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Kenya Law / Blog / Case Summary: Court of Appeal Land Mark Jurisprudence: An Analysis of Decisions Issued by Extra-Ordinary Benches of the Court of Appeal Between October 1993 and October 2013

Court of Appeal Land Mark Jurisprudence: An Analysis of Decisions Issued by Extra-Ordinary Benches of the Court of Appeal Between October 1993 and October 2013

Compiled By Michael M. Murungi, Editor, Kenya Law Reports and Monica Achode, Senior Law Reporter

 

1. Death Sentence is Constitutional and mandatory

 

Joseph Njuguna Mwaura & 2 others v Republic

Criminal Appeal No 5 of 2008

Court of Appeal at Nairobi

J W Mwera, M Warsame, P Kiage, S Gatembu-Kairu & J Mohammed, JJA

October 18, 2013

Reported by Lynette A. Jakakimba

 

Brief facts

The appellants had been found guilty of two counts of robbery with violence and sentenced to death as provided for in section 296 (2) of the Penal Code by the trial Magistrate. On their first appeal they faulted the trial magistrate’s reliance on the identification evidence by the Prosecution witnesses and stated that it was not sound, and could not be relied on, as the witnesses were terrified during the attack and that as a result, the circumstances were not conducive to proper identification. The first appellate court, after considering the arguments proffered by the appellants, disagreed that the identification evidence was unsound. It dismissed the appeals, upheld the conviction and affirmed the sentences imposed on each of the appellants.

The appellants subsequently lodged a second appeal to the Court of Appeal. The appellants argued that the first appellate court failed in its duty to re-evaluate and reconsider the evidence on record. In this regard they alleged that all that the High Court did was to summarise the evidence without analysis, which constituted a fundamental error.

The appellants further premised their appeal on the argument that the charge against them as framed was defective as the appellants were charged under section 296 (2) of the Penal Code instead of  section 295 as read with section 296 (1) and (2) of the Penal Code because it was section 295 of the Penal Code that defined robbery. The appellants argued that sections 296 (1) and (2) merely prescribed the punishments for the offence of robbery and the offence of robbery with violence.

The appellants further appealed against death sentence, they submitted that the death sentence was outlawed by the Constitution of Kenya, 2010 as it violated the right to life and it amounted to degrading and inhuman treatment.

 

Issues

  1. Whether the failure by an appellate court to re-evaluate and reconsider the evidence on record constituted a fundamental error.
  2. Whether when framing charges both the sections creating the offence and punishment for the offence ought to be contained in the charge sheet.
  3. Whether section 296 (2) of the Penal Code only made provision for the punishment for robbery with violence and did not create the offence.
  4. Whether a charge sheet citing only section 296 (2) of the Penal Code in a robbery with violence matter was sufficient.
  5. Whether the sentence of death was unlawful under the Constitution of Kenya, 2010 as it violated the right to life and it amounted to cruel and inhuman treatment.
  6. Whether the death sentence was mandatory for capital offences.

 

Constitutional Law-fundamental rights and freedoms-right to life-circumstances when the right to life can be curtailed-whether the death sentence was unconstitutional as it violated the right to life and amounted to cruel and inhuman treatment-Constitution, Repealed section 77, Constitution of Kenya, 2010 article 25,26 and 29

Criminal Practice and Procedure-Sentencing-sentencing for capital offences-whether the death sentence was mandatory for capital offence-whether the court had discretion not to sentence accused persons to death- Criminal Procedure Code section 137- Constitution of Kenya,2010 article 159

Criminal Practice and Procedure-charges-framing of charges- whether when framing charges both the sections creating the offence and punishment for the offence ought to be contained in the charge sheet- whether a charge sheet citing only section 296 (2) of the Penal Code in a robbery with violence matter was sufficient-Penal Code section 295 and 296-Criminal Procedure Code section 137

Criminal Procedure Code

Section 137

The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code—

(a)
(i) Mode in which offences are to be charged.—a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;
(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

 

(iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required;
(iv) the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;

 

(v) where a charge or information contains more than one count, the counts shall be numbered consecutively;

 

Penal Code

Section 295

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

Section 296

(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years together with corporal punishment not exceeding twenty-eight strokes.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

 

Constitution, Repealed

Section 77

(1)  If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(2)  Every person who is charged with a criminal offence—

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself before the court in person or by a legal representative of his own choice;

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge,

and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

(3)  When a person is tried for a criminal offence, the accused person or a person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(4)  No person shall be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5)  No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(6)  No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.

(7)  No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(8)  No person shall be convicted of a criminal offence unless that offence is defined, and the penalty therefor is prescribed, in a written law:

Provided that nothing in this subsection shall prevent a court from punishing a person for contempt notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed.

Constitution of Kenya, 2010

Article 2

(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

 

(2) No person may claim or exercise State authority except as authorised under this Constitution.

 

(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

 

(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

 

(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Article 25

Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;

(b) freedom from slavery or servitude;

(c) the right to a fair trial; and

(d) the right to an order of habeas corpus.

 

Article 26

(1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.

 

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

Article 29

Every person has the right to freedom and security of the person, which includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;

(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;

(c) subjected to any form of violence from either public or private sources;

(d) subjected to torture in any manner, whether physical or psychological;

(e) subjected to corporal punishment; or

(f) treated or punished in a cruel, inhuman or degrading manner.

Article 159

(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.

(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

(d) justice shall be administered without undue regard to procedural technicalities; and

(e) the purpose and principles of this Constitution shall be protected and promoted.

 

Held

  1. The duty of the first appellate court was to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. Failure to properly re-evaluate the evidence on record would be a serious omission on the part of the first appellate court and could warrant interference by the Court of Appeal. There were instances where the first appellate court could, depending on the facts and circumstances of the case come to the same conclusions as those of the lower court. It could rehash those conclusions and there was nothing objectionable in doing so, provided it was clear that the court had considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision. (David Njuguna Wairimu v Republic [2010] eKLR) . (Okeno v R [1972] EA. 32. Mohamed Rama Alfani & 2 Others v Republic, Criminal Appeal No 223 of 2002)
  2. The allegation that the first appellate court merely summarised the evidence on record was not tenable. There was no set format for re-evaluation of evidence and the court needed not to use the words re-evaluate, reconsider and analyse, in order to fulfil its duty. The first appellate court properly addressed itself to the identification evidence and came to the correct conclusion. The identification evidence against the appellants was sound, and both the trial court and the first appellate court were correct in basing the guilt of the appellants on it.
  3. The offence of robbery with violence was totally different from the offence defined under section 295 of the Penal Code, which provided that any person who stole anything, and at, or immediately before or immediately after the time of stealing it, used or threatened to use actual violence to any person or to property in order to steal. It would not be correct to frame a charge for the offence of robbery with violence under section 295 and 296 (2) as this would amount to a duplex charge.
  4. Section 137 of the Criminal Procedure Code would be complied with if an accused person was charged under section 296(2) of the Penal Code. Section 137 required one to be charged under the section creating the offence and in the case of robbery with violence section 296(2) of the Penal Code created the offence by giving it the ingredients required before one was charged under it and it also spelt out the punishment.
  5. This being a second appeal, the Court of Appeal had no jurisdiction to entertain matters of fact and under section 361 of the Criminal Procedure Code severity of sentence was a matter of fact. Unless a sentence had been enhanced by the High Court, which was not the case in the present appeal, or unless the subordinate court had no power under the law to pass that sentence, the Court of Appeal had no mandate to determine on the issue of sentence. The court also had no jurisdiction to hear and determine questions on constitutional matters as these were matters of law.
  6. By virtue of article 2 of the Constitution, international treaties and covenants to which Kenya was a party, as well as the rules of international law formed part of our law only in so far as they were not inconsistent with the Constitution.
  7.  At the time of passing sentence against the appellants, the repealed Constitution was in place, and it provided for the right to life which could be curtailed, a fact recognised by the Court in Godfrey Ngotho Mutiso v R [2010] eKLR Criminal Appeal 17 of 2008.
  8. Since both the repealed and the current Constitution envisaged that the right to life was not absolute, the state could limit it in accordance with any written law. The law in this case was the Penal Code. Indeed some of the international instruments such the International Covenant on Civil and Political Rights (ICCPR) envisaged a situation where the right to life could be curtailed in furtherance of a sentence imposed by a court of law. Kenya had been party to ICCPR however was not a party to the Second Optional Protocol to the ICCPR which aimed at abolition of the death penalty. This was instructive because it pointed out that under our law as it stood the death sentence continued to be a valid sentence that could be passed by a court of law.
  9. Cruel, inhuman and degrading punishment was that which was done for sadistic pleasure in order to cause extreme physical or mental pain and that was disproportionate to the crime so that it caused moral outrage within the community. The death sentence did not fall within that definition. The death sentence was not done for the sadistic pleasure of others. It could not also be said to be shocking to the moral sense of the community due to the fact that it had now been endorsed by the people of Kenya by the fact that it continued to exist in Kenya’s statute books with a Constitutional underpinning.
  10. The deprivation of life as a consequence of unlawful behavior was also not grossly disproportionate. In Kenya, death was a penalty for what could be considered as the most serious of crimes. It was a proportionate punishment for the offences committed which in many cases resulted in the loss of life and the loss of dignity for the victims. Among the purposes of punishment was retribution so that equal harm was done to the offender, securing justice for the victims of the crime. In addition, the punishment had to serve as a deterrent and in this case the punishment fitted the crime.
  11. In Godfrey Ngotho Mutiso v R [2010] eKLR Criminal Appeal 17 of 2008 the court after evaluating the position in various jurisdictions, found that nowhere in the Constitution was it stated that the mandatory sentence for the offence of murder was death. The import of that decision was that mitigation was required to determine the appropriate sentence in cases where there had been convictions for capital offences. In effect the holding in the case introduced sentencing discretion to judicial officers in murder cases.
  12. A look at all the provisions of the law that imposed the death sentence showed that these were couched in mandatory terms using the word ‘shall’. It was not for the Judiciary to usurp the mandate of Parliament and outlaw a sentence that had been put in place by Kenyans or purport to impose another sentence that had not been provided in law.
  13. It was incumbent upon any court intending to render an opinion or determine a matter to first ascertain the entry point to the doors of justice and that was jurisdiction. The authority of the court was determined by the existence or the lack of jurisdiction to hear and determine disputes. In essence jurisdiction was the first hurdle that a court would cross before it embarked on its decision making function. (The Owners of Motor Vessel “Lillian S”. v Caltex Oil Kenya Ltd [1989] KLR 1).
  14. The decision in the Godfrey Ngotho Mutiso case was per incuriam in so far as it purported to grant discretion in sentencing with regard to capital offences. The offences of murder contrary to section 203 as read with 204 of the Penal Code, treason contrary to section 40 of the Penal Code, administering of oaths to commit a capital offence contrary to section 60 of the Penal Code, robbery with violence contrary to section 296 (2) of the Penal Code and attempted robbery with violence contrary to section 297 (2) of the Penal Code carried the mandatory sentence of death.

Appeal dismissed.

 

 

2.    Supervisory jurisdiction of the High Court over the Judges and Magistrates Vetting Board

 

Law Society of Kenya v Centre for Human Rights and Democracy & 13 others

Civil Appeal No 308 of 2012

Court of Appeal at Nairobi

P O Kiage, A K Murgor , F Sichale, J Mohammed & Odek, JJ. A

October 18, 2013

Reported by Andrew Halonyere, Lynette A Jakakimba, Beryl A Ikamari, Cynthia Liavule and Victor Andande

 

Brief facts: -

An appeal was lodged against the High Court’s decision on the supervisory jurisdiction of the High Court as concerned the proceedings and decisions of the Judges and Magistrates Vetting Board. The High Court’s judgment was to the effect that the Judges and Magistrates Vetting Board (Vetting Board) had a legal or juristic character, which was akin to that of any tribunal, and was susceptible to the supervisory jurisdiction of the High Court under article 165(6) of the Constitution of Kenya, 2010.

Initially, within the appeal applications for recusals and disqualifications of various judges were made. In the end, a bench of five was constituted to hear and determine the appeal.

 

Issues: –

  1. Whether the High Court had jurisdiction to review the decisions of the Judges and Magistrates Vetting Board despite the ouster clause in section 23(2) of the sixth schedule to the Constitution, which provided that the Vetting Board’s decisions would not be subject to question or review by any court.
  2. What was the scope of the mandate of the Judges and Magistrates Vetting Board?
  3. Whether the Judges and Magistrates Vetting Board was a subordinate court or tribunal contemplated under article 169 (2) of the Constitution of Kenya, 2010.
  4. Whether the concepts of political doctrine and residual jurisdiction were recognized in Kenya and would be applicable to the decisions of the Judges and Magistrates Vetting Board.
  5. What was the constitutional underpinning of the finality clause under section 22 of the Vetting of Judges and Magistrates Act, 2011, which provided that the review of the decision by the Vetting Board was final?
  6. Whether the principles applicable to ouster clauses found in statutes would apply to ouster clauses found in the Constitution.
  7. Whether transitional and consequential provisions found in the schedules to the Constitution of Kenya, 2010 were of an inferior hierarchical status as compared to other provisions found in the body of the Constitution.

 

Constitutional Law – jurisdiction – supervisory jurisdiction – High Court’s review and supervisory jurisdiction over independent tribunals – where the Constitution provided  that the removal of a judge by operation of legislation would not be subject to question or review by any court – whether the High Court had jurisdiction to review decisions of the Judges and Magistrates Vetting Board despite the ouster clause in the Constitution – Constitution of Kenya, 2010; article 20, 165(6,)165(7)and section 23 of sixth schedule, and Vetting of Judges and Magistrates Act, No. 2 of 2011; section 22.

 

Constitutional Law-interpretation of constitutional provisions-the effect of the ouster clause in section 23(2) of the sixth schedule to the Constitution of Kenya, 2010-whether the ouster clause would oust the High Court’s jurisdiction to review the decisions of the Judges and Magistrates Vetting Board-Constitution of Kenya, 2010; articles 165(6), 259(1), 262 & section 23 of the sixth schedule, and Vetting of Judges and Magistrates Act, No. 2 of 2011; sections 19, 21 & 22.

 

Constitutional Law-interpretation of constitutional provisions-transitional and consequential provisions-whether transitional and consequential provisions found in the schedules to the Constitution of Kenya, 2010, were of an inferior hierarchical status as compared to other provisions found in the body of the Constitution-Constitution of Kenya, 2010; articles 165(6), 259(1), 262 & section 23 of the sixth schedule.

 

Constitutional Law-separation of powers-doctrine of political question-whether the doctrine of political question would apply to the vetting process carried on by the Judges and Magistrates Vetting Board.

 

Constitution of Kenya 2010

Article 165 (6) and (7)

(6) The High Court has supervisory jurisdiction over subordinate courts and over any person, body or authority exercising judicial or quasi judicial function but not over a superior court.

(7) For the purposes of Clause (6) the High Court may call for the record of any proceedings before any subordinate court or person.

 

Section 23 of sixth schedule to the Constitution

 (1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.

           

(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.

 

Vetting of Judges and Magistrates Act, No. 2 of 2011

Section 22

(1) A judge or magistrate who has undergone the vetting process and is dissatisfied with the determination of the Board may request for a review by the same panel within seven days of being informed of the final determination under section 21(1).

(2) The Board shall not grant a request for review under this section unless the request is based—

(a) on the discovery of a new and important matter which was not within the knowledge of, or could not be produced by the Judge or Magistrate at the time the determination or finding sought to be reviewed was made, provided that such lack of knowledge on the part of the Judge or Magistrate was not due to lack of due diligence;

or

(b) on some mistake or error apparent on the face of the record.

(3) The decision by the Board under this section shall be final.

 

Held

  1. Section 23 of the sixth schedule to the Constitution of Kenya, 2010 did not create the Judges and Magistrates Vetting Board. It directed parliament to enact legislation within a year, which would establish the mechanism, procedures and time frame for vetting the suitability of all judges and magistrates sitting at the effective date. According the Vetting of Judges and Magistrates Act, No. 2 of 2011, was enacted.
  2. Article 162 of the Constitution established the system of courts in Kenya. The Vetting Board was neither part of the court system in Kenya nor was it a local tribunal; it was a sui generis quasi-judicial organ with a precise mandate, time frame and distinct legislative framework.  The Board was neither a superior court as defined in article 162 (1) of the Constitution nor a subordinate court as stipulated under article 169 (1) of the Constitution. The Vetting Board as established was unique, transitional in nature with a life span determinable by parliament and it fulfilled the exceptional transitional Constitution making role of restructuring the judiciary. That exceptional transitional role was not vested on the courts.
  3. There was a misconception that the supervisory jurisdiction of the High Court was only exercisable over inferior tribunals and this had given rise to the unmerited preoccupation and undue emphasis on the submission as to whether the Vetting Board was subordinate or inferior to the High Court. The correct legal position was captured in article 165 (6) of the Constitution wherein the High Court’s supervisory jurisdiction was exercisable not only in relation to inferior tribunals but also over any person or body or authority exercising judicial or quasi-judicial powers.
  4. The fact that honourable Judges of the High Court and Court of Appeal appeared before the Vetting Board did not elevate the Board to a status equivalent to the High Court or make it equal in stature to a superior court.
  5. The Vetting Board fulfilled the Constitutional criteria in article 165 (6) of being a person, body or authority and it was evident from its mandate that the Board exercised quasi-judicial power. The Board had the responsibility of a body charged by statute with a duty of deciding the suitability of Judges and Magistrates to continue holding their offices. The Vetting Board was under a duty to act judicially and was subject to the supervisory jurisdiction of the High Court within the meaning of article 165 (6) of the Constitution. General Medical Council v Spackman [1943] AC 627, 641 & Board of Education v Rice [1911] AC 179,182.
  6. It was elementary law that a statutory provision could not oust an express constitutional provision. A statute could neither be used to interpret a constitutional provision nor could it override a constitutional provision. Section 22 (2) of the Vetting of Judges and Magistrates Act could not be used to interpret a constitutional provision to wit section 23 (2) of the sixth schedule to the Constitution. In the same vein section 22 (2) of the Vetting of Judges and Magistrates Act, being a statutory provision, could not supersede the provisions of article 165 (6) of the Constitution and neither could it override section 23 of the sixth schedule to the Constitution. A schedule to the Constitution could neither be utilized in interpreting the main provisions in the body of Constitution nor could a schedule be used to oust main provisions in the body of the Constitution.
  7. The “review” contemplated under section 22 (2) of the Vetting of Judges and Magistrates Act was not the same kind of “judicial review” that the High Court exercised in a supervisory jurisdiction under article 165 (6) of the Constitution and order 53 of the Civil Procedure Rules. The High Court in its supervisory jurisdiction exercised the power of “Judicial Review” and not “review”. Section 22 (2) of the Vetting of Judges and Magistrates Act was on the same subject matter as order 45 rule 1 of the Civil Procedure Rules and the two provisions were to be construed in the same way. Just as order 45 rule 1 of the Civil Procedure Rules was different from order 53 of the Civil Procedure Rules, it followed that the meaning, purport and object of section 22 (2) of the Vetting of Judges and Magistrates Act had to be construed differently from order 53 of the Civil Procedure Rules which governed Judicial Review.
  8. Section 23 (2) of the sixth schedule was a constitutional ouster clause. However what was ousted by the constitutional ouster clause was the jurisdiction of any court to question and review the decisions of the Vetting Board. The word “review” in that constitutional ouster clause had to be interpreted as a term that had the same meaning as the term “review” as used in article 50 (2) (q) of the Constitution, section 22 (2) of the Vetting of Judges and Magistrates Act and order 45 Rule 1 (b) of the Civil Procedure Rules.
  9. The control which was exercised by the High Court over inferior tribunals was of a supervisory but not of an appellate nature. It enabled the High Court to correct errors of law if they were revealed on the face of the record. The control could not, however, be exercised if there was some provision which prohibited its exercise. But it was well-settled that even such a clause was of no avail if the inferior tribunal acted without jurisdiction, or exceeded the limit of its jurisdiction.
  10. Strict approaches to constitutional ouster clauses could not be applied to every case. In fact, an ouster could be usurped where strong and compelling reasons existed. Breaches of fundamental human rights and breaches of natural justice were enough to satisfy the test of strong and compelling reasons and where such breaches were alleged an ouster clause could be ignored.
  11. Apart from being a fundamental right enshrined in the Constitution, the right to a fair hearing was one of the more far-reaching of the principles of natural justice. A breach of the principles of natural justice opened up the decision of the tribunal to review even if there was an ouster clause. The violation of a principle of natural justice amounted to an excess of jurisdiction.
  12. The preclusive section of the Constitution was inefficacious and ineffective in ousting the section of the Constitution that provided for the right to apply to the High Court for the enforcement of fundamental rights and freedoms. The question whether a tribunal or body had erred in jurisdiction or breached natural justice was for the courts to decide. Further, the right to a judicial remedy under those circumstances could not be precluded by the ouster clause.
  13. There was nothing in the ouster clause that suggested, even ever so remotely, that any of the rights and fundamental freedoms of the Judges were to be alienated, diluted or limited. Moreover, by virtue of article 20(1) of the Constitution, the Bill of Rights applied to all law and bound all state organs and all persons.
  14. The right to enforce one’s fundamental rights and freedoms through the courts was so basic and so essential a feature of the rule of law, in a democratic society, that it was both baffling and disturbing that it should even be suggested that any group of persons, senior Judges no less, should be shut out from exercising it.
  15. The fact that the court heard and determined the application was proof that the filing of applications by the Judges per se could not lead to the chaos that the appellant seemed to fear. It was not reasonable to expect, nor was it borne out by experience, that every complaint of violation of rights would find favour with the High Court.
  16. Article 25 trumped every other provision of the Constitution including section 23 of the sixth schedule. The importance given to the Bill of Rights, was such that even when there was a justification for limiting or derogating from rights, the process for lawfully doing so was carefully and closely circumscribed under article 24 of the Constitution. Even then, it was still recognized that some rights, could not, under any circumstances be limited. The non-derogable rights would include the right to a fair trial. That right was provided for in article 50 of the Constitution and it would include the right to have a dispute capable of being settled by application of law tried by a fair and impartial court or tribunal.
  17. The High Court was right when it decided that it was possessed the jurisdiction to handle the matters pending before it and was proper for it to proceed to hear and determine the matter.
  18. The Vetting Board remained the only statutory body clothed with the mandate to determine the suitability of a judge or magistrate to continue serving in the Judiciary.  The vetting had to be carried out in accordance with the Constitution and the Vetting Act.
  19. There was a legitimate expectation that the Vetting Board would carry out its mandate in accordance with the Constitution and the Vetting Act.  The supervisory jurisdiction of the High Court only came in when there were allegations that the Vetting Board was not carrying out its mandate in accordance with the Constitution and the Vetting Act.
  20. The Vetting Board was given finality in that it was the only body that could determine the suitability of judges and magistrates to continue serving in the judiciary. The Judiciary or any other body did not have that jurisdiction.
  21. The doctrine of “political question” emanated from the concept of separation of powers. Political question doctrine held that certain issues were not to be decided by courts because their resolution was committed to another branch of government or because those issues were not capable, for one reason or another, of judicial resolution. Its purpose was to distinguish the role of the judiciary from those of the legislature and the executive, preventing the former from encroaching on either of the latter. Under that rule, courts could choose to dismiss the cases even if they had jurisdiction over them.  Baker et al v Carr et al 369 US 186 [1962], R v Cambridge Health Authority ex PB [1995] 2 ALL ER 129.
  22. The Constitution itself was a political document and yet it was justiciable and enforceable. Therefore, not all political issues were non-justiciable and the political question doctrine did not confer blanket immunity from court inquiry to all political issues. In the context of the instant appeal, the political question doctrine was inapplicable as the Vetting Board was not one of the arms of government. Political issues were subject to the rule of law, good governance and the supervisory jurisdiction of the High Court. It was the courts upon inquiry that could make the decision whether an issue at hand came under the ambit of political question doctrine.
  23. Where the High Court had exercised its supervisory jurisdiction and made a finding that the Vetting Board exceeded its power or jurisdiction, the High Court would be required to remit the matter back to the Vetting Board for a determination on the suitability of judge or magistrate to continue serving in the judiciary. Such a remittal would discard the perception that the exercise of supervisory jurisdiction by the High Court would hijack the vetting process by allowing High Court judges to serve as judges in their own cause.
  24. There would be no lacuna in the event the Vetting Board ceased to exist or in the event that the time frame provided for the vetting process lapsed. Any individual Judge or Magistrate whose finding and determination by the Vetting Board would be quashed through the supervisory jurisdiction of the High Court would be deemed not to have been vetted. The relevant Constitutional provisions for a Judge or Magistrate who had not been vetted would accordingly apply to such a judicial officer.

 

Dissenting per A K Murgor, F Sichale, JJ A

  1. Pursuant to the provisions of article 259(1) of the Constitution of Kenya, 2010, in interpreting the provisions of the Constitution, the courts were obliged to promote the Constitution’s purpose, values and principles, the rule of law, the Bill of Rights, the development of the law and good governance.
  2. The plain and ordinary meaning of section 23(2) of the sixth schedule to the Constitution was that the court’s jurisdiction to review the decisions or process of the Judges and Magistrates Vetting Board was emphatically ousted.
  3. Furthermore, section 23(1) of the sixth schedule to the Constitution provided that the legislation to be enacted, for vetting judges and magistrates, would operate in a different context from other provisions which dealt with the judiciary and the tenure of office for judicial officers. Article 168 of the Constitution which dealt with the removal of a judge from office would apply in respect of those not serving before the effective date while section 23(2) would apply in respect of those who were serving before the effective date.
  4. The intention expressed in section 23 was that the process of vetting judges and magistrates was to be carried on by a body distinct from the courts. The vetting process was to be carried on within a limited time-frame and the vetting of each judge was to be carried on with the result being a final decision which the courts could not review.
  5. The purpose of including the ouster clause which excluded the jurisdiction of the High Court, over matters handled by the Judges and Magistrates Vetting Board, was to prevent and avoid the mischief whereby the judges and magistrates through the courts, would become the judge and jury in their own cause. If the vetting process had not been insulated from the supervision of the High Court, then there would have been clear issues of conflict of interest.
  6. The promulgation of the Constitution of Kenya, 2010, entailed the creation of a new constitutional order, in which the will of the Kenyan people and sovereignty of the people was recognized. The vetting of judges and magistrates was a response to public perceptions concerning the need for reform within the judiciary. There were perceptions of delays, rampant corruption, incompetence and lack of independence, in the dispensation of justice.
  7. Article 1(1) of the Constitution of Kenya, 2010, provided that all sovereign power belonged to the people of Kenya and had to be exercised in accordance with the Constitution. Further, article 2(3) of the Constitution stated that the validity or legality of the Constitution was not subject to challenge by or before any court or other state organs. Article 3 obliged every person to respect, uphold and defend the Constitution. The inclusion of section 23(2) of the sixth schedule to the Constitution was an exercise of the people’s constituent power and by dint of article 2(3) of the Constitution, its validity or legality was not to be challenged.
  8. Section 23 of the sixth schedule, was part of the transitional and consequential provisions found in the schedules to the Constitution of Kenya, 2010. In article 262 of the Constitution such provisions were deemed to be an integral part of the Constitution. Transitional clauses were placed in the schedules because their usage was to be for a limited period of time and such placement would prevent the existence of numerous provisions whose applicability was temporary within the body of the Constitution. The placement of transitional provisions in schedules was not intended to relegate the provisions to a status that was inferior to other substantive provisions of the Constitution.
  9. In a situation of conflict between the provisions in the schedules to the Constitution and the other constitutional provisions, article 262 of the Constitution of Kenya, 2010, did not specify which of the provisions would prevail. However, during the transitional period, any substantive constitutional provision which created a challenge to a transitional measure would be suspended in order to enable the transitional process to be dispensed of expeditiously, and to aid the full operationalization of the Constitution, including its values and principles.
  10. The suspension of constitutional provisions, as a transitional measure, could include the suspension of fundamental rights and freedoms. Whether the suspension of a right was justified, would depend on the nature of the right in question.
  11. There were complaints that the right to a fair trial was negatively impacted in the vetting process in question. However, the Vetting of Judges and Magistrates Act, No. 2 of 2011 made provisions safeguarding the right to a fair trial. Section 19 of the Act provided for the procedure to be followed in vetting a judge or magistrate and section 21 provided for determinations concerning the suitability of the vetted judicial officer to continue serving in office. Further, section 22 provided for review as concerns the first decision made on the suitability of a judge. It provided that the review decision would be final.
  12. The Judges and Magistrates Vetting Board was established by statute, with constitutional authority prescribed by section 23 of the sixth schedule to the Constitution of Kenya, 2010. It was to be an independent judicial body, sui generis, of unusual hierarchical status, arising from its origins in section 23 of the sixth schedule.
  13. The Judges and Magistrates Vetting Board had special and extensive jurisdiction to vet judges and magistrates and such jurisdiction was akin to the jurisdiction of the Industrial Court and the Environment and Land Court. The Judges and Magistrates Vetting Board, for purposes of article 165(6) of the Constitution of Kenya, 2010, would not be a subordinate court over which the High Court could exercise supervisory jurisdiction.
  14. The House of Lords decision in the Anisminic case entailed the locus classicus on statutory ouster clauses. The House of Lords held that despite the existence of an ouster clause in section 4(4) of the Foreign Compensation Commissions Act 1950, the court’s jurisdiction would not be ousted where the determination of a tribunal was considered a nullity. (Anisminic v Foreign Compensation Commission [1969] 2 AC 157).
  15. The jurisprudence in the United Kingdom and the West Indies was that the principles espoused in the Anisminic case were applicable irrespective of whether the ouster clause in question was a statutory provision or a constitutional provision. However, it was noteworthy that the United Kingdom had an unwritten Constitution and the West Indies, which continued to prefer its appeals to the Judicial Committee of the Privy Council, would follow the House of Lords decision as a precedent. Such a historical context and circumstances were not applicable to Kenya.
  16. In Kenya, the decision made in the Anisminic case would not apply to an ouster clause, such as section 23(2) of the sixth schedule to the Constitution of Kenya, 2010, found in a constitutional provision. The principles applicable to statutory ouster clauses would not automatically apply to constitutional ouster clauses.

Appeal dismissed by majority holding, each party to bear its own costs.

 

 

3.    Court of Appeal Reverses the Decision Setting Aside the Appointment of Mumo Matemu as Chairperson of Ethics and Anti-Corruption Commission

 

Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others

Court of Appeal at Nairobi

Civil Appeal No. 290 of 2012

P. Kihara Kariuki – PCA, W. Ouko, P. O. Kiage, S. Gatembu Kairu & A. K. Murgor, JJ A

July 26, 2013

Reported by C. Lupao, N. Tunoi & M. Ombima

 

Brief facts:

This was an appeal against the decision of the High Court which had upheld a petition questioning the constitutionality of the appointment of the appellant, one Mumo Matemu, by the President as the Chairperson of the Ethics and Anti-Corruption Commission.

The appellant’s appointment had followed clearance by the National Assembly even though Parliament’s Departmental Committee on Justice and Legal Affairs had advised against such appointment allegedly due to the fact that he, the appellant, as well as other nominees to the commission apparently “lacked the passion, initiative and the drive to lead the fight against corruption”. The said report had, despite recommending against the appellant as well as the other nominees being appointed, made no recommendations relating to the unfitness or unsuitability of the appellant or the other nominees.

Following the appointment, the High Court was moved by the 1st respondent, Trusted Society of Human Rights Alliance, a non-governmental organization, to issue a declaration that among other things, the process and manner in which the appellant had been appointed was unconstitutional. The High Court subsequently ruled in favor of the Trusted Society by setting aside the appointment leading to this appeal.

 

Issues for determination:

i) Whether the Trusted Society of Human Rights Alliance, an NGO, had the locus standi (capacity) to file the petition at the High Court?

ii) Whether the High Court had jurisdiction or power to review and set aside the appointment of Mumo Matemu as Chairperson of the Ethics and Anti-Corruption Commission?

iii) Whether the High Court properly applied the principle in the Anarita Karimi Njeru case requiring that constitutional petitions be pleaded with reasonable precision?

iv) Whether the High Court in exercising the rationality test misapplied the doctrine of Separation of Powers thereby usurping the powers and functions of other branches of Government?

v) Whether the appointment of Mumo Matemu as Chairperson of Ethics and Anti-Corruption Commission was undertaken in accordance with the Constitution and the law?

 

Jurisdiction – High Court’s power of review – appeal against High Court’s decision to review and set aside the appointment of persons appointed to Public Office – where the High Court had set aside the appointment of the appellant as the Chairperson of the Ethics and Anti-Corruption Commission – grounds of appeal, inter alia, that the High Court misapplied the “rationality test” in determining the outcome of the petition – whether the High Court in its rationality test misapplied the doctrine of separation of powers by usurping the powers and functions of other arms of Government – whether the appointment of the appellant was done in accordance with the law – whether the appeal had merit – Constitution of Kenya, 2010, articles 3, 10, 22, 48, 163, 250, & 258; Ethics and Anti-Corruption Commission Act, 2011, sections 6 & 40

 

Constitutional Law – locus standi – scope of locus standi in constitutional petitions – constitutional provisions on factors to consider in establishing locus standi in proceedings – whether the 1st respondent (petitioner) had locus standi to file the petition challenging the appointment of the appellant as Chairperson of the Ethics and Anti-Corruption Commission – principle requiring that petitioners pleaded their case with reasonable precision – whether the principle in Anarita Karimi Njeru case requiring that constitutional petitions be pleaded with reasonable precision was properly applied – Constitution of Kenya, 2010, articles 1, 2, 3, 4, 10, 19, 20, 22, 73, 159, 258; Civil Practice and Procedure (cap 21) sections 3A & 3B

 

Held:

  1. By dint of articles 22 and 258 of the Constitution of Kenya, 2010, any person could institute proceedings under the Bill of Rights, on behalf of another person who could not to act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. The petition filed before the High Court was by Trusted Society of Human Rights Alliance, an NGO (1st respondent),  whose mandate included the pursuit of constitutionalism hence  in the absence of a showing of bad faith as claimed by Mumo Matemu (the appellant), without more, the 1st  respondent had the locus standi to file the petition.
  2. The High Court had the jurisdiction to review and set aside the appointment of the appellant since the petition before it was not instituted as a removal procedure or as a complaint against the appellant in his capacity as a State Officer, but a challenge to the constitutionality of the process and manner of the appellant’s appointment. The High Court had jurisdiction to hear any question respecting the interpretation of the Constitution, including the determination of a question regarding whether an appointment by any organ of the Government is inconsistent with, or in contravention of the Constitution.
  3. The petition before the High Court referred to articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title but provided little or no particulars as to the allegations and the manner of the alleged infringements hence did not meet the principle in Anarita Karimi Njeru case requiring that constitutional petitions be pleaded with reasonable precision. [Anarita Karimi Njeru v.  Republic (1976-1980) KLR 1272]
  4. The standard of judicial review of appointments to State or Public Office should be generally deferential, although courts will not hesitate to be searching where the circumstances of the case demand a heightened scrutiny provided that the courts do not purport to sit in appeal over the opinion of the other branches of Government.
  5. The High Court is entitled to conduct a review of appointments to State or Public Office to determine the procedural soundness as well as the appointment decision itself to determine if it meets the constitutional threshold. The rationality test is a judicial review standard fashioned specifically to accommodate the doctrine of separation of powers, and its application must generally reflect that understanding. Such review by the court is however not an appeal over the opinion nor does it amount to a “merit review” of the decision of the appointing body. Thus, the High Court misapplied the rationality test in adopting a standard of review antithetic to the doctrine of separation of powers.
  6. In view of the nature of the principles contained under article 73 of the Constitution of Kenya, 2010, a fact-dependent objective test provides a less burdensome standard of review of constitutionality of appointments on grounds of integrity. In fashioning this judicial test, the court does not exile the rationality test which is equally controlling in the examination of constitutional validity, if properly applied in terms of the means-ends analysis and the separation of powers framework. The fact that an objective test provides judicial manageability by focusing the analysis of the constitutionality of appointments to factual ascertainment of the means and purpose as opposed to the subjective standard of a reasonable or rational person. This latter path, if untamed, amounts to transforming the courts into appellate forums on the opinion of the other branches for which they may not be equipped.
  7. Whereas the centrality of the Ethics and Anti-Corruption Commission as a vessel for enforcement of provisions on leadership and integrity under Chapter 6 of the Constitution warranted the heightened scrutiny of the legality of appointments thereto, that was neither a license for a court to constitute itself into a vetting body nor an ordination to substitute the Legislature’s decision for its own choice. To do so would undermine the principle of separation of powers. It would also strain judicial competence and authority. Similarly, although the courts are expositors of what the law is, they cannot prescribe for the other branches of the government the manner of enforcement of Chapter 6 of the Constitution, where the function is vested elsewhere under the constitutional design.
  8. On review of the evidence placed before the Court of Appeal, the High Court’s conclusion of procedural impropriety on the part of the appointing organs and unsuitability on the part of the appellant could not be upheld.
  9. Leadership and integrity are broad and majestic normative ideas. They are the genius of our constitutional fabric. However, their open-textured nature reveals that they were purposefully left to accrue meaning from concrete experience. Whereas these concepts germinate from the ground of normativity, they grow in the milieu of the facticity of real experience. Their life blood will therefore be our experience, not merely the abstract philosophy or ideology that may underlie them.
  10. (Obiter) “Much of the emerging jurisprudence on integrity is still in its infancy. To advance the frontiers of that jurisprudence is the function of the courts, other organs of the government, and the people. In particular, this Court notes that the public aspiration towards “cleaning up our politics and governance structures” as noted by the court below remains compelling. However, we would be hesitant to do so in a manner that visits violence to the underlying fundamentals of due process, justice and fairness in our constitutional system. Should we do so, public opinion or popular rhetoric will not soften that violence. Principle, in the form of due process will. It is for that reason that the Constitution envisages the enactment of laws to provide a process for realizing the constitutional aspirations enshrined in Chapter 6 and embedded throughout the charter. The courts may have the highest intentions to hasten this process, but we must remember that the Constitution also protects us from our best intentions: by providing safeguards for due process, justice and fairness. That, extravagant as it appears, is the price of constitutional maintenance.”

Appeal allowed. Being public interest litigation, parties to bear own costs.

 

 

4.    Jurisdiction of the Court of Appeal to Entertain an Application Under Rule 5(2)(b) of the Court of Appeal Rules

 

Equity Bank Limited v. West Link MBO Limited

Civil Application No NAI 78 of 2011 (UR. 53/2011)

Court of Appeal at Nairobi

E. M. Githinji, D. K. Musinga, P. O. Kiage, K. M’inoti & F. Sichale, JJ A

May 31, 2013

Reported By Andrew Halonyere, Njeri Kamau, Teddy Musiga, Lynette Jakakimba and Beryl Ikamari

 

Case History

(Application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the Ruling and Order of the High Court of Kenya at Nairobi (Muga Apondi, J) dated 4th February, 2010 In H.C.C.C. No. 142 of 2009)

 

Brief facts

The applicant filed an application before the Court of Appeal for stay of execution of the High Court’s summary judgment and decree. The respondent on its part challenged the Court of Appeal’s jurisdiction under Rule 5(2)(b) through a preliminary objection and requested that a bench of five be empanelled to hear the objection. The panel was thereafter empanelled.

 

Issues

  1. Whether the jurisdiction under rule 5 (2)(b) of the Court of Appeal Rules was an original jurisdiction as opposed to exclusive appellate jurisdiction under article 164 (3).
  2. Whether a notice of appeal was a mandatory requirement before invoking the powers of the Court of Appeal under Rule 5(2)(b) of the Appellate Jurisdiction Act (Cap 9).
  3. Whether section 3(1) and (2) of Appellate Jurisdiction Act, which limits right of appeal to the Court of Appeal, were unconstitutional.
  4. Whether article 164 (3) of the Constitution of Kenya, 2010 was a major departure from section 64(1) of the repealed Constitution and the jurisdiction of the Court of Appeal under the two provisions is different.
  5. Whether article 164(3) of the Constitution of Kenya, 2010, gave litigants a direct, unfettered, and absolute right of appeal to the Court of Appeal and whether requirements pertaining to seeking leave to appeal, and conditions attached to the right to appeal, were unconstitutional and obsolete.
  6. Whether article 259 of the Constitution of Kenya, 2010 was the primary tool of interpretation of the Constitution.
    Whether the Court of Appeal had inherent powers to grant interim orders pending hearing and determination of appeals.

 

Civil Practice and Procedure – jurisdiction – jurisdiction of the Court of Appeal to stay execution of a decree – whether under the Constitution the jurisdiction of the Court of Appeal to hear appeals extends to issuance of conservatory orders – whether a notice of appeal was a mandatory requirement before filing an appeal – rule 5 (2)(b) of the Court of Appeal Rules.

 

Civil Practice and Procedure – appeals- Court of Appeal-circumstances under which the appellate jurisdiction is invoked-whether article 164(3) of the Constitution of Kenya, 2010, gave litigants a direct, unfettered, and absolute right of appeal to the Court of Appeal -whether requirements pertaining to seeking leave to appeal, and conditions attached to the right to appeal, were unconstitutional and obsolete

 

Constitutional Law – interpretation of the constitution – primary tool of interpretation of the Constitution – duty of the court to interpret the Constitution in a way that ensures promotion of the purpose, values and principles of the Constitution, advancement of the rule of law, the Bill of Rights and contribute to good governance – Constitution of Kenya, 2010 article 259,164(3) – Appellate Jurisdiction Act (Cap 9) Rule 5(2)(b).

 

Constitutional Law- jurisdiction– inherent jurisdiction of the court of appeal – Court of Appeal jurisdiction to grant orders of stayinterpretation of section 3(1) and (2) of Appellate Jurisdiction Act- where the said sections limit right of appeal to the Court of appeal –– whether section 3(1) and (2) of the Appellate Jurisdiction Act are unconstitutional– Appellate jurisdiction Act section 3(1) and (2)

 

Words and phrases

“Jurisdiction” means courts power to decide a case or issue a decree.”

“Inherent power” means the authority possessed by a court implicitly without it being derived from the constitution or any statute.

 

Constitution of Kenya, 2010:

Article 164

                        “There is established the Court of Appeal, which –

(a)              shall consist of the number of judges, being not fewer than twelve, as may be prescribed by an Act of Parliament; and

(b)              shall be organized and administered in the manner prescribed by an Act of Parliament.

(2)        …………………..

(3)        The Court of Appeal has jurisdiction to hear appeals from –

(a)       the High Court; and

(b)       any other court or tribunal as prescribed by an Act of Parliament.”

Article 259

“This Constitution shall be interpreted in a manner that-

(a)       promotes its purposes, values and principles;

(b)       advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c)       Contributes to good governance.”

 

Section 64(1) of the repealed Constitution which provided:-

“ There shall be a Court of Appeal which shall be a superior court of record and which shall have such jurisdiction and powers in relation to appeals from The High Court as may be conferred on it by law”

 

Appellate Jurisdiction Act, Section 3 provides that;

(1)   “The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any rule.

(2) For all purposes of and incidental to the hearing and determination of any appeal in the exercise of the jurisdiction conferred by this Act, the Court of Appeal shall have, in addition to any other power, authority and jurisdiction conferred by this Act, the power, authority and jurisdiction vested in the High Court.”

Court of Appeal Rules, Rule 5(2)(b) provides that;

“Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may –

(a)              …………………….

(b)              in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75,

order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.”

 

Held

  1. The description that the Court of Appeal exercises “original jurisdiction” under Rule 5(2)(b) is what has brought confusion on the true nature of the powers under that rule. Taken at face value, it creates the false impression that the Court of Appeal has an original jurisdiction like the original jurisdiction of the High Court and that that jurisdiction exists and is exercisable independent of the jurisdiction conferred on the Court by the Constitution to hear appeals.  The fact of the matter is that the Court of Appeal cannot assume or exercise jurisdiction in an application under rule 5(2)(b) unless a competent notice of appeal has been filed.
  2. Article 164(3) of the Constitution, 2010 grants power to the Court of Appeal to “hear appeals” from the High Court and other tribunals as prescribed by an Act of Parliament. The constitution does not define what an “appeal” is. The Constitution merely provides a general framework and principles that prescribes the nature, functions and limits of government or other institutions. Acts of Parliament and subsidiary legislation contain the details regarding its operationalization. Therefore to define what amounts to an “appeal”, Rule 2(2) of the Court of Appeal Rules states that an “appeal in relation to appeals to the court, includes an intended appeal.” While an “intended appeal” is provided for under Rule 75(1) as “any person who desires to appeal to the Court of Appeal shall give notice in writing, which shall be lodged in duplicate with the registrar of the superior court.”
  3. Accordingly, the first step in instituting an appeal is the filing of a notice of appeal. Therefore as soon as a notice of appeal is lawfully filed, an appeal is deemed to be in existence and a litigant could move the Court of Appeal for the grant of order of stay under Rule 5(2)(b) of the Court of Appeal Rules. In doing so, the Court of Appeal is said to be exercising special independent original jurisdiction because in considering whether to grant or refuse an application for stay it is not hearing an appeal from the High Court. It can grant orders of stay, irrespective of whether such an application had been made in the High Court.
  4. An application under Rule 5(2)(b) is not an appeal as envisaged by Article 164(3).  For purposes of judicial proceedings an appeal is a substantive proceeding instituted in accordance with the practice and procedure of the court by an aggrieved party against a decision of a court to a hierarchically superior court with appellate jurisdiction seeking a reconsideration and review of the decision in his favour.
  5. As a general principle of law an appeal being a totally distinct proceeding from the original or appellate proceedings appealed from, the institution of an appeal does not operate as a bar to execution of a sentence in criminal matters or execution of decree, in civil matters unless otherwise expressly so provided. Order 42 Rule 6(1) Civil Procedure Rules restates that principle and proceeds to give the court appealed from jurisdiction to grant a stay of execution in case of an appeal.
  6. Rule 5(2)(b) is the counterpart of Rule 6(1) of Order 42 of the Civil Procedure Rules. At the stage of determining an application under Rule 5(2)(b) there may be no actual appeal.  Where there is no actual appeal already lodged there nevertheless must be intention to appeal which is manifested by lodging a notice of appeal. If there is no notice of appeal lodged, one cannot get an order under Rule 5(2)(b) because the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgment of the notice of appeal the Court of Appeal would have no business to meddle in the decision of the High Court. Indeed, by Rule 2, an appeal in relation to the Court includes an intended appeal.
  7. Rule 5(2)(b) is a procedural innovation designed to empower the Court to entertain an interlocutory application for preservation of the subject matter of the appeal in order to ensure the just and effective determination of appeals.
  8. The procedure recognizes that the Court has only jurisdiction to hear appeals but deems an intention to appeal as manifested by a Notice of Appeal as an appeal.  Thus, the true nature of Rule 5(2)(b) applications is for all intents and purposes, an interlocutory application in the appeal.
  9. Since Rule 4 of order 42 Civil Procedure Rules and Rule 2 of Court of Appeal Rules deem an appeal as filed upon filing of the Notice of Appeal, there is, no practical difference as in both cases the application is filed and heard within the appeal.
  10. The Court of Appeal’s jurisdiction to hear appeals would be an impossibility and impracticality if it were not read to mean that the Court of Appeal had jurisdiction to determine all manner of applications that impact on or were incidental or related to the appeals. Therefore, rule 5(2)(b) of the Court of Appeal Rules, and section 3(2) of the Appellate Jurisdiction Act (Cap. 9) were not unconstitutional.
  11. Pursuant to article 164(3)(b) of the Constitution of Kenya, 2010, the Court of Appeal had jurisdiction to hear all appeals from the High Court (unless expressly excluded) but the Court of Appeal would only hear appeals from other courts and tribunals as specified in the legislation contemplated by article 164(3)(b) of the Constitution.
  12. It would not be possible for a litigant to appeal to the Court of Appeal at will and on any issue. The provisions of the Civil Procedure Act (Cap. 21) and the Criminal Procedure Code (Cap. 75) revealed that not every decision of the High Court (or any other court or tribunal) was appealable.
  13. Limitations and conditions attached to an appeal under the Civil Procedure Act (Cap. 21) were expressed in sections 67(2), 72(1) and 75(1), which respectively provided for the non-appealability of consent judgments, the conditions attached to second appeals to the Court of Appeal, and orders for which an appeal lies as of right. Such limitations on the right to appeal to the Court of Appeal would not be unconstitutional.
  14. In the Criminal Procedure Code (Cap. 75) limitations to the right of appeal were provided for under sections 379 and 361, which respectively indicated that minor convictions from the High Court were not appealable and that certain conditions were to apply as to the nature of appeals for which appellate jurisdiction would be exercised.
  15. Clause 7(1) of the sixth schedule to the Constitution of Kenya, 2010 preserved all existing laws operational as at the time of the promulgation of the Constitution. Only that such laws were to be construed with such alterations, adaptations, qualifications and exceptions as are necessary to bring them to conformity with the constitution. The Appellate Jurisdiction Act is one such law that was preserved under the Transitional clauses hence section 3(1) and (2) were not unconstitutional.
  16. The words used under article 259 were not the only primary tools of interpretation of the Constitution. They were the starting point and most often they would ensure promotion of the purpose, values and principles of the Constitution, advancement of the rule of law, the Bill of Rights and contribute to good governance. The drafters of the Constitution were also acutely aware that words used in a provision might admit to a meaning that did not, or that least promoted the ends set out in article 259.
  17. There were at least two major differences between section 64(1) of the repealed Constitution and article 164(1) and 164(3) of Constitution of Kenya, 2010.
    1. Section 64(1) of the repealed Constitution merely established the Court of Appeal without jurisdiction and left it to parliament to enact legislation to confer jurisdiction to the Court.  The Appellate Jurisdiction Act [Section 3(1)] is such legislation.   In contrast, article 164 both establishes the Court of Appeal and confers jurisdiction to it.
    2. Section 64(1) of the repealed Constitution gives jurisdiction to the Court to hear appeals from the High Court whereas article 164 of the Constitution of Kenya, 2010 gives jurisdiction to hear appeals from the High Court and also from any other court or tribunal as prescribed by an Act of Parliament.  While conferring jurisdiction to the Court of Appeal section 3(1) of the Appellate Jurisdiction Act restricts such appeal “to cases in which an appeal lies to the Court of Appeal under any law”, meaning that a right of appeal has in turn to be conferred by a statute.
  1. The fact that the appellate jurisdiction is now conferred by the Constitution instead of by statute does not in itself amount to a major departure as long as the jurisdiction conferred is appellate and not otherwise.  Both the repealed Constitution and the Constitution of Kenya, 2010 give the Court purely appellate jurisdiction and to that extent, the character of the Court remains the same, namely, to hear appeals.
  2. Inherent power is the authority possessed by a court implicitly without it being derived from the Constitution or statute. Such power enables the Judiciary to deliver on their constitutional mandate. Inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion. Even if Rule 5(2)(b) of the Court of Appeal Rules was not in existence, in appropriate circumstances, the Court of Appeal would perfectly be entitled to exercise its inherent power to order stay of execution pending appeal so that an appeal is not rendered nugatory. No appeal can be filed, served, heard and determined in a day. If the Court of Appeal did not have power to grant interim relief in the intervening period, great injustice would be occasioned to litigants. In M. Mwenesi v Shirley Luckhurst & Anor No. 170 of 2000, it was held that a court of law is under a duty to exercise its inherent power to prevent injustice.
  3. (Dicta per K.  M’inoti, JA) “The Court is called upon, if it is to be absolutely true to article 164(3), to introspect and review how it has treated appeals vis-à-vis conservatory applications.  It must in those appeals where it considers it necessary to issue conservatory orders, demand that the beneficiary moves expeditiously and files and prosecutes the appeal without delay. Time limits within which such action must be taken could be set. It is only then that we shall be able to assert that appellate justice is administered without undue delay and without being too costly.  The Constitution of Kenya, 2010 which demands we comprehensively review our legislation, rules and practices to ensure that they truly accord with all the principles and values of the Constitution offer a great opportunity to address these shortcomings.”
  4. (Dicta per D. K. Musinga, JA) “In my view, the Rules Committee should urgently consider an amendment to rule 5(2)(b) of this Court’s Rules to limit the time such orders, once issued, can remain in force.  With the recent increase in the number of judges of this Court, the Court is now empowered to dispose of appeals much faster than was the case when there were only about ten judges in the Court.  In instances where an order under rule 5 (2)(b) has been granted, the appeals should be heard on priority basis and disposed of expeditiously, say within six months from the date of filing the notice of appeal. “

Preliminary objection dismissed.

 

Law reform issues

  1. To avoid abuse of the orders of stay granted by the Court of Appeal, the Rules committee should urgently consider an amendment to Rule 5 (2) (b) of the Court of Appeal Rules to limit the time such orders, once issued, can remain in force.
  2. To harmonize all legislation, rules and practices to ensure that they truly accord with all the principles and values of the Constitution offers a great opportunity to address these shortcomings.

 

 

5.    The Exercise of the Delimitation of Boundaries Partially Done by the Interim Independent Boundaries Review Commission

 

Peter Odoyo Odaga  & 9 Others v Independent Electoral and Boundaries commission of Kenya & 14 Others [2013] eKLR

Civil Appeal 307 of 2012

Court of Appeal at Nairobi

Fri 19, April, 2013

Reported by Teddy Musiga

 

Brief facts

The exercise of the delimitation of boundaries partially done by the Interim Independent Boundaries Review Commission (or the Ligale Commission) proposed the names of constituencies number 251 and 252 to be Mbita and Gwasi constituencies. Later, the IEBC renamed them to be Suba North and Suba South Constituencies respectively. The respondents made an application to the High court seeking orders of certiorari to quash the decision of the IEBC to rename Mbita and Gwasi constituencies and orders of mandamus to compel the IEBC to proceed with the process of delimitation of boundaries and wards without effecting any change of names of Mbita and Gwasi constituencies. The high court however ordered that in order to balance the interests of the residents of Gwasi and Mbita constituencies the proposed Suba North be renamed Mbita Constituency while the proposed Suba constituency be renamed Suba constituency. This is the decision for which the appeal is brought before court.

 

Issues

  1. What are the elements in the exercise of the High court power of review within the context of Article 89(10) of the constitution?
  2. What is the scope of the High Court’s power of review as contemplated in Article 89 of the Constitution in the delimitation of electoral boundaries?
  3. Whether the High court’s power of review in the delimitation of electoral boundaries can be used to substitute the decisions of other constitutional organs?
  4. What is the proper procedure to move the High Court in the exercise of the power of review in the delimitation of electoral boundaries?
  5. What are the applicable timeframes to institute such matters?
  6. In the event, the High Court found fault in the decision of IEBC, what would have been the appropriate remedy and directive?

 

Jurisdiction - High court – Review – High court’s jurisdiction of review in the delimitation of electoral boundaries – High Court’s power of review – whether the High Court’s power of review can be used to substitute decisions of other constitutional organs.

 

Judicial Review – Prerogative orders – certiorari – mandamus – whether an applicant dissatisfied with the decision of the IEBC can challenge such a decision by way of Judicial Review in the delimitation of boundaries.

 

Article 89 of the Constitution of Kenya, 2010, provides that:

“89. (1)  There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97 (1) (a).

(2)  The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.

(3) The Commission shall review the number, names and boundaries of wards periodically.

(4) If a general election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.

(5) The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of –

(a) geographical features and urban centres;

(b) community of interest, historical, economic and cultural ties; and

(c) means of communication.

(6) The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than –

(a) forty per cent for cities and sparsely populated areas; and

(b) thirty per cent for the other areas.

(7) In reviewing constituency and ward boundaries the Commission shall –

(a) consult all interested parties, and

(b) progressively work towards ensuring that the number of inhabitants of each constituency and  ward is, as nearly as possible, equal to the population quota.

(8) If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.

(9) Subject to clauses (1), (2), (3) and (4), the names and     details of the boundaries of constituencies and wards determined by the Commission shall be published in the Gazette and shall come into effect on the dissolution of Parliament first following the publication.

(10) A person may apply to the High Court for review of a decision of the Commission made under this Article.

(11) An application for the review of a decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.

(12) For the purposes of this Article “population quota” means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.” (Underlining added).

 

Held:

  1. Per the Oxford Concise English dictionary, the court noted that review means a retrospect or survey of the past; revision or reconsideration; or a second view. It is also a survey, or to look back on, reconsider or revise or to view again. In order to review a decision, an error, omission or default should be demonstrated to have been incorporated in that decision, or that an extraneous issue was considered which ought not to have been considered. In the present case, the High court did not find fault with the naming of the two constituencies by IEBC.
  2. Article 89 of the constitution does not yield or point to authority or jurisdiction of the High court, while exercising the power of review under that article to substitute the decision of the IEBC with its own.
  3. The constitution expressly and exclusively confers the powers to delimit boundaries to the IEBC just like the High court has been given powers under Article 165, except that the High court has also been given the power to review a decision of IEBC. That power is limited to prayers in an application under Article 89(10) where the applicants can demonstrate that indeed a fault featured in the manner IEBC went about delimiting electoral boundaries. The High court therefore erred in supplanting the decision of the IEBC with its own opinion.
  4. Article 89 of the Constitution does not give the High court room to put its own decision on delimitation of electoral boundaries in place of that made by IEBC. It can only find fault with it and order a fresh exercise. The time, resources, expertise required to carry out delimitation exercise is within the constitutional mandate of the IEBC and IEBC alone.
  1. A body or organ performing statutory duties has discretion when handling matters falling within its mandate. There is a margin of discretion conferred by the constitution and the law upon those who make decisions and the test of rationality ensures that any legislation or official act is confined within the purposes set by the law.  It is the insistence that decisions must be rational that limits arbitrariness and not discretion by itself. Where a body like IEBC applied its mind to constitutional requirements, regarding delimitation, reaching a rational conclusion, the courts should not review that decision. It will have passed the test of reasonableness, because a constitutional review is not for error but legality. And here the court found neither error nor illegality.
  2. Where a person is dissatisfied with a decision of IEBC under Article 89 and desires for a review, the person need not go by way of judicial review procedure under Order 53 Civil Procedure Rules. He or she does not have to file a civil suit either. One needs to file a petition or application invoking the powers under Article 89 (10) of the Constitution. By doing so, a party may even pray for a declaration or direction of the court directed to any party or thing which cannot be sought in judicial review proceedings.
  3. Article 89 (2) of the constitution provides that if any review of boundaries ought to be done, that ought to be done some 12 months before the elections. If such an exercise takes place in less than 12 months before the next election, then the result of the exercise does not impact on that decision. Accordingly, the decision of the High court in the matter of the two constituencies was not according to the intendment of Article 89(10) of the Constitution and is therefore set aside. In doing so, does not mean that the two constituencies resume their gazetted names of Suba North and Suba South in the March 4th elections as such a move is practically impossible. The IEBC had complied with the High Court’s order and proceeded to do all that appertains to preparing for elections namely registering voters, verifying the voters register, ready for the general elections held on March 4th.
  1. In the event the court found fault with the naming of the two constituencies, which it did not, it should have directed the IEBC to do the exercise afresh. This enhances respect for each other’s areas of operation and particularly where the areas have been “delimited” by law. It is good practice intended to foster public confidence and trust to let each organ perform its mandate. But this performance should only be within the limits of the law, good faith and integrity.

 

Appeal allowed setting aside the judgment of the High court renaming the constituencies from Suba North to Mbita Constituency and Suba South to Suba constituency.

 

LAW REFORM ISSUE

The court proposed that perhaps it is time ORDER 53 Civil Procedure Rules was expanded regarding the scope of reliefs to be sought under it.

 

 

6.    Jurisdiction of Kenyan Court to Try for the Offence of Piracy Jure Gentium Committed on the High Seas Outside of Kenya’s Territorial Waters Attorney General v Mohamud Mohammed Hashi & 8 others

Court of Appeal, at Nairobi

Civil Appeal No. 113 of 2011

(An appeal from the judgment and decree of the High Court of Kenya at Mombasa (Ibrahim, J.) dated 9th November, 2010inH.C. MISCELLANEOUS APPL.

NO. 434 OF 2009)

J.W. Onyango Otieno, Alnashir Visram, M. K. Koome, H. M. Okwengu, D. Maraga JJ A.

October 18, 2012.

Advocates:

Mr. P. Kiage, Special Prosecuting Counsel, assisted by Mr. Ondari, Asst. Director of Public Prosecutions & Principal State Counsel, Monda & Messrs. Mwaniki, Muteti and Mule Mr. Wamwayi for the Respondents

Reported by Michael M. Murungi

 

Issues:

  1. Is the law of piracy jure gentium a crime recognized under the International Law?
  2. Do Kenyan courts have jurisdiction to try suspects in respect of Piracy jure gentium committed outside the Kenyan Territorial Waters i.e., in the High Seas.
  3. Which court in Kenya has jurisdiction to try the offence of piracy, the High Court or the Subordinate Courts?
  4. Whether there was a “legislative” misnomer regarding the provisions of Section 69 (1) of the Penal Code as read with Section 5;
  5. Does the repeal of a section of an Act of parliament have an effect on the prosecution of a criminal case, which occurred before the repeal of the section?
  • The offense of piracy jure gentium was said to have been committed on the High Seas near the coast of Kenya in March 2009 when section 69(1) and (3) of the Penal Code were in operation. The suspects (the respondents) were Somali nationals.
  • By the time the trial started, the section was still in force
  • Later it was repealed by the Merchant Shipping Act which came into operation on September 1, 2009
  • The repeal then should have no effect on the case that was already in court – Interpretation and General Provisions Act section 23(3)

 

Held:

1. The 1967 amendment to the Penal Code created in Kenya the offence of piracy as known and understood in international law.

2. Under the Interpretation and General Provisions Act Section (Cap. 2) 23(3), where a written law repeals in whole or in part another written law, unless a contrary intention appears, the repeal shall not affect an investigation, legal proceedings or remedy in respect of a right, liability, penalty, forfeiture or punishment, and such legal proceeding may be instituted, continued or enforced as if the repealed written law had not been made.

3. There was no contradiction between section 5 of the Penal Code and section 69(1) and (3). Section 5 provided for local jurisdiction while sections 69(1) & (3) donated jurisdiction to try piracy jure gentium on the High Seas.

4. Even if the High Court found that there was legislative misnomer, that could easily have been resolved by falling back on the provisions of the United Nations Law of the Sea Convention [UNCLOS] of 1982, to which Kenya is a signatory and by dint of Article 2 (5) of the Constitution, UNCLOS is part of the Kenyan laws. UNCLOS provides for offences of piracy and gives any state jurisdiction to try them. Any crime committed outside the jurisdiction of any state is governed by international law. So the impression the High Court created that by repealing Section 69 of the Penal Code Parliament abolished the international crime of piracy in Kenya was clearly wrong.

5. Kenyan courts therefore have jurisdiction to try suspects in respect of Piracy jure gentium committed outside the Kenyan Territorial Waters i.e., in the High Seas.

6. (Per Onyango Otieno JA): The world has now been reduced into a global body, with the economy of every state being intertwined with that of the other States…it would be dangerous for any nation to refuse [to try for criminal] acts perpetrated on the High Seas such as piracy jure gentium [which] would affect even nations within whose territorial waters such offenses have taken place. …If Kenyan courts can feel emasculated when people charged with such offences are produced before them, then how would such heinous offences that would affect its economy as well though perpetrated on the High Seas be controlled? What would the use of international conventions on such matters if signatories to them such as Kenya do not honour them in action?

7. (Per Koome JA): “[The High Court] failed to recognize that Kenyan courts were beginning to develop jurisprudence in this area of law along the internationally recognized principles which were sadly set back by this judgment under review. For example, in the case of United States District Court For Eastern District of Virginia Norfolk Division, USA v. Mohamed Madin Hassan & 4 Others, a court in the United States made reference to the application of UNCLOSS as part of customary international law and also made reference to a Kenyan decision.

 

 

7. Next General Election to be Held 60 Days After January 2013

 

Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR

Court of Appeal at Nairobi

EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A

(Appeal from a judgment and orders of the High Court of Kenya at Nairobi (Constitutional and Human Rights Division, Lenaola, Mumbi Ngugi and Majanja, JJ.) dated the 13th January, 2012in Constitutional Petition No. 65 of 2011) July 31, 2012

Reported by Michael M. Murungi

 

On August 27, 2010, Kenya promulgated a new constitution – the Constitution of Kenya 2010. The new constitution provided for a new structure of government and contained transitional provisions governing the conclusion of the term of the serving government and the establishment and commencement of the term of the new government through a general election.

Previously, in 2008, Kenya’s legislature had passed the National Accord and Reconciliation Act, 2008 to establish a coalition government through a National Accord, which was a reconciliation framework brokered after the violent aftermath of the disputed results of the general election held in December 2007.

A dispute arose on the interpretation of some provisions of the new constitution and the National Accord and Reconciliation Act, 2008 on the question of what would trigger the first general election under the new constitution and how the date of the election would be reckoned.

In interpreting these provisions, the High Court had found, among other things, that, firstly, following the repeal of the former Constitution, the President had no power under the Constitution to dissolve Parliament. Secondly, it had found that the date of the first elections under the new Constitution would be determined by reference to Sections 9 and 10 of the Sixth Schedule as follows: -

 

  1. In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with Sections 6(b) of the National Accord and Reconciliation Act, 2008 or,
  2. Upon the expiry of the term of the 10th Parliament on the 5th of the Anniversary of the day it first sat which is designated by Legal Notice No1 of 2008 on 15th January 2008 and the term therefore expired on 14th January, 2013 and the elections shall be held within sixty days of 15th January, 2013.

 

Held:

  1. The sixth schedule to the Constitution of Kenya 2010 was an integral part of the Constitution and had the same status as the provisions of the other Articles although it is of a limited duration.
  2. By finding that the general election could be held in the year 2012 within sixty days from the date on which the National Coalition is dissolved by the President and the Prime Minister, the High Court was in effect giving the President and the Prime Minister power to dissolve the National Assembly, which power was not conferred by the Constitution.
  3. It was not within the province of the High Court to amend, as it in effect did by that decision, sections 9(2) and 10 of the Sixth Schedule to the Constitution of Kenya 2010 and section 6(b) of the National Accord and Reconciliation Act, 2008. The decision was inconsistent with the new constitution particularly sections 10 and 12 of the Schedule.
  4. It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days after the dissolution of the National Assembly at the end of its terms.
  5. The High Court was right in its second finding that the first elections under the
    new Constitution could only be lawfully held within sixty days upon the expiry of the term of the 10th Parliament and in computing the date of expiry as January 14 2013.

 

Per Koome JA – Dissenting:

  1. The National Assembly should have been dissolved sixty days before the expiration of its term – that should have been on or about November 14, 2012. This way, the current National Assembly would not go beyond its lifespan of five years and the Members of Parliament would have served their entire term of five years. The date for the next general elections would then be on or about the January 15, 2013.

 

 

8.    Division of Matrimonial Property

 

Peter Mburu Echaria v Priscilla Njeri Echaria

Civil Appeal No. 75 of 2001

Court of Appeal at Nairobi

Tunoi, O’Kubasu, Githinji, Waki & Deverell JJ A

February 2, 2007

(Appeal from the ruling and order of the High Court of Kenya in Nairobi (Shields J) dated October 27, 1993 in HCCC No. 4684 of 1987 – O.S.)

 

Advocates:

Dr. Kamau Kuria, Senior Counsel, for the Appellant

Mr. Njoroge for the Respondent

Reported by Michael M Murungi

 

Family law – matrimonial property – division of matrimonial property – where property acquired during a marriage is registered in the name of one spouse – principles the court will apply in determining the mode of dividing such property – contribution – direct and indirect contribution to matrimonial property – whether marriage or the performance of domestic duties alone may amount to contribution – whether there is a general principle providing for equal division of property irrespective of the individual contributions – whether after making its findings on the rights of the parties a court has jurisdiction to transfer a proprietary interest from one party to another – Married Women’s Property Act, 1882 section 17

 

The respondent had been married to the appellant, who served in various diplomatic positions in the Government of Kenya. Because of the diplomatic status of her husband, the respondent was not allowed to work during this time. During their marriage, the parties had acquired several properties, including a 118-acre farm in Limuru, Kenya.

In November 1987, the respondent filed an originating summons under section 17 of the Married Women’s Property Act, 1882 for a declaration that the farm, along with its buildings and improvements, had been acquired by the joint funds and efforts of both parties and registered in the name of and in possession of the appellant and it was therefore jointly owned by them. The respondent therefore asked the court for 50% share of the property.

The appellant opposed the application and averred that he had bought the farm substantially from his own savings and that it was not jointly owned with the respondent.

It appeared that the respondent had made paid some monthly installments for the loan towards the acquisition of the farm between the time that it was purchased to the time when she ceased to cohabit with the appellant.

In his ruling, Shields J observed that as the appellant’s wife, the respondent had made “substantial indirect contribution… in kind to the family fortune. One of these contributions was the wife taking on the onerous duties of an ambassador’s wife…”. The Judge then applied the decision of the Court of Appeal in Kivuitu v Kivuitu [1991] 2 KAR 241 in finding that the two parties were entitled to the farm in equal shares and ordered that the farm be divided equally between them.

The appellant appealed.

 

Held:

  1. Where the disputed property is not registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution, either direct or indirect, towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” and regard them as being entitled to a half of the share each.
  2. A review of current case law shows that the status of the marriage does not solely entitle a spouse to a beneficial interest in the property registered in the name of the other, nor is the performance of domestic duties.
  3. Kivuitu v Kivuitu was correctly decided both on law and on facts as it is a case where the husband and wife had a joint legal interest and a resultant equal beneficial interest in the property. The Court in that case did not lay any general principle of equal division.
  4. The High Court had erred in its computation of the respondent’s contribution to the acquisition of the matrimonial property when it took into account a period before the property in dispute was acquired.
  5. The respondent’s indirect financial contribution towards the purchase of the property could not have been equal to that of the appellant. The most benevolent decision in favour of the respondent would be to credit her with the payment of all the loan installments before she ceased to cohabit with the appellant, which would be 20% of the purchase price.
  6. It was just to increase the respondent’s share of contribution to 25% equivalent to one-quarter of the purchase price which entitled her to one-quarter share of the property, which was 30 acres.

 

Appeal allowed in part.

 

(Obiter) “…Omolo Ag JA and Kwach JA [in Kamore v Kamore [2000] 1 EA 80 in which the Court of Appeal had expressed the need for a Kenyan law to be enacted giving proprietary rights to spouses as distinct from registered title], though, undoubtedly guided by a noble notion of justice to the wife, were ahead of the Parliament when they said that the wife’s non-monetary contributions have to be taken into account and a value put upon them. It is now about seven years since the Court expressed itself…but there is no sign, so far, that Parliament has any intention of enacting the necessary legislation. It is indeed a sad commentary on our Law Reform agenda to keep the country shackled to a 125 year-old foreign legislation which [Britain] found wanting more than 30 years ago!”

 

Editor’s Note:

In September 2009, the Federation of Women Lawyers (Kenya) and the International Centre for the Legal Protection of Human Rights, as the representatives of the respondent, filed a complaint against the Republic of Kenya with respect to this case with the Secretariat of the African Commission on Human and Peoples’ Rights. The complaint alleged that Articles 2, 3, 14, 18(3) and 19 of the African Charter on Human and People’s Rights had been violated with respect to the respondent (these articles establish the right of freedom from discrimination, the right to equality, the right to equality before the law and right to property). The complaint also asked the Commission to recommend to Kenya to enact legislation aimed at effecting the property rights of married women.

 

On November 5, 2012, the Commission ruled as follows:

  • The Commission had jurisdiction to consider the complaint and it had been satisfied that the affected party had exhausted all the local remedies.
  • However, whereas article 56(6) of the Charter provided that Communications shall be considered if they are submitted within a “reasonable period from the time local remedies are exhausted or from the date the Commission is seized with the matter”, the Complainants had failed to explain why their Communication could not be submitted earlier than thirty-one months.
  • Submitting a Communication thirty-one months after local remedies were exhausted without any reason to explain such a wide interval was clearly unreasonable.
  • The Communication did meet the requirement of Article 56(6) of the Charter and the Communication was therefore inadmissible.

 

 

9.    Personal Service of Election Petition

Abu Chiaba Mohamed v Mohamed Bwana Bakari & 2 others [2005]eKLR

(Appeal from a Ruling and Order of the High Court at Mombasa (Khaminwa, J.) dated August 19, 2003 in H.C. Election Petition No. 3 of 2003)

RSC Omolo, PK Tunoi, EO O’Kubasu, EM Githinji, PN Waki, JW Onyango Otieno & WS Deverell, JJA

September 16, 2005

Reported by Michael M. Murungi

 

Election Petition – service of petition – manner in which an election petition should be served – personal service the best form of service – whether an election petition must be personally served even where the party to be served is evading service – circumstances in which alternative modes of service may be resorted to – National Assembly and Presidential Elections Act (Cap 7) section 20

 

Issues:

 

  1. What is the best mode of service of process in an election petition?
  2. Did the decision of the Court of Appeal in Mwai v Kibaki establish the rule that personal service is the only viable form of service?
  3. Where the respond is shown to be deliberately avoiding personal service, would the circumstances justify substituted service?

 

Held:

  1. Personal service remains the best form of service in all areas of litigation, including election petitions.
  2. In its decision in Mwai Kibaki v Daniel Toroitich Arap Moi Civil Appeal No. 172 of 1999, the Court of Appeal did not establish any proposition that even where it is proved that a party was hiding with the sole purpose of avoiding personal service, such a party must still be personally served. The Court of Appeal clearly recognized that if personal service, which is the best form of service, is not possible, other forms of service may be resorted to.
  3. On the evidence before the High Court, it had been established that the appellant had gone into hiding with the intention of avoiding personal service of the election petition upon him.
  4. A person may not rely on his own wrong to defeat the valid claim of another person. The appellant could not rely on his having successfully hidden himself from the attempts to serve him personally in order to defeat the election petition.
  5. The effort made by the 1st respondent to personally serve the appellant amounted to personal service and the High Court was right in holding that he had been served.

 

 

10.  Abuse of a Judge Amounting to Criminal Contempt of Court & Whether Contemnor was Entitled to Gove Oral Testimony

Republic v Tony Gachoka [1999] eKLR

Court of Appeal at Nairobi

Criminal Application No. Nai 4 of 1999

Gicheru, Kwach, Omolo, Tunoi, Shah, Lakha & Owuor JJ A

August 20, 1999

Reported by Michael M. Murungi

 

  1. Tony Gachoka, the publisher and CEO of magazine known as the Post on Sunday Edition of Jan 31-Feb 6 1999 headlined “Chesoni [then the Chief Justice] Implicated in an Orgy of Judicial Anarchy and a Kshs. 30M bribe
  2. This and later editions making allegations of unethical conduct by the judges of the Court of Appeal
  3. The Attorney General obtained leave to move to the Court of Appeal to bring a charge of criminal contempt of court against the first respondent
  4. First respondent admitted the publication and stood by the allegations
  5. He sought leave to call 14 witnesses to testify in his defence
  6. The application was rejected for the reason that the Court did not see the relevance of the evidence intended to be adduced by the witnesses.
  7. Towards the close of his submissions, the first respondent sought leave to give oral evidence. The Court gave no ruling in this regard.

 

Judicature Act section 5(1): ‘The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts’.

Order 52 rule 6(4) of the Rules of the Supreme Court: ‘If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf, he shall be entitled to do so’.

 

Held:

  1. Though press freedom was guaranteed under section 79 of the Constitution, the press was under a duty to act responsibly and not to abuse or scandalize any person or institution.
  2. Under section 5 of the Judicature Act, the Court of Appeal has power to consider, conduct a trial and make judgment on an allegation of contempt itself.
  3. Scurrilous abuse of a judge in his capacity of a judge or of a court – particularly attacks alleging lack of impartiality or imputing improper motives – is a punishable contempt.
  4. The purpose of punishing for contempt is to protect the public interest in the reputation, dignity and authority of a Court rather than to protect the judge or the court from fair and temperate criticism.
  5. The articles were written maliciously and without lawful excuse with the direct object of vilifying the Court as a result of one litigant having been unsuccessful in litigation. Through the publication the dissatisfied litigant erroneously believed it could mount a sustained campaign to reverse the Court’s ruling and secure a verdict in its favour.
  6. The publications were calculated to bring both the High Court and the Court of Appeal into contempt, or to lower their authority and interfere with the due process of justice.
  7. Even though section 5 of the Judicature Act provided that in matters of contempt of court, the Court was to be guided by the law applied by the High Court in England, the Judicature Act did not prevent the local courts from developing its local jurisprudence on the matter. Considering this and the fact that the respondent had been given the chance to give affidavit evidence, the Court was not under a duty to allow him to give viva voce evidence from the witness box.

 

1st respondent to be committed to prison for 6 months, a fine of Kshs. 1,000,000 against the 2nd respondent, with an order to cease publication and sale of the magazine until and unless the fine is paid.

Gicheru JA (Dissenting):

“I shudder at the thought that with clear provisions of the law entitling the respondent to give oral evidence on his own behalf after he has expressed his wish to do so, this court would be blind to the obvious miscarriage of justice…I would correct the prejudicial error by allowing the first respondent to give oral evidence on his own behalf…and thereafter I would finally adjudicate on the applicant’s application for the issue of an order for committal…”.

 

 

11.  Power of the Court of Appeal Power of the Court of Appeal to Re-open and Review its Decision; Whether a Judge May Give Evidence in Proceedings Challenging Matters Arising from the Exercise of Judgment

Jasbir Singh Rai & 3 others v Tarclochan Singh Rai & 4 others [2005] eKLR Court of Appeal at Nairobi

(Application to set aside in toto of the judgment and order made on September 30, 2002, in HCCA No. 63 of 2001)

Omolo, Bosire, Githinji, Waki & Deverell JJA

December 7 2007

Reported by Michael M. Murungi

 

  1. In September 2002, the Court of Appeal (Shah, Ole Keiwua & O’Kubasu JJ A) delivered three separate judgments in which they ordered that the appeal in this case be dismissed.
  2. Shah JA had presided over the appeal and wrote the leading judgment with which the other two judges concurred.
  3. In November 2003, four persons who had been appellants in the dismissed appeal filed a notice of motion under the Constitution sections 64, 77(9), Section 3 of the Appellate Jurisdiction Act and rule 1(2) of the Court of Appeal Rules asking the court to set aside the judgment in toto and hear the matter afresh and that all proceedings in the High Court touching on the litigation be stayed.
  4. The main ground of the application was that the presiding judge was biased. It was alleged that the judge had failed to disclose his “personal relationship and friendship” with one of the advocates for the respondents, who had also been a director and chairman of the family company business that was at the centre of the dispute, and “who had actually played an important role in many matters that were the subject of the litigation”. It was also alleged that the judge had also failed to disclose a relationship of advocate/client existing between him and the advocate.
  5. The advocate swore an affidavits denying improper conduct
  6. The presiding judge, who had since retired, filed an affidavit, ostensibly for the purpose of clearing his name, and sought to be heard by the Court.
  7. A preliminary objection was filed challenging the validity of the notice of motion.

 

Held:

  1. Two conflicting principles, both of great importance to those who seek the decisions of the courts on various issues, were involved in the decision which the Court was asked to make in this application. Those two principles are:
    • That there ought to and must be an end to litigation; and
    • That justice must be done and be seen to have been done in each case that comes before the courts for determination. That principle, once again, is based on public policy – that the public must have confidence in the courts and their decisions, i.e. the public must have confidence in the judicial system itself and if issues such as bias on the part of a judicial officer is not dealt with and corrected, the public will lose confidence in the judicial system.
  2. The power to re-open and rehear an appeal is to be found nowhere in the Constitution. It is to be found nowhere in the Appellate Jurisdiction Act. Section 77(9) of the Constitution which was cited as being the basis of the motion did not give the Court the power to re-open and re-hear an appeal. Nor did section 64 of the Constitution.
  3. The Court of Appeal still had no jurisdiction to re-open, re-hear and then recall its earlier decision and substitute it with another. Even if it was to be assumed that the facts set out in the motion were true, the application did not lie.
  4. In courts subordinate to the Court of Appeal, the issue may in an appropriate case, be raised on appeal if bias is discovered after the matter is finally determined by those courts. However, in the case of the Court of Appeal, unless the issue is raised before an appeal is heard, it will mean that it cannot be properly raised. The Court would have become functus officio.
  5. Moreover, as the Court had no original jurisdiction, the issue of bias could not be properly raised for the Court to inquire into whether fundamental Constitutional rights have been breached. That would entail the calling of evidence and the examination and cross-examination of witnesses which the Court could not legally do. The Court may only handle such Constitutional issues as do not entail the reception of fresh evidence except as provided under rule 29 of the Court of Appeal Rules.
  6. The Judge who sought to be heard was a retired Judge of this Court. His role in the appeal was that of a Judge. His desire to be heard in the application raised a serious conflict between two fundamental public policy principles: the rule of natural justice that no person should be condemned unheard and, secondly, that a litigant should be heard fairly by an independent and impartial court. Both principles were entrenched in section 77(9) of the Constitution, which in addition provided for the independence of Judges.
  7. The protection provided to judicial officers in general was to enable them to function freely and effectively, and to be free from harassment by litigious individuals. Besides, there was section 129 of the Evidence Act which provided that no judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in court as such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate, but he may be examined as to other matters which occurred in his presence whilst he was so acting.
  8. The circumstances under which a Judge may be permitted to respond to certain matters were circumscribed and the affidavit filed by the retired Judge in this case was not within the ambit of those circumstances. The affidavit was filed contrary to public policy.

Preliminary objection upheld, notice of motion dismissed.

 

Editor’s Note:

The comments of the Judges and Magistrates Vetting Board regarding the Rai Case: Determinations Concerning Nine (9) Judges of the Court of Appeal – April 25, 2012

One of the provisions of the new Constitution of Kenya promulgated in August 2010 was that all judicial officers who were in service at the time of the promulgation of the Constitution would be subjected to a process of vetting with a view to determining their suitability to continue serving in their offices. Some of the matters that the Judges and Magistrates Vetting Board was empowered to look into in determining the suitability of a judicial officer included the nature of the decisions issued by that officer.

In April 25, 2012, at the conclusion of a vetting process for the Judges of Appeal, the Board delivered its determination in which it made the following pertinent observations about the Court of Appeal’s decision in the Rai case:
This was a case where a retired judge of appeal had acted in what on the face of it was a serious conflict of interest situation, giving rise to a strong and reasonable perception of bias.

  • In essence, the issue was whether the Court of Appeal should re-open a matter in which it had given a final determination, on the grounds that the interests of justice so required.
  • The Court decided that in the special conditions of Kenya the overall need for finality had to take precedence over the interests of justice in a particular matter.
  • The Board was not fully persuaded of the objectivity displayed by the Court, either in the reasons carefully spelt out in the judgment or by the answers given in the interview. Recent precedent in Kenya had pointed to the right of the Court of Appeal to re-open a concluded matter if very exceptional circumstances existed.
  • The well-known Pinochet case in the House of Lords in England had established that where a judge hearing a matter had had an interest, recusal had been obligatory, and a failure to step down had rendered the proceedings a nullity.
  • During the interview it became clear that a major factor which had influenced the judges had been that the impugned judge had sought to use the application to re-open the matter as a platform for redeeming his honor by telling what he had seen as his side of the story. It may have seemed to the judges that this would have led to an inappropriate and unseemly battle been fought out in a manner that would reflect negatively on the dignity of the Court.
  • Whatever the reason, the Court both refused the application of the impugned judge to submit his own affidavit, and ruled in favor of absolute finality, thus putting an end to the matter once and for all.
  • The Board was left with the strong impression that the Court had not started with the law and ended with the result. Rather, it had for reasons of expediency maneuvered the law in such a manner as to achieve a desired result, namely, to avoid having any dirty judicial laundry washed in public, even if this meant that a manifest injustice perpetrated by a member of the judiciary against a litigant would not be faced up to.
  • The inevitable consequence was to further a public perception that in order to evade examining charges against one of its former members, the judiciary would re-interpret its own precedent, obliterate the charge that court processes had been tainted and leave the apparently wronged litigant out in the cold”.

 

Editor’s Note:

The issue of law arising in the Rai case later became the subject of a Constitutional provision, at least with respect to criminal cases: The Constitution of Kenya 2010 Article 50(6)(2) provides that a person who is convicted of a criminal offence may petition the High Court for a new trial if–– (a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and (b) new and compelling evidence has become available.

 

 

12. Whether Service of a Petition Through A Notice in the Kenya Gazette is Proper Service

Kibaki v Moi

Court of Appeal, at Nairobi

Civil Appeals Nos 172 & 173 of 1999 (Consolidated)

Chunga CJ, Omolo, Shah, Lakha & Owuor JJ A

December 10 1999

 (Appeal from an Order of the High Court of Kenya at Nairobi (O’Kubasu, Mbogholi-Msagha & Ole Keiwua JJ) dated 22”d July, 1999 in Election Petition No 1 of 1998)

 

Practice and Procedure — service of election petition — personal service vs other modes of service — the preferred mode of service for election petitions — petitions filed under section 20(1)(a) of the National Assembly and Presidential Elections Act (Cap. 7) — whether service of a petition through a notice in the Kenya Gazette is proper service – National Assembly Elections (Election Petition) Rules rule 14(4)

Statutes — interpretation of statutes — statutes and subsidiary legislation — where a parent Act is amended but subsidiary legislation is not amended, leaving it in conflict with the statute — how this conflict may be resolved — whether section 20(1)(a) of the National Assembly and Presidential Elections Act (Cap. 7 was in conflict with rule 14(1) of the National Assembly Elections (Election Petition) Rules.

Precedent — stare decisis — distinction between ratio decidendi and obiter dicta — duty of the High Court to follow the decisions of the Court of Appeal unless it can distinguish them.

 

Under section 20(1)(a) of the National Assembly and Presidential Elections Act (Cap. 7), it was provided that an election petition must be presented and served within 28 days after the publication of the result of the election in the Gazette. Under rule 14(1) of the National Assembly Elections (Election Petition) Rules, it was stated that service of the notice of presentation of a petition accompanied by a copy of the petition was to be served on the respondent within ten days of presentation of the petition.

The interpretation of these two provisions became a salient feature of the issues in dispute in these two consolidated appeals. The appellant in both appeals was the leader of the official opposition in Parliament and the 1st respondent was the President of the Republic of Kenya. The 2nd and 3rd respondents were the Chairman of the Electoral Commission and the Electoral Commission itself respectively.

The appellant and the 1st respondent were among the candidates, who had contested for the office of President in the general elections held on 29th and 30th December, 1997. The result of the election was published in a Kenya Gazette Notice dated January 5, 1998. The result showed that the 1st respondent had won the election by scoring 2,445,801 votes. The appellant, who was the runner-up in the election, had scored 1,895,527 votes.

On January 22, 1998, the appellant filed an election petition in the High Court challenging the validity of the election of the 1st respondent. Later on January 29, 1998, the appellant caused to be published in the Kenya      Gazette a notice of the filing of the petition. The notice was the only mode adopted by the appellant in serving the petition on all the respondents.

On January 25, 1999, one year after the presentation of the petition, the 1st respondent took out a notice of motion asking the election court to strike out the petition on the ground that it had not been served on him either within 28 days after the publication of the election results as required by law or at all. On the following day, the 2nd and 3rd respondents also filed an application seeking similar orders. The two motions, which were opposed by the appellant, were predicated on the contention that rule 14 of the National Assembly Elections (Election Petition) Rules was in conflict with section 20(1)(a) of the Act and that therefore, it was of no consequence. The appellant, on the other hand, argued that there was no such conflict. The High Court allowed the applications and the appellant’s petition was struck out.   The appellant appealed.

 

Held:

  1. Rules must be read together with their relevant Act; they cannot repeal or contradict express provisions in the Act from which they derive their authority. If the Act is plain, the rule must be interpreted so as to be reconciled with it or if it cannot be reconciled, the rule must give way to the plain terms of the Act. Where an Act passed subsequently to the making of the rules is inconsistent with them, the Act must prevail     unless it was clearly passed with a different object and then the two will stand together.
  2. Election petitions are of such importance to the parties concerned and to the general public that unless Parliament specifically dispensed with the need for personal service, then the courts must insist on such service. Neither in section 20(1)(a) nor rule 14(2) of the rules did Parliament intend to dispense with personal service. The section did not prescribe any mode of service but the courts must go for the best form of service. The other modes of service were only alternatives to personal service.
  3. Section 20(1)(a) of the National Assembly and Presidential Elections Act was in direct conflict with rule 14(1) of the National Assembly Elections (Election Petition) Rules and that being so, rule 14 had to give way to the plain words of the section. Accordingly, rule 14 could no longer apply to petitions which concerned section 20(1)(a) of the Act.
  4. In view of the fact that section 20(1)(a) of the Act required presentation  and service of the petition, then service by way of publication in the Kenya Gazette, which merely directs a respondent to obtain a copy of the petition from the Registrar of the High Court, cannot be proper service.
  5. (Obiter) The High Court has no power to overrule the Court of Appeal. It has no jurisdiction to flout the principles of precedent and stare decisis and while it has the right and indeed the duty to examine the decisions of the Court of Appeal, it must follow those decisions unless they can be distinguished from the case under review on some principle such as obiter dictum.

 

Appeals dismissed.

 

 

13.  Whether Breach of a Contract for Personal Services May be Remedied by Equitable Remedies of Injunction and Specific Performance; Whether the Contract of Service in the University of Nairobi was Underpinned by Statute

Makokha & 4 others v Sagini & 2 others [1994] KLR 46

Court of Appeal at Nairobi

Apaloo CJ, Gachuhi, Cockar, Omolo & Akiwumi JJ A

(Application for a stay of execution in an intended appeal from the ruling of the High Court of Kenya at Nairobi – Justice AB Shah – dated January 28, 1994 in HCC 73 of 1994)

March 1, 1994

Reported by Michael M. Murungi

 

  1. Could a temporary injunction issue to restrain the implementation of a decision by an employer to terminate a contract of employment?
  2. What is the meaning of a contract of employment having a ‘statutory underpinning’ within the meaning of the decision of the Court of Appeal in Ochieng Nyamogo & another v Kenya Posts and Telecommunications?
  3. Was the decision of the Court of Appeal in Ochieng Nyamogo & another v Kenya Posts and Telecommunications properly made?

The applicants were lecturers employed by the University of Nairobi who had fallen into a dispute with the university with regard to the registration of their union. The university alleged that the applicants had failed to report for duty and they had incited other academic staff to join their strike and obstructed activities at the university. Accordingly, the university initiated disciplinary proceedings against the applicants and made a decision to terminate their appointments.

The applicants moved the High Court for a declaration that the purported terminations were void; an order of injunction restraining the university from acting on the purported terminations and from evicting the applicants from the residences which had been provided to them by the university. They cited the decision of the Court of Appeal in Ochieng Nyamogo & another v Kenya Posts and Telecommunications, Application No. NAI 204 of 1993 in which the Court had held that a contract of employment entered into in that case had statutory underpinning and could not be determined on the ordinary law applicable to master and servant, and proceeded to grant a temporary injunction restraining the respondent corporation from retiring two of its servants and from evicting them from their quarters pending the determination of the suit.

The High Court (Shah J) considered the Giella v Cassman Brown principles which applied in an application for a temporary injunction. The Court observed that the regulations on which the applicants were relying had no statutory backing and were made by the University under powers conferred on it by the University of Nairobi Act for the internal guidance of the University only. Accordingly, the Court found that the contract of employment between the applicants and the respondents was not statutorily underpinned within the meaning of that concept in the Nyamogo case and that the applicants had failed to establish the requirements for the grant of an injunction.

The applicants brought a fresh application for a temporary injunction in the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules.

 

Held

  1. One of the principles of injunction law is that prima facie, one does not obtain injunction to restrain actionable wrongs for which damages are a proper remedy. The well-settled rule that the breach of a contract for personal service cannot be redressed by the equitable remedies of injunction and specific performance remained good law.
  2. The comparatively few cases in which declarations were made and injunctions were granted to restrain a breach of contract of personal services are exceptions to the general run of the common law.
  3. The common law rule that damages are the generally accepted remedy for redressing breaches of contracts of personal service is too firmly established to be overthrown by side wind. While we note the emerging changed attitudes and remedial changes they are bringing about, we cannot help feeling that the common law and the doctrine of equity which Section 3 of the Judicature Act obliges us to apply is the established and well known common law. It is on the faith of this that the transactions are entered into.
  4. The tenure of the lecturers of the University of Nairobi could not be said to be ‘statutorily underpinned’ within the meaning of the Nyamogo case. They cannot be forced to resume their office by the equitable remedy of specific performance. They could only seek damages against the university for breach of contract. They could not competently claim to be re-instated unless a statute expressly conferred this right on them and by that method, underpinned their continued employment.
  5. The Court in the Nyamogo case had omitted to consider and construe the particular regulation on which the corporation had relied in retiring its two employees and therefore the decision was given per incuriam. Therefore, the holding in that case did not have the force of a binding precedent.

 

Application declined.

 

 

14.  Persons Who May Agitate a Cause of Action Vested in a Deceased Person at the Time of His Death

Trouistik Union International & another v Mbeyu & another (2008) 1KLR (Gender and Family) 730

Court of Appeal at Nairobi

Apaloo, Kwach, Cockar, Omolo, Tunoi JJ A

(Appeal from a judgment and decree of the High Court of Kenya at Mombasa,

Bosire JA, dated October 17, 1989 in HCCC No. 172 of 1987) October 19, 1993

Reported by Michael M. Murungi

 

John Katembe, a man aged 65 years, died in April 1984 after he was knocked down by a motor vehicle driven by the 2nd appellant. In March 1987, the respondents, who claimed to be the widows of the deceased, filed an action in the High Court alleging that the death of the deceased was caused by the negligence of the 2nd appellant. They claimaed damages against both the appellant and her employer under the Law Reform Act (Cap. 26) and the Fatal Accidents Act (Cap. 32). The appellants admitted negligence and the High Court awarded damages to the respondents under the two Acts.

On appeal, the appellants argued that the respondents should not have been awarded damages under the Law Reform Act because they lacked standing to present a suit for the benefit of the deceased when they had not taken out letters of administration before commencing the suit.

The respondents opposed the appeal and cited the decision of the Court of Appeal in Roman Carl Hintz v Mwangombe Mwakima (1988) 1 KAR 482. In that case, the capacity of a plaintiff to commence an action for the benefit of a deceased person’s estate under the Law Reform Act had been disputed. In a split decision, the Court had decided that the respondent had the capacity to sue under the Law Reform Act as the deceased’s personal representative, the cause of action having been transmitted to the respondent upon his son’s death, and that such an action could be competently filed without first obtaining letters of administration.

The appellants invited the Court to hold that the Hintz case was no longer good law.

 

Held:

  1. The Common law rule in this matter is expressed in the latin maxim action personalis moritor cum persona – a personal action dies with the person. This rule was to a large extent supplanted by the Law Reform Act which keeps alive, with a few exceptions, causes of action which vest in a person since deceased. Accordingly, to determine who is empowered to enforce that chose in action, for what purposes and when in point of time, one must look at the Act and allied relevant legislation.
  2. This rule was, to a large extent, supplanted by the Law Reform Act which keeps alive, with few exceptions, causes of action which vest in a person since deceased. Accordingly, in order to determine who is empowered to enforce that chose in action, for what purposes and when in point of time, one must look at the Act and allied relevant legislation.
  3. The Law of Succession Act (cap. 160) constitutes the law in Kenya in respect to all cases of intestate or testamentary succession to the estates of deceased persons. Section 82(a) of the Act confers the power to agitate by suit any cause of action vested in a person at the time of his death on the personal representative alone. Under section 3, a personal representative means an executor or administrator of a deceased person, and an administrator means a person to whom a grant of letters of administration has been made under the Act.
  4. As the deceased person in this case had died intestate, the only person who could answer to the description of a personal representative was the administrator of the estate of the deceased.
  5. The decision of the Court of Appeal in Hintz v Mwakima is no longer good law, and it is overruled.

 

Appeal allowed, award of damages under the Law Reform Act set aside.

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