Weekly Newsletter 010/2020



Kenya Law

Weekly Newsletter


There is a limited right of appeal against a High Court decision made under section 35 of the Arbitration Act.

Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party)
Petition No 12 of 2016
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
December 6, 2019
Reported by Beryl Ikamari

Download the Decision.

 

Alternative Dispute Resolution-arbitration law - arbitral award - court intervention in arbitration - application for setting aside an arbitral award before the High Court - appealability of a decision of the High Court relating to an application to set aside an arbitral award - whether there was a right of appeal against a High Court decision for an application for the setting aside of an arbitral award under section 35 of the Arbitration Act - Arbitration Act (Cap 49), sections 10, 32A and 35.

Jurisdiction - jurisdiction of the Court of Appeal - right of appeal-appealability of High Court decisions made under section 35 of the Arbitration Act - whether article 164(3) of the Constitution provided for an automatic right of appeal for decisions from the High Court - Constitution of Kenya 2010, articles 164(3) and 159(2)(c).

 

Constitutional Law - fundamental rights and freedoms - rights of access to justice and fair trial - concept of finality in arbitration proceedings-limits placed on court intervention in arbitration proceedings - whether sections 10, 32A and 35 of the Arbitration Act, to the extent that they recognized the concept of finality in arbitration, violated rights of access to justice and fair trial - Constitution of Kenya 2010, articles 48 & 50; Arbitration Act (Cap 49), sections 10, 32A and 35.

 

 

Brief facts:

Under a distribution agreement, the petitioner contracted to distribute telephone handsets on behalf of the respondent. A dispute arose when the respondent made delivery for orders placed by the petitioner's agent. The value of the order was eleven million Kenya shillings. It turned out that the order was made fraudulently. To resolve the dispute a sole arbitrator was appointed. The arbitrator was to adjudicate on any dispute or claim arising out of or relating to the contract and/or alleged breach thereof. The arbitration proceedings culminated in the delivery of an award of Kshs. 541,005,922.81 in favour of the petitioner. The awarded sum mostly related to the tort of negligence.

 

The petitioner filed the case of Nyutu Agrovet Ltd v Airtel Network Kenya Ltd Nairobi H.C.C.C. No.350 of 2009 for orders for the setting aside of the arbitral award. The grounds for the setting aside of the award were that it contained decisions for matters that were outside the distributorship agreement, the terms of reference to arbitration or the contemplation of the parties. The High Court set aside the arbitral award.
The petitioner successfully obtained leave to appeal to the Court of Appeal. An application by the respondent for the striking out of the appeal was allowed on grounds that the decision of the High Court under section 35 of the Arbitration Act was final and no appeal could be lodged at the Court of Appeal against such a decision. The petitioner lodged a further appeal at the Supreme Court. The appeal was certified as one that raised a matter of general public importance under article 163(4)(b) of the Constitution.

 

Issues:

  1. Whether there was a right of appeal against a High Court decision relating to the setting aside of an arbitral award under section 35 of the Arbitration Act.
  2. Whether article 164(3) of the Constitution provided for a right of appeal applicable to decisions of the High Court made under section 35 of the Arbitration Act.
  3. Whether sections 10, 32A and 35 of the Arbitration Act to the extent that they recognised the concept of finality in arbitration proceedings, were unconstitutional on grounds that they violated rights of access to justice and fair hearing as provided in articles 48 and 50 of the Constitution.

Relevant provisions of the Law
Constitution of Kenya 2010
Article 159(2)(c);

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

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

Section 164(3);
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.

Arbitration Act (Cap 49)
Section 10;

10. Extent of court intervention
Except as provided in this Act, no court shall intervene in matters governed by this Act.

 

Section 32A
32A. Effect of award
Except as otherwise agreed by the parties, an arbitral award is final and binding upon the parties to it, and no recourse is available against the award otherwise than in the manner provided by this Act.
 

Section 35
35. Application for setting aside arbitral award
(1) Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3).
(2) An arbitral award may be set aside by the High Court only if—

(a) the party making the application furnishes proof—

(i)that a party to the arbitration agreement was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or
(iii)the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv)the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or

(vi) the making of the award was induced or affected by fraud, bribery, undue influence or corruption;

(b)the High Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
(ii) the award is in conflict with the public policy of Kenya.

(3) An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.
(4) The High Court, when required to set aside an arbitral award, may, where appropriate and if so requested by a party suspend the proceedings to set aside the arbitral award for such period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

Held:

  1. Jurisdiction was defined as the court’s power to entertain, hear and determine a dispute before it. It was also defined as the sphere of the court's operations. Article 164(3) of the Constitution stated that the Court of Appeal had jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by legislation. However that jurisdiction did not amount to a right to appeal to the Court of Appeal. Article 164(3) of the Constitution confined the powers of the Court of Appeal by delimiting the extent to which a litigant could approach it.
  2. Article 164(3) of the Constitution did not provide direct access to the Court of Appeal by all and sundry. The provision only defined the extent of the powers of the Court of Appeal. Section 3(1) of the Appellate Jurisdiction Act, was to the effect that a right of appeal was not automatic but rather it was a creation of the law. A right of appeal could be conferred by the Constitution or a statute.
  3. Unhindered access to courts was one of the components of the right of access to justice. However statutory limits relating to appeals did not necessarily infringe on that right. Each case had to be evaluated on its own circumstances.
  4. A proper basis had not been laid for the court to make a finding that there was a denial of the right of access to justice and therefore the plea to declare sections 10 and 35 of the Arbitration Act unconstitutional could not be upheld. Additionally, the issue of constitutionality was wrongfully introduced as it was pleaded at the Supreme Court in the first instance.
  5. Section 10 of the Arbitration Act provided that except as provided by the Act, no court should intervene in matters governed by the Act. That provision was enacted to ensure predictability and certainty in arbitration proceedings by specifically providing for instances when the court could intervene. Therefore parties to arbitration proceedings would know with certainty about instances when the jurisdiction of the courts could be invoked.
  6. Section 10 of the Arbitration Act did not explain whether an appeal could lie against a decision of the High Court confirming or setting aside an award. Assumption of jurisdiction by the High Court under section 35 of the Arbitration Act would be in conformity with section 10 of the Act. However, the question as to whether an appeal could be lodged against a High Court decision made under section 35 of the Arbitration Act was not answered. Neither section 10 nor section 35 of the Arbitration Act answered that question.
  7. Section 35 of the Arbitration Act should be interpreted in a way that promotes its purpose, the objectives of the arbitration law and the purpose of an expeditious yet fair dispute resolution legal system. It allowed an aggrieved party to apply for the setting aside of an arbitral award on certain grounds. The court had the opportunity to correct specific errors of law that could taint the process of arbitration. There was need to shield arbitral proceedings from unnecessary court intervention but there was also need to acknowledge that there could be legitimate reasons for seeking to appeal against High Court decisions.
  8. Considering that there was no express bar to appeals under section 35 of the Arbitration Act, an unfair determination by the High Court should not be absolutely immune from appellate review. In exceptional circumstances the Court of Appeal had residual jurisdiction to enquire into such unfairness. However, care should be taken to avoid opening a floodgate of appeals and thereby undermining the very essence of arbitration. Such appeals should address process failures as opposed to the merits of the arbitral award itself.
  9. The interested party proposed that an issue of general public importance should deserve an appeal but because such an issue was not capable of being identified with precision due to the many underlying dynamics, the proposal could not be allowed.
  10. The interested party's proposal that an issue substantially affecting one or more of the parties should warrant an appeal, needed something more to be added to it. Generally, the usual result of a court decision was that it would affect the parties and that alone did not mean that the issue warranted an appeal. It was necessary for there to be something beyond a decision that affected the parties. An example of that was a constitutional issue.
  11. Where the High Court set aside an arbitral award on constitutional grounds, to prevent it from being the first and final determinant in constitutional issues, an opportunity to appeal should be given. However, alleged breaches of the Constitution were not capable of being litigated by way of an application to set aside an arbitral award but were properly governed under articles 165(3) and 258 of the Constitution.
  12. An appeal could only lie to the Court of Appeal against a High Court determination under section 35 of the Arbitration Act where in setting aside an award, the High Court stepped outside the grounds set out in the said section 35 and thereby made a decision so grave and so manifestly wrong that it denied the parties justice. The Court of Appeal should only assume jurisdiction in the clearest cases.
  13. Courts had to distinguish between legitimate claims which were within the ambit of exceptional circumstances necessitating an appeal and claims where litigants wanted an undeserved opportunity and would completely negate the essence of arbitration as an expeditious and efficient way of delivering justice. A mechanism for granting leave to appeal would be a solution to the process of discarding frivolous, time wasting and opportunistic appeals.
  14. The Court of Appeal did not determine the substantive complaint as to whether the High Court properly considered the grounds for setting aside an award under section 35 of the Arbitration Act. Without such a Court of Appeal determination, all that the Supreme Court could do was to remit the matter back for a Court of Appeal determination. The Court of Appeal would also have to determine in limine whether the threshold for admitting the appeal had been met and whether the appeal should be heard at all in light of the determinations of the Supreme Court on the circumstances under which such an appeal could be lodged.


D K Maraga, CJ & P [Dissenting]

  1. Article 64(1) of the repealed Constitution provided that there would be a Court of Appeal which would be a superior court of record and would have jurisdiction and powers in relation to appeals from the High Court as conferred on it by law. That provision left the jurisdiction of the Court of Appeal and ancillary powers like the right of appeal to be conferred by other legislation. However, article 164(3) of the Constitution provided that the Court of Appeal had jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by legislation. The right of appeal was subsumed in the appellate jurisdiction conferred by that provision. However, an issue as to whether it provided a universal right of appeal arose.
  2. Article 159(2)(c) of the Constitution entrenched arbitration in the Kenyan legal system. Further, one of the main objectives of the Arbitration Act was to limit court intervention in arbitral proceedings. The question that arose was whether as related to the issue of court intervention, articles 159(2)(c) and 164(3) of the Constitution were contradictory.
  3. In constitutional interpretation, the principle of harmonization was to the effect that the entire Constitution had to be read as a whole and one particular provision would not destroy the other but each provision sustained the other without subordination of one provision to the other.
  4. Articles 159(2)(c) and 164(3) of the Constitution did not contradict each other. They were actually complimentary. While article 164(3) provided for the appellate jurisdiction of, and the right of appeal to the Court of Appeal, article 159(2)(c) entrenched arbitration in Kenya as an alternative dispute resolution mechanism with its strictures. Read together they meant that court intervention including appellate intervention in arbitral proceedings, had to be provided for by the Arbitration Act.
  5. Sections 10, 32A and 35 of the Arbitration Act, when read together, limited the appellate court's intervention to domestic arbitrations and only by the consent of the parties, could not be said to run counter to article 164(3) of the Constitution. Consequently, they were not unconstitutional.
  6. The Arbitration Act was silent as to whether a High Court decision under section 35 of the Act was appealable. The Court of Appeal, however, had appellate jurisdiction under section 39 of the Arbitration Act in domestic arbitrations and by the consent of the parties. The parties to the appeal did not consent to an appeal. Sections 10 and 32A of the Arbitration Act and the overall objective of the Act, did not allow for an implication that the silence in section 35 of the Act in relation to the right of appeal meant that there was a tacit right of appeal.
  7. Arbitration did not deny litigants access to courts but instead provided an alternative mode of dispute resolution that was expressly provided for in article 159(2)(c) of the Constitution. Litigants could select a mode of dispute resolution that suited them. Once a choice to arbitrate had been made, it could not be argued that the right of access to justice had been denied or limited.
  8. The principle of finality in arbitration was recognized in section 32A of the Arbitration Act. The import of the provision was that an arbitral award was final and it could only be challenged in ways provided for under the Act. Sections 10 and 35 of the Arbitration Act restricted judicial intervention in the arbitral process to expedite dispute resolution while maintaining the sanctity of the principle of finality in the entire arbitral process. If the principle of finality was limited to the arbitral awards only and not to any court proceedings founded on them, the objectives of arbitration would be defeated and arbitration would be a precursor to litigation.

Petition of appeal allowed.
Orders:-

  1. The order of the Court of Appeal made on March 6, 2015 was set aside in its entirety.
  2. The notice of motion application dated May 3, 2012 in Civil Appeal No. 61 of 2012 Nyutu Agrovet Limited v Airtel Networks Kenya Ltd was dismissed.
  3. Civil Appeal No. 61 of 2012 was to be heard and determined by the Court of Appeal on an expeditious basis.
  4. Each party would bear its own costs.

 

 

Kenya Law
Case Updates Issue 010/2020
Case Summaries

JURISDICTION The Court of Appeal has jurisdiction to review its decisions.

Manchester Outfitters (Suiting Division) Ltd (now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others
Petition No 6 of 2016
Supreme Court of Kenya
DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ
December 20, 2019
Reported by Beryl Ikamari

Download the Decision

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application - whether the Supreme Court had jurisdiction to hear and determine an appeal lodged against a review decision of the Court of Appeal to question whether the Court of Appeal had jurisdiction to review its decisions.
Jurisdiction - jurisdiction of the Court of Appeal - jurisdiction to review decisions - overriding objective principles - whether the Court of Appeal had jurisdiction to review its decisions.

Brief facts:
The petitioners filed a suit, HCCC No. 5002 of 1990, to challenge the appointment of the 1st and 2nd respondents as receiver managers under a debenture. They also challenged the validity of the debenture and securities that formed the basis of the appointment. The petitioners stated that the appointments were done in bad faith and for improper motives and they also constituted a breach of an agreement. The 1st respondent filed a defence and counterclaim in which it stated that the 2nd respondent was lawfully appointed as receiver manager pursuant to a debenture dated April 5, 1982. Under that debenture, the 2nd and 3rd respondents claimed Kshs. 2,337,161.75 and interest thereon at 10% per annum being their expenses for services rendered. The High Court dismissed the suit and allowed the counterclaim as filed by the 1st and 2nd respondents.
The 1st and 2nd Petitioners moved to the Court of Appeal and filed Civil Appeal No. 88 of 2000. They sought the setting aside of the High Court judgment or alternatively, orders for re-hearing of the suit before a different High Court judge. While the appeal was pending, the respondents sold off the 1st and 2nd petitioners’ assets in order to recover the 1st respondent's funds. Via a majority decision, the Court of Appeal allowed the appeal and awarded the 1st petitioner Kshs. 251,000,000 plus interest at 14% per annum from August 1, 2002, which was to be paid within 30 days of the judgment. The award of damages was based on a valuation report admitted to the court de bene esse by the 1st petitioner's counsel.
The respondents sought redress before the COMESA Court of Justice. They argued that the Court of Appeal acted in excess of its jurisdiction and violated the respondents' right to be heard but they withdrew the matter from that court on July 20, 2006.  On August 18, 2006, the respondents filed Civil Application No. NAI 224 of 2006 which sought the setting aside of the Court of Appeal's orders of October 4, 2002. The basis of the application was alleged bias in the case of one judge. The said judge, while serving as an advocate, had received instructions from the petitioners but he declined them. The Chief Justice removed him from a bench involving the same parties and subject matter. The Court of Appeal, in a ruling delivered on April 8, 2016 gave orders for it to hear the appeal (Civil Appeal No 88 of 2000) afresh.
The 1st and 2nd petitioner lodged a Supreme Court appeal in which they questioned whether the Court of Appeal had residual jurisdiction to re-open and re-examine a concluded appeal. They sought orders for the 2002 judgment in Civil Appeal No. 88 of 2002 to be restored.

Issues:

  1. Whether the Supreme Court had jurisdiction to hear and determine an issue, about whether the Court of Appeal could review its decisions, as a matter of constitutional interpretation and application.
  2. Whether the Supreme Court had jurisdiction to hear and determine an appeal lodged against a ruling of the Court of Appeal which entailed a review decision made after the delivery of the Court of Appeal's judgment.
  3. Whether the Court of Appeal had jurisdiction to review its decisions..Read More..

Held:

  1. The jurisdiction of a court had to have its basis on the Constitution or legislation or both. The court could only exercise jurisdiction as conferred on it by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by the law. Jurisdiction was not capable of being expanded through judicial craft or innovation.
  2. The issues raised by the 1st and 2nd petitioners had to fall within the ambit of constitutional application or interpretation. For the Supreme Court to exercise jurisdiction, the petitioners had to show that the gist of the cause at the Court of Appeal and that court's reasoning and conclusions that lead to the determination of the cause, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application. The petitioners would have to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter.
  3. The subject of appeal was not a Court of Appeal judgment but a Court of Appeal ruling in which the court accepted an invitation to review its own judgment. The issue to be determined at the Supreme Court was whether the Court of Appeal properly invoked jurisdiction to review its judgments. It was an issue addressed by the Court of Appeal but it had not been settled by the Supreme Court. The Supreme Court had jurisdiction to interrogate the issue raised and to give directions to the Court of Appeal on the exercise of its review jurisdiction.
  4. Each case had to be evaluated on its own facts. Where a moment to settle novel jurisdictional issues arose, as a constitutional court, the Supreme Court had to rise to the occasion and invoke its constitutional mandate and give direction.
  5. Despite the fact that the appeal related to a post-judgment ruling of the Court of Appeal, the unique circumstances of the case were such that it was appropriate for the Supreme Court to assume jurisdiction and determine the issue.
  6. There were two divergent views as to whether the Court of Appeal could review its decisions. There was one on the principle of finality of litigation which was based on public interest and the need for stability and consistency in law. The preposition on the principle of finality did not support reviews of decisions by the Court of Appeal. The second position was on the justice principle which favoured limited review predicated on the basis that the object of litigation was to do justice.
  7. Before the promulgation of the Constitution of Kenya 2010, the Court of Appeal was the final court in the hierarchy of courts. It did not have residual jurisdiction to review or sit on appeal on its own matters. Since 2010, the Court of Appeal expressed the wherewithal to exercise inherent jurisdiction to review its decisions.
  8. The Supreme Court had jurisdiction to review its decisions under certain conditions and it would be absurd that the Court of Appeal, should not, in appropriate circumstances exercise the same review power. Overriding objective principles were an additional tool to further the cause of justice. The Court of Appeal had jurisdiction to re-open, re-hear and re-determine decisions previously determined by it.
  9. There was no justifiable fault in the decision of the Court of Appeal to re-open and hear afresh the matter before it, on the basis of their consideration of facts and circumstances of the case.

Petition dismissed. Each party to bear its costs.

JURISDICTION Exceptional circumstances under which the Supreme Court could review its decisions

Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Josephine Akoth Onyango & 5 others; Attorney General & another (Interested Parties) [2019] eKLR
Petition of Appeal No.18 of 2015
Supreme Court of Kenya
DK Maraga, CJ & P; MK Ibrahim, JB Ojwang, SC Wanjala & I Lenaola, SCJJ
November 29, 2019
Reported by Kakai Toili

Download the Decision

Jurisdiction – jurisdiction of the Supreme Court – jurisdiction to review its own decisions – claim by the applicant that he was at the risk of execution of the bill of costs which would be highly prejudicial during the pendency of the proceedings before the African Commission on Human and Peoples Rights - circumstances in which the Supreme Court could review its own decisions - what were the exceptional circumstances under which the Supreme Court could review its decisions – Constitution of Kenya, 2010, chapter 10

Brief facts
The applicant filed the instant application seeking orders for review of a judgment and order of the court. The applicant submitted afresh on matters that had been heard and determined by the High Court, Court of Appeal and the instant court and faulted all of them for allegedly misconstruing and misunderstanding the case as argued before them. The applicant also alleged that he had filed a complaint against the Republic of Kenya at the African Commission on Human and Peoples Rights on matters touching on those decisions.
The applicant claimed that a review of the court’s judgment was necessary because he was at the risk of execution of the 1st and 2nd respondents’ bill of costs which action he further claimed would be highly prejudicial to him during the pendency of the proceedings before the African Commission on Human and Peoples Rights.

Issue:

  1. What were the exceptional circumstances under which the Supreme Court could review its decisions? Read More..

Held:

  1. Taking into account the edicts and values embodied in Chapter 10 of the Constitution, the Supreme Court had no jurisdiction to sit on appeal over its own decisions or to review its decisions. However, in exercise of its inherent powers, the court could upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances should be limited to situations where: 
    1. The judgment, ruling or order was obtained by fraud or deceit;
    2. the judgment, ruling or order was a nullity, such as, when the court itself was not competent;
    3. the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
    4. the judgment or ruling was rendered on the basis of a repealed law or as a result of, a deliberately concealed statutory provision.
  2. None of the exceptional circumstances were properly applicable to the instant case. The applicant only moved the court for a review of its judgment 3 years after delivery of the judgment and only because he was threatened with execution by the 1st and 2nd respondents.  That action was not a ground for seeking a review of the judgment.
  3. Whereas the African Commission on Human and Peoples Rights was indeed seized of a complaint against the Republic of Kenya by the applicant, that fact alone was not sufficient to move the court to review its judgment.

Application dismissed; applicant to bear the costs.

CIVIL PRACTICE AND PROCEDURE

The Supreme Court sets aside a consent judgment where one of the parties to the suit did not participate or acknowledge the consent.

Anne Waiguru & another v Martha Wangari Karua & 2 others [2019] eKLR
Petition (Application) No. 5 of 2018
Supreme Court of Kenya
DK Maraga, CJ & P; PM Mwilu, DCJ & VP; MK Ibrahim, JB Ojwang, SC Wanjala & N Njoki, SCJJ
December 17, 2019.
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure – judgment – consent judgments – where a consent judgment was entered despite failure of one of the parties’ advocate to participate or acknowledge it - whether a consent judgment could be entered where one of the parties to the suit did not participate or acknowledge the said judgment

Brief acts:
The Court of Appeal allowed the 1st respondent’s appeal against a High Court judgment which had struck out her petition challenging the election of the 1st appellant. The Court of Appeal remitted the petition to the High Court and ordered the latter to hear it de novo. Aggrieved by the Court of Appeal’s decision, the appellants moved to the court via Petition No. 5 of 2018(the petition). The appellants sought an order staying the judgment of the Court of Appeal pending the determination of their petition.

The 1st respondent raised a preliminary objection to the petition arguing that the appellants had lost interest in prosecuting the petition, having failed to comply with the directions of the Deputy Registrar. The 1st respondent also argued that the appeal would be in vain as the dispute had already been remitted to High Court for hearing. The court dismissed the application for stay with no orders as to costs as the same were to abide the cause. On July 6, 2018, the parties by consent agreed to withdraw the said petition of appeal. The consent to withdraw was recorded by the Deputy Registrar and subsequently adopted as the court’s judgment. The 1st respondent filed the instant application seeking to set aside the consent of withdrawal.

Issue:

  1. Whether a consent judgment could be entered, where one of the parties to the suit did not participate or acknowledge the said judgment. Read More...

Held:

  1. In view of the admission by counsel for the appellants to the effect that he had no instructions to hold brief for counsel of the 1st respondent and in view of his averment that his statement was occasioned by human error, there could not have been any consent without the participation and acknowledgment of the 1st respondent or her advocate. Had those facts been brought to the attention of the court, the court would not have adopted the non-consentas a judgment of the court. Had counsel for the 1st respondent attended court on July 6, 2018, he would definitely have objected to the said consent. However, the court was not in a position to determine whether the consent was procured fraudulently. There was not much on record to aid the court in arriving at such a determination with the potential, of very grave consequences for counsel.
  2. The preliminary objection was never determined in view of the fact that, it had been triggered by the petition which was never prosecuted.  In reality therefore, the petition was abandoned thus rendering the preliminary objection spent.

Application allowed; costs to be borne by the appellants.
Orders-

  1. For the avoidance of doubt, the consent judgment of July 6, 2018 was thereby set aside.
  2. The notice of preliminary objection dated June 25, 2018 was spent.
CONSTITUTIONAL LAW

Failure of the Ministry of Interior and Coordination of National Government to institute and operationalize a National Intelligence Complaints Board is unconstitutional .

 Katiba Institute v Attorney General & 3 others; Kenya National Commission on Human Rights (Interested Party) [2019] eKLR
Constitutional Petition no. 7 of 2018
High Court at Malindi
R Nyankundi, J
December 11, 2019
Reported by Kadzo Jali

Download the Decision

Constitutional Law – fundamental rights and freedoms – right to fair administrative action - right to fair hearing – whether the  2nd to 4th respondents violated the rights of the people by not instituting and operationalizing the National Intelligence Service Board –Constitution of Kenya, 2010 articles 239(5) The National Intelligence Service Act, section 66.
Constitutional Law – fundamental rights and freedoms – right to fair administrative action - right to fair hearing – whether the absence of the National Intelligence Service Board was an affront to fair administrative action–

Brief facts:
The Katiba Institute filed the instant petition on the ground the respondents failed to form a civilian complaints mechanism to deal with complaints from the public on any grievances against the Director General or any other staff member of the service while exercising their duties as provided for under section 25 of the National Security Intelligence Service Act.
The petitioner averred that despite making overtures to the 2nd respondent seeking to be furnished with relevant information as regards the establishment and operationalization of the of the National Intelligence Complaint Board pursuant to article 35 of the Constitution, no information had been forthcoming. The petitioner sought for, inter alia, declaratory orders that the respondents’ failure or refusal to establish and operationalize the Intelligence Service Complaints Board under section 66 of the National Intelligence Service Act was a violation of the rule of law and the Constitution.
The 4th respondent contended that the Public Service Commission had initiated formation of the National Intelligence Service Complaints Board(the Board) by advising the Cabinet Secretary Ministry of Interior and Co-ordination of National Government to commence the process of establishing the Board on July 18, 2018. It was the respondents’ case that the process of establishing the Board was at an advanced stage and what was pending was the appointment of its members by the Cabinet Secretary, which was expected to happen in due course. It was the respondents’ case that they had fully and duly demonstrated the steps taken to comply with the provisions of the Act and urged the court to dismiss the applicant’s application with costs on grounds of equity and justice.

Issues:

  1. Was the failure by the 2nd to 4th respondents to institute and operationalize the National Intelligence Service Board contemplated under Article 239(5) and Section 66 of the NIS Act justifiable under the Constitution?
  2. Whether the absence of the National Intelligence Service Board was an affront to fair administrative action.
  3. Whether the failure by the 2nd to 4th respondents to constitute the National Intelligence Service Board went against the principle of legitimate expectation.
  4. What were the principles of legitimate expectation? Read More...

Relevant provisions of the law
National Intelligence Service Act
“67. Powers and functions of the Board                          
 (1) The functions of the Board shall be—

 (a) to receive and inquire into complaints against the Service made by any person aggrieved by anything done by the Director-General or any member of the Service in the exercise of the powers or the performance of the functions of the Service under this Act;
 (b) to inquire into any other matter referred to it by the President or the Cabinet Secretary under this Act; and
 (c) to make its recommendation thereon to the President or the Cabinet Secretary.

(2) Subject to the provisions of subsection (4) and for the purpose of investigating any complaint under this Act, the Board shall have the powers of the High Court—

 (a) to summon any witness;
 (b) to administer oaths or affirmations; and
 (c) to order the production of any records or documents relevant to the investigation.

 (3) No person shall be compellable under any such summons to produce any document which he or she could not be compelled to produce at the trial of a suit.
(4) In the discharge of its functions under this Act, the Board shall have regard to the requirements of national security and for that purpose shall—

 (a) subject to subsection (1)(b), consult the Director-General and the Council; and

(b) take all the necessary precautions to prevent the disclosure of—

 (i) any information which in its opinion may not be disclosed in the course of, or in relation to any inquiry; and
 (ii) the source of such information.

 (5) The Board may hear separately and in private, such evidence as may be tendered by a complainant and the Director-General or any other member of the Service in relation to a complaint.
 (6) If during the inquiry, the Board receives evidence of a breach of duty or misconduct against any member of the Service, it shall notify the Cabinet Secretary and the Council or the Director-General, as the case may be, and subject to the provisions of this Act, recommend appropriate disciplinary action against such member.
 (7) At the end of the inquiry, the Board shall inform the complainant, in writing, of its findings and shall make a report of its findings and recommendations to the Cabinet secretary and the Council.
 (8) The Cabinet Secretary shall make regulations, prescribing the manner in which the Board shall discharge its functions under this Part including the procedure for proceedings of the Board, but subject thereto, the Board shall regulate its own procedure.”

 

Held:

  1. Article 239(5) of the Constitution of Kenya, 2010 (the Constitution) could not have been more explicit in its subordination of all the national security organs to civilian authority.  In pursuit of the noble objective of allowing the public to have a hand in overseeing the operations of a powerful national security organ as intended by article 239(5), section 66 of the National Intelligence Service Act (NIS Act) provided for the establishment of the Intelligence Service Complaints Board (the Board).
  2. The Board was envisioned as a crucial oversight organ with quasi-judicial powers and was meant to keep the National Intelligence Services (NIS) accountable in line with the expectations of article 10 of the Constitution.
  3. The Board ought to have played the key role of receiving and inquiring into complaints against the service made by any person aggrieved by anything done by the Director-General or any member of the service in the exercise of the powers or the performance of the functions of the service under the NIS Act. That was a key role that ensured the NIS was kept accountable and transparent.
  4. The absence of the Board was an affront to the right to fair administrative action guaranteed under article 47 of the Constitution which provided that every person had the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
  5. Article 23 (3) of the Constitution provided the remedies the court could grant in cases for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. It also provided that in proceedings brought under article 22, the court could grant appropriate reliefs including a declaration of rights, an injunction, a conservatory order, invalidity of any law that denied, violated, infringed or threatened a right or fundamental freedom in the bill of rights, an order of compensation and an order of Judicial Review.
  6. The test for determining whether conduct constituted administrative action had been described by the courts as not the question of whether the action concerned was performed by a member of the executive arm of government but rather the nature of the power they were exercising. In the instant case the Constitution empowered them to constitute the Board for civilian oversight on the NIS, an action they failed to undertake. As a result, the situation that prevailed was one where the public had no recourse to tackle the excesses of the members of the NIS in their performance of administrative action. The inaction of the 2nd, 3rd and 4th respondents was a violation of article 47 of the Constitution.
  7. It could not be said that a delay of six years since the commencement of the NIS Act was not inordinate. That the Constitution was not explicit in its timelines for the requirement that there be established a civilian authority to oversee the workings of the NIS was not far from being a compelling excuse for the respondents to be resting on their laurels. As per article 259 (8), where the Constitution had not prescribed a particular time for performing a required act, the act had to be done without unreasonable delay. Six years down the line since the act came into being, the Board had not been operationalized. It took the filing of the instant petition to stir some movement in the right direction. That could not be construed to be keeping in tandem with the constitutional dictates as regards timelines. That turn of events was an outright denial of the general public’s right to access to justice.
  8. The court could not have been inclined to intervene had the respondents simply done what the law needed them to do; they could not turn around and claim interference with their mandate. Whatever processes the respondents had intimated to have been ongoing in as far as the constitution of the Board went had so far amounted to naught.
  9. The failure to constitute the Board went against the principle of legitimate expectation, a doctrine in public law that stated that a duty of consultation could arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation. The Supreme Court found that legitimate expectation was purported to arise when a body, by representation or by past practice, aroused an expectation that was within its power to fulfil. For an expectation to be legitimate, it had to be founded upon a promise or practice by public authority that was expected to fulfil the expectation.
  10. The emergent principles of legitimate expectation were that there had to be an express, clear and unambiguous promise given by a public authority; the expectation itself had to be reasonable; the representation had to be one which it was competent and lawful for the decision-maker to make; and there could not be a legitimate expectation against clear provisions of the law or the Constitution.
  11. The public had a legitimate expectation that as the Constitution ordained, it would be able to superintend the powers of the NIS which saw it at the center of Kenya’s security intelligence and counter intelligence and ought to work to enhance national security in accordance with the Constitution. Acting in accordance with the Constitution and section 66 of the NIS Act behooved the respondents to take all the necessary actions to ensure that transparency and accountability of an organisation of the magnitude of the NIS was put on the forefront. Demonstrably, that had not been the case; accountability seemed to come as an afterthought to the respondents. That failure to meet the expectation had to be remedied. It mattered not that there had not been a single complainant who had come forward alleging a lack of an opportunity for redress because of the non-existence of the Board. All that mattered was that it was a constitutional requirement that the NIS be subjected to civilian authority, the public had a legitimate expectation of that and yet the constitution of the Board was in limbo.
  12. Nothing could have been easier than for the respondents to demonstrate, through their conduct, of their willingness to establish the Board. Approaching the court with a proposal to be allowed for a certain time within which they could have complied with the law could not have been so hard. While the court did not seek to usurp their mandate by directing how they ought to operate, it was found that for a respondent that had insisted on being in the advanced stages of operationalizing the Board, from the time the petition was filed through the length and breadth of the proceedings culminating in the instant judgement, little by way of evidence had been adduced in support of their assertions.
  13. The 2nd, 3rd and 4th respondents had abdicated their duty to the public to have a functional forum that could handle complaints against the NIS. They failed the constitutional tests of integrity, transparency and accountability that article 10 of the Constitution boldly spoke of and guaranteed and had by their inaction run roughshod over the right to fair administrative action, access to justice as well as the guarantee of a fair trial.

Application allowed with costs to the petitioner.

Orders       

  1. A declaration that the respondents failure, neglect or refusal to establish and operationalize the Intelligence Service Complaints Board under section 66 of the National Intelligence Service Act was a violation of article 10 (2), article 47, article 48 and article 50(1) of the Constitution.
  2. A declaration that the 1st, 2nd and 3rd respondents’ failure to constitute the Intelligence Service Complaints Board was unjustified, consequently denying the citizens recourse for redress whenever their rights had been violated by the service members.
  3. An order of mandamus to remove from the instant court to compel and direct the 2nd, 3rd and 4th respondents to establish and operationalize the Intelligence Service Complaints Board, in strict adherence with the principles provided for under article 232 of the Constitution and section 10 of the Public Service (Values and Principles) Act within 180 days from the date of the Judgment.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

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