Please Wait. Searching ...
Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling)
Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR
Neutral citation:
[2013] KESC 8 (KLR)
Republic of Kenya
Petition 5, 4 & 3 of 2013
WM Mutunga, CJ, KH Rawal, DCJ & V-P, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ
October 24, 2013
Between
Raila Odinga
Petitioner
and
The Independent Electoral & Boundaries Commission
1st Respondent
Ahmed Issack Hassan
2nd Respondent
Uhuru Kenyatta
3rd Respondent
William Samoei Ruto
4th Respondent
Ruling
A. Background
1.Following the March 4, 2013 General Elections pursuant to which the Chairman of the Independent Electoral and Boundaries Commission (IEBC), Mr Issack Hassan declared Mr Uhuru Kenyatta as the (then) President-elect, three presidential election petitions namely, Petition No 3 of 2013, Petition No 4 of 2013 and Petition No 5 of 2013, were filed before the Supreme Court.
2.On March 25, 2013 the court consolidated the three petitions and ordered that Petition No 5 of 2013, Raila Odinga and 5 others v Independent Electoral and Boundaries Commission and 3 others, be deemed to be the pilot file.
3.The petition, not surprisingly, elicited keen public interest and generated endless media coverage and commentary. Amidst this highly charged environment, on March 20, 2013, the court deemed it fit to issue certain directions, in the interests of justice, and for the efficient, effective, transparent and impartial determination of the presidential election petitions, as consolidated.
4.One such directive read as follows:
5.During the hearing of the presidential election petition, the court noted a news item published on page 5 of the Daily Nation of March 28, 2013, which was attributed to Mr Eric Mutua, the Chairman of the Law Society of Kenya.
6.The newspaper report stated, in part, as follows:
7.On the same page, there was another report attributed to Mr Mutua wherein he allegedly stated:These remarks were reported to have been made after the Law Society of Kenya had unveiled a committee to audit the March 4th General Election.
8.After considering the contents of the published reports, this court on March 28, 2013 made an order as follows:
9.Thereafter, the Registrar of the Supreme Court issued summons dated July 22, 2013 to Mr Mutua directing him to appear before the Court on August 1, 2013.
10.On the said date, during the mention of the matter, representatives of several interested parties were present. The court indicated that the reason for the summons was to give Mr Mutua an opportunity to confirm or deny the reports published by the Daily Nation, as set out hereinabove. The court, at the time, clarified that the proceedings are not in the nature of contempt proceedings.
11.Learned counsel appearing for the Law Society of Kenya, however, raised certain preliminary issues to be heard and determined before the court could proceed with the intended clarification from Mr Mutua. Thereafter, the court directed all the parties present to make their respective written submissions to enable the court to make its ruling.
12.The submissions were duly filed and are duly considered by us.
B. The Preliminary Issues
13.Though differently worded by the parties involved, we shall take the issues formulated by counsel for the Law Society of Kenya for consideration and determination, namely:
C. Analysis
DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF OCTOBER, 2013…………………………………..W. M. MUTUNGA CHIEF JUSTICE & PRESIDENT OF SUPREME COURT …………………………………..K. H. RAWALDEPUTY CHIEF JUSTICE & VICE OF THE PRESIDENT SUPREME COURT…………………………………..K. TUNOI JUSTICE OF THE SUPREME COURT …………………………………..M. K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………..J. B. OJWANGJUSTICE OF THE SUPREME COURT …………………………….……..S. C. WANJALAJUSTICE OF THE SUPREME COURT………………………………..N. S. NDUNGUJUSTICE OF THE SUPREME COURTI certify that this is a true Copy of the original.REGISTRARSUPREME COURT OF KENYA
14.The nature and scope of a “preliminary issue” is cogently defined in the statement of Law, JA, in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 at 700:
15.Considering the ratio decidendi in the above-cited case, we conclude, without much hesitation, that the second issue raised does not fall squarely within the scope of a “preliminary objection;” and we shall, at this stage, refrain from elaborating this issue any further.
16.The first issue, however, raises concerns regarding the jurisdiction of this court; and we are thus obligated to consider the same, as it is a threshold issue, to be resolved at the earliest opportunity. It is well recognised in our law that a court of law shall down its tools in respect of a matter before it, the moment it holds that it lacks jurisdiction. We hereinbelow enumerate the relevant cases justifying our decision to hear and determine the question of jurisdiction, as a preliminary point, though without making further comments on this indefatigable principle of law. These are:
17.In our view, the objections being raised as to this court’s jurisdiction to issue the Summons dated July 22, 2013 must be regarded as separate and distinct from the question whether this court had, in the first place, jurisdiction to issue the order made on March 28, 2013. Indeed, it is to be taken that, had the summons been issued before the final determination of Petition No 5 of 2013, the parties would most probably not have raised the objection now before us. Thus, the real contention made as to the court’s jurisdiction, is hinged on the supposition that because Petition No 5 of 2013 has been heard and determined, the court has become functus officio, and so has no further authority to hear or determine any matter attendant on any proceeding in the said petition.
18.We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:
19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:
20.As regards the preliminary objection before us, contesting this court’s jurisdiction, there is no doubt that Petition No 5 as consolidated, has been finalized, and the judgment has been perfected. The issue before us emanates not from the substantive facts or issues raised in the petition, but from an ancillary order issued by the court during the proceedings – totally unrelated to the main cause of action. That order has not been acted upon or perfected, and the summons issued pursuant thereto by the Registrar of the Supreme Court, was meant to give effect to the court’s observation and consequent directions made on March 28, 2013.
21.It is a legal and constitutional obligation of any court, from the basic-level to the highest level , to preserve and protect the adjudicatory forum of governance, and to uphold decorum and integrity in the scheme of justice-delivery. It follows that the court’s jurisdiction, in oversight of the question of conscientious and dignified management of the judicial process, and in safeguarding the scheme of the rendering of justice, will not be exhausted until the court is satisfied and it declares as much. Even though, therefore, the court concluded the hearing of the petition by delivery of judgment, its jurisdiction for upholding the dignity of the judicial process, and in relation to the proceedings of the petition, remained uncompromised. The court therefore could, as it did, issue summons in the cause of its orders made during the pendency of the main hearing.
22.We are also of the opinion that the authorities cited, which we have carefully considered, are not directly relevant to the facts before us. This is an issue of first impression, and no authority invoked by counsel has a direct bearing upon it.
23.We are, therefore, satisfied, and accordingly hold, that the court is not functus officio, and that we do have jurisdiction to entertain the proceeding before us.
24.We do not make any order as to costs in this proceeding.
