The test for granting certification to appeal to the Supreme Court as a Court of last resort is different from the test of granting leave to appeal to an intermediate Court

Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another

Motion 42 & 43 of 2014

Supreme Court of Kenya 

W Mutunga; CJ, KH Rawal DCJ, MK Ibrahim, JB Ojwang & NS Ndungu, SCJJ

                                                      May 19, 2016

Reported by Halonyere Andrew & Nowamani Sandrah

Brief facts

On 12^th April, 1989 Kenya Commercial Bank (KCB) granted certain financial facilities to a company called Benjoh Amalgamated Limited, with Muiri Coffee Estate Limited acting as a guarantor.  Benjoh Amalgamated and Muiri Coffee thereafter defaulted in repayment. On default, KCB instructed auctioneers to realize the securities held under the transaction. The auction to realize the securities was scheduled, however Benjoh Amalgamated and Muiri Coffee launched proceedings against the 1^st applicant in the High Court. Consent was entered for payment. There was a default, and KCB instructed auctioneers to move and re-advertise the properties for sale. Meanwhile, Muiri Coffee and Amalgamated Co. filed some other cases before the High Court, seeking an injunction restraining the sale. Those suits were dismissed.

The two parties then reverted to the High Court and filed an application seeking to set aside the consent. The application was allowed. KCB was aggrieved by that decision and appealed to the Court of Appeal. The Appellate Court allowed the appeal thereby reinstating the consent. The dispute between the two sets of parties continued, resulting in yet other suits before the High Court In HCCC No. 1576 of 1999

It emerged that even the Appellate Court’s Ruling on the consent, had been challenged and in a decision rendered, the High Court recognized the question was now res judicata, having been resolved by the highest Court of the land in which was the Court of Appeal. The said High Court determination was appealed before Court of Appeal. The Court of Appeal held that all the issues that had been raised before the High Court were res judicata and that led to the appeal before the Supreme Court.

Issues

1. Whether the matter as certified by the Court of Appeal, had met all the principles for certifying a matter as one of general public importance
2. Was the application before the Court of Appeal, seeking certification for further appeal, barred by the doctrine of res judicata?
3. Whether the test for granting certification to appeal to the Supreme Court as a Court of last resort was different from the test of granting leave to appeal to an intermediate Court.
4. whether the Respondent’s intended appeal involved matters that had been resolved before the promulgation of the Constitution of Kenya 2010, so as to be barred by the doctrine of finality of litigation, and whether in the circumstances the Supreme Court lacked jurisdiction.
5. Whether the Court of Appeal had acted per incuriam, in certifying the cause as one involving a matter of general public importance, and granting leave to appeal to the Supreme Court, where a different Bench of that same Court had denied leave.

Civil practice and procedure – appeal to the Supreme Court – certification of an appeal to the Supreme Court – whether the test for granting certification to appeal to the Supreme Court was different from the test of granting leave to appeal to an intermediate Court

Civil practice and procedure - re judicata - whether the application before the court of Appeal seeking certification for further appeal was barred by the doctrine of res judicata. Constitution of Kenya, 2010, Articles 163 (3) and (4)

Civil practice and procedure - appeals- appeals to the Supreme Court-circumstances under which the appeals would be granted to the supreme court- whether the matter brought before the court was one that raised an issue of general importance to raise the warrant of issuance of appeal to the supreme court-  whether the Court of Appeal acted per incurium in certifying a a cause as one involving a matter of general public importance, and granting leave to appeal to the Supreme Court, where a different Bench of the Court of Appeal had denied leave - Civil Procedure Rules

Relevant provisions of the law

The constitution of Kenya, 2010

Article 47

Article 163(3) (b) (i)

Article 163(4) (a) or (b)

Held

1. It was trite law that in an application for certification and grant of leave to appeal to the Supreme Court, the decisive factor was not whether the Appellate Court decision was perceived as right or wrong by any of the parties, but rather, whether the intended appeal raised “a matter of general public importance”.
2. The test for granting certification to appeal to the Supreme Court as a Court of last resort was different from the test of granting leave to appeal to an intermediate Court for example from the High Court to the Court of Appeal. The primary purpose of the appeal was correcting injustices and errors of fact or law and the general test was whether the appeal had realistic chances of succeeding. If that test was met, leave to appeal would be given as a matter of course. In contrast, the requirement for certification by both the Court of Appeal and the Supreme Court was a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court.
3. The importance of the record of a Court, particularly for a Court of record, such as the High Court, could not be gainsaid. The record of a Court of record was a fundamental reference point in the administration of justice. There was no fault with the Court of Appeal Ruling granting certification and its observations and findings, as regards the vital question of the availability of a record of a Court of record. The Court of Appeal in granting leave reinforced the public-interest element in the issue that speaks to its nature as a matter of general public importance, when it held so.
4. The issue of the character of superior courts as courts of record and the consequences of absence or incompleteness of the record, where rights were determined with finality on the basis of what ought to be on that very record was neither shallow nor idle. Rather, formulated in the precise manner in which it was before the Supreme Court, the issue appeared to  to have far-reaching consequences and implications on the integrity of the adjudicative processes of the Courts.
5. Res judicata was a doctrine of substantive law, its essence being that once the legal rights of parties had been judicially determined, such edict stood as a conclusive statement as to those rights. It would appear that the doctrine of res judicata was to apply in respect of matters of all categories, including issues of constitutional rights. 
6. The doctrine of res judicata in effect, allowed a litigant only one bite at the cherry. It prevented a litigant or persons claiming under the same title from returning to Court to claim further reliefs not claimed in the earlier action. It was a doctrine that served the cause of order and efficacy in the adjudication process. The doctrine prevented a multiplicity of suits, which would ordinarily clog the Courts apart from occasioning unnecessary costs to the parties and it ensured that litigation came to an end and the verdict duly translated into fruit for one party and liability for another party conclusively.
7. Contrary to the respondent’s argument that the principle of resjudicata was not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata was not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entailed more than procedural technicality, and lay on the plane of a substantive legal concept.
8. Whenever the question of res judicata was raised, a Court would look at the decision claimed to have settled the issues in question, the entire pleadings and record of that previous case and the instant case, to ascertain the issues determined in the previous case and whether those were the same in the subsequent case. The Court should ascertain whether the parties were the same, or were litigating under the same title and whether the previous case was determined by a Court of competent jurisdiction.
9. The position advanced by the respondent, and sustained by the Court of Appeal was inconsistent with the principle that an application for certification first came before the Court of Appeal as the court seized of the facts of the matter, and only thereafter does an aggrieved party come to the Supreme Court seeking a review.
10. The crucial doctrine of res Judicata, excludes the possibility that a differing Bench of the Appellate Court from the one that entertained the main cause, would consider the certification question emanating from the same parties, and in the same cause of action.  It was clear that the Court of Appeal was not considering different application-issues.The applications rested on one foundation; and they were seeking the same relief, and were founded upon the very same cause of action.  Hence the proper Bench to entertain that matter was one and the same.
11. The Supreme Court of Kenya was created upon the promulgation of the Constitution of Kenya, 2010.  Before then, the Court of Appeal was the final Court of the land.  The Supreme Court, in exercise of its appellate jurisdiction as provided in the Constitution was forward looking. The Court could only hear appeals from the Court of Appeal in matters that were not concluded before 27^th August, 2010. Any matters that had been determined by the Appellate Court before that time, had attained their finality, and were not appealable to the Supreme Court.
12. The issue of the consent as between the parties in the matter before the Court was determined by two separate Benches of the final Court (Court of Appeal) on 10^th March, 1998 and on 31^st March, 2006. The two decisions were rendered before the promulgation of the Constitution 2010, that was, before the establishment of the Supreme Court. Consequently, they were final and binding and they could not be re-opened by the Supreme Court.
13. In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was that the chain of Courts in the constitutional set-up, running up to the Court of Appeal had the professional competence and proper safety designs to resolve all matters turning on the technical complexity of the law and only cardinal issues of law or of jurisprudential moment, would deserve the further input of the Supreme Court.
14. The Court of Appeal had acted per incuriam, in certifying the cause as one involving a matter of general public importance and granting leave to appeal to the Supreme Court where a different Bench of that same Court had denied leave. The Supreme Court by the terms of the Constitution was not to serve as just another layer in the appellate court structure, it had specific functions that were well defined.

Application partly allowed

 Originating Motion No. 42 of 2014 dated 21^st November, 2014 as consolidated with Originating Motion No. 43 of 2014 dated 21^st November, 2014 were allowed.

The certification of the Court of Appeal granted in Application Sup. No. 20 of 2013 on 7^th November, 2014 was set aside.

The Petition of Appeal already filed by the respondent in the Supreme Court, being Appeal No. 35 of 2014, was struck out, as its sub-strum, namely the certification granted by the Court of Appeal, was spent.

 Each party to bear  own costs.

Cases

East Africa

1.  ET v Attorney-General & another [2012] 1 KLR 129 – (Followed)

2.  Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone Civil Application No 4 of 2012– (Considered)

3.  Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3 – (Followed)

4.  Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] 3 KLR 199 – (Followed)  

5.  Malcolm Bell v Daniel Toroitich arap Moi & another Application No 1 of 2013 - (Mentioned)

6.  Menginya Salim Murgani v Kenya Revenue Authority, Civil Application No 4 of 2014- (Followed)

7.  Murgani, Menginya Salim v Kenya Revenue Authority Civil Application No Sup 4 of 2013- (Mentioned)

8. Nathif Jama Adam v Abdikhaim Osman Mohammed & others Petition No 13 of 2014– (Explained)

9.  Ndegwa, Bernard Mugo v James Nderitu Githae & 2 others Civil Case No 101 of 2006 – (Followed)

10. Ndutu & 6000 others v Kenya Breweries Ltd & another [2012] 2 KLR 804– (Relied Upon)

11. Ngoge v Kaparo & 5 others [2012] 2 KLR 419– (Followed)

12. Njiroine, Daniel Shumari v Naliaka Maroro Motion No 5 of 2013 – (Explained)

13. Omega Chemical Industries Limited v Barclays Bank of Kenya Limited, Application No 6 of 2013 – (Approved)

14. Otuke, Silas Make v Attorney-General & 3 others Petition No 44 of 2013 – (Relied Upon)

15.  Ronald Reagan Okumu v Attorney- General, Miscellaneous   Application No 0063 of 2002, High Court HCT 02 CV MA 063 of 2002 – (Considered)

16. Sum Model Industries Ltd v Industrial & Commercial development Corporation Civil Application No 1 of 2011 – (Approved)

United Kingdom

1. Henderson v Henderson (1843) 67 ER 313; [1843] 3 Hare 100 – (Applied)

Statutes

East Africa

1. Constitution of Kenya, 1963 Repealed   section 75 – (Interpreted)

2. Constitution of Kenya, 2010 articles 47, 163 (3) (b) (i) (4) (a) (b) – (Interpreted)

3. Uganda Constitution, articles 50, 137 – (Interpreted)

Texts & Journals

1. Mohan, M., (Ed) (2011)  Mulla, Code of Civil Procedure, Wadhwa: LexisNexis Butterworth 18^th Edn

Advocates

1. Mr Oraro, SC and Nyachoti for the Applicant

2. Mr Mansur for the 2^nd Applicant

3. Mr Meenye  for the  KCB

4. Mr Muite for the Respondent

Legal considerations relating to the exercise of advisory opinion jurisdiction by the Supreme Court

Speakers of the 47 County Assemblies v Commission on Implementation of the Constitution & 2 others

Advisory Opinion Reference No 3 of 2014

Supreme Court of Kenya

K H Rawal, DCJ & VP, M K Ibrahim, J B Ojwang, S C Wanjala & S N Ndungu, SC JJ

April 20, 2016

Reported by Beryl A Ikamari

Brief facts

On June 21, 2013, the Salaries and Remuneration Commission (SRC) issued a circular limiting the number of sittings of committees of County Assemblies to eight in one week. The Speakers' opinion was that the circulars were an interference with their independence which was contrary to article 189(1) of the Constitution. Furthermore, the Applicants apprehended that the Ethics and Anti-Corruption Commission (the 2^nd Interested Party) was in the process of imposing regulations on the operations of County Assemblies.

Initially, the Applicants unsuccessfully sought legal advice from the Attorney General in relation to the circular. Thereafter, Applicants sought an Advisory Opinion from the Supreme Court pursuant to the provisions of article 163(6) of the Constitution. The issues concerning which they sought the opinion included questions on whether a Constitutional Commission or an Independent Office could, through a Circular, regulate the internal affairs of a County Assembly, such as the sittings of the Assembly or a County Government organ. The other issues for which an opinion was sought were on the nature, if any, of immunity enjoyed by a member of the County Assembly with respect to proceedings and speech at the County Assembly and on what would constitute valid grounds for the removal of a Speaker of a County Assembly.

The Applicants stated that the procedure for the removal of a County Assembly Speaker under section 11 of the County Assembly Act, No. 17 of 2012, was in conflict with the provisions of article 47(1) & 47(2) of the Constitution. The removal of the Isiolo County Assembly Speaker from office was cited as a case of a groundless decision which was of relevance to the conflict between the statute and the Constitution.

In response, the Respondent filed a Preliminary Objection stating that the Court lacked jurisdiction to render an Advisory Opinion. The Respondent said that the Supreme Court's jurisdiction was not to be exercised because the issues raised called for an interpretation of the law and were matters that could be determined through litigation at the High Court and some issues were already the subject of such litigation or had been decided on.

Issue:

1. Circumstances under which the Supreme Court would exercise its advisory opinion jurisdiction.

Jurisdiction-jurisdiction of the Supreme Court-advisory opinion jurisdiction-advisory opinion sought to challenge the constitutionality of a statute and the actions of a Constitutional Commission- the effect of allegations that matters which formed the subject of the advisory opinion were also matters which formed the subject of Court proceedings at the High Court-Constitution of Kenya 2010, article 163(6)

Constitution of Kenya 2010, article 163(6);

(6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

Held

1. A Preliminary Objection was capable of being raised only with respect to a pure question of law. A Preliminary Objection would not relate to a contest on the facts which it concerns. Questions which related to the jurisdiction of the Court were questions which raised a pure point of law. The instant Preliminary Objection was about the jurisdiction of the Supreme Court and it was on a pure point of law. There was no contest relating to the issuance of the circular by the Salaries and Remuneration Commission and also to the attempts at removing the Isiolo County Assembly Speaker.
2. The jurisdiction of the Supreme Court to render an advisory opinion was provided for in article 163(6) of the Constitution. Under that provision, the Supreme Court had the discretion to give an advisory opinion at the request of the National Government, any State organ, or any County Government with respect to any matter concerning County Government.
3. The Supreme Court issued guidelines on the exercise of its advisory opinion jurisdiction. Those guidelines included the following;

a)     The matter concerning which an advisory opinion was sought had to be a matter concerning County Government. Whether a matter concerned County Government was a question to be determined on a case by case basis.

b)     The only parties that could request for an advisory opinion were the National Government, a State organ, or County Government. Other parties could be joined to the proceedings with leave of Court as an Interested Party or amicus curiae.

c)     The Supreme Court would be hesitant to render an advisory opinion over matters which were the subject of Court proceedings at a lower Court. However, despite the existence of such proceedings, the Supreme Court would render advisory opinion, if it was satisfied that it was in public interest to do so.

d)     Despite the existence of Court proceedings over a matter for which an advisory opinion was sought, the Supreme Court would render an advisory opinion if the Applicant demonstrated that the issue was of great public importance and required urgent resolution through an advisory opinion. Additionally, such an Applicant would have to demonstrate that the issue in question would not be amenable to expeditious resolution through adversarial Court process.

4. The instant Application concerned questions relating to the operation of County Governments and specifically the operations of County Assemblies. Additionally, it was brought by the Speakers of County Assemblies. Therefore, in accordance with the guiding principles relating to the advisory opinion jurisdiction of the Supreme Court, the Application revolved around a matter concerning a County Government.
5. The Salaries and Remuneration Commission under article 230 of the Constitution was mandated to set and regularly review the remuneration and benefits of all State Officers. The Applicant's argument was that the mandate of the Salaries and Remuneration Commission did not allow it to regulate the internal affairs of Counties. Rendering an advisory opinion would mean that the Supreme Court would either declare the circular unconstitutional, or affirm the actions by the SRC as valid under article 230 (4) of the Constitution. However, such a determination would not serve the purpose for which the advisory opinion jurisdiction was sought. The issue being canvassed was clearly justiciable and raised no novel constitutional questions that would merit the Court's intervention.
6. The Applicants also asked the Court to develop jurisprudence by way of guidelines, as to the appropriate procedure for the removal of a County Speaker under the County Government Act but such matters on the removal of a County Assembly Speaker had been canvassed by the High Court. Having been canvassed by the High Court, the question on the appropriate procedure for impeaching a County Assembly Speaker was not a proper subject for an advisory opinion reference.

Preliminary Objection upheld and reference for an advisory opinion dismissed.

Cases

East Africa,

1. Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others Application No 50 of 2014 – (Explained)
2. County Secretary, Isiolo v Speaker, Isiolo County Assembly Mohammed Tubi Petition 418 of 2014 – (Mentioned)
3. Gacheche, Jeanne W & 6 others v Judges and Magistrate’s Vetting Board & 2 others Judicial review Nos 295, 11 433, 434, 438 of 2012 (Consolidated) – (Mentioned)
4. In re Application by the Kenya National Commission on Human Rights Reference No 2 of 2012 – (Explained)
5. In re Independent Electoral Commission Application No 2 of 2011 – (Mentioned)
6. In re National Land Commission Advisory Opinion No 2 of 2014 – (Explained)
7. In re the Interim Independent Electoral Commission (IIEC) Advisory opinion No 2 of 2011 – (Explained)
8. In re the National Gender and Equality Commission Reference 1 of 2013 – (Mentioned)
9. In the re the Principle of Gender Representation in the National Assembly and the Senate Application No 2 of 2012 – (Explained)
10. Independent Elections and Boundaries Commission v Jane Chepenger & 2 others Civil Application No 36 of 2014 – (Explained)
11. Judicial Service Commission v Speaker of the National Assembly & 8 others Petition 518 of 2013 – (Mentioned)
12. Macharia, Samuel Kamau v Kenya Commercial Bank & 2 others Application No 2 of 2011 – (Mentioned)
13. Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1996) EA 696 – (Mentioned)
14. Owners of Motor Vessel “Lilian S” v Caltex Oil Kenya Limited (1989) KLR 1 – (Mentioned)
15. Speaker Nakuru County Assembly & 46 others v Commission on Revenue Allocation & 3 others Petition No 368 of 2014 – (Mentioned)
16. Speaker of Senate & another v Attorney General & 4 others Advisory Opinion No 2 of 2013 – (Explained)
17. Wambora, Martin Nyaga v Speaker County Assembly of Embu & 5 others Petition No 3 of 2014 – (Mentioned)

India

1. Asif Hameed & others v State of Jammu & Kashmir & others (1989) AIR 1899, 1989 SCR (3) 19 – (Mentioned)

Statutes

East Africa

1. Constitution of Kenya, 2010 article 15,47(1)(2); 163(6); 165(3)(d); 176(1); 178(1),(3); 189(1); 230(4)  - (Interpreted)
2. County Assembly Act, 2012 (No 17 of 2012) section 11- (Interpreted)  
3. Supreme Court Act, 2011 (Act No 7 of 2011) section 3(c) - (Interpreted)

Advocates

1. Ms Ilham H/B for Prof Ojienda for the Applicants

Jurisdiction of the Supreme Court in determining whether a matter is of General Public Importance

 Olive Mugenda v Wilfred Itolondo & 11 others

 Civil Application no 21 of 2015

 Supreme Court of Kenya at Nairobi

 KH Rawal DCJ and V-P; MK Ibrahim, JB Ojwang, S C Wanjala and SN Njoki, SCJJ

 March 17, 2016

Reported by Phoebe Ida Ayaya

Civil practice and procedure – appeals - appeals to the Supreme Court – certification of matters to the Supreme Court - whether the issue of reappointment of the applicant brought before the court was one that raised an issue of general public importance that could warrant certification of an appeal to the Supreme Court.

 Jurisdiction- jurisdiction of the Supreme Court - jurisdiction of the Supreme Court to determine matters of general public importance-what amounted to matter of general public importance- whether the Court had jurisdiction under article 163 (4) (a) of the Constitution of Kenya, 2010

Brief Facts

This was an application for review before the Supreme Court, of a decision of the Court of Appeal certifying an intended appeal as one raising matters of general public importance. The applicant submitted that the Court of Appeal had erred by holding that the procedure for re-appointment of statutory officers raised issues of general public importance.

Issues

1. Whether the issue of validity of the reappointment of the applicant raised a matter of general public importance that could invoke the Supreme Court’s jurisdiction under article 163(4)(b) of the Constitution.
2. What is the guiding principle in interpreting any law touching on the Supreme Court’s appellate jurisdiction?

Relevant Provisions of the law

 Constitution of Kenya, 2010

 Article 163 (4)

  “Appeals shall lie from the Court of Appeal to the Supreme Court –

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

  (b) in any other case in which the Supreme Court, or the Court of Appeal certifies that a matter of general public importance is involved, subject to clause (5)

 Clause 5 provides that a certification by the Court of Appeal under clause 4 (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned

Held

1. Jurisdiction was always a prior question, and where it was being contested, a Court had to first determine whether it was indeed, seized of jurisdiction. That was by no means an issue of mere procedural technicality, it went to the very heart of the matter, and without it, the Court was not set to hear any proceedings.
2. In determining that issues of constitutional application exist in the matter, the Appellate Court was guided by the principle set out in article 159 (d) of the Constitution, that justice shall be administered without undue regard to procedural technicalities.
3. The Appellate Court fell into error of both fact and law when it raised the issues of applicability of the Constitution, when such issues had neither been raised nor canvassed in the High Court or in the Court of Appeal. There was no opportunity to make a rebuttal on whether issues of Constitutional application existed in the matter.
4. All Courts had to ensure that they maintained their role as independent and impartial adjudicators. That would be the only proven way to ensure that they did not descend into the arena of conflict. They would inevitably descend into a tumultuous arena when they unilaterally frame new issues for determination, completely distinct from the issues pleaded and canvassed by the parties. That would manifestly deny the relevant party the right of reply, and would compromise the terms of article 50 (1) of the Constitution. That should not to be allowed to happen.
5. The Court of Appeal was bound under section 3B of the Appellate jurisdiction Act to handle all matters that would be before it, for the purposes of attaining a just determination of the dispute before it. That would as a matter of course entail the need to ensure that the principle of proportionality was adhered to, and that there existed a level playing ground for all parties.
6. The Appellate Court determined that in reappointing the applicant, the President was not exercising a power under the Constitution, so as to bring the matter within the purview of Article 135. The Court also determined that article 232, with regard to competitive recruitment, was inapplicable, as the issue at hand was a reappointment of the applicant, and not a fresh recruitment.
7. The constitutional issues raised and determined at the Appellate Court, which was the subject of the intended appeal, were issues of application of the Constitution which fell squarely within the category of a collateral cause in the Court of Appeal. The matter before that Court was not one of constitutional application. It revolved around the validity of the reappointment of the applicant. Therefore, that being a collateral cause, it was not appealable to us under article 163 (4) (a). Further, the Appellate Court’s reasoning, and the conclusions which led to the determination of the issue, could not properly be said to have taken a trajectory of constitutional interpretation or application.
8. Matters concerning legality or otherwise of appointment of persons to constitutional office under the Constitution could no longer be considered novel or difficult. Since the Constitution was promulgated, the High Court has dealt with cases concerning appointment of persons to state and public office.
9. In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, deserved the further input of the Supreme Court.” Based on that principle, the Supreme Court could not possibly exercise its jurisdiction under article 163(4) (a) of the Constitution.
10. The issues claimed to be of general public importance by the respondents, had not been the subject of judicial determination in any of the Superior Courts, and did not therefore fall for determination in the Supreme Court.
11. The Supreme Court’s jurisdiction had not been properly invoked and the Appellate Court should not have granted certification for a further appeal, whether under Article 163 (4) (a) or 163 (4) (b) of the Constitution.

Application partly allowed, Court of Appeal ruling of July 31, 2015 granting leave to appeal to appeal to the Supreme Court dismissed, petition filed by the respondents on August 6, 2012 disposed of.

Cases

 East Africa

 1.  Centre of Human and Democracy v Moi Teaching and Referral Hospital Board & 2 others Petition No 8 of 2011- (Mentioned)

 2.  Erad Suppliers & General Contractors Limited v National Cereals & Produce Board Petition No 5 of 2012 – (Mentioned)

 3.  Gatirau, Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014 - (Mentioned)

 4.  Gatirau, Peter Munya v Dickson Mwenda Kithinji & 2 others Civil Application No 5 of 2014 – (Mentioned)

 5.  Gatirau, Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No 2 of 2014 – (Explained)

 6.  Independent Electoral & Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal No 219 of 2013 – (Mentioned)

 7.  Joho, Hassan Ali & another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 - (Mentioned)

 8.  Kamau, Kinyanjui v George Kamau Njoroge civil Appeal No 132 of 2005 - (Mentioned)

 9.  Kenya Section of the International Commission of Jurists v Attorney-General & 2 others Criminal Application No 1 of 2012 – (Explained)

 10.  Kinyanjui, J Harrison v Attorney General & Another Petition 74 of 2011 – (Mentioned)

 11.  Kinyua, Anne v Nyayo Tea Zone Development Corporation & 3 others Cause No 1065 of 2012 - (Mentioned)

 12.  Macharia, Samuel Kamau & another v Kenya Commercial Bank Limited & 2 others Application No 2 of 2011

 13.  Mawji, Baber Alibhai v Greenfied Investments Limited & another Civil Appeal Nos 269 of 2001 & 155 of 2004 (Consolidated) – (Mentioned)

 14.  Mberia, Joseph Mutuura & another v Cabinet Secretary for Education Science & Technology & 2 others Petition No 33 of 2013 - (Mentioned)

 15.  Muigua, David v Attorney General & Another Petition No 161 of 2011 - (Mentioned)

 16.  Mumo, Matemu v Trusted Society of Human Rights Alliance & 5 others Petition No 12 of 2013 - (Mentioned)

 17.  Mureithi, Benson Riitho v JW Wakhungu & 2 others Petition No 19 of 2012 - (Mentioned)

 18.  Musiara Ltd v William Ole Ntimama Civil Application No 271 of 2003 - (Mentioned)

 19.  Mwau John & 2 others v Attorney- General & 2 others Petition No 123 of 2011 – (Mentioned)

 20.  Nduttu, Lawrence & 6000 others v Kenya Breweries Limited & another Petition No 3 of 2012 - (Explained)

 21.  Ngoge, Peter Oduor v Francis Ole Kaparo & 5 others Petition No 2 of 2012 – (Approved)

 22.  Songok, Chumo Arap v David Kibiego Rotich Civil Appeal No 141 of 2004 – (Mentioned)

 23.  Steyn, Hermanus Phillipus v Giovanni Gnecchi Ruscone Application 2 of 2012 – (Explained)

 24.  Trusted Society of Human Rights Alliance & 5 others v Mumo Matemu Petition No 229 of 2012 - (Mentioned)

 United Kingdom

 1.  Jones v National Coal Board [1957] 2 QB 55-(Approved)

 Statutes

 East Africa

  1.  Appellate jurisdiction Act (cap 9) section 3B – (Interpreted)

 2.  Civil Procedure Act (cap 21) section 27 – (Interpreted)

 3.  Constitution of Kenya, 2010 articles 2; 3(a),(b)(d); 4; 10; 22(2)(c); 47; 50(1),(2); 73, 134(2)(b); 135; 159(2)(a)(b),(d);163(4)(a)(b),(5); 232,(1)(9); 258; 259(1); Sixth schedule section 7 – (Interpreted)

 4.  Kenyatta University Act (Repealed) (cap 210C) section 10,(3) – (Interpreted)

 5. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 24(2) – (Interpreted)

 Advocates

  1.  Mr Regeru for the Applicant Application No 21 of 2015

 2.  Mr Wetangula for the Applicant Application No 20 of 2015

 3.  Ms Mbilo for the Interested Parties

 4.  Ms Shamalla for the 6th Interested Party

Considerations in constituting Supreme Court’s Bench-size to reconsider Supreme Court’s past precedents

Chris Munga N. Bichage v Richard Nyagaka Tong’I & 2 others

Petition 17 of 2014

Supreme Court of Kenya

W.M. Mutunga - CJ, K.H.  Rawal - DCJ, M K Ibrahim, J B Ojwang & S C Wanjala, SCJJ

February 26, 2016

Reported by Kipkemoi Sang

Brief facts

The 1^st Respondent, a contestant for the seat of Member of National Assembly for Nyaribari Chache Constituency was aggrieved by a dismissal of an election appeal in the Court of Appeal against him. On May 18, 2015, he filled an application to obtain leave from the Supreme Court and was denied on grounds that the Applicant introduced fresh evidence through a supplementary affidavit.

On January 23, 2016, the 1^st Respondent filled submission before the Supreme Court raising a proposition that; a Bench of seven judges, be established to determine the question whether the Supreme Court’s holding in Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Sup. Ct. Petition No. 10 of 2013 should be departed from.

His submission further raised the questions as to: whether the Supreme Court of Kenya, sitting as a five judge-Bench, was properly constituted to determine matters entailing constitutional issues, such as; a request to the Court to depart from a judgment that had been rendered by a seven-judge bench.

Issues

1. Whether a quorum of more than five judges was required to determine:
   1. any appeal before the Supreme Court
   2. a departure  from a decision of a five-judge Bench
2. What were the consequences of a quorum-deficit in the Supreme Court in performing its prescribed constitutional functions?
3. What should be the legitimate, rational, and valid bench-quorum, in a case which a party was urging the Court to depart from its previous decision arrived at by a bench comprising of five judges?
4. What were the emerging principles on the question of quorum of the Supreme Court bench, worthy of consideration from the comparative jurisprudence of judicial experiences?

Constitutional Law- Supreme Court -quorum of the Supreme Court bench-valid Bench quorum in cases requiring reconsiderations or departure of the Supreme Court’s own judicial decisions -bench quorum deficits- what should be the legitimate, rational, and valid bench-quorum, in a case which a party was urging the Court to depart from its previous decision arrived at by a bench comprising five judges - what were the consequences of a quorum-deficit in the Supreme Court in performing its prescribed constitutional functions?-Constitution of Kenya, 2010, article 163(2); Supreme Court Act (cap 9A), section 23(1)

Constitutional Law –principles of law-comparative jurisprudence of judicial experiences- what were the emerging principles on the question of quorum of the Supreme Court bench, worthy of consideration from the comparative jurisprudence of judicial experiences

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 163 (3) –Supreme Court

 (3)  The Supreme Court shall have—

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and

(b) (b) subject to clauses (4) and (5), appellate jurisdiction to hear and determine appeals from—

(i)    the Court of Appeal; and

(ii)  any other court or tribunal as prescribed by national legislation.

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

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

(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).

(5)  A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Supreme Court Act (cap 9A)

Section 23- Exercise of powers of the Court

(1)  For the purposes of the hearing and determination of any proceedings, the Supreme Court shall comprise five judges.

(2)  Any two or more judges of the Supreme Court may act as the Court—

(a)  to decide if an oral hearing of an application for leave to appeal to the Court should be held, or whether the application should be determined solely on the basis of written submissions; or

(b)  to determine an application for leave to appeal to the Court.

Held

1. Article 163(2) of the Constitution stipulated that the Supreme Court was properly constituted for purposes of its proceedings if it had a Bench of five judges. A five-judge bench was required for any appeal to the Supreme Court, in accordance with the Constitution; and the recusal of a judge as a matter of course, should not be a factor standing in the way of that principle. Section 23(1) of the Supreme Court Act replicated the Constitutional provision and stated that; for the purposes of hearing and determination of any proceedings, the Supreme Court should comprise of five judges.
2. A quorum-deficit in the Supreme Court rendered it impossible to perform its prescribed constitutional functions. Such a possibility would be contrary to public policy and would be highly detrimental to public interest, especially given the fact that the novel democratic undertaking of the Constitution of Kenya, 2010 was squarely anchored firstly, on the Superior Courts, and secondly, on the Supreme Court as the ultimate devices of safeguard.
3. The total number of the Supreme Court judges in Kenya at any given time under the Constitution was seven. The minimum that should sit and determine a matter was five.  That meant that the only allowance given by the Constitution, of the Judges who could be away for whatever reason, was two. If one of the remaining five was required to disqualify him/herself, it could be argued that out of necessity the Judge would have to sit, to ensure that there would be no failure of justice due to the Bench being below the quorum set by the Constitution.
4. Where a question posed to the Supreme Court was neither in the rules nor in the guidelines, were judges required to revert to the spirit of common law, which empowered them to devise laws that were in consonance with the letter and spirit of the Constitution. The design of common law strategy was one that observed past judicial trends, and constructed upon any historical pillars already erected by judges. The instant case required comparative jurisprudence.
5. Good practices, in the cases of the United States’ Supreme Court, and the Constitutional Court of South Africa, dictated sittings as full bench in virtually all cases and obviously, such would be the position even where a party sought a departure from precedent already laid down. The question whether it was a larger bench-size reconsidering an earlier decision by a smaller bench-size, therefore, became largely academic; and no impropriety was attributed to the prospect of a Bench reconsidering a precedent set by an earlier bench of equal strength.
6. It was in keeping with good order that a larger bench-quorum was necessary for the reconsideration of a precedent laid by a more limited bench. Conventionally, it was fallen unto the Chief Justice as director of judicial functions, to constitute such suitable bench for the reconsideration of a past judicial decision.
7. It had not been possible in the different jurisdictions to apply the same rules as to Supreme Court bench-size, for the reconsideration of Court’s past precedents. Several factors of unquestionable merit had accounted for such variations of judicial practice, for instance:
   1.  the size of the Supreme Court membership differed from one country to another;
   2. divergent statutory provisions regarding particular sitting benches for instance in the case of Canada, a judge of the Supreme Court was disqualified from hearing an appeal on a matter he or she had entertained while serving in a lower Court;
   3. some of the Countries attached a special rating to any particular appeal-subject for the purpose of setting the size of the proper appellate bench;
   4. varying local factors of the greatest public interest.
8. The Court should accommodate the pragmatic dimension, and should incorporate in the  guidelines certain specific considerations for instance:
   1. the notable, relevant aspects of the Constitution of Kenya, 2010;
   2.  the relatively limited size of  the Supreme Court bench;
   3.  the fundamental lines of constitutional interpretation already emerging from the electoral and related jurisprudence in particular, the factor of timeliness in the resolution of electoral disputes;
   4. the occasional interruptive situations that had afflicted the due functioning of a fledgling apex court.
9. The decision of the Supreme Court bench under article 163(7) of the Constitution, was binding on all lower Courts in Kenya. The 1^st Respondent’s contention did not fall within the category of policy and judicial considerations emerging as lessons from the comparative experience. The 1^st respondent’s position rested on a rather narrow base, and was more in the nature of an abstract quest for validation, than a practical view of the merits of a bench-size in the Supreme Court, where it considered departing from its past decision.
10. Several factors were relevant, including the clear implications to be drawn from the written Constitution; the relevant perceptions of justice and fairness; the limitations and realities attending the functioning of the Constitution; and the like. Were it not for such practical, contextual and nuanced elements, which should confer upon the Court some discretionary remit, a plain solution would have been to subject a precedent emanating from a five-judge bench to a larger bench, for reconsideration. However, in the present circumstances, lesson ought to be drawn from the practice elsewhere.
11. The Supreme Court of Kenya had the limited-size bench of seven judges, which on occasions could not sit as such, but as a five-judge or six-judge bench ought to be considered. Given the challenge of bench-size, in a new Supreme Court that was in quest of greater stability, and in the light of the latitude allowed by the Constitution, the prescribed minimum bench-quorum, with the essential research and scholarly assistance, and with the back-up of professionally-competent advocacy from the Bar, would be properly constituted to hear and determine all matters coming up before it. Such a bench was duly empowered to hear and determine matters as prescribed in article 163(3), (4),(5),(6) and (7) of the Constitution, and in the relevant legislation and regulations. The Court could sit, whether with its minimum quorum of five judges or more, in reconsidering the precedent set in the Joho case.

Petition allowed. Parties to bear their own costs.

Legal considerations pertaining to applications for parties to be joined as amici curiae and as interested parties at the Supreme Court

Francis Karioki Muruatetu & another v Republic & 3 others

Petition 15 & 16 of 2015 (Consolidated)

Supreme Court at Nairobi

K H Rawal, DCJ & VP, M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SC JJ

January 28, 2016

Reported by Beryl A Ikamari

Brief facts

Three applications were brought by parties which sought to be enjoined in the matter. In the first application, the Death Penalty Project wanted to be enjoined as amicus curiae. The Death Penalty project was to be enjoined for purposes of assisting the Court in the interpretation and application of the law on the abolition of the mandatory death penalty in other common law jurisdictions and the applicable law if the death penalty was found to be unconstitutional in Kenya. It stated that it had unique international expertise on that question.

The second application was by Katiba Institute which sought to be enjoined to the proceedings as an interested party. It wanted to submit written and oral arguments and any other information or evidence that it deemed important and relevant to the just disposition of the matter.

The third application was from three Applicants, namely, Kenya National Commission on Human Rights (KNCHR), Kenya Section of the International Commission of Jurists (ICJ- Kenya), and Legal Resources Foundation, which sought to be enjoined as Interested Parties. The Applicants in the third application were members of a caucus known as the ‘Death Penalty Coalition.’ They sought to offer their expertise on the subject of the death penalty. They stated that they were institutions which dealt with human rights and had done research on the death penalty in the past. Their research was specifically on whether the death penalty as provided for in Kenyan law accorded with Kenya's international human rights obligations.

Issues

i.                Whether the Applicants satisfied legal requirements governing applications for parties to be enjoined as interested parties in a Supreme Court Petition.

ii.              Whether the application for the Death Penalty Project to be enjoined as an amicus curiae met the legal threshold set for such an application.

Criminal Practice & Procedure-parties to criminal proceedings-joinder of parties- joinder of interested parties-legal threshold to be met for purposes of an application to be joined as interested parties at a Supreme Court Petition- Supreme Court Act, No 7 of 2011, section 25

Criminal Practice & Procedure-parties to criminal proceedings-joinder of parties- joinder of amici curiae-circumstances in which the Supreme Court would allow an application for a party to be enjoined to a suit as an amicus curiae.

Supreme Court Act, No 7 of 2011, section 25;

Interventions.

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. Section 25 of the Supreme Court Act, 2011 entailed legal provisions for applications for enjoinment as interested parties. A party seeking to be enjoined as an interested party had to make a formal application to Court and the Court had the discretion to enjoin the party on the basis of the following elements, namely;

a)    The application would have to disclose the personal interest or stake that the party had in the matter. That interest had to be clearly identifiable and proximate enough to be distinguished from anything that was merely peripheral.

b)    The prejudice that would be suffered by the non-joinder of the intended interested party had to be demonstrated to the Court's satisfaction. The prejudice would have to be one that was not remote but one that was clearly outlined.

c)    The intended submissions and their relevance had to be set out in the application. The party seeking to be enjoined had to demonstrate that the submissions were not merely a replication of what other parties were going to submit to the Court.

2. An interested party would join proceedings on terms that the overriding interest or stake was always that of the primary or principal parties before Court. Interested Parties were only remotely or indirectly affected but the primary impact was on the parties who moved the Court first.
3. Whether or not interested parties were enjoined to a suit, the issues to be determined by the Court would still be the issues presented by the principal parties or as framed by the Court from the pleadings and submissions of the principal parties. An Interested Party could not frame its own fresh issues or introduce new issues for determination by the Court. The stake that the interested party was required to have in the matter could not form an altogether new issue introduced to the Court. 
4. The issue on the constitutionality of the death penalty or its abolition was not presented for determination by the Petitioners. Any interested party which sought to steer the Court towards a consideration of such new issues would not be allowed to do so.
5. Issues on constitutionality of the death penalty or its abolition were issues of constitutional interpretation. Such issues could not be canvassed at the Supreme Court at the first instance as if the Supreme Court was a Court of first instance.
6. Criminal proceedings were different from civil proceedings. Criminal proceedings would touch on the personal fundamental rights and freedoms of an individual and particularly the right to liberty. Just as the standard of proof (beyond reasonable doubt) in criminal proceedings was higher so should the threshold for admission of interested parties in criminal proceedings be higher than it would be in civil matters where the standard of proof was on the balance of probability.
7. Article 22 of the Constitution allowed persons to institute proceedings for enforcement of fundamental rights and freedoms in order to protect public interest. However, article 22 was not a basis for the admission of an interested party to any existing proceedings, where such a party had not shown a personal stake or interest in the matter and only sought to champion public interest. Article 22 was not a formula for the admission of interested parties to any Court proceedings.
8. The Death Penalty Project was seeking to be enjoined as amicus curiae in order to assist in offering legal expertise. It was an institution which dealt with criminal law, constitutional law and international human rights law in relation to the death penalty. It only sought to restrict itself to issues raised in the Petition and particularly, the mandatory nature of the death sentence.
9. In its Application, the intended amicus curiae showed neutrality and it was apparent that it would restrict itself to the issues raised in the Petition. They intended to handle those issues without digressing into matters that were not otherwise brought for determination by the Court.
10. The Court had discretion to allow a party to participate in proceedings as amicus curiae. In Kenya an amicus curiae had to be neutral and if such a party had an interest in the case, it would be enjoined as an intervener.
11. Participation as amicus curiae was not a right, it was a privilege. In some instances it would be more appropriate for an applicant not to participate in proceedings, especially where such an Applicant would not be prejudiced by a non-joinder, adds no value to proceedings or increased the likelihood of diverting the natural course of proceedings.
12. Where an amicus curiae was allowed to participate in proceedings the Court had the liberty to restrict the extent of participation. Such restrictions would serve the need to forestall the degeneration of an amicus curiae into a partisan role.
13. The Supreme Court had stringent measures with respect to admitting parties into proceedings. The Court would admit additional parties only if satisfied that their participation would not prejudice an accused person or prisoner, occasion unnecessary delay, introduce issues that were foreign to the proceedings or protract the issues for determination.
14. Given the contribution that the intended interested parties sought to make, the appropriate role for them would be that of amici curiae as opposed to interested parties. Their participation offered additional material on the subject of the Petition and would aid the Court in arriving at a judicious determination. However, their participation would be restricted to the making of written submissions.

Application partly allowed. (The application for the Death Penalty Project to be enjoined as amicus curiae was allowed. Applications for the other parties to be enjoined interested parties were disallowed and instead those parties were allowed to join the proceedings as amici curiae.)

Jurisdiction of the Supreme Court to determine appeals from the Court of Appeal for decisions rendered before the establishment of the Supreme Court

Teachers Service Commission v Simon P Kamau & 19 others

Application No. 38 of 2014

In the Supreme Court of Kenya at Nairobi

K H Rawal, DCJ & VP; M K Ibrahim; J B Ojwang; S C Wanjala; S N Ndungu, SCJJ

December 9, 2015

Reported by Teddy Musiga

Brief facts:

The instant application sought to invoke the Supreme Court’s review jurisdiction. It sought a reversal of the Court of Appeal’s Ruling in Civil Application Sup. No. 18 of 2013 delivered on 23^rd May 2014 which dismissed its application for certification of an intended appeal to the Supreme Court against a judgment of the appellate Court delivered on the 12^th November, 2010. The applicant also prayed that the matter be certified as an appeal that raised matters of general public importance. The dispute revolved around the undertaking by the government to increase the teachers’ salaries – in particular, what element crystalized as pension, and falling due to the affected retired teacher.

Issues

1. Whether the Supreme Court has jurisdiction to hear an application appealing the decision of the Court of Appeal which was delivered before the establishment of the Supreme Court.
2. Whether the delay in filing notice of appeal before the Supreme Court is excusable or inordinate.
3. Whether the fact that a judgment debt is to be paid from public funds can make such a claim to be a matter of “general public importance” hence falling within the jurisdiction of the Supreme Court.
4. Whether the Supreme Court can grant orders of stay of execution against contempt of court orders.

Jurisdiction – appellate jurisdiction of the Supreme Court – whether the Supreme Court has jurisdiction to hear an application appealing the decision of the Court of Appeal which was delivered before the establishment of the Supreme Court – article 163(4) (b); article 163 (9) Constitution of Kenya, 2010

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court on matters of general public importance – whether the fact that a judgment debt is to be paid from public funds can make such a claim to be matter of general public importance – Constitution of Kenya, 2010 article 163(4) (b)

Jurisdiction – contempt of court proceedings – jurisdiction of the Supreme Court to punish for contempt of court – whether the Supreme Court can grant orders of stay of execution against contempt orders – Judicature Act, section 5; Supreme Court Act, 2011 section 28(4)

Civil Practice and Procedure – pleadings – procedure for filing appeals to the Supreme Court – importance of filing notice of appeal – whether the delay in filing notice of appeal before the Supreme Court is inordinate or excusable – article 159 Constitution of Kenya 2010; Supreme Court Rules, 2012 Rule 53

Held:

1. Article 163(4) (b) of the Constitution of Kenya, 2010  was forward looking, and did not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution of Kenya, 2010. Thus, the Supreme Court could decline to hear any appeal that had the effect of re-opening a matter that was concluded before the Constitution came into existence, at a time when the Court of Appeal was the final court in the land.
2. Under article 163(9) of the Constitution, there was need to enact legislation to operationalize the Supreme Court. By the time of delivery of the Court of Appeal judgment on 12^th November, 2010, such new legislation had not yet been enacted. The Supreme Court Act was enacted on 22^nd June, 2011 and began operations on 23^rd June, 2011.
3. The sixth schedule to the Constitution (section 2) enumerated those provisions which would not come into operation until the results of the first elections had been announced. Chapter ten, on the Judiciary, was not included among the suspended provisions. The inference to be drawn was that the chapter on the Judiciary entered into force immediately upon promulgations. Thus, before the Supreme Court became operational, its jurisdiction devolved to the Court of Appeal, and was duly exercisable.
4. As the Court of Appeal’s decision was delivered after the establishment of the Supreme Court, it followed that the Supreme Court had jurisdiction in the relevant matters. The applicant could properly have moved to the Court of Appeal, which had already recognized its constitutional mandate to sit as the Supreme Court. After the promulgation of the Constitution of Kenya, 2010, a litigant would have brought any matter without delay before the Court of Appeal sitting as the Supreme Court. However, the applicant failed to use that opportunity.
5. When the applicant filed its notice of appeal on 9^th September, 2014, the law required it to do so within 14 days of the decision of the Court of Appeal. But the applicant failed to observe the timelines; which necessitated an application for extension of time to file a belated notice of appeal, under Rule 53 of the Supreme Court Rules, 2012. No such application was made even though the applicant curiously mentioned a need for the court to extend time within which to file the notice of appeal. Thus, the notice of appeal on record was clearly irregular, and of no consequence in law.
6. The notice of appeal, as a prelude to the filing of an appeal was a requirement both in the 2011 rules, and under the current (2012) rules of the Supreme Court; and that the Appellate court while it acted as the Supreme Court, had long standing practice as regards notice of appeal. The applicant did not file the notice of appeal, until late in 2014 and then without leave of the court.
7. By practice, the Supreme Court had not favored the practice by parties of filing a document improperly, and then seeking ex post facto endorsement by the Court. Consequently, the notice of appeal purportedly filed on 9^th September 2014 was thereby struck out as it was filed without leave. The effect was that there was no notice of appeal on record, and therefore the application was fatally flawed. In view of the importance of a notice of appeal as a jurisdictional requisite, the lack of it could not be bailed out by the invocation of article 159 of the Constitution.
8. From the record, it appeared that the applicant had no intention of appealing. The applicant did not take definitive steps towards implementing the judgment of the Court. The desire on the appellant’s part to lodge an appeal was not evident; and hardly any initiative was taken to secure the rights of appeal. The three year period that elapsed was, in the circumstances, to be regarded as unreasonable delay, which was inconsistent with a quest for justice before the Supreme Court.
9. Taking up novel issues at the instant stage, which had not been adjudicated upon by the High Court and the Court of Appeal amounted to assuming the jurisdictional mandate of other judicial fora. The Supreme Court had been unequivocal in its respect for the hierarchy of courts in Kenya. For the precious element of orderly and dispute settlement, such a position was for sustaining. It is common place that the vital evidentiary turning points of a case are established in earlier courts; and so such foundations of merits had to be first settled at the right fora, before a cause founded upon them came up before the instant apex court.
10. The bare fact that a judgment debt was to be paid from public funds did not make a claim one of general public importance, and it remained so, even ever so large the amount could be. Thus, the intended appeal did not raise matters of general public importance, and consequently, the further input of the Supreme Court was not warranted.
11. It was clear that the Superior courts interpreted section 10 of the Pensions Act in the context of the agreement that was in place, and the interpretation rendered was in relation to that agreement. It followed that, were there to be a likelihood of any uncertainty or ambiguity in law, as a result of that interpretation, its burden would only fall upon parties bound by the agreement. Such a perception made good sense, and it was not manifest that there was any uncertainty in the application of section 10 of the Pensions Act.
12. The jurisdiction to punish for contempt of court was provided for in section 5 of the Judicature Act. The Supreme Court too had such powers to punish for contempt as provided in section 28(4) of the Supreme Court Act, 2011. A plain reading of those provisions provided that the courts had been given the powers to punish for contempt, in order to uphold the dignity of the courts. An aggrieved party could appeal against the decision of the court which imposed penalty for contempt.
13. The Supreme Court was disinclined to issue an Order staying the High Court’s finding of guilt of contempt. Parties ought to have ventilated the issue of contempt through the established court hierarchy, by first appealing to the Court of Appeal, before moving to the Supreme Court. There was no basis for granting stay, in a matter that was not live before the Supreme Court. It would have been tantamount to usurping the jurisdiction of the Court of Appeal.

Application dismissed.

The applicant was to bear the costs of proceedings before the Supreme Court.

Cases

East Africa

1. Bell, Malcolm v   Daniel Toroitich arap Moi & another Application No 1 of 2013 – (Mentioned)

2. Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone Application 2 of 2012 – (Mentioned)

3. In Re the Matter of the Commission for the Implementation of the Constitution Constitutional Application No 2 of 2011 – (Followed)

4. Koinange Investments & Development Ltd v Robert Nelson Ngethe Application No 4 of 2013 – (Mentioned)

5. Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] 3 KLR 199 – (Affirmed)

6. Mathenge, Thuo & another v Nderitu Gachagua & 2 others Election Petition No 1 of 2013 – (Explained)

7. Menginya Salim Murgani v Kenya Revenue Authority Civil Application No 4 of 2014 – (Mentioned)

8. Ngoge v Ole Kaparo [2012] 2 KLR 419 – (Affirmed)

9. Njihia, Daniel Kimani v Francis Mwangi Kimani Application No 3 of 2014 – (Followed

11. Njiroine, Daniel Shumari v Naliaka Maroro Motion 5 of 2013 – (Mentioned)

12. Omega Chemical Industries Ltd v Barclays Bank of Kenya Ltd Application No 16 of 2013 – (Mentioned)

13. Republic v Minister for Agriculture & 2 others ex-parte W’Njuguna & 6 others HC [2006] 1 KLR 351– (Explained)

14. Salat, Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 7 others Application No 16 of 2014 – (Affirmed)

United Kingdom

1. R (Crompton) v Wiltshire Primary Care Trust [2009] 1 All ER 978 – (Affirmed)

Statutes

East Africa

1. Constitution articles 159(2) (b); 163 (3) (4) (b) (8) (9); 201; 203; 206; 207; 259 (8); sixth schedule to the Constitution sections 2, 21(2) – (Interpreted)

2. Judicature Act (cap 2) section 5 – (Interpreted)

3. Pensions Act (cap 189) section 10 (1) – (Interpreted)

4. Pensions Act Regulation (cap189 Sub Leg) 20(1) – (Interpreted)

5. Public Finance Management Act, 2012 (Act No 18 of 2012) section 12 (1) (a) (2) (b) – (Interpreted)

6. Supreme Court Act, 2011 (Act No 7 of 2011) sections 15, 16, 28(4) – (Interpreted)

7. Supreme Court Rules, 2011 (Act No 7 of 2011 Sub Leg) rule 30 of the 2011- (Interpreted)

8. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 31(2); 53 – (Interpreted)

Advocates

1. Mr Njoroge for the Applicant

2. Mr Kimatta for the Respondent

The Supreme Court does not have jurisdiction to entertain appeals arising from interlocutory orders of the Court of Appeal in exercise of it’s discretionary powers

Teachers Service Commission v Kenya National Union of Teachers and 3 others

Application no. 16 of 2015

Supreme Court of Kenya

August 24, 2015

W M Mutunga CJ, K H Rawal DCj; M K Ibrahim, J B Ojwang & S C Wanjala SCJJ

Reported by Teddy Musiga & Daniel Hadoto

Brief Facts

The applicant, being aggrieved and dissatisfied by the decision of the Employment and Labor Relations Court, in Nairobi Petition No. 3 of 2015 lodged a Notice of Appeal, pursuant to which it filed at the Court of Appeal an application for stay of execution of the Employment & Labor Relations Court’s Judgment, under Rule 5(2) (b) of the Court of Appeal Rules, 2010. Upon hearing the application, the Court of Appeal granted a conditional stay of execution of the Judgment and Orders of the Employment and Labor Relations Court.

 Dissatisfied with the outcome of the Court of Appeal’s ruling, the applicant filed the present application seeking a stay of execution against the interim Orders granting conditional stay of execution against the Judgment of the Employment and Labor Relations Court to which the 1st respondent filed a preliminary objection contesting the jurisdiction of this Court to re-consider, on appeal, the exercise of the Court of Appeal’s discretion under Rule 5(2) (b). It specifically contested the power of the Supreme Court to entertain interlocutory appeals from the Court of Appeal. 

Issues

1. Whether an application challenging the Orders of the Court of Appeal under Rule 5(2) (b) can be regarded as an appeal, for the purposes of article 163(4) (a) of the Constitution of Kenya, 2010.

2. Whether the Supreme Court had jurisdiction to hear “appeals” arising from interlocutory Orders of the Court of Appeal under Rule 5(2) (b) of the Court of Appeal Rules.

3. Whether there exists a distinction between the exercise of the Court of Appeal’s power under rule 5(2) (b) with the inherent power of the Supreme Court to grant interim reliefs.

Jurisdiction – appellate jurisdiction of the Supreme Court - - jurisdiction of the Supreme Court to entertain interlocutory appeals from the court of appeal -  whether an application challenging the Orders of the Court of Appeal under Rule 5(2) (b) can be regarded as an appeal, for the purposes of article 163(4) (a) of the Constitution of Kenya, 2010 – , rule 5 (2) (b) Court of Appeals Rules,  article 163 (4) (b) Constitution of Kenya, 2010

The court of appeal rules, rule 5(2) (b) of Rules-

Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—

 (b) In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.

The Constitution of the republic of Kenya 2010 Article 163 (4);

Appeals shall lie from the Court of Appeal to the Supreme Court—

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

(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause

Held

1. Article 163 (4) (a) of the Constitution had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. Towards that end, it was not the mere allegation in pleadings by a party that clothed an appeal with the attributes of constitutional interpretation or application.

2. It was clear that rule 5(2) (b) of the Court of Appeal Rules was essentially a tool of preservation.  It safeguarded the substratum of an appeal if it were invoked by an intending appellant, in consonance with principles developed by that Court over the years.

3. In dealing with rule (5) (2) (b) of the Court of Appeal Rules, the Court of Appeal exercised original and discretionary jurisdiction and that exercise did not constitute an appeal from the Judge’s discretion to the Supreme Court.

4. Where the Supreme Court had been called upon to invoke its jurisdiction under article 163 (4) (a) of the Constitution, the Supreme Court had almost invariably proceeded on the assumption that there existed a substantive determination of a legal/constitutional question by the Court of Appeal which the intending appellant sought to impugn. That was the rational meaning to be ascribed to the word “appeal”, in an adversarial system, where jurisdiction was assigned by the legal norms to a hierarchy of Courts.

5. An application under rule 5(2) (b) of the Court of Appeal Rules was not an appeal as envisaged by article 164(3) of the Constitution of Kenya, 2010. For purposes of judicial proceedings an appeal was broadly speaking, a substantive proceeding instituted in accordance with the practice and procedure of the Court, by an aggrieved party, against a decision of a Court to a hierarchically-superior Court with appellate jurisdiction, seeking consideration and review of the decision in his favor.

6. Rule 5 (2) (b) of the Court of Appeal Rules of 2010 was derived from article 164 (3) of the Constitution, 2010. It illuminated the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal, or an intended appeal. 

7. The exercise of that discretionary jurisdiction could not be described as “original”, the term “inherent” more accurately captured the nature of that jurisdiction. The Court of Appeal had nonetheless defined the contours of that discretion succinctly and consistently and had employed it effectively to aid the conduct of its appellate jurisdiction.

8. There existed a parallel between the exercise of the Court of Appeal’s power under Rule 5(2)(b), with its inherent powers to grant interim reliefs. The grant of interlocutory reliefs by the Supreme Court did not encroach on the jurisdiction of the Court of Appeal. Interlocutory applications in the nature of injunctions and stay of execution were made within the substantive matter of the appeal. The Supreme Court had jurisdiction to hear and determine such interlocutory applications with special regard to the circumstances of each case.

9. Where necessary, the Court could also exercise its discretion to decline to grant interlocutory relief, if the same would imperil its ultimate function to render justice in accordance with the Constitution and the ordinary law.

10. Where the Supreme Court had appellate jurisdiction derived from the Constitution and the law, it was equally empowered not only to exercise its inherent jurisdiction, but also to make any essential or ancillary orders such as would enable it to sustain its constitutional mandate as the ultimate judicial forum. A typical instance of such exercise of ancillary power was that of safeguarding the character and integrity of the subject-matter of the appeal, pending the resolution of the contested issues.

11. The general stand of the law was that there would be a pending, or an intended appeal, as a basis for this Court to entertain an application for stay of execution, or for grant of an injunction. The Supreme Court had inherent jurisdiction to grant stay of execution, or injunction, so as to preserve the substratum of an appeal, or intended appeal.

12. An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4) (a) of the Constitution. In the absence of a judgment by the Court of Appeal, in which constitutional issues had been canvassed, there was nothing for the Supreme Court to sit on appeal over.

13. Discretionary decisions which originated directly from the appellate Court were by no means the occasion to turn the Supreme Court into a first appellate Court, as that would stand in conflict with the terms of the Constitution.

14. The application before the Supreme court contested the exercise of discretion by the appellate Court, when there was neither an appeal, nor an intended appeal pending before the Supreme Court.  The appeal before the Court of Appeal was yet to be heard and determined.

15. An application so tangential, could not be predicated upon the terms of Article 163 (4) (a) of the Constitution. Any square involvement of the Supreme Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, and for which the priority date had already been assigned. Therefore, an involvement of by Supreme Court at such an early stage would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.

16. In the Circumstances, the Supreme Court lacked jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.

17. The court could not take jurisdiction if it did not have to, but, it was equally true that it had to take jurisdiction if it had to. The court had no more right to decline the exercise of jurisdiction which is given than to usurp that which was not given.  The one or the other would be treason to the Constitution.

Preliminary objection allowed

Application disallowed

Applicant to bear the costs of the 1st and 2nd respondents,

 The 3rd and 4th respondents to bear their own costs.

Supreme Court emphasizes that not all procedural deficiencies can be remedied by article 159 of the Constitution of Kenya 2010

Sawe v Interim Independent and Boundaries Commission and 3 others

Supreme Court of Kenya

Petition No. 8 of 2014

KH Rawal DCJ & Vice-P, SC Wanjala, M K Ibrahim, J B Ojwang & N Ndungu, SCJJ

July 22^nd, 2015

Reported by Andrew Halonyere and Maxwell Mwangi Maina

Brief Facts

The appellant contested the Appellate Court’s Judgment which struck out her appeal on grounds that no evidence had been laid before the IEBC Tribunal or the High Court, to demonstrate that the nomination of the 3^rd respondent was contrary to the Constitution and neither had the appellant demonstrated that she was wrongfully left out of the nomination list by her political party, or that a person who was not a URP member had been nominated.

The respondents filed a notice of Preliminary Objection to contest the petition on grounds that it was defective and incompetent for want of compliance with rule 31 (1) and (2) of the Supreme Court Rules, 2012 and sections 15 (1), (2) & (3) and the Court had no jurisdiction to entertain the appeal or petition filed.

Issues

1. Whether article 159(2) (d) of the Constitution could be used to cure procedural deficiencies specially where the procedural question was a jurisdictional prerequisite.
2. What was the basis for deeming a Notice of Appeal duly filed?
3. What are the powers of the Registrar of the Supreme Court, with regard to joinder of parties?

Civil practice and Procedure- notice of appeal- notice of appeal filed out of time- notice of appeal filed in the wrong forum- whether the appellant’s Petition of Appeal was properly before the Court-Supreme Court Act, 2011, section 15

Civil Practice & procedure- extension of time-application to extend time- courts discretion where there was no formal application to extend time- broad base principle on electoral matters on timelines-what was the basis for deeming the Notice of Appeal duly filed-whether the appellant’s Petition of Appeal was properly before the Court- Supreme Court Act 2011 section & 15 (1), (2) & (3); Supreme Court Rules, Rule 53

Civil Practice & Procedure- powers of the Registrar- powers of the Registrar on joinder of parties - what was the extent of the powers of the Registrar of the Supreme Court, with regard to joinder of parties-Supreme Court Act, 2011 section 9 (2)

Constitution of Kenya, 2010

Article 159(2)

In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

1.  justice shall be done to all irrespective of status;
2.  justice shall not be delayed;
3.  alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
4.  justice shall be administered without undue regard to procedural technicalities; and
5.  the purpose and principles of this Constitution shall be protected and promoted

Supreme Court Act, 2011

Section 9 (2)

“The Registrar and other officers appointed shall exercise such powers and perform such duties as may be conferred upon them upon directions of the Court, the rules of court and the directions of the Chief Justice.”

Supreme Court Rules, 2012

Rules, 33(1)

‘An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal—

 (a) a petition of appeal;

 (b) a record of appeal; and

            (c) the prescribed fee’’

Held

1. The 1^st ‘Notice of Appeal was mistakenly filed in the High Court Registry and such notice therefore failed to meet one of the requirements for a proper Notice of Appeal in the terms of rule 31(1) of the Supreme Court Rules, 2012. The Notice of Appeal contemplated under rule 31(1) should have been filed in the Court of Appeal Registry.
2. The appellant had failed to comply with rule 31(1) of the Supreme Court Rules and consequently had no locus to proceed and file a ‘petition of appeal’. Since the prescribed fourteen day period had lapsed; an application ought to have been made for extension of time to file a Notice of Appeal out of time.
3. The law prescribed the forum for filing Notices of Appeal and therefore, a Notice of Appeal needed to show on its face, the Registry where it was filed. The delay in filing the first Notice of Appeal was occasioned by the mistake of filing it in the wrong Registry. 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 [one] could proceed to do that which the law required. The appellant ought to have sought extension of time to file a proper Notice of Appeal; for by the time he was filing the 2^nd Notice of Appeal, the fourteen-day period within which such a notice ought to have been filed, had lapsed. Such an extension must have the leave of the Court.
4. Article 159(2) (d) of the Constitution was not a panacea for all procedural shortfalls. Not all procedural deficiencies could be remedied by article 159; and such was clearly the case, where the procedural step in question was a jurisdictional prerequisite.
5. Rule 53, provided for rules on extension of time to file a Notice of Appeal and since there was no such application, it was requisite in the circumstances to apply a broad-based principle regarding electoral matters, which the Court had pronounced in other cases that on account of the large public interest in electoral matters, all petitions in that regard ought to take into account the prescribed timelines.
6. Section 9 (2) of the Supreme Court Rules, required the Registrar and officers of the Court to exercise powers and perform such duties as may be conferred upon them upon directions of the Court, the rules of court and the directions of the Chief Justice. The Registrar had granted the petitioner leave to amend the petition, and enjoin the 3^rd, 4^th& 5^th respondents as parties.
7. The rules of the court expressly vested certain powers in the Registrar and such powers, by clear intent, were for preparatory arrangements ahead of formal determinations and directions entailing merits-by the Judges.  Decisions that affected the substantive course of cases such as joinder of parties, or consolidation of causes were certainly, not for ministerial action by administrative personnel.  The appellant’s contention that she had secured joinder of parties by the Registrar’s hand was incompatible with the law and could not be allowed.

The Notice of Preliminary Objection upheld.

The Petition of Appeal and the amended Petition of Appeal struck out.

The appellant shall bear the respondents’ costs in this application.

The Supreme Court cannot entertain an appeal on a sole issue of costs

Ledama Ole Kina v Samuel Kuntai Tunai & 9 Others

Supreme Court of Kenya at Nairobi

Petition No 16 of 2014

KH Rawal DCJ, MK Ibrahim, JB Ojwang, SC Wanjala, SN Njoki SCJJ

July 8, 2015

The appeal was brought pursuant to the provisions of article 163(4)(a) of the Constitution of Kenya, 2010, Section 15(2) of the Supreme Court Act (Cap 9A), and rules 9 and 33 of the Supreme Court Rules, 2012.

The petitioner’s case was that the Court of Appeal erred in condemning him to pay costs, despite the fact that the irregularities and omissions occasioning the filing of the petition were attributable to the 3^rd -10^th respondents.

The petitioner submitted that the High Court had not dealt fully with the issue of costs and he further sought an order varying the determination made by the Court of Appeal, with respect to costs.

Issue

1. Whether the Supreme Court had jurisdiction to consider whether the Court of Appeal properly exercised its discretion in making the determination on costs.

Civil practice and procedure – costs – appeal to the Supreme Court on a dispute of costs – whether a sole issue of costs could engage the jurisdiction of the Supreme Court -  

Held

1. Matters properly falling to the Supreme Court, under article 163(4) (a), ought to involve the interpretation or application of the Constitution. Only weighty issues in litigation fell to the Supreme Court, and other orders of issues devolved to the other Courts.
2. The Supreme Court as the ultimate judicial agency, ought to exercise its powers strictly within the jurisdictional limits prescribed and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. In the instant case, it would be perverse for the Supreme Court to assume a jurisdiction which, by law, was reposed in the Court of Appeal, and which that Court had duly exercised and exhausted.
3. When a trial Court has exercised its discretion on costs, an appellate Court ought not to interfere, unless that discretion was exercised injudiciously, or on wrong principles. Since costs follow the cause, the onus of proof that the successful party ought to be deprived of costs, lay on the party making that claim. In order to justify a denial of costs to the winning party, it ought to be shown that, that party was guilty of the conduct which induced the filing of the action and without which conduct the cause would probably not have been lodged.
4. The grounds of appeal that were abandoned by the appellant had brought his case squarely within the four corners of article 163(4) (a) and, that gave the Supreme Court a proper basis for considering whether the principles under articles 81 and 86 of the Constitution, as well as the provisions of the Elections Act, 2011 had been adhered to. Those grounds as we perceived them had involved the interpretation and application of the Constitution. However, the single issue of costs, standing all by itself, fell outside the remit of the Supreme Court.

1. Appeal dismissed
2. The Supreme Court does not have jurisdiction to consider whether the Court of Appeal properly exercised its discretion in making determination on costs.
3. Orders of the Court of Appeal on costs remain undisturbed.