The Supreme Court has no jurisdiction to entertain an application filed without the existence of a pending petition of appeal or reference before the court.

George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) [2021] eKLR

Misc Application 7 (E011) of 2021

Supreme Court of Kenya

MK Koome, CJ & P, PM Mwilu, DCJ & VP, SC Wanjala, NS Ndungu & W Ouko, SCJJ

August 6, 2021

Reported by Beryl Ikamari

Civil Practice and Procedure - stay of execution - application for a stay of execution at the Supreme Court - principles governing the grant of a stay of execution - whether the Supreme Court would grant a stay of execution of a Court of Appeal judgment.

Jurisdiction - jurisdiction of the Supreme Court - jurisdiction to hear and determine an application - where the applicant had not filed a notice of motion and a pending petition of appeal was not in existence - whether the Supreme Court could exercise jurisdiction and entertain the application - Supreme Court Rules 2020, rule 31(2).

Brief facts

The dispute related to a parcel of land along Ngong Road, Nairobi. In 1985, the parties entered into an agreement wherein the applicant was to purchase the land from the respondent (deceased) for a consideration of Kshs. 2, 000, 000. After making partial payments, the applicant took possession of the land. The dispute was about whether the applicant paid the full purchase price. While the applicant claimed that he had paid the full price, the respondent claimed that there was a balance of Kshs. 500, 000 and that the failure by the applicant to complete the transaction amounted to a repudiation of the agreement.

The applicant filed a suit at the Environment and Land Court seeking orders for the transfer of the suit premises to him as the purchaser. The respondent counterclaimed Kshs. 25,020,000 being rent for the period 1986 to 2011 and Kshs. 200,000 per month untill judgment was entered. The Environment and Land Court dismissed the counterclaim and ordered for the specific performance of the sale agreement.

The Environment and Land Court decision was overturned in an appeal by the respondent at the Court of Appeal. The Court of Appeal declared that the applicant had breached the agreement by failing to pay the full purchase price. The Court of Appeal also made the finding that time was of the essence in the parties' agreement and that the applicant's failure to pay the full purchase price despite being granted many opportunities to do so, disentitled him from the benefit of an order of specific performance.

The applicant filed a notice of motion indicating an intention to challenge the entire Court of Appeal judgment but he withdrew it and filed a notice of motion at the Court of Appeal for a review of the judgment. The review application was dismissed. Before the Court of Appeal, the applicant sought certification that the appeal raised matters of general public importance but before that application could be determined, he filed an application for a stay of execution of the Court of Appeal judgment.

Issues

1. What were the principles governing the grant of a stay of execution at the Supreme Court?
2. Whether the Supreme Court had jurisdiction to hear and determine an application that was filed without the filing of a notice of appeal and the existence of a pending petition of appeal or reference before the Supreme Court.

Held

1. There were no specific provisions relating to an application for a stay of execution at the Supreme Court. The Supreme Court Rules generally provided that an interlocutory application could be brought by way of notice of motion and it had to be filed together with written submission.
2. The principles governing the grant of a stay of execution were that the applicant had to demonstrate that the appeal was arguable and not frivolous, that if the stay was not granted the appeal would be rendered nugatory and that it was in public interest to grant the order of stay.
3. In determining whether the appeal was arguable, the court would not interrogate the merits of the appeal or make definitive findings of fact or law. The appeal did not have to be one that had to succeed but it had to be one that could be argued fully.
4. The concern on whether the failure to grant a stay would render the appeal nugatory, was whether if what was sought to be stayed was to happen, it would be reversible and if it was not reversible, whether it could be compensated by an award of damages.
5. Under rule 36 of the Supreme Court Rules, the Supreme Court's jurisdiction was invoked by filing a notice of appeal within fourteen days from the date of judgment or ruling which was the subject of appeal. The notice of appeal that would have allowed the Supreme Court to exercise jurisdiction was withdrawn.
6. Once a notice of appeal had been filed, an appeal could then be instituted by lodging, among others, a petition of appeal. No interlocutory application could be brought before a petition was lodged. An interlocutory application had to be based on an existing petition or reference.
7. An averment by the respondent to the effect that Civil Application No. 14 of 2020 for the very same reliefs as those sought in the application was also pending before the Court of Appeal, had not been controverted.
8. The court lacked jurisdiction to hear and determine the application as there was no notice of appeal or pending petition of appeal, which would allow the application to be filed. In addition, there was a parallel application before the Court of Appeal which sought similar reliefs.

Application dismissed.

Nature of directions that the Supreme Court could issue about the consideration of an application for a stay of execution.

Director of Public Prosecutions v Chrysanthus Barnabus Okemo & 4 others [2021] eKLR

Misc. Application 22 of 2020

Supreme Court of Kenya

MK Koome, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ

August 6, 2021

Reported by Beryl Ikamari

Civil Practice and Procedure – directions – issuance of directions by the Supreme Court – directions about the consideration of an application for a stay of execution – nature of directions that the Supreme Court could issue.

Brief facts

The Court of Appeal declared that extradition proceedings instituted before the Magistrate's Court against the 1^st and 2^nd respondent by the applicant (the Director of Public Prosecutions) were without the Attorney General's authority and were therefore a nullity in law. The Court of Appeal held that it was the Attorney General that had power to commence and conduct such proceedings. The applicant filed a Petition of Appeal No 14 of 2020 with leave of court for purposes of challenging the Court of Appeal's decision. The applicant also filed a notice of motion application for a stay of execution of the Court of Appeal decision.

Issues

What directions could the Supreme Court give with respect to the consideration of an application for a stay of execution?

Held

1. The application was listed for consideration on the basis of written submissions under rule 31 of the Supreme Court Rules. Considering the nature of the dispute and the fact that the appeal had been listed for hearing on October 5, 2021 and in order to save judicial resources, the court directed that: -

1. The notice of motion dated August 12, 2020 was taken out of the hearing list.
2. The notice of motion be listed for further directions during the hearing of Petition No. 14 of 2020 on October 5, 2021.
3. There were no orders as to costs.

Whether the provisions of article 47 of the Constitution on the right to fair administrative action could be applied retrospectively

Kiluwa Limited & another v Business Liaison Company Limited & 3 others [2021] eKLR

Petition No. 14 of 2017

Supreme Court of Kenya

P.M Mwilu, DCJ & V-P; M.K Ibrahim, S.C Wanjala, S.N Njoki & I.  Lenaola, SCJJ

August 6, 2021

Reported by Chelimo Eunice

Constitutional Law – constitutional provisions - interpretation of constitutional provisions – interpretation of article 47 of the Constitution on the right to fair administrative action – whether the provisions of article 47 of the Constitution could require the further input of the legislature so as to attain prescriptive force – where the trial court relied on the provision of article 47 of the Constitution before the enactment of a legislation to give effect to the right to fair administrative action as envisaged in article 47(3) of the Constitution - whether in the absence of legislation, the High Court was divested of jurisdiction to review administrative action - retrospective or retroactive application of constitutional provisions - whether the provisions of article 47 of the Constitution could be applied retrospectively – Constitution of Kenya, 2010, articles 20(3) & 47.

Land Law – land tenure – classification of land – public land – what amounted to public land – whether un-alienated government land was public land – whether a foreshore felt within the category of a public land – whether any right to a foreshore would be conferred to a private entity – whether the government or a private entity could interfere with or limit the enjoyment of a public easement through acts of commission or omission - Constitution of Kenya, 2010, article 62; Survey Act, section 45; Survey (Amendments) Regulations, 1994, regulation 110; Government Lands Act (repealed), section 82.

Brief facts

The petitioners challenged the judgment and orders of the Court of Appeal delivered on November 11, 2016. The dispute revolved around three first-row beach adjoining three pieces of land (suit lands). By a constitutional petition lodged at the High Court, the appellants sought numerous declaratory, judicial review and injunctive orders against the respondents. It was the appellants’ claim, among others, that initially, between the first-row beach plots and the Indian Ocean’s high-water mark, there was a strip of land that was reserved for public use (reserve land). That the 3^rd respondent illegally demarcated from the reserve land and granted title to the 1^st respondent as a first allottee for a term of 99 years. That in the process of consolidating various parcels of land owned by the 2^nd respondent, the boundary of the consolidated plot was extended from its original location which resulted in the encroachment of a portion of the reserve land. They claimed that such actions were unlawful and a violation of their right to property and unrestricted access to the Indian Ocean sandy beach through the reserve land. By a decision delivered on October 13, 2015, the High Court allowed the petition.

Aggrieved, the 1^st and 2^nd respondents appealed to the Court of Appeal arguing, among others, that all the transfers affecting suit properties were commenced and concluded between 1989 – 1992 while the petition was filed over 20 years later, and the High Court Judge therefore erred in applying article 47(1) and (3) of the Constitution while failing to appreciate that the same was forward looking and not retrospective in nature. In a judgment delivered on November 11, 2016, the Court of Appeal allowed the appeal with costs and set aside the High Court’s decision and orders.

Dissatisfied by the Court of Appeal’s judgment, the appellants lodged the instant appeal. They challenged, among others, the Appellate Court’s finding that article 47 of the Constitution could not be applied retrospectively. They also urged that the Appellate Court failed to appreciate that there was sufficient evidence adduced showing that the reserve land was public land which was incapable of alienation. The respondents opposed the appeal challenging, among others, the jurisdiction of the Supreme Court to determine the appeal. They argued that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the 2010 Constitution and that the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the Commencement of the 2010 Constitution. They also submitted that the suit properties were un-alienated government land pursuant to which they were allocated and accused the appellants of unreasonable delay in bringing a claim against them.

Issues

1. Whether the provisions of article 47 of the Constitution on the right to fair administrative action could be applied retrospectively.
2. Whether in the absence of legislation giving effect to the right to fair administrative action, the High Court was divested of jurisdiction to review administrative action.
3. What amounted to public land?
4. Whether un-alienated government land was public land.
5. Whether a foreshore felt within the category of a public land.
6. Whether any right to a foreshore would be conferred to a private entity.
7. Whether the government or a private entity could interfere with or limit the enjoyment of a public easement through acts of commission or omission.

Held

1. The arguments by the respondents when challenging the jurisdiction of the Supreme Court to determine the appeal were baffling for two reasons. First, the jurisdiction of the High Court was never challenged at the Court of Appeal, nor was the issue raised in any manner at the two superior courts. Secondly, the basis upon which the jurisdiction of the Supreme Court was being impugned was not borne out of fact, in that, the dispute before the court had never been finalized by the Court of Appeal before the commencement of the Constitution. The judgment of the Court of Appeal which gave rise to the appeal was delivered on November 11, 2016. That being the case, the Supreme Court was properly seized with jurisdiction to entertain and determine the appeal.
2. Although the respondents relied on the Supreme Court’s decision in the case of Samuel Kamau Macharia v. Kenya Commercial Bank [2012] eKLR (Macharia case) to argue that the Constitution did not apply retrospectively, a clear reading of the court’s pronouncement left no doubt that the court did not out-rightly rule out the retrospective application of the Constitution. The court, however, cautioned that where the language of a particular provision in the Constitution did not contain even a whiff of retrospectivity, then such provision could not apply retroactively. Noteworthy, the court in other cases had gone ahead to identify a number of provisions in the Constitution which it considered relevant to the dispute before it, notwithstanding the fact that the questions before it had arisen out of a set of circumstances that had long crystallized before the promulgation of the Constitution. Such provisions were considered to be both backward and forward looking.
3. Article 47 of the Constitution was a Bill of Rights provision which was stated in deliberate and clear normative terms. It set out clear and un-ambiguous entitlements within the language of the Bill of Rights. They were expressed in normative terms as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. Contrary to the holding by the Court of Appeal, those were substantive entitlements whose enjoyment was not intended to be suspended by article 47(3) of the Constitution. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution. The supreme law required that such legislation provided for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action was already provided for in article 47(1) of the Constitution, being expedition, efficiency, lawfulness, reasonableness and procedural fairness. The effect of sub-article 3 was therefore to perfect the enjoyment of those rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action.
4. In that regard, the absence of legislation did not render a court helpless given the interpretative refuge afforded by article 20 (3) of the Constitution. Thus, the High Court correctly applied article 47 of the Constitution in addressing the original claim.
5. The assertions by both parties regarding the dates of completion of the transfer of the suit lands and the commencement of the erection of the wall had not been factually controverted. For a party to be time-barred from litigating its claim, such limitation of time had to be stated in the Constitution, statute or as a principle of common law. To be successfully raised against a litigant, a court had to determine when the time started running. In other words, the question as to when the cause of action arose had to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor were they evident on the face of the Appellate Court’s conclusions. It was not lost to the court that the gravamen of the appellants’ grievance was the allocation of the disputed land by the 3^rd respondent to the 1^st and 2^nd respondents and consequent erection of the wall thereon by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. Thus, there was no basis upon which the appellants could be said to have slept on their rights.
6. The status of the suit properties could only be determined by an examination of the relevant provisions of the Constitution and applicable statutes. Towards that end, article 62 (1) (a) and (i) provided that public land was inter alia, a land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date and all land between the high and low water marks.
7. Pursuant to section 45 of the Survey Act, the Survey (Amendments) Regulations 1994, were enacted. Regulation 110 thereof provided that coastal offshore reservation where un-alienated government land fronting on the area coast was being surveyed for alienation, a strip of land not less than 60 metres in width could normally be reserved above the high-water mark for government purposes provided that, if the interests of development require, the Minister would direct that the width of that reservation be less, than 60 metres in special cases.
8. Section 82 of the repealed Government Lands Act provided that a conveyance, lease or license under it ought not, unless otherwise expressly provided therein, confer any right to the foreshore. Therefore, un-alienated government land was public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). That notwithstanding the fact that the expression public land only came to the fore with the promulgation of the 2010 Constitution.
9. Article 62 of the Constitution clearly delimited the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of public tenure. The repealed Constitution used the term government instead of public to define such lands. Therefore, it was incorrect for the respondents to assert that the lands in question were un-alienated government land but not public land. It was even more inaccurate to argue that the said parcels had never been public land. Un-alienated government land remained public until it was privatized through allocation to individuals or other private entities.
10. Secondly, to the extent that the assertion by the appellants remained un-controverted, the additional portion of land which was allocated to the 2^nd and 1^st respondents was hived off the coastal foreshore by the 3^rd respondent. Such foreshore consisted of land lying between the low-water mark and the high-water mark plus an additional 60 metres above the high-water mark within the meaning of regulation 110 (1) of the Survey Regulations of 1994. Such land was reserved for government/public use.
11. Although article 62 (1) (l) of the Constitution made no reference to the 60 metres above the high-water mark, only limiting itself to the language of the high and low water mark. Article 62 (1) (n) of the Constitution provided for another category of public land as being any other land declared to be public land by an Act of Parliament in force at the effective date or enacted after the effective date, hence the relevance of regulation 110 (1) of the Survey Regulations of 1994 which was enacted before the effective date pursuant to section 45 of the Survey Act. Further, section 82 of the Government Lands Act (repealed) which predated the Survey Act, and under which the suit lands fell as un-alienated government land, out-rightly forbade the conferment of any right to the foreshore by a conveyance, lease or license.
12. Thirdly, the right of access to the ocean through the foreshore by members of the public or any other owner of land along the coast, being the appellants, whether for economic, recreational or aesthetic reasons, was a public right secured by a public easement. Such right was not acquired through a private treaty. It followed that a person or private entity who had encroached on the foreshore could not interfere with or limit the enjoyment of a public easement through acts of commission or omission. On the other hand, the government would interfere with or limit such easement only in promotion or protection of the public interest as guaranteed by the Constitution and the law.

Appeal allowed with costs being borne by the 1^st and 2^nd respondents.

Orders

1. Declaration issued that the 3^rd respondent acted illegally by allocating land parcel No. MN/1/5901 to the 2^nd respondent, which land he had partly curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110 (1) of the Survey Regulations of 1994.
2. Declaration issued that the 3^rd respondent acted illegally by allocating land parcel No. MN/1/5902 to the 1^st respondent, which land he had curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110 (1) of the Survey Regulations of 1994.
3. Declaration issued that the actions of the 3^rd respondent violated the appellants’ right to fair administrative action as guaranteed by article 47 of the Constitution.
4. Judgment of the Court of Appeal dated November 11, 2016 was set aside.
5. Judgment of the High Court dated October 13, 2015 was affirmed only to the extent consistent with and limited to the court’s declarations.
6. The 1^st and 2^nd respondents ordered to take immediate action to remove the offending wall and any other structures that they would have caused to be erected on land parcels No. MN/1/5901 and MN/1/5902.