The difference in registration mechanism for engineers and engineering technologists and technicians.

Martin Wanderi & 106 others v Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties) [2020] eKLR

Application No. 39 of 2019

Supreme Court of Kenya

PM Mwilu (DCJ & VP), MK Ibrahim, SC Wanjala, NS Ndungu and I Lenaola, SCJJ

May 15, 2020

Reported by Chelimo Eunice

 Jurisdiction – jurisdiction of the Supreme Court - jurisdiction of the Supreme Court to review its judgments, orders and rulings – scope of the Supreme Court’s power to review its decisions – circumstances which the Supreme Court could review its decisions – application seeking orders for Supreme Court to review its judgment which compelled the Engineers Registration Board to register persons who did not qualify as engineers to be registered as such – where the existence of the Engineering Technology Act was not brought to the attention of the court at the time it rendered the impugned judgment - Supreme Court Act, section 21 (4); Supreme Court Rules, rule 20 (4).

Statutes – interpretation of statutory provisions – Engineers Registration Act and Engineering Technology Act - interpretation of section 11 of the Engineers Registration Act on registration of engineers vis-à-vis section 15 of Engineering Technology Act on registration of engineering technologists or technicians – whether there  was a difference in registration mechanism for engineers and engineering technologists and technicians – whether the Engineers Registration Board had the mandate to register engineering technologists and technicians – whether engineering technologists and technicians qualified to be registered under the Engineers Registration Act - Engineers Registration Act, sections 2 and 11; Engineering Technology Act, sections 2 and 15.

Brief facts

The Engineers Registration Board (the applicant) sought a review of the court’s judgment dated July 17, 2018 directing it to register the respondents as engineers under the Engineers Registration Act, arguing that in compliance with the impugned judgment, the applicant took various steps, but in the process realized that some of the respondents did not graduate with engineering degrees but had bachelor of industrial technology degrees which made it difficult to register them as graduate engineers without breaching the law which limited registration of graduate engineers to persons holding engineering degrees. Further, that persons who held bachelor of industrial technology degrees and were therefore technologists and technicians were registered under the Engineering Technology Act (ETA) by the Kenya Engineering Technology Registration Board and not itself, hence the need for the court to review its judgment and remove the anomaly noted in the implementation of the same.

The respondents opposed the application arguing, among others, that it was filed inordinately, that the application was misguided and did not meet the threshold set out in rule 20(4) of the Supreme Court Rules (Rules) and that all the affected parties had been registered as graduate engineers and the impugned judgment had been fully implemented meaning that there was nothing left to review.

Issues

1. Whether the Supreme Court had jurisdiction to review its decisions.
2. What were the circumstances under which the Supreme Court could review its decisions?
3. What was the difference in registration mechanism for engineers and engineering technologists and technicians?
4. Whether engineering technologists and technicians qualified to be registered under the Engineers Registration Act.

Relevant provisions of the Law

Engineers Registration Act:

Section 11;

11. (1) Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered engineer if he is—

(b) a person who—

 (i) is the holder of a degree, diploma or licence of a university or school of engineering which may be recognized for the time being by the Board as furnishing sufficient evidence of an adequate academic training in engineering; and

 (5) Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee to be registered under this Act and to have his name entered in the register as a registered technician engineer if—

 (a) he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training; and

Engineering Technology Act:

Section 15;

 15. (1) A person may be registered in the engineering technology profession as a—

 (a) professional, which includes –

 (i) a professional engineering technologist; or

          (ii) a certified engineering technician.

Supreme Court Rules:

Rule 20(4);

The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions.

Held

1. Rule 20(4) of the Supreme Court Rules (Rules) gave the Supreme Court power, in circumstances it considered exceptional, to review any of its decisions. Unlike section 21(4) of the Supreme Court Act, rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon the Supreme Court jurisdiction or powers, to review its own judgments, or decisions beyond the confines of the slip rule.
2. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, conferred upon the Supreme Court, powers to sit on appeal over its own decisions or to review such decisions.  That being the case, no rule of the Supreme Court, not even rule 20(4) of the Supreme Court Rules as worded, could confer upon the Supreme Court jurisdiction to review its own decisions. If that were the intent of rule 20(4) of the Rules, then the said rule would be of doubtful constitutional validity.  Therefore, rule 20(4) of the Rules was not capable of conferring upon the Supreme Court powers to review its decisions beyond the confines of the Slip Rule, as embodied in section 21(4) of the Supreme Court Act.  At best, that rule could only be understood to be echoing section 21(4) of the Supreme Court Act.
3. The Supreme Court, being the final court in Kenya, had no jurisdiction to sit on appeal over, or to review its own judgments, rulings or orders, save in the manner contemplated by section 21(4) of the Supreme Court Act.  It became functus officio once it had delivered judgment or made a final decision.
4. Nonetheless, there were situations so grave and exceptional that could arise, that without the Supreme Court’s intervention, could seriously distort its ability to do justice. Litigation had to come to an end, but it ought not come to an end in the face of an absurdity. The Supreme Court was the final Court, but most importantly, it was a final court of justice.  That being the case, it was clothed with inherent powers which it could invoke, if circumstances so demanded, to do justice.  The Constitution from which the Supreme Court, and indeed all courts derived their legitimacy, decreed that justice had to done to all.
5. Taking into account the edicts and values embodied in chapter 10 of the Constitution, as a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, save in the manner contemplated by section 21(4) of the Supreme Court Act.  However, in exercise of its inherent powers, it could, upon application by a party, or on its own motion, review any of its judgments, ruling or orders, in exceptional circumstances, so as to meet the ends of justice.  Such circumstances were limited to situations where:

 i) the judgment, ruling, or order was obtained, by fraud or deceit;

 ii) the judgment, ruling, or order was a nullity, such as, when the court itself was not competent;

 iii) the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;

 iv) the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.

6. It had not been claimed by the applicant that the impugned judgment was obtained by fraud or deceit.  Neither had it been termed a nullity nor that it was made in the mistaken belief that the parties had consented thereto. 
7. Section 11 of the Engineers Registration Act (ERA) dealt with registration of engineers. Section 2 of the ERA defined engineering as the creative application of scientific principles to design or develop structures, machines, apparatus, or manufacturing processes, or works utilizing them singly or in combination or to construct or operate the same with full cognizance of their design or to forecast their behavior under specific operating conditions or aspects of intended function, economics of operation and safety to life and property.      
8. Section 15 of the Engineering Technology Act (ETA) on the other hand dealt with the registration of engineering technologists or technicians. Section 2 of ETA defined engineering technology as part of the engineering profession in which knowledge of applied mathematical and natural science gained by higher education, experience and practice was devoted to application of engineering principles and the implementation of technology education for the professional focusing primarily on analysing, applying, implementing and improving existing technologies and was aimed at preparing graduates for the purpose of engineering technology practices closest to the product improvement, manufacturing and engineering operational functions.
9. The two professions, while related, were different.  Engineering technology focused on the applied and practical application of engineering principles whereas engineers emphasized the theoretical aspects of mathematical scientific and engineering principles.  That partly explained why the degrees conferred on each were different so was the registration of graduates on qualification.
10. There was no issue with implementation of the impugned judgment and orders in as far as graduate engineers were concerned because the applicant had the jurisdiction and mandate to do so.
11. In the impugned judgment, the dichotomy between engineering technologists and engineers was not addressed at all. All the respondents were addressed as engineers seeking registration as graduate engineers under the ERA and the court’s orders were specific in that regard. 
12. To allow registration of engineering technologists and technicians under the ERA by judicial fiat would not be in the interests of justice.  The legislature in creating a separate registration mechanism for such professionals did not also intend that a court, without any technical expertise, would ignore the laid down procedure for registration and order a professional entity, such as the applicant, to flout the law in the conduct of its affairs.  In any event, nowhere in the impugned judgment was the applicant ordered to do so.  Court’s orders were limited to the registration of graduate engineers and not engineering technologists or technicians.  The existence of  ETA was not brought to the attention of the instant court at the time it rendered the impugned judgment and how its enactment affected implementation of section 11 of ETA which was the operative law at all material times. That non-disclosure was an important consideration on whether to grant a review or not.
13. An exceptional circumstance had arisen which required that the impugned judgment, in the relevant part, had to be reviewed as prayed.  All the petitioners and interested parties as were engineering technologists and technicians could not be the beneficiaries of some orders in the impugned judgment. Those orders were reviewed to exclude those persons and the said orders were limited to the benefit of graduate engineers only to be registered under the ERA.  That was because the applicant was not to blame for the position that those persons found themselves in.
14. The applicant had undertaken various actions in a bid to implement the impugned judgment until it hit a wall. Those actions took time and so the delay in filing the instant application was understandable and excusable.
15. The applicant’s invitation for the court to expand the principles for review of the Supreme Court judgments to include apparent errors of law and of fact and inability to implement judgment without breaching law and public interest would not be allowed. That was because the issue relating to the import of the ERA as read with the Engineering Technology Registration Act as well as double registration under existing statutes was never the subject of determination in the impugned judgment.  Had the court addressed those issues, which were never disclosed to it, the impugned judgment would have been significantly different. That was an exceptional circumstance necessitating a review of the impugned judgment. The already laid down principles applied to the instant application and there was no reason to depart from any other principle nor create additional principles for review of the Supreme Court’s judgments.
16. No evidence proving that the impugned judgment had already been implemented, hence the argument that there was nothing to review could not stand. In any event, the 2^nd interested parties did not participate in the instant application to authenticate that claim, hence that issue would not be addressed.

Application allowed with no orders as to costs.

Orders:

 i) Order no. (b) (3) in the judgment dated July 17, 2018 was reviewed as followed:

 “An order of mandamus do hereby issue directing the Engineers Registration Board to register such petitioners and 2^nd interested parties, as are qualified as engineers, under the Engineers Act forthwith. Such petitioners and 2^nd interested parties as are Engineering Technologists and Technicians shall be registered as Technologists and Technicians by the Engineering Technologist Registration Board and the Engineers Registration Board shall transmit this order to that Board for implementation forthwith.  In default, the said petitioners and interested parties shall be at liberty to apply to this court for any appropriate orders for enforcement thereof”.

ii) Such respondents as were engineering technologists and technicians would not be the beneficiaries of orders nos.(b) 1, 2, and 4 as well as (c) of the judgment dated July 17, 2018.

How a failure between the Senate and the National Assembly to agree on a Division of Revenue Bill would be resolved.

Council of Governors & 47 others v Attorney General & 3 others (Interested Parties); Katiba Institute & 2 others (Amicus Curiae)

Reference No 3 of 2019

Supreme Court of Kenya

DK Maraga (CJ & P), MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

May 15, 2020

Reported by Beryl Ikamari

Constitutional Law - public finance – revenue allocation - role of the Commission on Revenue Allocation (CRA) - nature of the recommendations of the CRA in the legislative process relating to the annual Division of Revenue Bill and the Appropriation Bill - whether the recommendations of the CRA in the legislative process were binding on both the National Assembly and Senate - Constitution of Kenya 2010, articles 203(1), 204(4), 205, 216(1) and 218.

Constitutional Law - legislature - role of the Senate in the passage of a Division of Revenue Bill - where the National Assembly and the Senate failed to agree on a Division of Revenue Bill - whether the High Court could be asked to give orders whose basis was the recommendations of the Commission on Revenue Allocation on the proposed legislation and whether Parliament would be dissolved - Constitution of Kenya 2010, articles 222 and 261(7).

Constitutional Law - interpretation of the Constitution – transfer of equitable shares of revenue to county governments - time within which money should be released from the National Treasury to the county governments for each financial year - meaning of the constitutional requirement that the money should be released without undue delay - whether the court could set a precise timeline within which the money should be released - Constitution of Kenya 2010, article 219.

Constitutional Law - public finance - division and allocation of revenue Bills - whether the National Assembly could enact an Appropriation Act before enacting a Division of Revenue Act - Constitution of Kenya 2010, articles 218(1) and 221; Public Finance Management Act, No 18 of 2012, section 39.

Brief facts

The applicants were the Council of County Governors and all the 47 County Governments of Kenya. They sought an advisory opinion pursuant to article 163(6) of the Constitution from the Supreme Court with respect to four main issues. All the issues revolved around division of revenue.

Issues

1. Whether the recommendations of the Commission on Revenue Allocation were binding on both Senate and the National Assembly when they deliberated on the Division of Revenue Bill and the Appropriation Bill.
2. What was the effect of a failure between the Senate and the National Assembly to agree on a Division of Revenue Bill?
3. Whether there ought to be precise timelines within which the National Government should release equitable shares of revenue to county governments.
4. Whether the National Assembly could enact an Appropriation Act before enacting a Division of Revenue Act.

Held

1. The Commission on Revenue Allocation (CRA) was established under article 215 (1) of the Constitution. Under article 216(1) of the Constitution, its principal function was to make recommendations for the equitable sharing of revenue raised by the National Government between the national and county governments and among the county governments.
2. The term recommendation as used in article 216 of the Constitution should first and foremost be given its literal and natural meaning. A recommendation was a suggestion or proposal for a certain cause of action. Such a proposal would not ordinarily bind the person or entity that it addressed. However, categories of recommendation differ in their meaning, nature and effect, depending on the context in which they were deployed.
3. It would be inappropriate to categorize the recommendations of the CRA on the sharing of national revenue as mere suggestions or proposals. The recommendations had to be accorded serious consideration by both Houses while debating the Division of Revenue Bill.
4. A reading of articles 205, 204(4) and 218 of the Constitution left no doubt that the Constitution placed a very high premium on the recommendations of the CRA. Once those recommendations were tabled in Parliament, they had to be accorded due consideration before voting took place in either of the Houses, on the Division of Revenue Bill and the County Allocation of Revenue Bill. Therefore, if either of the two Houses passed a Bill envisaged under article 205 of the Constitution without considering the recommendations of the CRA, the resultant legislation would be unconstitutional.
5. Article 218(2) of the Constitution provided that both the Division of Revenue Bill and the County Allocation of Revenue Bill, had to be accompanied by a memorandum setting out, inter alia, a summary of any significant deviation from the Commission on Revenue Allocation’s recommendations, with an explanation for each such deviation. Therefore, there was no doubt that Parliament could deviate from the recommendations of the CRA while debating any of the two revenue sharing Bills. Not every deviation from those recommendations had to be explained; only the significant deviations had to be explained.
6. The recommendations of the CRA were not binding on the National Assembly or the Senate. However, the two Houses could not ignore or casually deal with the recommendations.
7. The Constitution ensured that Parliament would benefit from the technical insights of the CRA when debating revenue sharing and allocation Bills by requiring Parliament to consider the CRA's recommendations without being bound. That ensured that the entities involved in the budget making process were able to critically apply their collective mind to the process. Parliament and the CRA could fail to agree on revenue allocation but they had to be guided by the objective criteria set in article 203(1) of the Constitution.
8. In the Matter of the Speaker of Senate & Another v the Attorney General & Another & 4 Others; Ref. No 2 of 2013, the Supreme Court opined that the Senate had a clear role to play, in the processing of the Division of Revenue Bill. The Speaker of the National Assembly invited the court to depart from that decision in order to clear an impasse between Senate and the National Assembly on a Division of Revenue Bill by excluding Senate from the process of passing the Bill into law. For the Supreme Court to depart from a prior decision, there had to be a clear and well-reasoned justification.
9. A party that wanted the Supreme Court to depart from a previous decision ought to ideally make a formal application in which he stated the reasons in justification for such a motion. The application would have to be served on all respondents who would then respond to it. None of the parties were given an opportunity to respond to the invitation by the Speaker of the National Assembly for the court to depart from its previous decision and an application was not made. The court was moved in a perfunctory manner and it was unable to consider the merits of the Speaker's invitation in circumstances where the other parties were not heard on the same.
10. The preposition that in order to resolve the impasse, an application be made to the High Court under article 165 (3) (d), for orders compelling the National Assembly to provide for the equitable share of revenue due to the counties on the basis of the recommendations by the Commission on Revenue Allocation, was untenable for two reasons:-

1. adopting such a course of action would defeat the finding that the recommendations of the CRA were not binding; and,
2. it would fundamentally shift the revenue allocation function from the legislature to the judiciary, thus radically upsetting the doctrine of separation of powers.
11. The preposition of using the Revenue Allocation Act of the previous Financial Year as a fallback position to solve the impasse appeared practical and logical but it did not have its basis on any principle or provision of the Constitution.
12. The Constitution contemplated a scenario where the National Government would be unable to access funding due to the absence of enabling legislation. Article 222 of the Constitution provided that the National Assembly had power to authorise the withdrawal of money from the Consolidated Fund. It would be for purposes of meeting expenditure necessary to carry on the services of the National Government during that year until such time as the Appropriation Act was assented to. The withdrawal would not exceed one-half of the amount included in the estimates as expenditure for that year that had been tabled in the National Assembly and be included under separate votes for the several services in respect of which they were withdrawn, in the Appropriation Act.
13. While the withdrawal of money for the purpose of the National Government expenditure under article 222 of the Constitution was based on a percentage of the estimates of expenditure for that year, the same method could not apply to the County Government, since the estimates did not include the equitable revenue share due to counties. Logic would require that the percentage of the money to be withdrawn would be based on the Division of Revenue Bill; yet this would be legally untenable, given the fact that the Bill, was not only the subject matter of controversy, but was also yet to pass into law.  In the circumstances, in the event of an impasse, the percentage of the money to be withdrawn would be based on the equitable allocation to counties in the Division of Revenue Act of the preceding financial year. The legislature should pass legislation to give normative form to that arrangement.
14. Legislation for the implementation of the national budget and allocation of revenue to both the National Government and county governments had specific and rigid timelines within which they should be enacted because they operationalized the financial existence of the country. Failure by Parliament to discharge such a critical legislative function, in the absence of an emergency, or any other disaster that disrupted parliamentary business, would not only violate the Constitution, but also expose the country to existential danger.  Such a Parliament had to be considered to have run its course and be dissolved.
15. Under article 261(7) of the Constitution, Parliament could be dissolved for failure to enact certain legislation within a specific period of time. That provision would not only apply to legislation listed in the Fifth Schedule to the Constitution but also to other legislation such as the Division of Revenue Act. Failure to enact such legislation by Parliament, in the absence of an emergency or other disaster, would invite the enforcement of sanctions envisaged under article 261 of the Constitution. Therefore, if Parliament failed to agree on division of revenue during a second mediation under article 113 of the Constitution, any person could petition the High Court for a declaration to the effect that Parliament had violated the Constitution.
16. Under article 219 of the Constitution, a county’s share of revenue raised by the National Government had to be transferred to the county without undue delay and without deduction, except when the transfer had been stopped under article 225 of the Constitution. Unless there were timelines set by the Constitution or the law, a court had to consider each case on its own merits to determine whether there had been undue delay in the performance of an act by the concerned entity.
17. By not prescribing a specific time limit, article 219 of the Constitution allowed for a degree of flexibility on the part of the National Treasury in effecting monetary transfers to counties. The court was not the appropriate forum for a determination on precisely when monies due to counties should actually be transferred to the counties.  However, the fact that the Constitution had not prescribed a specific timeline did not give the National Treasury the latitude to capriciously decide when to disburse funds to the counties.
18. Counties operated within rigid budgetary cycles and any delay in releasing funds to counties had to be justifiable and explained in good time. Releasing funds at a time when they could not be realistically utilized in the implementation of county projects in accordance with their budgets constituted a violation of the Constitution.
19. A reading of article 218(1) and 221 of the Constitution did not provide for which of the two bills, namely the Division of Revenue Bill and the Appropriation Bill, should be enacted before the other. It was clear that once enacted the Division of Revenue Act divided the revenue raised nationally between the two levels of Government while the Appropriation Act authorized the withdrawal and application of monies from the Consolidated Fund by the National Government.
20. Both the Division of Revenue Bill and the County Allocation of Revenue Bill were to be introduced in Parliament at least two months before the end of each financial year. The estimates of revenue and expenditure of the National Government were also to be submitted to the National Assembly, at least two months before the end of each financial year. That sequence of events would lead to the following conclusions:-

1. The Appropriation Bill was incapable of being introduced unless the estimates of revenue and expenditure had been approved and passed by the House.
2. The Appropriation Bill came into life after the Division of Revenue Bill since the latter would already have been introduced into Parliament at least two months before the end of the financial year.
3. The estimates of revenue and expenditure had to logically be based on or at the very least be in tandem with, the equitable share of revenue due to the National Government as provided for in the Division of Revenue Bill.
4. The Appropriation Act had to be based on the equitable share of revenue due to the National Government as provided in the Division of Revenue Act.
21. In an ideal situation, the enactment of an Appropriation Act could not precede the enactment of a Division of Revenue Act. The Cabinet Secretary responsible for finance would submit the estimates of revenue and expenditure to the National Assembly, in his capacity as the Chief Budget Officer of the Executive. In that capacity, the Cabinet Secretary had to base his/her estimates on the National Government’s share as provided for in the Division of Revenue Bill. Additionally, section 39 of the Public Finance Management Act left no doubt that the National Assembly, could not enact an Appropriations Act before enacting the Division of Revenue Act.

Per DK Maraga CJ [concurring]

22. Under article 259(1) of the Constitution, the Constitution was to be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. Under article 259(3) of the Constitution, the Constitution would also be interpreted in accordance to the doctrine that the law was always speaking.
23. A holistic interpretation of the Constitution meant that the entire Constitution had to be read as an integrated whole with no one particular provision destroying the other but each sustaining the other.
24. Under article 93(1) of the Constitution Parliament consisted of the National Assembly and the Senate. The discharge of legislative functions was shared by the two Houses. Under article 95(1) and 95(2) the members of the National Assembly represented the people of the constituencies and special interests and deliberated in the National Assembly and resolved issues of concern to the people. Under article 96(1) of the Constitution, the Senate represented the counties and served to protect the interests of the counties and their government. Article 96(2) of the Constitution clearly stated that Senate would participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties as provided in articles 109 to 113 of the Constitution.
25. Under article 217 of the Constitution the passing of legislation on division of revenue was a shared mandate between the National Assembly and the Senate. Further, the principles of public finance set out in article 201 of the Constitution included the equitable sharing of national revenue and consultation on financial legislation and they related to both Houses of Parliament. Therefore, there was a joint role shared between the National Assembly and the Senate in the annual division and allocation of revenue Bills.
26. The Division of Revenue Bill and the County Allocation of Revenue Bill were not money Bills within the definition of article 114(3) of the Constitution. They were therefore not within the exclusive competence of the National Assembly.
27. A purposive interpretation of articles 95(4)(a) & 95(4)(b), 96(2), 110(1)(c), 114(3), 205 and 218(1)(a) of the Constitution read together with sections 38 to 41 of the Public Finance Management Act, made it quite clear that both the National Assembly and the Senate played a role in the division of revenue between the two levels of Government. 

Per NS Ndungu [dissenting]

1. A formal application for the court to depart from a previous decision was not a requirement where the matter at hand was an advisory opinion. In advisory opinions there were no interests at stake as would normally be the case in adversarial proceedings. Advisory opinions did not arise from any contests of rights or claims disposed of by regular process. In exercising advisory opinion jurisdiction, the court should not be constrained by procedures required in ordinary proceedings.
2. The Constitution under article 167(3) anticipated that there would be occasional need for the Supreme Court to depart from its previous decisions. The Supreme Court was not bound by its decision in the Senate Matter 2013.
3. While rendering an advisory opinion, under article 163(6) of the Constitution, the Supreme Court could undertake any necessary interpretation of the Constitution. The court's revision of its prior decision relating to a similar matter to the one under consideration, would not occasion prejudice to any party. It would clarify and outline a harmonious and comprehensive picture of the requirements for the legislative process and roles for the two Houses as provided under the Constitution.
4. The request to depart from the decision in Senate Matter 2013 was not casually made. A lot of thought, real interest and effort went into making that proposition.
5. The decision of the Majority in the Senate Matter 2013 ought to be reviewed especially because it did not take into account the architectural design of the Constitution and the legislative processes that arose from that design, with regard to the roles of the two Houses of Parliament as set out in articles 95 and 96 and part 4 of Chapter 12 of the Constitution. That design was intended to avoid situations where disputes between the two Houses of Parliament defeated or delayed important aspects of public finance and potentially threw the country into chaos by rendering operations by either level of government impossible or impractical.
6. The design as drawn by the drafters of the Constitution, established which House would originate the Division of Revenue (DOR) Bill, as a money bill and what was to happen when there was an impasse over a money bill. In most jurisdictions, where there was a deadlock between two Houses, the resolution was to allow the final determination to be made by the house with veto powers, which was the house that originated the Division of Revenue Bill. Further, in other democratic and bicameral jurisdictions, the Division of Revenue Bill was considered to be a money bill and therefore legislative processes that applied to money bills applied to it.
7. The Division of Revenue Bill was a money bill that could only be introduced by the National Assembly in accord to article 109 (5) of the Constitution. Article 95(4)(a) of the Constitution reinforced that position. It stated that the National Assembly determined the allocation of national revenue between levels of Government as provided in part 4 Chapter 12.
8. The National Assembly as the people's representative budgeted, collected, shared between the levels of government and audited revenue and it was knowledgeable on the finances of the country. The National Assembly was best placed to originate the Division of Revenue Bill as it financed the revenue share and proposed revenue collection forecasts in the requisite division. In the event of a deadlock between the Senate and National Assembly, then the National Assembly as the originating house should have final say or even veto powers.
9. Article 203(2) of the Constitution guaranteed county governments an equitable allocation of a minimum of fifteen percent of all national revenue collected by the National Government. That amount ought to be readily available to county governments as it was already allocated under the Constitution. Obtaining those funds ought not to be a bicameral legislative process. All that was required, pursuant to article 206(4) of the Constitution was to seek the approval of the Controller of Budget to authorize the withdrawal of that amount from the Consolidated Fund. Hence, in the event of a delay in the passage of the Division of Revenue Bill, article 206(4) of the Constitution provided a tidy and efficient solution.
10. The proposal of the majority with respect to how to deal with the impasse on revenue allocation was untenable as it constituted a major breach of the doctrine of separation of powers. Allocation of revenue was a task that fell squarely on the Executive and the Legislature. Any proposal from the court, directing or recommending action to be taken by Parliament and what percentage should be allocated to the counties, was not only an attempt to amend the Constitution but was tantamount to supervising the work of parliament and endangering the institutional comity between the three arms of government. The core function of the Judiciary was to interpret and apply laws and not to make them.
11. Although the majority were of the view that they were protecting the Constitution, they were in fact re-writing the Constitution or meddling with a political and budgetary process in which they had no expertise. The simple solution for the issue was to point out to Parliament that they needed to solve it with finality by enacting relevant legislation including amending the Constitution if necessary.
12. Under the circumstances Parliament had the option of making necessary constitutional and legislative amendments to clarify whether the Division of Revenue Bill was a money bill and what legislative processes should apply to its passage including the resolution of disagreements between the two Houses.
13. Under section 191(1) of the Public Finance Management Act, each year when the Budget Policy Statement was introduced, the Cabinet Secretary had to submit to Parliament a Division of Revenue Bill and County Allocation of Revenue Bill prepared by the National Treasury. The Budget Policy Statement, under section 25 of the Public Finance Management Act would be introduced to Parliament by February 15.  Under article 218 of the Constitution, a Division of Revenue Bill and a County Allocation of Revenue Bill, had to be introduced in Parliament at least two months before the end of each financial year. Effectively, there was a conflict between the Public Finance Management Act and the Constitution in that the statute altered constitutional timelines set for the introduction of Division of Revenue Bill and a County Revenue Allocation Bill in Parliament.
14. In an ideal situation where the two Houses agreed on a Division of Revenue Bill and a County Allocation of Revenue Bill, the process ought to end by June 30. Where the two Houses of Parliament failed to agree on an ordinary Bill, the Bill would be referred to a Mediation Committee under article 113 of the Constitution. The Committee would be comprised of an equal number of members form each House and it would create a version of the Bill that was acceptable to both Houses. If the Committee failed to agree on the Bill then that Bill would be defeated. That also meant that even after a single mediation process, Parliament would not meet the constitutional timelines of passing the two Bills.
15. There were a number of conflicting timelines that existed within the legal framework that needed to be brought to the attention of Parliament for corrective action. There was need to clarify on the exact timelines within which the Division of Revenue Bill and the County Allocation of Revenue Bill could be introduced to Parliament. That would call for amendments to articles 218 and 221 of the Constitution, and section 190 and 191(1) of the Public Finance Management Act.

Procedure to be followed by a litigant claiming fraud, dishonesty and perversity against a judge

Bellevue Development Company Ltd v Francis Gikonyo & 3 others [2020] eKLR

Petition No. 42 of 2018

Supreme Court of Kenya

DK Maraga, CJ & P; PM Mwilu, DCJ & V-P; MK Ibrahim, SC Wanjala & I Lenaola, SCJJ

May 15, 2020

Reported by Kakai Toili

Judicial Officers – judicial immunity – rationale and purpose – judicial immunity vis-à-vis impunity – where it was claimed that judicial officers acted fraudulently and dishonestly - what was the distinction between judicial immunity and impunity - what was the nature of judicial immunity - Constitution of Kenya, 2010, article 160(5).

Judicial Officers – judicial immunity – factors to consider in determining the existence of judicial immunity – acting in good faith,  acting in excess of jurisdiction and seizure of absent jurisdiction - acting in good faith vis-à-vis  bad faith - acting in excess of jurisdiction vis-à-vis seizure of absent jurisdiction  - when would a person be considered to have acted in bad faith – what was the distinction between acting in excess of jurisdiction and seizure of absent jurisdiction - Constitution of Kenya, 2010, article 160(5).

Judicial Officer – judges – judges’ conduct – where a litigant made claims of fraud, dishonesty and perversity against a judge - what was the procedure to be followed - Constitution of Kenya, 2010, article 168.

Words and Phrases - good faith – definition of good faith - a state of mind consisting in honesty in belief or purpose, faithfulness to one’s duty or obligations, observance of reasonable commercial standards of fair dealing in a given trade or business, or absence of intent to defraud or to seek unconscionable advantage - Black’s Law Dictionary, Ninth Edition at page 713.

Brief facts

There was a dispute between the petitioner and the 4^th respondent, and an arbitrator was appointed to determine the dispute. The arbitrator issued directions as to when the statement of claim was to be filed. The 4^th respondent failed to comply with the directions and instead, filed an application seeking extension of time to file its statement of claim. The arbitrator did not issue any direction or orders on that application. The 4^th respondent later on served the arbitrator and the petitioner with its statement of claim. The arbitrator issued a ruling stating that he had the jurisdiction to determine the dispute. Aggrieved by that decision, the petitioner filed a suit at the High Court which held that there was no valid claim before the arbitrator. No appeal was preferred against that judgment. Later on, the 3^rd respondent was appointed as the sole arbitrator to handle the dispute. The petitioner subsequently filed an application at the High Court seeking to stop the arbitration proceedings.

The 1^st respondent issued a ruling determining that the arbitration proceedings before the previous arbitrator were distinct from those pending before the sole arbitrator and that they could proceed. In June 2014, the petitioner filed an application for review of the decision of the 1^st respondent. The 2^nd respondent, presiding over the review application dismissed the application. Aggrieved by the decisions of the 1^st and 2^nd respondents, the petitioner filed a petition at the High Court which held that it lacked the jurisdiction to hear and determine the matter as it sought to enquire into decisions of courts of equal status. The petitioner filed an appeal at the Court of Appeal, however, it did not pursue the appeal despite being issued with a hearing notice. The petitioner also filed an appeal from the judgment of the High Court contending that the 1^st and 2^nd respondents had acted in bad faith and breached its rights to fair trial. The Court of Appeal dismissed the petitioner’s appeal thus leading to the filing of the instant appeal.

Issues

1. What was the procedure to be followed by a litigant who made claims of fraud, dishonesty and perversity against a judge?
2. What was the nature, rationale and purpose of judicial immunity?
3. What was the distinction between judicial immunity and impunity?
4. When would a person be considered to have acted in bad faith?
5. What were the factors to consider in determining the existence of judicial immunity?
6. What was the distinction between acting in excess of jurisdiction and seizure of absent jurisdiction?

Relevant provisions of the law

Constitution of Kenya, 2010

Article 160(5)

A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.

Held

1. Article 160(5) of the Constitution entrenched the immunity of judicial officers who acted in good faith. The immunity granted by article 160(5) encapsulated protection from legal proceedings founded on acts committed or omissions made by judges in the lawful performance of their judicial functions.
2. The concept of judicial immunity was not without foundation. Judicial immunity was an important tenet in the delivery of justice and the maintenance of the rule of law. For the proper administration of justice, judges should freely express themselves in matters brought before them. A judge, as well as other judicial officers, were required to have confidence in carrying out their judicial functions without the fear that they would be prosecuted or harassed for their acts or omissions.
3. The rationale for judicial immunity was the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts was thus necessary so that judicial officers could make the sometimes controversial decisions that were their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability. The concept of judicial immunity was also an important aspect of judicial independence under the doctrine of the separation of powers. The protection offered to judicial officers in article 160(5) of the Constitution was inherent in the independence of the Judiciary as a state organ within the doctrine of separation of powers.
4. It would be repugnant to the cause of justice if judges would act in fear of legal actions being brought against them for decisions they made in the course of discharging their mandate. The immunity granted by article 160(5) of the Constitution was not necessarily for the benefit of the judicial officer concerned. It was for the public and in particular for litigants appearing before the courts.
5. Besides freedom of thought, expression and action, the other cardinal factor encapsulated in judicial immunity was finality. It would be a travesty of justice if disgruntled litigants were permitted to sue judges who ruled against them thus prolonging litigation unnecessarily and personalizing matters that judges ought not to have had personal interest in.
6. There was a clear distinction between judicial immunity and impunity, and it was important that judicial officers understand that they needed not find themselves on the side of latter. Article 160(5) of the Constitution drew the line between immunity and impunity; the line crossed where acting lawfully and in good faith met willful and negligent abandonment of the oath of office to uphold the integrity and independence of the Judiciary and to dispense justice without fear or favour. Article 160(5) was not blind to that inherent distorted character between judicial immunity and impunity, and thus provided a resonating standard for judicial officers to act according to the tenets enunciated under the Constitution; to ensure that there was rule of law, protection of fundamental rights and freedoms in the Bill of Rights and to do justice to all. The latter point spoke to the lawful action qualification as it did to the good faith expectation.
7. Judicial immunity was meant to provide protection to judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and ensure transparency and accountability. A judge acting in his official judicial capacity thus enjoyed immunity from liability for judicial acts performed within the scope of his or her jurisdiction.
8. Article 160(5) of the Constitution granted judicial officers immunity if they acted in good faith. The antithesis to acting in good faith would be to act in bad faith, with a willful intent to act dishonestly or unfaithfully in the performance of judicial acts. The Constitution did not define bad faith. Bad faith included malicious or fraudulent, dishonest or perverse conduct as well as gross illegality. Bad faith existed only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that revealed a breakdown of the orderly exercise of authority so fundamental that absence of good faith could be reasonably inferred and bad faith presumed.
9. Besides acting in good faith there was a two-tiered approach to determining whether judicial immunity applied:-
   1. whether the acts were judicial acts; and
   2. whether the acts were acts performed by the judge in his judicial capacity.

Regardless of any alleged violation of due process, procedural errors did not deprive a judge of immunity because due process necessarily attached to any act performed in a judicial capacity.

10. There was a distinction between excess jurisdiction and clear and deliberate seizure of absent jurisdiction; the former connoted that the judicial officer did not apprehend his jurisdictional limits, and the latter elaborated the deliberate corrupt or malicious seizure of jurisdiction by judicial officers, with obvious consequences on the latter.  
11. Save in a clear case of deliberate and unlawful usurpation or seizure of jurisdiction where none existed or some other glaring impropriety, if a judge acted in the honest belief that his act was within his jurisdiction, he was protected. While acting in that belief, the protection continued notwithstanding any error in his reason for doing the act or his method of doing it. As such, if a judge acting in his capacity as a judge, acted in good faith in the lawful performance of his duties, he had absolute immunity even when he acted in excess of his jurisdiction. The protection or immunity of a judge also went into administrative acts. The immunity accorded to a judge was absolute in the meaning attributed to the expression by article 160(5) of the Constitution.
12. Fraud was a serious quasi-criminal imputation, a judge whose conduct was fraudulent, dishonest or perverse, was a disgrace to the cause of justice. A judge’s act of bad faith undermined his or her integrity and fidelity to the judicial oath of office. Under the law, the remedy for a litigant making allegations of fraud, dishonesty and/or perversity lay, not in a suit against such a judge but in a petition to the Judicial Service Commission for removal from office under article 168 of the Constitution.  Article 168 had an elaborate procedure which entitled both a complaining party and the subject judge the opportunity, both at the Commission and in a tribunal set up under article 168(5) thereof, to a fair hearing. A suit directly against a judge for alleged misconduct or misbehavior was never an expectation of the drafters of the Constitution.
13. A judge remained unquestionably immune as long as he did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights. The duty imposed on a judge was only to recognize that his own decisions could sometimes be in error and to ensure that orders affecting important constitutional rights could be reviewed or appealed in another court. However, the conduct of a judge who acted mala fides or unlawfully could thus trigger proceedings before the Judicial Service Commission and could ultimately lead to his removal thus the need for extreme care in the enjoyment of immunity.
14. It could not be said that the petitioner was denied an opportunity to seek appellate or alternative relief from what it considered an affront to its constitutional right to fair hearing under article 50 of the Constitution. Other than legal proceedings against the 1^st and 2^nd respondents, various avenues were available to it, and it was up to it to decide which avenue best suited its interests. The petitioner proffered an appeal to the Court of Appeal. For reasons unknown or unexplained, it chose not to pursue that appeal but instead filed another cause. The petitioner thus knew and initially chose the appeal mechanism as a means of seeking relief but later abandoned it. It could not therefore be heard to claim that it was denied an opportunity to be heard and that there was a violation of its constitutional rights under article 50.
15. No evidence was provided on the claim that in dismissing the petitioner’s applications, the 1^st and 2^nd respondents acted in bad faith and without jurisdiction thus violating the petitioner’s rights to a fair trial in its dispute with the 4^th respondent. That was not the act of a serious litigant or complainant even if the 1^st and 2^nd respondents had no judicial immunity.
16. Suing a judicial officer for rendering an unfavourable decision rather than appealing or seeking a review was a misconception and a step in the wrong direction on the part of the petitioner. At times, litigants could feel aggrieved by some of the decisions that judicial officers made. However, that was not in any way an exoneration of the petitioner in its actions. To seek relief by apportioning an unwarranted attack on the 1^st and 2^nd respondents, who were lawfully exercising their judicial function, was not only tantamount to harassment and intimidation of the judicial officers, but also a red herring that the petitioner conceived to deny or delay the 4^th respondent’s right to a remedy under their contract.
17. To amount to impunity, a judge’s act had to be a clear and deliberate seizure of absent jurisdiction. If proved, such acts would not only be an attack on the integrity and conduct of the 1^st and 2^nd respondents, but also a reprehensible affront to the cause of justice and the independence of the Judiciary. Such acts were tantamount to tarnishing the image of the Judiciary, violating its integrity and putting all judicial officers into disrepute. A mere statement that the 1^st and 2^nd respondents acted with impunity did not suffice. The petitioner had not brought forth any iota let alone credible evidence that the 1^st and 2^nd respondents acted in bad faith or against the law.
18. The 1^st and 2^nd respondents as judges of the High Court acted in accordance to and within their jurisdictional limits under article 165 of the Constitution. They could have rendered decisions which were unpalatable to the petitioner, that too was within their judicial function. The petitioner chose to challenge those decisions through an unorthodox approach could not be lauded but ought instead to be condemned.

Petition dismissed; petitioner to bear the costs of all the respondents, both in the court and the superior courts below.

Requirements for filing an appeal at the Supreme Court

Cordisons International (K) Limited v Chairman National Land Commission & 43 others [2020] eKLR

Petition No. 14 of 2019

Supreme Court of Kenya

DK Maraga, CJ & P; PM Mwilu, DCJ & V-P; MK  Ibrahim, NS Ndungu & I Lenaola, SCJJ

April 30, 2020

Reported by Kakai Toili

Civil Practice and Procedure – appeals – appeals to the Supreme Court – requirements – specifying the appellate jurisdiction  - where it was alleged a matter was of general public importance - where it was alleged that a court took a trajectory of constitutional interpretation or application in determining a case - what were the factors to consider in determining whether a court took a trajectory of constitutional interpretation or application - what was the purpose of specifying the appellate jurisdiction when filing an appeal - Constitution of Kenya, 2010, article 163.

Brief facts

The appellant contended that it had legitimate interest in the development of a wind power project on a parcel of land and having secured all necessary approvals, it was granted a leasehold interest over the subject land by the 6^th respondent. The appellant further contended that it discovered that part development plans published in the Kenya Gazette as well as a letter of allotment had been issued to the 5^th respondents in a bid to defeat the appellant’s interest. The appellant thus filed a suit at the Environment and Land Court seeking orders, inter alia, to quash the decision contained in the letter of allotment among other orders. The Environment and Land Court dismissed the suit and thus aggrieved by the decision the appellant filed an appeal to the Court of Appeal. The Court of Appeal the appeal dismissed the appeal.

Aggrieved by the Court of Appeal’s decision, the appellant filed the instant appeal. Before the appeal could be heard, the 5^th, 6^th and the 7^th – 38^th respondents filed preliminary objections on the court’s jurisdiction to hear and determine the appeal. The preliminary objections were based on the grounds that the appeal did not raise any matters of constitutional interpretation or application under article 163(4)(a) of the Constitution of Kenya, 2010 (Constitution) and that the appeal had not been certified as one involving a matter of general public importance under article 163(4)(b) of the Constitution.

Issues

1. What were the requirements for one to lodge an appeal to the Supreme Court as a matter of general public importance?
2. What was the purpose of specifying the appellate jurisdiction of the Supreme Court when filing an appeal?
3. What were the factors to consider in determining whether a court in determining a matter took a trajectory of constitutional interpretation or application?

Relevant provisions of the law

Constitution of Kenya, 2010

Article 163

4.Appeals shall lie from the Court of Appeal to the Supreme Court—

1. as of right in any case involving the interpretation or application of this Constitution; and
2. in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).

 5. A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Held

1. For an appeal to lie to the court under article 163(4)(b) of the Constitution, articles 163(4) and (5) had to be complied with. From the record, there was no certification of the matter as being of general public importance as was required by the Constitution obtained by the appellant and so it could not be that the appeal was one filed under article 163(4)(b) even if the appellant had expressed that it had done so, and it had not.
2. The appellant had not indicated what jurisdiction it was invoking in approaching the court. It was not for the court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party appealing a Court of Appeal judgment. An appellant was expected to specify such jurisdiction with clarity to enable both the court and the opposing party to know what case was before them.
3. What was before the Environment and Land Court was a judicial review notice of motion in which orders of prohibition, mandamus and certiorari were being sought. The main issue in contention was the legality or otherwise of a letter of allotment dated February 7, 2017 issued by the 2^nd respondent to the 5^th respondent and whether conversely, the 2^nd respondent ought instead to have issued land lease instruments to the appellant over the disputed parcel of land. 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 appellant 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.
4. The assumption of a task that transcended not just the reference to the rich generality of constitutional principle, it was a task that had to focus upon specific clauses of the Constitution, and called for the attribution of requisite meaning, tenor and effect.
5. From both the judgments of the Environment and Land Court and the Court of Appeal, neither court was called upon to, specifically and directly put the meaning, tenor and effect of any article of the Constitution into their reasoning before resolving the issues placed before them. The fact that in doing so, reference was made to articles 47, 62 and 67 of the Constitution for example would not qualify in the context of the dispute between the parties to bring the instant appeal within the purview of article 163(4)(a) of the Constitution. The dispute was simple, whether the allotment letter issued to the 5^th respondent was lawful or not and, whether the judicial review orders of prohibition, mandamus and certiorari were to issue. The administrative action in question never once took a proper constitutional trajectory.
6. Whereas the preliminary objections would have been sustained for failure to state what specific provision of the Constitution the appellant was invoking, neither article 163(4)(a) and (b) of the Constitution could be properly invoked.

Preliminary objections by the 5^th, 6^th , 7^th – 38^th respondents allowed; appeal dismissed; appellant to pay the costs  to the 5^th, 6^th and 7^th – 38^th respondents.

Supreme Court disallows an application to set aside orders for the withdrawal of a notice of appeal.

Tullow Oil PLC & 3 others v PS Ministry of Energy & 15 others

Civil Application No 1 of 2020

Supreme Court of Kenya

PM Mwilu (DCJ & VP), MK Ibrahim, SC Wanjala, NS Ndungi & I Lenaola, SCJJ

April 30, 2020

Reported by Beryl Ikamari

Civil Practice and Procedure - interlocutory application - procedural rule under which an application was made - where there was no rule of procedure which allowed the applicant to obtain the orders it sought - effect of failure to indicate the rule under which an application was made.

Civil Practice and Procedure - interlocutory application - filing of an interlocutory application at the Supreme Court - where a notice of appeal had effectively been struck out - whether an interlocutory application, which was about the filing of the notice of appeal, could be made before a petition of appeal or reference had been filed at the Supreme Court - Supreme Court Rules 2020, rule 31.

Brief facts

On May 8, 2019, the court allowed an application that sought orders that a notice of appeal dated August 8, 2016 be deemed as withdrawn or alternatively struck out. Thereafter, applicant sought orders for the setting aside and nullification of that ruling on various grounds including that it was ultra vires and obtained through fraud and misrepresentation. The respondents did not file a response to the application.

Issues

1. What was the effect of failure to indicate the rule of procedure under which an application was made?
2. What was the effect of there being no specific rule in the Supreme Court Rules, which provided for the orders sought in an application?
3. Whether an interlocutory application which was about the filing of a notice of appeal could be made before a petition of appeal or reference had been filed at the Supreme Court.

Held

1. Where an application was unopposed and the court saw merit in it, the application should be allowed without much ado. However, the application before the court was fraught with all manner of difficulties.
2. A party approaching any court had to indicate with a measure of precision what procedure it was invoking in doing so. The applicant sought orders to recall, set aside, rescind, nullify and void the ruling issued on May 8, 2019 but it did not cite any rule in the Supreme Court Rules 2011. That was an anomaly. Additionally, no specific rule provided for the orders that the applicant sought.
3. The Supreme Court Rules 2020 amended the Supreme Court Rules 2011. Under rule 31 of the Supreme Court Rules 2020, an interlocutory application was incapable of being originated before a petition of appeal or reference was filed before the court. There was no petition of appeal filed in order to authenticate the substantive issues that the court would deal with later.
4. Considering that the court struck out the notice of appeal, its jurisdiction to handle the application was in question. The applicant failed to address that question on jurisdiction.
5. The application was scandalous and devoid of merit and granting it would only placate a dissatisfied litigant who misunderstood the real reason his notice of appeal was struck out.
6. Litigation, however painful, had to come to an end. The applicant was flogging a dead horse and he ought to busy himself with other ventures of use to him. 

Application dismissed with no order as to costs.

Threshold to be met for the grant of orders of stay of execution at the Supreme Court.

Peter Ayodo Omenda & 6 others v Ethics and Anti-Corruption Commission & 2 others

Application No 31 of 2019

Supreme Court of Kenya

DK Maraga (CJ & P), PM Mwilu (DCJ & VP), MK Ibrahim, SC Wanjala, I Lenaola, SCJJ

April 30, 2020

Reported by Beryl Ikamari

Civil Practice and Procedure - stay of execution - threshold to be met for the grant of orders of stay of execution - whether applicants had met the threshold for the grant of orders of stay of execution at the Supreme Court.

Civil Practice and Procedure - record of appeal - omission of documents from the record of appeal - where the applicants sought leave to file the petition of appeal at the Supreme Court excluding the certified copy of the order and certified proceedings of the Court of Appeal in the first instance, without providing a basis for the application - whether leave would be granted.

Brief facts

The applicants were employees of the Geothermal Development Company Limited (GDC). They were members of the tender committee which conducted the tender process for of Rig Move Services for Menengai Geothermal Project. At the conclusion of the tender process they learnt the 1^st respondent (the Ethics and Anti-Corruption Commission) recommended that they should face charges for irregularities arising from the tender process. In Anti-Corruption Case No. 20 of 2015, they were to answer to charges of wilful failure to comply with the law relating to procurement contrary to section 45(2)(B) as read with section 48(1)(A) of the Anticorruption and Economic Crimes Act, 2003 - (Count 1) and inappropriate influence on evaluation contrary to section 38(1)(b) as read with section 38(2)(a) of the Public Procurement and Disposal Act.

Through judicial review proceedings, the applicants challenged their prosecution. They were partially successful as orders of prohibition were granted to prohibit prosecution for count I. On appeal, the Court of Appeal set aside the High Court’s orders and made the findings that the High Court had not exercised its discretion properly and that the decision to prosecute was not grossly unreasonable.

The applicants filed an appeal against the decision of the appellate court as of right under article 163(4)(a) of the Constitution. They also filed an application for orders of stay of execution of the decision of the Court of Appeal. The applicants also applied for leave to file the petition of appeal excluding the certified copy of the order and certified proceedings of the Court of Appeal in the first instance.

Issues

1. What was the threshold to be met for the grant of orders of stay of execution at the Supreme Court?
2. Whether the court could grant leave, for an applicant to file the petition of appeal excluding the certified copy of the order and certified proceedings of the Court of Appeal in the first instance, without a basis being laid in the relevant application or the supporting affidavit.

Held

1. The application was unopposed but it was not automatic that the court would grant the orders sought. The court had to be satisfied on a prima facie basis that the application was meritorious and the prayers sought could be granted.
2. The applicant had demonstrated an arguable case which would be rendered nugatory in the absence of the court's intervention by way of granting the orders sought.
3. Rule 33(5) of the Supreme Court Rules granted the court power to direct which documents should be excluded from the record. Under rule 33(6) of the Supreme Court Rules, a supplementary record of appeal could be filed without leave within 15 days of lodging the record of appeal to include documents omitted from the record of appeal. The applicants did not invoke rules 33(5) or 33(6) of the Supreme Court Rules in seeking leave to file the petition of appeal excluding the certified copy of the order and certified proceedings of the Court of Appeal in the first instance. They did not address that prayer in the grounds on the application, the supporting affidavit or the submissions. Therefore, the court could not consider the prayer.

Application partly allowed.

Orders:-

1. The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] in Civil Appeal No. 313 of 2017 delivered on September 20, 2019 was stayed pending the hearing and determination of the appeal by the Supreme Court.
2. Costs to abide the outcome of the main appeal.

Parties should specify the jurisdiction they are invoking in approaching the Supreme Court

Coast Professional Freighters Limited v Welsa Bange Oganda & 2 others [2020] eKLR

Petition No. 4 of 2017

Supreme Court of Kenya

DK Maraga, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim,NS  Njoki  and I Lenaola, SCJJ

April 30, 2020

Reported by Chelimo Eunice

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution, being an appeal as a matter of right and under article 163(4)(b) of the Constitution, being an appeal involving a matter of general public importance – where a party failed to address the jurisdictional question ab initio - whether a dispute on protection of the right to property necessary involved the interpretation and application of the Constitution – whether the Supreme Court would assume jurisdiction where an appeal did not require the interpretation and application of the Constitution and where the superior courts below had also not done so – Constitution of Kenya, 2010, article 163 (4) (a) and (b).

Brief facts

The respondents raised objections to the hearing of the appellant’s petition of appeal on the ground that the court had no jurisdiction to hear and determine the appeal and instead, the same ought to be struck off with costs. In response to the preliminary objections, the appellant submitted that the appeal was properly before the court because the dispute revolved around the right to property and involved the interpretation and application of the Constitution.

Issues

1. What was the fate of an appeal where a party failed to address the jurisdictional question ab initio?
2. Whether the Supreme Court would assume jurisdiction where an appeal did not require the interpretation and application of the Constitution and where the superior courts below had also not done so.

Held:

1. The Supreme Court’s jurisdiction was circumscribed by the Constitution so that not every matter qualified as an appeal to the Supreme Court.  It behoved every party to state, with a measure of specificity and precision, what jurisdiction it was invoking in approaching the Supreme Court.  It was not for the court to peruse an appeal, speculate on what jurisdiction it had to assume, then proceed to determine such an appeal on that assumption. Where a party failed to address the jurisdictional question ab initio and which gave it standing before the court, the appeal was one for striking out without further ado.  That position was true of the instant appeal.
2. Nowhere did the High Court make any attempt at interpreting or applying the Constitution since no such issue arose for its determination.  The Court of Appeal also did not address any constitutional issue as was the expectation of article 163(4)(a) of the Constitution.
3. Where an appeal did not require the interpretation and application of the Constitution and where the superior courts below had also not done so, then no appeal lied as a matter of right under article 163(4)(a) of the Constitution.  The instant appeal was one such appeal and it was deemed frivolous and vexatious as the appellant, well represented by counsel, ought to have known that it had no right to approach the Supreme Court if it had looked at its dispute from the prism of the Constitution and not mere displeasure and dissatisfaction with the decisions of both the High Court and the Court of Appeal.

Preliminary objections by the 1^st, 2^nd and 3^rd respondents upheld, appellant’s petition of appeal struck off, with the appellant paying costs of the proceedings before the Supreme Court.