The award and honour of the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.) is merit based and is not conferred as of right.

Brief facts

The suit revolved around a claim on the award of the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.). From sometime between December 2008 and 2012, the appellant served as an assistant minister.  The appellant contended that by a notice in the Kenya Gazette of December 11, 2008 to 2012 the President published a list of persons upon whom award, decorations and medals had been conferred. According to the appellant, Ministers, Judges, Assistant Ministers and Members of Parliament that were not decorated with the said award/honour were discriminated against. 

The appellant contended all persons occupying the office of Judge, Member of Parliament, and Major Generals of the Armed Forces, between December 2008 and 2012, were automatically, by virtue of the office held, entitled as of right to the award and honour of the First Class Honour of the Chief of the Order of the Burning Spear. The appellants case at the High Court was dismissed leading to the instant appeal. 

Issues

1. Whetherpersons occupying the office of the President between December 2008 and 2012 were automatically, by virtue of the office held, entitled as of right to the award and honour of the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.)
2. Whether the award and honour of the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.) was awarded on merit or as of right by virtue of occupying specific offices in government.
3. Whether the appellant was discriminated against by not being conferred of the award and honour of the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.) despite serving as an Assistant Minister.
4. Whether the President had absolute and unfettered discretion to award and honour persons with the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.)
5. Whether the Presidents prerogative powers to award persons with the First Class Honour of the Chief of the Order of the Golden Heart (C.G.H.) were derived from common law or the Constitution

Held

1. The role of the first appellate court was to re-evaluate and re-analyze the record and come up with its own conclusions. The hearing of the appeal was in the form of a retrial. However, the first appellate court had to bear in mind that it did not have the advantage of either hearing or seeing the witnesses.
2. The appellant raised 40 grounds of appeal number, most of which were repetitive. An appeal was neither strong nor weak based on the number of grounds one raised. A myriad of grounds of appeal only obfuscated and muddied the real issues for determination in the appeal. Rule 88 (1) of the Court of Appeal Rules, 2022 required a memorandum of appeal to concisely set under distict heads without argument or narrative the grounds of objection to the decision appealed against specifying the points alleged to have been wrongly decided and the nature of the order the which the court was proposed to make.
3. The grounds set forth in the Memorandum of Appeal were not only overwhelming in number but most of them constituted narrations, which made it difficult to demarcate the real issue requiring the attention of the court. If the court were to duplicate the grounds, they would constitute a judgment unto themselves. The rules demanded in no uncertain terms that the grounds of appeal had to be concise without narration or argument.
4. Although the respondent did not file submissions for the courts consideration, he contended that pursuant to rule 100 of the Court of Appeal Rules, entirely relied on the judgment of the High Court. Rule 100 which was not relevant to the submission. The same provides for rights of a respondent when an appeal was withdrawn. The instant appeal had not been withdrawn so as to avail the respondent the rights spelt out under the rule.
5. The respondents counsel failed in his duty to lighten the courts burden by filing submissions which would have been a reference point in arriving at a determination. Counsel had a singular duty of assisting the court in its obligation of making a fair and informed decision. It mattered not that a case did not favour a partys position, for which a party opted not to file submissions. The import of submissions could not be overemphasized as the appeal, just as in many appeals, was to be canvassed by way of written submissions.
6. Article 132 (4)(c) of the Constitution provided that the President could confer honours in the name of the people and the Republic.Article 132 generally provided for the function of the President. The operative word was may which in that context, connoted a choice to act or not. It meant that the act in issue was optional. The National Committee on Honours and Awards made recommendations to the President for persons to be honoured. The honours did not accrue to an individual by virtue of holding an office, so much so that once the individual assumed that particular office, the President did not have the discretion but to confer the award or honour; and that he automatically must honour the award that allegedly accords with that office.
7. Between the year 2008 and 2013 the law that was in place and that guided the award of honours was the Guide to Awards of Orders, Decorations and Medals, Revised Edition (October, 2004). Clause 3 thereof provided that all titles or honours were awarded on merit.  The award of honours at the time was given to people of proved integrity, with the award being seen as very special and a coveted distinction.
8. Awards and honours had to be in recognition of outstanding or distinguished services rendered to the Nation in various capacities and responsibilities. It would demean the value and prestige of an award/honor if it was given in common domain.
9. Not all persons who held the offices that the appellant outlined were necessarily of proved integrity or had rendered distinguished or exemplary service to the nation in their capacities so as to qualify them for automatic awards. That was why the awards accrued with coveted distinction of a career path.
10. If the suggestion made by the appellant were to apply, conferment of the awards and honours would indeed be problematic since each of the specified office holders would be entitled to awards and honours by virtue of the office. It would hardly demarcate the essence of distinguishing persons who had rendered exemplary service to the nation.
11. The courts legal jurisdiction stemmed from, and applied, common law, and hence it would be expected that the dictates in the Constitution on the instant subject obtained from the common law. In England, prerogative powers remained the preserve of the Monarch since the middle ages, but were now exercised largely by Government ministers without the consent of the commons. However, the head of the Monarchy still exercised some prerogative powers known as reserve powers or the personal prerogatives. Some powers were exercised by the Monarch solely while others were exercised on the advice of ministers, advice which by convention, the Monarch was reasonably expected to follow.
12. Although Kenyan laws and statutes stemmed from common law,Kenya had since independence developed and enacted its own laws, tailor made for the Kenyan people. Section 3(1) of the Judicature Act at had explicitly provided the hierarchy and the manner of application of Kenyan laws. Common law could not take precedence over the Constitution considering that article 2 provided for the supremacy of the Constitution.
13. The Constitution remained the supreme law of Kenya which bound all people and State organs. It also governed and regulated all other laws of the land. Though common law was applicable within Kenyas jurisdiction, it did not and could not take precedence over the Constitution and other written laws.
14. Article 132(4)(c) of the Constitution had made it clear that conferment of national awards was the prerogative of the President, which he exercised in accordance with the Constitution and at his discretion. Hence, the President reserved the powers to determine who was entitled to be conferred with an award. Although the powers of the President under the National Honours Act could loosely be described as prerogative powers, they were constitutional powers which ought not to be confused with the prerogative powers of the Monarch under common law.