The Supreme Court cannot issue an advisory opinion where a matter in respect of which a reference had been made was the subject of proceedings in a lower court
Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
Advisory Opinion Reference No. 1 of 2017
Supreme Court of Kenya
DK Maraga P & CJ; PM Mwilu DCJ; JB Ojwang, SC Wanjala, N Ndungu, I Lenaola & MK Ibrahim, SCJJ
February 7, 2020
Reported by Ribia John
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Jurisdiction– jurisdiction of the Supreme Court – jurisdiction to issue an advisory opinion – circumstances under which the Supreme Court could issue an advisory opinion - whether the Supreme Court could be compelled to issue an advisory opinion where a matter in respect of which a reference had been made was the subject of proceedings in a lower court - whether the question of what was the fit and proper test or criteria set under Chapter Six of the Constitution was a matter of public importance to warrant an advisory opinion from the Supreme Court – Constitution of Kenya, 2010 article 163(6); Supreme Court Act, No. 7 of 2011 section 13; Supreme Court Rules, 2016, rule 41
Civil Practice and Procedure – locus standi – locus standi to institute a reference in the Supreme Court seeking an advisory opinion – who could institute a reference seeking an advisory opinion in the Supreme Court - whether the Kenya National Commission on Human Rights (KNCHR) was a state organ with the locus standi to seek the Supreme Court’s advisory opinion.
Civil Practice and Procedure – sub judice – purpose of sub judice – circumstances under which sub judice arose - whether a Supreme Court reference seeking an advisory opinion on an issue before lower courts was sub judice
Words and Phrases – sub judice – definition of – matter before the Court or Judge for determination - Black’s Law Dictionary 9th Edition
The applicant, Kenya National Commission on Human Rights (KNCHR), by way of a reference sought to invoke the Supreme Court’s jurisdiction to issue an advisory opinion pursuant to the provisions of article 163(6) of the Constitution. The reference sought a purposive interpretation of Chapter Six of the Constitution in view of articles 38, 50, 99, 137, 180 and 193 of the Constitution, specifically in the context of the affairs of political parties. The reference was grounded on the contention that there was apparent contradiction, lack of clarity and/or guidance in High Court and Court of Appeal decisions on the place of Chapter Six of the Constitution, more so with regard to the leadership and integrity qualification of persons offering themselves to be elected or appointed to public service and/or offices within the Republic of Kenya.
The applicant sought for the Supreme Court to grant an advisory opinion on 14 questions; key among them; whether Chapter Six of the Constitution sets up a fit and proper test for leadership including elective and appointive offices.
In response to the reference, the 17th interested party filed a preliminary objection in which he challenged the jurisdiction of the Supreme Court to hear and determine the reference. The preliminary objection was premised on grounds that the Supreme Court lacked jurisdiction to entertain appeals under article 163(6) of the Constitution; that the applicant, KNHRC, lacked the locus standi to institute an appeal to the Supreme Court disguised as an application for an advisory opinion under article 163(6) of the Constitution; that the instant application for an advisory opinion under article 163(6) of the Constitution was sub-judice as there were matters pending in the High Court and that the applicant was abusing the process of the Supreme Court by invoking the Court’s appellate jurisdiction via its advisory opinion jurisdiction.
- What were the circumstances under which the Supreme Court could issue an advisory opinion?
- Whether the Kenya National Commission on Human Rights (KNCHR) was a state organ with the locus standi to seek the Supreme Court’s advisory opinion.
- Whether the Supreme Court could issue an advisory opinion where a matter in respect of which a reference had been made was the subject of proceedings in a lower court.
- Whether the question of what was the fit and proper test or criteria set under Chapter Six of the Constitution was a matter of public importance to warrant an advisory opinion from the Supreme Court
- Whether a Supreme Court reference seeking an advisory opinion on an issue before lower courts was sub judice.
Relevant Provisions of the Law
Constitution of Kenya, 2010
The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
Supreme Court Act
13. Advisory role
An advisory opinion by the Supreme Court under Article 163(6) of the Constitution shall contain the reasons for the opinion and any judges who differ with the opinion of the majority shall give their opinions and their respective reasons.
Held by Majority [ with I Lenaola and MK Ibrahim Dissenting]
- Article 163(6) of the Constitution, section 13 of the Supreme Court Act and rule 41 of the Supreme Court Rules specified who could seek an advisory opinion, and in what matters such an opinion could be sought. The court could issue advisory opinions at the request of the national government, any state organ or any county government.
- Where a reference had been made to the Supreme Court, the subject matter of which was also pending in a lower court, the court could nonetheless render an advisory opinion if the applicant could demonstrate that the issue was of great public importance and required urgent resolution through an advisory opinion. In addition, the applicant could be required to demonstrate that the matter in question would not be amenable to expeditious resolution through the adversarial court process.
- A party moving the court under article 163(6) of the Constitution had to have locus standi.The court had to always consider whether the party seeking to move it, fell within the categories of parties decreed as having such standi by the Constitution.
- The applicant (KNCHR) was a constitutional commission established under article 59 of the Constitution with the key mandate to promote, monitor, investigate and report on human rights matters in public and private institutions. Article 260 of the Constitution defined the term state organ as a commission, office, agency, or other body established under the Constitution. The applicant had the locus standi to seek the Supreme Court’s Advisory Opinion by virtue of article 163(6).
- The court would be hesitant to exercise its discretion to render an advisory opinion where the matter in respect of which the reference had been made was a subject of proceedings in a lower court. Only a truly deserving case would justify the court’s advisory opinion, as questions amenable to ordinary litigation had to be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belonged to first-instance-court litigation. Only by due deference to the assigned jurisdiction of the different courts, would the Supreme Court rightly hold to its mandate prescribed in section 3(c) of the Supreme Court Act, 2011 of developing rich jurisprudence that respected Kenya’s history and traditions and facilitated its social, economic and political growth.
- The High Court had been entrusted with the mandate to interpret the Constitution and where it had discharged that task, one could only challenge its judgmentby way of appeal to the Court of Appeal and, if not satisfied, then to the Supreme Court. The High Court should be allowed to duly discharge its constitutional mandate without interference.
- The Supreme Court’s advisory opinion jurisdiction was not intended to usurp the other courts constitutional interpretation jurisdiction. The advisory jurisdiction of the Supreme Court under article 163(6) of the Constitution was discretionary in nature.
- meant that a matter was before the court or judge for determination. The purpose of the sub-judice rule was to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. That meant that when two or more cases were filed between the same parties on the same subject matter before courts with jurisdiction, the matter that was filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that sought to invoke the doctrine of res sub-judice had to establish that there was more than one suit over the same subject matter; that one suit was instituted before the other; that both suits were pending before courts of competent jurisdiction and lastly; that the suits were between the same parties or their representatives.
- The issues and prayers sought by the petitioner in the two constitutional petitions generally called for the interpretation and application of provisions of Chapter Six of the Constitution. The issues and orders in the two constitutional petitions substantially ascended from the criteria for the implementation of the provisions of Chapter Six of the Constitution. For the High Court to sufficiently pronounce itself in the two constitutional petitions, it had to interpret and apply the provisions of Chapter Six of the Constitution on leadership and integrity.
- The High Court was to determine whether a constitutional test was set up in Chapter Six of the Constitution, whether the set test (if any) was fit and proper, objective or subjective, the scope of application of the test, the implementing organs and bodies. Those were substantially the same issues subject of the advisory opinion sought by the applicant. The reference, as framed, mainly raised issues of constitutional interpretation. Those issues were also substantially in issue before the High Court in Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017. In view of article 165 of the Constitution, the High Court was the Court of first instance with regard to jurisdiction for interpretation and application of the Constitution and that Court had already been moved. The instant reference was sub-judice and the Supreme Court would not usurp the High Court’s jurisdiction under article 165 (3) of the Constitution.
- The Supreme Court could only address conflicting decisions especially of the Court of Appeal only if the court could be moved under article 163(4)(b) of the Constitution as a matter of general public importance.
- A preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, led to a conclusion that the facts were incompatible with that point of law.
- The applicant’s averment for the court to clarify the fit and proper test for leadership under Chapter Six of the Constitution in light of the conflicting case law that had built up was an invitation for the court to resolve the contrary precedents. The invitation could not be extended to the Supreme Court while exercising its discretionary jurisdiction under article 163(6) of the Constitution. The applicant was successful in seeking to create an original jurisdictional creature called ‘harmonization’ jurisdiction contrary to the provisions of the Constitution and the statutes.
- Preliminary Objection upheld. Reference for an advisory opinion dismissed. High Court to proceed on the basis of priority to hear and determine the pending constitutional petitions before it. No order as to costs.
- No order as to costs.
Per I Lenaola and MK Ibrahim, SCJJ (Dissenting Opinion)
- The applicant had locus standi to institute the reference. The court was well within its jurisdiction to render an opinion as sought, should the corollary question be addressed in the positive.
- Even if the two issues could be addressed as one, the High Court petitions and the reference could be distinguished. The proceedings before the High Court and the Supreme Court did not raise substantially similar and specific questions for determination and the applicant’s questions properly fell within the advisory opinion jurisdiction of the Supreme Court.
- The 17th interested party would not be prejudiced by the rendering of an opinion by the Supreme Court, as the applicant had no specific claim against the 17th Interested Party or any other party to the reference. If the court in its dissent had arrived at the decision that the reference was sub-judice, (which it did not), the Supreme Court had the discretion, depending on the circumstances of the case, to decide whether to issue an advisory opinion or not, where a matter in respect of which a reference had been made was the subject of proceedings in a lower court.
- The Supreme Court’s advisory opinion was an important avenue for settling matters of great public importance which could not be suitable for conventional mechanisms of justifiability. Such situations had clear evidence under the Constitution, and came with far-reaching implications.
- The fit and proper test or criteria set under Chapter Six of the Constitution, had an important and central application to vet the moral and ethical soundness of persons seeking elective or appointive offices, and thus constituted issues of great public importance. The realization of the fit and proper test under Chapter Six raised a variety of implementation challenges unbeknown to traditional integrity and leadership criteria previously in force and the Supreme Court had to give clear directions in that regard.
- Time was ripe for consideration and direction by the Supreme Court on the applicable criteria under Chapter Six of the Constitution. The reference was a distinctive situation in which the Supreme Court’s advisory opinion jurisdiction would be most propitious. An obligation unswervingly rested on the Supreme Court to render an opinion in accordance with the Constitution and the invitation to the Supreme Court to down its tools for lack of jurisdiction on account of the principle of res sub-judice was not to be permitted, as such an action would occasion an injustice to the wider public interest.
- The court could within its discretion limit those questions and indeed leave to the High Court certain litigation issues for its determination without throwing out the baby with the bath water.One of the issues that the court would be expected to render an advisory opinion on was whether Chapter Six of the Constitution set up a fit and proper test for leadership including elective and appointive offices; and if so, what was that test?
- [Dissienting Order] The Reference would have proceeded to hearing on a limited number of questions taking into account the matters pending before the High Court, in High Court Constitutional Petitions No.68 and 142 of 2017.
Case Updates Issue 013/2020
|| Kenya is bound to participate in any proceedings lodged against it at the International Court of Justice subject to reservations
Kiriro Wa Ngugi & 19 others v Attorney General & 2 others  eKLR
Petition No. 254 of 2014
High Court at Nairobi
K Kimondo, RK Limo & AC Mrima JJ
January 31, 2020
Reported by Robai Nasike Sivikhe
Jurisdiction- jurisdiction of the High Court- jurisdiction to interfere on a matter before the ICJ- where Kenya was a party to the proceedings before the ICJ- whether the High Court had jurisdiction to restrain the Attorney General from participating in ICJ proceedings where Kenya was a party- whether the High Court had jurisdiction over proceedings at the ICJ- whether an injunction restraining Kenya from further participation in the ICJ case could be issued - Constitution of Kenya, 2010, article 165; Charter of the United Nations, articles 92, 93 and 94; and Statute of the International Court of Justice, articles 36 (2) and 60
International Law - state sovereignty – state sovereignty versus subjection to the ICJ - participation of a state in ICJ proceedings instituted against it- whether the participation of Kenya and its Attorney General in ICJ proceedings that it was party to infringed on the country’s sovereignty- Constitution of Kenya, 2010, articles 2 (5), 2 (6), 3, 10, and 156; Office of the Attorney General Act, section 4 (1) (j); and Charter of the United Nations, articles 7 and 33
Constitutional Law – constitutional petitions- justiciability and the concept of non- justiciability- what were the three doctrines of non-justiciability- whether the amended petition questioning the participation of Kenya in ICJ proceedings that it was party to was justiciable
The petition revolved around the disputed maritime boundary along the Indian Ocean between the Republic of Kenya and the Federal Republic of Somalia. Somalia instituted proceedings against Kenya in Maritime Delimitation in the Indian Ocean (Somalia v Kenya) before the International Court of Justice (hereafter the ICJ). Somalia requested the court to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 nautical miles. It also requested the court to determine the precise geographical coordinates of the single maritime boundary in the Indian Ocean. The petitioners’ case was that the ICJ had usurped jurisdiction and transgressed upon Kenya’s sovereignty; and, that the participation in the proceedings by the respondents contravened the Constitution. Hence they sought, among other reliefs, for a permanent injunction to restrain the respondents from further participation in the case.
- Whether the High Court had jurisdiction to restrain the Attorney General from participating in ICJ proceedings where Kenya was a party.
- Whether the jurisdiction of the High Court, a municipal court, extended to proceedings at the ICJ.
- Whether the participation of Kenya and its Attorney General in ICJ proceedings that it was party to infringed on the country’s sovereignty.
- Whether the petition questioning the participation of Kenya in ICJ proceedings that it was party to was justiciable.
- Whether an injunction restraining Kenya from further participation in the ICJ case could be issuedRead More..
- The High Court did not have jurisdiction to review the decision of the ICJ. However, it was imbued with power and jurisdiction to restrain the respondents from further participating in the proceedings before the ICJ if their conduct infringed the Constitution.
- The Constitution reigns supreme; any provision in it was not subject to challenge before any court; and, any law inconsistent with it was void to the extent of the inconsistency. Furthermore, it recognized that the general rules of international law and any treaty or convention ratified by Kenya formed part of the law. However, article 2 (5) and (6) of the Constitution clearly demarcated the place of international law in the hierarchy of Kenyan law. The latter, just like ordinary statutes was subordinate to the Constitution.
- Kenya was a signatory of and a party to the United Nations Charter, a State Party to the Statute of the ICJ and also a State Party to UNCLOS. Therefore, the Republic was bound by articles 7 and 33 of the United Nations Charter. As a result, Kenya was bound to participate in any proceedings lodged against it at the ICJ subject to Kenya’s reservations.
- Section 5 (1) (j) of the Office of the Attorney General Act provided that, in addition to the functions under article 156 of the Constitution, the Attorney-General would be responsible for representing the Government in matters before foreign courts and tribunals. The respondents, as state and public officers, were bound by articles 10 and 156 to promote the rule of law.
- The dispute at the ICJ was between Kenya and Somalia. Under article 156(4) (b) of the Constitution the Attorney General bore the foremost constitutional responsibility to represent Kenya since the proceedings at The Hague were not criminal in nature. Hence, the Attorney General would be keeping in tandem with the constitutional duty to defend the Constitution and to protect public interest by participating in the proceedings. It would have been the non-participation of the Attorney General in the proceedings that would infringe, inter alia, articles 3 and 156(4) (b) of the Constitution.
- The Attorney General’s participation in the proceedings accorded an opportunity to demonstrate to the ICJ Kenya’s constitutional impediments in the implementation of the decision in the event the dispute was decided in favour of Somalia. How else was the ICJ expected to know, for instance, that under articles 2, 3, 255 and 256 of the Constitution that any alterations to the territorial boundaries of Kenya must be backed by a popular referendum? Participating in the proceedings before the ICJ was consistent with defending the sovereignty and the Constitution. It was the non-participation or the withdrawal from the case that was viewed as a surrender of the Country’s sovereignty to the mercy of Somalia and the ICJ.
- A court had to satisfy itself that the case before it was not caught up by the bar of non-justiciability. The concept of non-justiciability was comprised of three doctrines, the political question doctrine, the constitutional-avoidance doctrine and the ripeness doctrine. The doctrines were crosscutting and closely intertwined.
- According to the political question doctrine, certain sets of issues categorized as political questions, even though they included legal issues, were considered to be external to the Judiciary as an arm of government. The political question doctrine focused on limiting of adjudication of disputes by courts in favour of the legislative and the executive interventions. It was underpinned by the concept of separation of powers. All that the courts could do in such situations was assign discretion on the issue to another branch of government. The constitutional-avoidance doctrine interrogated whether there were other ways of resolving a dispute outside a constitutional petition. The ripeness doctrine focused on the time when a dispute was presented for adjudication. In such an instance courts had to frown upon disputes that were hypothetical, premature or academic and had not fully matured into justiciable controversies.
- The National Assembly as the legislative arm of government was seized of the dispute regarding the maritime boundary along the Indian Ocean between the Republic of Kenya and the Federal Republic of Somalia. The National Assembly’s resolutions called upon the Executive to undertake diplomatic, and, if need be military action to defend Kenya’s territorial integrity. Whereas the court had power to restrain the respondents from further participating in the proceedings before the ICJ if their conduct infringed the Constitution, the issues emerging from the amended petition would be more effectively resolved by diplomatic, legislative, policy and other executive interventions rather than by a constitutional decision.
- Article 92 of the United Nations Charter established the ICJ. The ICJ was the principal judicial organ of the United Nations. Kenya was a Member State of the United Nations. By dint of article 93 of the Charter all Members of the United Nations were ipso facto parties to the Statute of the International Court of Justice. Furthermore, Kenya accepted with reservations the jurisdiction of the ICJ by its formal declaration of April 19, 1965. Kenya was accordingly bound by decisions of the ICJ by dint of article 94 of the United Nations Charter.
- Kenya made an appearance in the proceedings and raised two preliminary objections that were dismissed in the judgment of February 2, 2017. Under article 60 of the Statute of the ICJ, the decisions of the court were final, with no recourse to review or appeal. Furthermore, under article 36 (2) of the Statute of the ICJ, in case of any dispute as to whether the ICJ had jurisdiction, the matter would be settled by a decision of the ICJ by a majority vote of the judges. The jurisdiction of the High Court, as a municipal court, did not extend to the ICJ.
Petition dismissed. Parties would bear their own costs.
Failure to consider a judge for elevation on the basis of a pending petition for removal from office is an infringement on the right to fair hearing and the rules of natural justice.
Zack Kinuthia v Judicial Service Commission; Ngugi Grace Mumbi & 3 others (Interested Parties)  eKLR
Petition No. 251 of 2019
High Court at Nairobi
LA Achode, PJ; JA Makau, and AK Ndungú, JJ
February 10, 2020.
Reported by Kakai Toili
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to fair hearing and rules of natural justice – where a petition was filed for the removal of several High Court judges from office – where the petitioner sought to block the Judicial Service Commission from considering those judges from being appointed as Court of Appeal judges - whether preventing a judge from being considered for elevation on the basis of a pending petition for removal from office would amount to infringement on the right to a fair hearing and rules of natural justice – Constitution of Kenya, 2010, articles 27, 47, 50(1)and 2(a).
Constitutional Law - constitutional petitions - form of a constitutional petition - duty to plead with reasonable precision constitutional provisions infringed or threatened by infringement – whether it was mandatory to set out the constitutional provisions infringed or threatened by infringement in a constitutional petition.
Constitutional Law - constitutional petitions – parties – interested parties - what was the nature of an interested party in a constitutional petition – Constitution of Kenya, 2010, article 159; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and procedure Rules, 2013, rule 2.
Constitutional Law - constitutional petitions – institution of constitutional petitions – where there was an alternative remedy provided by statute - whether it was mandatory to exhaust alternative remedies provided for by statute before instituting a constitutional petition.
Jurisdiction – jurisdiction of the High Court – jurisdiction to interfere with decisions of constitutional commissions - whether the High Court could interfere with the decision making process of the Judicial Service Commission - Constitution of Kenya, 2010, articles 165(3) and 172.
Constitutional Law – Judiciary – judicial officers – judges – removal of judges from office - what was the process of removal of a judge from office – Constitution of Kenya, 2010, articles 27, 47, 50 and 168.
The petitioner had filed a petition before the respondent seeking the removal of five High Court judges namely the interested parties and two other judges. The petitioner alleged that he filed the petition for removal of the judges as he was aggrieved that the 1st, 2nd and 3rd interested parties neglected to exercise their judicial functions with due diligence, resulting in gross misconduct in Philomena Mbete Mwilu v. Director of Public Prosecution and others, Petition 295 of 2018.
The respondent upon the receipt of the petition for removal of the 1st, 2nd and 3rd interested parties wrote to the petitioner informing him that it had given directions for the specific judges to be notified of the complaint and submit their responses. The petitioner further wrote to the respondent opposing the candidature of the 1st, 2nd and 3rd interested parties as Court of Appeal judges, ahead of their interviews with the respondent. The petitioner claimed that the 1st, 2nd and 3rd interested parties’ decision in the case of Philomena Mbete Mwilu v Director of Public Prosecution and others was calculated at ensuring a specific outcome thus the 1st, 2nd and 3rd interested parties were not impartial and true to their oath of office.
- Whether preventing a judge from being considered for elevation on the basis of a pending petition for removal from office would amount to infringement on the right to a fair hearing and rules of natural justice.
- Whether it was mandatory to set out the constitutional provisions infringed or threatened by infringement in a constitutional petition.
- What was the nature of an interested party in a constitutional petition?
- Whether it was mandatory to exhaust alternative remedies provided for by statute before instituting a constitutional petition.
- Whether the High Court could interfere with the decision making process of the Judicial Service Commission.
- What was the process of removal of a judge from office? Read More...
Relevant provisions of the law
Constitution of Kenya, 2010
(5). A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
3) Subject to clause (5), the High Court shall have—
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
ii the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(1) The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.
(4). Each judge of the Court of Appeal shall be appointed from among persons who have—
(a) at least ten years’ experience as a superior court judge; or
(b) at least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field; or
(c) held the qualifications mentioned in paragraphs (a) and (b) for a period amounting, in the aggregate, to ten years.
(1) The Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and shall—
a) recommend to the President persons for appointment as judges;
(c) appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament;
(2) In the performance of its functions, the Commission shall be guided by the following —
(a) competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and
- The petition revolved around the discharge of the mandate of the respondent. It challenged the constitutionality of the interviews and recommendation by the respondent of the 1st, 2nd and 3rd interested parties for appointment as judges of the Court of Appeal. The law on the legal threshold of a constitutional petition was well settled. Under article 165 (3)(d)(ii) of the Constitution, the High Court had jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution. The court had not shied away from that jurisdiction.
- The Constitution dispensed powers among various constitutional organs. Where it was alleged that any of those organs had failed to act in accordance with the Constitution, then the courts were empowered by article 165(d)(ii) to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution.
- An applicant whose claim was that a constitutional right had been infringed, or was threatened with infringement, had to set out specifically, what provisions were infringed or threatened by infringement, by whom and the manner in which they were infringed or threatened to be infringed. The onus was on the petitioner to show a prima facie case of violation of their constitutional right. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum and in the manner allowed by the applicable law and procedure.
- From the petition, other than reproducing the provisions of articles 2, 3(1), 10, 19, 159(1), 159(2) and 159 2(e) at part C of the petition under paragraphs 14, 15, 16, 17, 18, 19 and 20 of the amended petition, there was no specific pleading of the particular breach or threat of breach of any constitutional provision by the respondent in the conduct of the interviews and subsequent recommendations for appointment of the interested parties as judges of appeal. A petition like the instant one was determined based on the grounds raised in its support and which grounds ought to demonstrate the particular breach or threat of breach of the Constitution that was complained of.
- From the grounds enumerated at page 5 of the petition at paragraphs 21, 22, 23 and 24, one could be forgiven for drawing the inference that the petition was against the interested parties yet it was not, it was against the respondent. An interested party was one who had a stake in the proceedings, though not party to the cause ab initio. An interested party was one who would be affected by the decision of the court when it was made, either way. Such persons felt that their interest would not be well articulated unless they appeared in the proceedings, and championed his or her cause.
- The grounds in support of the petition found in paragraphs 21 to 24 of the petition related to specific breaches by the 1st, 2nd and 3rd interested parties as well as two (2) other judges who sat with the 1st, 2nd and 3rd interested parties in a bench that determined Philomena Mbete Mwilu v Director of Public Prosecutions and Others in a judgment delivered on May 31, 2019. Those grounds were specific against the interested parties and fell short of raising any specific violations of the Constitution by the respondent.
- The petition was against the respondent and should be clear on the constitutional provisions infringed by the respondent but not necessarily the interested parties. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and procedure Rules, 2013 defined an interested party to mean a person or entity that had an identifiable stake or legal interest or duty in the proceedings before the court but was not a party to the proceedings or could not be directly involved in the litigation. The petitioner having identified the respondent as the appropriate party to be sued was obligated to set out clearly the provisions he claimed had been infringed or violated by the respondent and show how those articles were infringed in relation to him.
- The petitioner had failed to disclose how and in what manner, the respondent had violated or threatened to violate any of the cited provisions of the Constitution. The burden was on the petitioner to demonstrate the breach or threat thereof, a burden that the petitioner had failed to discharge. He did not plead at all the provisions infringed by the respondent and the manner of the alleged infringements.
- The petitioner’s complaint was that the 1st, 2nd and 3rd interested parties were interviewed and recommended for appointment as judges of the Court of Appeal by the respondent despite the fact that there was a pending petition for their removal. However, the petition as drawn seemed to invite the court to take a position on the alleged impropriety of the 1st, 2nd and 3rd interested parties in the determination of HC Petition No. 295 of 2018. The court declined that invitation. The petition lodged before the respondent for the removal of the 1st, 2nd and 3rd interested parties was alive before the body mandated under article 168 of the Constitution to adjudicate upon it. Making any pronouncement on the petition for removal of the 1st, 2nd and 3rd interested parties would be prejudicial to a fair hearing and determination of the petition. The court ought not to preempt the finding that the respondent would ultimately make in the fullness of time lest the court fell foul of the doctrine of exhaustion.
- It was imperative that where a dispute resolution mechanism existed outside courts, it was to be exhausted before the jurisdiction of the courts was invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brew, as was bound to happen. The exhaustion doctrine was a sound one and served the purpose of ensuring there was a postponement of judicial consideration of matters to ensure that a party was first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. That accorded with article 159 of the Constitution which commanded courts to encourage alternative means of dispute resolution. The petition for removal was pending before the respondent and the process had not been exhausted. The respondent had to be given the opportunity to exercise its legal mandate, all the while the court being wary not to substitute or replace the opinion of the respondent with its own.
- Like all constitutional organs, the respondent, in carrying out its function of recruitment and removal was bound by the provisions of Chapter Six of the Constitution on leadership and integrity. It was thus expected that the recommendations for appointment of judges had to be a result of a rigorous and thorough process of interviews and investigations and should it be shown that the respondent had recommended a person who would not bring honour, public confidence and integrity to the office of judge, the court would not hesitate to apply the appropriate sanctions within the law.
- It would be desirable to have any petition for the removal of a judge disposed of before any interviews, if and when vacancies arose for the appointment of judges to any court ranking above their position. However, that was only an ideal situation. Realities on the ground proved that the contrary was true.
- The receipt of petitions for removal of a judge(s) from office was a continuous process which depended on when particular complaints by an individual or body against a judge arose or when the respondent on its own motion initiated the process, or, when a ground for removal arose. Under article 168(4) of the Constitution, the respondent was mandated to consider such a petition, and either dismiss it or if satisfied that the petition disclosed a ground for removal under article 168(1) of the Constitution, send the petition to the President.
- There was no gain saying that the respondent had no control over the timings of the lodging of petitions for removal of a judge(s) before it. It was probable, like in the instant matter, that scheduled interviews or appointment of judges could coincidentally arise when a petition(s) for removal of a judge who was a candidate for elevation had been filed.
- According to the Constitution and the Judicial Service Act, the process of determining the suitability of a judge who was a candidate for elevation to a court of a rank higher than the court he/she was serving in was the preserve of the respondent, whether or not there was a pending petition for removal. In carrying out that mandate, the respondent, like any other organ of the state, was bound to follow the principles of the Constitution and the law. The court could therefore not interfere with the decision making.
- Taking judicial notice under section 59 of the Evidence Act, the decision of the five-judge bench which was impugned and which formed the basis of the petition for removal of the interested parties and 2 others, was subject of two pending appeals at the Court of Appeal. The court could not delve into the propriety or otherwise of the judgment of the case which had been filed at the High Court without infringing on the sub judice rule. Even without the appeals, the court could not purport to sit on appeal on a decision of a properly constituted court of concurrent jurisdiction.
- Article 160(5) of the Constitution existed for the sole purpose of safe guarding the independence of the Judiciary in decision making in matters before the courts. That was what was commonly referred to as decisional independence. A clear distinction had to be drawn between complaints which arose from judicial decisions made in good faith, that an aggrieved party should address through the appellate system of the courts and any other complaints against a judicial officer which should be addressed through disciplinary procedures by the respondent as provided under the law.
- There was a need to uphold the constitutional rights of a judge facing a petition for removal during the process of filling of vacancies in a superior court. Those were, the right to a fair hearing enshrined in article 50(1), the right to fair administrative action under article 47, the right to equality and freedom from discrimination under article 27 and the right to presumption of innocence under article 50(2)(a) of the Constitution. Locking out a judge from being considered for elevation on the basis of a pending petition for removal would amount to an infringement on the right to a fair hearing and rules of natural justice.
- No one should be condemned unheard. It would be against the Constitution, statute and rules of natural justice if the interested parties would have been barred from the interview on the basis of a petition that had not been heard. Having regard to the right to presumption of innocence, even where there was a pending petition for the removal of a judge, ultimately, the balance tilted in favour of judges who had applied and qualified to be appointed for the simple reason that if they were barred and eventually the petition before the respondent was dismissed, it could not be possible to remedy the situation since the vacancies could not be available. Conversely, if the appointment was made and it was established that the judges were culpable, nothing stopped the removal process from taking its legal course.
- The petitioner had not brought to the attention of the court any constitutional or statutory provision that barred the appointment of any judge to any court ranking above the court in which such a judge was serving if there was a pending petition for removal of such judge. The procedure for handling complaints against judges was set out in article 168 of the Constitution and the procedure adopted by the petitioner to bar the elevation of the interested parties to the Court of Appeal on account of a pending petition for removal was not provided in law.
- The interested parties continued being legally in office as judges of the High Court of Kenya. The pendency of a petition for removal did not affect their positions as judges until the provisions of article 168 of the Constitution were triggered upon the hearing of the petition for removal. It was thus clear that once the respondent had considered the petition before it and was satisfied (if at all) that the petition disclosed a ground for removal under article 168(1) of the Constitution, it would send the petition to the President with the recommendation and the President would within fourteen (14) days of receipt, suspend the judge from office and proceed to appoint a tribunal in accordance with the recommendation of the respondent. It was then, and only then, that the judge would be legally out of office on suspension and subsequently removed should the tribunal so find.
- The interested parties being legally in office as judges of the High Court had the legal right to apply to fill the vacancies at the Court of Appeal as they duly did. If the respondent was satisfied upon interview of their qualifications to scale higher in the judicial hierarchy, nothing stopped the respondent in exercise of its independence in the process of recruitment of judges from recommending the appointments of the 1st, 2nd and 3rd interested parties as it had done.
- The respondent was mandated by law to interview and recommend to the President the names of persons to be appointed as judges. The process of recruitment of a judge by the respondent was an administrative action that ought to be expeditious, lawful, reasonable and procedurally fair guided by article 47(1) of the Constitution. If a right or fundamental freedom of a person was likely to be adversely affected that person had a right to be given written reasons for the action.
- The rights of judges in office faced with the instant scenario were not subservient to the rights of a complainant against them. In the circumstances, a balancing act of the rights of judges who wished to present themselves as candidates to meet a legitimate expectation to compete for available vacancies if qualified, and those of a petitioner who had petitioned for the removal of such a judge, was delicate. It called for proper application of articles 27, 47, 50(1) and 50(2) of the Constitution.
- The continued implementation of the Constitution continued to open up new frontiers and or lacuna that required remedial measures either under the Constitution itself or the operationalizing Acts of Parliament. No wonder, the clamour for amendment of no less than the Constitution itself.
- The principles of good governance, integrity, transparency and accountability demanded an expeditious and time bound process through which a petition for removal of a judge could be determined. Time was nigh for the amendment of the law to stipulate timelines within which such petitions should be disposed of. That would be beneficial to the administration of justice and to the affected judge(s). The need to clear allegations against a judge expeditiously could not be gainsaid.
Petition dismissed; each party to bear its own costs.
|CIVIL PRACTICE AND PROCEDURE
A party yet to be joined in a suit cannot seek substantive orders in the suit.
County Assembly of Mandera County v Governor, Mandera County & another  eKLR
Reference No. 1 of 2018
Supreme Court of Kenya
PM Mwilu, DCJ &VP; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, SCJJ
January 23, 2020.
Reported by Kakai Toili
Civil Practice and Procedure – suits – parties to a suit – joinder of parties - where a party sought to be enjoined as an interested party - whether a party yet to be joined in a suit could seek substantive orders in the suit.
The intended interested parties filed the instant application seeking to be enjoined as interested parties in the reference filed by the County Assembly of Mandera County (the applicant) for an advisory opinion. The intended interested parties sought to participate and submit on the following; the procedure for appointment of members of the executive committee; whether there was a lacunae in law where a county assembly failed to approve the nominees for a county executive committee and whether the matter could be resolved by the advice of the Attorney General before approaching the court.
The intended interested parties contended that they had a direct and legitimate interest in the petition, the 1st intended interested party being the appointing officer of the Members of County Executive Committee for Mandera and the 2nd intended interested party being the County Government in respect to whom the appointees were being appointed. The intended interested parties also filed an application for the dismissal of the reference.
Whether a party yet to be joined in a suit could seek substantive orders in the suit. Read More...
A party yet to be enjoined in a matter such as the instant reference, lacked the capacity to seek any substantive orders in it. The prayer that the reference be dismissed because it was sub judice was premature.
Application partly allowed; no orders as to costs. Prayer seeking dismissal of the reference disallowed for being premature.
The role of vendors’ advocates while holding deposit for the purchase of land.
Lucy Muthoni Muthumbi v Shamira Chepkemei Chelang’a & 2 others  eKLR
Civil Case Number 32 of 2018
High Court at Nakuru
JN Mulwa, J
January 30, 2020
Reported by Kakai Toili
Land Law – sale of land – parties involved in the sale of land – vendor’s advocate – where the vendor’s advocate had been given the deposit by the purchaser – where the agreement for sale of land had been frustrated - what was the role of a vendor’s advocate while holding deposit for the purchase of land.
Land Law – agreement for sale of land – frustration of agreement for sale of land – where the vendors failed to inform the purchaser of existence of a suit challenging the ownership of the suit land - whether the failure of vendors to inform the purchaser of existence of a suit challenging the ownership of the suit land amounted to frustration of the sale agreement.
The plaintiff entered into an agreement with the 1st and 2nd defendants for the purchase of the suit land in which the 1st and 2nd defendants held themselves as the owners. It was claimed that the completion documents were released to the plaintiff’s advocates upon an undertaking by the said advocates, in terms sent out to the vendor’s advocates (the 3rd defendant). However, in November 2016 it was claimed that the 3rd defendant wrote to the plaintiff’s advocates rescinding the sale agreement. It was further claimed that the plaintiff’s advocates later on wrote to the 3rd defendant seeking to complete the sale, that request was agreed to, but on conditions that the plaintiff pay ground rates and obtaining clearance certificates, which the plaintiff paid to the County Government of Nakuru. After payment, the County Government declined to issue a rates clearance certificate citing an ongoing case involving the suit land.
The plaintiff claimed that his advocates perused that court file which revealed that the certificate of lease to the suit land was issued to several people from the year 2005 and that the 1st and 2nd defendants obtained the certificate of lease in December 2014, after which they were arrested and investigations commenced on how they obtained the said certificate. As at the date of the proceedings, results of the investigations were not known. Upon realization of the investigations and existence of the case on the ownership of the suit land, the plaintiff claimed that his advocates demanded a refund of the total deposit of Kshs.2, 700,000 and further Kshs.100,000 spent, with their consent. The deposits were never refunded and thus the 1st and 2nd defendant alleged a breach of the sale agreement. The plaintiff sought answers to several questions in the suit including whether the 3rd defendant was under a duty to refund Kshs.2,700,000 received from the plaintiff as stake holder
- What was the role of a vendor’s advocate while holding deposit for the purchase of land?
- Whether the failure of a vendor to inform a purchaser of existence of a suit challenging the ownership of a suit land amounted to a frustration of a sale agreement.Read More...
- On the face of the record, the two parties had the intention to enter into a legal relationship as evidenced by the sale agreement. The legend of the certificate of lease did not show at all how the 2nd and 3rd defendants came to be the registered owners, two months after it was registered in the plaintiff’s favour. They were arrested and an investigation file opened on possible fraud over their acquisition of the title. In the circumstances, as at the date of the sale agreement which was August 14, 2015, the vendors knew that the property was not free from encumbrances (clause 8.1 and 8.3.1, 8.32). That was because as at April 27, 2015 and thereafter, and before August 14, 2015 when they entered into the sale agreement, they were under investigation by the office of the Director of Public Prosecutions (DPP) on how they obtained the title to the land parcel. When the Environment and Land Court case was eventually filed against them they ought to have disclosed the new circumstances of the plot, pursuant to clause 8.3.6 of the sale agreement. Instead they continued to demand, and received money from the plaintiff through their advocates.
- At the time the 1st and 2nd defendants were paid Kshs.2 million, they were aware of the case. The 3rd defendant was acting for the 1st and 2nd defendants in the case and ought to have advised them of the consequences. In the circumstances therefore, the vendors, being the defendants, breached the terms of the agreement and frustrated its completion as the County Government of Nakuru could not issue rates clearance certificate, as a result of the case, and in particular clauses 8.3.6 (non-disclosure).
- Despite being served with the originating summons, the 3rd defendant failed to answer to the allegations. The 3rd defendant held the deposit for the plaintiff as stakeholders. A stakeholder in a sale agreement and mostly the vendors advocates, held the deposit until satisfaction and or competition of the sale transaction or unless, by agreement, the advocates were instructed to release the same or part therefore, to the vendors or, to a third party.
- The plaintiff did not authorize the release of the money or part of it to the 1st and 2nd defendants or anybody else. The 3rd defendant was thus obligated to hold the deposit until authorised and/or upto completion of the sale transaction, or as it would be authorised to do. If no completion was achieved for various reasons, the stakeholder was obligated to refund the deposit to the party who paid, thus the sum of Kshs. 2.7 million held by the 3rd defendant ought to be refunded to the plaintiff as the sale agreement was frustrated by events well known by the 1st and 2nd defendants, even before they entered into the sale agreement. There being no contrary claim or explanation by the 3rd defendant, out of choice, there could be no other finding, but that it was under an obligation to refund the full deposit to the plaintiff.
- The money deposited with the 3rd defendant was Kshs. 2,700,000/=, it ought to have maintained the same in its client’s account. The court was not informed that instructions for placing the money in an interest earning account were given. It was however prudent that the 3rd defendant placed it as such. It was three years down the line, however, without such express instructions; the court was unable to order refund of the money with interest.
Suit allowed; costs to be paid by the 1st and 2nd defendants to the plaintiff.
- A sum of Kshs.2,700,000/= to be paid back to the plaintiff by the 3rd defendant.
- The sum of Kshs.36,990/= with interest and court rates from the December 15, 2017 to be paid to the plaintiff by the 1st and 2nd defendants.
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