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History Is Made As Supreme Court Delivers Its First Ruling; Court Adopts Previous Court Of Appeal Proceedings

 

By Ann Asugah
November
2011
Nairobi

IN THE SUPREME COURT OF KENYA AT NAIROBI
ADVISORY OPINIONS  APP. NO. 1 OF 2011

IN THE MATTER OF ADVISORY OPINIONS OF THE COURT UNDER ARTICLE 163 (6) OF THE CONSTITUTION

THE COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION………………………………APPLICANT

M.K.  IBRAHIM & SMOKIN WANJALA (SCJJ)

History was made on 2nd November 2011 when the Supreme Court of the Republic of Kenya gave a ruling on directions on whether to adopt previous proceedings relating to an advisory application filed by the Commission on the Implementation of the Constitution relating to the question of nomination of persons for constitutional offices under the new Constitution of Kenya 2010. The proceedings had been before the Court of Appeal sitting as a Supreme Court and were adjourned indefinitely following the establishment of the Supreme Court and appointment of the Supreme Court Judges. At the time, the Court of Appeal had established interim Supreme Court Rules to guide its proceedings.

The ruling heralds a new dawn in the administration of justice in the country which has had the Court of Appeal as the highest court in the land since the days of East African Community when the Court of Appeal of Eastern African used to preside over appeals from the three countries.

On the 3rd March, 2011, the Commission for the Implementation of the Constitution (C.I.C) filed a Notice of Motion dated 22nd March 2011 in the Court of Appeal which was sitting as the Supreme Court under the provisions of Section 21 (2) of the Sixth Schedule of the Constitution. The applicant, C.I.C. sought Advisory Opinions of the Court on several matters including:

  1. Whether the appointing authority in making an appointment under Sections 24(2) and 29(2) of the Sixth Schedule of the Constitution must have regard to the other provisions of the Constitution regarding the appointment of Constitutional Officers and if so, the extent to which the nominating or appointing authority whose powers are conferred by the Sixth Schedule of Constitution is bound by the other provisions of the Constitution;
  2. What is the nature and extent of the consultation required under the National Accord and Reconciliation Act in making nominations and appointments to Constitutional Offices?

After hearing submissions from the Applicant and all interested parties, the Court of Appeal, still sitting as the Supreme Court on 5th April, 2011 gave the following directions, inter alia

  1. The motion shall be heard for a period of three consecutive days commencing on 11th April, 2010;
  2. Due to the urgency of the matter the motion shall be heard by way of written submissions which would be orally high-lighted at the hearing.

As a result of the said Directions, the Motion was fixed for hearing for three consecutive days, namely 11th, 12th and 13th April, 2011.  Various parties applied to be enjoined in the Application and be made “Interested parties”. Parties were given leave to file written submissions which would be orally highlighted at the hearing. Subsequently some proposed Interested Parties gave notice directly and through their written submissions that they would raise issues of jurisdiction of the Court in respect of the application.

Most of the Interested Parties raised preliminary objections on points of law, relating to the jurisdiction of the court to hear and determine the application whether as the Court of Appeal sitting as the Supreme Court or the Supreme Court generally.  However, a few of the Interested Parties supported the right of C.I.C to be heard on the merits i.e. they thought that that court in whatever capacity had the jurisdiction to hear the matter.

After the resting of submissions by counsel for the applicant, various Interested parties wished to file a reply. However, due to constraints of time, they were advised to file written submissions within 14 days and the matter was fixed for mention on 5th May, 2011 for further orders.  On the 5th May 2011, the court reserved its Ruling for 3rd June, 2011. The ruling was not delivered on the said date and was deferred to the 8th July, 2011.

Before the delivery of the Ruling, the Judges to the Supreme Court of Kenya were appointed and gazetted on 16th June 2011.  The Court of Appeal sitting as the Supreme Court then made the following order;

ORDER OF THE COURT In view of the fact that there now exists the Supreme Court of Kenya and Judges thereto have been appointed and gazetted, it is doubtful whether the Court of Appeal sitting as the Supreme Court is still seized of the Jurisdiction to hear and determine this Application. In the circumstances, this application is stood over sine die.”

At the time of the establishment of the Supreme Court and the appointment and swearing of the Supreme Court Judges, the above motion was still pending. The Supreme Court placed the matter for mention to find out the position and views of counsel as to the way forward and to give directions accordingly.

Mr. Regeru for the C.I.C. together with Mr. J. Thongori and Mr. Bryant confirmed that they had instructions to prosecute the notice of motion and that the matter was still urgent. Mr. Regeru submitted that there was nothing which stopped the Supreme Court from directing that the 5 Judge bench of the Court of Appeal, which had heard the matter to proceed to deliver their Ruling. In the alternative, he suggested that the present Supreme Court now duly established could adopt the record and proceedings and prepare its ruling on the matter

Ms Muthoni Kimani together with Mr. Ambwayo for the Attorney General submitted that now that the Supreme Court Rules, 2011 had been promulgated, there was necessity that the court and parties comply with the said Rules.  She proposed that the matter ought to start a fresh and that the Applicant be directed to file fresh pleadings.  She said that new issues could have arisen and there could be confusion if the matter proceeded from where the previous Bench had stopped.

Having considered all the submissions by counsel for the parties, the Supreme Court first started by addressing the question of jurisdiction of the Court of Appeal sitting as the Supreme Court.  It observed that it would not make any finding on this matter since its’ current task was to only filter and facilitate the hearing of the application by a properly constituted five-Judge Bench.

With regard to the question as to whether the Supreme Court could now adopt and/or take over the proceedings and proceed to determine the issues in question, the Court ruled that it would indeed adopt the proceedings including all its pleadings.  In making this ruling, the Court observed that the applicant, due to the urgency of the motion and the issues which had been raised, believed that time was of the essence and the questions which were of national importance and interest could not await the establishment of the Supreme Court.  It was the court’s view, therefore, that it would be totally improper, irregular and unfair for the court to set aside all proceedings and record and to order the applicant to file a fresh application so that they could comply with the new Supreme Court Rules.  The court observed that it would be prejudicial, costly and oppressive to the applicant and even the interested parties, who had invested heavily in terms of expenses and precious time in reaching the stage of proceedings that have been recorded.

For these reasons, the Supreme Court directed that the application, together with the pleadings filed by the Applicant be adopted and admitted into the Supreme Court proper and  such to be deemed as duly filed and on record.

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