Structural interdicts are part of the remedies that a court could fashion to remedy a violation of fundamental rights and freedoms.

Brief facts

The petitioner was a registered society comprised of residents of Mitumba Village. Mitumba Village and the Mitumba Village Primary School were situated near Wilson Airport. A notice published in the newspapers on September 15, 2011 by the Attorney General gave the residents of Mitumba Village seven days within which to vacate the premises. Despite the fact that the petitioner obtained conservatory orders from the High Court to restrain the demolition of Mitumba Village, the premises were demolished on November 19, 2011. The petitioner sought various declaratory reliefs including those that asserted their ownership of the premises and also stated that the forceful eviction and demolition without a relocation option was illegal, oppressive, and violative of the petitioner's rights.

The respondent explained that Mitumba Village was situated on property belonging to the Kenya Airports Authority (the 1^st respondent) and that Authority was under a statutory duty to ensure air safety by removing any informal settlement which was on a flight path. The respondents explained that given the ongoing war in Somalia, the village posed a threat.

At the High Court, the findings of the court were that the petitioner (appellants) did not own the suit premises. The newspaper notice which was said to be a reminder notice was found by the High Court to be unreasonable, unconscionable and unconstitutional as there was no other notice preceding it and it required vacation of the suit premises within 7 days. The High Court noted that there was no legislation or guidelines developed in Kenya for the eviction of persons occupying land that they were not legally entitled to occupy.

The High Court made the determination that the right to property included the protection of goods and personal property and it extended to goods and building materials that had been destroyed during the demolition. The High Court also found that the eviction and demolition of the premises pursuant to a seven-day notice and the failure to provide alternative accommodation was a violation of the appellant's rights to housing and other socio-economic rights recognized under the Constitution of Kenya, 2010 (Constitution). Further, the High Court found that evictions could be necessary but the due process had to be followed. The due process included the issuance of reasonable notice and the conduct of consultations among those affected by the eviction. Additionally, the High Court determined that the demolition which left other nearby multi-storied buildings intact was discriminatory. The High Court noted that the demolitions included the demolition of a school and there was no evidence that measures were put in place to protect the needs of vulnerable groups, particularly children and that children's rights were violated.

In response to the High Court judgment, the 1^st respondent filed an appeal at the Court of Appeal. The Court of Appeal made various findings including findings that were to the following effect -

1. Pamoja Trust was wrongfully given a role reserved for the court when it was asked to be involved in ascertaining eviction terms and the creation of eviction guidelines because Pamoja Trust had no constitutional mandate of resolving disputes;
2. the concept of partial judgment or interim judgment was unknown to Kenyan law; a court had to finally determine all the issues before it and it would then become functus officio;
3. allowing parties to file affidavits and reports after the judgment introduced secondary litigation of issues that were not raised in the original pleadings;
4. the security and safety of the flight paths were a limitation on the enjoyment of the rights and freedoms in the Bill of Rights as permitted under article 24 of the Constitution;
5. there was no legislation in Kenya meant to regulate forcible eviction and resettlement of persons occupying public or private land and before the enactment of such legislation courts had to interpret and apply the law as it was;
6. the 1^st respondent had no mandate to provide policies and programs on the provision of shelter and access to housing as directed by the High Court;
7. the trial court erred in law in issuing orders and directions on un-pleaded issues;
8. the court should not act in vain or issue orders it could not implement and policy formulation was not within the mandate of the courts;
9. the enforcement and implementation of socio-economic rights could not confer propriety rights in the land of another and the realization of socio-economic rights did not override the provisions of the Limitation of Actions Act.

A second appeal was filed by the appellants at the Supreme Court. They obtained certification that the matter raised issues of general public importance under article 163(4)(b) of the Constitution.

Issues

1. Whether structural interdicts were recognized reliefs in human rights litigation under the Constitution of Kenya, 2010.
2. What was the nature and factors to be considered when issuing structural interdicts?
3. What was the effect of article 2(5) and 2(6) of the Constitution regarding the applicability of international law in general and international human rights in particular?
4. Whether U.N Guidelines on Evictions; General Comment No. 7 were part of the laws of Kenya and were of binding effect either under article 2(5) or article 2(6) of the Constitution.
5. When would the right to housing under article 43(1)(b) of the Constitution accrue?
6. Whether illegal occupation of public land created prescriptive rights over the land.

Held

1. The trial court issued interim orders requiring the respondents to furnish the court with information about policies and programs on the provision of shelter and access to housing. However, the Court of Appeal was of the view that the trial court could not reserve for itself any outstanding issue as it became functus officio after the delivery of the judgment. Therefore, the two superior courts held diametrically opposed views regarding structural interdicts or interim orders.

2. Article 23(1) and (3) of the Constitution were the launching pad of any analysis into the place and scope of interim orders in Kenya's human rights enforcement architecture. Article 23(3) provided that for a violation of the Bill of Rights the court could grant any appropriate relief including, a declaration of rights, an injunction, a conservatory order, a declaration of legal invalidity of any law that denied, violated, infringed or threatened a right or fundamental freedom in the Bill of Rights that was not justified under article 24 of the Constitution, an order for compensation and an order for judicial review. The list of appropriate reliefs that the court could grant was not exhaustive.

3. The Court of Appeal failed to consider Supreme Court decisions concerning interim reliefs that a court could issue to address the violation of a fundamental right. The appellate court appeared to shut the door on the use of interim reliefs or structural interdicts in human rights and other constitutional litigation.

4. Article 23 (3) of the Constitution empowered the High Court to fashion appropriate reliefs, even of an interim nature, in specific cases, so as to redress the violation of a fundamental right.

5. The doctrine of functus officio retained validity and vitality in both criminal and civil cases but in certain situations, the doctrine ought to give way. Subjecting article 23 of the Constitution, on the court's power to fashion appropriate reliefs for human rights violations, to the limitation of the Civil Procedure Act's provisions on the court becoming functus officio after judgment, would stifle the development of court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.

6. Interim reliefs, structural interdicts, supervisory orders or any other orders that could be issued by the courts, had to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State agency vested with a constitutional or statutory mandate to enforce the order. Most importantly, the court in issuing such orders had to be realistic, and avoid the temptation of judicial overreach, especially in policy matters. When issuing interim orders the court could indicate that the orders were interim in nature and that the final judgment had to await the crystallization of certain actions.

7. Article 2(5) of the Constitution provided that the general rules of international law formed part of the laws of Kenya while article 2(6) of the Constitution provided that any treaty or convention ratified by Kenya formed part of the laws of Kenya under the Constitution. However, there were divergent views on the meaning of the provisions. One school of thought was that article 2(6) transformed Kenya from a dualist to a monist nation meaning that Kenya did not have to incorporate (domesticate) an international treaty into its domestic law before the treaty could take effect. The second school of thought was of the view that international law was subordinate to the Constitution and could only take effect subject to the supreme law of the land. The proponents of the school of thought were not supporters of the view that Kenya was a monist state.

8. The meaning to be attributed to the phrase "shall form part of the law of Kenya in articles 2(5) and 2(6) of the Constitution was that in determining a dispute, a domestic court of law had to take cognizance of rules of international law to the extent that the same were relevant and not in conflict with the Constitution, statutes or a final pronouncement.

9. Articles 2(5) and 2(6) of the Constitution were both inward-looking and outward-looking. They were outward-looking in the sense that they committed Kenya to conduct its international relations in accordance with its obligations under international law. On the other hand, they were inward-looking because they required Kenyan courts of law to apply international law in resolving disputes before them as long as the same were relevant, and not in conflict with, the Constitution, local statutes, or a final judicial pronouncement. International law could be applied to fill a lacuna in domestic law in the context of a dispute before a domestic court because international law was part of the laws of Kenya.

10. Articles 2(5) and 2(6) of the Constitution had nothing or little significance to do with the monist-dualist categorization. Most importantly, the expression shall form part of the law of Kenya as used in the articles did not transform Kenya from a dualist to a monist state as understood in international discourse.

11. Article 2(5) of the Constitution referred to general rules of international law and did not refer only to peremptory norms of international law or jus cogens. The two main sources of international law were treaties and international customs. Jus cogens was a technical term given to those norms of general international law which were of peremptory force and as a consequence, no derogation was allowed. Jus cogens accounted for only a tiny corpus of the general rules of international law. The suggestion by the Court of Appeal that the use of the phrase "general rules of international law" in the Constitution was limited to the evolving concept of jus cogens was inconceivable.

12. The U.N Guidelines on Evictions; General Comment No. 7, at best constituted what was known as international jurisprudence or soft law. UN Resolutions, Declarations, Comments and Guidelines did not ordinarily amount to norms of international law. However, certain UN General Assembly Declarations and Resolutions could ripen into a norm or norms of international law depending on their nature and history leading to their adoption.

13. The U.N Guidelines, General Comment No. 7 did not qualify as general rules of international law, which had a binding effect on members of the international community. However, the Guidelines were intended to breathe life into the right to dignity and the right to housing under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Civil Economic Social and Cultural Rights (ICESCR) respectively. They, therefore, constituted soft law in the language of international jurisprudence. The trial court could refer to the Guidelines but they could not be elevated to the status of general rules of international law under article 2(5) of the Constitution.

14. The U.N. Guidelines in question were issued pursuant to article 21 of the International Covenant on Economic Social and Cultural Rights (ICESCR). Strictly speaking, therefore, they could only be considered under article 2(6) of the Constitution, which referred to international treaties and conventions ratified by Kenya. The Guidelines could not be regarded as being part of the treaty under which they were issued. They were tools or aids directed to State parties to help the latter in implementing the treaty or better fulfillment of their obligations thereunder.

15. The Guidelines were not binding upon the state parties, nor were they part of the law of Kenya in the language and meaning of article 2(6) of the Constitution, unless they had ripened into a norm of customary international law, as evidenced by widespread usage.

16. Article 43 (1) (b) of the Constitution provided that every person had the right to accessible and adequate housing and to reasonable standards of sanitation. Further, under article 21(1) of the Constitution, the State and State organs had the duty to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms in the Bill of Rights. Under article 21(2) of the Constitution, the State had to take legislative, policy and other measures, including the setting of standards in order to achieve the progressive realization of the rights guaranteed under article 43 of the Constitution. Therefore, as a socio-economic right, the right to housing had to be realized progressively.

17. The expression progressive realization was neither a stand-alone nor a technical phrase. It simply referred to the gradual or phased-out attainment of a goal-a human rights goal which by its very nature, could not be achieved on its own, unless first, a certain set of supportive measures were taken by the State. The exact shape of such measures would vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures could involve legislative, policy, or program initiatives including affirmative action. 

18. The issue of what constituted the progressive realization of socio-economic rights had been long settled. The right to accessible and adequate housing, just like any other right under article 43 of the Constitution required the State to take legislative , policy and other measures to achieve it. Under article 20(5) of the Constitution, the principles that should guide a court in the enforcement of rights provided for under article 43 of the Constitution, where the State claimed that it did not have resources to implement the right were the following;-

1. it was the responsibility of the State to show that the resources were not available;
2. in allocating resources the State had to give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and
3. the court, tribunal or other authority could not interfere with a decision by a state organ concerning the allocation of available resources, solely, on the basis that it would have reached a different conclusion.

19. The court would exercise its powers under article 20(5) of the Constitution by issuing interim orders whose effect was to demand evidence that would exonerate the State from liability. The orders had to be directed at the State organ responsible for the requisite progressive realization measures. That was what the trial court appeared to have done when issuing the interim orders.

20. The question as to when the right to housing accrued depended upon its progressive realization. In turn, its realization depended upon the availability of land and other material resources.

21. Illegal occupation of private land would not create prescriptive rights over that land in favour of the occupants but the same could not be said of an illegal occupation of public land. On the contrary, where the landless occupied public land and established homes thereon, they did not acquire title to the land but they had a protectable right to housing over the same. The Constitution of Kenya, 2010, radically transformed land tenure in Kenya by declaring that all land in Kenya belonged the people of Kenya collectively as a nation, communities and individuals. It also created a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable, however unrecognizable, or however transient, in public land.

22. The right to housing over public land crystallized by virtue of a long period of occupation by people who had established homes and raised families on the land. That right derived from the principle of equitable access to land under article 60(1)(a) of the Constitution.

23. Faced with an eviction on grounds of public interest, potential evictees that occupied public land, had a right to petition the court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that the eviction could be entirely justifiable in the public interest. However, under article 23(3) of the Constitution, the court could craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement among others.

24. The trial court's orders for the respondents to furnish the trial court with existing State policies and programs on the provision of shelter and access to housing were not of remedial benefit to the appellant. The trial court ought not to have included non-State actors, who were not parties to the suit in its orders.

25. The evictions that the appellant complained of were undertaken in breach of a court order. In the eviction, houses and other property were destroyed. Actions by State organs carried out in flagrant disregard of court orders, undermined the constitutional order, more so, if they resulted in the violation of citizens rights.

The investigatory and enforcement mandates of the Capital Markets Authority were constitutional despite being held by the same institution.

Alnashir Popat & 7 others v Capital Markets Authority [2020] eKLR

Constitutional Petition No. 29 of 2019

Supreme Court of Kenya

DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

December 11, 2020

Reported by Beryl Ikamari & George Kariuki

Constitutional Law – Bill of Rights – right to fair administrative action – right to a fair hearing – whether a tribunal could act as both investigator and judge in its own case –  whether the investigatory and enforcement mandate of the Capital Markets Authority were constitutional - Constitution of Kenya 2010, articles 25(C), 35, 47(1) and 50(1); Capital Markets Act (cap 485A), section 11(3)(cc) and 11(3)(h)

Administrative Law – natural justice – impartiality of the decision-maker – legality of the Capital Markets Authority’s investigatory and enforcement – whether actual bias or an appearance of bias was the likely result of having the Capital Markets Authority serve as an investigator and an enforcer in the cases of infractions of the provisions of the Capital Markets Act and the regulations made thereunder.

Brief facts

The petitioners in this case were non-executive directors of Imperial Bank Limited (the bank) which had been put under receivership. The respondent, a statutory regulatory authority established under section 5 of the Capital Markets Act and charged with promoting, regulating and facilitating the development of orderly, fair and efficient capital markets in Kenya.

In August 2015, the respondent approved the bank’s application to issue to the general public a corporate bond of Kshs. 2 Billion. Only the bank’s Managing Director and the Chief Finance Officer were privy to that application.

In September 2015, the managing director passed on and the former head of credit was appointed acting MD and deputized the former CFO. In September, the two caught wind of an array of illegal transactions authorized by the late Managing Director and reported the same to the chair of the non- executive directors. The latter in turn contracted FTI consulting group, to carry out a forensic audit of the bank’s financial affairs and report on its accurate financial position. It also resolved not to utilize the approved bond issue pending the outcome of the investigations by the consultant.

It was found that the former MD had indeed been running a scheme of fraudulent disbursements resulting in losses running into billions of shillings and the board reported the same to Central Bank (CBK) who in turn placed the bank under receivership and appointed the Kenya Deposit Insurance Corporation its Receiver/Manager for a period of twelve (12) months. The appointment also included a declaration of a moratorium on the bank. On the same day, the respondent, on its part, instructed the Nairobi Stock Exchange (NSE) not to proceed with the listing of the bank’s bond issue on the Fixed Income Securities Market Segment until further notice.

Circumstances surrounding the issuance of the bond were brought to the fore by the respondent. In exercise of its statutory authority, it served the petitioners with notices to show cause and required them to respond, within 14 days, to allegations of negligence in the discharge of their mandate as directors of the bank. No hearing took place on the designated day. However, the respondent-appellants claimed that an inquisitorial hearing presided by CMA’s chair took place and a summary ruling entered against the bank’s directors.

The petitioners appealed against that decision at the High Court citing conflict of interest. They said that the CMA had acted as licensee, investigator and judge in the issue of the bond. Additionally, they contended that the authority had acted as juror in its own case. The same officials who had greenlighted the issuance of the bond had gone ahead to rule against its regularity and legality.

At the High Court, the notices sent to the petitioners to show cause were quashed. The court’s reasoning was that there existed a real possibility of bias. By acting in both inquisitorial and enforcement mandate, the authority was likely to be biased. It therefore ought to have delegated its functions to an independent body.

At the Court of Appeal, the authority’s decision was upheld. The Capital Markets Act expressly authorized the overlapping inquisitorial and enforcement functions of the respondent. Therefore, the respondent was expected to make unprejudiced judgement on matters it had investigated.

As a last resort, the appellants called upon the Supreme Court to consider the propriety of the dual statutory mandate granted to the respondent as the sole investigator and enforcer of capital markets infractions in Kenya.

Issues

1. Whether the overlapping investigatory and enforcement roles that the Capital Markets Act vested in the Capital Markets Authority constituted a violation of the rights to fair administrative action and fair hearing as recognized in articles 47(1) and 50(1) (as read with article 25(c)) of the Constitution.
2. Whether section 11(3) (cc) and 11(3)(h) of the Capital Markets Act which authorized the overlapping investigatory and enforcement mandate of the Capital Markets Authority was unconstitutional.
3. Whether the Capital Markets Authority’s attempted enforcement proceedings after conduct of its investigatory role with respect to a bank were biased or likely to be biased against the bank.

Held:

1.    Prior to the enactment of the Capital Markets Act, the capital market in Kenya faced multiple challenges running from illicit intermediaries to lack of a proper legislative guide hence the need for a firm regulatory regime.  Sections 5 and 11(cc) of the Capital Markets Act established the Capital Markets Authority with a mandate to remove impediments, promote wider performance of the general public in the securities commodities market and derivatives and for protection of investor interests. To achieve the objectives, section 13 of the Capital Markets Act granted the authority power to discipline errant members and to regulate and facilitate the development of an orderly, fair and efficient capital market.

2.    The Capital Markets Authority power to inquire, either on its own motion or at the request of any other person, into the affairs of any person which the authority had approved or to which it had granted a license and any public company the securities of which were publicly offered or traded on an approved securities exchange or on an over the counter market.

3.    Tenets of natural justice decreed that, no person should be allowed to be a judge in his or her own cause or in a cause they had an interest in the outcome including situations where one desired or was keen on obtaining a given result. A prosecutor, for example, had an interest in the conviction of a suspect he hauled into court.

4.    There were exceptions to every general rule. The exception to the tenets of natural justice set out under article 25(c) as read with article 47  of the Constitution was enunciated in the Canadian case of Re W. D. Latimer Co. and Attorney-General for Ontario (1973), 2 O.R. (2d) 391 and affirmed in Re W. D. Latimer Co. and Bray (1974).

5.    Where a statute authorized a tribunal to perform tripartite functions, disqualification on the ground of bias ought to have been founded upon some act of the tribunal going beyond the performance of the duties imposed upon it by the enactment pursuant to which investigations were being conducted.

6.    Mere advance information as to the nature of the complaint and the grounds for it was not sufficient to disqualify a tribunal from completing its task.

7.    Where it was clear from an empowering legislation that certain activities which would otherwise be considered "biased" formed an integral part of its operations and the tribunal had not acted outside its statutory authority, the doctrine of "reasonable apprehension of bias" could not be sustained. A tribunal’s structure and responsibilities as well as the manner of the discharge of its mandate ought to be considered.

8. Administrative tribunals were not necessarily supposed to operate like courts of law. That was why they were allowed to be masters of their own procedure albeit having to act fairly as set out in Selvara Jan v. Race Relations Board [1976] 1 ALL ER 12.

9.    For purposes of efficiency and in the carrying out of the objectives of the Capital Markets Act, especially in the expeditious disposal of disputes that arose in the operations of the capital markets, the functions set out in section 11(3) (cc) and 11(3)(h) could not be performed by separate bodies.

10. Section 11(3)(cc) and 11(3)(h) of the Capital Markets Act were not unconstitutional. The overlapping mandate did not render those sections unconstitutional. What would have been unconstitutional would have been the discharge of that dual mandate.

11.  It was important to determine whether the authority’s discharge of a dual mandate in the petitioner’s case was itself likely to be unconstitutional under a critical balancing of articles 47(1) and 50(1).

12.  Among the canons of statutory interpretation was that the historical background of legislation ought to be considered. However, in the promotion of public policy and efficient administration of the securities market in Kenya, the right to a fair administrative action could not be sacrificed at the altar of efficiency or public interest.

13.  Individual rights to be duly notified of a hearing, given adequate prior information and to be granted a fair hearing were so fundamental that they could not be limited by public interest.

14. The Capital Markets Authority could not be allowed to ride roughshod over the non-derogable constitutional rights of investors. It would be counterproductive by scaring away the very prospective investors it sought to entice. 

15. Narrow interests such as fostering investor confidence in the securities market could not be used as an excuse to deprive the directors of their constitutional right to a fair hearing of the allegations against them.

16. Despite the legality of the duality of the respondent’s mandate under section 11(3) (cc) (h) of the Capital Markets Act, in any matter that could be classified as judicial or quasi-judicial, or one where, in the view of a reasonable man conversant with the matter, there was likely to be bias or a reasonable apprehension of bias, the authority ought to have been impartial.

17.  A reasonable apprehension of bias was the key test in determining whether a tribunal had acted impartially. A tribunal was required to observe and accord persons under investigations (and or any person) likely to be adversely affected by their decision a fair process and in particular, it was required to adhere to the principles of natural justice and comply with the provisions of articles 50 (1) and 47 of the Constitution.

18.  Enforcement proceedings were not necessarily administrative merely because the enforcement body was an administrative one. Focus of the enquiry was not whether a particular conduct was an ‘administrative action’, but on the nature of the power being exercised.

19.  An act would be judicial when there was opportunity to be heard and for production and weighing of evidence and a decision was rendered.

20. In the discharge of their statutory mandates, tribunals ought to always first determine whether or not their acts or decisions were judicial or quasi-judicial and whether or not they were likely to adversely affect the rights of persons or bodies under investigation.

21.  The nature of the enforcement proceedings that the authority sought to enforce against the directors for non-appearance bespoke a quasi-judicial process because, based on the material evidence placed before it, the Capital Markets Authority would have had to determine the culpability or otherwise of the directors.

22. Had the directors been found culpable pursuant to section 11(3) (cc) of the Capital Markets Act, the authority would have imposed sanctions on them, including financial penalties.

23.  There was a real possibility of bias in the petitioners’ case. The authority had appraised and approved the bank’s application. The same authority also initiated and conducted preliminary investigations into the bank’s conduct in relation to the application and upon satisfying itself that the bank could have have violated the relevant provisions of the Act and the Regulations, it made a decision to charge the petitioners and went ahead to formulate the requisite charges. It was the same Board of the Capital Markets Authority that also purported to preside over the hearing of the director’s cases. That obviously led to an inescapable appearance of partiality on the Authority’s part.

Orders: -

1. The petitioners’ appeal was allowed to the extent that the respondent would proceed with the enforcement proceedings against the petitioners through its delegated authority under section 11A (1) and/or section 14(1) of the Capital Markets Act.
2. Each party was ordered to bear its own costs.

The delay in filing a supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings is a valid reason to allow extension of time

Ferdinand Ndungu Waititu Babayao v Republic

Petition Application 2 of 2020

Supreme Court of Kenya

DK Maraga, CJ & P; MK Ibrahim, SC Wanjala, I Lenaola & NS Ndungu, SCJJ

September 23, 2020

Reported by Sharon Sang & Kakai Toili

Civil Practice and Procedure – appeals – appeals to the Supreme Court – timelines for filing appeals – extension of time – extension of time to file a supplementary record of appeal – whether the delay in filing the supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal was a valid reason to allow extension of time – Supreme Court Act, 2011, section 21(3); Supreme Court Rules, 2012, rule 53

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court on application for extension of time – when could the Supreme Court allow an application for extension of time – whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time – Supreme Court Rules, 2012, rule 53.

Brief facts

The application filed by the petitioner contended that the delay in filing the supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was occasioned by the inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal despite request made on December 30, 2019. The respondent did not file any response or submission with regard to the application despite directions issued by the deputy registrar that submissions ought to be filed by August 28, 2020.

Issues

1. Whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time.
2. Whether the delay in filing the supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal was a valid reason to allow extension of time.

Relevant provisions of law

Supreme Court Act, No 7 of 2011

Section 21 – General Powers

(3) The Supreme Court may make any order necessary for determining the real question in issue in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal.

Supreme Court Rules, 2012

Rule 53

The Court may extend the time limited by these Rules, or by any decision of the Court.

Held

1. The Supreme Court had the jurisdiction to consider and determine an application for leave to extend time to do anything required by its rules in accordance with section 21(3) of the Supreme Court Act and rule 53 of the Supreme Court Rules, 2012. The application by the petitioner dated August 7, 2020 and filed on August 11, 2020 satisfied the principles set out by the Supreme Court on extension of time.
2. The petitioner had provided sufficient grounds and reasons for the delay in filing the supplementary record of appeal as the delay in obtaining the order and certified typed copies of proceedings from the Court of Appeal was an administrative issue that could not and should not be held against the petitioner.
3. The respondent had not opposed the application neither had he shown what prejudice would be occasioned upon him if the applicant’s application was allowed.

Application allowed: each party to bear its own costs.

Orders;

1. The supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was deemed duly and properly filed.
2. Parties to appear before the deputy registrar for further directions.

Factors the Supreme Court considered in an application for leave to extend time to file an appeal.

John Mining Temoi & another v Governor, Bungoma County & 3 others

Civil Application 17 of 2020

Supreme Court of Kenya

DK Maraga, CJ and P; MK Ibrahim, SC Wanjala, SN Ndungu and I Lenaola, SCJJ

September 23, 2020

Reported by Ribia John

Civil Practice and Procedure – appeals – appeals to the Supreme Court -  extension of time – extension of time to file an appeal to the Supreme Court – applicable factors - what factors did the Supreme Court consider in determining an application for leave to extend time to file an appeal - Supreme Court Rules, rules 38(2)(a) and 39(2).

Brief Facts

The applicants filed an application for leave to extend time to file an appeal. The applicants contended that the delay was inadvertent and was posed by the adverse effects caused by the Covid 19 pandemic.

The 1^st respondent opposed the application on grounds that the application lacked merit, that the delay was inexcusably inordinate, and that the right of extension was not a right that the applicants deserved.

Issue

What factors did the Supreme Court consider in determining an application for leave to extend time to file an appeal?

Held

1. The Supreme Court had the jurisdiction to consider and allow an application for leave to extend time. An applicant that sought extension of time had to satisfy the principles set out in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others, SC (App) No. 16 of 2014, [2014] eKLR.
2. The applicants had no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation was not a sufficient ground for the Supreme Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence was tendered in that regard. And whereas the Covid pandemic initially affected the ability of parties to access the Supreme Court, there was no evidence in the instant case that the applicants were unable to access the Supreme Court or the Court of Appeal in good time to file their appeal.
3. The applicants had not annexed to their application their intended petition of appeal or the grounds of appeal which they wished the court to consider in their intended petition of appeal and to allow the proceedings before the Supreme Court to commence in accordance with rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020. The applicants had also not explicitly stated what constitutional provisions they intended to rely upon in the intended appeal.

Application dismissed, each party was to bear their own costs.

The Supreme Court could not entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya, 2010

Wanyiri Kihoro v Attorney General [2020] eKLR

Application No. 6 of 2020

Supreme Court of Kenya

D K Maraga, (CJ & P), P M Mwilu (DCJ & V-P), S C Wanjala, N Njoki & I Lenaola, SCJJ

September 23, 2020

Reported by Chelimo Eunice

Jurisdiction – appellate jurisdiction of the Supreme Court – appeals from the Court of Appeal - whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010 – where the final judgment by the Court of Appeal was delivered on March 17, 1993 – whether the Supreme Court could entertain the appeal - Constitution of Kenya, 2010, article 163(4)(b).

Brief facts

The applicant sought to review the ruling of the Court of Appeal denying him certification to file an appeal to the Supreme Court. The intended appeal was against the judgment of the Court of Appeal in Civil Appeal No. 151 of 1988 delivered on March 17, 1993. The applicant argued that although Civil Appeal No. 151 of 1988 was heard and determined on March 17, 1993, the cause of action was not satisfied or finalized until November 2011, when the applicant’s application before the High Court seeking enforcement of the judgment in Civil Appeal No. 151 of 1988 was determined and the decretal amount recovered from the State; that there was continuity of the dispute between the parties up to November 2011, which was after the promulgation of the 2010 Constitution, hence the Supreme Court had jurisdiction to entertain the intended appeal.

Issue

Whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010.

Held

1. The Supreme Court had no jurisdiction to entertain appeals from final judgements of the Court of Appeal before the promulgation of the Constitution of Kenya 2010. Article 163(4)(b) of the Constitution 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.
2. The final judgment by the Court of Appeal was delivered on March 17, 1993, long before the promulgation of the Constitution. There could never have been any other appeal from that judgment due to the fact that the Court of Appeal was then, the highest court in the land. When the applicant moved to the High Court in Miscellaneous Application No.52 of 2009, he was simply but importantly seeking to enforce the final judgment and orders of the Court of Appeal. He was seeking to reap the fruits of that judgment. Such an application could not be said to have sustained the cause of action until November 2011, so as to confer jurisdiction on the Supreme Court. The applicant was not appealing anything from such an enforcement action that he commenced before the High Court. Even if such an appeal were possible, which it was not, the Supreme Court would not have appellate jurisdiction over a decision from the High Court.
3. Since the Supreme Court had no jurisdiction to entertain the application, it could not determine the other two issues raised.

Application dismissed with no orders as to costs.

Whether a notice of appeal and petition of appeal filed out of time and without the requisite leave could be sanctified by court

University of Eldoret & another v Hosea Sitienei & 3 others [2020] eKLR

Application No. 8 of 2020

Supreme Court of Kenya

D K Maraga (CJ & P), P M Mwilu (DCJ & VP), M K Ibrahim, S C Wanjala, Lenaola, SCJJ

September 4, 2020

Reported by Chelimo Eunice

Jurisdiction – jurisdiction of the Supreme Court – extension of time - jurisdiction of the Supreme Court to extend time within which to file an appeal – whether the Supreme Court could extend time within which to file an appeal – what were the grounds in which the Supreme Court could allow extension of time – claim that a delay of 560 days in filing an appeal was as a result of a litigant pursuing a review process before the Court of Appeal - whether the court could extend time within which to file an appeal in such a situation.

Civil Practice and Procedure – appeals – appeals to the Supreme Court – time within which to file appeals before the Supreme Court – importance of filing of a notice of appeal – whether a notice of appeal and petition of appeal filed out of time and without the requisite leave could be sanctified by the court -  Supreme Court Rules, 2020, rule 36.

Brief facts

The applicants sought to stay execution of decree and orders arising from the judgment of the Court of Appeal delivered on October 18, 2018 and for extension of time to file notice of appeal and petition of appeal in relation to the judgment. The applicants argued that if the stay orders were not granted, the 1^st applicant was going to suffer substantial losses because it would be required to expend public funds to satisfy the decretal sums amounting to Shs. 38,903,116.60 in favour of the 1^st and 2^nd respondents.

On the issue of leave to lodge the notice of appeal and appeal out of time, the applicants explained the delay by stating that after the delivery of the judgment by the Court of Appeal, they sought to review the same unsuccessfully as their application was dismissed. That a subsequent petition to the Supreme Court challenging the review ruling was also dismissed. They maintained that the steps they took revealed their concerted and diligent efforts made to access justice and that they were not indolent at any point.

The 1^st and 2^nd respondent opposed the application arguing that the Supreme Court had no jurisdiction to grant the prayers sought in the absence of a proper notice of appeal filed before it and that in any event, the application for stay was overtaken by events since the applicants’ account had already been garnished. They further stated that the application had been brought more than 560 days after the decision was delivered, making the application for stay a non-starter, impish and purely an abuse of the court process. They argued that ignorance of the law on the side of the applicants’ legal advisors could not find a ground for extension of time and the court could not deem as properly filed documents lodged in court after 560 days without authority as that would amount to countenancing egregious actions.

Issues

1. Whether the Supreme Court could extend time within which to file an appeal.
2. Whether the Supreme Court could allow extension of time in filing an appeal where the delay was as a result of a litigant pursuing a review process before the Court of Appeal.
3. Whether an aggrieved party could apply for review of the decision complained of and pursue an appeal against the same decision concurrently.
4. Whether a notice of appeal and petition of appeal filed out of time and without the requisite leave could not be sanctified by the court.

Held

1. The Supreme Court had jurisdiction to extend time and the exercise of that jurisdiction was an issue of its judicial discretion. A particular consideration being whether the applicants had a reasonable reason to explain their delay to the court’s satisfaction.
2. The main contention by the applicants was that they had sustained a diligent quest for justice only that they relied on their advocates’ honest belief and advice in pursuing a review of the Court of Appeal judgment and subsequent appeal before the Supreme Court. That course, unfortunately for them, did not yield their expected outcome, hence, the reason they were seeking another opportunity to go at it albeit by way of appeal on the substantive judgment of the Court of Appeal.
3. Following the decision of the Court of Appeal, the applicants were faced with two options, to either file for review of the decision to the same court or pursue an appeal before the Supreme Court within either of the applicable jurisdictional contours. The applicants, as advised by their advocates, chose the former. They could not concurrently pursue both options as that would be an outright abuse of judicial process. However, where a litigant had more than one option to pursue, he had to settle on one of them. The decision on which course to pursue was taken in advance and once it was taken, the other option was no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option did not succeed. That meant that when choosing, the litigant was expected to choose the best available option since he could not have any further recourse.
4. When the applicants preferred to pursue a review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at the instant stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. That would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the altar of judicial process without the attendant consequences.
5. The delay which the applicants sought to be excused from was largely as a result of the applicants’ pursuit of the review process before the Court of Appeal and the resultant appeal before the Supreme Court. That delay was 560 days. Whereas the applicants would have diligently been pursuing their options whose success could have had an implication on the need for the instant proceedings, the court was not inclined to accept such explanation.
6. Rule 36 of the Supreme Court Rules provided for the filing of a notice of appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal was founded. The filing of a notice of appeal was not premised on any occurrence or condition to be fulfilled by the appellant. It signified the intention to appeal. The applicants appreciated as much in filing their notice of appeal against the review decision of the Court of Appeal. The applicants could not, therefore, argue that they did not know the importance of that step. The applicants had not explained why they never attempted to comply with that important step at the time.
7. The prevailing circumstances did not enable the court to evaluate any satisfactory reasons that excused the applicants from the apparent non-compliance. The purported filing of a notice of appeal and petition of appeal without the requisite leave could not be sanctified by the court, notwithstanding that a case number was issued to the applicants. The alleged notice of appeal and petition of appeal, therefore, had to be struck out from the court record for having been filed without the court’s sanction and out of time. The notice of appeal not having been filed on time, the court could not resuscitate anything in the matter. The prayer for extension of time, thus, failed.
8. In the absence of a subsisting appeal, the prayers for stay in both applications were superfluous. The principle objective for grant of orders of stay was to preserve the subject matter of an appeal. The applicant had to satisfy the court that the intended appeal was arguable and not frivolous, and that unless the stay order sought was granted, the appeal or intended appeal would be rendered nugatory.
9. The applicants’ intended appeal would, but for the court’s finding, been arguable. The applicants sought to challenge the manner in which the Court of Appeal exercised its jurisdiction and how that related to articles 25 and 50 of the Constitution. The issues raised in the matter related to the court’s determination of the doctrine of res judicata a similar issue pending before the court.
10. As for the other consideration whether or not the intended appeal would be rendered nugatory, the applicants’ position was contradictory. The garnishee proceedings were as a result of lawful legal process arising from a decree issued by a competent court. That in itself could not justify grant of stay particularly in the wake of the status of the appeal. Accordingly, the court was not persuaded to grant stay orders under the circumstances, as it would have served no purpose.

Applications dated May 6, 2020 and May 22, 2020 dismissed, petition of appeal dated May 6, 2020 struck out, with each party bearing own costs.