Procedure and form should not trump the primary object of dispensing substantive justice to the parties.

Dhanjal Investment limited v Kenindia Assurance Company Limited

Civil application No 39 of 2014

Supreme Court of Kenya at Nairobi

Rawal DCJ, Tunoi, Ibrahim, Wanjala & Njoki, SCJJ

May 10th, 2016

Reported by Halonyere Andrew &Nowamani Sandrah

Brief facts

The applicant brought an application before the Supreme Court seeking certification of an intended appeal, pursuant to article 163(4)(b) of the Constitution. The applicant sought review of the Court of Appeal ruling which declined to certify the intended appeal as one that involved matters of general public importance

Issues

1. Whether failure by the parties to comply with procedure and form could trump the primary object of dispensing substantive justice to the parties.
2. What is the remedy for breach of a contract anchored on a Standard Form procedure that provides for an arbitration process in case of a dispute, but does not set out the steps for the process?
3. Whether the Court of Appeal retrospectively applied section 12 of the Arbitration Act, 1995.
4. Whether the Supreme Court had inherent jurisdiction to admit an appeal where there was delay in filing the notice of appeal.
5. Whether rule 24(4) of the Supreme Court rules that is procedural could  confer any jurisdiction upon the Supreme Court to certify this matter as one of general public importance

Civil practice and procedure – review – application for certification and grant of leave for the applicant to lodge an appeal from the decision of the Court of Appeal – where the appeal was brought pursuant to rule 24(4), section 15 of the Supreme Court rules and article e 163(4)(b) of the Constitution – whether the Supreme Court’s jurisdiction could be invoked by approaching the Supreme Court under the said provisions – whether failure by the parties to comply with procedure and form could trump the primary object of dispensing substantive justice to the parties. – Constitution of Kenya 2010, article 163(4)(b) - Supreme Court Act, section 15, rules 24(4).

Constitutional law – alternative disputes – whether where a process of alternative dispute was lodged in a contract but no procedure was conclusively laid out, and no remedy for breach was apparent whether the Supreme court had jurisdiction to give a remedy

Relevant provisions of the law

The Constitution 2010

 Article 163(4) (b) of

Article 159(2)(c),

“Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted …”

Supreme Court Rules.

  Rule 24(4) provides:

 “An application under this rule shall be by originating motion in Form K set out in the First Schedule.”

Rule 24(2),

“Where the Court of Appeal has certified a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.”

Supreme court Act

  Section 15(1)

 “Appeals to the Supreme Court shall be heard only with the leave of the Court.”

Held

1. Rule 24(4) of the Supreme Court rules was procedural, and did not confer any jurisdiction upon the Supreme Court. it was significant that the applicant’s motion be brought pursuant to Rule 24(4) of the Supreme Court Rules, 2012, section 15 of the Supreme Court Act, 2011 and article 163(4)(b) of the Constitution of Kenya, 2010. Therefore, even though the applicant was unable to invoke the Court’s jurisdiction by citing rule 24(4), it certainly did so when it cited section 15 of the Act, and article 163(4) (b) of the Constitution.
2.  Section 15(1) should be read as amplifying the terms of article 163(4) (b) of the Constitution as regards certification an intended appeal was to be one involving matters of general public importance. It was precisely such a certification that amounted to a grant of leave to appeal to the Supreme Court. The Court had clarified that where such leave was denied in the Appellate Court; a review could be done at the Supreme Court.
3. While Rule 53 empowered the Supreme Court to extend time limited by these Rules, that was a power exercised judiciously, and on a case-by-case basis.  A party had to make a proper case for any extension to be granted.  Hence the need for an application for extension of time; and that might have led to the respondent’s argument that the applicant had not obtained leave to file its application out of time.
4.  In instances where there was delay in filing the notice of appeal, the Supreme Court had inherent jurisdiction to admit such appeal, provided sufficient explanation was proffered for the cause of delay.  The design and objective of the Supreme Court Rules was to ensure accessibility, fairness and efficiency in relation to the Supreme Court.  Parties should comply with the procedure, rather than look to Court discretion curing the pleadings before it.
5. In instances where full compliance with procedure had not taken place. It was the Supreme Court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties. However, the Court would consider the relevant circumstances surrounding a particular case, and would conscientiously ascertain the best course. Rules of procedure are not irrelevant, but are the handmaiden of justice that facilitate the right of access to justice in the terms of article 48 of the Constitution.
6. An application for certification should always be decided on a case-to-case basis, as guided by its peculiar facts. The common denominator was only the principles for certification, to which the peculiar facts of each case were subjected.  The overall effect of the Appellate Court’s position, it appeared, was that all those accidents involved the named entities and persons, could not possibly be certified for appeal before the Supreme Court.  Using an operational yardstick: the point of law or fact that was being presented to the Court for consideration, and its special exigencies.  A private contract between parties might have brought to the fore a point of law that, upon its evaluation, might be found to entail such jurisprudential perspectives as would apply to other cases therefore making it a matter of general public importance.
7.  While the Insurance Policy described as a Public Liability Policy was taken out by the individual applicant, that was not a one-off scenario, limited to the parties to the case. Apart from the design of standard form contracts through which insuring agencies attracted commercial transactions, it properly fell to the Supreme Court to deliberate upon and to clarify the legal dimensions of arbitration, as recourse in insurance business.
8.  The Court needed to pronounce itself on ‘public liability’ as a concept of the insurance business, even when only private individuals were involved.  That was a question that could only be properly answered upon hearing the substantive appeal, and upon an evaluation of the policy documents a venture that could not be conclusively undertaken in an application seeking certification, like the one before court.
9. In the promotion of alternative dispute resolution, such as by arbitration, the Supreme Court would be called to shed light on the remedy, in cases where such a process was lodged in the contract, but no procedure was conclusively laid out, and no remedy for breach was apparent.
10.  In relation to retrospective application of section 12 of the Arbitration Act, 1995. The fact was that in setting aside the High Court decision, the Court of Appeal relied on a provision of the law that was not yet in force at the time the cause of action arose. Retrospective application of a law was a valid issue that called for judicial determination, especially in the context of the promulgation of Kenya’s Constitution 2010, followed by the enactment or repeal of a plurality of statutes.  Hence, such a question called for a proper hearing and determination by the Supreme Court. 

Appeal allowed.

The intended appeal raised matters of general public importance. 

The Court of Appeal decision of 22^nd May, 2014 set aside.

The applicant’s Originating Motion allowed.

The applicant granted leave to file its appeal before Court, in accordance with the Rules of the Supreme Court.

The costs of the application to be in the appeal.

Circumstances under which the Supreme Court may overturn/overrule its own Decision

Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others

Petition 11 of 2014

Supreme Court of Kenya

W. M.  Mutunga CJ, K.H. Rawal DCJ, P. K. Tunoi, SCJ,

M. K. Ibrahim, SCJ, J.B. Ojwang, SCJ, S. C. Wanjala, SCJ, S. N. Ndungu, SCJ

April 21, 2016

Reported by Teddy Musiga and Mercy Cherotich

Brief Facts

The appellant filed the application before the Supreme Court seeking a review of the Supreme Court’s decision in Hassan Ali Joho and Another v. Suleiman Said Shahbal and 2 others. The review application emanated from a preliminary objection filed by the 1^st and 2^nd respondents. The respondents objected to the appellant’s appeal, on the ground that the High Court petition which the appeal originated from was filed outside the stipulated constitutional timelines, and that consequently, the Court lacked jurisdiction to entertain it. They supported the contention with the Court’s prior decisions, notably, the Joho case. The appellant, on the contrary, was of the view that the Joho decision was incorrect. He contended that there had been conflicting decisions in Mary Wambui Munene v. Peter Gichuki King’ara and 2 Others, Sup. Ct. Petition No. 7 of 2014; Peter Munya; and Lemanken Aramat v. Harun Meitamei Lempaka & 2 others, Sup Ct. Petition No.5 of 2014; and that there was obvious error in the prior Supreme Court interpretation of Article 87(2), in Joho, in view of the holdings in the Wambui, Munya and Aramat. The appellant further stated the overruling of Joho would be merely declaratory of a “prior virtual overruling”.

Issues

1. What were the principles to be considered before the Supreme Court could depart from its own decisions?
2. What was the meaning of declaration of election results?
3. Whether the announcement by the returning officer amounted to the Declaration of Election Results
4. Whether the Returning Officer is a mere employee or a Representative of the Independent Electoral and Boundaries Commission (IEBC)

Jurisdiction – jurisdiction of the Supreme Court to review its decisions – what were the principles to be considered before the Supreme Court could depart from its own decisions – claim where the applicant sought to review a decision of the Supreme Court on the grounds that the said decision was in conflict with other decisions of the Supreme Court on the meaning of declaration of election results - Constitution of Kenya, 2010, article 163(7)

Precedent – binding nature of precedents from the Supreme Court – circumstances in which the Supreme Court may depart from its own decisions – whether decisions of the Supreme Court can be declared per incuriam - Constitution of Kenya, 2010, article 163(7)

Electoral law – declaration of election results – what is the meaning of declaration of results – claim seeking review of the Supreme Court’s decision in the Joho case on the declaration of election results -

Civil practice and Procedure –suits – filing of suits – filing of review of Supreme Court decisions – principles to be considered when seeking review of a Supreme Court decision – procedure for seeking review of a Supreme Court decision - whether a review matter can be instituted by way of submissions – claim seeking review of the Supreme Court decision in Joho case on the meaning of declaration of results on the contention that it conflicted with other decisions of the Supreme Court -  The Constitution of Kenya, 2010 – article 159, 163 -Supreme Court Rules, rule 20 (4).

Held

1. Rule 20 (4) of the Supreme Court Rules, 2012 provided that a party desirous of moving the Court to exercise its powers of review, had to do so by way of an application, rather than just incidentally, through submissions. The rules of procedure are a handmaid to the course of justice and had to be followed with fidelity.
2. Article 159 of the Constitution of Kenya, 2010 bore the principle that the exercise of judicial authority was to ensure that justice had to be done to all, irrespective of status; and that justice had to be administered without undue regard to procedural technicalities. In more general terms, that Article reposed in the Courts the obligation to protect and promote the purposes and principles of the Constitution. The courts were inclined to exercise its discretion as called for, and in the interest of justice, to overlook the procedural constraint. That, however, was not to compromise the important role of prescribed process in the fulfilment of goals of justice and of fair hearing.
3. A precedent of the supreme Court could be departed from in certain recognized situations,

1. Where the Supreme Court had to choose between conflicting precedents;
2. Where there had been obvious error in the prior supreme Court decision;
3. Where an express overruling was merely declaratory of a prior virtual overruling.

4.  The Constitution of Kenya, 2010 anticipated that the Court could in a proper case, depart from its decisions. Article 163(7) of the Constitution of Kenya, 2010 provided that, all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. What was in contention was whether circumstances had now arisen that necessitated that Court departing from its precedent. Whether or not the apex Court could adhere to its precedent, or depart therefrom, was dependent on that Court’s perception of the claims of justice and equity, or of the fundamental constitutional or related principles coming to bear upon the issues raised.
5. The immediate pragmatic purpose of such an orientation of the judicial process was to ensure predictability, certainty, uniformity and stability in the application of the law. Such institutionalization of the play of the law gave scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marked also other spheres of social and economic relations.
6. In principle, an apex Court could depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight. Such latitude for departure from precedent exists not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution.
7. There were grounds of substance which showed that the Supreme Court of Kenya could depart from its previous decisions of precedent-value. In that regard, the purpose and intent flowed from two complementary Articles. Article 159, which declared that the judicial authority was derived from the people, further stated that, the purposes and principles of the Constitution had to be protected and promoted. Article 259 (1) stipulated that Constitution ought to be interpreted in a manner that permitted the development of the law. The inference was to be drawn that the Supreme Court, if it was to ‘develop the law’, it had to have the liberty to depart from previous decisions such as could stand as a constraint to the growth of the law.
8. The special role of precedent in the certainty and predictability of the law as it played out in daily transactions; any departure was to be guided by rules well recognized. It was a general rule that the Court was not bound to follow its previous decision where such decision was an obiter dictum, or was given per incuriam. A statement obiter dictum was one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam was mistaken, as it was not founded on the valid and governing pillars of law.
9. The decision of a superior Court could not be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process; the test of per incuriam was a strict one - the relevant decision having not taken into account some specific applicable instrument, rule or authority. Subject to the broad principle, certain directions could, be laid down:

1. where there were conflicting past decisions of the Court, it could opt to sustain and to apply one of them;
2. the Court could disregard a previous decision if it was shown that such decision was given per incuriam;
3. a previous decision could not be disregarded merely because some, or all of the members of the Bench that decided it had now arrived at a different conclusion;
4. the Court could not depart from its earlier decision on grounds of mere doubts as to its correctness.

10. The Joho case had been endorsed in a number of election petitions that had come before the Supreme Court. Examples are: Mary Wambui Munene v. Peter Gichuki King’ara and 2 others, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Lemanken Aramat v. Harun Meitamei Lempaka & 2 others, Anami Silverse Lisamula v Independent Electoral & Boundaries Commission & 2 others; and the Appellate Court case, Paul Posh Aborwa v Independent Election and Boundaries Commission & 2 others. In all these decisions, the Court and the Appellate Court had laid out a set of guiding principles regarding the declaration of results. Besides, it was by no means insignificant that, recognizable political rights had vested in the parties, with consequent public-interest expectations on the part of the electorate.
11. The value of precedent in judicial decision-making was a recurring theme in the decisions of the court. The principle of stare decisis in Kenya unlike other jurisdictions was a constitutional requirement aimed at enhancing certainty and predictability in the legal system. The Articles of establishment and jurisdiction revealed the Court’s vital essence and the decisions of the Supreme Court protect settled anticipations by ensuring that the Constitution was upheld and enforced and that the aspirations of the Kenyan people embodied in a system of constitutional governance were legitimized. 
12. The constitutional contours of Article 163(7) oblige the Supreme Court to settle complex issues of constitutional and legal controversy and to give jurisprudential guidance to the lower Courts.  In the exercise of that mandate, the court determined the constitutional legality of statutes and other political acts to produce judicially-settled principles that consolidate the rule of law and the operation of government, and the political disposition, particularly in the settlement of electoral disputes.  As a Court entrusted with the final onus of settling constitutional controversies, one of the principal duties was the enforcement of constitutional norms.  Therefore, no valid cause had been shown, for the Court to exercise its power of review of its past decisions.
13. The concept of “declaration of election results” was considered and perceived by the Supreme Court, in the Joho case, as ‘Declaration’ takes place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County tallying centre. Thus the declaration of election results was the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration was depicted in the issuance of the certificate in Form 38 to the winner of the election. That marked the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.
14. The declared election results, enumerated in the Forms provided, were quantitative, and involved a numerical composition. It would be safe to assume, therefore, that where a candidate was challenging the declared results of an election, a quantitative break down would be a key component in the cause. It must also be ascertainable who the winner, and the loser(s) in an election, was. The certificate in Form 38 declared the winner of the election and terminated the mandate of the returning officer, who acted on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the election Court. It was held that the certificate in Form 38 comprised the declaration of election results. That declaration set in motion the time-frame within which to lodge an election petition. Consequently, the provision of Section 76 (1) (a) of the Elections Act was inconsistent with the provisions of Article 87 (2) of the Constitution, as elaborated and was therefore declared unconstitutional to that extent.
15. Article 88 (1) of the Constitution of Kenya, 2010 established the IEBC, and article 88(4) of the Constitution, outlined the responsibilities of the IEBC. The Elections (General) Regulations, 2012 in Regulation 3, provided for the appointment of the Returning Officer by the Commission (IEBC). Under Regulation 3(a), the Returning Officer was responsible for conducting elections at the constituency level.  The Constitution of Kenya, 2010, in Article 88(4) provided that, the Commission was responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution of Kenya, 2010 and any other elections as prescribed by an Act of Parliament. Section 87 of the Elections Act could not be equated to constitutional provision, the Elections Act, and the Regulations thereunder, were normative derivatives of the principles embodied in Articles 81 and 86 of the Constitution of Kenya, 2010, and that in interpreting them, a Court of law could not disengage from the Constitution.
16. The Election (General) Regulations, 2012 were to be read in conformity with the Constitution.  The effect was that, the Returning Officer was the IEBC, when conducting the relevant duties under the Constitution, the Elections Act, and the Regulations thereunder. No less relevant was the Independent Electoral and Boundaries Commission Act, 2011.  That Act, in Section 4, set out the functions of the IEBC which were for the most part, replicated in article 88(4) of the Constitution of Kenya, 2010.  It also provided for the composition of the Commission.
17. The IEBC Act also provided for a Secretary to the Commission (Section 10), who was appointed pursuant to Article 250 (12) of the Constitution of Kenya, 2010. The Secretary was the chief executive officer of the Commission; head of the secretariat;  accounting officer of the Commission; custodian of all Commission records; bearer of responsibility for executing decisions of the Commission; officer in charge of assignment of duties and supervision of all employees of the Commission; facilitator, co-ordinator and executor of Commission’s mandate; guarantor of staff compliance with public ethics and values; executor of such other duties as may be assigned by law and  by the Commission. Without a doubt, the Secretary was a vital component of the IEBC – indeed, a central part of the IEBC, regardless of not bearing the designation “Commissioner”. Section 11 of the Act made provisions regarding employees of the Commission, who conducted their functions at headquarters, and at the numerous regional offices of IEBC.
18.  It would be impractical to expect the Commissioners, to conduct all the functions entrusted to the Commission under Article 88 (4) of the Constitution of Kenya, 2010. The secretary could hardly do without employees entrusted with specified duties.  Had it been the case that, all such tasks devolved only to “Commissioners”, the consequence would be that all actions routinely taken by the IEBC staff, such as continuous registration of voters, regular revision of voters’ roll, and registration of candidates, would be a nullity in law. There was need to avoid such construction of the Constitution as would be contrary to the public interest. The requisite approach in interpreting article 88 (1) of the Constitution of Kenya, 2010, was one that vindicated the constitutional purposes and objectives, and that fosters good governance, in accordance with the terms of article 259. Good governance in that instant entailed ensuring that the constitutional functions of the Commission do not come to a standstill, as was destined to happen if the discharge of such functions were left entirely to the nine Commissioners.
19.  The IEBC comprised of the Commissioners, as well as its employees who had been duly authorised. Consequently, and in accordance with the Joho precedent, the Returning Officer, an employee of the IEBC, properly acted on its behalf.

Application dismissed, costs to the applicant.

Supreme Court rules that determination of the liability question as a result of wildlife destructions is a matter of general public importance

Rift Valley Agriculture Contractors Ltd v Kenya wildlife Service

Motion 13 of 2015 

Supreme Court of Kenya

P.K Tunoi, M.K Ibrahim, J.B Ojwang, S. Wanjala, S.N Ndungu

April 20, 2016

Reported by Kipkemoi Sang

Brief facts

The High Court and the Court of Appeal had resolved that the Respondent (Kenya Wildlife Service) was liable to compensate victims in cases where wild animals destroyed their crops or property under the common law and as such, the Respondent in the Court of Appeal filed a certification to institute the matter before the Supreme Court on the grounds that it raised matters of general public importance.  The Applicant filed a motion seeking to have the court review a grant of certification by the Court of Appeal on contended that the matter was without merit as it did not raise questions of substantive law or issues of general public importance to warrant the jurisdiction of the Supreme Court.

According the Respondent the Applicant had not demonstrated to the court the issues framed by the Court of Appeal while granting certification did not amount to those of general public importance.  

Issues

1. Whether a basis had been laid for it to overturn the certification by the Court of Appeal and to revoke the leave granted to the respondent to file an ultimate appeal before the Supreme Court.
2. Whether annual migration of wildlife should be perceived as a matter of general public importance to warrant a resolution by the Supreme Court
3. Whether the certification sought raised a point of law that was substantial, the determination of which would have a significant bearing on the public interest
4. Whether the Supreme Court determination on:
   1.  whether damage caused by migrating wildlife was an Act of God and
   2. Whether the rule in Rylands –v- Fletcher applied in National Game Reserves

  could amount to matters of general public importance.

5. Whether demystifying the status of the Maasai Mara as a ‘Game Reserve’ or a ‘National Reserve’ in order to determine who bore compensation claimed was of vital public implications

Civil Practice and Procedure- jurisdiction–appellate jurisdiction of the Supreme Court-jurisdiction of the Supreme Court to determine Appeals certified by the Court of Appeal-circumstances in which the supreme court determines what was befitting for its determination-matters of law, general public importance-whether a basis had been laid for the Supreme Court to overturn the certification by the Court of Appeal and to revoke the leave granted to the respondent to file an ultimate appeal before the Supreme Court

Jurisdiction- jurisdiction of the Supreme court to determine matters of general public importance-what amounted to matter of general public importance- determination of the status of the Maasai Mara as a ‘Game Reserve’ or a ‘National Reserve’ in order to determine who bore compensation claimed was of vital public implications

Held

1. Pursuant to article 163 (5) of the Constitution, a certification by the Court of Appeal to the Supreme Court could either be affirmed, varied or overturned. Article 163(4) was to be read conjunctively with article i63(5) which properly devolved to the Supreme Court to consider the Appellate Court’s ruling that granted certification.
2. Section 107 of the Evidence Act required he who alleges to proof. The onus rested on the Applicant to set out the shortcomings in the Appellate Court’s decision for the Supreme Court to examine them for any fault of the kind alleged.
3. A matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impact and consequences were substantial, broad-based, transcending the litigation interests of the parties, and bearing upon the public interest.
4. The Court of Appeal while considering the matters that were being contested as not befitting the certification for hearing before the Supreme Court, considered that had taken judicial notice that migration of wildlife from one place (Serengeti) to another (Maasai Mara) Game Reserve was an annual event and the said wild animals could find their way into people’s farms and destroy crops in their haste to escape the imminent danger of other animals wanting to prey on them. The realization made the point of the law in issue in the instant case to be broad based, transcending the circumstances of the particular case and a significant bearing on public interests.
5. Judicial notice ought to be taken the process of migration of wild animals was perceived as the eighth wonder of the world. With such a large scale wild life motion annually, major environment and relevant impact were unavoidable and as such no fault should be perceived in view of such phenomenon.  The migration would recur over and over again; and the burden of its impacts would fall on all farmers in the affected areas. It was to be expected that over the years, so many other suits could be lodged before the Courts, with parties seeking a resolution to conflicts occasioned by the periodic wildlife migration.  Evidently, the annual migration of wildlife should be perceived as a matter of general public importance.
6. The intended appeal was to enable the Supreme Court to interpret and determine the question whether the function of Kenya Wildlife Service (KWS) to render services to the farming and ranching communities in Kenya necessary for the protection of agriculture and animal husbandry against destruction by wildlife, imposed a duty upon KWS to compensate farmers for destruction to crops caused by wildlife. The said question raised a substantial point of law with a significant bearing on public interest. The Supreme Court’s interpretation of Section 3A (i) would give judicial direction and certainty as to whether the Section allowed compensation for destruction caused by wildlife.
7. It was a matter of general importance and public interest that the Supreme Court should consider and determine the issue as to: whether damage caused by migrating wildlife was an Act of God and if the rule in Rylands –v- Fletcher applied in National Game Reserves.  
8. The instant matter drew considerable public interest.. KWS was found liable by both superior Courts. If in the event, KWS pays every year for the damage caused by wildebeest migration, it would follow that the periodic disbursements by the said State Corporation would be an accountable element in public funds. The expenditure of public funds was a matter of public interest and, if it was to be an annual obligation, it then called for clear budgetary arrangements, in line with the Constitution. The Applicant had failed to show that both Superior Courts erred in certifying the Matters as of general public importance.
9.  It was necessary to make a determination regarding the responsibility of Government, if at all, to compensate private persons for damages occasioned by wild animals in the National and/or Game Reserves. The questioning of the Respondent as to the status of the Maasai Mara as a ‘Game Reserve’ or a ‘National Reserve’ was of vital public implications. If a finding was made that it was a National Park, then the KWS position was that it could be liable to pay compensation, as National Parks fell within the management of national government. If it was a ‘Game Reserve’, then it fell under the management of the devolved Narok County Government, by virtue of the new Constitution, and so KWS had no responsibility for damage caused by wildlife.
10. Issues of controversy that emerged from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, would merit a place in the category of matters of general public importance. In the instant case, the Ruling of the Court of Appeal was emphatic on the terms of the substantive decision and as such the views of the Court of Appeal exemplified the best course of reasoning. the Supreme Court should therefore consider and make a determination on the point of law raised in the intended appeal

Motion dismissed. Applicant to bear costs

Court rejects application to review Court of Appeal’s decision declining to certify a matter as of general public importance

Dickson Muricho Muriuki v Timothy Kagondu Muriuki & 6 others

Application No. 47 of 2014

Supreme Court of Kenya at Nairobi

P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Ndungu, SCJJ

March 15, 2016

Reported by Teddy Musiga

Brief Facts:

This application sought a review of the decision of the Court of Appeal which declined to certify the intended appeal as one raising matters of general importance.

Issues:

1. Whether the intended appeal involved a matter of general public importance so as to warrant a review of the decision of the Appellate Court that declined certification as such.
2. Whether the doctrine of res judicata could operate to bar members of the same family or clan from litigating a dispute previously resolved in relation to their kin.

Jurisdiction – appellate jurisdiction of the Supreme Court – jurisdiction of the Supreme Court with respect to determining matters of general public importance – claim challenging the decision of the Court of Appeal in declining certification as a matter of general public importance – article 163(4) and (5), Constitution of Kenya, 2010; sections 13, 16 and 17, Supreme Court Act, Rules 23, 24 and 53 of the Supreme Court Rules, 2012

Held:

1. The Supreme Court in the Hermanus Steyn case, considered the criteria for determining whether a particular case involved a “matter of general public importance”. The Court was alive to the fact that the meaning of “matter of general public importance” could vary, depending on the relevant context.
2. The applicant failed to demonstrate how the issues raised, both in the submissions and the draft petition of appeal, transcended the parties to the suit. The dispute was one between family members and involved a privately owned parcel of land. Thus, the dispute did not transcend the immediate interests of the parties to the suit. Indeed, there was no nexus between the issues raised, and the general public at large.
3. The applicant failed to bring out the complex issues of res judicata, warranting the input of the Supreme Court.  Bare allegations did not qualify a matter as one of general public importance. Res judicata only applied if another court reached a conclusion on the same facts, between the same parties. Thus, the applicant was unable to show how the principle of res judicata had given rise to a legal issue that required determination, or amplification or clarification by the Supreme Court.
4. From the relevant issues, and analysis therein, it was clear that the applicant’s objective was to secure an interpretation of the law in the context of the facts of the case. He failed to demonstrate that, there was a substantial point of law bearing on the public interest; there was uncertainty in law occasioned by inconsistent precedents, and there was any question of law arising from decisions of the Superior Courts and requiring interpretation.

Application dismissed.

Johnson Githaiga Mwaniki v Daniel Githaiga Mwaniki

Petition 33 of 2014

Supreme Court of the Republic of Kenya

K. H. Rawal, DCJ; P.K. Tunoi, J.B. Ojwang, S.C Wanjala & N. S. Ndungu, SCJJ

December 4, 2015

Reported by Kipkemoi Sang

Brief facts

The Respondent had illegally attempted to acquire public land.  It was alleged that angry members of public demolished the timber structures which the Respondent had put on the said property. The plot constituted part of trust land under the Repealed Constitution, and so it fell under the jurisdiction of the County Council of Nyeri, now replaced by the County Government of Nyeri. The Respondent had reported the incident of damage to his property to the Police which led to the arrest of nine persons who were charged and convicted of malicious damage to property. On Appeal to the other Courts the conviction was quashed and sentence set aside.

The Applicant later instituted civil proceedings against the Respondent seeking compensation for the destroyed structure. The judgment in both the High Court and Court of Appeal was entered against the Applicant. On that basis the Applicant sought leave of court to file an appeal in the Supreme Court fronting an argument that his claim was a matter of general public importance.  

Issue

Whether the intended appeal raised matters of general public importance

Constitutional Law- public interest- matters of public interest- whether the intended appeal raised matters of general public importance

Held

1. A Matter of general public importance should be one of exceptional public significance, in that: firstly, it goes substantially beyond the facts of the case, and the    appropriate test was not whether there was a point of law, but whether the point of law transcends the facts of the individual case. Secondly, the law in question should stand in a state of uncertainty- so that it is for the common good that such law be clarified so as to enable the Courts to administer the law.
2. Where the matter in respect of which certification was sought raised a point of law, the intending appellant should demonstrate that such a point was a substantial one, the determination of which would have a significant bearing on the public interest.
3. The instance case arose from a criminal matter involving the Applicant as one of the accused persons, on a charge of malicious damage to property. The criminal case subsequently gave rise to a civil matter between the parties.  The Respondent sought monetary compensation from the Applicant and two other persons who had been accused of malicious damage to property. The issues raised in the intended appeal did not in any way transcended the circumstances of the case and as such it was incumbent upon the Applicant to demonstrate that the issue to be raised was a substantial one, the determination of which would have a significant bearing on the public interest.
4. A matter of general public importance warranting the exercise of appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences were substantial, broad-based, transcending the litigation-interest of the parties, and bearing upon the public interest. As the categories constituting public interest were not closed, the burden fell on the intending appellant to demonstrate that the matter in question carried specific elements of real public interest and concerns. The issues to be raised in the intended appeal were confined to the parties to the suit, and did not in any way transcend the interests and circumstances of the parties.
5. The standing principle in Hermanus case was that; the intending applicant had an obligation to identify, and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought. The Applicant was required to meet the terms of yet another governing principle set out in Hermanus case, namely: that the question or questions of law should have arisen in the Court or Courts below, and should have been the subject of judicial determination. In the instant case, none of those issues manifested the nature of a matter of general public importance. The issues arising in the intended appeal had been sufficiently determined by the Courts within the established hierarchy.

Appeal dismissed. Applicant to bear the costs

Prerequisites in application for certification on matters of general public importance at the Supreme Court

Florence Nyaboke Machani v Mogere Amosi Ombui

Application No 2 of 2015

Supreme Court of Kenya at Nairobi

K H Rawal; DCJ, P K Tunoi, M K Ibrahim, J B Ojwang and S N Ndungu, SCJJ

December 3, 2015

Reported by Teddy Musiga

Brief facts

The applicant filed the instant application seeking leave to be granted to appeal further to the Supreme Court against the judgment and Order of the Court of Appeal delivered on 19^th September, 2014. She also sought that a certificate be issued certifying that the intended appeal involved matters of general public importance as it touched on the subject of land rights, and could not only affect the parties to the appeal but could also affect a large number of original land owners, by depriving them and causing socio economic hardships; and that the matter was of significant public interest.

Issues:

        i.            What was the procedure of invoking the concurrent jurisdiction of the Supreme Court and the Court of Appeal in applications for certification of matters as of general public importance?

      ii.            What was the effect of moving the Supreme Court under article 163(4) (b) (that provided for concurrent jurisdiction) as opposed to article 163(5) (provided for review of the denial by the Appellate Court) of the Constitution in a bid to certify matters as of general public importance?

    iii.            Whether an applicant while making an application for certification and grant of leave was required to attach a draft petition of the intended appeal for the Court’s perusal.

   iv.            Whether or not the intended appeal raised issues of general public importance, so as to warrant certification, and leave to appeal to the Supreme Court.

     v.            Whether the Supreme Court had jurisdiction to determine an application where the issues as framed had not been canvassed and determined by the High Court and the Court of Appeal in their respective substantive judgments.

Jurisdiction – appellate jurisdiction of the Supreme Court – whether the Supreme Court has jurisdiction to determine an application where the issues as framed had not been canvassed and determined by the High Court and the Court of Appeal in their respective substantive judgments – Constitution of Kenya, 2010, article 163

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court on matters of general public importance – concurrent jurisdiction of the Supreme Court and the Appellate Court in certifying matters as of general public importance – Constitution of Kenya, 2010 article 163(4) (b); 163 (5)

Civil Practice and Procedure – Appellate jurisdiction of the Supreme Court -  application for certification as of general public importance - whether an applicant while making an application for certification and grant of leave was required to attach a draft petition of the intended appeal for the Court’s perusal.

Held:

1.     In matters for certification as of general public importance, a party had to first go to the Court of Appeal, only coming before the Supreme Court for a review of that Court’s decision.

2.     The Supreme Court and the Court of Appeal had a concurrent jurisdiction to certify an intended appeal to the Supreme Court, as one involving matters of general public importance; save that, for orderly practice, one had to first go to the Court of Appeal, and only when dissatisfied by the Order of the Appellate Court could one come before the Supreme Court under article 163(5) of the Constitution for a review.

3.     The instant application was brought under article 163(4) (b) of the Constitution. It was unfortunate that the applicant had not cited article 163(5) of the Constitution as a basis for the proceedings. That was the provision of the law that clearly gave the applicant locus standi before the Supreme Court, by referring to “review”. It was trite law that a court of law had to be moved under correct provisions of the law. The Supreme Court was the highest court of the land. On that account and in the interest of justice it could not interpret procedural provisions as being cast in stone. Consequently, the failure to cite article 163(5) of the Constitution was not fatal to the applicant’s cause. Further, article 159(2) (d) of the Constitution provided that procedural technicalities could not override the substantive justice of the matter.

4.     It was noted that the respondents had participated in the proceedings in the Court of Appeal (Civil Application No. 65 of 2014) where leave was sought to appeal to the Supreme Court – such leave being denied on the 25^th February, 2015. That ruling was part of the record before the Supreme Court, and confirmed that the applicant, indeed, went before the Court of Appeal first. There was thus, a basis in principle for overlooking her failure to expressly cite article 163(5) of the Constitution. It was clear that what the applicant sought was a review of denial of certification by the Court of Appeal, which request if allowed, could culminate in the grant of leave to appeal to the Supreme Court.

5.     There was no requirement in law that provided that, in making an application for certification and grant of leave, a party had to attach a draft petition of the intended appeal for the Court’s perusal. What was required instead was an identification of issues that were considered to be of general public importance. Attachment of a draft petition of appeal was a requirement where one sought extension of time to file a notice of appeal, or appeal out of time, or where stay of execution pending appeal was sought.

6.     In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was to be the chain of courts in the constitutional set up, running to the Court of Appeal, had the professional competence, and proper safety designs, to resolve all matters turning on technical complexities of the law; and only cardinal issues of law or of jurisprudential moment, could deserve the further input of the Supreme Court.

7.     At no time were the substantive issues framed in the application before the Supreme Court were ever considered, or determined by the superior courts. The issues which were being associated with matters of general public importance had clearly not evolved through the judicial hierarchy, in the mode contemplated by the Supreme Court’s criteria for invoking its appellate jurisdiction. Suffice it to say, that if the Supreme Court were to admit and determine such issues, the court could be determining them in the first instance – which would have been contrary to the established principle and to the design of the judicial system.

8.     The issue whether or not the tribunals established under the repealed Lands Disputes Tribunal Act had jurisdiction to determine claims of land ownership, was by no means a matter of general public importance as was clear from the terms of section 3 of that Act. Moreover, the applicant had not demonstrated that the High Court or the Court of Appeal, in the instant matter held a view inconsistent with the recognised jurisprudence on that issue.

Application disallowed. Costs to the respondents

Supreme Court Advises that Relationship between the mandates of the National Land Commission, and the Ministry of Land, Housing and Urban Development is that of Co-operation and interdependence

In the matter of the National Land Commission

Advisory Opinion Reference No. 2 of 2014

Supreme Court of Kenya

W.M. Mutunga CJ, K.H. Rawal DCJ, P.K.Tunoi, M.K. Ibrahim, J.B. Ojwang & N.S.Ndungu SCJJ

December 2, 2015

Reported by Long’et Terer

Brief facts

The National Land Commission (NLC) filed an application before the Supreme Court seeking to be advised on the mandate and relationship between NLC and the Ministry of Lands and Urban Development.

The Constitution of Kenya, 2010 established the NLC as an independent office with specific functions some of which were previously under the Executive. Prior to that, the Commissioner of Lands and the President had monopolised the powers to manage, and to dispose of land. That broad land-disposal empowerment had led to certain abuses.

The National Land Commission (NLC), which was established under article 67(1) of the Constitution of Kenya, 2010, to, amongst other things, manage public land on behalf of the National and County Governments, sought a clarification on its functions and powers, on the one hand, and the functions and powers of the Ministry of Land, Housing and Urban Development (the Ministry), on the other hand, in light of the three main statutes that were enacted in line with article 68 of the Constitution, those were, National Land Commission Act No. 5 of 2012; Land Act, No. 6 of 2012 ; Land Registration Act No. 3 of 2012.

The issues canvassed before the court related to the mandate of the two offices in relation to: administration and management of public land, community land, and private land; the allocation of public land; the renewal and extension of leases; issuance of licences, leases and grants in respect of public land; compulsory acquisition of land; the creation of land registration units; the establishment of a land register.

It was submitted that the NLC could be viewed as a fourth arm of Government, created to cater for a specific need, but ultimately independent of Government. NLC was presented as a creature of the Constitution, just like the Executive, and was thus not to be treated as being subservient to the Executive and in that case the Ministry of Land, Housing and Urban Development.

The heart of the Reference before the Court was the issue of ‘land administration and management’, which arose from the wording of articles 62(2) and 67 (2) (a) of the Constitution.

Issues

i. What was the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand– in the context of Chapter Five of the Constitution; the principles of governance (article 10 of the Constitution); and the relevant legislations? (Land Registration Act; Land Act; National Land Commission Act)

ii. Whether the independence accorded to commissions and independent offices was subject to any oversight, check or mechanisms of accountability.

iii. The role and place of public participation in the administration and management of land in Kenya.

Statutes-interpretation of statutes- land-related statutes - National Land Commission Act, Land Act, Land Registration Act – interpretation of the Statutes with regard to the relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development in the context of Chapter Five of the Constitution- Constitution of Kenya, 2010, articles 10, 62 and 67; National Land Commission Act No. 5 of 2012, section 18; Land Act, No. 6 of 2012, sections 6, 8, 9, 12, 13, 20 and 107; Land Registration Act, 2012, sections 6, 7(3), 8, 12, 14, 38(2), 39, 55 and 86

Land Law-National Land Commission–functions of the National Land Commission –relationship between the Mandate of the National Land Commission and the Ministry of Land, Housing and Urban Development- what was the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand in the context of Chapter Five of the Constitution and the relevant legislation-Constitution of Kenya, 2010, articles 10, 62 and 67, National Land Commission, Land Act No. 5 of 2012, section 18 Land Act, No. 6 of 2012, sections 6, 8, 9, 12, 13, 20 and 107; Land Registration Act, 2012, sections 6, 7(3), 8, 12, 14, 38(2), 39, 55 and 86

Constitutional Law-separation of powers -principles of separation of powers - principles of separation of powers and checks and balances among state organs vis a vis independence of each state organ, independent offices and state agencies- proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land with regards to separation of powers- whether the independence accorded to commissions and independent offices was subject to any oversight, check or mechanisms of accountability- Constitution of Kenya 2010 articles, 60 and 259(11)

Constitutional Law-principle of public participation- public participation requirements relating to land matters- participation of the people at the National level and County levels- the role and place of public participation in the administration and management of land in Kenya- Constitution of Kenya, 2010, articles, 1(4), 61(1),174(c) and (d), 232(1) d), (e) and (f)

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 10; National values and principles of governance

(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include;

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;

(c) good governance, integrity, transparency and accountability; and

(d) sustainable development.

Article 62; Public Land

(1) Public land is—

(a) land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;

(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;

(c) land transferred to the State by way of sale, reversion or surrender;

(d) land in respect of which no individual or community ownership can be established by any legal process;

(e) land in respect of which no heir can be identified by any legal process;

(f) all minerals and mineral oils as defined by law;

(g) government forests other than forests to which Article 63 (2) (d) (i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;

(h) all roads and thoroughfares provided for by an Act of Parliament;

(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;

(j) the territorial sea, the exclusive economic zone and the sea bed;

(k) the continental shelf;

(l) all land between the high and low water marks;

(m) any land not classified as private or community land under this Constitution; and

(n) any other land declared to be public land by an Act of Parliament—

(i) in force at the effective date; or

(ii) enacted after the effective date.

(2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under—

(a) clause (1) (a), (c), (d) or (e); and

(b) clause (1) (b), other than land held, used or occupied by a national State organ.

(3) Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.

(4) Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.

Article 67; National Land Commission

(1) There is established the National Land Commission.

(2) The functions of the National Land Commission are—

(a) to manage public land on behalf of the national and county governments;

(b) to recommend a national land policy to the national government;

(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;

(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;

(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;

(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;

(g) to assess tax on land and premiums on immovable property in any area designated by law; and

(h) to monitor and have oversight responsibilities over land use planning throughout the country.

(3) The National Land Commission may perform any other functions prescribed by national legislation.

National Land Commission Act No. 5 of 2012

Section 18- County Land Management Boards

(1) The Commission shall, in consultation and cooperation with the National and County Governments, establish County land management boards for purposes of managing public land.

(2) A County land management board shall comprise of:

a) not less than three and not more than seven members appointed by the Commission; and

b) a physical planner or a surveyor who shall be nominated by the County Executive member and appointed by the governor.

…

(6) The appointment of the members shall be approved by the County assembly and shall take into account the National values referred to in Article 10 and Article 232 of the Constitution and shall reflect gender equity and ethnic diversity within that County.

…

(8) In the discharge of their functions, the boards shall comply with the regulations made by the Commission under this Act.

(9) The boards shall:

a) subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and

b) perform any other functions assigned by the Commission or by any other written law."

Land Registration Act, 2012

Section 6; Registration units

“The cabinet secretary shall in relation to the management and administration of land

a) develop policies on land upon the recommendation of the commission;

b) facilitate the implementation of land policy and reforms;

c) co-ordinate the management of the National Spatial Data Infrastructure;

d) co-ordinate the formulation of standards of service in the land sector;

e) regulate service providers and professionals including physical planners, surveyors, valuers, estate agents and other land related professionals to ensure quality control; and,

f) monitor and evaluate land sector performance.”

Section 7 (3); Land registry

“In establishing the land registry, the Public Service Commission and Cabinet Secretary, shall be guided by the principles of devolution set out in Articles 174 and 175 of the Constitution.”

Section 8; Community Land Register

“In managing public land on behalf of the National and County Governments the Commission—

a) shall identify public land, prepare and keep a database of all public land, which shall be geo-referenced and authenticated by the statutory body responsible for survey;

b) shall evaluate all parcels of public land based on land capability classification, a land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and

c) shall share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or

d) may require the land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument.”

Section 12; Appointment of officers

(1) There shall be appointed by the Public Service Commission, a Chief Land Registrar, and such other officers who shall be public officers as may be considered necessary for the effective discharge of functions under this Act.

(2) Any officer appointed under this Act shall be competitively recruited and vetted by the Public Service Commission.”

Section 14; General powers of Land Registrars

The Chief Land Registrar, County Land Registrars or any other land Registrars may, in addition to the powers conferred on the office of the Registrar by this Act

(a) require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same;

(b) summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation;

(c) refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;

(d) cause oaths to be administered or declarations taken and may require that any proceedings, information or explanation affecting registration shall be verified on oath or by statutory declaration; and

(e) order that the costs, charges and expenses as prescribed under this Act, incurred by the office or by any person in connection with any investigation or hearing held by the Registrar for the purposes of this Act shall be borne and paid by such persons and in such proportions as the Registrar may think fit.”

Section 38 (1); Certificates of payment of rates

“The Registrar shall not register any instrument purporting to transfer or to vest any land, a lease of land, situated within the area of a rating authority, unless a written statement by the relevant Government agency, certifying that all outstanding rates and other charges payable to the agency in respect of the land including rates and charges for the last twelve months and up to the date of request for transfer have been paid,… is produced to the Registrar.”

Section 39; Certificates as to payment of rent

(a) The Registrar shall not register an instrument purporting to transfer or create an interest in land, unless a certificate is produced with the instrument, certifying that no rent is owing to the National or County Governments in respect of the land.

(b) The Registrar shall not register an instrument effecting a transaction unless satisfied that any consent required to be obtained in respect of the transaction has been given by the relevant County Land Management Board on the use of the land, or that no consent is required.”

Section 55; Lessor’s consent to dealing with leases

“If a lease contains a condition, express or implied, by the lessee that the lessee shall not transfer, sub-let, charge or… part with the possession of the land leased or any part of it without the written consent of the lessor,… the dealings with the lease shall not be registered unless—

(a) the consent of the lessor has been produced to, and authenticated to the satisfaction of the Registrar and the Registrar shall not register any instrument purporting to transfer or create any interest in that land; and

(b) a land rent clearance certificate and the consent to the lease, certifying that no rent is owing to the Commission in respect of the land, or that the land is freehold, has been produced to the Registrar.”

Section 86; Review of the decision of the Registrar

“(1) If any question arises with regard to the exercise of any power or the performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and thereupon the Court shall give its opinion, which shall be binding upon the parties.”

Land Act No. 6 of 2012

Section 6; Land management and administration institutions

The cabinet secretary shall in relation to the management and administration of land.

(a) develop policies on land upon the recommendation of the commission;

(b) facilitate the implementation of land policy and reforms;

(c) co-ordinate the management of the National Spatial Data Infrastructure;

(d) co-ordinate the formulation of standards of service in the land sector;

(e) regulate service providers and professionals including physical planners, surveyors, valuers, estate agents and other land related professionals to ensure quality control; and,

(f) monitor and evaluate land sector performance.”

Section 8; Management of public land

“In managing public land on behalf of the National and County Governments the Commission—

(a) shall identify public land, prepare and keep a database of all public land, which shall be geo-referenced and authenticated by the statutory body responsible for survey;

(b) shall evaluate all parcels of public land based on land capability classification, a land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and

(c) shall share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or

(d) may require the land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument.”

Section 9; Conversion of land

1) Any land may be converted from one category to another in accordance with the provisions of this Act or any other written law.

2) Without prejudice to the generality of subsection (1) -

a) public land may be converted to private land by alienation;

b) subject to public needs or in the interest of defence, public safety, public order, public morality, public health or land use planning, public land may be converted to community land;

c) private land may be converted to public land by -

(i) compulsory acquisition;

(ii) reversion of leasehold interest to Government after the expiry of a lease; and

(iii) transfers; or

(iv) surrender.

d) Community land may be converted to either private land or public land in accordance with the law relating to community land enacted pursuant to Article 63(5) of the Constitution

3) Any substantial transaction involving the conversion of public land to private land shall require approval by the National Assembly or County assembly as the case maybe.”

Section 12; Allocation of public land

(1) The Commission may on behalf of the National or County Governments, allocate public land by way of:

(a) public auction to the highest bidder at prevailing market value subject to and not less than the reserved price;

(b) application confined to a targeted group of persons or groups in order to ameliorate their disadvantaged position;

(c) public notice of tenders as it may prescribe;

(d) public drawing of lots as may be prescribed;

(e) public request for proposals as may be prescribed; or

(f) public exchanges of equal value as may be prescribed.

(2) …

(3) Subject to Article 65 of the Constitution, the Commission shall set aside land for investment purposes.”

Section 13; Lessee pre-emptive rights to allocation

(1) Where any land reverts back to the National or County Government after expiry of the leasehold tenure the Commission shall offer to the immediate past holder of the leasehold interest pre-emptive rights to allocation of the land…

(2) The Commission may make rules for the better carrying out of the provisions of this Section, and without prejudice to the generality of the foregoing, the rules may provide for the following.

(a) prescribing the procedures for applying for extension of leases before their expiry;

(b) prescribing the factors to be considered by the Commission in determining whether to extend the tenure of the lease or re-allocate the land to the lessee;

(c) the stand premium and or the annual rent to be paid by the lessee in consideration of extension of the lease or re-allocation of the land;

(d) other covenants and conditions to be observed by the lessee.

Section 20; Licence for temporary purposes

(1) The Commission may grant a person a licence to use unalienated public land for a period not exceeding five years subject to planning principles as it may prescribe.

(2) …

(3) The fee payable under a licence under this Section, the period and the agreements and conditions of the licence, shall be prescribed by the Commission.”

Section 107(1); Compulsory Acquisition of Interests in Land: Preliminary notice

(1) Whenever the National or County Government is satisfied that it may be necessary to acquire some particular land under Section 110, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of public land to the Commission to acquire the land on its behalf.

Held

1. It was important to note the historical background, specifically of public land in Kenya, so as to appreciate the mischief sought to be addressed by Chapter 5 of the Constitution. Apprehensions of social, economic and political mischief associated with Kenyan land history, were a vital factor in the dynamics of land reform. That explained the concern to institute a public entity with a land-resource mandate, independent of the hand of Central Government. It also explained the desire to decentralise the land-management system, and to establish checks-and-balances in that regard. The National Land Commission (NLC) was hence created pursuant to the provisions of the Constitution of Kenya, 2010 to deal with public land. However, not all the functions relating to land were vested in the NLC; the Land Ministry still had a role to play.

2. The highlight of the Kenyan land-resource regime, under the Constitution and the statutory framework in place, was the governing principle of checks-and-balances, which regulated in particular, the relationship between the NLC and the Central Government through its relevant Ministry. Check-and-balances, which alongside the safeguards for fundamental rights, were the special feature of the Constitution of Kenya, 2010, were required to be maintained, and accorded effect, by all State organs, as they discharged their respective mandates.

3. The definition clauses of the Constitution left no doubt that Commissions were State organs. Although many bodies mentioned in the Constitution were categorised as State organs, a plain reading of article 1(3) showed that only three specific State organs were vested with the people’s sovereign power: the Executive, the Legislature and the Judiciary.

4. The wording of Chapter 15 of the Constitution did not signal the vesting of the sovereign power of the people in commissions and independent offices. That was not to say that commissions and independent offices were excluded from exercising public power. State organs, were part of Government, and one of their core mandates was to protect the sovereignty of the people. Commissions and independent offices were expected to protect the sovereign power of the people, from which the Executive, the Judiciary and the Legislature derived their authority: hence the depiction people watchdogs or constitutional watchdogs. They were to be distinguished from the three arms of Government through the functions they discharged.

5. Firstly, the commissions and independent offices had the duty of to protect the sovereignty of the people, ensure that all State organs adhered to and observed the democratic values and principles, and promote constitutionality; three of the key pillars of the Constitution. Secondly, the Constitution ordained that the commissions, and the holders of independent offices, were subject only to the Constitution and the law, and were independent, and not subject to the direction or control by any person or authority. That was the pivotal provision guaranteeing independent status to the commissions and independent offices.

6. The independence of Commissions was a pivotal feature in the newly- established commissions and independent offices. The key features of the independence of commissions were;

a. Functional independence: that entailed commissions exercising their autonomy through carrying out their functions, without receiving any instructions or orders from other State organs or bodies. That had also been referred to as administrative independence. Functional independence was in line with the general functions and powers of commissions, as provided under articles 252 and 253 of the Constitution.

b. Operational independence: That included functional independence, and was a safeguard or shield for independence, manifested through the procedure of the appointments of commissioners; composition of the commission; and procedures of the commission. Article 255(1)(g) provided an elaborate procedure for the amendment of the Constitution in matters dealing with the independence of the Judiciary, as well as commissions and independent offices to which Chapter 15 applied.

c. Financial independence: It meant that a commission had the autonomy to access funds which it reasonably required for the conduct of its functions. However, according to article 249(3) of the Constitution, Parliament was mandated to set for the commission the budget considered adequate for its functions.

d. Perception of independence: That meant the commissions had to be seen to be carrying out their functions free from external interferences. The perception of independence was crucial in showing proof of independence.

7. The independence of commissions and independent offices did not, perforce, entail a splendid isolation from other State organs. Article 249(1) expressly entrusted the National Land Commission with the duty to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles, and promote constitutionalism.

8. Commissions acting in isolation had no capacity to discharge their mandate. They had to consult with other State organs, and work with such State organs in co-operation and harmony. Commissions were required to promote the national values and principles entrenched in article 10 of the Constitution which were: patriotism; national unity; sharing and devolution of power; the rule of law; democracy and participation of the people; human dignity; equity; social justice; inclusiveness; equality; human rights; non-discrimination and protection of the marginalised; good governance; integrity; transparency and accountability; and sustainable development. The mandate borne by the Commissions, namely, democracy and participation of the people, formed an overlapping continuum with operational logistics devolving to all public agencies.

9. The system of checks and balances served the cause of accountability, and it was a two-way motion between different State organs, and among bodies, which exercised public power. The commissions and independent offices restrained the arms of Government and other State organs, and vice versa. The spirit and vision behind separation of powers was that there be checks and balances, and that no single person or institution should have a monopoly of all powers. If the NLC was created as a watchdog and an oversight body, it could not carry out the direct functions of the Ministry, even as it performed its oversight role.

10. The doctrine of separation of powers required that organs of Government should carry out their functions without encroaching on each other. It was thus recognised that there was scope for a Government organ to act in excess of its proper mandate, or to abuse its powers. The system of checks and balances were put in place to empower other organs of Government to apply their countervailing powers, to prevent, or limit the excessive use of powers.

11. While the doctrine of separation of powers, and the principle of checks and balances, had conventionally been associated with the Executive, the Legislature and the Judiciary, it was entirely proper to associate them with any State organ that exercised public power and thus ought to be checked and balanced, to avoid abuse of power. The effect was that, the independence of commissions did not exempt them from being overseen, and held accountable in their operations.

12. Article 249(1) of the Constitution signaled the checks that the commissions had on other arms of Government. Article 254 indicated the checks which the Executive and the Legislature had upon the Commissions which took the form of accountability and transparency mechanisms. Article 254(1) required commissions to file annual reports to the President and to Parliament; article 254(2) provided that the President and the National Assembly may require a commission to submit a report on a particular issue.

13. There was also a kind of vertical accountability, which the commission held towards the people in general. Article 254(3) required every commission or independent office to publish and publicise it reports. That was a check-and-balance mechanism, as well as an exercise of inclusivity, accountability, transparency, good governance and integrity as recognized under the national values and principles of governance (article 10(2) of the Constitution). It was also a mode of promoting constitutionalism, as required by article 249(1).

14. The NLC was also subject to financial checks, by a counterpart independent office, the Auditor-General under article 229(4) (d), which required the submission of accounts within six months of the end of the financial year. The audit reports generated by the Auditor-General would be presented to Parliament, for scrutiny and appropriate action.

15. It was essential to strike a balance between the independence of commissions, which was integral to their functioning, and the obligations of accountability and transparency. There was to be a power- balance between the NLC and the National and County Governments, holding each institution within its prescribed powers. Failing such a course, the very rationale of independent offices and commissions would have been negated.

16. While endowing the Commissions and independent offices with competence, the Constitution (article 67) itemised the functions of the National Land Commission, which include: “to manage…, to recommend…, to advise…, to monitor and to assess”. That mandate was to be exercised in the best interest of the people, whose sovereignty was to be protected.

17. The NLC was required to obtain ‘consent’ from the National or County Governments in the discharge of its functions as stipulated in section 5 (2) (a) of the NLC Act. That provision was to be read in conjunction with article 259(11) which required that any function or power that was to be exercised on the advice or recommendation or with the approval or consent of or in consultation with another ought only to be exercised after such fact.

18. The NLC was not to work in isolation, but rather in consultation and co-operation with the Ministry. That was an interdependent relationship, with one body formulating the policy, whereas the other implemented the policy; it was not prudent for any State organ to be the one formulating, implementing, and at the same time overseeing the implementation of the policy. That apportionment of responsibility did not invalidate the doctrine of separation of powers, but rather, redefined and consolidated the essential principle that separation was not the goal in itself, but was a vital means to assert checks upon each organ of Government, so as to achieve constitutionally-restrained governance.

19. Parliament enacted the NLC Act, the Land Act and the Land Registration Act, to give effect to the provisions of the Constitution. The NLC Act in specific was enacted to fulfil the object of article 67(3) of the Constitution and whose purpose was to provide for the management and administration of land in accordance with the principles of land policy set out in article 60 of the Constitution and the National land policy. By article 67, it fell to the NLC to recommend a national land policy to the National Government. Those provisions, by their essential design fell within a scheme of co-operation and interdependence between the NLC and the Ministry.

20. The Land Act defined alienation as the sale or other disposal of rights to land, while the NLC Act conferred the power of alienation of public land upon the NLC. The power of alienation of public land was one of the ways through which the NLC administered such land. The requirement of consent to such a transaction, from the National or County Government, was certainly a check-and-balance relationship between the two State organs. The NLC’s function of monitoring the registration of all rights and interests in land was another mechanism of checking the powers of the body responsible for registration.

21. Article 62(2) specified the categories of public land that vest in county governments and the NLC Act conferred power upon the NLC to administer and manage public land that was vested in County Government. However, “community land”, as defined in article 63(1), had its own place and system of governance; and the land referred to in section 5 (2)(e) of the NLC Act, was “community land”, and not “public land”. Those distinct definitions of “community land” and “public land”, as well as their applicable governance systems as provided in the Constitution, did not require any special professional input, as a basis for interpreting articles 62(2) and (3) and 67 (2) (a). The Commission had no special claim to the remit of administering or managing community land. From the historical background, recognition of the special character of community land was essential, with attendant cautions in its management. It was hence necessary for Parliament to make amendments to section 5(2) (e) of the NLC Act, to bring it into line with the constitutional provisions.

22. Section 18 of the NLC Act provided for the establishment and functions of County Land Management Boards, the functions assigned to the Board, with regard to the processing of land allocation; change and extension of user; conducting subdivision of land; and renewal of leases gave indications as to the essence of the phrase, “administering and managing public land”. The functions undertaken by the Board were ordinarily, the preparatory steps towards acquisition of ownership to land, which culminated in registration and issuance of title by the National Government. It could thus be inferred, that the purpose of the Board was to effect the devolution of land-administration to the counties.

23. The Land Act, 2012 enjoined the NLC and the Cabinet Secretary responsible for land, to undertake certain functions, for the effective management of land. Sections 6 and 8 of the Act prescribed the functions of the Cabinet Secretary and the Commission, as regards the management and administration of land. Those provisions gave an impression as to the roles of the Ministry, in section 6, and the NLC, in section 8, in the management of land. Sections 6 and 8 of the Land Act, 2012 indicated that neither the Ministry nor the NLC was in a position to perform its tasks in isolation. The Ministry was required to develop and facilitate land policies on the basis of advice and recommendations from the NLC; while the land database to be prepared and kept by the NLC had to be geo-referenced and authenticated by the statutory body in charge of survey, which was the Land Surveyors’ Board, established under the Survey Act. The officers serving on that Board were appointed by the Public Service Commission, and, by section 6(e) of the Act, were to be regulated by the Cabinet Secretary, as an aspect of quality control. That was a typical instance in which it fell to the Executive to exercise check-and-balance upon a different State organ.

24. The responsibility of the NLC to issue licences, leases and grants in respect of public land, was subject to the conditions set out in law. Section 28 of the Land Act provided for the collection of rent charged on the use of land, and required the NLC to account for the payments received under any lease or licence, to the respective Governments. Those provisions were a clear indication of the constitutional design of decentralising the powers of public governance, within a context of checks-and-balances.

25. The provisions in the Land Act with respect to conversion of land from public to private (section 9); the development of guidelines on the management of public land by public agencies and bodies that were in actual occupation (section 10); allocation of public land (section 12); renewal and extension of leases (section 13); reservation of certain public land for a public-interest purpose (section 15); issuance of licences for the use of unalienated public land (section 20); Compulsory acquisition of public land (section 107-113); Implementation of settlement programmes (section 134); entrusted the NLC with the responsibility of protecting and overseeing the public’s rights and interest, under the Constitution. However, the NLC’s mandate in that regard was not held single-handed, and was not unqualified: provision was made for approval from the National Assembly; and the consent of the National Government, or relevant County Government. That provided a check-and-balance, to ensure that the NLC operates within the prescribed limits.

26. The Land Registration Act conferred various powers upon the Registrar of Land, the Cabinet Secretary, the NLC, and other named officers. The NLC was empowered to establish registration units and to determine the span of each registration unit; but it did so only in consultation with the National or County Government. The NLC, it followed, had to make consultations with the National Government or the County Government, as the case may be, as to the areas to be covered in each of the registration units to be gazetted.

27. The Director of Surveys, or his or her delegate, was the officer vested with the powers conferred by section 6(4) of the Land Registration Act. The officers under the Director of Surveys were appointed by the Public Service Commission. The effect of the provisions was that the NLC determined which area would fall within a given registration unit, as well as the registration sections and blocks that would be established within that unit. However, the officer in charge of survey could vary or alter the boundaries of those sections or blocks, thereafter informing the Registrar of the changes made. Such an officer had not been authorized to vary the boundaries of the registration unit itself. It confirmed that the relationship between the NLC and the National and County Government was one of mutual co-operation, co-ordination, and consultation. The functions of those constitutional organs were complementary, and no organ could purport to carry on its operations in isolation. That element was a recurring theme, throughout the Act.

28. Section 7 of the Land Registration Act required that a land registry be maintained in every registration unit, in which a land register was to be kept. The NLC’s role in that respect was to determine the form of the land register. However, the obligation to establish the land registry rested with the Public Service Commission and the Cabinet Secretary as stated in section 7 (3). The NLC’s officers (the Chief Land Registrar and other public officers to discharge functions under the Act) who ensured the taking and implementation of its decisions, were appointees of the Public Service Commission.

29. Section 38 of the Land Registration Act related to land that fell within the area of a County authority; section 39 related to land rents owing to the National or County Governments; while section 55 required that a land-rent clearance certificate, and consent to the lease, showing the full payment of rent for the land to the Commission, be produced before the Registrar. The requirement of consent operated as a check on the exercise of power by the Registrar, allowing the registration of an instrument that effects a transaction on public land.

30. The heart of the Reference before the Court was the issue of ‘land administration and management’, which arose from the wording of articles 62(2) and 67 (2)(a) of the Constitution. Those Articles had expressly stipulated the mandate of the NLC. The interpretation of the terms ‘manage’ and ‘administer’, as applied by the two articles of the Constitution, was inescapable and especially so because, the same terms were replicated in the NLC Act, the Land Act and the Land Registration Act, which were the primary statutes dealing with land management and administration in Kenya.

31. The Constitution was to be interpreted in a holistic manner, which entailed reading it alongside other provisions, and considering the historical perspective, purpose, and intent of the provisions in question. The Court took into account the historical background of land issues in Kenya that necessitated the establishment of the NLC and the mischief that the NLC was intended to cure in the allocation of public land.

32. The term ‘land administration’ was only defined in the Land Registration Act as the process of determining, recording, updating and disseminating information about the ownership, value and use of land by the relevant provisions under Part II of the Land Registration Act, the process of registration was undertaken by various agencies, starting with the NLC, establishing the registration units; and culminating with the Registrar, registering the title documents. Of interest was section 6(6), which stipulated that, “the land registration units shall be established at County level and at such other levels to ensure reasonable access to land administration and registration services”. The foregoing sub-section separated the role of “land administration” from “registration”, notwithstanding that the term “land administration” had a wider meaning under the Act, which suggested the inclusion of functions of registration of title. As implementation was of the essence, a definition on its own did not confer any definite category of power; only by a substantive provision in the relevant Act, could a specific head of power be vested upon any agency. The position was that, under the Land Registration Act, the NLC had no power to register title documents.

33. Neither of the other statutes, other than the Land Registration Act defined the term “management”, or “administration”. Consequently, the meaning of the two terms could only be inferred from the context within which they had been used. The application of the term ‘management’ and ‘administration’, in all the three statutes (Land Act, Land Registration Act, and the NLC Act) was consistent with the functions of the Commission as expressly donated by the Constitution. It was clear that the function of “registration of title” was not with reference specifically to “public land”. Registration was conceived to entail all categories of land; fragmenting title issuance—such a crucial indication of the fundamental right of property—could not possibly have been in contemplation during the legislative process. For such would not only negate constitutional principle, but would probably breed such anarchy and abuse, as would certainly harm the public interest. Land title, the symbol of a vital asset, required the effectual and conclusive mechanisms of the State’s most central agency. A proper interpretation of the provisions of the Constitution and the statute law, in that context, should be aimed at achieving coherence, clarity, and certainty.

34. The relationship intended between the NLC on the one hand, and the National and County Government on the other, did not lend itself to the agency template; rather, it was a straightforward constitutional relationship, in the public-law mode. Besides, the NLC was an independent commission in the terms of article 248(1) (b), as read with article 249(2) of the Constitution, and with the provisions of the relevant statutes. The NLC was not subject to direction or control by any person or authority; and it could not, thus, be considered an agent of the National or County Government, in the legal sense.

35. The NLC’s mandate, which was required to function in a collaborative and consultative constitutional and legal setting, belonged squarely to the mechanism of checks-and-balances, rather than that of an isolated fourth arm of government, entrusted with tasks unrelated to those falling under the dockets of other State organs. Indeed, the neat paradigm of a fourth arm of government appeared not to be in the contemplation of the Constitution of Kenya, 2010 which specified [article 1(3)] that the people’s sovereign power devolved to just three vital State organs: the Executive; the Legislature; and the Judiciary and independent tribunals.

36. The Constitution’s mandate fell to the three State organs, in an operational context of check-and-balances: and the various Commissions acted as oversight and watchdog mechanisms. Hence, each of the functions of the NLC and the Ministry stood to be checked by the one or the other, in order to avoid abuse of power in matters relating to land. The unchanging theme throughout the Constitution was that the relationship between the two bodies was inter-dependent, and based upon co-operation; it was not an agency relationship. As the Ministry conducted its functions, the NLC acted as a watchdog, to ensure compliance with the Constitution, and with legislation. Likewise, the NLC as an oversight body, maintained its functional, financial and operational independence, while still being overseen and checked by the public, by other independent offices, and by the three arms of government.

37. The conditioning medium within which the functions had to be conducted, was constituted by the national values and principles outlined in article 10 of the Constitution: in particular, the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It was to be noted that, the very essence of checks-and-balances touched on the principles of public participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions was to be in line with values of integrity, transparency, good governance and accountability. In view of the troubled history of land in Kenya, the NLC and the Ministry had to involve the public when carrying out their functions. It was only through public participation was it possible to realize the principles of land policy, as set out in article 60(1).

38. The delineation of the respective functions of the NLC and of the Ministry of Land was already answered with sufficient clarity: the allocation of discrete functions to the one or the other was not possible, or indeed necessary. The vital subject of land-asset governance ran in functional chains, that incorporate different State agencies; and each of them was required to work in co-operation with the others, within the framework of a scheme of checks-and-balances—the ultimate goal being to deliver certain essentials to the people of Kenya.

39. The NLC had a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law conferred upon it the power to register titles in land. The task of registering land title lay with the National Government, and the Ministry had the authority to issue land title on behalf of the said Government.

40. The Ministry of Land was the special entity with authority to register and issue land title. Land title, by its singularity as the mark of entitlement to landed property, was the ultimate expression of a vital property right, quite apart from being the very reference-point in numerous financial and business transactions. On that account, the sole national repository to issue, and to guarantee the validity and integrity of title, was the central State machinery, as a player on the international plane, acting through the Executive organ.

41. The various statutes relating to land were not in all cases consistent among themselves; and in some cases they had been framed with imprecision, and without a clear reflection of the relevant principles of the Constitution. The recommendation was for the complete set of land-related statutes, be placed before the Honorable the Attorney-General, and before the Kenya Law Reform Commission, for a detailed professional review, in the context of the Advisory Opinion.

42. The mandate of the NLC was set out in the Constitution [article 67(2) (d), (e) and (f)]. From those provisions, NLC bore a brains-trust mandate in relation to land grievances, with functions that were in nature consultative, advisory, and safeguard-oriented. As regards such functions, the NLC, on the basis of clearly-formulated statutes, should be able to design a clearly-structured agenda for regular operations and inter alia, should seek to devise a well-focused safeguard-mandate in relation to land issues. Co-operation and consultation with other State organs would be important, in identifying, and defining urgent tasks on the NLC’s agenda.

43. An Advisory Opinion, was a ‘decision’ of the Court, within the terms of article 163(7), and was thus binding on those who bring the issue before the Court, and upon lower Courts, in the same way as other decisions. The purpose of an Advisory Opinion was not only to settle the specific issues raised, but also to present a pragmatic course for problematic aspects of the operation of State organs in the instant case, the NLC and the Ministry.

44. The other constitutional mandates reposed in the NLC were:

a. recommending a national land policy to the National Government; advising the National Government on a comprehensive programme for the registration of title to land, throughout Kenya;

b. conducting research related to land, and to the use of national resources and making recommendations to the appropriate authorities;

c. initiating investigations (on its own initiative or upon a complaint) into present or historical land injustices, and recommending appropriate redress;

d. encouraging the application of traditional dispute-resolution mechanisms in land conflicts; assessing tax on land and premiums on immovable property in any area designated by law; and

e. monitoring, and asserting oversight responsibilities on land-use planning, throughout the country.

The NLC should, upon priority, and with the essential consultations and co-ordinations, formulate a structured scheme of operations which provided not only for the broadly-defined mandate of “managing public land” [The Constitution, article 67(2)], but also for the specific national-interest mandate, as well as the charges specified in the Advisory Opinion.

Per Mutunga, CJ

45. Public participation was a major pillar, and bedrock of democracy and good governance. It was the basis for changing the content of the State, envisioned by the Constitution, so that the citizens had a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance would make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority was derived from the people of Kenya, was the indestructible fidelity to the value and principle of public participation. The realization of the pillars of good governance would become weak and subject to the manipulation by the forces of status quo if the participation of the people was excluded.

46. The robust recognition of the prominence of the participation of the people in the making of the Constitution was reinforced in article 1, which declared the sovereignty of the people. That direct exercise of sovereign power by the people was crucial in the administration and management of land in Kenya. Land was a fundamental resource for the material and cultural livelihoods of the people. The State, for example, through civic education, could ensure that participation of the people takes place on matters concerning land. That was because, ultimately, any decisions made concerning land would affect them and, although the National Land Commission (NLC) or the Ministry of Lands could make information on land available, the public ought to be educated on how to access the information and participate in consultation processes on land matters affecting them. Public participation could also take an indirect form, where the national and county Legislatures were mandated to enact legislation on land laws. That those Legislatures were to involve the people they were elected to represent, in law-making processes, was a matter of accountability, and of enrichment of the voices of the people.

47. Public participation was the community based process, where people organise themselves and their goals at the grassroots level and work together through governmental and non-governmental community organisations to influence decision making processes in policy, legislation, service delivery, oversight and development matters. It was a two way interactive process where the duty bearer communicates information in a transparent and timely manner, engages the public in decision making and is responsive and accountable to their needs. The definition could be applied to the management and administration of land in Kenya. In order to achieve efficient land administration and management, the national and county governments; the arms of government; and the commissions and independent offices, must conduct meaningful consultation, communication, and engagement with the people.

48. The NLC, as well as the national and county governments, were required to promote public participation, as they conduct their functions. Article 254 of the Constitution required the NLC to promote the participation of the people, as it conducts its mandate. By that article, the NLC was held accountable to the people, and upheld the participation of the people in two ways. Firstly, the people indirectly participate in holding the NLC accountable, through their democratically elected officials (the President and Members of Parliament). The NLC was required to submit annual reports to the President and Parliament. Secondly, the people had the opportunity to participate directly, and to exercise their right of access to information, as the NLC was required to publish and publicize its reports. The public was thus accorded an opportunity to examine the reports, and to determine whether the Commission was carrying out its constitutional and legislative mandates, or whether the NLC had made any decisions affecting their land.

49. The principle of the participation of the people did not stand in isolation; it was to be realised in conjunction with other constitutional rights, especially the right of access to information (article 35); equality (article 27); and the principle of democracy (article 10(2)(a)). The right to equality related to matters concerning land, where State agencies were encouraged also to engage with communities, pastoralists, peasants and any other members of the public. Thus, public bodies should engage with specific stakeholders, while also considering the views of other members of the public. Democracy was another national principle that was enhanced by the participation of the people.

50. Kenya had ratified the United Nations International Covenant on Civil and Political Rights, 1966 (ICCPR) as well as the African Charter on Human and Peoples’ Rights, 1981 (ACHPR), and those international and regional instruments also recognised the participation of the people in public affairs. By virtue of article 2(6) of the Constitution, those treaties formed part of Kenyan law.

51. The participation of the people was a constitutional safeguard, and a mechanism of accountability against State organs, the national and county governments, as well as commissions and independent offices. It was a device for promoting democracy, transparency, openness, integrity and effective service delivery. During the constitution-making process, the Kenyan people had raised their concerns about the hazard of exclusion from the State’s decision-making processes. The Constitution had specified those situations in which the public was assured of participation in decision-making processes. It was clear that the principle of public participation did not stop with the constitution-making process; it remained as crucial in the implementation phase as it was in the constitution-making process.

52. Public participation was not an abstract notion and, on matters concerning land, State organs, the Ministry, and the NLC must breathe life into that constitutional principle, and involve the public in land management and administration; legislative plans and processes; and policy-making processes. That was clear from the terms of article 10 of the Constitution, which required those bodies to:(a) apply or interpret the Constitution; (b) enact, apply or interpret any law; or (c) make or implement public policy decisions bearing in mind the participation of the people, and the goals of democracy, and transparency.

53. An array of rich ingredients of the participation of the people, emerged from various sources: decisions by superior Courts in Kenya; comparative jurisprudence from another jurisdictions; works by scholars; draft principles and guidelines bearing upon public participation by various State organs and governments; and relevant constitutional and legal provisions. The common denominator in those various ingredients of participation by the people was the supremacy and sovereignty of the Kenyan people. The ingredients of public participation called for significant mental shifts in the mode of consultation, communication, learning, and accommodation of the views of ordinary Kenyans. It was a must to provide the objective information to facilitate such participation in all societal affairs.

Per Ndung’u SCJ

54. The watchdog role was so basic to the nature of constitutional commissions, that it could not be understated or undermined through legislative and policy initiatives or practice. Acts of Parliament, and subsidiary legislation ought to be aligned to, and in harmony with the constitutional provisions; and interpretation of such laws should pay fidelity to the form and the vision of the Constitution. Similarly, the institutions so crafted under the Constitution, should also not run contrary to the general remit of the functions of Chapter 15 of the Constitution on institutions. As oversight institutions, any mandate that they were given in the Constitution of Kenya should be construed as narrowly as possible so as to avoid role-conflicts; and should not be extended unreasonably by statute.

55. Article 67(2) (b) to (h) as to the functions of the National Land Commission, required that the NLC; recommend, advise, research, investigate, encourage assess tax, and monitor and have oversight responsibility. The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight’ were all actions than provided a facilitative role rather than a primary one. The context in which the said words were used, presumes that there was another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment should be sent to, received by, and in relation to which the proposals should be implemented. There was therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight was to be conducted. That meant a body with oversight function, and a body that implemented the recommendations of the former were different, and their roles did not overlap.

56. There had been a misconception of roles, which created a conflict between the constitutional provisions relating to the NLC, and statutory provisions that were to be found in the provisions of the Land Act, and similar legislation relating to Land. It was incumbent upon the Legislature, and the concerned commission and its agents, to tread carefully to avoid the creation of such conflicts. Article 67(g) of the Constitution required the Commission to assess tax, and not levy or collect the same. Article 200 of the Constitution, in the Public Finance Chapter mandated the National Government to impose inter alia income tax, value added tax, excise tax. It further required parliament to authorise the national government to impose any other tax or duty. Sub-article (3) mandated the county to impose property rates. If the NLC could collect taxes, it could only be in respect of public land, as private and community land fell outside its mandate. However, it was unlikely that different systems of collection of revenue or tax for different categories of land was envisaged within the framework of the Constitution.

Complete set of land-related statutes to be placed before the Honorable Attorney-General and before the Kenya Law Reform Commission for a detailed professional review in the context of the Advisory Opinion

Supreme Court Rules on Validity of Documents Prepared by an Advocate who does not hold a valid Practising Certificate

National Bank of Kenya Ltd vs Anaj Warehousing Ltd

Petition No. 36 of 2014

Supreme Court of Kenya

Mutunga, CJ & P; Tunoi, Ibrahim, Ojwang, Wanjala, SCJJ

December 2, 2015

Reported by Kipkemoi Sang

Brief Facts

The respondent filed a suit seeking inter alia a declaration to set aside a charge as being void and unenforceable, on the ground that the charge was drafted, prepared, attested and registered by an unqualified person contrary to section 34 (1) of the Advocates Act.

The High Court in its ruling applied the doctrine of precedent, thus stating: “I am bound by the doctrine of precedent to follow the ratio decidendi in the Wilson Ndolo Ayah case, and I do hereby find that the charge was null, void and invalid.” Consequently, the High Court entered Judgment in favour of the plaintiff (now the respondent), as against the 1^st defendant (now the appellant), by declaring the charge a nullity, and by granting an order directing the Registrar of Titles to discharge the charge in all entries in title documents for the suit premises, registered in the Coast Registry of Titles.  Being aggrieved by the High Court’s decision, the Appellant moved to the Court of Appeal. However the Court of Appeal dismissed the appeal, on the ground that it lacked merit

Aggrieved by the decision of the Appellate Court, the Appellants filed an application for leave/certification in the Court of Appeal, to appeal further to the Supreme Court, on the ground that the matter was one of general public importance, as it touched on the effect of legal documents prepared by unqualified persons contrary to section 34 of the Advocates Act.  Further, the appellant sought an order of stay of execution pending the hearing and determination of the intended appeal.

Issues

i. Whether a document or instrument of conveyance was null and void for all purposes, on ground that it was prepared, attested and executed by an advocate who did not have a current practicing certificate, within the meaning of Section 34 (1) (a) of the Advocates Act.

ii. Whether the inconsistencies found in the provisions of the Advocates Act required law reform.

iii. Whether the ratio decidendi in Wilson Ndolo Ayah case which invalidated legal documents prepared by a non-qualified person still stood and was a pertinent criterion for resolving the instant matter.

iv. Whether the case involved matters of general public importance

Advocate -validity of conveyancing documents prepared by and advocate who has no valid practicing certificate-whether a document or instrument of conveyance was null and void for all purposes, on ground that it was prepared, attested and executed by an advocate who did not have a current practising certificate, within the meaning of the Advocates Act-Advocates Act, Section 34 (1) (a)

Statutes-Advocates Act-inconsistency of provisions in the Advocates Act- whether the inconsistencies found in the provisions of the Advocates Act required law reform-Advocates Act, sections, 2, 9, 12 and 13

Constitutional Law - matters of general public importance- whether a case involving preparation of legal documents by an advocate who did not hold a valid practising certificate falls under the purview of matters of general public importance-Constitution of Kenya, 2010, article 163 (4) (b)

Relevant Provisions of the Law

Section 2 Interpretation

“Advocate” means any person whose name is duly entered upon the Roll of Advocates or upon the Roll of Advocates having the rank of Senior Counsel and, for the purposes of Part IX, includes any person mentioned in section 10;

“Senior Counsel” means an advocate upon whom the President has conferred the rank of Senior Counsel;

Section 9-Qualifications for practising as an advocate

Subject to this Act, no person shall be qualified to act as an advocate unless—

(a) he has been admitted as an advocate; and

(b) his name is for the time being on the Roll; and

(c) he has in force a practising certificate;

(d) deleted by Act No. 9 of 2000, s. 57,

and for the purpose of this Act a practising certificate shall be deemed not to be in force at any time while he is suspended by virtue of section 27 or by an order under section 60(4).

Section 10- Certain officers entitled to act as advocates

Each of the following persons shall, if he holds one of the qualifications specified in paragraphs (a), (b) and (c) of section 13(1) at the time of his appointment to his office, be entitled in connection with the duties of his office to act as an advocate, and shall not to that extent be deemed to be an unqualified person, that is to say—

(a) an officer in the office of the Attorney-General or the office of the Director of Public Prosecutions;

(b) the Principal Registrar of Titles and any Registrar of Titles; or

(c) any person holding office in a local authority established under the Local Government Act, (Cap. 265)

(d) such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify:

Provided that the officers referred to in this section shall not be entitled to charge fees for so acting.

Section 12- Qualification for admission as advocate

Subject to this Act, no person shall be admitted as an advocate unless—

(a) he is a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania; and

(b) he is duly qualified in accordance with section 13.

Section 13- Professional and academic qualifications

(1) A person shall be duly qualified if—

(a) having passed the relevant examinations of any recognized university in Kenya he holds, or has become eligible for the conferment of, a degree in law of that university; or

(b) having passed the relevant examinations of such university, university college or other institution as the Council of Legal Education may from time to time approve, he holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve; and thereafter both—

(i) he has attended as a pupil and received from an advocate of such class as may be prescribed, instruction in the proper business, practice and employment of an advocate, and has attended such course or tuition as may be prescribed for a period which in the aggregate including such instruction, does not exceed eighteen months; and

(ii) he has passed such examinations as the Council of Legal Education may prescribe; or

(c) he possesses any other qualifications which are acceptable to and recognized by the Council of Legal Education;

(d) he is an Advocate for the time being of the High Court of Uganda, the High Court of Rwanda, the High Court of Burundi or the High Court of Tanzania;

(e) he is for the time being admitted as an advocate of the superior court of a country within the Commonwealth and—

(i) has practised as such in that country for a period of not less than five years; and

(ii) is a member in good standing of the relevant professional body in that country:

Provided that the Council may, in addition, require that a person to whom this paragraph applies undergo such training, for a period not exceeding three months, as the Council may prescribe for the purpose of adapting to the practice of law in Kenya.

(2) The Council of Legal Education may exempt any person from any or all of the requirements prescribed for the purposes of paragraph (i) or paragraph (ii) of subsection (1) upon such conditions, if any, as the Council may impose.

Section 34- Unqualified person not to prepare certain documents or instruments

(1) No unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument—

(a) relating to the conveyancing of property; or

(b) for, or in relation to, the formation of any limited liability company, whether private or public; or

(c) for, or in relation to, an agreement of partnership or the dissolution thereof; or

(d) for the purpose of filing or opposing a grant of probate or letters of administration; or

(e) for which a fee is prescribed by any order made by the Chief Justice under section 44; or

(f) relating to any other legal proceedings; nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking of any such instruction or for the drawing or preparation of any such document or instrument:

Provided that this subsection shall not apply to—

(i) any public officer drawing or preparing documents or instruments in the course of his duty; or

(ii) any person employed by an advocate and acting within the scope of that employment; or

(iii) any person employed merely to engross any document or instrument.

(2) Any money received by an unqualified person in contravention of this section may be recovered by the person by whom the same was paid as a civil debt recoverable summarily.

(3) Any person who contravenes subsection (1) shall be guilty of an offence.

(4) This section shall not apply to—

(a) a will or other testamentary instrument; or

(b) a transfer of stock or shares containing no trust or limitation thereof.”

Held

1. The decision by the Appellate Court in Wilson Ndolo Ayah case was based on certain fundamental assumptions that; the phrase “an unqualified person” was synonymous with “an advocate without a current practising certificate”. On the face of section 34(1) of the Advocates Act, the assumption was not without merit, especially taking into account the provisions of section 2 of that Act, which defined “an unqualified person” as “a person not qualified under section 9 of Act as an advocate”. Section 9 of the Advocates Act in turn provided that; no person should be qualified to act as an advocate unless

a. he had been admitted as an advocate;

b. his name was for the time being on the Roll; and

c. he had in force a practicing certificate.

2. To convey their full import, the provisions ought to be read together with others in the same statute. Section 2 of the Act also defined an “advocate”, as “any person whose name was duly entered upon the Roll of Advocates, or upon the Roll of Advocates having the rank of “Senior Counsel” and included any person mentioned in section 10. Section 10 made no mention of a practising certificate. Sections 12 and 13 of the Advocates Act on the other hand, were devoted to the qualifications for being admitted as an advocate and were both academic and professional.
3. While section 34 (1) of the Advocates Act forbade an unqualified person from indirectly or directly taking instructions, or drawing any document relating to the conveyancing of property, it exempted from that prohibition, any person who was employed by an advocate and who was acting within the scope of that employment. Such a state of uncertainty flowed from either, the intelligence of draftsman-ship; or equivocation in the expression of parliamentary intent.
4. The Appellate Court’s second assumption in Wilson Ndolo Ayah case was that section 34(1) of the Advocates Act had the effect of rendering all instruments of conveyance prepared by advocates without current practising certificates, null and void for all purposes. It was at the moment clear that such an assumption was not based on any express or implied meaning of section 34, or other provisions of the Advocates Act. In the reasoning of the Appellate Court, the ground for invalidating such documents rested in public policy: citizens should obey the broad intent of the law of the land; and Courts should enforce the law of the land, and deter acts of illegality. Within context, and by the terms of the constitutional law, the Courts were under obligation to resolve live disputes on questions that were governed by quite specific propositions of law.
5. The main objective of section 34, prohibited unqualified persons from preparing certain documents. It was directed at “unqualified persons”. It prescribed clear sanctions against those who transgress the prohibition. The sanctions prescribed were both civil and criminal in nature. But the law was silent as to the effect of documents prepared by advocates not holding current practising certificates. The illegality was the assumption of the task of preparing the conveyancing documents, by the advocate, and not the seeking and receiving of services from that advocate. Likewise, a financial institution that called upon any advocate from among its established panel to execute a conveyance, committed no offence if it turned out that the advocate did not possess a current practising certificate at the time he or she prepared the conveyance documents. The spectra of illegality lie squarely upon the advocate, and ought not to be apportioned to the client.
6. Section 34 of the Advocates Act, did not invalidate all documents prepared by an advocate who lacked a current practising certificate. Equally, section 19 of the Stamp Duty Act did not, provide a basis for invalidating the instruments in question, it only sought to render inadmissible for purposes of evidence, all documents which were unstamped. The question before the Court was not the admissibility in evidence, of unstamped documents, but rather the validity of instruments (which indeed were stamped) prepared by an advocate who lacked a current practising certificate.
7. Even as stare decisis assured orderly and systematic approaches to dispute resolution, the common law retained its inherent flexibility, which empowered the Court, as the custodian of justice under the Constitution, to proceed on a case-by-case basis, invoking and applying equitable principles in relation to every dispute coming up. Precedent (such as that in Wilson Ndolo Ayah case), was to be perceived, in general, as the “announced rule”; but in the quest for justice in the context of a particular case such as the instant case, there was a basis for departing therefrom.
8. Because the Courts normally use announced rules as their starting points, as a practical matter the deciding court was likely to have a limited number of salient choices in dealing with a precedent. It could accept and apply the announced rule; it could determine that, on close inspection the announced rule was not relevant; or it could use a minimalist or result-centred technique to reformulate or radically reconstruct the announced rule, and then apply or distinguish the rule it so established.
9. In Wilson Ndolo Ayah case, monies belonging to the appellant were held by the Respondent, and it was held to be irrecoverable, just on the policy ground that the Courts ought to be seen to deter illegality. The illegality stemmed from the fact that the conveyance was prepared by an advocate who at the material time, did not hold a current practising certificate. However, such illegality, parliament did not intend that section 34 of the Advocates Act perpetrate an injustice. The injustice, indeed, multiplied, and subsumed the plane of public interest, in view of the fact that the monies in question were drawn from a public financial institution. Therefore, the case involved matters of general public importance, within the meaning of Article 163 (4) (b) of the Constitution since the Court of Appeal had certified it as such.
10. In the instant case, the monies lent were in conformity with the provisions of the law, save that the relevant conveyancing instruments were drawn by an advocate who at the time did not hold a practising certificate, if they were not recoverable, it would be to sanction unjust enrichment for unscrupulous borrowers, while depriving innocent lenders creating a wide scope for fraudulent borrowing. Such a position in law did not represent an “announced rule” – precedent that should guide the disposal of the instant matter. Just as the law frowns upon unscrupulous lenders, especially those whose actions would fetter the borrower’s equity of redemption, so also should it frown upon unscrupulous borrowers, whose actions would extinguish the lender’s right to realize his or her security. There was to be, in law, a substantial parity of rights-claims, as between the lender and the borrower
11. The Appellate Court made the assumption that, since the Law Society of Kenya did publish annually a list of names of duly-licensed advocates, the public would know if a particular advocate had not taken out a practising certificate. The assumption represented not by far reality for the typical client seeking a particular service, and founds a well-known advocate conducting his work from decent chambers. Judicial notice ought to be taken that even the judges in court, could hardly keep up with the records of advocates who had duly renewed their practice certificates. It was the Law Society of Kenya which was best placed to know which advocate had or had not taken out a practising certificate
12. One of the bases of the Appellate Court’s decision was founded upon a hypothesis which should not be the criterion for resolving the question as to the rights of the parties: that since the Advocates Act provided for the recovery of fees by a client whose advocate had not taken out a practising certificate, there would be no harm if the charge documents were annulled. For even if the appellant were to recover any fees paid, it stood to be damnified by the non-repayment of the loan itself.
13. The Court’s obligation coincided with the constitutional guarantee of access to justice as was in article 48 of the Constitution, and in that regard, required the fulfillment of the contractual intention of the parties. It was clear that the parties had intended to enter into a binding agreement, pursuant to which money was lent and borrowed, on the security of a charge instrument. It could not be right in law, to defeat that clear intention, merely on the technical consideration that the advocate who drew the formal document lacked a current practising certificate. The guiding principle was to be found in article 159(2)(d) of the Constitution which affirmed that justice should be administered without undue regard to procedural technicalities.
14. To invalidate an otherwise binding contractual obligation on the basis of a precedent, or rule of common law even if such course of action would subvert fundamental rights and freedoms of individuals would run contrary to the values of the Constitution as enshrined in article 40 as regards the protection against arbitrary legislative deprivation of a person’s property of whatever description, article 20 (3) (a) and (b) as regards interpretation that favoured the development and enforcement of fundamental rights and freedoms and article 10 on values and principles of governance. The proper direction in law, that, no instrument or document of conveyance becomes invalid under section 34(1)(a) of the Advocates Act, only by dint of it having been prepared by an advocate who at the time was not holding a current practising certificate. The contrary effect was that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names had been struck off the roll of advocates, should be void for all purposes.
15. While securing the rights of the client whose agreement had been formalised by an advocate not holding a current practising certificate, such advocate’s obligations under the law remained unaffected. Such advocate remained liable in any applicable criminal or civil proceedings, as well as any disciplinary proceedings to which he or she could be subject.
16. The instant case involved matters of general public importance, within the meaning of article 163 (4) (b) of the Constitution since the Court of Appeal had certified it as such. There were inconsistencies in the Advocates Act and as such, the Judgment of the Court commended was attention-ed to parliament, the Law Society and the Attorney General for appropriate legislative action to address the inconsistencies in the Act

Petition allowed.

The Judgment of the Court of Appeal dated 27^th February, 2014 set aside.

Costs of the instant appeal to be borne by the respondent

Cases

East Africa

1. Belgo Holdings Ltd v Esmail [2005] 2 EA – (Explained)

2. Geoffrey Oraro Obura v Koome [2001] KLR 109 – (Explained)

 3. Kajwang’ v Law Society of Kenya [2002] 1 KLR 846 – (Mentioned)

4. Kenya Power and lighting Co Limited v Mahinda & another [2005] 2 EA – (Explained)

5. Macharia & another v Kenya Commercial Bank & another [2012] 3 KLR 199 - (Mentioned)

6. Malcolm Bell v Daniel Moi & another SC Application No 1 of 2013 – (Mentioned)

7. National Bank of Kenya Ltd v Wilson Ndolo Ayah Civil Appeal No 119 of 2002 – (Explained)

8. Obura v Koome [2001] KLR 109 – (Mentioned)

9. Samaki v Samaki Civil Application No Nai 39 of 1996 – (Mentioned)

10. Shah v Akiba Bank Limited (2005) 2 KLR 424 – (Mentioned)

11. Huq v Islamic University in Uganda 2 EA (1995-1998) 117 - (Mentioned)

Canada

1. Pacific National Investment Ltd v City of Victoria (2005) 4 LCR; [2000] 2 SCR 919; 2000 SCCC 64- (Mentioned)

United Kingdom

1. Holdgate v Slight, 21 QB 74 – (Explained)

2. Sparling v Brereton (1866) LJ Eq 64 – (Followed)

3. Walsh v Lonsdale (1882) 21 Ch D 9 – (Explained)

5. M v Newham London Borough Council [1995] 2 AC 633; [1995] 3 All ER 353 (HL) – (Followed)

6. X v Bedfordshire County Council [1994] 2WLR 554 at p 572; [1995] 2 AC 633; [1995] 3 All ER 353 (HL) – (Followed)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 10, 20 (3) (a) (b); 40; 48; 159(2) (d); 163 (4) (b) – (Interpreted)

2. Advocates Act, (cap 16) sections 2, 9, 10, 12, 13, 34(1) (a) – (Interpreted)

3. Evidence Act (cap 80) sections 31, 33, 34, 35 – (Interpreted)

4. Indian Transfer of Property Act, 1882 Repealed - In general

 5. Land Registration Act, 2012 (Act No 3 of 2012)– In general

6.  Registration of Titles Act (cap 281) Repealed

7. Stamp Duty Act (cap 480) section 19 –(Interpreted)

Texts & Journals

1. Eisenberg, MA., (Ed) (Ed)  The Nature of the Common Law (Cambridge, Massachusetts: Harvard University Press p 63

2. Hogg,QM, (Lord Hailsham) et al ( Eds) (1987) Halsbury's Laws  of England London: LexisNexisButterworths 4th Edn Vol 44 para 353

Advocates

1. Mr Lumatete for the Appellant

2. Mr Shah for the Respondent

Scrutiny & Recount of Votes is a discretionary order of the Court

Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others

Supreme Court at Nairobi

Petition No. 23 of 2014

M.W. Mutunga, CJ,K.H. Rawal, DCJ, P.K. Tunoi, J.B. Ojwang’,N.S. Ndungu, SC.JJ

October 19, 2015

Reported by Emma Kinya Mwobobia

The instant application was limited to the elements cited in Rule 33(4) of the Elections (Parliamentary and County Elections) Petition Rules, 2013. It was based on the grounds that: voter turn-out had been inflated in favour of the 2^nd respondent at certain polling stations; the respondents had fraudulently manipulated documents to conceal irregularities and electoral malpractices; the 1^st respondent did not conduct the election in an impartial, neutral, efficient, accurate and accountable manner and there were manifest variations in the results announced and declared in terms of documentation and records in certain polling stations. The appellant urged that unless Orders for scrutiny and recount were granted, he would suffer irreparable loss and damage.

Further to the grounds adduced within the application, the timing of delivery of the instant Judgment was the subject of two letters by the appellant’s advocate, which was brought to the attention of the Supreme Court, one addressed to the Honourable Chief Justice and President of the Supreme Court and the other to the Registrar of the Supreme Court. His apprehension was thus expressed, “The appellant is concerned on the legal ramification that may ensue, should the Judgement be delivered after the lapse of 60 days as contained in Order 21 of the Civil Procedure Rules and the fact that it is now in the public domain that the Judicial Service Commission [JSC] has directed Judges over 70 years [of age] not to preside over matters.  The delivery of the pending Judgment may be affected by [ongoing] legal challenges. Your urgent consideration of the matter will be highly appreciated.”

Issues:

1. Whether the filing of the appeal was irregular by virtue of filing it as an originating petition contemplated by section 12 of the Supreme Court Rules instead of a petition of Appeal pursuant to rule 33 of the Supreme Court Rules
2. Whether the Appellate Court properly interpreted the provisions of Section 82 of the Elections Act, Rule 33 of the Elections (Parliamentary and County) Petition Rules and Regulation 77 of the General Elections Regulations
3. Whether the Appellate Court properly applied the provisions of the Elections Act, The Election Petition Rules and the General Election Regulations to the evidence on record
4. Whether the Appellate Court properly applied the law on scrutiny and recount
5. Whether it was proper for the court to substantively determine an issue that had not been raised by the parties and did not form part of the submissions in the appeal

Electoral law – election petition – nullification of election – vote tallying -  scrutiny & recount of votes – allegation of election malpractices and irregularities and that the 1^st respondent did not conduct the election in an impartial, neutral, efficient, accurate and accountable manner - effect of errors & irregularities- relevance of vote margin in nullifying or upholding elections  - whether the appellate court erred in its appreciation of the legal effect of errors and irregularities upon an election-Elections Act section 82;Elections (Parliamentary and County Elections) Petition Rules, 2013 rule 33;General Elections Regulations regulation 77

Constitutional Law – fundamental rights and freedoms – right to a fair hearing – allegation that the appellant’s right to a fair hearing had been violated by the fact that the court ventilated and determined an issue that was not appealed against nor materially affected the outcome of the appeal – principle of adherence of national values  and the rule of law - Constitution of Kenya, 2010,  article 10, 50 (1)

Jurisdiction – Supreme Court jurisdiction – jurisdiction of the Supreme Court to hear and determine an issue that had not been pleaded or canvassed by the parties during submissions – whether the court erred in determining an issue that was not canvassed by parties within the matter or related to the matter before court

Held:

1. An appeal of such a kind should not have been held to fail on mere account of form. Although the Rules of the Supreme Court gave guidance on the form which an appeal should take, article 159(2)(d) of the Constitution accorded precedence to substance over form. Rule 3(5) of the Supreme Court Rules empowered the Supreme Court to invoke its inherent power to make such Orders and directions as were necessary for the attainment of the ends of justice and to prevent the abuse of Court process. 
2. In order to serve the sanctified task of interpreting the Constitution, and for the purpose of resolving the protracted electoral dispute, the court was guided by article 159(2) (d) of the Constitution towards saving the appeal for determination on merits. The presentation form in the appeal, by no means violated the mandatory tenets of the Constitution, or the law, so as to compel the striking out of the appeal in limine.  Though the petition was presented in its current form, the determination of the appeal would focus only on the issues canvassed, and as determined by the other superior Courts.
3. The Elections Act empowered the Election Court to employ the tool of scrutiny and recount to verify the general integrity of the electoral process. Comparative jurisprudence signalled the importance of the mechanism in instances where the margin of votes was so narrow as to be affected by any transposition or tallying errors.  In such instances, Courts had ordered scrutiny and recount suo motu, and without the requirement that a sufficient basis be laid – though it was the exception rather than the rule, in practice.
4. The appellant had, indeed, outlined the disputed polling stations, in the pleadings and accompanying affidavits with the required specificity and it prima facie, provided a basis for the grant of Orders of scrutiny and recount.  However, the determination of sufficiency was a task reserved to the discretion of the Election Court.
5. Section 82 of the Elections Act and Rule 33 of the Election Petition Rules were the guiding provisions on the question of scrutiny. Regulation 77 of the General Elections Regulations dealt with the rejection of ballot papers during an election rather than scrutiny as a process initiated or allowed by the election Court in the course of electoral dispute settlement.
6. Regulation 77 of the General Election Regulations applied to the voting process itself. The Commission was required to identify valid ballots through certain mechanisms such as proper serialisation, superintended by presiding officers. That constituted the first stage in the sifting process. The second stage was executed by way of Section 82 of the Elections Act through the procedure of scrutiny.  It was a narrower process as reflected in the more limited mandate of the Court.
7. The scrutiny exercise was pegged upon the register maintained by the Commission which was to be produced as part of the discovery process. Any vote cast by a person whose name did not appear on the register ought to have been excluded from the final tally. Similarly, a person who voted at a polling station other than that at which he or she was registered ought to have been excluded from the tally. Therefore, the process of scrutiny had a broader intent than the singular event of actual recount.
8. Votes proved to have been procured through bribery, treating, or undue influence also ought to have been excluded, on Court orders. If a petitioner proved that there were such election offences as bribery, treating, personification, or undue influence, the election Court ought to exclude the relevant votes from the final tally, either upon application by a party to the proceedings or on its own motion.
9. The trial Court’s view of the purpose of scrutiny by virtue of Regulation 77, was inordinately restrictive. However, it had the discretion to determine whether the basis laid was sufficient to warrant the issuance of an Order for scrutiny and recount.  The trial court certainly had the advantage of relevant fact and evidence as it determined the question.
10. There was a difference between laying a basis for scrutiny meant to evaluate the overall features of the election in relation to the electoral code and recount which was restricted to ascertaining the outcome. In order for scrutiny and recount to be granted, the Court was to be convinced that the disparities in the final tallies if considered, would materially affect the overall outcome.
11. As an organising framework for electoral dispute resolution, the Commission was required to forward election reports to the Court trying an electoral cause (Elections Act, 2011, Section 82). The reports were drawn from the reports by the presiding and returning officers and were the raw material for the scrutiny process.
12. There were three instances in which scrutiny could be sought:

1. before the petition trial – in which case the petitioner would be seeking to persuade the Court to grant Orders by affidavit evidence;
2. during the trial – where the petitioner adduces evidence to support a scrutiny while the trial proceeds; and
3. at the end of the trial – where the petitioner had adduced all the evidence, and calls for scrutiny or recount, based on the evidence on record.

Scrutiny within any of the above categories would serve to ascertain the constitutional integrity of the electoral process. The Court, may require, by virtue of its discretion that a scrutiny of votes be conducted to ascertain the issues in dispute.

13. There was no flaw with the Appellate Court’s majority decision which rightly in law in effect, upheld the trial Judge’s exercise of discretion in relation to the application for scrutiny and recount.

Appeal disallowed. Appellant to bear the costs of proceedings.

Contretemps afflicting judgment delivery: Apprehension by counsel.

Held:

14. It was evident to the Court that the issue on retirement age of the judges was a matter of judicial notice qualifying for cognizance before the Supreme Court and so attended with appropriate, responsible judicial Orders.
15. The cause in the instant, ultimate appeal was heard and determined by a Bench of five Judges one of whom, contrary to the prescribed constitutional safeguards, the Judicial Service Commission was purporting to debar from further participation in the discharge of the matter.
16. An advocate’s communication coming to the Chief Justice and to the Registrar of the Supreme Court on a matter of such vital significance in the due discharge of the judicial mandate, an issue so intimately touching on the standing and responsibility of the Supreme Court, was for the due taking of judicial notice under the law which the court recognised.
17. Security of tenure for all Judges under the Constitution was sacrosanct and was not amenable to variation by any person or agency such as the Judicial Service Commission which had no supervisory power over Judges in the conduct of their judicial mandate.
18. The Judicial Service Commission lacked competence to direct or determine how, or when, a Judge in any of the Superior Courts may perform his or her judicial duty, or when he or she may or may not sit in Court. Any direction contrary to those principles, consequently, would be contrary to the terms of the Constitution which unequivocally safeguarded the independence of Judges. It followed that the said directive concerning Judges of the Superior Courts, issued by the Judicial Service Commission, was a nullity in law.
19. The Court’s Bench as constituted by the Judges who rendered service in the instant case, indeed bore the constitutional mandate to hear and determine the cause at hand notwithstanding the apprehensions of the appellant’s counsel.

Per Mutunga CJ, dissenting

20. The contents of the letter should neither have been treated as part of proceedings in the instant appeal nor been the basis for comment, holding, and finding in the judgment.
21. The Court lacked the jurisdiction to entertain the contents of the letter. The apex Court ought to be properly moved within the confines of its jurisdiction provided in articles 163 (3), (4), (5) and (6) of the Constitution. In addition, the Bench majority had subverted established precedents of the apex Court on its jurisdiction.
22. The Bench majority by invoking the rule of common law of judicial notice and the provisions of Section 60(1) (o) of the Evidence Act, to comment, make a finding and a holding on the basis of the said letter, had violated and subverted fundamental rights and freedoms of the parties to the appeal and third parties who were not part of the proceedings in the Appeal. They had also violated and subverted values and principles of the Constitution.
23. The Bench majority by invoking the rule of common law of judicial notice and the provisions of the Evidence Act had failed to observe, respect, protect, promote, and fulfil the rights and fundamental freedoms enshrined in articles 21(1), 27 (1) and 50(1) of the Constitution. They had also not adopted an interpretation of the Evidence Act that favoured the enforcement of a right or fundamental freedom.
24. By invoking the rule of common law of judicial notice and the provisions of the Evidence Act, the Bench majority failed to develop both the principle and the provisions of a statute to the extent that both did not give effect to the articles of the Constitution stated. The provisions of Article 20 (3) (a) and (b) of the Constitution had, indeed, torn away the last shreds of the perhaps comforting illusion, especially in the context of human rights, that judges in the common law system did not make law. The provisions meant that if any existing rule of common law did not adequately comply with the Bill of Rights, the court had the obligation to develop the rule so that it did comply. Additionally, the court had the obligation to interpret statute in a way that also complied with the Bill of Rights.
25. In mainstreaming the theory of interpreting the Constitution, the rules of common law did not subvert the provisions of the Constitution which was the supreme law of the land. It was also clear that no statute could subvert the provisions of the supreme law.
26. By arriving at a finding and a holding premised on a letter addressed by one party to the Chief Justice and President of Supreme Court in his administrative capacity, the Bench majority did not consider the respondents’ right of a fair hearing under article 50(1) of the Constitution.   There was no hearing on the contents of the letter. The other parties were not given the opportunity to respond to the letter and hence were not heard. Therefore, in arriving at a finding and a holding on the contents of the letter, the Bench majority violated fundamental principles of due process of the law pertaining to the parties to the appeal and the Judicial Service Commission, which was not a party to the appeal, also had its rights to be heard violated.
27. Courts had a duty to uphold reasonable, fair and just procedures, in order to avoid the violation of an individual’s rights.  The right to a fair hearing also included the right to be heard and be accorded due process of the law.  Therefore, in all court cases, judicial officers were mandated to ensure that due process of the law was followed. The apex Court was no exception to those principles.
28. Commenting, making a finding and a holding on the basis of a letter that was not part of the proceedings in the appeal violated and subverted the national values and principles articulated in article 10 of the Constitution and the authority and principles of justice under article 159 (1) and 159(2) (e). Article 159 (1) made it abundantly clear that judges derived their authority from the people of Kenya and the Constitution.
29. Article 1(1) of the Constitution provided that all sovereign power belongs to the people and shall be exercised only in accordance with the Constitution. Therefore, Courts derived their authority from the article 1(1) and 159 (1). They were also commanded to adhere to the national values and principles enshrined in article 10 of the Constitution.
30. All Courts ought to consider the principles and values of the rule of law, participation of the people, equity, inclusiveness, equality, human rights, transparency and accountability.  That was because the four corners of due process of the law, specifically the right to be heard and the right to a fair hearing required that both parties be heard if an issue was raised before the court in order to accord the court the opportunity to pronounce itself on the issue.  The Bench majority, in commenting, making a finding and a holding based on the letter violated all the constitutional national values and principles. That action on the part of the majority Bench smacked of a worrying form of judicial impunity.
31. The instant scenario was yet another example of the Bench majority subverting an existing precedent. Judicial officers should not even decide cases on the sole basis of an authority they dig up in the comfort of their chambers without allowing counsel to address them on the said authority.  Due process was a fundamental pillar of the rule of law and our progressive constitutionalism.
32. Two Judges of the Bench majority were parties in two separate cases pending in the High Court on issues that may have touched on the contents of the letter and had sued the Judicial Service Commission. The seriousness of the instant matter was gleaned by reading the finding and the holding of the Bench majority on the issue of security of tenure of the judges. Yet again, the Bench majority chose to disregard an existing precedent of the Court. Pronouncements that were premature on issues pending before other courts also disrupted the constitutional set up of the hierarchy of courts.  The Supreme Court had on several occasions affirmed the competence and jurisdiction of other courts.
33. The ripeness principle was one that was to be zealously guarded and avoid falling into the trap of judges pronouncing on matters that were not properly before them, more so those that were still finding their way up the judicial hierarchy.
34. The comments, finding, and holding on the letter in question formed extraneous questions defined as those that were beyond or beside the point to be decided.  The last part of the majority judgment dealt with extraneous issues that should not have been included in the judgment.  Those issues were neither found in the submissions of the parties nor did they form the issues framed by the Court for determination. Moreover, no party before the Court sought any reliefs in that regard.  For a court to arrive at a finding and hold on a matter, that matter ought to have been fully canvassed by all the parties concerned.
35. Article 163(7) of the Constitution provided that all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court.  Section 3 of the Supreme Court Act while confirming the Supreme Court as a court of final judicial authority decreed that the Court asserted the supremacy of the Constitution and the sovereignty of the people of Kenya and provided authoritative and impartial interpretation of the Constitution. That authority and power was derived from the people of Kenya which was a great constitutional responsibility that lay heavily on the shoulders of the Supreme Court. Clearly, the comments, finding, and holding on the basis of the letter were at best obiter dicta.
36. The Court no longer acted as a court when it changed the nature of the case the parties brought in order to create an opportunity to change the law, when it reached out to decide issues not properly before it and not based on a record or decisions below, and when it was less than candid about its reasoning. The final judicial authority of the Supreme Court was sacrosanct and should not have been exercised by violating any provisions of the Constitution.
37. (Obiter) “In deference to the majority Bench I wanted to be sure they were not invoking the epistolary jurisdiction a hallmark of the Indian Supreme Court’s invention and innovation. The Supreme Court of India adopted epistolary jurisdiction for matters concerning public interest litigation and in order to determine cases touching on the fundamental rights in the Constitution. Flexibility in pleading rules did not subvert the parties’ right to a fair hearing.  The Judges if they deemed it expedient would have required a report from the concerned party before being registered as a writ petition and setting it down for hearing.  Clearly, even if my learned sisters and brothers sought to invoke the epistolary jurisdiction they would not have made comments, a finding and a holding without hearing the parties.”