High Court at Nairobi (Milimani Law Courts)
Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party)
Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party) (Petition E242 of 2022)  KEHC 11630 (KLR) (Constitutional and Human Rights) (17 August 2022) (Judgment)
The Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 declared unconstitutional for want of public participation.
The petitioner challenged the constitutionality and legality of the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 (the impugned Rules). The petitioner challenged the process through which the impugned Rules were promulgated. The petitioner contended that the impugned Rules were a statutory instrument within the meaning of the Statutory Instruments Act. The petitioner also contended that the Supreme Court breached the principle of separation of powers by promulgating the impugned Rules, a role set aside for the Legislature. Lastly the petitioner contended that the impugned Rules were promulgated without public participation and thus were null and void.
- Whether the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022, having been made in exercise of the powers conferred upon the Supreme Court directly by the Constitution, were statutory instruments within the meaning of the Statutory Instruments Act.
- Whether the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were unconstitutional for want of public participation.
- Whether the Supreme Court usurped the role of Parliament in promulgating the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 that had the force of law and were enforceable by the court through penal provisions.
Relevant provisions of the law
Statutory Instruments Act, Act No. 23 of 2013
Sections 2 and 5A
In this Act, unless the context otherwise requires
"statutory instrument" means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.
5A. Explanatory memorandum
(1) Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain
(a) a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;
(b) a brief statement of all the consultations undertaken before the statutory instrument was made;
(c) a brief statement of the way the consultation was carried consultation;
(d) an outline of the results of the consultation;
(e) a brief explanation of any changes made to the legislation as a result of the consultation.
(2) Where no such consultations are undertaken as contemplated in subsection (1), the regulation-making authority shall explain why no such consultation was undertaken.
(3) The explanatory memorandum shall contain such other information in the manner specified in the Schedule and may be accompanied by the regulatory impact statement prepared for the statutory instrument.
Supreme Court Act, Act No. 7 of 2011
Without limiting the generality of Article 163(8) of the Constitution, the rules made by the Supreme Court under that Article may make provision for
(a) regulating the sittings of the Supreme Court and the selection of judges for any particular purpose;
(b) regulating the right of any person other than an advocate of the High Court of Kenya to practise before the Supreme Court and the representation of persons concerned in any proceedings in the Supreme Court;
(c) prescribing forms and fees in respect of proceedings in the Supreme Court and regulating the costs of and incidental to any such proceedings;
(d) prescribing the time within which any requirement of the rules shall be complied with;
(e) empowering the Registrar, in order to promote access to justice, to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or intended proceeding, or to refund, in whole or in part, such a fee that has already been paid, if satisfied on the basis of criteria prescribed under paragraph (f) that
(i) the person otherwise responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or
(ii) unless one or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued;
(f) prescribing, for the purposes of the exercise of a power under paragraph (e), the criteria
(i) for assessing a persons ability to pay a fee; and
(ii) for identifying proceedings that concern matters of genuine public interest; and
(g) any other matter required under the Constitution, this Act or any other written law
- Article 259(1) of the Constitution commanded the Court to take a purposive approach when interpreting the Constitution. Courts were to exercise caution not to give constitutional provisions rigid and artificial interpretation. The court had a duty to give full life to the Constitution by giving effect to the Constitution as a whole.
- Section 5A of the Statutory Instruments Act (SIA) required that every statutory instrument was to be accompanied by an explanatory memorandum demonstrating that sufficient public consultation was conducted and if not, the reasons. The impugned rules were expressed to be made by the Supreme Court in exercise of the powers conferred by article 163(8) of the Constitution and section 31 of the Supreme Court Act. The power of the Supreme Court to make rules for the exercise of its jurisdiction was conferred upon it by the Constitution. The provisions of section 31 of the Supreme Court Act could not take away or limit what had already been given by the Constitution.
- When enacting section 31 of the Supreme Court Act, Parliament was alive to the fact that no provision in the Act could limit the power already conferred upon the Supreme Court by the Constitution, hence the wording of section 31. The provision simply restated the Supreme Courts powers under the Constitution to make rules, so that even supposing section 31 were not in the Act, the Supreme Court would be able to make its own Rules by invoking the provisions of article 163(8) of the Constitution.
- Constitutional instruments were not ordinary statutory instruments. They derived their legitimacy not from statute, but directly from the people of Kenya through the Constitution. Such instruments were not subject to the rigours of the law-making processes as provided for in the Constitution and the law. The impugned rules which were made in exercise of the powers conferred upon the Supreme Court by the Constitution were a constitutional instrument and not a statutory instrument.
- The power of the Supreme Court to make rules was conferred upon it by the Constitution under article 163(8). The Constitution was the supreme law of the land and any power that flowed therefrom could not be limited by any statute, including the Supreme Court Act. Section 2 of the Supreme Court Act stated that rules meant the Rules of the Supreme Court made pursuant to article 163 (8) of the Constitution.
- The power of the Supreme Court to make rules under article 163(8) of the Constitution was akin to the power conferred upon the Chief Justice to make rules under article 22(3). When the Chief Justice made the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (Mutunga Rules) they were not subjected to parliamentary approval. That was because the power flowed straight from the Constitution and there was no provision that required that the rules be subjected to parliamentary approval. Similarly, the impugned Rules which were made pursuant to power flowing directly from the Constitution were not subject to the rigours of the law-making processes as provided for in the Constitution and the law.
- The impugned Rules were not a ruling in respect of which the rule of stare decisis (to stand by things decided) could be invoked. The binding effect of a decision of the Supreme Court as a court of final judicial authority, would only apply to decisions made in judicial proceedings. The impugned Rules and indeed any rules made by the Supreme Court under article 163(8) of the Constitution were not a decision as contemplated in article 163(7) which provided that all courts, other than the Supreme Court, were bound by its decisions.
- The impugned Rules having been made in exercise of the powers conferred upon the Supreme Court directly by the Constitution, were not statutory instruments within the meaning of SIA. While exercising its constitutional power to make the impugned Rules, the Supreme Court was not subject to the provisions of SIA.
- The content and the manner in which legislation was adopted had to conform to the Constitution. National values and principles of governance were binding on all State organs, State officers, public officers and all persons whenever any of them applied or interpreted the Constitution, enacted, applied or interpreted any law, or made or implemented public policy decisions. Public participation was a constitutional imperative, which played a central role in legislative, policy and executive functions of Government. It informed stakeholders and the public of what was intended and afforded them an opportunity to express, and had their views taken into account.
- Public participation bound all state organs, including the Supreme Court when, inter alia enacting law. Regardless of the nature of the impugned Rules and the fact that the power to make them flowed directly from the Constitution, the letter and spirit of the Constitution had to be upheld in the process of enactment. Any rules made by any entity had to be in conformity with the Constitution.
- In promulgating the impugned Rules, the Supreme Court had a duty to facilitate meaningful engagement with the public in a manner that accorded with the nature of the impugned Rules. Such engagement should have included access to and dissemination of relevant information, providing reasonable opportunity to the public and all interested parties to know about the impugned Rules and to sufficiently ventilate the same even if no guarantee was given that each individuals views would be taken.
- Whenever a challenge was raised, every agency was required to demonstrate what it had done in compliance with its duty to facilitate public participation in a given case.
- The respondent's position from the outset had been that given that the impugned Rules were a constitutional instrument, public participation was not necessary, in effect conceding that the rules were not subjected to public participation. To require the petitioner to prove that public participation was not done was at best to prove the obvious and at worst to prove the negative. Upon the petitioner stating that there was no public participation before the impugned Rules were promulgated, the burden of proof shifted to the respondents to demonstrate that there was.
- The Supreme Court did not conduct public participation in any form or shape, before the promulgation of the impugned Rules. That was contrary to the requirement under articles 10 and 232 of the Constitution, to afford reasonable opportunity to persons likely to be affected by the impugned Rules, such as litigants in presidential petitions, advocates and the public, to voice and perhaps have incorporated in the decision making, their concerns, needs and values. It was immaterial that previous rules and amendments had been made without public participation. Any rules made by the court had to always accord with the Constitution, failing which they could not stand. There was no exemption given under the Constitution, to the Supreme Court, from complying with the provisions of article 10(1).
- Participation of the people was not a progressive right to be realised sometime in the future. It was enforceable immediately. Any laws or rules made pursuant to constitutional or statutory provisions, had taken that into account. The decision by the Supreme Court to exclude the participatory rights of the people before promulgation of the impugned Rules, was unlawful and unconstitutional.
- Section 28 of the Supreme Court Act had made provision for contempt of court. If there was need to expand the instances of contempt of court to include that which was contained in the impugned provisions, then the Supreme Court ought to have deferred to Parliament which had the constitutional mandate to undertake such exercise under article 94(5) of the Constitution. Legislative authority was derived from the people of Kenya and was vested in and exercised by Parliament at the national level. It was only Parliament that had the power to make provision that had the force of law. Any other person or body could only do so under authority of the Constitution or statute. The impugned Rules purported to make provision that had the force of law and enforceable by the court through penal provisions. The Supreme Court went overboard. Such provision could only be made by Parliament or with its approval. More so because the provision had the effect of taking away rights.
- While the Supreme Court should be given the leeway and space to exercise the powers conferred upon it by the Constitution, such power had to be exercised within the Constitution and without usurping the powers of other constitutional entities. In making the impugned Rules which contained a penal provision that was enforceable by the Court, the Supreme Court went beyond its authority and usurped the law-making role of Parliament. The making of the impugned Rules, offended the Constitution and the doctrine of separation of powers which required each of the 3 arms of government to stick to its lane.