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A case of mistaken identity? Demystifying the “Constitutional Court” in Kenya

By Petronella Mukaindo*

Nairobi, February 2013.

Content

Abstract

1.0 Introduction

2.0 The jurisdictional question

2.1  Constitutional Court in the Constitution making process

2.2  Comparative Jurisprudence

2.3  Alternative redress

3.0 Supervision of Superior Courts

4.0 Conclusion

Abstract

There has been a wide spread fallacy among a cross-section of Kenyans, literate and semi-illiterate; both the learned and ‘unlearned’ friends alike that somewhere in Kenya’s court structure lies a distinct court going by the name of a ‘Constitutional court’ vested with the exclusive mandate of determining matters concerning constitutional interpretation and violations of the Bill of Rights. The term ‘Constitutional court’ has often times been used synonymously with that of the Constitutional and Human Rights division. There has also been a misconception that the Constitutional and Human Rights Division situated at Nairobi has jurisdiction to superintend and wields power of review over decisions of other High court divisions.  These unbelievable beliefs have resulted in the Division being swammed with Constitutional Petitions; a fraction of which are misplaced, a chunk of others misguided, yet others lie at the verge of being simply ‘interesting’ and plainly frivolous.  There has been tangible confusion and misunderstanding as to the jurisdictional confines of the divisions of courts by a section of the citizenry leading at times to unnecessary litigation and abuse of court process through multiple suits not to mention delay-dallying tactics in form of preliminary objections on jurisdictional questions.

This exposition attempts to dispel this erroneous notion and demystify the concept of the mythical ‘Constitutional court’ against the backdrop of the Constitution of Kenya, 2010 as its framers intended and as Kenyans passed it.  Premised on the fact that the country lacks a separate constitutional court per se, the paper draws a parallel between what are administrative divisions of the High Court, in this case the Constitutional and Human Rights Division and substantive jurisdictional courts as established under the Constitution.  It will also seek to establish that save in few exceptions provided under Constitution, any High Court judge has jurisdiction to interpret the Constitution and handle any matter touching on the Constitution.  In so doing, it is hoped that this contribution will somehow aid in sealing the floodgates of superfluous litigation in our courts hence save on judicial time.

1.0 Introduction

The Constitution must be a frame of reference for every lawyer and every judge. Not just those who find themselves sitting in the Constitutional and Human Rights Division, or in criminal trials but those of you who deal with company law, land, commercial transactions, negligence, labour law etc. Again the Constitution makes this clear: that national values bind us all not only when we apply or interpret the Constitution itself, but when we apply or interpret any law (Article 10(1)(b)). And those values include, of course, the rule of law, but also human dignity, equity, equality, social justice, non-discrimination, protection of the marginalised, integrity, transparency and accountability. And “any law” would include, in my view, unless and until counsel convinces me otherwise, rules of the common law, as well as statute.

(Hon. Dr. Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya; Nairobi, 31st May, 2012).[1]

The promulgation of the Constitution of Kenya, 2010 on 27th August, 2010 has seen a steady rise in the number of constitutional petitions filed in the last two years. Prior to the promulgation in the year 2009, over 700 Petitions found their way in the Constitutional and Human Rights Division (“CHR division”) registry in Nairobi. This figure for some reason took a nosedive reducing to slightly over 100 petitions in the year 2010, the year that saw the promulgation of the Constitution. The decline could perhaps be attributed to what I  like to dub the ‘theory of legal rights hoarding’ something akin to hoarding in commercial circles whereby potential litigants will defer filing their cases in expectation of ‘better return/outcome’ in the future, in this case the promised fruits of the new Constitution.

Kenyans were euphoric as they eagerly awaited the passage of the new document which most envisioned as a beacon of hope that would deliver them from captivity and lead them into the promised land of milk and honey. Of course, some of those litigants who deferred (read ‘hoarded’) their cases got a rude shock as they later learnt that the new regime seldom applied retrospectively. (This position has been recently affirmed by the Justices of the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, Constitutional Application 2 of 2011, [2012] eKLR).

I digressed.

The year 2011 however saw a rise in the number of Petitions to 341 cases and to almost 600 in the successive year. Perhaps this steady rise can be explained in terms of the level of constitutional literacy in the country. According to this theory, the higher the level of constitutional awareness, the more likely the number of constitutional petitions and the converse is true so that a largely ignoramus populace will seldom be expected to seek to enforce that which is alien to them.

It can be argued therefore that there has been a gradual increase in the level ofunderstanding of constitutional principlesin our country since the promulgation of the Constitution. In line with this proposition, the more the mass got to digest the constitutional provisions and internalise especially the generous Bill of rights, the more it got to appreciate the benefits that could be reaped under the new dispensation. It is this renewed appreciation and optimism that could explain the mushrooming of cases and what can colloquially be referred to as ‘gold rush’ for the promised fruits of the new Supreme law. This could mean a lot other things as well; it could be a signal of regained confidence in our judiciary and also a testament of an awakened, vibrant and responsible citizenry filled with the constitutional spirit and committed to enforcement of the rule of law and adherence to constitutional values and principles.  This is all good. On the flipside however, this empowered citizenry has seen the institution of all manner of matters in our courts, in all their hues and form on just about anything under the sun.  The sum total being a pile of frivolous files filed in our courts, all in the name of the Constitution.

Other explanations may of course be proffered for the same result-the pessimists may for instance argue that it is a demonstration of poor governance evidenced through increased human rights abuses and constitutional rights violations or that the mass has simply become more litigious or even that our alternative dispute resolution (ADR) mechanisms have laxed.

Of paramount concern is the section of litigants who exhibit erroneous belief that only the CHR division of the High court possesses the jurisdictionto interpret the constitution or deal with allegations of breach or threatened breach of their bill of rights. That may explain why a litigant will for instance file a land matter and while it is sub judice lodge a separate petition in the CHR division raising constitutional issues over the same property subject of adjudication in that other forum. The net effect of such stunts has been multiplicity of suits in our various court registries, possibility of duplication of judicial efforts and the risk of parallel orders in the same cause not to mention wastage of judicial time.

There has also been a misguided notion that the specific divisions of the High Court-say the Family division, Commercial and admiralty division, Civil and Criminal divisions lack jurisdiction to hear and determine constitutional issues or deal with an issue falling in a different discipline and that stem from matters before them. Counsel will be heard to raise preliminary objections and fiercely contest jurisdiction where say, a commercial-related question arises as an ancillary issue in a succession matter in the Family division while another litigant will be seen to raise Grounds of opposition as to jurisdiction of a judge in say, commercial division handling a constitutional issue that arises in the course of hearing.  I think it is high time we set apart substantive jurisdiction from the administrative walls [read divisions] of the High Court. This inevitably leads us to the question of jurisdiction.

2.0 The jurisdictional question

The system of courts in Kenya, according to her Constitution comprises the Supreme Court at the apex, the Court of Appeal followed by the High Court and the special courts under Article 162(2), namely, the courts dealing with employment and labour relations matters and the environment and land matters(Environment and Land court). The subordinate courts established under Article 169 then follow.

The Constitution further lists superior courts as the Supreme Court, the Court of Appeal, the High Court and the ‘status courts’ established under Article 162(2) namely,the Employment and Labour relations court and the Environment and Land court; while according to Article 169, the subordinate courtscomprise the Magistrates courts, the Kadhis’ courts, the Courts Martial and any other court or local tribunal as may be established by an Act of Parliament except the status courts.

But this discourse is not about hierarchy of courts in our judicial system, it is about a more critical and somewhat controversial issue; that of jurisdiction. Article 165(1) of the Constitution establishes the High Court and vests in it vast powers including the power to ‘determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened’ and the jurisdiction ‘to hear any question respecting the interpretation of this Constitution.’

Article 23 which also touches on jurisdiction of the High court provides that;

“23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”

Lest we forget, Article 23(2) nevertheless mandates Parliament to enact legislation giving original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation of a fundamental right or freedom in the Bill of Rights.

From the foregoing, it becomes clear that ‘constitutional court’ is not part of the hierarchical structure in our Kenyan judicial system.  In fact, nowhere in the Constitution of Kenya 2010 is there a mention of the term ‘constitutional court’! It would also follow that every High Court judge in Kenya has jurisdiction to discharge functions falling under Article 165 of the Constitution because the Constitution only makes blanket reference to ‘the High court.’ It is thus not difficult to fathom why for instance a land matter disputing ownership in the Environment and Land Division (ELC) and over which a constitutional petition is subsequently framed invoking the breach of the right to property under Article 40 of the Constitution is  unlikely to be enthusiastically entertained in the CHR Division in the first instance (and  now more than ever with the establishment of the Environment and Land Court).

Courts have also on numerous occasions emphatically ruled that where there is a specific mechanism given for resolution of disputes, then that must be followed and that the Constitution is not meant to replace the existent statutory regime.[3] That is why for instance a constitutional petition solely claiming maintenance and custody of children and which invokes say, Article 53 of the Constitution on equal parental responsibility is likely to be rerouted back to the Children’s court for hearing and determination.[4] We shall examine this issue in depth later on in this forum.

What better way to shed light on the jurisdictional question than a peek at the drafters’ mind.

2.1 Constitutional Court in the Constitution making process

A perusal of the Final Report of the Committee of Experts on Constitutional Review (“theCoE Report”),[5] will reveal that the case for a constitutional court is not novel and attracted some ounce of debate and controversy in the constitutional making process. According to the Report, the proposal for the specialized court was made against the background of the eroded confidence in the independence and integrity of the judiciary, the prevailing baggage of judicial practice that denied access to justice and the introduction of new provisions in the draft constitution, including an expanded Bill of Rights whose interpretation necessitated a specialised court.[6]

The proposal for a constitutional court found its way in the Harmonised Draft.  The rationale for establishment of a constitutional court as advanced by the Committee of Experts (CoE) was that first, it would be a court presided over by judges that have specialised in or have experience in constitutional law and human rights and who would concentrate on matters regarding interpretation and implementation of the bill of rights. Second, it was envisioned that the specialized court would permit the speedy determination of disputes arising out of presidential election and that the court would ensure effective resolution of disputes between the national and devolved governments.  Lastly, it was expected that the constitutional court would permit speedy and effective handling of disputes or appeals over elective and administrative boundaries.

However, even at that nascent stage, concerns were raised on the role of the constitutional court relative to other courts with some members of the public opining that a constitutional court was unnecessary and that the CoE had “gone out of its mandate” by creating one in the Harmonized Draft Constitution.[7]

The CoE also mulled over the idea of having a High Court division playing the role of a constitutional court. On this issue, the CoE Report records that, “…While some memoranda argued that a Division of the High Court, as is the current arrangement, could play the role of a Constitutional Court, the CoE found that this would not be adequate. Divisions of the courts are not established by the constitution and so could be abolished over time. The existing Division was also temporary and did not have judges who sat on it permanently… But, the Harmonized Draft Constitution provided for a new and strengthened Bill of Rights as well as several new constitutional institutions, such as the devolved governments. There was therefore need for a permanent judicial mechanism that would enhance constitutional jurisprudence that promotes constitutionalism. The CoE was of the view, however, that there was need to further clarify the role of the Constitutional Court to ensure that there would not be conflicts between it and the other courts.”

The proposition for a constitutional court eventually never saw the light of day as the CoE agreed to delete references to the Constitutional Court in the Proposed Constitution following the recommendations of the Parliamentary Select Committee (PSC).  Regarding the functions of the High Court,the CoE Report notes that, “With respect to the High Court, the PSC retained that Court’s fundamental structure and functions. It also anticipated this Court assuming the functions of the Constitutional Court. However, the PSC Draft did not transfer the functions of the Constitutional Court fully. The CoE rectified this by providing for jurisdiction respecting interpretation of the new constitution, including unconstitutionality of any action taken under the constitution; differences over the powers and function of national and county government and between counties inter se; disputes between state organs; and questions of conflict of laws. The CoE also made provision for constituting a bench of multiple judges for matters raising substantial matters of a constitutional nature.”[8] [Emphasis mine]

It becomes immediately clear that the ultimate intendment of the framers of our supreme law was to do away with a special distinct court by the name ‘constitutional court’ and it effectively did so as the court was never established in the promulgated Constitution of Kenya, 2010. Further, it dawns that the functions that had earlier been earmarked for the proposed specialised court were largely transferred to the existent High Court.

In his speech on the Progress Report on the Transformation of the Judiciary the First Hundred and Twenty Days[9] delivered on the 19th October, 2011,theHon. Dr. Willy Mutunga Chief Justice/President of the Supreme Court of Kenya, remarked as follows regarding the divisions of the High Court; “I have reorganised and reconstituted the divisions of the High Court in an attempt to honour and respect the spirit of the Constitution and the popular aspirations of our people as expressed through their sovereign will in the referendum. There are now divisions for Land and Environment, Judicial Review, Commercial and Admiralty, and Constitution and Human Rights. The Commercial and Admiralty division will accelerate the adjudication of commercial disputes and reduce the transaction costs of justice for the private sector. The Constitution and Human Rights division will be the court of first instance in constitutional cases; and will play a leading role in addressing the many issues around the interpretation and enforcement of our expanded Bill of Rights. The Land and Environment division will deal with the critical issues of sustainable development and equitable distribution of resources...”

2.2 Comparative Jurisprudence

Majority of the countries of the world lack independent constitutional courts whose mandate is to exclusively handle constitutional matters while in other jurisdictions, the name may differ yet retaining the functional aspect of a distinct constitutional court, yet in others, this function is shared with the existent courts such as the High Court or Supreme Court as the case may be.

The Kenyan situation is distinguishable from some of the jurisdictions whose Constitutions specifically entrench a constitutional court in their justice system with clear cut jurisdiction. The Republic of South Africa (RSA) is one such good example whose Constitution singles out ‘the Constitutional court’ identifying it as one of the courts in her judicial system; others being the Supreme Court of Appeal, the High Courts (including any high court of appeal), the Magistrates’ Courts and any other court established or recognised in terms of an Act of Parliament.[10]

TheConstitution of RSA(1996)[11] specifically establishes the Constitutional court as the highest court in all constitutional matters and provides for its composition and mandate.[12] The constitution also provides for functions within the exclusive domain of the court such as matters to do with disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state, questions on the constitutionality of any parliamentary or provincial Bill and the constitutionality of any amendment to the Constitution, constitutionality of any amendment to the constitution amongst other functions.[13]

The court is mandated to make the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and is the court that must confirm any order of invalidity made by the Supreme Court of Appeal, High Court, or a court of similar status before that order has any force. Does this then insinuate that the High Court totally lacks jurisdiction on constitutional issues? Perhaps not because the provision establishing the High Court mandates it to decide on,any constitutional matter except a matter that only the Constitutional Court may decide.[14]

Closer home, a glance at the Constitution of the Republic of Uganda (1995) discloses some reference to a Constitutional court under its Article 137. This scenario is however different from the South African one because such a court is what could be referred as ‘make-shift’ as it is temporary to be reconstituted from the existent Court of Appeal when need arises with the appellate court then sitting as the constitutional court.[15] It is this court that is to hear questions regarding the interpretation of the Constitution or petitions regarding acts or omissions thought to be inconsistent with or in contravention of a provision of the Constitution. However where the constitutional court as constituted considers that there is need for redress in addition to the declaration(s) sought, it may grant an order of redress or refer the matter to the High Court to investigate and determine the appropriate redress.

2.3 Alternative redress

It has become pedestrian to find litigants seeking remedies through the ‘constitutional court’ in what is in effect an attempt at  bypassing what would ideally be resolved by way of civil claims or normal appeal process. Crafty or politely call them ‘innovative’ litigants have devised means of seeking to have a second (sometimes even a third) bite of the cherry by trying to present what in essence is an appeal by way of  constitutional petitions  and an attempt at circumventing orders and decrees of competent courts. It is no longer astounding to find an unsuccessful litigant in say, a land dispute in the ELC division subsequently repackage and seek to re-introduce the same issues by way of a constitutional petition alleging for instance, breach of their right to property under Article 40 or housing and other socio-economic rights under Article 43, the latter being especially common in mass eviction cases.

These parties have often invoked Article 22 which gives any one a right of access to the court on allegations of breach or threatened breach of the bill of rights[16] while others have tried to impress on the unlimited original jurisdiction of the High court in all matters as captured under Article 165. What these Parties however fail to appreciate and what the Honourable Justices continue to emphasize is that the Constitution does not operate in a vacuum and did not oust the normal statutory mechanisms unless these are shown to be contradictory to constitutional provisions. The Constitution buttresses this point when at its Article 19(3)(b) it pronounces itself on the Chapter on the Bill of Rights as follows; “The rights and fundamental freedoms in the Bill of Rights-(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter;”

The provisions of the Sixth schedule to the Constitution also become relevant wherein section 7 reads that “All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it in conformity with this constitution.”

Regarding the Article 22 right, the court has been categorical that this right of access is not the exclusive means of enforcement of fundamental rights and freedoms. In the case of John Githongo and 2 others v Harun Mwau and 4 others, Nairobi Petition No. 44 of 2012 for instance,the court stated in part as follows;

“While Article 22 of the Constitution provides an independent and direct access to the High Court for enforcement, it is not the exclusive means for enforcing fundamental rights and freedoms…Firstly, the High Court under Article 165(3)(b) has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened. Article 165(3)(d) also grants the High Court jurisdiction respecting interpretation of the Constitution including a question whether any law is inconsistent with or in contravention of the Constitution and the question whether anything said to be done under the authority of the Constitution is consistent with or in contravention of the Constitution…This jurisdiction is not an independent jurisdiction, it is exercised in ordinary cases or disputes coming before the court and it need not be exercised through an Article 22 application.”[17]

The Res-judicata doctrine

These ambitious litigants also tend to overlook the principle that the application of the of res judicata doctrine (the legal principle that forbids courts from determining matters involving same issues and same parties already decided by a competent court) is not suspended merely because the matter at hand has undergone a ‘make-over’ and is now one adorned in constitutional attire.  The principle is applicable with equal force to enforcement of fundamental rights and freedoms just as it is to other ordinary civil matters. No wonder the learned Justice R. Kuloba earlier on in his book, Judicial Hints on Civil Procedure[18] hinted as follows:

“One of the greatest difficulties which face those courts which try land suits is the disposition of the disappointed litigant to dress up a suit which has failed in a new guise and to try his luck once more…Once a man has had his say, has taken his case as far as law permits him, and has failed, he must be stopped from re-litigating the same matter.”

This issue has been settled in a chain of authorities including that of Joseph Ihugo Mwaura & 82 others v Attorney General v Attorney General, Nairobi Petition No. 498 of 2009, Richard Nduati Kariuki v Leonard Nduati Kariuki & Another, Nairobi HC Misc. App. No. 7 of 2006, Booth Irrigation v Mombasa Water Products Ltd, Nairobi HC Misc. Appl. 1052 of 2004 and Thomas v Attorney General of Trinidad & Tobago [1991]LRC (Court), 101 Privy Council.

While citing the Booth Irrigation case(above),then Justice Nyamu in Kenya Bus Services Ltd & 2 others v Attorney General & 2 others[2005] eKLR remarked that, “Res Judicata does apply to constitutional matters, an unchallenged court order cannot be the basis of a constitutional application(to prevent execution)….A [constitutional court] has inherent powers to  prevent abuse of its process;’ while in Edwin Thuo v Attorney General & Another Nairobi Petition No. 212 of 2012 (Unreported) Justice Majanja warned that, “The courts must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court.  The test is whether the plaintiff is in the second suit trying to bring before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction.

It matters not whether the decision sought to be challenged is a consent judgment because gauging from the stream of case law regarding the weight of consent orders, these may only be varied or set aside in peculiar instances and thus, the doctrine of res judicata applies with equal measure.[19] In the case of Edwin Thuo v Attorney General and Another (above)for example, the court held that; “ … as long as the Agreement remains binding on the parties, neither party can circumvent the effect and consequences of this Agreement by attacking it under the guise of a petition to enforce fundamental rights and  freedoms.”

A similar holding was made in the case of Karanja Karenju v Attorney General, Nairobi Petition No. 621 of 2009 where the court gave its verdict as follows;

The parties in HCCC No. 46 of 1993 agreed on a course of action captured in the consent order. That determination was given effect by the court and the petitioner’s grievances duly adjudicated. I therefore find and hold that this petition is an attempt to re-open matters which are now closed….The petitioner has had his say. He must be stopped by dismissal of this petition.

Parties also seem oblivious of the fact that the CHR division is part of the High Court hierarchically and that any High court wields power to determine and interpret a constitutional question arising from any matter properly before it. The court in the case of John Githongo and 2 others v Harun Mwau and 4 others (cited above) when faced with a similar question had this to say regarding the jurisdiction of the High Court; at Paras 39, 42;

“The collective effect of these provisions is that the Constitution and Bill of Rights must permeate all proceedings before the court and the High court, which is imbued with jurisdiction under Article 165, has the ability to deal with any matters of the Constitution and the Bill of Rights that arise in any proceedings before it. I must emphasise that there is only one High Court whose jurisdiction is to give effect to the provisions of the Constitution and in particular the Bill of Rights in all cases and at all times…

I therefore conclude that the High Court, in the civil case and indeed in any civil case, has jurisdiction to hear and determine any matter concerning interpretation of the Constitution and enforcement of fundamental rights and freedoms under the Bill of Rights.” [Emphasis mine]

In my view and at the risk of appearing to corrupt the famous words of Shakespeare, the catchphrase from the above case law would seem to be that that which we call a High court by any other name is still a High court.[20] We have only one High court in Kenya, possessing uniform jurisdiction, and in spite of the variant divisions it may be categorized into and known by, its nature never changes; it remains a High court.

Commonly ignored is also the fact that while a High court can review its decision in certain instances known under law, it cannot purport to sit in review over decisions of a court of equal and competent jurisdiction much less a more superior court. We shall revert to this issue later.

That is not all. Even more interesting scenarios are instances where litigants attempt to elongate the appellate ladder in our justice system by seeking what is in essence a bid to revive and recycle hitherto concluded matters. These are the “never say die” type of litigants and who, having duly exhausted the country’s judicial stairway of dispute resolution all the way to the Court of Appeal (henceforth there might follow even Supreme court ones) then decide to take a step back and seek refuge in the mythical “Constitutional court” in the belief that it will review and hopefully overturn the appellate court’s finding! The Court has been keen to stop such cases in their tracks and avert what would otherwise be an abuse of the court process not to mention unlawful.[21]

Further adding onto the cause list are those good citizens who equate prosecution to persecution and will dash to the so-called ‘constitutional court’ at the slightest whiff of institution of criminal proceedings in the magistrate’s courts against them, alleging a breach of one or other of their fundamental rights and freedoms against their person. Such litigants will characteristically invoke the supervisory jurisdiction of the High Court under Article 165(6). They willgarnish the allegations of infringement of their rights whether real or perceived, often times the latter; with claims of abuse of court process by the prosecutorial authorities in a bid to stay but mostly quash the criminal proceedings in the lower courts or even stop prospective charges in their tracks…this even before the charges are framed against them! What can be loosely christened ‘anticipatory petitions’ or if you may, ‘petitions in anticipation of arrest.’[22]

I somewhat digressed…again.

In addressing the issue of alternative remedy, the court in the case of Re Application by Bahadur [1986] LRC (Const) 297 (from Trinidad & Tobago) stated that the Constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action and that where infringements of rights can found a claim under substantive law, the proper course would be to bring the claim under that law and not under the Constitution. The court went further to emphasize that [at p 307]; “The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the unwisdom of ignoring that advice…The Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest court in the land, it is not “a general substitute for the normal procedures for invoking judicial control of administrative action.(See Harrikisson v A.G. [1979] 3 WLR 62).

In the Githongo case (cited above), the court further advised that where review or such like Orders are desired, excluding of course appeals, then it is prudent to raise the same before the court that issued them rather than institute separate proceedings. The court had this to say (at para. 50):

The law governing civil procedure is replete with provisions that entitle a party to set aside an order made ex-parte, review orders where there is an error of law apparent on the face of the record or for sufficient reason. This jurisdiction is not exercised by commencing parallel proceedings but by making an application in the same case. To insist that the issues raised in this petition be dealt with in the civil suit will not impair the petitioners’ rights and the petitioners will be heard by a court competent to enforce their fundamental rights and freedoms.

The court in Robert Mwangi v Shepherd Catering Limited & Others, NairobiPetition No. 84 of 2012 sure did drive the point home via this simple counsel;

[29]. This message must be brought home to litigants, and the duty to do this lies with their legal counsel. If a party is dissatisfied with a decision or conduct of a judge sitting in any Division or station of the High Court, and alleges that there has been a violation of his or her constitutional rights, the alleged violation must be raised before the judge of the High Court seized of the matter. If the party is still not happy with the decision of that Court, then his or her remedy lies in the Court of Appeal, and from there, the Supreme Court, as provided in the Constitution and the relevant legislation.  These are the Courts in our system of courts to which appellate jurisdiction is vested…

Trivializing the constitutional jurisdiction

The Privy Council in the Harrikisson case (above)warned of what it saw as danger light if the right to apply to the High court were allowed to be misused as a general substitute for the normal proceedings for invoking judicial control of administrative action, noting that such amove risked diminishing the value of the protection of fundamental rights and freedoms guaranteed under the Constitution.

Litigants and their legal counsels might do well to take note of words of Justice Nyamu, as he then was in the case of Rodgers Mema Nzioka v AG, Nairobi, Petition No. 613 of 2006 where in terming such applications as trivializing of the Constitutional jurisdiction remarked thus;

“This court has held that constitutional jurisdiction should not be trivialised and should be confined to purely constitutional matters. Where the ordinary law provides for relief that relief must be pursued. In this case there are provisions for relief by way of compensation under the Mining Act and this is what the Petitioner is entitled to pursue as a remedy.”

The learned Judge then went on to state that where a party deliberately avoided to pursue the statutory remedies for compensation or any other remedy  and instead purported to invoke the Constitution, then such a move constituted abuse of the court process and also trivialized the Constitutional jurisdiction.

The question of alternative redress has been recently interrogated in the land mark case of International Centre for Policy and Conflict & 5 others v The Hon. Attorney General & 4 others, Nairobi Petition 552 of 2012, [2013]eKLR (theIntegrity Case’)where in finding that the applicants ought to have in the first instance raised the issue of qualification of persons vying for elective positions with Kenya’s Independent Electoral and Boundaries Commission, being the electoral body tasked under law with regulating the nomination exercise, the five-judge bench(A.M. Msagha, L. Kimaru, H.A. Omondi, P. Nyamweya G.K. Kimondo(JJ))  ruled inter alia,(at Paras 109, 110);

“An important tenet of the concept of the rule of law is that this court before exercising its jurisdiction under Article 165 of the constitution in general, must exercise restraint. It must first give an opportunity to the relevant constitutional bodies or State organs to deal with the dispute under the relevant provision of the parent statute. If the court were to act in haste, it would be presuming bad faith or inability by that body to act…Where there exists sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted.” In this regard we refer to the decision In Re Francis Gitau Parsimei & others v National Alliance Party and others, Nairobi Petition No. 356 of 2012(unreported) in which the court emphasized the principle that:

“Where the Constitution and or a statute establishes a dispute resolution procedure, then that procedure must be used.”

3.0 Supervision of Superior Courts

In spite of the plethora of judicial pronouncements on the subject, the Constitutional and Human Rights Division continues to be frequently visited with matters where there are clearly layed down statutory mechanisms of resolving the disputes at hand and where there are institutions statutorily even constitutionally established and specifically charged with the responsibility to deal with the grievances.

Attracting serious concerns are those suits which seek what is in effect a review or correction of decisions of High Court in another Division, in essence pursuing what Justice Majanja has on numerous occasions termed as ‘lodging of collateral attack’ over decisions of courts of equal and competent jurisdiction.[23] Learned counsel have incessantly prayed for what can only be equated to ‘miracles’ from the ‘Constitutional court’, moving it to resurrect matters conclusively buried in judicial determination by courts of equal and competent authority. They continue to ask for tall orders…quite literally, from the CHR division on behalf of their clients ranging from a stay of proceedings hitherto ongoing in other High Court divisions, while in others, they bluntly have asked the superintendents of this Honourable division, to set aside such orders and decrees. Now, that is a misconception out there that the CHR division superintends over other High court divisions. Nothing could be further from the truth. Whoever subscribes to this school knows not the intention of the great men and women; the framers of our great Constitution which we glimpsed at earlier, and which was translated into the now supreme law; the Constitution of Kenya, 2010.

It must have been the prevalence of such mystification  that led the current Presiding Judge of the Constitutional and Human Rights Division at Nairobi; the Hon. Lenaola J in the case of Philip Kipchirchir Moi-v- The Hon. Attorney General & Another Nairobi Petition No. 65 of 2012,,to articulate as follows:

I must begin by dispelling the fallacy that the Constitutional and Human Rights Division of the High Court in Nairobi has jurisdiction to superintend, supervise, direct, guide, shepherd and/or purport to mend the mistakes, real or perceived, of other Divisions of the High Court in Nairobi or elsewhere in Kenya. In spite of the continued and consistent stand of judges of that Division that it cannot have been the intention of the framers of the Constitution that such a position should exist, parties in every conceivable case, continue to invoke that fallacious and misguided jurisdiction.

Mumbi J. of the same Division expressed similar sentiments when she delivered her ruling in the case of Joseph Baariu Imiemba & Another v Hon. Attorney General [2012] eKLR, Petition 61 of 2012, where in dismissing the Petition, remarked as follows;

“Under what circumstances can a Court re-open a matter, as the petitioners in this case are clearly asking this Court to do? Is it now open to the petitioners to raise the issue which they had full opportunity to raise but did not in the form of a constitutional reference? More importantly, does this Court have jurisdiction to, as it were, sit on appeal on a decision of the Court of Appeal because it is brought under the guise of a constitutional reference?…The petitioners have gone through the gamut of the appellate process available to them. They could have raised the issues they now raise before this Court in the High Court on their first appeal, or in the Court of Appeal. In effect, they are asking this Court to consider afresh the issue of their sentence.”

The learned Judge went further to observe as follows; “The petitioners have not invoked the provisions of Article 50(6). They are not alleging that new and compelling evidence has become available. Rather, they are asking the Court to address its mind to matters that were within the jurisdiction of the courts which heard the petitioners’ appeals, and to which the point now in issue in this petition could have been addressed. They are, in effect, asking this court to, as it were, sit on appeal on the decisions of the High Court and the Court of Appeal…. It would be to arrogate to itself jurisdiction which it does not have for this Court to purport to entertain this petition and to grant the orders prayed for.” [Emphasis added]

In that matter, the Petitioners claimed that the provisions of section 297(2) of the Penal Code that prescribed a mandatory death sentence for the offence of attempted robbery with violence, was at variance with section 389 of the Penal Code which prescribed punishments for attempted offences. They had argued that therefore, their conviction and sentence to death for attempted robbery with violence was a violation of their constitutional rights and that the sentence meted out on them was excessive, arbitrary and inhuman and deprived them of the right to a fair trial contrary to Article 50(2) of the Constitution. Interestingly, the Petitioners had unsuccessfully appealed to the appellate Court against their conviction and sentence prior to moving the court.

In the case of Joseph Kimari & 2 others v Attorney General & 2 others, Nairobi HC Petition No. 25 of 2009 Majanja J. while dismissing the petitionruled in part as follows; “The issue of who is the owner of the property on which the respondents occupy had been determined by a court of competent jurisdiction…The Court of Appeal affirmed the High Court judgment and the High Court, once again, has declined to reopen the issue…I am afraid that the decisions made by the High Court and the Court of Appeal cannot be circumvented by dressing up a matter which has been the subject of these decisions as a petition for relief for the violation of fundamental rights and freedoms under Article 22…What the Petitioner seeks in substance is a review of the judgment of the High Court on the basis of a likelihood of breach of fundamental rights and freedoms by execution of a High Court decree. I must emphasise that this court has no jurisdiction to proceed in the manner suggested by the petitioner…This matter must now remain buried. The petition is res-judicata and an abuse of process.”[Emphasis mine].

Similarly, in Robert Mwangi v Shepherd Catering Limited & Others(cited above)Mumbi J. summed up as follows;“[30] A judge sitting in the Constitutional and Human Rights Division has the same jurisdiction as any other judge sitting in any other Division of the High Court. To ask such a judge to adjudicate in a matter that is before another judge of the High Court is to ask the judge to act in a matter that he or she has no jurisdiction over.”

The court of Appeal (E. M. Githinji, H. M. Okwengu D. K. Maraga(JJA)) sitting at Nyeri in the matter of Methodist Church in Kenya Trustees Registered & another v Rev. Jeremiah Muku & another, Civil Appeal 233 of 2008 [2012]e KLR also dealt with the issue of challenging the constitutionality of a court decision and the appellate court favoured the view that collateral attack through a constitutional petition was a gross abuse of the process of court. This case underlined the principle that a judgment of court cannot be challenged as being in breach of the fundamental rights and freedom stating that a judge cannot be faulted for ascertaining the law and further that ordinary errors made in the course of adjudication by courts of law should be cured by invoking the mechanism and procedures prescribed by the ordinary law for correction of errors such as appeal or review. The court relied on the case of Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385, where the Privy Council held at page 399:

“In the first place, no human right or fundamental freedom recognized by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was an error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by section 1(a); and no irregularity in procedure is enough, even though, it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event…”

Several other authorities have dealt with the issue of ‘collateral attacks’ including that of Athanas Nzuki v Uchumi Supermarket Ltd, Misc. Civil Suit No.1527 of 2004(OS),Retired Major Sharack Mutia Muia v Prof. Kivutha Kibwana and others, Nairobi petition No. 281 of 2006, John Githongo and Another v Harun Mwau and Others (above), Robert Mwangi v Shephered Catering and Another Nairobi Petition No. 89 of 2012 (Unreported)), Jomunjo Education Foundation Limited v Daniel Kipurket Lepatei & 3 others, Petition No. 508 of 2012, Kyangombe Resident Association and others v Attorney General & others, Nairobi HC Petition no. 188 of 2011 andChokolingo v Attorney General of Trinidad and Tobago[1981] WLR 108.[24]

It is noteworthy that the controversy regarding the nature of the Constitutional and Human Rights division or the ‘constitutional court’ if you may has not set in with the new Constitutional dispensation. The debate seems to have been rife way before the promulgation of the Constitution of Kenya, 2010 as depicted by the CoE report referred to earlier and as can be deciphered from the sentiments expressed by the Court of Appeal in the case of Peter Ng’ang’a Muiruri vs. Credit Bank Ltd & 2 others [2008] eKLR, Nairobi Civil Appeal No. 203 of 2006 where the court delivered itself thus;

There is no provision in the Constitution which establishes what Nyamu J. referred to as the Constitutional Court. In Kenya we have a Division of the High Court at Nairobi referred to as “Constitutional and Judicial Review” Division. It is not an independent Court but merely a Division of the High Court. The wording of Section 67 of the Constitution which donate the power to the High Court to deal with questions of interpretation of Sections of the Constitution or parts thereof does not talk about a Constitutional Court. Instead it talks about the High Court.

With regard to the protective provisions, Section 84 of the Constitution does not in any of its sub-sections talk about the Constitutional Court. Instead it talks about an Application being made to the High Court.  In view of what we have stated above, it is quite clear that Nyamu, J.’s remarks which we earlier reproduced were based on the mistaken belief that the Constitution had created a Court called the Constitutional Court with supervisory powers over all other Courts. The Hon. The Chief Justice must have been aware that no such Court is established under the Constitution and that, we think, would explain why he created a Constitutional Division and not a Constitutional Court. The creation of the Constitutional and Judicial Review Division was an administrative act with the sole object of managing the cause list. The Chief Justice would have no jurisdiction to create a Constitutional Court as opposed to creating a Division of the High Court. Any single judge of the High Court in this country has the jurisdiction and power to handle a constitutional question. The fact that a constitutional Division was established did not by such establishment create a Court superior to a single judge of the High Court sitting alone. It would be a usurpation of power to push forward such an approach and whatever decision which emanates from a Court regarding itself as a Constitutional Court with powers of review over decisions of judges of concurrent or superior jurisdiction such decision is at best a nullity …[25]

If case law does not completely unravel the myth, perhaps revisiting Constitutional provisions will aid better appreciation as to why a High court will not sit in review over decisions of a fellow superior court. We have already seen that the Article 162(1) lists the High Court as one of the superior courts. The provision reads thus, “162. (1)The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2). Clause (2) makes reference to the now Industrial Court and Land and environment courts. [26]

It is notable that while Article 165 gives the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, it forbids it from exercising supervisory jurisdiction over a fellow superior court. Article 165(6) is unequivocal that, “The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” Article 165(5)(b) provides that, “The High Court shall not have jurisdiction in respect of matters, “(b) falling within the jurisdiction of the courts contemplated in Article 162(2),” The High Court may also not handle matters that are exclusively designated for the Supreme Court as stipulated under Article 163(3), one being the jurisdiction to hear and determine disputes relating to elections to the office of the President.[27]

Regarding the jurisdiction of the ‘status courts’, the court set out this clearly in the case of UnitedStatesInternationalUniversity (USIU) v Attorney General & 2 others High Court at Nairobi Petition No 170 of 2012, in which Majanja J. exhaustively interrogated the status of the Industrial Court established under the new Constitution and whether ‘having the status of the High Court’ for all intent and purposes meant a superior court entitling it to determine constitutional issues emanating from labour-related matters. The learned judge opined that the jurisdiction bestowed upon the High Court under Article 165(3) was not absolute but  was ‘subject to clause (5)’ of the Article whose provisions forbade the High Court from exercising jurisdiction over matters falling within the province of the Supreme Court and the specialized courts established under Article 162(2). Noting that the ‘status courts’ under Article 162(2) were superior courts despite the fact that their functions were to be defined by Parliament rather than the Constitution, the learned Judge  after making a comparison with other jurisdictions concluded as follows at Para. 43;

“To accept a position where the Industrial Court lacks jurisdiction to deal with constitutional matters arising within matters its competence would undermine the status of the court. Reference of a constitutional matter to the High Court for determination or permitting the filing of constitutional matters incidental to labour relations matters would lead to the High Court supervising a superior court. Ordinarily where the High Court exercises jurisdiction to interpret the Constitution or enforce fundamental rights, its decisions even where declaratory in nature will require the court to follow or observe the direction. This would mean that the High Court would be supervising the Industrial Court which is prohibited by Article 165(6).”[28]

This argument seems to be impliedly supported by the provisions of section 17 of the Industrial Court Act[29] which say that appeals from the Industrial Court against any judgment, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution lie to the Court of Appeal and section 18 which gives the court appellate jurisdiction over decisions of certain judicial and quasi-judicial bodies. Worth noting are provisions of section 12(1) of the Industrial Court Act which expressly confer upon the Industrial court, “exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of [the] Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations.”Similarly, Section 13(1) of the Environment and Land Court Act vests upon the court exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under the Act.[30]

4.0 Conclusion

Drawing a line between what matters squarely fall under a particular High Court division, particularly the Constitutional and Human Rights Division is, in my humble view not always a work of mathematical precision especially bearing in mind, let’s face it, most if not all disputes before a court of law will necessarily involve some form of constitutional infraction, directly or indirectly; however remote. Perhaps this is a riddle better solved by way of ‘elimination method:’

First, it ought to be borne in mind that divisions of the High Court are administrative in nature and do not necessarily dictate as to the jurisdictional confines of the sitting judge. As earlier discussed, the divisions are administrative walls, the common denominator being that first and foremost, they are substantively High Courts in the hierarchical structure in the judicial system. And we have one High Court. It would therefore follow that every High Court judge is seized with equal jurisdiction and all High court judges are at par to handle matters dealing with interpretation of the Constitution and violations of the Bill of Rights by dint of Article 23(1) as read with Article 165 of the Constitution.

Second, a High court may not determine matters falling squarely under the jurisdiction of the ‘status courts’ namely the Employment and Labour Relations Court(read Industrial Court) and the Land and Environment Court. These are the courts established under Article 162(2) and whose jurisdiction is spelt out in the respective constitutive statutes.[31] But even with that clear-cut jurisdictional demarcation on paper, this, in my view is not in practical terms, always black and white as it may sound. Sometimes matters camouflaged in what may on the surface appear to be a serious constitutional issue or other matter falling in other High Court divisions may, on a closer scrutiny reveal otherwise- that the germane of the application is actually a labour dispute or land issue falling squarely in the forbidden sphere of the specialized courts!

Third is the verdict that while the Constitution guarantees right to access courts, the same Constitution neither operates in a vacuum nor does it automatically oust other statutory provisions brought to life by the legislative arm of government; a delegate and trustee of the sovereign power of the people of Kenya under Article 1 as read with Article 94 of our constitution.  As such, where alternative forum lies such as enforcement mechanism under statute, say enforcement of a simple contract, a constitutional petition will most likely not be admitted. Similarly, where particular institutions are tasked under the Constitution or statute to deal with specific grievances, then these channels need to be first explored and exhausted before the intervention of the court is sought unless these are shown to be ineffective or unwilling to discharge their mandate in which case the court may flex its supervisory muscle under Article 165(6) and possibly issue the necessary prerogative writs against the impugned quasi-judicial body or other appropriate relief under Article 23(3).[32]

Fourth is the rule of thumb that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those of courts higher than themselves and that matters falling under the exclusive jurisdiction of the Supreme Court under Article 163(3) cannot be dealt with by the High Court.

The sum total to the above equation, to my mind equals or at least rounds off to the nearest jurisdictional precincts of the High Court.

Having established that divisions of the High Court are administrative, perhaps Practice notes/ directions would go a long way in assisting settle the jurisdictional confusion among litigants and hopefully nip off some of the unnecessary litigation in their buds thus ridding the daily cause lists of superfluous matters the cumulative effect of which is saving the one precious yet fixed resource in our court rooms; judicial time. These, in my view might be especially relevant to prospective litigants who may not make sense out of the ‘nice’ things that we have attempted to canvass above.

More importantly, every party involved needs to play their respective roles even as the arbiters continue to work tirelessly in balancing the scales of justice. Litigants need to take responsibility as they exercise their undoubted constitutional right to access justice; where Parties are represented, counsels will need to candidly advise their clients on filing their suits in the appropriate forum and desist temptations to ‘forum-shop’ or other maneuvers highlighted above so as to avoid, if nothing else, unnecessary disappointments at the end of it all. After all it has long been accepted that ignorance of the law is no defence. One might also offer that it is more ‘economical’ whichever angle one looks at and to the advantage of all parties involved to have the limited judicial time utilized on adjudicating and dispensing substantive justice rather than on protracted preliminary contests on forum or jurisdiction. But when all is said and done, prospective litigants are encouraged, in as far as possible to justly settle their beef out of court through alternative dispute resolution mechanisms within the law because needless to say, aside time factor and costs, court processes are combative by their very nature and at times eternally bruise hitherto priceless relations. The converse is true for mutual alternative dispute resolution mechanisms in which both opponents enjoy a happy ending.


* The writer is a Legal Researcher at the Judiciary’s Constitutional and Human Rights Division at Nairobi.  Except where it is otherwise expressly stated, the views expressed in this writing are solely those of the author and do not represent those of any Judge or other member of the Division.

[1]  Speech entitled ‘Elements of Progressive Jurisprudence In Kenya: A Reflection’delivered by Hon. Dr. Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya, Nairobi, 31st May, 2012. (Available at http://www.kenyalaw.org/Forum/?p=498).

[2] Several authorities have dealt with this issue including that of Wachira Weheire v Attorney- General Miscellaneous Civil Case 1184 of 2003 [2010] eKlR.

[3] See cases of  Dickson Mukwelukeine v Attorney General & 4 others, Petition No. 390 of 2012, Thande v Montgomery and Others [1970] EA 341, The Speaker of The National Assembly v The Hon James Njenga Karume, Civil Application No 92 of 1992 (Unreported), Kipkalya Kiprono Kones v Republic and Another ex-parte Kimani Wanyoike & 4 Others, (2008) 3 KLR (EP) 291, Wanyoike v Electoral Commission of Kenya (No. 2) (2008) 2 KLR (EP) 43, Bernard Samuel Kasingav Attorney General and Others, Nairobi Petition No. 402 of 2012 (Unreported)), Michael Wachira Nderitu and Others v Mary Wambui Munene and Others[2013]eKLR.

[4] See for instance case of Violet Kedogo Kiharangwa v Preston Ngira Obadiah, Petition No. 339 of 2011 as per Lenaola J. and John Githongo and Another v Harun Mwau and Others Nairobi Petition No. 44 of 2012 (Unreported) as per Majanja J.

[5] The Final Report of the Committee of Experts on Constitutional Review (“the CoE Report”), dated 11th February 2010.

[6] Para.  5.2.6 ibid.

[7] See para. 7.5.5.2 on ‘Changes to the chapter on the Judiciary’ CoE Report ibid.

[8] Para. 8.11.3 on ‘System of Courts,’ ibid.

[9] Source: Kenya Law Reports website at http://www.kenyalaw.org/Forum/?p=227(last accessed January, 2013).

[10] See section 166.

[11] Constitution of The Republic of South Africa, No. 108 of 1996  Promulgated on December1996.

[12] See s 167. The Constitutional court comprises the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges. A matter before the Constitutional Court must be heard by at least eight judges.

[13] Section 167(4).

[14] See section 169.

[15] Article 137 (1) provides that, “Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.”  When sitting as a constitutional court, the court of appeal is to consist of a bench of five members.

[16] Article 22(1) states that, “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”

[17] Similar sentiments were  expressed in the case of Fleur Investment Limited v Permanent Secretary,  Ministry of Roads and others, Nairobi Petition No. 173 of 2011 and Peter Kaluma v Attorney General Nairobi Petition No. 79 of 2011(Unreported)).

[18] R. Kuloba, Judicial Hints on Civil Procedure, 1984(Vol 1) at p46.

[19] For more authorities on consent judgment, see  also Kenya Commercial Bank v Benjoh Amalgamated Limited and Another, Nairobi Civil Appeal No. 276 of 1997,Richard Nduati Kariuki v Leonard Nduati Kariuki and another, Nairobi Misc. Civil Appl. No. 7 of 2006.

[20] Phrase coined from William Shakespeare’s famous play, Romeo and Juliet (II, ii, 1-2), in which one of the characters, Juliet is depicted as stating, “What’s in a name? that which we call a rose

By any other name would smell as sweet.”(The Oxford Shakespeare, 1914).

[21] See for instance the case of Joseph Baariu Imiemba & Another v Hon. Attorney General [2012] eKLR, Petition 61 of 2012 per Mumbi J. &Wilson Thirimba Mwangi v Director of Public Prosecutions, JR Misc. Application No. 271 of 2011 as per Majanja J.

[22] Several authorities have dealt with this matter with the catchphrase seemingly being that a court of law will not interfere with the independence of the Office of the Director of Public Prosecutions (DPP) underlined under Article 157(10) of the Constitution or any other body for that matter in the discharge of their mandate as long as the same is carried out procedurally and in accordance with the law. The court has however in rare cases quashed such criminal proceedings where circumstances of the case disclose ulterior motives such as vendetta, harassment, bad faith or otherwise abuse of its process. See cases of Florence Dorothy and 2 others v Director of Public Prosecutions and others, Nairobi Petition No 341 of 2012, Peter George Antony D’costa v Attorney General and another, Nairobi Petition No. 83 of 2010, Hon. Chirau Ali Mwakwere v Robert Mabera & others, Nairobi, Petition No. 6 of2012, William S. K. Ruto and Another v Attorney General and Another Nairobi HCCC No. 1192 of 2004 (Unreported) [2010] eKLR, Jacob Juma v The Director of Public Prosecutions and Other Nairobi HC JR Petition No. 652 of 2009 (Unreported), Bryan Yongo v Attorney General Nairobi HCCC No. 61 and 196 of 2006 (Unreported), Elory Kranveld v Attorney General Nairobi Petition No. 153 of 2012 (Unreported), Peter Maina Gacheru  v The Director of Public Prosecutions, Nairobi Petition No 161 of 2012, Francis Anyango Juma v Director of Public Prosecutions and another, Nairobi Petition No. 160 of 2012, John Swaka v Director of Public Prosecutions and  2 others, Nairobi Petition No 318 of 2011, Republic v Amos Karatu Nairobi HC Criminal Case No. 12 of 1996 (Unreported) and Ndarua v Republic [2002] 1 EA 205).

[23] See Andrew Okiya Omtatah Okoiti & 3 others v Attorney General & another, Petition No. 351 of 2012 [2012] eKLR.

[24] For opposite views regarding court’s powers to set aside or otherwise review decision of a court of concurrent jurisdiction, see cases of Labhsons Limited v Manula Hauliers Limited t/a Tausi Travellers, Nairobi HCCC No. 204 of 2003, Peter Ng’ang’a Muiruri v Credit Bank Limited and Others, Nairobi HC Misc. Appl. No. 1382 of 2003(OS), Kinyanjui v Attorney General [2005] 2KLR 485 and Martha Karua v Radio Africa Ltd t/a Kiss FM Station, Nairobi HCCC No. 288 of 2004.

[25] This was an appeal from the High Court decision in Peter Ng’ang’a Muiruri v Credit Bank Limited and others, Nairobi HC Misc. Appl. No. 1382 of 2003(OS) in which then Justice Nyamu opined that there was nothing wrong in subjecting a decision or order of a High Court judge to a constitutional court opining in part that, ‘The exercise of this jurisdiction by any Judge of the High Court is not based on rank and it ought not to be a source of unpleasantness but  a big credit to our systems of justice…I see no inconsistency with the status and dignity of a Judge that his decision should be subject to a constitutional challenge.”

[26] Indeed, the long title to the Industrial Court Act reads that it is “An Act of Parliament to establish the Industrial Courtas a superior court of record; to confer jurisdiction on the Court with respect to employment and labour relations and for connected purposes.” Even more telling is section 4(2) of the Act which is unequivocal that, “The Court shall be a superior court of record with the status of the High Court.”These provisions are regurgitated in the corresponding section 4(2) of the Environment and Land Act in relation to the Environment and Land Court established under the section.

[27] See Supreme Court decision in Advisory Opinion Application No. 2 of 2012, In The Matter of the Principle of Gender Representation in the National Assembly and the Senate, (2012) e KLR and the Integrity Case cited earlier.

[28] See also cases of Rob De Jong and another v Charles Mureithi Wachira, Civil Appeal No. 137 of 2009 per M.K. Ibrahim and J.W. Mwera (JJ), Kenyatta University v Industrial Court of Kenya and another, Misc. Civil Appl. No. 430 of 2007 as per Mumbi J.  and Nzoia Sugar Company v Attorney General and 2 others, Nairobi Petition No. 212 of 2012 as Lenaola J. for this proposition.

[29] Industrial Court Act, No. 20 of 2011 was enacted pursuance of the provisions of Article 162(2)(a) of the Constitution. The Act was assented to on 27th August 2011 and came into force on 30th August 2011. Section 4 of the Act established the Industrial court as a superior court of record with the status of the High Court.

[30] See also sections 150 and 101 of the Land Act (No. 6 of 2010) and the Land Registration Act, 2012(Act No. 3 of 2012) respectively which affirm the exclusive jurisdiction of the Environment and Land court in land matters.

[31] See particularly section 13(2) of theEnvironment and Land Court Act (No. 19 of 2011) and section 12(1) of the Industrial Court Act (No. 20 of 2011).

[32] See for instance Avtech Systems Ltd v Ministry of Public Works Parliamentary Service and 2 others, Misc. Appl. No. 446 of 2012 and The Staff , Disciplinary Committee of Maseno University and Others v Prof. Ochong’ Okello Kisumu CA Civil Appeal No. 182 of 2004 (Unreported) [2012] eKLR and the Integrity Case above.

The High Court will often decline jurisdiction in the first instance, not because it is divested of the jurisdiction to tackle the matters per se (Article 165 already vests in the High court wide latitude to exercise the judicial authority), but because in addition to the reasons addressed to earlier, rule of law and good governance demands that such alternative institutions and fori ought to be utilized and not be rendered redundant. Parliament may not be presumed to have enacted superfluous provisions in providing for such alternative mechanisms of dispute resolution least of all to have been ignorant of the needs or gaps it sought to fulfil in the first place by providing for such special channels of redress under statute as it did.

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