Civil Practice & Procedure - transfer of suits - jurisdiction by magistrates under the Magistrate's Act. Pecuniary vis a vis geographical jurisdiction

Njoya & 6 others v Attorney General & another

High Court, at Nairobi March 3, 2004

Ringera, Kubo JJ & Kasango Ag J

Miscellaneous Civil Application 82 of 2004 (OS)

Constitutional law – constitutional reference – locus standi – legal standing of a party to bring a constitutional reference – party challenging an Act of Parliament on account of its alleged inconsistency with the Constitution – whether such a party has to demonstrate a personal interest in order to have legal standing – subject matter of a constitutional reference – interpretation of the Constitution.

Separation of Powers – Parliament and the Judiciary - power of Parliament to make, amend or repeal statutory law – power of the courts to adjudicate on an alleged inconsistency of statute law with the Constitution – whether the doctrine of separation of powers takes away the courts’ power to make such adjudication – whether for a court to strike down a section of a statute for being unconstitutional would be to usurp the power of Parliament to repeal law.

Judicial Review – subject matter of judicial review – decisions impacting on the rights of individuals – whether mere recommendations made by a body can be the subject of judicial review.

Civil Practice and Procedure – preliminary objection – nature of a preliminary objection – whether points challenging the jurisdiction of the court or locus standi of a party were proper points for a preliminary objection.

The applicants brought an originating summons in the High Court in which they named the Attorney General and the Constitution of Kenya Review Commission as the respondents and sought a total of nineteen orders. Among those orders were declarations that certain sections of the Constitution of Kenya Review Act vitiated the constituent power of the people of Kenya (including themselves) or were otherwise unconstitutional and should be struck down; that the Act was unconstitutional to the extent that it permitted a National Constitutional Conference to discuss and adopt a draft Bill to alter the Constitution; that the draft Bill did not reflect the views of Kenyans and that the National Constitutional Conference be suspended pending compliance of the review process with the Constitution.

Before the summons could be heard, the 2nd respondent raised a preliminary objection on five points – that the originating summons did not raise any matter which required the interpretation of the Constitution; that if the court were to enter into an adjudication of the matters raised in the summons, it would be trespassing into the domain of Parliament to pronounce on matters of social and public policy contrary to the doctrine of separation of powers; that the issues raised were not justiciable and the court had no jurisdiction to entertain them; that the Constitution review process was in the hands of the National Constitutional Conference and not the 2nd respondent; and, finally, that the applicants had not shown that the matters they complained of had or were likely to contravene any rights vested upon them personally.

Held:

1. A preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

2. The objections to the summons on the grounds of want of jurisdiction on the part of the court and/or want of legal standing on the part of the applicants were true points of preliminary objection within the contemplation of procedural law and they were properly taken.

3. The first role of the court should be to uphold Constitutionalism and the sanctity of the Constitution. Such a role cannot be well performed by shutting the door of the court on the face of persons who seek to uphold the Constitution on the ground that such persons have no peculiarly personal stake in a matter which belongs to all.

4. The applicants therefore had locus standi to challenge the compliance of the Constitution of Kenya Review Act or any provision thereof with the Constitution. Regarding the invocation of the court’s jurisdiction under section 84 of the Constitution, the applicants having deposed in the affidavit in support of the summons that their fundamental rights had been curtailed, they had sufficiently brought themselves within the jurisdiction.

5. Regarding the justiciability of the Constitutional Review Process, the recommendations of the Constitution of Kenya Review Commission are not justiciable for it is a principle of administrative law that only decisions impacting on the rights of individuals (and not recommendations) are amenable to judicial review. Accordingly, the contents of the draft Bill prepared or to be prepared by Commission would not be justiciable as they would not be conferring or taking away any one’s rights.

6. However, this Court would not agree that the Review Process, being a process initiated, regulated and sheparded by Parliament, was beyond the scrutiny of courts. What Parliament did vide the Constitution of Kenya Review Act was to provide for and regulate the process of Constitutional Review and the foundation of such a prescription and regulation may be challenged on Constitutional grounds. Any alleged contravention of the Constitution for which there is a remedy is justiciable.

7. While the courts cannot usurp the legislative mandate of Parliament to make, amend, or repeal statutory law, they have power to adjudicate on any alleged inconsistency of any Act of Parliament or any provision thereof with the Constitution of Kenya. The doctrine of separation of powers does not take away the court’s power to declare when the Constitution has been violated by any legislation or section thereof.

8. The applicant’s prayers numbers 4 and 8 which asked the court to strike down certain sections of the Act as unconstitutional amounted to investing the court with a repealing power which it did not possess. The court could declare a provision unconstitutional but it could not strike it out. Until the offending provision is repealed by Parliament, it would remain in the statute book, impotent though it may be.

9. Any relief sought which does not involve the interpretation of the Constitution or the enforcement of fundamental rights would be misplaced in a constitutional court. Where what is complained of is the composition of a statutory body or the procedural provisions thereof or the mode and manner of the exercise of its power, without more, that matter belongs to the realm of judicial review under the special jurisdiction conferred by the court by order LII of the Civil Procedure Rules and it cannot be entertained in a constitutional court.

10. The 2nd respondent being the organ invested with corporate personality by the Act was the proper organ to sue in respect of matters concerning the Constitution of Kenya Review Process.

11. The court was not invested either by the Constitution or any statute with jurisdiction to give an advisory opinion or to make any recommendations to any one. The court’s business is to issue, in appropriate circumstances, orders, declarations of rights and decrees.

Preliminary objection upheld in respect of 11 prayers and overruled in respect of 7 prayers. Each party to bear its own costs.

Cases

1. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1968] EA 696

2. Coleman v Miller (1939) 307 US SC 433

3. Odinga, Raila v Hon Justice Majid Cockar High Court Miscellaneous Civil Application No 58 of 1997

4. Ruturi & Kenya Bankers Association v Minister for Finance [2001] EA 253

5. Nottinghamshire CC v Secretary of State for the Environment [1986] 1 All ER 199; [11986] AC 240; [1986] 2 WLR 1

6. British Railways Board v Pickin [1974] 1 All ER 609; [1974] AC 765; [1974] 2 WLR 208

7. Auditor General of Canada v Minister of Energy, Mines and Resources[1989] 2 SCR 49; 97 NR 241

8. Michuki & another v Attorney General & 2 others [2002] 1 KLR 498; [2003] 1 EA 188

9. Kesavananda v State of Kerala AIR 1973 SC 1461

Texts

1. Dicey, AV (1952) Introduction to the Study of the Law of the Constitution London: Macmillan and Co Ltd 9th Ed

2. Nwabueze, BO (1974) Presidentialism in Commonwealth Africa New York: St Martin’s Press

Statutes

1. Constitution of Kenya sections 1A; 3; 47; 47(5); 47(6); 62; 70; 78; 79; 80; 82; 83; 84; 123(1); 123(b)

2. Constitution of Kenya Review Act (cap 3A) sections 3; 5; 27(1)(b); 27(2)(c); 27(2)(d); 26(4); 26(7); 27(5); 27(6); 28(3); 28(4); 34

3. Civil Procedure Act (cap 21) section 3A

4. Civil Procedure Rules (cap 21 Sub Leg) order LIII

5. Constitution of India Article 368

International Instruments

Universal Declaration of Human Rights, 1948 Article 21

Advocates

Mr Kibe Mungai for the Applicants.

Mr Oraro and Mr Ougo for the 2nd Respondent.

Mr. Ndubi for the Law Society of Kenya, amicus curiae

Civil Practice & Procedure - setting aside orders - where the prayers sought are vague

Wamwere v Attorney General

High Court, at Nairobi March 3, 2004

Lenaola Ag J

Miscellaneous Civil Application No 224 of 2004

Judicial Review – mandamus – application for leave to institute orders for mandamus – conditions that must be shown by the applicant – guiding principles.

Affidavits – contents of an affidavit – requirement that affidavits must be restricted to matters known to the deponent – requirement of a verifying affidavit.

Evidence – documentary evidence – evidential value of newspaper reports.

The applicant, a member of Parliament, sought leave to apply for an order of mandamus to compel the Commissioner of Police to issue a statement assuring the public that certain material seized by the police from certain private premises was in safe custody; to release the names of persons implicated in an alleged bribery scandal and to hand over the materials to a Commission of Injury.

Held:

1. The applicant is required by order 53 rule 3 of the Criminal Procedure Rules to give notice to the Registrar accompanied by a verifying affidavit. The applicant in this matter did not attach the verifying affidavit which would make the application subject to dismissal. However the Court may invoke its powers and overlook the omission on the grounds that the matter is urgent and of great public importance.

2. In an application for leave to institute orders of mandamus the applicant must show to the satisfaction of the Court that

(i) the interest translates into a specific legal right; and

(ii) that the respondent has refused to perform a public duty which has amounted to an infringement of the legal right that the applicant has.

3. The applicant in this case did not show his personal interest in the suit neither did he establish the link between his constituents and the subject matter of the application.

4. The applicant needed to show his involvement in the proceedings complained of or some specific sufficient interest either personal to him or both personal and public.

5. The words used by the applicant such as awaiting at the behest of “and on” the direct instructions of my constituents are so general and so capable of such varied and wide interpretations that this court could not possibly see them as creating sufficient interest. Speculation cannot be the basis for seeking judicial orders.

6. The applicant must also show that the respondent, the Commissioner of Police or the Attorney General, or both of them have done what they ought not to have done or not done what they ought to have done.

7. The application cannot succeed unless it can be shown that there was wrongdoing on the part of the respondent.

8. The applicant stated in the supporting affidavit that he was reliably informed by certain unnamed persons that an unnamed person wants to destroy the tapes. For the application to succeed the applicant must show that the respondent himself wanted to destroy the tapes as the application was against him.

9. The Civil Procedure Rules order 18 rule 3 provides that an affidavit should be restricted to matters known to the affiant and where it is based on information, the sources and grounds thereof should be stated.

10. The Attorney General had been sued on behalf of the Commissioner of Police, yet no notice was given in accordance with section 13A (i) of the Government Proceedings Act which enjoins any party suing the Attorney General to give (30) thirty days notice of intention so to do.

11. The applicant could not seek leave that a public officer should be compelled to do something when there was no evidence of refusal or at the very least apparent refusal on the part of the public officer to do the thing. Even if such refusal had been shown it must also be shown to be unlawful.

12. Newspaper reports have no evidential value and are not authoritative enough for courts to rely on them as the sole basis for determining a matter.

Cases

1. Kariuki, Lawrence Nginyo v County Council of Kiambu and another Miscellaneous Application No 1446 of 1994

2. Republic v Minister for Information and Broadcasting and Ahmed Jibril Ex parte East African Television Network Ltd (EATN) Misc Civil Application No 403 of 1998

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XVIII rule 3, order LIII rule 3

2. Government Proceedings Act (cap 40) section 13A(1)

Advocates

Mr Kinuthia for the Applicant

Civil practice & procedure - Transfer of suits - juridsdiction by magistrates under the magistrates act. Peacuniary vis a vis Geographical jurisdiction