Weekly Newsletter 002/2015

Kenya Law Weekly | Issue 002/2015



Kenya Law

Weekly Newsletter


The Court cannot interfere with the process of Conferment of National Honours and Awards

John Harun Mwau v Attorney General
High Court of Kenya at Nairobi
Petition No 541 of 2013
Isaac Lenaola J
January 15, 2015

Reported by Andrew Halonyere

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Brief facts:
The Petitioner brought a petition before the High Court claiming inter-alia that certain persons (unnamed), including himself, who were eligible to be conferred with National honours, medals and awards between 2008 and 2012 were discriminatorily denied the same, which resulted in unequal treatment and violation of their rights.

The petitioner further claimed that the National Honours Guidebook 2004 established elaborate structures on the eligibility for conferment of the honours and awards and the Guide Book remained the sole source of Government policy in that regard. He submitted that the differentiation accorded amongst Judges, Members of Parliament and Assistant Ministers was unfounded as it had no legitimate purpose other than spite and created unequal treatment and as such was discriminatory, unfair administrative action and unconstitutional.

The Attorney General (Respondent) on its part opposed the petition on inter-alia the ground that National Honours were a prerogative of the President under the National Honours Guide Book 2004 Guidelines, arguing that the Court would be overstepping its mandate if it granted the declarations sought by the Petitioner.

Issues

  1. Whether the petitioner and some Judges, Magistrates, Assistant Ministers and Members of Parliament, among others, who were allegedly eligible to be conferred with medals, National honours and awards between 2008 and 2012 have been denied that right.
  2. Whether the act of allegedly denying the Government officers the awards and honours amounts to unequal treatment and discrimination.
  3. To what extent is the process of conferment of National Honours or Awards open to public participation?

Constitutional law – National Honours and Awards – conferment of National Honours and Awards – allegation of discrimination against conferment of National Honours and Awards – discretion of the President to confer National Honours and Awards – whether the High Court can interfere with the Presidents discretionary powers to confer National Honours and Awards – whether the allegations had merit – Constitution of Kenya 2010 article 132 (4) (c); National Honours Guidebook 2004; National Honours Act, 2013

Constitution of Kenya 2010

Article 132(4) (c) provides as follows;

(4) The President may

(c) confer honours in the name of the people and the Republic;”

Held

  1. There was no guarantee or automatic conferment of Honours or Awards to an individual and there was no such thing as class conferment of Honours to individuals in a particular class, profession or office department.
  2. Conferment of Honours in Kenya was not automatic or compulsory but was at the discretion of the President, much as it was the preserve of the Monarch in the United Kingdom, and was given to an individual as a way of recognizing that individual’s performance and service to the Nation. In the eligibility criteria contained in the Guide Book, there was no provision that an accession to the office of Judge, Member of Parliament or Assistant Minister etc was an automatic qualification for the conferment of any National Honour or award.
  3. It was not within the power of the High Court to decide whether or not conferment of Honours and awards was right or wrong or to give its opinion on such matters. It was so because no Kenyan citizen had a legitimate expectation of receiving an Honour since the conferment of such an Honour lied entirely within the discretion of the conferring body, in the instant case, the President, and was based on the distinguished service offered by that citizen.
  4. The receipt of an Honour lied entirely within the discretion of the conferring body. The conferral of the Honour was a discretionary favour. It engaged no liberty, no property, no economic interests. It enjoyed no procedural protection. It did not have a sufficient legal component to warrant the Court’s intervention. Instead, it involved moral and political considerations which was not within the province of the courts to assess. In other words, the discretion to confer or refuse to confer an Honour was the kind of discretion that was not reviewable by the Court.” Black v Chiritien
  5. The best example of discretion is judicial discretion. The exercise of discretion by a judge is hardly challengeable unless it was exercised injudiciously. Even higher Courts seldom overturned exercise of discretion by Subordinate Courts. In the same breathe, the High Court or any other Court could not order a President, present or past, to exercise his discretion to confer National Honours in a particular way or to certain officers in certain offices. To do so would be akin to taking away discretion that was reposited only in the President. Such an action would be wholly irregular.
  6. The Guide Book which the Petitioner had relied upon in seeking the conferment of Honours and awards between 2008 and 2012 provided for the procedure to be followed in recommending conferment of an award or Honours to an individual. In that regard, there was no evidence before the court that the said procedure was ever followed and in particular, whether the persons whose rights had allegedly accrued ever applied to the relevant Committee to be awarded such Honours and that the application had been denied. The High Court could not therefore sit as the Committee on Administration of Honours and grant such Honours and awards as urged by the Petitioner.
  7. Mere differentiation based on a criteria leading to legitimate exercise of discretion could not be said to be discriminatory. There was no evidence of unfair administrative action against the Petitioner and all the others that he claimed to represent.
  8. The criteria for conferment of National Honours prior to the enactment of the Constitution 2010 and the National Honours Act, 2013 was hardly in the public domain. The President prior to 2010 had sole discretion to confer and annul National Honours. The process is now open to public participation but the President’s discretion has not been taken away.

Petition dismissed.

Kenya Law
Case Updates Issue 002/2015
Case Summaries

JURISDICTION Supreme Court stays execution of court orders

Justus Kariuki Mate & Another v Martin Nyaga Wambora & another
Supreme Court of Kenya
Civil Application No. 37 of 2014
P K Tunoi & N S Ndungu, SCJJ.
December 29, 2014
Reported by Emma Kinya Mwobobia

Download the Decision

Issues:

  1. Whether the matter before Court of general public importance under article 163(4)(b) of the Constitution and thus merit a determination by the Supreme Court
  2. Whether the appeal raised sufficient grounds to warrant a stay of execution of the Court of Appeal’s decision

Jurisdiction – jurisdiction of the Supreme Court – interpretation and application of the Constitution – jurisdiction of the Supreme Court in interpretation or application of the Constitution in matters of general public importance – whether the issues raised were considered matters of general public importance – Constitution of Kenya, 2010 article 163(4)

Civil Practice and Procedure – stay – stay of execution – stay of execution of the Court of appeal decision – application for a stay of execution of the court judgment and orders pending hearing and determination of the appeal – whether the application was valid in the circumstances Read More...

Held:

  1. The determination of the question whether the High Court exceeded its jurisdiction by finding the applicants to be in contempt of a Court Order called for the interpretation and application of the Constitution which was the criterion of jurisdiction of the Supreme Court by the terms of article 163(4)(a) of the Constitution.
  2. The issues raised were not only cognizable but also weighty constitutional questions that were, prima facie, arguable. As significant as the issues in contest were, it was not possible to resolve them with finality in the context of the preliminary motion.
  3. If the Supreme Court was to decline to maintain the status quo, the High Court would proceed to take mitigation and then sentence the applicants. There was a likelihood, in that case, that the applicants would be incarcerated and the substratum of the appeal-cause would have been spent. In the event that the Supreme Court eventually found in favour of the applicants, it would be impossible to compensate them by way of costs. In the alternative, if the Court found in favour of the respondents, no harm would have been occasioned to them.
  4. The determination of the extent of application of the doctrine of separation of powers, which was a vital constitutional concept was a matter of public interest.
  5. The respondents’ case rested on fundamental constitutional questions not yet interpreted and which bore a close relation to the appellants’ case and hence the need for an interpretation of the Constitution ahead of the application of the standard law of contempt. 

Application allowed. Execution of the Court of Appeal orders to rest in abeyance and status quo to be maintained pending the determination of the appeal. Hearing date of the pending appeal to be issued by the Registrar on priority basis. The costs of this application shall abide the appeal.

JURISDICTION Vetting Board has no jurisdiction to examine complaints after the promulgation of the Constitution

Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another
Supreme Court of Kenya
Petition No. 29 of 2014
W.M.Mutunga CJ, K.H Rawal DCJ, P.K. Tunoi, J.B. Ojwang’, S.C. Wanjala, N.S. Ndungu, SCJJ.
December 19, 2014
Reported by Emma Kinya Mwobobia

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Issues:

  1. Whether the Supreme Court had jurisdiction determine the appeal on the limitation period of vetting the conduct of the Judges and Magistrates 
  2. Whether the Judges and Magistrates Vetting Board (Vetting Board), in determining the suitability of a Judge or Magistrate to continue to serve in the Judiciary could consider conduct after the effective date
  3. On what basis could the vetting board determine that a Judge or magistrate who was in office on the effective date was suitable to continue to serve?
  4. Whether there was a conflict in the mandate of the vetting Board vis a vis the Judicial Service Commission(JSC)
  5. What process would be followed where a Judge or a Magistrate who was being vetted faced a real prospect of disciplinary proceedings against him by the JSC or where the Board came across an incident of misconduct after the due date?

Jurisdiction – jurisdiction of the Supreme Court – interpretation of the Constitution - Jurisdiction of the Supreme Court in the interpretation and application of the Constitution – whether the Supreme Court had jurisdiction in the appeal – Constitution of Kenya 2010, article 163(4)

Constitutional Law – statutes – constitutionality of a statute – where an Act of Parliament is found to be in conflict with the Constitution – effect of the conflict – whether the declaration by the Supreme Court in the Joho case that section 76(1)  of the Elections Act was invalid and had retrospective effect – Constitution of Kenya, 2010 articles 10, 159

Constitutional law – vetting of Judges and Magistrates – mandate of the Judges and Magistrates Vetting Board – mandate to scrutinize conduct of judicial officers before the promulgation of the Constitution – vetting board’s mandate to determine the suitability of a judicial officer to serve – basis of the vetting board’s decision on the acts and omissions of the judicial officer before the promulgation of the Constitution - whether the Judges and Magistrates Vetting Board could vet judicial officers in respect to acts or omissions occurring after the promulgation of the Constitution  - Constitution of Kenya, 2010  articles 10, 159, Sixth Schedule section 23; Vetting of Judges and Magistrates Act section 18(1). Read More...

Held:

  1. The appeal was filed as of right pursuant to Article 163 (4) (a) of the Constitution because it involved the interpretation or application of the Constitution. It was properly before the Supreme Court and the Court had jurisdiction in every aspect to determine the issue. To decline to determine the question as framed on the basis of an unsubstantiated claim of lack of jurisdiction would defeat the vetting process, notwithstanding the clear terms of the Constitution.
  2. Section 23(1) of the Sixth Schedule to the Constitution required that the mechanisms and procedures for vetting occur in terms of the Judges and Magistrates Vetting Act, subject to the values and principles set out in Articles 10 and 159 of the Constitution.
  3. The essence of Section 23(2) as read together with section 23(1) of the Sixth Schedule to the Constitution was that the removal or process leading to a removal by virtue of the Judges and Magistrates Vetting Act was not subject to a review by a Court. 
  4. The extent and reach of the vetting process was captured in the wording of section 23(1) of the Sixth Schedule to the Constitution as being “within a time frame to be determined in the legislation” meaning the Judges and Magistrates Vetting Act. However, that time frame even as determined by legislation was not elastic. It was to serve a limited purpose of determining the suitability of those judicial officers who were in office on the effective date to continue to serve.
  5. The inescapable conclusions from the wording of Section 23(1) of the Sixth Schedule to the Constitution which stated in part that “the suitability of all judges and Magistrates who were in office on the effective date to continue to serve…” were:
    1. That the Vetting Board was at liberty to inquire into the conduct of all the Judges and Magistrates who were in office on the effective date, to determine their suitability to continue to serve.
    2. That the Vetting Board had no jurisdiction to inquire into the conduct of any Judge or Magistrate who was not in office on the effective date. The logic of this exclusion from vetting was that the latter, not having been in office before the promulgation of the Constitution of 2010, could not have done or omitted to have done anything in his/her capacity as a judicial officer to warrant the scrutiny of the Vetting Board. Conversely, a Judge or Magistrate “who was in office on the effective date” may or may not have done something at the time he was in office before the promulgation of the Constitution of 2010 to warrant the scrutiny of the Vetting Board.
  6. The Vetting Board could only make determination on the suitability of a Judge or Magistrate to continue to serve on the basis of what the Judge or Magistrate was alleged to have done or omitted to do during his tenure in office before the Constitution of 2010, for it was his actions or omissions, that will determine whether he/she was to be vindicated or condemned.  The Board could not wait to act on the basis of what such Judge or Magistrate would do after the promulgation of the Constitution of 2010.
  7. The Constitution had in-built mechanisms which had ensured a harmonious coexistence between the vetting process for Judges and Magistrates who were in office on the effective date (an exclusive mandate of the Board), and the disciplinary process for all judicial officers who were not in office on the effective date, including those who have already been vetted (an exclusive mandate of the JSC).  The Constitution did not envisage vetting to be a continuous process.  Yet this was what vetting could become if the Vetting Board encroached upon the jurisdiction of the JSC.
  8. The institutions under the Constitutional set up were not established to pursue sibling rivalries at the expense of the public good. They ought to consult and where necessary coordinate their operations so as to maximize the public good in conformity with their constitutional responsibilities.
  9. The court took judicial notice of the fact that upon commencement of the vetting process by the Vetting Board, the JSC handed over to it all the complaints within the Commission’s possession relating to the conduct of judicial officers before the effective date which was in conformity with the requirements of the Judges and Magistrates Vetting Act.
  10. There would be no reason for the JSC not to hold its hands until the officer in question had been vetted. Similarly, there would be no reason as to why the Board should not have reported an officer to the Commission for appropriate disciplinary action. The vetting would date as far back as from the date of the appointment under the retired constitution up to and until the effective date but not beyond.
  11. The Vetting Board in execution of its mandate as stipulated in Section 23 of the Sixth Schedule to the Constitution could only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date and not after. To hold otherwise would not only defeat the transitional nature of the vetting process but would transform the Board into something akin to what Lord Mersey in G & C Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd (1913) once called an unruly dog which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be. In the instant matter, this analogy was used to refer to a jurisdictional mandate within the constitutional set up and not the vetting Board per se.

Per N. S Ndungu, SCJ (Dissenting)

  1. The intention of the vetting process was to bring all judicial officers appointed under the repealed constitution in line with the 2010 constitutional framework.  This process was conceptualized to legitimize the concerned judicial officers’ exercise of people-drawn judicial authority in accordance with Article 159 of the Constitution.
  2. The mandate of the Vetting Board was to determine the suitability of Judges and Magistrates to continue to serve in accordance with the values under Article 10 and 159.  Therefore, the intention of the vetting process was to the individual conduct of every serving Judge or Magistrate appointed under the repealed Constitution as well as the institutional reformulation of the Judiciary.  The process was also intrinsically linked to the overall objectives of Chapter Six of the Constitution, which included suitability as one of the guiding principles of leadership and integrity in accordance with Article 73(2)(a) of the Constitution. 
  3. The determination of suitability involved an extensive interrogation of one’s essential quality of nature, conduct and disposition when adjudged against the parameters of Article 10 and 159 and ought to take into account a multiplicity of factors including past and present dealings and inclinations. Such values such as patriotism, human dignity, integrity, transparency and accountability were matters intrinsically tied to a person’s attributes, conduct and character in both public and private spheres of life. A person’s ethical and moral values were a product of nurture observable in the day-to-day relationships and dealings with others.
  4. To find that a judicial officer did not exhibit integrity, was unpatriotic or had disregarded the human dignity of litigants was a conclusion that could only be drawn after an assessment of a series of previous personal traits, habits, ethos and behavior in both private and public life. It was an assessment done in total disregard of a point in time when it happened. It was therefore not plausible to argue that a Judge could not be declared unsuitable to continue to serve because evidence of gross misconduct leading to a removal was in relation to things that happened after the effective date.
  5. A removal of a judge or magistrate from office by the vetting Board pursuant to Section 23(1) and (2) of the Sixth Schedule to the Constitution upon a finding of unsuitabilityon account of complaints emanating from conduct after the effective date could not in any way be perceived as the usurpation of the role of JSC under Articles 168(2) and 172(1)(c) of the Constitution. That was because the evidential material led in proof of suitability, under Article 10 and 159, or failure thereof should have been tendered by any person or body in pursuance of a lawful and constitutionally sanctioned process of vetting of the serving judicial officers.  As the constitutional foundation and pillar for Kenya’s judicial vetting process, Section 23(1) had been given effect by the Judges and Magistrates Vetting Act, particularly Section 18(1) which had not specified a time-limitation for occurrence of complaints to be considered in determining suitability of a judge or magistrate.
  6. As a basis of institutional transition, the Vetting Board was not barred either by the Constitution or legislation from examining complaints on the basis of conduct after the effective date.  The consideration of post-effective date allegations by the Vetting Board did not usurp the investigative and disciplinary powers of the JSC.  The restricted timeframe of the Vetting Board pointed to the temporary nature of its existence and the JSC’s constitutional duty for the continuous facilitation of judicial independence and accountability.
  7. The mandate of the Vetting Board was transitional, both in individual and institutional scope. Once the vetting process was complete, and the mechanisms constitutionally and statutorily given to the Vetting Board were exhausted, then the Vetting Board was precluded from recalling a vetted Judicial Officer on the basis of evidence emerging whether of a pre or post constitutional duration.  Such command constitutionally belonged to the JSC. 
  8. The essence of the vetting process was to bring major reforms into the institution of the Judiciary through the evaluation of suitability of individual Judges and Magistrates. Considerations of suitability ought not to be confined to specific periods of time, unless expressly provided by the Constitution or statute.  The critical aspect of vetting in the Kenyan context was judicial service in accordance with the values and principles under Articles 10 and 159 of the Constitution which had a continuous lifespan and applied prospectively from the effective date.  As such, the duty by every judicial officer to uphold the Constitution at all material times warranted the consideration of acts or omissions after the effective date on the strength of the continuous applicability of the Constitution.  While the vetting process was a transitional requirement bearing on the holistic institutional transformation, the mandate of the JSC was in its disciplinary mandate isolated to individual Judicial Officers. 
  9. The prospective applicability of the Constitution guided the role of the Vetting Board as well as that of the JSC. During the life of the Vetting Board nothing barred the JSC or the Vetting Board from legitimately carrying on their mandates concurrently.  Section 23 of the Sixth Schedule insulated the vetting procedure and the Vetting Board from the limitations of Articles 160, 167 and 168 of the Constitution, in consequence of the inquiries by the Vetting Board and the probable collision with the mandate of the JSC. However, the insulation was only applicable during the life of the Vetting of Judges and Magistrates(VJM) Act.
  10. Article 168 of the Constitution outlined the procedure for the removal of a Judge from office. The Article required that the process of initiating the removal of a Judge be initiated only through the JSC or upon the petition of any person to the JSC. The import of having Section 23 of the Sixth Schedule and Article 168 of the Constitution could only mean that there were various measures put in place to govern the constitutional transition and continuity of the Judiciary.  That could be drawn from the ratione temporis of the Vetting Board and the language of Section 23 of the Sixth schedule sanctioning the operation of the VJM Act despite Articles 160, 167 and 168.  An interpretation of Section 23(1) could only be complete with that of Section 23(2) of the Sixth Schedule to the Constitution. The operation of the VJM Act was imperative in the sense that itoverrode Articles 160, 167 and 168 and Section 23(1) of the sixth Schedule to the Constitution. That cleared the path for the Vetting Board to consider the suitability of Judges and Magistrates to continue to serve using the relevant considerations provided for under Section 18 of the VJM Act, including those arising after the effective date.
  11. The removal of a Judge or the process leading to such removal by virtue of its operation was further insulated from consideration by any Court by virtue of the Ouster clause in Section 23(2) of the Sixth Schedule to the Constitution. Such removal was based on considerations of suitability, which therefore and in line with the VJM Act were constitutionally sanctioned and guarded against any interference.
  12. Based on the provisions of the Constitution, the VJM Act and the Judicial Service Act, the mechanisms of the JSC were neither pegged upon those of the Vetting Board nor were those of the Vetting Board pegged upon the JSC. The system created by the Constitution in that regard was one of institutional parallelism but with different purposes and review mechanisms, each on its own foundation and lifespan.  That arrangement was designed to yield optimal results in institutional alignment and not necessarily lead to an institutional paralysis.  The Constitution of Kenya was replete with concurrent jurisdictions in important spheres of national governance.  An example was the Fourth Schedule to the Constitution which outlined a clear scheme of vertical devolution with various national organs performing similar functions for various differentiated or reinforcing purposes. 
  13. The enactment of Section 23 into the transitional schedule of the Constitution was a laborious exercise calling for the invocation of a ‘notwithstanding mechanism’ to find a compromise and a balance of the competing but reinforcing constitutional principles. 
  14. Unlike Section 33(1) of the Canadian Charter that gave the legislatures an open window in enactment of laws that override certain provisions of the Charter and which has been sparingly invoked, Section 23(1) of the Sixth Schedule to the Constitution was very narrow and squarely restricted to only three Articles of the Constitution and a defined category of persons (Judges and Magistrates serving before the effective date). It only allowed the operations of the VJM Act to override Article 160 of the Constitution on Independence of the Judiciary, Article 167 on Tenure of Office of the Chief Justice and other Judges and Article 168 on Removal from Office. The narrow and pointed approach bore comparative jurisprudential approval from the decision of the Supreme Court of Canada in Ford vs. Quebec [1988] 2 S.C.R. 712 at page 33, where the Supreme Court confirmed that Section 33 of the Canadian Charter did not impose any obligation on a legislative body to substantively justify or explain its use of the notwithstanding clause as long as the requirement of an express declaration was met.
  15. The operation of the VJM Act despite the outlined provisions of the Constitution effectively mooted any argument that the Vetting Board risked encroaching into a jurisdiction reserved for the JSC.
  16. The finding of the majority in the purposive interpretation of the Constitution challenged the procedure of vetting as outlined under Section 19(1) and (2) of the VJM Act. The challenge bore several far-reaching consequences:
    1. The reversal of the Supreme Court’s decision inJudges and Magistrates Vetting Board & Others v. The Centre For Human Rights And Democracy, Petition No 13A of 2013 consolidated with Petition No 14 of 2013 and Petition 15 of 2013 (JMVB (I));
    2.  Theintroduction of the potential question or review of the Vetting Board’s processes by other Courts including the Supreme Court contrary to the provisions of Section 23(2) of the Sixth schedule and Section 22(4) of the VJM Act.
    3. The inferred unconstitutionality of Section 18 and 19 (1) and (2) of the VJM Act, despite the fact that the constitutionality of the VJM Act was in fact affirmed by the High Court in the case ofDennis Mogambi Mong’are v. The Attorney-General and Two Others, Nairobi High Court Petition No. 146 of 2011 (Ngugi, Majanja andOdunga, JJ), and re-affirmed by the Court of Appeal and subsequently by the Supreme Court in JMVB (I)
    These consequences stem from a literal and narrow interpretation of the Constitution and the law.
  17. The transitional aspect of the Vetting Board was conceived to denote the period within which it would conclude its mandate as opposed to a timeframe for limitation of the admissible conduct for its consideration. 
  18. Section 18 of the VJM Act outlined the relevant considerations in determining the suitability of a Judge or Magistrate to continue in service after the effective date.  Some of these considerations included past work record of the Judge or Magistrate including prior judicial pronouncements, competence and diligence, any recommendations for prosecution of the Judge or Magistrate by the Attorney General or the Kenya Anti-Corruption Commission, pending complaints or other relevant information received from any person or body including post-effective date institutions such as the Commission on Administrative Justice. The section also called for a consideration of integrity proven by a demonstrable consistent history of honesty and high moral character in professional and personal life.  These provisions bear the intention of a comprehensive consideration of suitability not truncated between the pre and post-2010 periodsas had been held by the majority.
  19. Neither by its letter nor spirit or tenor did Section 23(1) of the Sixth Schedule to the Constitution rationally support a conclusion that evaluation of suitability of serving judicial officers on the basis of complaints of conduct was subject to a period in time of occurrence of such conduct.  To do so was to place undue fetters of time and to unnecessarily ring-fence the mandate of the Vetting Board in respect of conduct under review, in a manner antithetical and unintended, by the clear language, spirit and object of judicial reforms as envisaged by the Constitution. As such, the bar to the admissibility of acts or omissions after the effective date by the Vetting Board was a constitutional misinterpretation and the disruption of a sanctioned constitutional process.
  20. Most Judges have been vetted and exhausted the review mechanisms of the Vetting Board. There are many other judicial officers whose suitability through vetting had yet to be determined. Therefore, the finality and predictability of the Supreme Court’s decision in JMVB (I)and the purpose of vetting as the people’s command nowstood at a compromise.

Petition disallowed. Court of Appeal judgment upheld. Costs to be borne by the defendant.

CONSTITUTIONAL LAW Declaration of invalidity of section 76(1)(a) of the Elections Act must apply from the date of commencement of the Act

Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 Others
Supreme Court of Kenya
Petition No. 21 of 2014
K. H. Rawal DCJ, P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang’, S.C. Wanjala, N.S. Ndungu, SCJJ.
December 19, 2014
Reported by Emma Kinya Mwobobia

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Issues:

  1. Whether the appellate court could retrospectively apply the Supreme Court’s decision on declaration of invalidity of section 76(1)(a) of the Elections Act notwithstanding that the said declaration was silent on its application timespan

Constitutional Law – retrospectively – application of a law – application of a law invalidating a section of the statute – where the Supreme Court had declared section of the Elections Act invalid – the extent of the invalidity – whether the invalidity of the section applied retrospectively to run from the commencement of the Act – whether acts committed under the invalidated law were a nullity – Elections Act 2011, section 76(1)Read More...

Held:

  1. The declaration of invalidity of Section 76(1)(a) of the Elections Act, applied retrospectively in the instant case, as in the case of Mary Wambui Munene v Peter Gichuki King’ara & 2 Others Sup Ct Applic. No. 12 of 2014 (Mary Wambui), because the Elections Act was an essential derivative of the Constitution enacted after the promulgation of the Constitution and was meant to set out the guidelines for the proper and effective conduct of elections and necessarily incorporated the element of time and timelines.
  2. The lesson of comparative jurisprudence was that while a declaration of nullity for inconsistency with the Constitution annulled statute law, it did not necessarily entail that all acts previously done were invalidated. In general, laws have a prospective outlook and prior to annulling declarations, situations otherwise entirely legitimate may have come to pass and differing rights may have accrued that have acquired entrenched foundations. That gave justification for a case-by-case approach to time-span effect in relation to nullification of statute law. In that regard, the Court had a scope for discretion, including the suspension of invalidity and the application of prospective annulment. Such recourses, however, were for sparing and most judicious application in view of the overriding principle of the supremacy of the Constitution as it stood.
  3. The High Court bore the primary responsibility for determining whether any law was inconsistent with or in contravention of the Constitution.  The discretion also vested in the Court of Appeal as well as the Supreme Court. In Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others Sup Ct Petition No. 10 of 2013(Joho case) and Mary Wambui cases, the Supreme Court considered the impugned statutory provision in light of the entire scheme of the Constitution before making the declaration of invalidity and further in the Mary Wambui case, before deciding upon the retrospective application of that declaration.  That was the appropriate approach as regards the instant case.
  4. The provisions of Section 76(1)(a) of the Elections Act were inconsistent with the terms  of Article 87(1) of the Constitution and were invalid to the extent of that inconsistency. 

Orders:

  1. The Petition of Appeal dated 3rd June, 2014 disallowed.
  2. The Judgment and consequential Orders of the Court of Appeal, upheld.
  3. The appellant to bear the costs of the appeal before this Court.
JURISDICTION Supreme Court lacks jurisdiction to determine appeals concluded before the promulgation of the Constitution

Menginya Salim Murgani v Kenya Revenue Authority
Supreme Court of Kenya
Civil Application No.4 of 2014
P.K. Tunoi, M.K. Ibrahim,J.B. Ojwang’, S.C. Wanjala & S.N. Ndungu, SCJJ.
December 19, 2014
Reported by Emma Kinya Mwobobia

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Issues:

  1. Whether the Supreme Court had jurisdiction to determine the appeal in which had not been filed before the promulgation of the Constitution of Kenya, 2010
  2. Whether the matter before the Court was of general public importance under article 163(4)(b) of the Constitution and thus merit a determination by the Supreme Court

Jurisdiction- jurisdiction of the Supreme Court – establishment of the Supreme Court by the Constitution - jurisdiction of the Supreme Court in matters where the matter was determined and concluded before the promulgation of the Constitution – where the instant matter had been concluded by the Court of Appeal which was the apex court at the time – whether the Supreme Court has jurisdiction to hear and determine the appeal – Constitution of Kenya 2010, article 163(4) Read More...

Held:

  1. It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merit or purport to exercise a judicial power over the same matter, save as provided by law.
  2. There was no appeal pending before the appellate court at the date of the promulgation of the Constitution as the subject-matter of the appeal in question had been heard and determined before the promulgation. To grant the said application would have meant the Court of Appeal quashing and setting aside its own decision and that would amount to going beyond the scope of the powers of review as conceived in legal parlance.
  3. The instant matter was not distinguishable from the Samuel Kamau Macharia & another v Kenya Commercial Bank  Ltd & 2 Others Application of 2 of 2011 (S.K Macharia case), as it was evident that the rights of the parties to the dispute had been determined in a decision of the Court of Appeal which was the apex Court prior to the promulgation of the 2010 Constitution.
  4. In respect of the interplay between natural justice and disciplinary proceedings in employment relations, especially in circumstances such as those obtaining in the instant matter in which the employer was the State’s foremost agency of financial power was eminently meritorious.
  5. In the context of the facts and the history of the instant matter, the binding effect of the S. K. Macharia case as regards the appellate Court determinations made before the promulgation date of the Constitution had not been distinguished.

Orders:
Notice of Motion disallowed. Court of Appeal decision upheld. Costs to be borne by the applicant.

CIVIL PRACTICE AND PROCEDURE Supreme Court allows withdrawal of the application by Council of Governors that sought to bar the Senate from summoning their members

Council of Governors v Senate & another
Reference No. 1 of 2014
Supreme Court of Kenya at Nairobi
Mutunga, CJ & P and Ibrahim, SCJ
December 8, 2014
Reported by Phoebe Ayaya & Kipkemoi Sang

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Brief Facts

The applicant, filed a reference seeking an advisory opinion on various issues including the question as to whether the Senate could summon a Governor to personally appear before the Senate or a Committee of the Senate to answer questions on county public financial management Subsequently, the applicant made an application for leave to amend the reference. Leave was granted but the amendment was not done. An oral application for stay of proceedings was then made, pending the judgment of the High Court in a matter that was canvassing a similar issue as the one before the Supreme Court. The applicant was ordered to formally apply for stay but the applicant did not. As a result of favourable orders in the High Court, the applicant then sat back and waited until the 1st interested party filed a preliminary objection, and the matter was listed for hearing before a two-judge bench. During the intended hearing of the preliminary objection, the applicant made an application orally for withdrawal of the reference. The interested parties did not object to such withdrawal, but prayed for costs.

Issues:

  1. Whether, the applicants could withdraw the matter as a consequence of an incidental order from the High Court
  2. Whether Supreme Court could make an order for costs upon withdrawal of a matter before it at any time after the Appeal had been lodged and further steps taken.

Civil Practice and Procedure -constitutional principle-prima facie jurisdiction of the Supreme Court-discretionary power of Court to make an order for costs-Whether, the Court can make an order for costs upon withdrawal of a matter before it Whether Supreme Court could make an order for costs upon withdrawal of a matter before it at any time after the Appeal had been lodged and further steps taken. -Supreme Court Act of 2011; Section 2(1)-Supreme Court Rules of 2012; Rule 3(5)

Civil Practice and Procedure – withdrawal of suit – withdrawal of suit as a matter of right – where the applicant sought to withdraw a suit filed in the Supreme Court – where the withdrawal was on the basis of allowing the suit to progress through the legal system from the High Court upwards – where the respondent claimed that the claim for withdrawal was done in bad faith – where the respondent sought costs of the suit – whether the Court could order for costs against the applicant – Supreme Court Act, section 21(1); Supreme Court Rules, Rule 3(5).

Alternative Dispute Resolutions- dispute resolution mechanisms- mediation, arbitration and traditional dispute resolution mechanisms-Constitution of Kenya article 159(2) Read More...

Supreme Court Act, 2011
Section 21(1) “In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award.”

Supreme Court Rules, 2012
Rule 3(5) “Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Held:

  1. The law allowed a party who had approached the Court to withdraw a matter if he deemed so fit to do so. Barring parties from withdrawing matters once filed in Courts of law would be contrary to the constitutional principle of alternative dispute resolution under article 159 (2) which provided that; alternative forums of dispute resolution which included mediation, arbitration and traditional dispute resolution mechanisms ought to be promoted.
  2. The Court had the discretionary power to make an order for costs as mandated under the Supreme Court Act, 2011 and Rules, 2012. Section 2(1) of the Supreme Court Act 2011, gave an option to the Supreme Court to make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award. Rule 3(5) of the Supreme Court Rules 2012, provided that nothing could otherwise affect the inherent powers of the Court to make orders or give directions as would be necessary for the end of justice or to prevent abuse of the process of the Court. A party who moved the Court to seek an order for costs had the obligation to lay firm basis by giving sufficient reasons why he had to be awarded cost.
  3. The award for cost ought to be guided by the principle that, cost followed the event; the effect was that the party, who called forth the event by instituting suit, bore the costs if the suit failed, but if a party showed legitimate occasion by successful suit, then the defendant or respondent bore the costs. The vital factor in setting the preference was a judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by the end of justice. (Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Petition No. 4 of 2012)
  4. The claim of public interest would be relevant factor in exercise of such discretion as would also be motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation  (supra Jasbir)
  5. An advocate had a duty to aid the Court reach a legitimate determination founded on sound law. Hence, he had to abreast with the law and keep pace with the various developments in the applicant’s reference before the Court and his advocate’s conduct amounted to abuse of Court process (Nicholas Kiptoo Arap Korir Salat v. The Independence Election and Boundaries commission & 7 others, Application No. 16 of 2014)

The applicant was ordered to bear the costs of the interested parties in the reference, which costs were to be agreed upon or taxed by the taxing master of the Court.


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