they raised matters of public importance owing to the sheer enormity of the project, the public finance expended and the project being for public use. In any event, the operative law surrounding the litigation remained unsettled.
7. The SGR project, though completed continued to raise questions especially in relation to the constitutionality of the project and the surrounding procurement process. The matters which the Court of Appeal dealt with were not moot.
8. From the pleadings filed at the High Court, the 1^st, 2^nd and 3^rd respondents did not disclose their source for the documents in support of the petitions at the High Court. The Evidence Act applied to all proceedings, including constitutional petitions save for the exceptions set out therein. The Evidence Act provided for admissibility of evidence with section 80 setting out the manner in which public documents may be produced in court. That procedure ensured the preservation of the authenticity and integrity of the public documents filed and produced in court. Further, section 81 of the Evidence Act allowed the production of certified copies of documents in proof of the contents of the documents or parts of the documents of which they purported to be copies.
9. Public documents could only be produced in court as evidence through the procedure set out. They could be produced as evidence in court by way of producing the original document or a copy that was duly certified. The documents having been adduced in evidence without adhering to the rather straightforward provisions, were outrightly rendered inadmissible.
10. Article 35 of the Constitution provided for the right to access information held by the State, including that held by public bodies. The Access to Information Act No. 31 of 2016 was enacted to give effect to article 35 and set out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to that provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency. The right to institute an action in court only crystallized once a citizen had requested for the information from the State and the request had been denied or not provided. The 1^st, 2^nd and 3^rd respondents did not make a request to be provided with the information relied on.
11. To admit the illegally obtained information was detrimental to the administration of justice and the provisions of article 50(4) of the Constitution. Allowing such documents was akin to sanitising illicit actions of the 1^st, 2^nd and 3^rd respondents of irregularly obtaining evidence, in violation of article 31 of the Constitution on the right to privacy including privacy of communication. Further, such documents adduced by the 1^st to 3^rd respondents were of utmost confidentiality and related to communication within Government circles, between civil servants, relating to Government engagement and operations. Even if the authenticity or contents of the documents was not questioned by the appellants, the production of such documents as evidence must be in accordance with the law. Not having obtained and adduced the documents in the manner set out under sections 80 and 81 of the Evidence Act or requested for information under article 35 of the  Constitution, the documents were inadmissible.
12. It did not matter that some of the documents in issue had been readily tabled before Parliament and were subjected to debate at the different committees. Parliamentary processes were subject to certain privileges and immunities. Article 117 of the Constitution provided for powers, privileges and immunities. The objective of the powers, privileges and immunities as set out in article 117(2) was for the purpose of the orderly and effective discharge of the business of Parliament. Those powers, privileges and immunities extended to the parliamentary committees, the chairpersons of committees and Members of Parliament.
13. Parliament was empowered under article 125 of the Constitution to call for evidence including the production of documents. It could not be that documents obtained pursuant to parliamentary processes mutated into public documents just because the respondents were in possession of the documents through an otherwise opaque process. The 1^st to 3^rd respondents had not demonstrated how they gained possession of the impugned documents that were otherwise within a constitutionally sanctioned parliamentary process, to which the respondents had not explained their role.
14. The National Environment Management Authority (NEMA), just like any other statutory regulator, was only seized of the documents in furtherance of its statutory mandate to grant a licence. There existed a specific mechanism of dealing with and/ or relying upon information and documents availed to NEMA, bearing in mind the context within which NEMA received such documents. NEMA was not party to the court proceedings subject to the instant appeal. It was not enough for the 1^st to 3^rd respondents to allege that the documents were obtained from NEMA without the attendant contextualisation especially when the respondents failed to invoke the mechanism provided under the Environmental Management and Co-Ordination Act No. 8 of 1999 (EMCA).
15. The burden of proof always lay with the claimant, that was to say, he who asserted. Indeed, the reading of sections 35, 107 and 109 of the Evidence Act together with rules 15 and 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 revealed that newspaper articles were inadmissible as evidence in law. That was because facts contained in newspaper articles were merely hearsay.
16. In respect of corruption allegations complained of by the 1^st and 2^nd respondents, there were constitutional and statutory mandated bodies to address those. The Ethics and Anti-Corruption Commission Act No.22 of 2011 enacted pursuant to article 79 of the Constitution provided for the functions of the Ethics and Anti-Corruption Commission (EACC) at section 11(1) to include receiving complaints on the breach of the code of ethics by public officers, investigating and recommending to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under the Act or any other law enacted pursuant to Chapter Six of the Constitution. Further, the Witness Protection Agency established under section 3A of the Witness Protection Act No.16 of 2006 had its purpose set out under section 3B(1) as to provide the framework and procedure for giving special protection on behalf of the State, persons in possession of important information and who were facing potential risk or intimidation due to their co-operation with prosecution and other law enforcement agencies.
17. Whereas article 22 of the Constitution entitled every person to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened, and article 258 of the Constitution entitled every person to institute court proceedings claiming that the Constitution had been contravened or was threatened with contravention, those provisions ought not to be abused in the name of public interest. That was, more so, where the litigants sought to advance private or political interests or other considerations through proxies. Attractive as it may sound, public interest litigation must abide by laid down rules of procedure and the law, and must be aimed at addressing genuine public interests and not used for personal gain or vendetta.
18. Public-spirited litigants rushed to courts to file cases in profusion under the attractive name of public interest litigation. They must however inspire confidence in courts and amongst the public, and most importantly, be above suspicions. Easy access to courts under article 22 and 258 of the Constitution should therefore not be misused as a license to file frivolous claims disguised as public interest. Articles 22 and 258 of the Constitution were not open-ended panacea or bogey provisions to be resorted to as a panacea to any person under the guise of public interest. Like any other well intended provision of the Constitution, it was bound to be abused and when that happened, the courts should not hesitate to rein in such abuses.
19. Article 42 of the Constitution entitled every person to the right to a clean and healthy environment which included the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in article 69 and to have obligations relating to the environment fulfilled under article 70 of the Constitution.
20. Article 69 of the Constitution  set out the obligations of the State which included, to eliminate processes and activities that were likely to endanger the environment and establishing systems of EIA, environmental audit and monitoring of the environment. Article 70 of the Constitution provided for the enforcement mechanism and provided that where there were allegations of violations of the rights under article 42 of the Constitution, or there was a likelihood of being denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that were available. The court may then make orders or directions appropriate to prevent, stop or discontinue any act or omission that was harmful to the environment; compel the public officer to take measures to prevent or discontinue any act or omission that was detrimental to the environment or provide compensation for victims of violation of the right.
21. EMCA  was the legislation enacted to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto. Section 58 of EMCA, made provision for the application of an EIA. Every proponent of a project specified under the Second Schedule to EMCA was required to conduct an EIA. Under regulation 4 of the Environmental (Impact Assessment and Audit) Regulations of 2003, no licensing authority shall issue any license, permit or approval prior to the issuance of an EIA.
22. From the EIA report on record, the scope of the report included the identification and discussion of any adverse negative impacts to the environment anticipated from the proposed project and mitigation measures set out therein, on the possible impacts on the environment including emissions to air and exhaust emissions. A notice of the EIA study report of the SGR project in accordance with the provisions of EMCA was published in the Kenya Gazette and a similar publication in a newspaper of wide circulation in Kenya. The gazette notice and the newspaper publication invited members of the public to give comments and/ or complaints within sixty days as required under EMCA. The 1^st to 3^rd respondents had neither rebutted that proposition nor indicated any attempts to react to that notice. Kenya Wildlife Service being a statutory body mandated to conserve and manage wildlife in Kenya, was at liberty to engage its appropriate mechanism. As it was not a party to the instant proceedings.
23. NEMA granted an EIA license to the CRBC. Pursuant to section 129(1) of EMCA, any person aggrieved by the grant of a license or permit or a refusal to grant a license or permit or the transfer of a license or permit under the Act may within sixty days appeal to the tribunal established under section 125 of EMCA. The 1^st and 2^nd respondents grievances on the issuance of the license and the EIA therefore fell within the jurisdiction of the tribunal. They did not avail themselves their day before the tribunal, thereby taking a fatal step to the courts.
24. The bilateral agreement and the MoU were executed in 2009 prior to the promulgation of the Constitution of Kenya, 2010, while the commercial contracts were signed in 2012. From the definition in the Blacks Law Dictionary 11^th Edition, an MoU was preliminary to a contract and or agreement between parties and was characterized as non-binding and unintended to create any contractual obligations on either party. That did not mean that courts were not faced with the question of establishing the binding nature of an MoU. When that happened, a court considered the wording and the apparent intention of the parties.
25. The intention of the parties could be inferred from the wording of the MoU. The MoU was a precursor to the parties entering into legally binding agreements depending on the results of the feasibility study. It was those commercial contracts, once entered into that operationalized the SGR project. The contracts, signed in 2012 and 2014 created legally binding obligations and not the MoU. That was after the Constitution of Kenya, 2010 had been promulgated and operationalized.
26. The issue of retrospective application of the Constitution did not arise as the operationalization of the SGR project occurred under the dispensation of the Constitution of Kenya, 2010. The petitions before the High Court were filed in 2014, four years into the 2010 constitutional dispensation invoking the High Courts jurisdiction under article 165 of the Constitution and under the Sixth Schedule to the Constitution of Kenya, 2010, section 7 thereof allowed all law in force immediately before the effective date to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
27. Article 227 of the Constitution, just like any other provisions of the Constitution were applicable. The applicability of the Constitution of Kenya, 2010 was not pegged on when and how the SGR project was conceptualized or the timing of the documents. The execution of the MoU was before the Constitution of Kenya, 2010 while the commercial agreements and the financing agreement were executed after the  Constitution of Kenya, 2010, had already come into force.
28. Article 227(2) of the Constitution provided for the enactment of a statutory framework within which policies relating to procurement and asset disposal may be implemented to give effect to article 227. That resulted in the enactment of the Public Procurement and Asset Disposal Act, No. 33 of 2015 (PPADA, 2015) which commenced on January 7, 2016, after procurement processes for the SGR. The effect of that enactment was that it repealed the PPDA 2005. Despite its repeal, the PPDA, 2005 applied to the instant dispute as it was the law in force as at the time the petition was filed at the High Court.
29. Section 29 of the PPDA, 2005 dealt with choice of procurement procedure and allowed a procuring entity to use open tendering or an alternative procurement procedure under Part VI which included restricted tendering, direct procurement, request for proposals, request for quotations, low-value procurement, and specially permitted procurement procedure. Section 26 of the PPDA set out the threshold matrix and segregation of responsibilities which any procurement entities needed to have in place for the purpose of ensuring that its decisions were made in a systematic and structured way. Part of such responsibilities was to ensure sufficient funds had been set aside in the budget to meet the obligations.
30. The provisions of the PPDA, 2005 could be ousted under section 6(1) of the PPDA, 2005 where any provision of the Act conflicted with any obligations of the Republic of Kenya arising from a treaty or other agreement to which Kenya was a party, the Act shall prevail except in instances of negotiated grants or loans.
31. KRC was not the procuring entity but merely an implementing entity. That was because it only followed directives issued to it by the Executive. KRC was, despite being a State corporation, never allocated funds towards the project directly from the consolidated funds as the Government itself opted to implement the financing model. KRC could not and did not therefore qualify as a procurement entity under the provisions of section 26(6) of the PPDA 2005.
32. The procurement and contractual agreements between KRC and CRBC, who were both State corporations, were done by the two entities in furtherance of government-to-government understandings for an on behalf of those two governments. That squarely brought the arrangement within the realm of a government to government transaction that was not subjected to the provisions of the PPDA, 2005 as stipulated by section 6(1) of PPDA, 2005. The 1^st to 3^rd respondents, perhaps appreciating the nature of the procurement- as being government to government, never challenged the Ministrys actions before the 3^rd appellant.
33. The position that KRC should have undertaken a limited tender process inviting other Chinese firms with the necessary expertise to bid was untenable as it was no longer upon KRC to undertake any tender process, the Government having intervened and done government to government agreements. The procurement of CRBC was not undertaken by KRC but by the Government through the Ministry of Transport. As the Ministry was not included in the proceedings both before the 3^rd appellant and before the instant court, it would be academic for the court to interrogate the issue further. In any event, the provisions of the PPDA 2005 were ousted in the SGR project.
34. Procurement must conform to the provisions of article 227 of the Constitution even when done pursuant to the obligations of a treaty or agreement or any other procedure. The use of any procurement method including direct procurement did not exclude the principles of fairness, equitability, transparency, competitiveness and cost-effectiveness as provided for under article 227(1). Legality of the Executives actions and directives could only be interfered with by the courts when it was in breach of the Constitution.
35. It had not been demonstrated how KRC, acting not as the procuring entity, but on the directives of the Executive, failed to comply with the provisions of article 227(1) of the Constitution. In any event, government to government procurement was permissible under section 6 of the PPDA 2005. None of the respondents were challenging the constitutionality of that statutory provision. There were avenues such as public participation during the enactment of section 17 of the Customs Tax Act that introduced the railway development levy; the challenge of the constitutionality of the provision of section 6 of the PPDA 2005, and challenge of the environmental concerns at the licensing stage of the project before the National Environment Tribunal pursuant to EMCA to name just but a few of them. None of the respondents and/or the members of the public pursued such avenues before resorting to court litigation.
36. The SGR project was subject to interrogation before Parliament in two committees and none of the respondents opted to be involved. That parliamentary process, which was open to the public, cleared the projects. Under Kenyas constitutional design, the people had the power to exercise their oversight power through elected representatives who were domiciled in Parliament. Whether a citizen agreed with or was satisfied with what was undertaken was a matter of conjecture provided that the laid-out procedure was followed. Like in every democracy, the concept of representing the people or public interest remained a hydra headed mongrel which could not be defined with certainty as it was never possible to get a homogenous viewpoint from the populace. The procurement process for the SGR project met the requirements of article 227 of the Constitution as read together with the provisions of the PPDA, 2005.

Scope of the powers of the Supreme Courts Registrar to impose sanctions/costs on a party that is not compliant with the Registrars directions.

Brief facts

The instant matter emanated from two interrelated appeals in which the Deputy Registrar of the Supreme Court had directed the parties to file submissions. The 3^rd respondent contended that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application to adduce more evidence. Subsequently the Deputy Registrar barred the 3^rd respondent from filing submissions. Aggrieved the 3^rd respondent filed the instant application to review and discharge the decision of the Supreme Court Registrar requiring the filing of submissions. 

Issues

1. What considerations should a courts registrar make in imposing sanctions against a party who failed to comply with the registrars directions?
2. Whether the actions of the 3^rd respondent to not file submissions in compliance with the registrars directions on grounds that they had sought leave to file an application to adduce more evidence that would be relevant in the submissions was contemptuous.

Held

1. The role of a registrar to impose sanctions or orders costs against a party who failed to comply with the directions of the court pursuant to section 10 of the Supreme Court Act and rule 6(1)(c) of the Supreme Court Rules, 2020 and the Supreme Courts authority to review the decision of the registrar under section 11 of the Supreme Court Act as read with rule 6(2) of the Supreme Court Rules 2020.
2. Prudence and precaution must be observed to ensure that the reasons proffered by the Deputy Registrar would clearly and specifically distinguish a decision on the merits of the pleadings as opposed to mere administrative action. A decision in which the law and rules were merely restated without justification may result in injustice.
3. The 3^rd respondents actions were not in any way contemptuous. The reasons afforded by the 3^rd respondent were cogent and valid. It was fair and reasonable for the application to adduce further evidence to be heard and determined first before the 3^rd respondent filed its submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.