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|Case Number:||Petition 518 of 2013|
|Parties:||Judicial Service Commission v Speaker of the National Assembly & Attorney General|
|Date Delivered:||06 Nov 2013|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||George Vincent Odunga|
|Citation:||Judicial Service Commission v Speaker of the National Assembly & another  eKLR|
|Advocates:||Mr Muite for the Petitioner|
|Court Division:||Constitutional and Human Rights|
|Advocates:||Mr Muite for the Petitioner|
|History Docket No:||none|
Separation of powers & the High Court’s supervisory jurisdiction over departmental committees of the National Assembly
Judicial Service Commission v Speaker of the National Assembly & another
Petition No. 518 of 2013
High Court of Kenya at Nairobi
Constitutional & Human Rights Division
G V Odunga, J
November 6, 2013
Reported by Beryl A Ikamari
In its ruling, the court made determinations as concerned two applications. One application was made by Bryan Yongo seeking to be joined as an interested party to the proceedings and the second application was an application by the Judicial Service Commission seeking interim relief whose intended effect was to halt (stay) the carrying on of proceedings in the petition filed by Riungu Nicholas Mugambi before the Departmental Committee of Justice and Legal Affairs of the National Assembly. In his petition, Riungu Nicholas Mugambi had sought the removal of six commissioners of the Judicial Service Commission.
With respect to the petition filed by Riungu Nicholas Mugambi, interim orders halting (staying) the proceedings had already been granted by the High Court but there had been non-compliance with those orders and such non-compliance prompted the Judicial Service Commission to file the second application.
On his part, Bryan Yongo sought to be joined as an interested party to the proceedings before the High Court. The basis of his application was that he had petitioned for the removal of Ahmednassir Abdullahi from serving as a commissioner in the Judicial Service Commission, pursuant to article 251(2) of the Constitution of Kenya, 2010. He stated that the High Court petition brought by the Judicial Service Commission as concerned Nicholas Riungu Mugambi’s petition was impacting on his own petition filed before the Judicial and Legal Affairs Committee of the National Assembly.
On October 30, 2013, the court made interim orders whose effect was to halt further proceedings by the Departmental Committee of Justice and Legal Affairs of the National Assembly, with respect to the petition filed by Riungu Nicholas Mugambi, seeking the removal of six commissioners of the Judicial Service Commission. The interim orders were to be in effect until the conclusion of the hearing of the High Court petition filed by the Judicial Service Commission, with a final decision of the court being made. The applicant, Bryan Yongo, contended that the orders issued with respect to the petition filed by Riungu Nicholas Mugambi, adversely affected his petition and he sought to be joined as an interested party to the petition filed in the High Court by the Judicial Service Commission.
Constitutional Law-access to justice-interested party-possession of a stake or legal interest in proceedings before court-circumstances in which a person would be allowed to join court proceedings as an interested party-Constitution of Kenya, 2010; articles 159(2)(b) & 258 and Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; rule 2.
Constitutional Law-separation of powers-supervisory jurisdiction of the High Court over departmental committees of the National Assembly-circumstances in which the High Court could exercise supervisory jurisdiction over departmental committees of the National Assembly and the nature of remedies it could issue, if any-Constitution of Kenya, 2010; articles 23(2), 165(3)(b), 165(3)(d) & 165(6).
Constitutional Law-national values and principles-rule of law-failure by a departmental committee of the National Assembly to comply with High Court orders-procedure to be followed where allegations of contempt of court were made-Constitution of Kenya 2010; article 10(2).
Application for the joining of an interested party disallowed & conservatory orders issued to restrain the removal of six commissioners of the Judicial Service Commission from office.
1.Baraza, Nancy Makokha v Judicial Service Commission & 9 others Petition No 23 of 2012–(Explained)
2.Kariuki & 2 others v Minister For Gender, Sports, Culture & Social Services & 2 Others  1 KLR 588
3.Keroche Industries Limited v Kenya Revenue Authority & 5 others  KLR 240 –(Explained)
4.Matem, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil Appeal No 290 of 2012 –(Explained)
5.Murungaru v Kenya Anti-Corruption Commission & another  1 KLR 77 –(Explained)
6.Njenga Mwangi & another v Truth, Justice and Reconciliation Commission & 4 others Nairobi High Court Petition No 286 of 2013 –(Explained)
7.Odinga, Raila and 2 others v Independent Electoral and Boundaries Commission and 3 others Petition No 5 of 2013 –(Explained)
1.Minister of Health and Others v Treatment Action Campaign and Others  5 LRC 216 –(Explained)
1.SP Gupta v President of India & Others AIR  SC 149 –(Mentioned)
1.Constitution of Kenya, 2010 articles 3(1); 10(1)(2); 23(3); 25; 47; 48; 125; 159(1); 172; 191; 251(2)(3); 165(3)(b)(6); 258 –(Interpreted)
2.Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012 (Constitution of Kenya, 2010 Sub Leg) –(Interpreted)
3.National Assembly (Powers and Privileges) Act (cap 6) –(Interpreted)
1.Ms Mutua H/B for Mr Muite & Mr Issa for the Petitioner
2.Mr Yongo for the Intended Interested Party
|History Advocates:||One party or some parties represented|
|Case Outcome:||Conservatory order issued|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 518 OF 2013
IN THE MATTER OF ENFORCEMENT & INTERPRETATION OF THE CONSTITUTION
AND IN THE MATTER OF THE INDEPENDENCE OF CONSTITUTIONAL COMMISSIONS AND INDEPENDENT OFFICES
JUDICIAL SERVICE COMMISSION.....................................PETITIONER
SPEAKER OF THE NATIONAL ASSEMBLY...............1ST RESPONDENT
ATTORNEY GENERAL ..................................................2ND RESPONDENT
R U L I N G
“Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Artcle 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the argument of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution.”
(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191.
“The New Constitution gives the court wide and unrestricted powers which are inclusive rather than exclusive and therefore allows the court to make appropriate orders and grant remedies as the situation demands and as the need arises.”
“Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant ‘appropriate relief’. It has wide powers to do so and in addition to the declaration that it is obliged to make in terms of s 172(1)(a) a court may also ‘make any other order that is just and equitable’ (s 172(1)(b))…Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights…The courts have a particular responsibility in this regards and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal…Nor would it necessarily be out of place for there to be an appropriate order on the relevant organs of state in South Africa to do whatever may be within their power to remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to him. To stigmatise such an order as a breach of the separation of state power as between the Executive and the Judiciary is to negate a foundation value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights, which we find to have been infringed, is binding on all organs of state and it is our duty to ensure that appropriate relief is afforded to those who have suffered infringement of their constitutional rights”.
“I am also in agreement, that under section 29 of the National Assembly (Powers and Privileges Act) (Cap 6), Courts cannot exercise jurisdiction in respect of acts of the Speaker and other officers of the National Assembly but I am certain that under Article 165(3)(d) of the Constitution, this Court can enquire into any unconstitutional actions on their part”.
“The instant matter is a cause of anxiety because of the increasing trend by Government Ministers to behave as if they are in competition with the courts as to who has more “muscle” in certain matters where their decisions have been questioned, in court! Courts unlike politically minded minister are neither guided by political expediency, popularity gimmicks, chest-thumping nor competitive streaks. Courts are guided and are beholden to law and to law only! Where Ministers therefore by their actions step outside the boundaries of law, courts have the constitutional mandate to bring them back to track and that is all that the courts do. Judicial review orders would otherwise have no meaning in our laws….. Court orders must be obeyed whether one agrees with them or not. If one does not agree with an order, then he ought to, move the court to discharge the same. To blatantly ignore it and expect that the court would turn its eye away, is to underestimate and belittle the purpose for which courts are set up……. If those who have knowledge of court orders and also have knowledge that the way to avoid those orders is to avoid personal service are sleeping well in the guise that by hiding behind the shield of muscle they can escape the long arm of the law, let this be a warning that they will not. The law is as applied by the courts studiously and unceasingly, will never sleep, and some day will catch up with those who flout the law and walk away unscathed.”
“Since the Kenyan nation has chosen the path of democracy rather than dictatorship, the Courts must stick to the rule of law even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the Court’s decisions since occasionally those who have been mighty and powerful are the ones who would run and seek the protection of the Courts when circumstances have changed......The courts must continue to give justice to all and sundry irrespective of their status or former status.”
“When litigants come to the courts it is the core business of the courts and the courts’ role is to define the limits of their power. It is not for the Executive to tell them when to come to court! It is the constitutional separation and balance of power that separates democracies from dictatorships. The courts should never, ever, abandon their role in maintaining the balance.”
Ruling read, signed and delivered in court this 6th day of November 2013
In the presence of Ms Mutua for Mr Issa for the Petitioner and Mr Yongo the intended Interested Party