Weekly Newsletter 029/2020



Kenya Law

Weekly Newsletter


High Court declares 23 Acts of Parliament unconstitutional for being passed by the National Assembly without Senate’s participation

Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another;Attorney General & 7 others (Interested Parties) [2020] eKLR
Petition No. 284 and 353 of 2019 (consolidated)
J Ngaah, AK Ndung’u & TM Matheka, JJ
October 29, 2020
Reported by Kakai Toili
Download the Decision

 
Constitutional Law – constitutional petitions - constitutional petitions outside article 22 of the Constitution on enforcement of the Bill of Rights – applicability of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 - whether when filing a constitutional petition outside article 22 of the Constitution on enforcement of the Bill of Rights, a party could invoke the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 – Constitution of Kenya, 2010, article 22; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 3(8).
Constitutional Law – constitutional petitions – appointment of an advocate - filing of a notice of appointment of an advocate in a constitutional petition - failure of an advocate to file a notice of appointment – effect of - whether the failure of an advocate to file a notice of appointment in a constitutional petition was fatal - Constitution of Kenya, 2010, article 159(2)(d); Civil Procedure Rules, 2010, Order 9 rule 7.
Civil Practice and Procedure – doctrine of res judicata – applicability of the doctrine of res judicata - what was the rationale and when could the doctrine of res judicata be applied - Civil Procedure Act (Cap 21), section 7.
Civil Practice and Procedure – doctrine of sub judice – applicability of the doctrine of sub judice - what were the principles to be considered for the application of the doctrine of sub judice.
Jurisdiction – jurisdiction of the Supreme Court – jurisdiction to issue advisory opinions on any matter concerning county governments – nature of the advisory opinions - whether a Supreme Court’s advisory opinion was binding.
Constitutional Law – Parliament – legislative process – legislative process in Bills involving county governments – role of the Senate vis a vis the National Assembly – determination of the nature of a Bill - factors to consider in determining the nature of a Bill – where there was a disagreement between the Senate and the National assembly as to the nature of a Bill - what was the process through which the disagreement as to the nature of a Bill should be settled - Constitution of Kenya, 2010, articles 96(1), (2) and (3), 109 and 110.
Constitutional Law– Parliament – legislative process – legislative process in Bills involving county governments – determination of whether a Bill concerned counties and whether it was a special or an ordinary Bill - role of the Senate vis a vis the National Assembly – whether a speaker of a House of Parliament had to first seek the concurrence of the speaker of the other House of Parliament as to whether a Bill was one that concerned counties, and if it was, whether it was a special or an ordinary Bill, before the Bill could be introduced for consideration in the originating House – whether it was mandatory for any Bill published by either House of Parliament to be subjected to a joint concurrence process to determine whether it was a special or ordinary Bill and whether such determination was dependent on a question arising as to whether the Bill concerned counties - Constitution of Kenya, 2010, articles 96(1), (2) and (3), 109 and 110.
Constitutional Law - constitutionality of statutes – constitutionality of standing orders 121, and 143(2) to (6) of the National Assembly Standing Orders – where standing order 121 excluded the Speaker of the Senate from the exercise of determination of whether a Bill concerned county governments and if so whether it was an ordinary or special Bill – where standing orders 143(2) to (6) of the National Assembly Standing Orders gave the Speaker of the National Assembly powers to determine whether Bills originating from the Senate were money Bills – where article 110(3) of the Constitution provided that before either House considered a Bill, the Speakers of the National Assembly and Senate should jointly resolve any question as to whether it was a Bill concerning counties and, if it was, whether it was a special or an ordinary Bill - Constitution of Kenya, 2010, article 110(3); National Assembly Standing Orders, standing orders 121 and 143(2) to (6).

Brief facts:
On diverse dates between the years 2017 and 2019, the National Assembly passed a total of 23 Acts of Parliament without the participation of the Senate and unilaterally forwarded 15 others to the Senate without complying with article 110(3) of the Constitution of Kenya, 2010, (Constitution). Aggrieved, the Senate in July 2019 filed the instant petition seeking, amongst others, the nullification of the Acts passed or amended by the National Assembly without reference to the Senate. The Council of County Governors also filed its own petition contending that the amendments by the National Assembly to section 4 of the Kenya Medical Supplies Authority Act, No. 20 of 2013 without regard to the Senate was unconstitutional and asked for the nullification of those amendments. Owing to similarity of constitutional issues between the two petitions, the petition by the Council of County Governors was consolidated with the instant petition.
The Speaker of the Senate had sought the Supreme Court’s opinion on the import of article 110(3) of the Constitution in Supreme Court Advisory Opinion No. 2 of 2013, In the matter of the Speaker of the Senate and another v Attorney General and 4 others [2013] eKLR (Reference No. 2 of 2013). In that Advisory Opinion, the Supreme Court held that the consideration of Bills to be passed by Parliament was not a unilateral exercise exclusive to either of the two Houses; rather, the Speakers of both houses had to engage and consult and to the extent that the Speaker of the National Assembly had proceeded in passing the Division of Revenue Bill without such consultation or engagement, he had acted against the Constitution and in particular, article 110(3).
Issues:
  1. Whether when filing a constitutional petition outside article 22 of the Constitution on enforcement of the Bill of Rights, a party could invoke the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
  2. Whether the failure of an advocate to file a notice of appointment in a constitutional petition was fatal.
  3. What was the rationale and when could the doctrine of res judicata be applied?
  4. What were the principles to be considered for the application of the doctrine of sub judice?
  5. What were the factors to be considered by both the Speakers of the National Assembly and the Senate in determining the nature of a Bill.
  6. What was the process through which any disagreement as to the nature of a Bill should be settled by the National Assembly and the Senate?
  7. Whether a Supreme Court’s advisory opinion was binding.
  8. Whether a speaker of a House of Parliament had to first seek the concurrence of the speaker of the other House of Parliament as to whether a Bill was one that concerned counties, and if it was, whether it was a special or an ordinary Bill, before the Bill could be introduced for consideration in the originating House.
  9. Whether it was mandatory for any Bill published by either House of Parliament to be subjected to a joint concurrence process to determine if it was a special or ordinary Bill and whether such determination was dependent on a question arising as to whether the Bill concerned counties.
  10. Whether standing order 121 of the National Assembly Standing Orders was unconstitutional for excluding the Speaker of the Senate from the exercise of determination of whether a Bill was a Bill concerned county governments and if so whether it was an ordinary or special Bill.
  11. Whether standing orders 143(2) to (6) of the National Assembly Standing Orders which gave the Speaker of the National Assembly powers to determine whether Bills originating from the Senate were money Bills, were inconsistent with the legislative process of Bills concerning counties and therefore void.

Relevant provisions of the law
Constitution of Kenya, 2010
Article 110 - Bills concerning county government

 

(1) In this Constitution, “a Bill concerning county government” means—

(a) A Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule;
(b) a Bill relating to the election of members of a county assembly or a county executive; and
(c) a Bill referred to in Chapter Twelve affecting the finances of county governments.

(2) A Bill concerning county governments is—

(a) a special Bill, which shall be considered under Article 111, if it—
(i) Relates to the election of members of a county assembly or a county executive; or
(ii) is the annual County Allocation of Revenue Bill referred to in Article 218; or
(b) An ordinary Bill, which shall be considered under Article 112, in any other case.

(3) Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill.
(4) When any Bill concerning county government has been passed by one House of Parliament, the Speaker of that House shall refer it to the Speaker of the other House.
(5) If both Houses pass the Bill in the same form, the Speaker of the House in which the Bill originated shall, within seven days, refer the Bill to the President for assent.


Held:

  1. There were no specific rules of procedure that had been prescribed for filing, service and other appurtenant procedural aspects of constitutional petitions filed outside article 22 of the Constitution on enforcement, protection of rights and fundamental freedoms. That meant that while the Chief Justice was mandated to make rules providing for court proceedings under article 22 and indeed such rules had been made, there were no similar rules that had been made for proceedings on enforcement of other constitutional provisions outside those envisaged under article 22.
  2. In the absence of any express provision barring a party from invoking , ( such a party was properly entitled to invoke them in any petition other than a petition filed under a to the extent that they were applicable the Mutunga Rules gave the court the inherent power to make such orders as were necessary in order to meet the ends of justice.
  3. Article 159(2)(d) of the Constitution prodded the court to exercise its judicial authority bearing in mind, amongst other principles, that justice was to be administered without undue regard to procedural technicalities. Failure to file a notice of appointment of advocate would be such a procedural technicality. It was reasonable to allow the 1st to the 3rd petitioners’ lead counsel and the rest of the counsel whom he was leading to continue acting for the 1st to the 3rd petitioners.
  4. While O of the Civil Procedure Rules required that a party to give notice of appointment of an advocate, where one had been appointed, failure to do so in constitutional petitions such as the instant one, was a mere procedural lapse that was curable under the inherent powers of the court. Needless to say, each case depended on its specific circumstances.
  5. The applicable principles on the doctrine of res judicata were found in The rule or doctrine of res judicata served the salutary aim of bringing finality to litigation and afforded parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that had already been determined by a competent court. It was designed as a pragmatic and common sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to them. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny.
  6. Article 110(3) of the Constitution was considered in Nation Media Group and 6 others v Attorney General and 9 others [2016] eKLR (Nation Media Group case) but the interpretation given by the court was restricted to the two Acts of Parliament that were in issue; viz the Kenya Media Act 2013 and the Kenya Information and Communication (Amendment Media) Act 2013. The court reasoned that since the two Acts of Parliament did not concern counties, the Senate needed not have been involved in their legislation. The two Acts were not directly and substantially in issue in the instant petition; as a matter of fact, neither of them had been faulted on any ground.
  7. The doctrine of res judicata would not apply in the instant case because, while the petitioners could have been party to the Nation Media Group, the subject of the dispute in the instant petition was not as prominent in the previous suit and, as the issues singled out by the Supreme Court for determination in the instant suit suggested, the crucial aspect of finality on determination of a previously litigated subject for res judicata to apply was lacking. To be precise, the extent of the legislative roles of the two Houses of Parliament and the manner in which those roles ought to be undertaken in light of article 110(3) of the Constitution could not be said to have been conclusively determined in the Nation Media Group case.
  8. Humanity Action Knowledge Integrity in Africa Trust (HAKI Africa) v Attorney General & others and Kenya National Commission on Human Rights (KNHCR) and 2 others, Constitutional Petition No. 134 of 2019, Association of Insurance Brokers of Kenya v Cabinet Secretary for National Treasury & Planning & 2 others, Petition No. 288 of 2019 and Okiya Omtatah Okoiti v Speaker of the National Assembly, & others, Petition No. 454 of 2019 were filed after the instant petition had been filed. It was those cases that were filed after the instant petition was filed that would fall on the wrong side of the sub judice rule. The doctrine of sub judice prohibited courts from entertaining and adjudicating upon matters pending before courts of competent jurisdiction. The doctrine was codified in section 6 of the Civil Procedure Act.
  9. For the doctrine of sub judice to apply the following principles ought to have been present:
    1. There had to exist two or more suits filed consecutively.
    2. The matter in issue in the suit or proceedings had to be directly and substantially the same.
    3. The parties in the suits or proceedings had to be the same or had to be parties under whom they or any of them claimed and they had to be litigating under the same title.
    4. The suits had to be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
    Those conditions had not been met and thus the court had jurisdiction to dispose of the instant petition.
  10. The central outstanding issue of concern was the proper interpretation of with specific reference to the legislative functions of the two Houses of Parliament. That question had, at one point caught the attention of the Supreme Court in Council of Governors and 47 Others v Attorney general and 6 others [2019] eKLR. The respondents in that case raised a preliminary objection that the issues raised in the reference were issues pending for determination in various petitions pending before the court. One of the petitions that were singled out as pending for determination was the instant petition. In a ruling on the preliminary objection, the Supreme Court spelt out 12 issues that ought to be determined by the court in the instant petition. Those issues were set out in the ruling as follows:
    1. Whether a speaker of a House of Parliament had to first seek the concurrence of the speaker of the other House of Parliament as to whether a Bill was one that concerned counties, and if it was, whether it was a special or an ordinary Bill, before the Bill could be introduced for consideration in the originating House.
    2. Whether it was mandatory and a condition precedent for any Bill that was published by either House to be subjected to a joint concurrence process to determine, in terms of article 110(3) of the Constitution, whether the Bill was a special or ordinary Bill and that such determination was not dependent on a question arising as to whether the Bill concerned counties.
    3. Whether the provisions of article 110(3) of the Constitution were couched in mandatory terms and was a condition precedent before any House of Parliament could consider a Bill.
    4. Whether a speaker could unilaterally make a decision as to whether a Bill did or did not concern counties and whether a question as to whether the bill was one that concerned counties did or did not arise.
    5. Whether any Bill or delegated legislation that provided for, or touched on, the mandate or the powers of Parliamentary Service Commission had to be considered by the Senate as it directly affected the Senate’s ability to undertake its constitutional mandate including its ability to consider Bills that affected counties.
    6. Whether the Appropriation Bill 2019 was unconstitutional, null and void for violating the provisions of articles 110(3), 218 and 222 of the Constitution.
    7. Whether articles 3, 115, 131(2) and 259 of the Constitution imposed a constitutional and legal obligation on both Speakers of Parliament, prior to submitting a Bill for assent, had to demonstrate compliance with the procedure set out under articles 109 to 115 of the Constitution.
    8. Whether standing order 143(2) to (6) of the National Assembly Standing Orders were inconsistent with the legislative process of Bills concerning counties set out in articles 109(4), 110 t0 113, 122 and 123 of the Constitution and therefore null and void.
    9. Whether where Speakers of both Houses concurred that a Bill was one that concerned counties, pursuant to article 109(4) of the Constitution, the Bill had to be passed in accordance with articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of both Houses and was not subject to article 114 of the Constitution.
    10. Whether or not it was a money Bill where the contents of a Bill affected the functions and finances of a county within the meaning of article 114(3) of the Constitution.
    11. Whether where a Bill dealt with financial matters and such matters affected the finances and functions of county governments pursuant to article 110(1)(c), the Bill was one concerning county governments and had to be considered by Senate.
    12. Whether an Act of Parliament constituted an Act that had complied with the legislative process required by both Houses by participation of both Speakers as required under article 110(3) of the Constitution and the Bill concerned counties by consideration in the Senate as required in the Constitution.
  11. Article 109 of the Constitution established the legislative power of Parliament and, it laid out the manner in which that power was to be exercised. Article 110 of the Constitution, on the other hand, was particular about Bills concerning County Governments; it defined a Bill concerning County Governments and also prescribed the procedure for the enactment of such a Bill into law. To an objective reader, article 110(3) of the Constitution would appear to be so clear that no one would expect a dispute over its interpretation, particularly, on the role of the Speakers of the two Houses of Parliament in resolving any question as to whether a Bill was one concerning counties and, if it was, whether it was a special or ordinary Bill and, the timing of such a determination.
  12. A fundamental element in the scaffolding structure for the constitutional principles and values, was the institutional scheme of bicameralism in the legislative arrangement; and that was the dual-chamber set-up in the institutions of law-making. The Constitution provided for a bicameral system, with each unit playing its role as prescribed.
  13. The business of considering and passing of any Bill was not to be embarked upon and concluded before the two Chambers, acting through their Speakers, addressed and found an answer for a certain particular question: What the nature of the Bill in question was. The two Speakers, in answering that question, had to settle three sub-questions before a Bill that had been published, went through the motions of debate, passage, and final assent by the President. The sub-questions were:
    1. Whether the Bill concerned county governments and if it was, whether it was a special or an ordinary bill.
    2. Whether the Bill did not concern county governments.
    3. Whether it was a money Bill.
  14. In answering the questions to determine the nature of a Bill, the Speakers had to consider the content of the Bill. They had to reflect upon the objectives of the Bill. That, by the Constitution, was not a unilateral exercise and on that principle, it was obvious that the Speaker of the National Assembly by abandoning all engagement or consultation with the Speaker of the Senate, and proceeding as he did, had acted contrary to the Constitution and its fundamental principles regarding the harmonious motion of State institutions.
  15. Neither Speaker could, to the exclusion of the other, determine the nature of a Bill: for that would inevitably result in usurpations of jurisdiction, to the prejudice of the constitutional principle of the harmonious interplay of State institutions. The Senate, though entrusted with a less expansive legislative role than the National Assembly, stood as the Constitution’s safeguard for the principle of devolved government. That purpose would be negated if the Senate were not to participate in the enactment of legislation pertaining to the devolved units, the counties [article 96(1), (2) and (3)].
  16. From a broad purposive view of the Constitution, the intent of the drafters, as regards the exercise of legislative powers, was that any disagreement as to the nature of a Bill should be harmoniously settled through mediation. An obligation was thus placed on the two Speakers, where they could not agree between themselves, to engage the mediation mechanism. They would each be required each to appoint an equal number of members, who would deliberate upon the question, and file their report within a specified period of time. It was also possible for the two Chambers to establish a standing mediation committee, to deliberate upon and to resolve any disputes regarding the path of legislation to be adopted for different subject-matters.
  17. The Supreme Court’s opinion was not just an opinion. Rather, it was an opinion with the force of law and which bound all and sundry including all State organs not least, the two August Houses. Concurrence of the Speakers of the two Houses was a mandatory preliminary step in the legislative process.
  18. Any law passed without compliance with a was unconstitutional. not only asserted the supremacy of the Constitution but it also, in the same vein, removed any doubt on constitutionality of a law enacted contrary to the Constitution. Of particular relevance was a that any law or any act or omission in contravention of the Constitution was invalid. The actions of the National Assembly to pass the impugned laws without reference to the Senate contrary to a fell into that category of laws that frowned upon, they were simply unconstitutional.
  19. Under the repealed standing order no. 121(2), before the publication of a Bill, the Speaker of the National Assembly was required to communicate to the Speaker of the Senate his determination whether the Bill concerned county governments and if it was, whether it was a special or an ordinary Bill. The rationale behind sending the Bill to the Speaker of the Senate was to seek his concurrence in accordance with article 110(3) of the Constitution.
  20. The National Assembly amended s 121, and it was clear from the amended version that the intention of the National Assembly was to exclude the Speaker of the Senate from the exercise of determination of whether a Bill was a Bill concerning county governments and if so whether it was an ordinary or special Bill. That amendment was mischievous because the Supreme Court in its interpretation of a stated that under that article, it was incumbent upon both Speakers of the National Assembly and the Senate to concur and that it was not a question for determination by either of them to the exclusion of the other.
  21. The effect of the amendment to standing order no. 121 was not only to circumvent the opinion of the Supreme Court but it was clearly inconsistent with a. It was inconceivable that the National Assembly could purport to supplant clear provisions of the Constitution with its own Standing Orders. To the extent that the amendment of the s was inconsistent with the Constitution it was unconstitutional.
  22. Bills originating from the Senate were, like any other Bill, subject to the same legislative process outlined in a and it was not up to the Speaker of the National Assembly to arrogate to himself the task of determining whether such Bills were money Bills or not and to the extent that purported to give him such powers, it was also unconstitutional.
  23. The expression “any matters touching on county governments” should be so interpreted as to incorporate any national-level process bearing a significant impact on the conduct of county governments. There was no definite definition of what Bills concerning county governments meant and, each case had to be determined on the basis of its peculiar circumstances.
  24. Considering the timing of the cross petition and the issues raised in it, the cross petition was filed to obfuscate the fundamental issue raised in the petition, which was, the extent of the legislative functions of the two Houses of Parliament.
  25. Kenya’s legislative bodies bore an obligation to discharge their mandate in accordance with the terms of the Constitution, and they could not plead any internal rule or indeed, any statutory scheme, as a reprieve from that obligation. The Constitution vested the legislative authority of Kenya in Parliament. Such authority was derived from the people. That position was embodied in article 94(1) of the Constitution. Article 94(1) also imposed upon Parliament the duty to protect the Constitution and to promote the democratic governance of Kenya.
  26. Article 93(2) of the Constitution provided that the National Assembly and the Senate would perform their respective functions in accordance with the Constitution. While the legislative authority lay with Parliament, the same was to be exercised subject to the dictates of the Constitution. While Parliament was within its general legislative mandate to establish procedures of how it conducted its business, it had to abide by the prescriptions of the Constitution. It could not operate besides or outside the four corners of the Constitution.
  27. The court would not question each and every procedural infraction that could occur in either of the Houses of Parliament. The court could not supervise the workings of Parliament. The institutional comity between the three arms of Government had to not be endangered by the unwarranted intrusions into the workings of one arm by another. However, where a question arose as to the interpretation of the Constitution, the court could not invoke institutional comity to avoid its constitutional duty.

Petition allowed; cross-petition dismissed; each party to bear its own costs.

Orders;

  1. A declaration was issued that pursuant to article 110(3) of the Constitution, a Speaker of a House of Parliament had to first seek the concurrence of the Speaker of the other House of Parliament, as to whether a Bill was one that concerned counties, and if it was, whether it was a special or an ordinary Bill, before the Bill could be introduced for consideration in the originating House.
  2. A declaration was issued that it was mandatory and a condition precedent for any Bill that was published by either House to be subjected to a concurrence process to determine in terms of article 110(3) of the Constitution whether the Bill was special or an ordinary Bill and that such determination was not dependent on a question arising as to whether the Bill was one that concerned counties.
  3. A declaration was issued that the provisions of article 110(3) of the Constitution were couched in mandatory terms and was a condition precedent before any House of Parliament could consider a Bill.
  4. A declaration was issued that pursuant to article 110(3) of the Constitution, one Speaker could not unilaterally make a decision as to whether the Bill did or did not concern counties or whether a question as to whether the Bill was one that concerned counties did or did not arise.
  5. An order was issued ordering the immediate cessation of consideration of all Bills that were pending before either House, and for which joint concurrence by the Speakers of both Houses as to whether the Bills concerned counties, had not been demonstrated to allow for such Bills to be subjected to the mandatory joint concurrence process contemplated under article 110(3) of the Constitution.
  6. A declaration was issued that any Bill or delegated legislation that provided for, or touched on, mandate or powers of Parliamentary Service Commission had to be considered by the Senate as it directly affected the Senate’s ability to undertake its constitutional mandate including its ability to consider Bills that affected counties;
  7. A declaration was issued that the underlisted Acts passed by the National Assembly were in contravention of articles 96, 109, 110, 111, 112 and 113 of the Constitution and were therefore unconstitutional thus null and void:
    1. The Public Trustee (Amendment) Act, No. 6 of the 2018
    2. The Building Surveyors Act, 2018, No. 19 of 2018
    3. The Computer Misuse and Cybercrime, Act, No. 5 of 2018
    4. The Statute Law (Miscellaneous Amendment Act), No. 4 of 2018
    5. The Kenya Coast Guard Service Act. No. 11 of 2018
    6. The Tax Laws (Amendments) Act, No. 9 of 2018
    7. The Statute Law (Miscellaneous Amendments) Act, No. 18 of 2018
    8. The Supplementary Appropriation Act, No. 2 of 2018;
    9. The Equalization Fund Appropriation Act No. 3 of 2018
    10. The Sacco Societies (Amendment) Act, 2018 No. 16 of 2018
    11. The Finance Act, No. 10 of 2018
    12. The Appropriations Act, No. 7 of 2018
    13. The Capital Markets (Amendments) Act, No. 15 of 2018
    14. The National Youth Service Act No. 17 of 201
    15. The Supplementary Appropriations Act, No. 13 of 2018
    16. The Health Laws (Amendment)Act, No. of 5 of 2019
    17. The Sports (Amendment) Act, No. 7 of 2019
    18. The National Government Constituency Development Fund Act, 2015
    19. The National Cohesion and Integration (Amendment) Act, 2019
    20. The Statute law (Miscellaneous Amendment) Act, 2019
    21. The Supplementary Appropriation Act, No. 9 of 2019
    22. The Appropriations Act, 2019
    23. The Insurance (Amendment) Act, 2019
  8. A declaration was issued that the amendments to section 4 of the Kenya Medical Supplies Act were contrary to articles 6, 10, 43(1), 46(1) 73(1), 110(3), 189(1), and 227(1) of the Constitution and was therefore unconstitutional thus null and void.
  9. A declaration was issued that standing order no. 121(2) of the National Assembly Standing Orders was inconsistent with articles 109(4), 110 to 113, 122 and 123 of the Constitution and was therefore null and void.
  10. A declaration was issued that standing order no. 143(2) to (6) of the National Assembly Standing Orders was inconsistent with articles 109(4), 110 to 113, 122 and 123 of the Constitution and was therefore null and void.
  11. A declaration was issued that where the Speakers of both Houses concur that a Bill was one that concerned counties, pursuant to article 109(4) of the Constitution, the Bill had to be passed in accordance with articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of both Houses and was not subject to article 114 of the Constitution.
  12. A declaration was issued that an Act of Parliament constituted an Act that had complied with the legislative process required of both Houses by participation of both Speakers as required under article 110(3) of the Constitution and where the Bill concerned counties by consideration in the Senate as required in the Constitution
  13. The orders nullifying the impugned Acts were suspended for a period of 9 months from the date of the judgment within which period the respondents ought to have complied with the provisions of article 110(3) of the Constitution and regularised those Acts and in default they stood nullified.
Kenya Law
Case Updates Issue 043/2020
Case Summaries

CIVIL PRACTICE AND PROCEDURE Factors to consider in awarding costs where a suit involved matters of public interest

Director of Public Prosecution v Michael Sistu Mwaura Kamau & 4 others [2020] eKLR
Petition of Appeal No. 18 of 2019
Supreme Court of Kenya
PM Mwilu DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
September 23, 2020
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure – costs – awarding of costs – where parties had withdrawn a suit but failed to agree on costs – where the suit involved matters of public interest - what were the factors to consider in awarding costs.

Brief Facts
In September 2019 the court recorded a consent order marking the instant petition as withdrawn. The parties were however unable to agree on costs and thus the court directed parties to file submissions limited to the question whether costs should be paid to the respondents consequent upon the withdrawal of the petition. The appellant, the Director of Public Prosecutions, argued that no order as regards costs should be made as the issue of costs was never raised at both the High Court and the Court of Appeal. The respondents, save the 3rd, 4th and 5th respondents disagreed and submitted that costs had to follow the event even as it was a matter of discretion for the court.

Issue:

What were the factors to consider in awarding costs where a suit involved matters of public interest? Read More..

Held:

  1. The award of costs would normally be guided by the principle that costs followed the event: the effect being that the party who called forth the event by instituting suit, would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs. However, the vital factor in setting the preference was the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.
  2. Although there was good sense in the basic rule of costs, that costs followed the event, it was not an invariable rule. The ultimate factor on award or non-award of costs was a judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
  3. The fact that the appellant was a public entity was not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance.Each case had to be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the court.
  4. Whereas the appellant had withdrawn the petition when it was ready for hearing and while the respondents had spent time and resources preparing for the hearing, the issues raised in the appeal were of great public interest, the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences could be initiated when the Commission was not properly constituted and whether the President could direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. Those matters transcended the specific interests of the parties and had settled in the public sphere thus attracting the public interest. An order of costs against any party would in the circumstances not be fair.

Petition marked as withdrawn; each party to bear its costs of the appeal.

JURISDICTION

The Supreme Court could not entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya, 2010

Wanyiri Kihoro v Attorney General [2020] eKLR
Application No. 6 of 2020
Supreme Court of Kenya
D K Maraga, (CJ & P), P M Mwilu (DCJ & V-P), S C Wanjala, N Njoki & I Lenaola, SCJJ
September 23, 2020
Reported by Chelimo Eunice

Download the Decision

Jurisdiction – appellate jurisdiction of the Supreme Court – appeals from the Court of Appeal - whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010 – where the final judgment by the Court of Appeal was delivered on March 17, 1993 – whether the Supreme Court could entertain the appeal - Constitution of Kenya, 2010, article 163(4)(b).

Brief Facts:
The applicant sought to review the ruling of the Court of Appeal denying him certification to file an appeal to the Supreme Court. The intended appeal was against the judgment of the Court of Appeal in Civil Appeal No. 151 of 1988 delivered on March 17, 1993. The applicant argued that although Civil Appeal No. 151 of 1988 was heard and determined on March 17, 1993, the cause of action was not satisfied or finalized until November 2011, when the applicant’s application before the High Court seeking enforcement of the judgment in Civil Appeal No. 151 of 1988 was determined and the decretal amount recovered from the State; that there was continuity of the dispute between the parties up to November 2011, which was after the promulgation of the 2010 Constitution, hence the Supreme Court had jurisdiction to entertain the intended appeal.

Issue:

Whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010.Read More...

Held:

  1. The Supreme Court had no jurisdiction to entertain appeals from final judgements of the Court of Appeal before the promulgation of the Constitution of Kenya 2010. Article 163(4)(b) of the Constitution was forward-looking, and did not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.
  2. The final judgment by the Court of Appeal was delivered on March 17, 1993, long before the promulgation of the Constitution. There could never have been any other appeal from that judgment due to the fact that the Court of Appeal was then, the highest court in the land. When the applicant moved to the High Court in Miscellaneous Application No.52 of 2009, he was simply but importantly seeking to enforce the final judgment and orders of the Court of Appeal. He was seeking to reap the fruits of that judgment. Such an application could not be said to have sustained the cause of action until November 2011, so as to confer jurisdiction on the Supreme Court. The applicant was not appealing anything from such an enforcement action that he commenced before the High Court. Even if such an appeal were possible, which it was not, the Supreme Court would not have appellate jurisdiction over a decision from the High Court.
  3. Since the Supreme Court had no jurisdiction to entertain the application, it could not determine the other two issues raised.

Application dismissed with no orders as to costs

JURISDICTION

The delay in filing a supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings is a valid reason to allow extension of time

Ferdinand Ndungu Waititu Babayao v Republic
Petition Application 2 of 2020
Supreme Court of Kenya
DK Maraga, CJ & P; MK Ibrahim, SC Wanjala, I Lenaola & NS Ndungu, SCJJ
September 23, 2020
Reported by Sharon Sang & Kakai Toili

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Civil Practice and Procedure – appeals – appeals to the Supreme Court – timelines for filing appeals – extension of time – extension of time to file a supplementary record of appeal – whether the delay in filing the supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal was a valid reason to allow extension of time – Supreme Court Act, 2011, section 21(3); Supreme Court Rules, 2012, rule 53
Jurisdiction – jurisdiction of the Supreme Court – jurisdiction of the Supreme Court on application for extension of time – when could the Supreme Court allow an application for extension of time – whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time – Supreme Court Rules, 2012, rule 53.

Brief facts:
The application filed by the petitioner contended that the delay in filing the supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was occasioned by the inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal despite request made on December 30, 2019. The respondent did not file any response or submission with regard to the application despite directions issued by the deputy registrar that submissions ought to be filed by August 28, 2020.

Issue:

  1. Whether the Supreme Court had the jurisdiction to determine and allow an application for leave to extend time.
  2. Whether the delay in filing the supplementary record of appeal occasioned by inability to obtain the order and certified copies of typed court proceedings from the Court of Appeal was a valid reason to allow extension of time. Read More...

Relevant provisions of law
Supreme Court Act, No 7 of 2011
Section 21 – General Powers
(3) The Supreme Court may make any order necessary for determining the real question in issue in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal.
Supreme Court Rules, 2012
Rule 53
The Court may extend the time limited by these Rules, or by any decision of the Court.

Held:

  1. The Supreme Court had the jurisdiction to consider and determine an application for leave to extend time to do anything required by its rules in accordance with section 21(3) of the Supreme Court Act and rule 53 of the Supreme Court Rules, 2012. The application by the petitioner dated August 7, 2020 and filed on August 11, 2020 satisfied the principles set out by the Supreme Court on extension of time.
  2. The petitioner had provided sufficient grounds and reasons for the delay in filing the supplementary record of appeal as the delay in obtaining the order and certified typed copies of proceedings from the Court of Appeal was an administrative issue that could not and should not be held against the petitioner.
  3. The respondent had not opposed the application neither had he shown what prejudice would be occasioned upon him if the applicant’s application was allowed.

Application allowed: each party to bear its own costs.
Orders;

  1. The supplementary record of appeal dated July 30, 2020 and filed on August 5, 2020 was deemed duly and properly filed.
  2. Parties to appear before the deputy registrar for further directions
JURISDICTION

Principles for grant of stay orders

Praxidis Namoni Saisi v Director of Public Prosecutions & 2 others [2020] eKLR
Civil Application No. 2 of 2020
Supreme Court of Kenya
DK Maraga (CJ & P), P M Mwilu (DCJ & VP), M K Ibrahim, S C Wanjala & I Lenaola, SCJJ
September 4, 2020
Reported by Chelimo Eunice

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Jurisdiction – jurisdiction of the Supreme Court - jurisdiction of the Supreme Court to issue stay of execution orders - whether the Supreme Court had authority to issue preservation orders – what were the principles for grant of stay orders – a claim that if criminal charges were pursued against a litigant, her dignity could be tarnished and was incapable of being repaired if the appeal was to succeed – whether stay orders would be granted in such a situation.

Brief facts:
The applicant prayed for conservatory orders staying the execution of the decision of the Court of Appeal. The Court of Appeal decision had overturned the High Court’s decision which had granted orders of certiorari to quash the decision of the 2nd respondent to charge the applicant with certain anti-corruption offences. The applicant argued, inter alia, that her application met the principles for grant of an order of stay. She also argued that if the criminal charges against her were pursued during the pendency of her appeal, her dignity could be tarnished and was incapable of being repaired and/or restored if the appeal was to succeed. The 1st and 2nd respondents opposed the application arguing that the application had not met the principles for grant of stay orders and that it was not in the public interest that the stay order be granted.

Issue:

What were the principles for grant of stay orders? Read More...

Held:

  1. A party seeking stay orders had to address the following issues:
    1. whether the appeal or the intended appeal was arguable and not frivolous;
    2. that unless the order of stay sought was granted, the appeal or intended appeal, were it to eventually succeed would be rendered nugatory;
    3. that it was in the public interest that the order of stay be granted.
  2. The Supreme Court had authority to issue orders for the preservation, in an interim period, of a subject-matter of appeal. It was not automatic that for any unopposed application, the court would as a matter of cause grant the orders sought. It behoved the court to be satisfied that prima facie, with no objection, the application was meritorious and the prayers would be granted. The applicant’s assertion was that the effect of the decision by the Court of Appeal was that she would be subjected to a criminal trial, a situation that would violate her constitutional rights to fair trial and equal benefits and protection of the law as more particularly set out in the petition of appeal. Thus, the applicant had demonstrated an arguable case which would be rendered nugatory in the absence of the court’s intervention by way of granting the orders sought until her appeal was heard and determined.

Application allowed with each party bearing own costs.
Orders

  1. The execution of the decision of the Court of Appeal in Civil Appeal No. 313 of 2017 delivered on September 20, 2019 stayed pending the hearing and determination of the appeal.
  2. Petitions Nos. 39 and 40 of 2020 consolidated and upon directions being taken before the Deputy Registrar, the same to be heard and determined expeditiously.

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