Whether an application for leave for extension of time to file a supplementary record out of time could be allowed when the petition of appeal was filed out of time without leave of court

Gilbert Mwangi Njuguna v Judicial Service Commission & another [2020] eKLR

Petition No.10 of 2019

Supreme Court of Kenya

 MK Ibrahim, JB Ojwang, SC Wanjala, NS Njoki and I Lenaola SCJJ

February 7, 2020

Reported by Chelimo Eunice

Civil Practice and Procedure - appeals – appeals to the Supreme Court – time for filing appeal and notice of appeal - whether petition of appeal could be filed out of time without leave of court - extension of time for filing supplementary record of appeal – whether an application for leave of extension of time to file a supplementary record out of time would be allowed when the petition of appeal was filed out of time without leave of court - Supreme Court Rules, rule 33.

Brief facts

The applicant sought an extension of time to file a supplementary record of appeal from an appeal from the judgment and decree of the Court of Appeal. The applicant argued that he filed his petition of appeal on March 19, 2019 but by then, he had not been supplied with typed proceedings of the Court of Appeal. That upon being supplied with the typed proceedings, he tried to file the supplementary record of appeal on April 15, 2019 but was rejected for having been filed out of time.

Issues:

1. Whether a petition of appeal could be filed out of time without leave of court.
2. Whether an application for leave for extension of time to file a supplementary record out of time would be allowed when the petition of appeal was filed out of time without leave of court.

Held:

1. Under rule 33 of the Supreme Court Rules (the Rules), the applicant was required to file the record of appeal within 30 days of the date he had filed the notice of appeal.  The applicant could not do so within the said stipulated time because there was delay in the release of the typed proceedings by the Court of Appeal.  The applicant was required to have filed the appeal within 30 days from February 1, 2019 when the notice of appeal was filed.  In the circumstances, the appeal should have been filed by March 3, 2019 but being a Sunday, it ought to have been filed by March 4, 2019 which was the next working day. The applicant filed the appeal 46 days from the date the notice of appeal was filed.  The appeal, therefore, was filed out of time, a delay of 16 days.
2. Despite filing the instant application, the applicant had not applied for leave to extend time for filing the appeal out of time.  There was no prayer for such extension of time within the application. In the circumstances, therefore, strictly, there was no valid petition of appeal on record.  Therefore, the instant application for leave of extension of time to file a supplementary record out of time was not founded on any substantive proceedings.  It was hanging in the air without any roots or foundation. Where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required.
3. By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such an appeal was tantamount to moving the court to remedy an illegality.  The court could not do.
4. To file an appeal out of time and seek the court to extend time was presumptive and in-appropriate.  No appeal could be filed out of time without leave of the court.  Such a filing rendered the document so filed a nullity and of no legal consequence.  Consequently, a document filed out of time without leave of the court could not be accepted.  Where one intended to file an appeal out of time and sought extension of time, the much he could do was to annex the draft intended petition of appeal for the court’s perusal when making the application for extension of time and not to file an appeal and seek to legalize it.  
5. The filing of the petition was a nullity and of no legal consequence.  It was filed out of time and without leave, an order extending time, and it had to be expunged from the court’s record.
6. The proposed consent letter by joint counsel for the parties dated June 24, 2018 allowing extension of time to file the supplementary record out of time could not be endorsed and adopted as a court order since the petition had been filed out of time. Endorsement and adoption of the consent would have no efficacy in law.

Application dated June 10, 2019 and petition of appeal dated March 15, 2019 struck out, with each party bearing own costs.

Factors to consider in determining the Supreme Court’s jurisdiction in determining an appeal involving the interpretation or application of the Constitution

Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others [2020] eKLR

Petition 40 of 2018

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola SCJJ

January 24, 2020

Reported by Kakai Toili

Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – jurisdiction to determine appeals on matters involving interpretation and application of the Constitution - factors to consider in determining whether the Supreme Court had the jurisdiction to determine an appeal as involving the interpretation or application of the Constitution – Constitution of Kenya, 2010, article 163(4)(a).

Brief facts

The suit before the Environment and Land Court concerned a dispute between the parties arising from a contract pertaining to the service charge payable by the appellants. The respondents filed a preliminary objection challenging the court’s jurisdiction based on the ground that clause 2.5 of the contract provided for the manner of solving disputes. The trial court however dismissed the preliminary objection on the main ground that it did not raise pure points of law. The respondents appealed to the Court of Appeal against that finding and the Court of Appeal overturned the decision and found that the preliminary objection raised a pure point of law on jurisdiction. That finding triggered the appeal before the instant court. 

The appellants however filed the application seeking leave to file a supplementary record of appeal so as to include documents left out during the filing of the record of appeal. Subsequently, the respondents in opposition to that application filed a preliminary objection disputing the instant court’s jurisdiction on grounds that the appeal did not involve the interpretation or the application of the Constitution of Kenya, 2010 (Constitution). The respondents also claimed that the appeal did not raise any constitutional question before the courts below and that certification had not been sought to declare the matter as one of general public importance.

Issue

What were the factors to consider in determining whether the Supreme Court had the jurisdiction to determine an appeal as involving the interpretation or application of the Constitution?

Held

1. A preliminary objection could only be raised on a pure question of law. To discern such a point of law, the court had to be satisfied that there was no proper contest as to the facts. The facts were deemed agreed, as they were prima facie presented in the pleadings on record.
2. The challenge on the court’s jurisdiction amounted to an issue capable of being addressed as a preliminary point of law because the jurisdiction of the court was set by the Constitution and statute. Since the applicants indicated that they were coming to the court under article 163(4)(a) of the Constitution, they had the duty to demonstrate that the issues in the appeal involved constitutional interpretation and application and not a mere reference of constitutional provisions.
3. The first time an article of the Constitution was mentioned in the appeal was in the petition of appeal filed before the instant court; such an issue had to have formed an integral part of the issues in the superior court of the first instance and should have formed part of the courts’ decisions through the hierarchy of courts. The superior courts below had to have interpreted it and made a finding so that the appeal rose through the hierarchy of courts. 
4. Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an applicant should demonstrate was that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application.
5. The appellants did not raise any constitutional issue either in the Environment and Land Court in the first instance neither was such an issue addressed in the findings of the Court of Appeal. There was no issue which took a constitutional trajectory in either of the two courts. The issues raised and the arguments presented turned on the terms of the contract which was the subject of the suit and on the interpretation of not any constitutional provision. In fact, there was no effort demonstrated by the applicant as to the existence of such a constitutional trajectory.

Preliminary objection upheld; petition of appeal struck out; applicants to bear costs of the appeal.

Legal requirements to be met for purposes of a party being enjoined as an interested party to a Supreme Court petition.

County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Proposed Interested Party/Applicant)

Petition No 22 of 2017

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

January 23, 2020

Reported by Beryl Ikamari

Civil Practice and Procedure - parties to a suit - joinder of parties - joinder of an interested party to a Supreme Court petition - requirements to be met by a party that sought to be enjoined to a petition as an interested party - whether the court would allow an application for joinder of an interested party - Supreme Court Act, No 7 of 2011, section 23.

Brief facts

The applicant sought joinder in the petition as an interested party. The basis of the application was that the allegations and reliefs sought in the petition had a direct impact on a reference filed at the Supreme Court by the applicant. Both matters were about the effect of the general elections of August 8, 2017 on the tenure of the 11^th Parliament and the first County Assemblies whose membership was elected as a result of the March 4, 2013 general elections. The elections of August 8, 2017 had an effect of shortening their tenure in office by eight months. An interpretation of the correct tenure had been sought but there were orders for a stay of proceedings in the reference pending the outcome in the petition. In issuing orders for the stay, the court directed the intended interested party to seek to be enjoined to the petition as an interested party.

Issue

What were the legal requirements to be met by a party that sought to be enjoined, to a Supreme Court petition, as an interested party?

Held

1. Section 23 of the Supreme Court Act provided for joinder of an interested party to proceedings. A party seeking to be enjoined to the proceedings had to demonstrate the existence of the following elements:-

1. The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.
2. The prejudice to be suffered by the intended interested party in case of non-joinder, had to also be demonstrated to the satisfaction of the court. It had to be clearly outlined and not something remote.
3. A party had to, in its application, set out the case and/or submissions it intended to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that the submissions were not merely a replication of what the other parties would be making before the court.

2. The application was merited and the applicant ought to be admitted as an interested party.

Application allowed. Each party was to bear its costs.

Cases

East Africa

1.County Assemblies Forum v Attorney General & 2 others Petition No 22 of 2017; [2020]–(Explained)

2.Muge, Andrew Kiplimo Sang & 2 others v Independent Electoral and Boundaries Commission& another Petition 22 of 2017; [2017] eKLR –(Explained)

3.Muruatetu, Francis Karioki & another v Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016] eKLR –(Followed)

4.Parliamentary Service Commission v Attorney General Reference No 3 of 2017; [2019] eKLR– (Explained)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 6(e) (i); 25(c); 50(1); 127 (1) (6)(a) (e) –(Interpreted)

2. Supreme Court Act, 2011 (Act No 7 of 2011) sections 3, 23,24 (1) –(Interpreted)

3. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rules 3, 25(1) –(Interpreted)

Advocates

None Mentioned

An appellate court has no jurisdiction to entertain a ground of appeal that was never raised in the lower courts

Charles Maina Gitonga v Republic [2020] eKLR

Petition No. 11 of 2017

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, &I Lenaola, SCJJ

January 23, 2020

Reported by Robai Nasike Sivikhe

Jurisdiction- jurisdiction of the Supreme Court- appellate jurisdiction of the Supreme Court- boundaries within which the Supreme Court’s appellate jurisdiction could be exercised- where the issue raised before the Supreme Court was first raised in the Court of Appeal and not any other lower court- whether the Supreme Court had jurisdiction to hear, on appeal, a matter that raised an issue which was first handled at the Court of Appeal and not any other lower court- whether the Court of Appeal erred when it entertained the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the lower courts - Constitution of Kenya, 2010, article 163 (4) (a).

Brief Facts

The appellant challenged the entire judgment and orders of the Court of Appeal and thus sought  four (4) declaratory orders namely; that the Supreme Court had jurisdiction to entertain additional  constitutional questions in relation to existing constitutional questions; that it was mandatory for an accused person in custody to be informed of his right to legal representation; that the fundamental rights of the appellant were gravely violated and that the trial court was mandated  to make an inquiry as to whether an accused person in a serious case deserved an advocate assigned by the State and at the State’s expense. Apart from the declaratory orders, the appellant also sought orders to have him discharged or acquitted and that the Court of Appeal’s judgment be reversed and set aside.

On the other hand, the respondent had argued that the appellant did not have an automatic right of appeal to the Supreme Court and that his prayer that he be acquitted on grounds that his rights to legal representation under article 50(2)(g) and (h) of the Constitution was violated, was totally misconceived and legally untenable.

Issues

1. Whether the Supreme Court had jurisdiction to hear, on appeal, a matter that raised an issue which was first handled at the Court of Appeal and not any other lower court.
2. Whether the question of legal representation as one of the grounds of appeal could be handled despite acknowledging that it was never raised in the lower  courts

Relevant Provisions of the Law

Constitution of Kenya 2010, article 163 (4) (a)

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

 a) As of right in any case involving the interpretation or application of this Constitution;

Held

1. There were boundaries to the jurisdiction of the Supreme Court as shown under article 163(4) (a) of the Constitution. An appeal to the Supreme Court had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to challenge the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163 (4) (a).
2. In order to determine whether the appeal was properly before court, it had to be confirmed that the issues of constitutional interpretation and application being raised, arose through the normal appellate mechanism so as to reach the court. The question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. The issue was neither raised at the Resident Magistrate’s Court nor at the High Court. In addition, none of the articles of the constitution in the petition of appeal was the subject of interpretation and application at the High Court.
3. The Court of Appeal was at fault for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in thelower courts.  To allow the appellant to ignore the normal hierarchy of courts would amount to abuse of the process of court. The Supreme Court lacked jurisdiction to entertain the appeal pursuant to article 163(4) (a) of the Constitution.

Petition of appeal dismissed with no orders as to cost.

Principles courts should consider before grant of an extension of time

Kenya Revenue Authority v Krish Commodities Limited [2020] eKLR

Civil Application No 23 of 2019

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, &

I Lenaola, SCJJ

January 23, 2020

Reported by Robai Nasike Sivikhe

Civil Practice and Procedure- limitation of time- application for extension of time- principles a court should consider when exercising the discretion to extend time- where a delay of one-month was incurred in an application to appeal- whether a reasonable explanation had been issued to warrant the grant of an extension of time- Constitution of Kenya, 2010, articles 159 and 163(4)(a); Supreme Court Act, No. 7 of 2011, sections 21(2) and 24 Rules 23; and Supreme Court Rules 2012, rule 53.

Brief Facts

The applicant filed a notice of appeal on July 5, 2018 but failed to file the substantive appeal within the required timelines hence leading to the application before the court for extension of time to file the appeal.

The applicant claimed that it filed its Notice of Appeal on July 4, 2018 and served it on July 13, 2018 in compliance with the Supreme Court Rules. However, it was unable to file the appeal for lack of the Court of Appeal judge’s notes during the hearing which, despite request made, were issued to him beyond the statutory timelines for filing an appeal to the Supreme Court.

Issues

1. What principles should a court consider when exercising the discretion to extend time?
2. Whether a reasonable explanation was issued to warrant the grant of an extension of time where a one-month delay was incurred.
3. Whether the matter could have been considered one of general public importance if an extension of time was granted.

Held

1. The discretion to extend time was unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant. The following were the underlying principles that a court should consider in exercising such discretion;
   1. extension of time was not a right of a party, it was an equitable remedy that was only available to a deserving party, at the discretion of the court;
   2. a party who sought extension of time had the burden of laying a basis, to the satisfaction of the court;
   3. whether the court should exercise the discretion to extend time, was a consideration to be made on a case- to- case basis;
   4. where there was a reasonable cause for the delay, the same should be expressed to the satisfaction of the court;
   5. whether there would be any prejudice suffered by the respondents, if extension was granted;
   6. whether the application was brought without undue delay; and
   7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.
2. The typed proceedings were certified on July 2, 2019 though no certificate of delay from the Deputy Registrar of the Court of Appeal was attached to enable the court to ascertain the delay. Other than the request for the typed proceedings made by the applicant on July 5, 2019, there was no follow up from the applicant. The instant application was filed a month later on August 2, 2019. The applicant had not provided a satisfactory explanation for the one-month delay after receipt of the typed proceedings.
3. The applicant had not pursued the procedure provided for under rule 33(6) of the Supreme Court Rules which allowed for filling of the requisite documents late, but without leave of court. Having filed the Notice of Appeal on July 5, 2018, the last day for filing the appeal was July 19, 2018. Thereafter, the applicant had a further fifteen days (until August 3, 2018) to file a supplementary record without leave. The applicant ought to have filed the appeal and the record with the documents that were available as a sign of diligence, and then later sought leave of the Supreme Court to file the supplementary record out of time. Consequently, the applicant had not satisfactorily explained the inordinate delay of one year to warrant exercise of the court’s discretion to enlarge time.
4. Even if certification had been obtained (and it was not), the findings by the Court of Appeal did not affect the interest of the general public to enable the Supreme Court to exercise the discretion to extend time to file the appeal. Similarly those issues did not require an interpretation or application of the Constitution.

Application dismissed with costs to the respondent.

Cases

East Africa

1.Adipo, Sister Sarah v Teachers Service Commission Civil Application No 31 of 2019; [2019] eKLR – (Cited)

3.Aryuv Agencies Limited v Kenya Revenue Authority Judicial Review No 5 of 2013; [2019] eKLR-(Explained)

4.County Executive of Kisumu v County Government of Kisumu & 8 others, SC Civil Appl No 3 of 2016; [2017] eKLR –(Followed)

5.Gitonga, Naomi Wangechi & 3 others v Independent Electoral & Boundaries Commission & 17 others Application No 41 of 2014; [2018] eKLR –(Cited)

6.In the Matter of the National Gender and Equality Commission  Reference No 1 of 2013; [2014] eKLR-(Cited)

7. Jusab, Shabbir Ali v Annar Osman & another Civil Application No 1 of 2013; [2013] eKLR-(Cited)

8. Munya v Kithinji & 2 others [2014] 3 KLR 36-(Cited)

9.Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [SC Application no 16 of 2014; [2014] eKLR-(Followed)

10.Twaha, Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR –(Cited)

Statutes

East Africa

1.Constitution of Kenya, articles 24, 47, 53,159, 163(4)(a); 201(b)(i); 209; 210 –(Interepreted)

2.East African Community Customs Management Act, 2000  (Act No 2 of 2000) sections 135,235, 236 –(Interpreted)

3.Exercise Duty Act, 2015 (Act No 23 of 2015) – Ingeneral (Interpreted)

4,.Supreme Court Act, 2011(Act No 7 of 2011) section 21(2); 24; 36 –(Interpreted)

5.Supreme Court Rules, 2012  (Act No 7 Sub Leg) rules 23,33(1)(4)(6); 53 –(Interpreted)

6.,Tax Procedures Act, 2015 (Act No 29 of 2015) – In general (Interpreted)

7.Value Added Tax Act (cap 476) – Ingeneral (Interpreted)

Advocates

None Mentioned

Refusal to register a trade union to deal with floriculture and horticulture industries based on the existence of a union dealing with plantation and agriculture industries amounts to infringement of the right of existence of a trade union.

Kenya Plantation & Agricultural Workers’ Union v Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFTHAU) Represented by Its Promoters: David Benedict Omulama & 9 others [2020] eKLR

Petition No. 4 of 2018

Supreme Court of Kenya

MK Ibrahim, JB Ojwang’, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

January 23, 2020.

Reported by Kakai Toili

Constitutional Law – applicability of the Constitution of Kenya, 2010 (Constitution) – time within which the Constitution became applicable – where there was a dispute relating to refusal of registration of a trade union - where the application for registration was made before the promulgation of the said Constitution and the refusal was after the promulgation – whether the Constitution was applicable

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to form a trade union – registration of a trade union – refusal of registration – where the Registrar of Trade Unions declined to register a trade union dealing with floriculture and horticulture industries on the basis that there existed another trade union dealing with plantation and agriculture industries - when could the Registrar of Trade Unions refuse to register a trade union - whether refusal to register the trade union amounted to an infringement of the right of existence of a trade union – Constitution of Kenya, 2010, articles 24, 36 and 41; Labour Relations Act, 2007, sections 12, 13 and 14

Brief facts

 On July 17, 2009, the 1^st to 9^th respondents made an application to the 10^th respondent, Registrar of Trade Unions (Registrar) for the establishment of a trade union namely, the Kenya Export, Floriculture, Horticulture and Allied Workers’ Union (KEFHAU). The Registrar acknowledged receipt of the application by a letter dated March 25, 2010 and notified the 1^st to 9^th respondents that the application would be placed before the National Labour Board for consideration. Later, the Registrar notified the General Secretary of the appellant of the pendency of the application aforesaid and inviting objections if any. Thereafter, the Registrar sent a letter dated August 30, 2011 to the interim secretary of KEFHAU enclosing a notification of refusal of registration on the ground that there was a registered trade union, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants sought registration.

Aggrieved by the Registrar’s decision, the 1^st to 9^th respondents appealed to the Employment and Labour Relations Court which while reversing the Registrar’s decision held that there was a fundamental difference between that which comprised the plantations and agricultural industry and the floriculture and horticulture. Aggrieved by that decision, the appellant preferred an appeal to the Court of Appeal. The Court of Appeal dismissed the appeal. Aggrieved by the dismissal of the appeal, the appellant filed the instant appeal.

Issues

1. When could the Registrar of Trade Unions refuse to register a trade union?

1. Whether refusal to register a trade union dealing with floriculture and horticulture industries on the basis that there existed another trade union dealing with plantation and agriculture industries amounted to an infringement of the right of existence of a trade union.

2. Whether the Constitution of Kenya, 2010 was applicable to a dispute relating to the refusal to register a trade union where the application for registration was made before the promulgation of the said Constitution and the refusal was after the promulgation.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 41(2)(c)

Every person has the right to form, join or participate in the activities and programmes of a trade union.

Labour Relations Act, 2007

Section 12

1. No person shall recruit members for the purpose of establishing a trade union or employers’ organization unless that person has obtained a certificate from the Registrar issued under this section.

 Section 13

A trade union or employers’ organization shall apply to the Registrar for registration within six months of receiving a certificate issued under section 12.

Section 14

1. A trade union may apply for registration if—

4.  no other trade union already registered is—

1. in the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration; or
2. in the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof:

 Provided that the Registrar shall, by notice in the Gazette and in one national daily newspaper with wide circulation, notify any registered trade union, federation of trade unions or employers’ organizations which appear to him to represent the same interest as the applicants of the receipt of such application and shall invite the registered trade union federation of trade unions or employers’ organization concerned to submit in writing, within a period to be specified in the notice, any objections to the registration;

Held

1. The 1^st to 9^th respondents’ application for registration for their trade union was received by the 10^th respondent on February 16, 2010. The notification of refusal to register the 1^st to 9^th respondents’ union was made on August 30, 2011. The issue in dispute before the then Employment and Labour Relations Court was refusal of registration of the appellants by the Registrar. In light of the observations made from the record, the cause of action was  refusal of registration of the appellants by the Registrar of trade unions and  the same arose on August 30, 2011, a year later after the promulgation of the Constitution of Kenya, 2010 (Constitution). The applicable Constitution was therefore the Constitution and not the repealed Constitution.  
2. A court could draw insights from the Constitution for just and fair resolution of a dispute that could have arisen prior to the promulgation of the Constitution. Therefore, even if the cause of action would have arisen prior to the Constitution, the court would have been right to draw insights from the same for the fair determination of the issue before it that was, refusal of registration of the appellants by the Registrar.
3. After a perusal of the provisions of sections 12, 13 and 14 of the Labour Relations Act and other relevant statutory and constitutional provisions in respect to the issue in question; once an application for registration of a trade union had been made and the same was compliant with the aforesaid sections and the Constitution, the Registrar had no choice but to register the same. The only reason for refusal of registration was where there was another trade union sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants sought registration as provided under section 14(1)(d)of the same Act. It was not disputed that the 1^st to 9^th respondents’ trade union met the criteria for registration as set out in sections 12, 13 and 14. The only reason the appellant challenged the registration of the respondents’ union was that it contravened section 14(1)(d) of the Labour Relations Act.
4.  Section 14(1)(d) of the Labour Relations Act did not operate in a vacuum. The Registrar had to make an inquiry on any objection before arriving at a decision to reject or allow an application. The inquiry made by the Employment and Labour Relations Court based on the evidence presented before it to the effect that the decision of the Registrar in rejecting the application for registration of the 1^st to 9^th respondent’s union, was largely based on the provisions in the repealed Constitution. The limitations under article 24 of the Constitution did not apply with regard to the 1^st to 9^th respondents’ union. There was a fundamental difference between what comprised plantations and agriculture industries, as against the floriculture and horticulture industries was proper.
5. Infringement of the appellant’s right of existence as a general and giant union by the Court of Appeal without considering the provisions of article 41 of the Constitution could not have occurred. That was because the appellant was already registered and was enjoying its rights of existence as a trade union under article 41 of the Constitution. It was the 1^st to 9^th respondents’ rights that would be infringed, if the orders sought were to be granted more so, considering the fact that the appellant was never a primary party to the original suit.  The most crucial interest or stake in any case was that of the primary parties before the court.
6. Having gone through the record (volume one page 48), the registration certificate was issued by the Senior Assistant Registrar of Trade Unions. The role of registration of a trade union was a statutory duty of the Registrar and a relevant court only had jurisdiction to order registration of the proposed union and further, the Registrar cured any defect that could have occurred in the order of the Employment and Labour Relations Court.

Appeal dismissed; appellant to bear costs of the 1^st to 9^th respondents.

Applicability of the doctrine of stare decisis to tribunals

SGS Kenya Limited v Energy Regulatory Commission & 2 others [2020] eKLR

Petition 2 of 2019

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, & I Lenaola, SCJJ

January 10, 2020

Reported by Moses Rotich

Legal Systems – quasi-judicial legal systems - doctrine of stare decisis – applicability of the doctrine of stare decisis in quasi-judicial decisions – whether tribunals could be bound by the doctrine of stare decisis – Whether a tribunal could be bound by its previous decision.

Brief facts

The 1^st respondent, Energy Regulatory Commission, floated a tender for the marking and monitoring of petroleum products, a service meant to curb adulteration of fuel. The tender attracted 3 bids. After evaluation of the bids, the tender was awarded to the petitioner but was subsequently terminated upon the realization that some technological elements had not been incorporated in the tender process. The petitioner was aggrieved by the decision to terminate the tender and filed a request for review before the Public Procurement Administrative Review Board (2^nd respondent) seeking orders that the said tender-termination be annulled. The Board disallowed the request for review. The High Court quashed the decision of the 1^st respondent and ordered it to proceed with the tender as was awarded to the petitioner.

Aggrieved by the High Court decision, the 1^st respondent appealed. The Court of Appeal subsequently set aside the High Court judgement sustaining the termination of the tender-award, on the ground that the applicable term of reference did not include the possibility of emergent technical conditions. The Court of Appeal faulted the High Court for determining a judicial review matter as if it was an appeal, and for going into the merits of a decision already taken.

 Aggrieved by the judgment of the Court of Appeal, the petitioner sought to have the matter certified as one of general public importance under article 163(4)(b) of the Constitution of Kenya 2010, an application which was allowed by the Court of Appeal on December 19, 2019, upon a single issue; whether tribunals were bound by the doctrine of stare decisis.  The petitioner contended that the failure by the Public Procurement Administrative Review Board to abide by its precedent in Avante International Technology Inc. v. IEBC PPARB, Review No.19 of 2017, or give reasons for digressing from it, was an untransparent, inequitable and irrational exercise of its decision-making power in the public procurement process

Issue

Whether a tribunal could be bound by its previous decision.

Held

1. Tribunals, in their primary category, were specialized bodies charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. Membership in such tribunals generally reflected the essential skills required for the specific tasks in view.  The Public Procurement Administrative Review Board fell within that category. It was endowed with requisite experience from its membership, and had access to relevant information and expertise, to enable it to dispose of matters related to procurement.
2. The question whether a tribunal was bound by its previous decisions, as it took on different matters, called for flexibility in the regulatory scheme. In principle, matters on the agenda of an administrative tribunal would merit determination on the basis of the claims of each case, and would depend on the special factual dynamics.  The relevant factors of materiality, and of urgency, would require individualised response in many cases: and in those circumstances, a strict application of standard rules of procedure or evidence could negate the fundamental policy-object.  On that account, the specialized tribunal should have the capacity to identify relevant factors of merit; be able to apply pertinent skills; and have the liberty to prescribe solutions, depending on the facts of each case.  Such a tribunal should fully take into account any factors of change, in relation to different cases occurring at different times; without being bound by some particular determination of the past. Administrative decision-makers should have significant flexibility in responding to changes that affect the subject-matter before them. Matters before an administrative tribunal should be determined on a case-to-case basis, depending on the facts in place.
3. By asking the court to consider if it was entitled to orders of judicial review had exceeded the leave and certification granted by the Court of Appeal, within the terms of article 163(4)(b) of the Constitution; the petitioner had engaged the court in an essentially academic exercise. However, the Court of Appeal was right in its finding that the High Court should not have gone to the merits of the Public Procurement Administrative Review Board decision as if it was an appeal, nor granted the order of mandamus, since the 1^st respondent did not owe any delimited statutory duty to the petitioner. Accordingly, the petition lacked merit.

Appeal dismissed; costs to be borne by the respondent in the Supreme Court, Court of Appeal, High Court and the Public Procurement Administrative Review Board.

Supreme Court appeal on racial discrimination dismissed on grounds that the petitioners did not prove their claim.

Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others

Petition No 12 of 2019

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ

January 10, 2020

Reported by Beryl Ikamari

Evidence Law - burden of proof - shifting of the burden of proof - discharge of the initial burden of proof - whether the petitioners' evidence of alleged racial discrimination was sufficient to discharge the initial burden of proof and shift the burden of proof to the respondent - Evidence Act (Cap 80), sections 108 and 109.

Evidence Law - proof of facts - alleged violations of intellectual property rights by an employer - where evidence did not show when an employee made an alleged innovation and the manner in which the alleged innovation was made - whether the evidence sufficiently proved violations of intellectual property rights.

Civil Practice and Procedure - appeals - cross-appeal - failure by the Court of Appeal to make determinations on a cross-appeal -  whether the Supreme Court would refer the cross-appeal back to the Court of Appeal for a determination.

Brief facts

The petitioners were employees of the 1^st respondent and they were also attached to the KEMRI-Wellcome Trust Research Programme, hosted by 1^st respondent, as clinical researchers. They were pursuing post-graduate studies leading to the award of the degree of Doctor of Philosophy. Their contention was that under the programme they faced racial discrimination and that research grants were awarded in favour of European Economic Area residents at the expense of equally or more qualified local blacks.

The petitioners said that they were engaged under multiple and extremely short contracts and that with different contracts from the 1^st respondent and the programme, there was an unclear chain of command. Contracts from the two entities differed in terms of gratuity and staff guidelines and the doctors' rights to join a trade union of their choice had been curtailed. The petitioners added that in violation of the rules of natural justice, there had been unfair dismissal effected without a hearing and without reasons being given. They said that those who raised grievances were victimized through suspension and improper indefinite leave.

The Employment and Labour Relations Court made the finding that the petitioners had been discriminated and granted various reliefs including an award of five million Kenya shillings as compensation. The Court of Appeal set aside those findings and entered judgment which was inter alia to the effect that the 1^st respondent did not employ foreign researchers who retained their careers structures and terms of employment from their home institutions and universities while visiting the 1^st respondent. The Court of Appeal said that the differential pay was based on the different contracts that the visiting researchers had with third parties and the 1^st respondent was not privy to those contracts. An appeal was lodged at the Supreme Court. The reliefs sought by the petitioners included an interpretation as to what would amount to indirect discrimination and a declaration that institutional discrimination was part of discrimination prohibited under article 27 of the Constitution.

Issues

1. Whether employees of a research institution had discharged the initial burden of proof on alleged racial discrimination in the institution so as to cause the burden of proof on discrimination to shift to their employer.
2. Whether sufficient evidence was tendered by employees to show that an employer had violated their intellectual property rights.
3. What was the effect of a failure by the Court of Appeal to make determinations relating to a cross-appeal?

Held

1. A party that made an averment in validation of a claim was the one to establish the plain veracity of the claim. In civil suits the standard of proof was the balance of probability. It meant that there had to be evidence on the basis of which the court could determine that it was more probable than not that the respondent bore responsibility in whole or part for what was complained of.
2. Section 108 of the Evidence Act provided that the burden of proof in a suit or procedure would lie on the person that would fail if no evidence at all were given on either side. Additionally, section 109 of the Evidence Act provided that the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by any law that the proof of that fact had to lie on any particular person.  The basic rule on the shifting of the evidential burden was that the petitioner should be under an obligation to discharge the initial burden of proof before the respondents were invited to bear the evidential burden.
3. The petitioners had the overriding obligation to provide evidence to establish that they had suffered discrimination in the hands of the 1^st respondent. Events at both superior courts below the Supreme Court showed that the burden of proof did not shift to the 1^st respondent.
4. The petitioners' allegations of discrimination were captured in various e-mails, affidavits, and the petition. The 1^st respondent explained how foreign researchers were engaged and that the 1^st respondent had no control over their terms of employment. That explanation was not controverted by the petitioners who merely claimed that the 1^st respondent's lack of control over terms of engagement had exposed them to discrimination.
5. Despite the fact that proof of indirect discrimination was difficult, the petitioner ought to have provided sufficient evidence before the court to enable it to make a determination. In that regard, the petitioners failed to discharge their initial burden of proof.
6. The claim of violation of intellectual property rights had its basis on various allegations including the allegation that the 5^th petitioner made an innovation while he was not in the 1^st respondent's employment, that there was citation amnesia and disregard syndrome. The claim with respect to the 5^th respondent could not be raised at the Supreme Court as it was not part of the pleadings at the Employment and Labour Relations.
7. The e-mail communications used by the petitioners to prove violations of intellectual property rights did not amount to sufficient proof. It was not possible to ascertain when the alleged innovations were made and the manner in which they were made so as to dissociate them from the employment relationship.
8. The cross-appeal entailed a claim that the trial court failed to calculate and to award benefits such as payment for unfair termination of services, payments in lieu of leave, unpaid salary in lieu of notice, and other outstanding payments. The Court of Appeal mentioned the cross-appeal but it did not make determinations on it. The petitioners did not succeed in proving that they had been discriminated and the compensation sought in the cross-appeal was for the unproven discrimination. Justice under the circumstances did not require the referral of the cross-appeal back to the Court of Appeal for determination.

Appeal dismissed. Parties were to bear their own costs.

The extent of the court’s duties when adopting a consent order filed by the parties.

Geoffrey M Asanyo & 3 others v Attorney-General

Petition 7 of 2019

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ

January 10, 2020

Reported by Beryl Ikamari

Jurisdiction – jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application -  exceptions to the requirement that the appeal would have to relate to matters of constitutional interpretation and application that were raised at the other superior court, including the High Court, courts of equal status as the High Court and the Court of Appeal - whether the Supreme Court could exercise jurisdiction in relation to an issue that arose at the Court of Appeal.

Civil Practice and Procedure - consent order - adoption of a consent order by a court - where a court found that the issues relating to the adoption were contentious and ordered parties to make a formal application while giving a right of reply to the opposing party - whether such an order was within what a court could require from the parties when adopting a consent order. 

Civil Practice and Procedure - doctrine of functus officio - applicability of the doctrine of functus officio – stage at which a court would become functus officio - where the Supreme Court gave directions for the Court of Appeal to adopt a consent filed by the parties - extent to which the Court of Appeal could exercise jurisdiction where all it was required to do was to adopt a consent order.

Brief facts

The petitioners sought to challenge directions issued by the Court of Appeal. The directions required the petitioners to file a formal application seeking compliance with a Supreme Court order and it gave the respondents a right of reply. They said that contrary to the doctrine of functus officio, the directions amounted to a re-opening of litigation in a concluded matter. They added that the directions also infringed on article 163(7) of the Constitution which required all other courts to comply with the Supreme Court's decisions.

The background to the matter was a consent dated September 18, 2015 which the Court of Appeal declined to adopt and instead delivered judgment which disposed of the substantial matter. On appeal, the Supreme Court issued various orders including orders for the setting aside of the judgment and orders for the Court of Appeal to adopt the consent filed by the parties.

When the matter was mentioned at the Court of Appeal, the Attorney General opposed the adoption of the consent. He stated that the consent was recorded during the tenure of his predecessor - the retired Attorney General - and the position had changed. During a second mention of the matter, the Court of Appeal made a ruling. It ruled that the matter was contentious and the petitioners should approach the court by way of a formal application with the Attorney General having a right of reply. The petitioners lodged the instant appeal against the ruling.

Issues

1. Whether the Supreme Court could exercise jurisdiction in relation to an issue that arose at the Court of Appeal.
2. What did the adoption of a consent order require a court to do?
3. At what point would a court become functus officio?

Held

1. The jurisdiction of the Supreme Court was limited and it stemmed from the Constitution and relevant legislation. Occasionally, there were situations wherein the court's jurisdiction was not so sharply defined and the court had to ascertain, on a case by case basis, whether jurisdiction could properly be assumed.
2. The appeal did not stem from subject matter that was before the High Court. It was based on the petitioner's assertion that the Court of Appeal had conducted itself in a manner that did not give due regard to the Supreme Court's determination within the terms of article 163(7) of the Constitution and that the Court of Appeal had violated the doctrine of functus officio. The grievance arose at the Court of Appeal and in such a context the Supreme Court would adopt a pragmatic approach in relation to the issue of jurisdiction.
3. Article 163(7) of the Constitution established the principle upon which rested the authority of judicial decisions as precedent in subsequent litigation, guiding judges who were bound to follow the same. Courts and tribunals exercising judicial authority were duty-bound to follow the principle.
4. The Supreme Court had inherent power to do justice. The court should only depart from the principle that in order for it to exercise jurisdiction, issues of constitutional interpretation and application had to rise through the superior courts to the Supreme Court, in the clearest of cases.
5. The issues raised by the petitioners would ordinarily involve questions on the application and interpretation of the Constitution that warranted entertainment by the court.
6. Article 163(7) of the Constitution provided that all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. It embodied the common law doctrine of stare decisis and required the precedents set by the Supreme Court to bind all other Courts in the land. The doctrine of stare decisis was fundamental to the administration of justice in that it required the authority of decisions to be scrupulously respected by all courts upon which they were binding. It created uniformity and consistency in the law as pronounced.
7. There was need for fidelity to the principle of stare decisis as it ensured that judges reached substantially the same legal conclusions that were reached in previous cases when considering similar legal issues. That created certainty, clarity, predictability and legitimacy.
8. The doctrine of functus officio meant that the holder of adjudicative or decision- making powers could exercise them only once in relation to a particular matter. Once a decision was made it was final and conclusive and the decision-maker could not vary it.
9. The decision of the Supreme Court of November 20, 2018 was to the effect that the judgment of the Court of Appeal was a nullity as one of the judges in the relevant bench failed to render a determination. That was still the position of the Supreme Court. The Supreme Court on November 20, 2018, also gave orders directing to the Court of Appeal to adopt the consent of the parties.
10. Adoption of a consent order was a process wherein the court would discharge the duty of evaluating the clarity of the consent and giving directions on the manner of adoption. That would circumvent the risk of an unlawful order and validate the mode of adoption and compliance.
11. A consent by parties would become an order of the court only when it had been formally adopted by the court. It was only at that stage that the court would become functus officio. As the Court of Appeal had not formally adopted the consent, it was not functus officio. In directing the parties to make a formal application, the Court of Appeal was validly engaged in a judicial process attendant upon the consent adoption process which was in line with the Supreme Court's orders. Therefore, the Court of Appeal, in giving the directions, was engaged in the lawful exercise of its jurisdiction.
12. The petition before the court was premature and was not a proper basis for invoking the jurisdiction of the court.

Petition dismissed.

Orders: -

1. The petition of appeal dated February 13, 2019 was disallowed.
2. Costs to be borne by the parties respectively.

Cases

East Africa

1. Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123 –(Followed)

Statutes

East Africa

1.Constitution of Kenya, 2010 article 47 –(Interpreted)

2.Fair Administrative Action Act, 2015 (Act No 4 of 2015) sections 4(1)(2) –(Interpreted)

3.Finance Act, 2014 (Act No 16 of 2014) – In general (Interpreted)

4. Income Tax Act of 2015 (Act No 14 of 2015) section 15(3)(f); Eight Schedule –(Interpreted)

5. Land Act, 2012 (Act No 6 of 2012) section 98 (4)  -(Interpreted)

6. Land Registration Act, 2012 (Act 3 OF 2012) sections 2(b); 56; 101 –(Interpreted)

Advocates

1. Mr Manoti for the Appellant

2. Mr Fraser for the respondent

Supreme Court strikes out an appeal on grounds that it lacks jurisdiction to hear and determine it, under article 163(4)(a) of the Constitution.

Kensalt Limited v Water Resources Management Authority

Petition (Application) No 8 of 2016

Supreme Court of Kenya

MK Ibrahim, JB Ojwang, SC wanjala, N Ndungu & I Leanola, SCJJ

January 10, 2020

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application - circumstances under which the Supreme Court could hear and determine a matter on the basis that it raised issues of constitutional interpretation and application - Constitution of Kenya 2010, article 163(4)(a).

Brief facts

The respondent raised a preliminary objection stating that the court lacked jurisdiction to entertain the petition of appeal. The respondent said that leave to appeal under article 163(4) (b) of the Constitution had not been sought and the appeal did not raise issues of constitutional interpretation or application.

At the Environment and Land Court at Malindi, the respondent filed a suit claiming Kshs. 270, 295, 759.90, as water charges allegedly due, for the use of water in the petitioner’s salt-manufacturing process. The petitioner urged that the suit be dismissed as the court lacked jurisdiction to hear it. The petitioner explained that since the respondent did not have the mandate to levy charges for the use of sea water, both under the Water Act and the Water Resources Management Rules 2007 (the Water Rules,) the respondent had no locus standi to institute the suit. The petitioner added that sea water was res nullius and incapable of ownership. On grounds urged by the petitioner, except those of sea water being res nullius, the suit was struck out.

The respondent lodged an appeal at the Court of Appeal against the Environment and Land Court decision and the petitioner cross-appeal on the issue of sea water being res nullius. The Court of Appeal allowed the appeal gave orders which included orders for the matter to be heard afresh before a different judge.

Issue

What were the circumstances under which the Supreme Court could hear and determine a matter on the basis that it raised issues of constitutional interpretation and application?

Held

1. For a matter to be admissible under article 163(4)(a), a petitioner had to demonstrate that the matter coming on appeal at the Supreme Court was subject to litigation before the High Court, and had risen through the judicial hierarchy on appeal. Considering the plaint and the application to strike out the plaint at the trial court and also the appeal at the Court of Appeal, it was apparent that the issues in controversy between the parties were novel, complex and were vigorously contested. However, the trial court struck out the suit.
2. Various articles of the Constitution were referred to by the trial court in arriving at the conclusion that the respondent lacked the mandate to regulate the use of the sea's resources. Those provisions include articles 62(1), 62(3), 67(2)(a), 206, 210 and 260 of the Constitution. However, the Court of Appeal did not interpret or apply the Constitution in arriving at its decision.
3. The application to strike out the suit at the trial court was brought under order 2 rule 15(1) of the Civil Procedure Rules under which no evidence was admissible. However, the trial court engaged in a mini-trial and decided on substantial issues. It was in that context that the trial court applied various articles of the Constitution. On appeal, the Court of Appeal rightly held that the parties’ ultimate rights could not be decided on at an interlocutory stage.
4. The jurisdiction of the Supreme Court could only be invoked when substantive matters in the cause had been answered. The trial court acted upon pleadings without an oral hearing and determined a contested action. Therefore, substantive matters in the plaint and petition had not been answered in the proper forum. The suit raised triable issues that required a full trial.
5. The determinations of the trial court, which were made without a full trial, were premature. It was premature to determine the rights of the parties at an interlocutory stage. The issues raised warranted a trial.

Preliminary objection allowed.

Orders:-

1. The petition dated June 6, 2019 was struck out.
2. The petitioner was to bear the costs entailed before the Supreme Court and the courts below.