High Court at Nairobi (Milimani Law Courts)
Okiya Omtatah Okoiti v Judicial Service Commission, Attorney General & Parliament of Kenya; Katiba Institute (Interested Party)
Okiya Omtatah Okoiti v Judicial Service Commission & 2 others; Katiba Institute (Interested Party)  eKLR
Local tribunals established under article 169(1)(d) of the Constitution are to be managed under the Judiciary and not the Executive.
Okiya Omtatah Okoiti v Judicial Service Commission & 2 others; Katiba Institute (Interested Party)  eKLR
Petition 197 of 2018
High Court at Nairobi
AC Mrima, J
March 11, 2021
Reported by Beryl Ikamari
Constitutional Law - constitutional petition - institution of a constitutional petition - justiciability - claim that local tribunals established under article 169(1)(d) of the Constitution should all be within the competence of the Judicial Service Commission and it was necessary to pass legislation for the tribunals to be handled as subordinate courts within the Judiciary - whether a constitutional petition that sought reliefs requiring Parliament to pass legislation was justiciable.
Constitutional Law - interpretation of the Constitution - interpretation of the term 'local tribunal' as used in article 169(1)(d) of the Constitution - qualities of the local tribunals referred to under article 169(1)(d) of the Constitution - Constitution of Kenya 2010, article 169(1) and 172(1)(c).
Constitutional Law - separation of powers - the Executive and the Judiciary - exercise of judicial authority by local tribunals established under article 169(1)(d) of the Constitution - whether the appointment and removal of members of such tribunals by the Executive violated the principle of separation of powers - whether local tribunals established under article 169(1)(d) of the Constitution should be transited from the Executive to the Judiciary - Constitution of Kenya 2010, article 169(1) and 172(1)(c).
The petitioner sought various reliefs from the court with respect to the Constitution, composition and operations of tribunals established pursuant to article 169(1)(d) of the Constitution. He explained that the tribunals should fall within the competence of the Judicial Service Commission and that the fact that some fell under the Executive was a violation of the doctrine of separation of powers. The petitioner added that the members of the tribunals were appointed under varied terms of service with the tribunals having different rules of procedure. He felt aggrieved by the fact that some of the statute establishing the tribunals did not provide for rights to appeal to superior courts.
In response, the Judicial Service Commission (JSC) explained that it did not have a role to play in tribunals established under articles 144(3), 150(2), 158(4), 168(5)(a) or (b) and 251(4) of the Constitution. It however stated that it had a role to play in the case of local tribunals established under article 169(1)(d) of the Constitution and that such tribunals were part of the Judiciary by virtue of articles 1(3)(c), 20(4) & (5) 24(3), 50(1), 159(1) &2 164(3)(b), 165, 169(1)(d), 171 and 172 of the Constitution. The JSC added that there was no transitional legislation on local tribunals but it had managed to transition 20 local tribunals from the Executive to the Judiciary.
The 2nd respondent, the Attorney General, agreed that it was necessary to transition tribunals established under article 169(1)(d) of the Constitution to the Judiciary from various Ministries and Government Departments. The Attorney General stated that although the Tribunals Bill, 2017, which would have provided the legislative mechanism for the transition had been formulated, it was yet to be approved by the Cabinet. The 2nd respondent posited that a declaration of unconstitutionality of the various statutes constituting the tribunals in question, as sought by the petitioner, would deny persons serving in the tribunal a right to fair administrative action and fair hearing. He added that the 6 months transition, as sought by the petitioner, was too short as the financial cycle was midway its implementation.
The 3rd respondent stated that Parliament was not mandatorily required to enact a law to govern tribunals in Kenya and that article 261 of the Constitution on the dissolution of Parliament for failure to enact laws was inapplicable to the circumstances. The 3rd respondent added that if the petitioner desired the enactment of such a law, he should petition Parliament under article 119 of the Constitution.
Whether a petition that sought reliefs that required Parliament to pass legislation to transition local tribunals, established under article 169(1)(d) of the Constitution, from the Executive to the Judiciary was justiciable.
What was the nature of local tribunals referred to under article 169(1)(d) of the Constitution?
Whether the appointment and removal of members of the local tribunals under article 169(1)(d) of the Constitution by the Executive violated the principle of separation of powers and violated the right to fair hearing under article 50 of the Constitution.
Whether the local tribunals established under article 169(1)(d) of the Constitution should be transited to the Judiciary from the Executive.
The dispute in question was within the mandate of the 3rd respondent (Parliament) and it could be handled by the 3rd respondent in liaison with the 2nd respondent (the Attorney General.) The petitioner wanted to compel the 2nd and 3rd respondent to take the necessary legislative action. An invitation made to a court to exercise powers with respect to constitutional roles reserved to other organs of Government was barred by the principle of separation of powers and the principle of non-justiciability. Nonetheless, there were constitutionally permissible situations in which the court could interfere. For example, in situations where fundamental rights and freedoms or other constitutional provisions were violated.
Pursuant to article 261(1) of the Constitution and the Fifth Schedule to the Constitution, any legislation whose timeline was not specified under the Constitution was to be passed within five years of the promulgation of the Constitution. Therefore, the laws which were contemplated to be passed under article 169 of the Constitution had to be so passed by August 2015.
The petitioner alleged a contravention of the constitutional provisions of article 169(2) of the Constitution by the 3rd respondent and the petitioner, therefore raised serious constitutional issues. The petition was not framed in the Bill of Rights language as a pretext to gain entry into court.
The petition was ripe for court determination and as such an exception to the principle of non-justiciability and the doctrine of exhaustion was applicable.
Article 169 of the Constitution provided a list of subordinate court and it included local tribunals established by statute, other than the courts established as required under article 162(2) of the Constitution.
To understand the context in which the term 'local tribunals' was used in article 169(1)(d) of the Constitution it was necessary to consider the ejus dem generis rule of interpretation. That rule assisted the court in reconciling any incompatibility between specific and general words. The rule accomplished the purpose of giving effect to both specific and general words by treating the particular words as indicating the class and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words.
Article 169(1) of the Constitution enumerated a class of entities before mentioning the local tribunals. They were Magistrates Courts, the Kadhis’ Courts, the Court Martial and any other court. Of much importance was that the title in article 169(1) described subordinate courts to include the local tribunals. Subordinate court were courts subordinate to the superior courts and they dealt with the formal settlement of disputes between parties. Therefore, the local tribunals referred in in the enumeration in article 169(1)(d) of the Constitution were courts of law and they possessed the following qualities: -
They were courts of law;
They were subordinate to the superior courts;
They were not advisory in nature;
They were not administrative tribunals;
They were not presided over by or they did include a judge of the superior courts in their membership; and,
They were formed under an Act of Parliament.
The local tribunals under article 169(1)(d) of the Constitution excluded the following class of tribunals: -
The tribunals formed under the Constitution.
All administrative and advisory tribunals.
All tribunals whose membership included a Judge of the Superior Courts.
All other informal tribunals not formed under the Constitution or any Act of Parliament.
Most of the disputes handled by the local tribunals involved the Executive. As such, the Executive had an obvious advantage as it was responsible for the appointment and removal of the members. In such circumstances, the Executive ought not to be the appointing authority. Instead, that duty ought to be undertaken by an independent entity.
Local tribunals were subordinate courts and their affairs, just like the other subordinate courts, ought to be managed by the Judiciary through JSC. In doing so, the constitutional dictates would be achieved. It would create transparency in the appointment and removal of members of the tribunals which would be done in accordance with the law and the Constitution.
The appointment and removal of members of the local tribunals falling under article 169(1)(d) of the Constitution by the Executive contravened the principle of separation of power and was contrary to article 50(1) of the Constitution. That state of affairs also infringed on the independence of the Judiciary.
The local tribunals, which were subordinate courts, under the administration of the Executive ought to be transited to the Judiciary. The rational for that was provided for under article 160(1) of the Constitution which provided that the Judiciary would not be subject to the control or direction of any person in the exercise of judicial authority.
Members of local tribunals, and in line with the ejus dem generis rule, fell within the category of ‘other judicial officers’ under article 172(1)(c) of the Constitution. Such officers had to be appointed by the JSC. For such appointments to be made by the JSC it was necessary to transition the tribunals to the Judiciary. Under article 169(2) of the Constitution, there was need for a statute to assist in the transition.
The 2nd respondent through the Kenya Law Reform Commission (KLRC) undertook steps towards achieving the transition. The KLRC established Committee on Review of the Rationale for the Establishment of Tribunals in Kenya whose efforts resulted in the formulation of the Tribunals Bill, 2017 which was pending Cabinet approval. Through the JSC, the Judiciary constituted the Judiciary Working Committee on the transition and restructuring of the Tribunals Working Committee. The Committee eventually came up with a Draft Tribunals Bill, 2015. The JSC managed to transition 20 local tribunals from the Judiciary to the Executive. Further, the 3rd respondent engaged the JSC in discussions about the Tribunals Bill 2017.
The petitioner's prayer for a declaration of unconstitutionality of any law that did not vest the duty to appoint or remove any members of the local tribunals created under article 169(1)(d) of the Constitution in JSC, was not specific. There were many statutes constituting the tribunals. An order that lacked specificity could have effects that were too detrimental. For instance, those statutes were likely to make provisions for matters other than the tribunals and annulling them would result in immense disruptions and confusion.
The petitioner’s prayer for the court to annul all appointments to the tribunals under article 169(1)(d) of the Constitution which were not made by JSC could not be granted as the members it targeted were not parties to the petition. The grant of such an order would contravene articles 47 and 50(1) of the Constitution.
The amended petition was justiciable and the court had the jurisdiction to deal with the issues therein.
The local tribunals created under article 169(1)(d) of the Constitution were subordinate courts in Kenya.
The appointment and removal of members of the local tribunals created under article 169(1)(d) of the Constitution by the Executive violated the principle of separation of powers, contravened the right to fair hearing under article 50 of the Constitution and infringed on the independence of the Judiciary.
The local tribunals under article 169(1)(d) of the Constitution had to be transited to the Judiciary and the appointment and removal of their members be undertaken by the Judicial Service Commission.
A declaration that any new appointment or removal of a member of any of the tribunals under article 169(1)(d) of the Constitution had to be undertaken by the Judicial Service Commission. For certainty, such local tribunals included: -
a) Board of Review established under the Prisons Act
b) Business Premises Tribunal established under the Landlord and Tenant (Shops, Hotels & Catering Establishments Act)
c) Provincial Land Control Appeals Board established under the Land Control Act.
d) Central Land Control Appeals Board established under the Land Control Act
e) Gold Mines Development Loans Board established the Gold Mines Development Loans Act
f) Seed and Plants Tribunal established under Seeds and Plant Varieties Act
g) Sugar Arbitration Tribunal established under the Sugar Act
h) Water Resources Management Authority established under the Water Act
i) Water Appeal Board established under the Water Act
j) Water Service Board established under the Water Act
k) Wildlife Conservation and Management Services Appeals Tribunal established under the Wildlife Conservation and Management Act
l) Tourist Appeal Board established under the Tourist Industry Licensing Act
m) Transport Licensing Appeal Tribunal established under Transport Licensing Act
n) State Corporations Appeals Tribunal established under the State Corporations Act
o) Value Added Tax Appeals Tribunal established under Value Added Tax Act
p) Capital Markets Tribunal established under the Capital Markets Authority Act
q) Insurance Appeals Tribunal established under the Insurance Act
r) Co-operative Tribunal established under the Co-operatives Act
s) Hotels and Restaurants Appeals Tribunal established under the Hotels and Restaurants Act
t) Kenya Bureau of Standards established under the Standards Act
u) Restrictive Trade Practices Tribunal established under the Restrictive Trade Practices, Monopolies and Price Controls Act
v) Land Disputes Tribunals established under the Land Disputes Tribunal
w) Land Disputes Appeal Committee established under the Land Disputes Tribunals Act
x) Non-Government Organizations Co-ordination Board established under the Non-Governmental Originations Co-ordination Act
The Hon. Attorney General and the Parliament, being the 2nd and 3rd Respondents, were directed to take proactive steps within their respective dockets towards propagating the Tribunals Bill with a view of transiting the local tribunals under article 169(1)(d) of the Constitution to the Judiciary. To that end, the Hon. Attorney General and the Parliament had to file affidavits within 6 months of this judgment detailing the steps taken. Upon filing of the affidavits, the Deputy Registrar of the court had to schedule the matter for mention on the basis of priority.
No order as to costs.
Text and Journals
1. Garner, BA., (Ed) (2014) Black’s Law Dictionary Thomson West 10th Edn para 1737
2. Burke, J., Allsop, P., (Eds) ( 1951-1953) Stroud Judicial Dictionary London: Sweets & Maxwell 3rd Edn
3. Garner, BA., (Ed) (2009) Black’s Law Dictionary Thomson Reuters 9th Edn p 594
4. Sutherland, H., (Ed) (1948) Sutherland Statutes & Statutory Construction 3rd Edn para 4910
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1. Constitution of Kenya, 2010 articles 1(1); (3)(c); 10(2); 20(4)(5); 23(3); 24(3); 27; 47; 50(1); 73(2)(a); 97(1)(c); 119; 144(3); 150(2); 158(4); 159(1) 2; 161(2)(c); 164(3)(b); 165; 168(5)(a) (b); 169(1)(d) (2); 171; 172(2)(a)(b)(c); 232(1)(g); 261(1)- (Interpreted)
2. Interpretation and General Provisions Act (cap 2) section 23(3)(b) –(Interpreted)
3. Magistrates Court Act, 2015 (Act No 26 of 2015) – In general (Cited)
4. Parliament Act, 2012 (cap 196) – In general (Cited)
1. Okiya Omtatah Okoiti, the Petitioner in person
2. Miss Lipo, Counsel for the 1st Respondent
3. Mr Moimbo, Counsel for the 2nd Respondent
4. Mr Mbarak, Counsel for the 3rd Respondent
5. Mr Dudley Ochiel, Counsel for the Interested Party