Weekly Newsletter 034/2018

Weekly Newsletter 034/2018



Kenya Law

Weekly Newsletter


Recusal of a Supreme Court Judge who is a member of the Judicial Service Commission in a case where the Judicial Service Commission is a party
Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR
Petition No. 34 of 2014
Supreme Court of Kenya
D K Maraga, CJ; P M Mwilu, DCJ; M K Ibrahim, J B Ojwang, & N Njoki,  SCJJ
July 3, 2018
Reported by Kakai Toili
Download the Decision

 

Judicial Officer - judge – recusal of a judge of the Supreme Court – application for the recusal of a judge of the Supreme Court – grounds for recusal – membership to the Judicial Service Commission – where the Judicial Service Commission was a party to a case - whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse himself or herself from a case in  which the Judicial Service Commission was  a party – Constitution of Kenya, 2010, article 163 & 171(2): Public Officers Ethics Act, section 10 (1)

Judicial Officer - judge – doctrine of the duty of a judge to sit - what was the scope of the doctrine of the duty of a judge to sit

Judicial Officer - judge – recusal of a judge – application for recusal of a judge – what was the purpose of an application for the recusal of a judge and whether an application for recusal of a Supreme Court Judge could be determined in a similar manner as that of a judge of other superior courts

Constitutional Law superior courts – Supreme Court – quorum of the Supreme Court – effect of lack of quorum - what was the effect of failure of the Supreme Court to determine a matter due to lack of quorum

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to fair hearing - when balancing the rights of different claimants before a court over the same right - what parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different claimants before a court over the same right - Constitution of Kenya, 2010, article 19 (3) (a) & 21 (1)

Judicial Officer judges – removal of judges from office - what was the procedure of removal of a judge from office - Constitution of Kenya, 2010, article 168
 

Brief Facts:

The Petitioner’s case had been referred to the Employment and Labour Relations Court, which upheld her claim that the 1st Respondent (JSC) had violated her fundamental rights and freedoms in removing her from office without a basis in law. The Court of Appeal reversed the decision of the Employment and Labour Relations Court leading to an appeal pending before the Court. The Petitioner prayed for judgment setting aside the Court of Appeal’s decision.
The JSC filed the instant Application seeking orders that the time-span for filing the Application be extended beyond the limit earlier prescribed, that most of the Court’s Judges, in the full seven-Judge bench of that Court recuse themselves from the hearing of the Petitioner’s Appeal and that the costs of the application be provided for.
The JSC proffered the following justifications for seeking the recusal of the Court’s Judges:

(a)  Chief Justice as Chairperson of JSC and the Deputy Chief Justice as the Court’s representative in JSC, had been involved in JSC’s deliberations which JSC took the decision to file the instant Application
(b)  Lady Justice Njoki had active pending litigation against the JSC
(c)   Justice J.B. Ojwang had 3 pending disciplinary proceedings with the JSC.
(d)  Justice Lenaola recused himself from hearing the appeal, having been a member of the JSC at the material time that the Petitioner’s case was before the JSC.

Issues:

  1. Whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse himself or herself from a case in  which the Judicial Service Commission was  a party
  2. What was the scope of the doctrine of the duty of a judge to sit?
  3. What was the purpose of an application for the recusal of a judge?
  4. What was the effect of failure of the Supreme Court to determine a matter due to lack of quorum?
  5. What parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different claimants before a court over the same right?
  6. Whether an application for recusal of a Supreme Court Judge could be determined in a similar manner as that of a judge of other superior courts.
  7. What was the procedure of removal of a judge from office?

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 22

1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
 

Held:

  1. The Court had a special constitutional mandate which could not be delegated to any other forum in the entire governance set-up. The Court was guided by certain precious values, which provided the context within which it took ultimate responsibility for matters of dispute settlement in accordance with the law. The instant matter was not one calling for the recusal of any Judge of the Court. Committed to the judges’ oaths of office, the Court would pronounce itself unbiased and ready and willing to own up to Kenya’s constitutional mandate of dispensing justice in matters falling within its jurisdiction.
  2. The concept of fundamental rights is a subject of constitutional safeguard and a core pillar upon which the Court’s mandate is founded. The rights in question were inherently and expressly attributed to citizens as the legatees of good governance and democratic process. On that account, all rational and tenable perception of the question of access to the judicial dispute-resolution process, had to be placed on balancing scale ensuring the entitlement of the citizen to justice, fair trial and constitutional safeguard. The cause of the individual who came knocking on the doors of the Judiciary was the very first consideration in determining whether or not a hearing fell due.
    Per M K Ibrahim, SCJ:
  3. The doctrine of necessity was more pronounced in the instant matter and it was amplified by the Constitution. The preamble to the Constitution was unequivocal that it was the People of Kenya who gave unto themselves the Constitution. They gave unto themselves the Constitution in its entirety. At article 163 of the Constitution, the people of Kenya established the Court, consisting of 7 justices (the Chief Justice, the Deputy Chief Justice, and five other Judges). The Constitution also established the Judicial Service Commission (JSC), with its membership composition clearly stipulated under article 171 (2) of the Constitution. A scrutiny of that membership clearly showed that at any given time 2 members of the Court had to be JSC Commissioners.
  4. Among the Court’s Judges, the Court would or could have former JSC Commissioners. It could not therefore be stated in general terms that any Judge of the Court who sat in the JSC would, as a matter of cause, not adjudicate in a matter where the JSC was a party. Such a pronouncement would be a total mockery of the sovereign will of the people of Kenya who established the two institutions in the Constitution and willed that they carried out their various functions simultaneously.
  5. The doctrine of the duty of a judge to sit, though not profound in Kenya’s jurisdiction, every judge has a duty to sit in a matter which he duly should sit. Recusal should not be used to cripple a judge from sitting to hear a matter. That duty to sit was buttressed by the fact that every judge took an oath of office: to serve impartially and to protect, administer and defend the Constitution. The doctrine recognized that having taken the oath of office, a judge was capable of rising above any prejudices, save for those rare cases when he had to recuse himself. The doctrine also safeguarded the parties’ right to have their cases heard and determined before a court.
  6. There was a criticism of the doctrine of the duty of a judge to sit for being subject of abuse by judges, so as to sit in matters when it was blatantly clear that they were biased and ought not to have sat. However, where judiciously invoked, the doctrine was a key component of constitutionalism. All judges of the Court, members of the JSC or former members, had a duty to sit in the matter so as to affirm constitutionalism.
  7. Judges too, as individual persons, enjoyed all the rights in the Bill of Rights. They too enjoyed the protection provided by article 22 of the Constitution to approach the High Court where they felt their Rights had been violated. A person did not waive the protection of article 22(1) when he/she became a judge. Consequently, a judge who pursued his/her constitutional rights protected by the Bill of Rights could not have that used against him/her as a ground for recusal. Membership in the JSC by a judge in the Court or any other Court was a constitutional imperative and as such it could not be used without very good and valid reasons to exclude such a member of JSC from sitting in a matter where the JSC was involved.
  8. An application for recusal should not seek to affirm the decision of the court/tribunal whose decision was subject of appeal. An application for recusal was a shield to protect the applicant’s interest so that his/her matter was heard by an impartial court. It was not a sword to be wielded by an applicant to steal a match and deny a chance to the other party. Hence by praying that the effect of the Application will be the affirmation of the Court of Appeal decision, the Applicant sought to go beyond the genuine province of a recusal motion.
  9. The fact that 3 judges recused themselves from hearing the matter in Kalpana H. Rawal, Philip Tunoi and David A. Onyancha v Judicial Service Commission and the Judiciary, (2016) eKLR did not by itself affirm the decision of the Court of Appeal on the retirement age of judges appointed before the promulgation of the Constitution. That was clear and certain from the final orders of the Court in that matter. As the matter before the Court was an interlocutory application, the recusal and inability of the five-Bench to determine the applications meant that, de facto, the Court of Appeal judgment remained in force. The Applications in the Court were not spent or determined but remained in abeyance until another Bench was empaneled. 

    Per Njoki Ndungu:

  10. Pursuant to article 25 (c) of the Constitution, the right to a fair trial was non-derogable. All persons who came to the Court were entitled to a fair hearing whether the matter instituted was criminal or civil in nature. The right to a fair trial set out in article 50 (1) and (2) of the Constitution were the same and were both non-derogable by the provisions of article 25 of the Constitution. As such, when an individual citizen petitioner rightly approached the Court, seeking to assert their constitutional rights, the Court would be hard-pressed to turn them away on the basis of claims of bias by a respondent State organ.
  11. There was a positive duty by the State to ensure that every Kenyan had the right to fair hearing which involved the right of appeal where conferred by the law or the Constitution. That obligation included the Judiciary’s own participation as a State organ. The obligation equally applied to the JSC that stemmed from article 21(1) of the Constitution. Article 19 (3) (a) of the Constitution was categorical that the rights and fundamental freedoms in the Bill of Rights belonged to each individual.
  12. In the course of enforcement of the right to fair hearing, when balancing the rights of different claimants before the Court over the same right and because of the personal nature of rights, priority had to  be given to:
    1.  The parties that were directly affected by the violation of that right
    2. Other parties to the suit that were indirectly affected, such as interested parties.
    3. The general public.
    4. The interests of the State.
    In the instant matter the Court ought to have regard to the right to fair hearing of the Petitioner first.
  13. JSC was a state organ which was defined in article 260 of the Constitution as a commission, office, agency or other body established under the Constitution. JSC was established under article 171 of the Constitution. It was also listed in Chapter 15 of the Constitution which pertained to commissions and independent offices. Under that chapter, pursuant to article 249 of the Constitution, JSC was supposed to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles and promote constitutionalism. It was unclear what prejudice JSC would suffer if the Court heard the instant matter. The Petitioner herself had not raised the issue of an impartial bench, bias or any prejudice that would arise if the bench as constituted sat on her matter. It therefore baffled the mind how JSC could claim bias in the face of an individual’s right to a fair hearing.
  14. JSC could not claim prejudice or bias when an individual citizen was seeking to exercise her constitutional right to be heard. That flew in the face of securing democratic values and principles and promoting constitutionalism. In addition, JSC had not sufficiently demonstrated the nexus between the interest and the resulting apprehension of bias. There was no nexus established between the facts of the relevant matter between the Court and the JSC and the instant matter. To find that membership of a judge in the JSC, automatically disqualified him or her on the basis of perceived bias from hearing and determining any matter relating to the JSC would be to stretch the perception of bias too far. That would inevitably mean that matters involving the JSC would, more often than not, be determined by the Court of Appeal as the final Court; an absurdity and outright contravention of the Constitution.
  15. A party was entitled to be heard by a Court before which he or she appeared even though it was perceived to be conflicted, if there was no other Court to which he or she could go. The doctrine of necessity and the duty to sit would have to apply.
  16.  There was a presumption of impartiality of a judge. They would be able to disabuse themselves of any irrelevant personal beliefs or predispositions when hearing and determining matters. The role of a judge was to ensure that cases were determined in accordance with the Constitution and the law. An application for recusal of a Supreme Court Judge could not be determined in a similar manner as that of a judge of the other superior courts due to the special consideration that had to be given to its quorum. The Court was the final bastion in the architectural design of Kenya’s Constitution that protected and defended the rights of every citizen and enforced the obligations of the State towards them. Its intervention, when rightly invoked, as in the instant case ought to be available to the citizens of Kenya.
  17. The Court had previously dealt with matters in which the JSC had been a party and no issue of conflict of interest had arisen. The fact that the JSC did so in the instant case raised an eyebrow and might even be construed as cherry–picking an adjudication fora or forum shopping which the law frowned upon. Article 168 of the Constitution concerned removal of a judge from office. That removal could be initiated by the JSC on its own motion or upon petition by any person to the JSC. If satisfied that the petition was merited, the JSC sends the petition to the President. Within 14 days after receiving the Petition, the President had to suspend the judge from office acting in accordance with the recommendation of the JSC and appoint a tribunal.
  18. Article 168(8) of the Constitution allowed a judge who was aggrieved by a decision of the tribunal appointed by the President, to appeal against the tribunal’s decision to the Court within 10 days after the tribunal made its recommendations. The Court would not have to down its tools merely because the JSC could be a party to such cause. If the Court downed its tools in an article 168 (8) petition, merely because the JSC was a party to that suit, that would be tantamount to the Court abdicating its constitutional duty. It would be equivalent to violating both the Judicial Code of Conduct which revered the oath of office taken by judges and section 10(1) of the Public Officers Ethics Act which required judges of the superior courts as public officers to carry out their duties in accordance with the law.

Application dismissed

  1. Petitioner’s Appeal to be fixed for hearing on priority basis.
  2. Costs of the Application to abide the determination of the main cause.
Kenya Law
Case Updates Issue 034/2018
Case Summaries

STATUTES Court of Appeal affirms the nullification of the election of the Homa Bay Governor

Cyprian Awiti & another v Independent Electoral and Boundaries Commission & 3 others [2018] eKLR
Election Petition Appeal No. 5 of 2018
Court of Appeal at Kisumu
P N Waki, F Sichale & J Otieno-Odek, JJA
July 19, 2018.
Reported by Kakai Toili

Download the Decision

Statutes – amendment of statutes – amendment of the Elections Act - application of amendments to the Elections Act - where the Elections Act was amended after an election but before determination of a petition challenging the election - whether an amendment to an election law after an election could be interpreted as at the time of judgment in an election dispute – Elections Act, section 83
Statutes – interpretation of statutes – interpretation of section 83 of the Elections Act – what was the meaning of the words affect the result in section 83 of the Elections Act – Elections Act, section 83
Electoral Law – elections – electoral disputes – determination of electoral disputes – tests to be applied - affect the result vis a vis effect on the result - what was the distinction between affect the result and effect on the result in an electoral dispute - Elections Act, section 83
Electoral Law- election petition - scrutiny and recount of votes – scrutiny and recount reports - what was the purpose of scrutiny and recount reports in election petitions and whether they were binding on an election court - whether it was mandatory for an election court to consider and evaluate judicial scrutiny and recount reports
Electoral Law – burden of proof – burden of proof in electoral disputes – shifting of burden of proof - what were the circumstances in which evidential burden of proof shifted in election petitions
Evidence Law – witnesses – witnesses in election petitions – party agents and presiding officers – failure to call party agents and presiding officers as witnesses – effect of failure to call party agents and presiding officers as witnesses - whether failure to call agents and presiding officers as witnesses in an election petition was fatal
Electoral Law – electoral process – qualitative and quantitative aspects of the electoral process - what were the stages in the qualitative and quantitative aspects of the electoral process
Jurisdiction – jurisdiction of the Court of Appeal – jurisdiction in election petition appeals – jurisdiction to interfere with findings of fact made by a trial court in an election petition - what were the circumstances in which the Court of Appeal could interfere with findings of fact made by a trial court in an election petition
Evidence Law – evidence – documentary evidence – duplicate originals – evidentiary status of a duplicate original - whether duplicate originals had the same evidentiary status as an original - Evidence Act, section 64, 65 and 67
Jurisdiction – jurisdiction of the High Court – jurisdiction in election petitions – jurisdiction to make a determination that an election offence had been committed - whether the High Court had the jurisdiction to make a determination that an election offence had been committed in an election petition – Elections Act, section 87A
Electoral Law – elections – election documents – Form 37A – signing of Forms 37A by Presiding Officers or Deputy Presiding Officers – failure to sign Forms 37A – effect of failure to sign Form 37A - what was the effect of failure by Presiding Officers or Deputy Presiding Officers signing Forms 37A - Elections (General) Regulations, 2012
Evidence Law – evidence – evidence tendered in a trial court – re-examination of the probative value of the evidence tendered - whether an appellate court could re-examine the probative value of the evidence tendered at a trial court
Electoral Law - election petition - scrutiny and recount of votes – parties’ counsel observations emerging from scrutiny and recount exercise – whether it was mandatory for an election court to consider observations of parties’ counsel emerging from scrutiny and recount exercise

Brief facts:
The election for the position of Governor of Homa Bay County was held on August 8, 2017and the 1st Respondent (IEBC) and the 2nd Respondents declared the 1st Appellant as the duly elected Governor for the County. Aggrieved by the declaration that the 1st Appellant was the duly elected Governor, the 3rd and 4th Respondents lodged an election petition in the Trial Court alleging various irregularities, illegalities and malpractices and violation of constitutional and electoral principles. During hearing, the Trial Court directed the Deputy Registrar of the Court to supervise access to election material and conduct scrutiny and recount of votes. The Deputy Registrar prepared two reports, one dated November 21, 2017 on access and sealing of election material and another dated January 24, 2018 on scrutiny and recount of votes, which were filed in court. Upon hearing the parties, the Trial Court nullified the election of the 1st Appellant as the Governor for Homa Bay County. Aggrieved by the Trial Court’s judgment, the Appellants lodged the instant Appeal. The 1st and 2nd Respondents filed a cross-appeal and the 3rd and 4th Respondents filed a cross-appeal on costs.

Issue:

  1. Whether an amendment to an election law after an election could be interpreted as at the time of judgment in an election dispute.
  2. What was the distinction between “affect the result” and “effect on the result” in an electoral dispute with regard to section 83 of the Elections Act?
  3. What was the purpose of scrutiny and recount reports in election petitions and whether they were binding on an Election Court.
  4. Whether it was mandatory for an election court to consider and evaluate judicial scrutiny and recount reports.
  5. What were the circumstances in which evidential burden of proof shifted in election petitions?
  6. Whether failure to call agents and presiding officers as witnesses in an election petition was fatal.
  7. What were the stages in the qualitative and quantitative aspects of the electoral process?
  8. What were the circumstances in which the Court of Appeal could interfere with findings of fact made by a trial court in an election petition?
  9. Whether duplicate originals had the same evidentiary status as an original.
  10. Whether the High Court had the jurisdiction to make a determination that an election offence had been committed in an election petition.
  11. What was the effect of failure by Presiding Officers or Deputy Presiding Officers signing Forms 37A?
  12. Whether an appellate court could re-examine the probative value of the evidence tendered at a trial court.
  13. Whether it was mandatory for an election court to consider observations of parties’ counsel emerging from scrutiny and recount exercise. Read More..

Relevant Provisions of the Law:
Elections Act
Section 80
(4) An election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if:

(a) Upon recount of the ballots cast, the winner is apparent; and
(b) That winner is found not to have committed an election offence.

Section 83
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.

Section 85A
An appeal from the High Court in an Election Petition concerning Membership of the National Assembly, Senators or the Office of the County Governor, shall lie to the Court of Appeal on matters of law only.

Section 87
(1) An election court may, at the conclusion of the hearing of a petition, in addition to any other orders, make a determination on whether an electoral malpractice of a criminal nature may have occurred.
(2) Where the election court determines that an electoral malpractice of a criminal nature may have occurred, the court shall direct that the order be transmitted to the Director of Public Prosecutions.
(3) Upon receipt of the order under subsection (2), the Director of Public Prosecutions shall — (a) direct an investigation to be carried out by such State agency as it considers appropriate; and (b) based on the outcome of the investigations, commence prosecution or close the matter.”

Elections Laws (Amendment) Act No. 34 of 2017,
Section 83
The Elections Act, 2011 is amended by deleting section 83 and substituting therefor the following section:
(1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that:

(a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
(b) the non-compliance did not substantially affect the result of the election.

(2) Pursuant to section 12 of the Interpretation and General Provisions Act, a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.”

Evidence Act
Section 108
The burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side.

Section 109
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Section 143
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact

Held:

  1. The effective date of the Election Laws (Amendment) Act (Amendment Act) was November 2, 2017, at the time the Trial Court heard and determined the Election Petition and more particularly on the date of delivery of judgment on February 20, 2018, section 83 of the Elections Act(the Act) stood as amended. The Trial Court did not interpret section 83 of the Elections Act in a conjunctive manner. The tone, intonation and case law cited by the Trial Court showed that the Court applied section 83 in a disjunctive manner and considered the two limbs of the section. To that extent, the Trial Court interpreted section 83 of the Act in a disjunctive manner.
  2. The Trial Court should not have interpreted section 83 of the Act in a conjunctive manner as per the amendments to section 83 by the Amendment Act. Election Petition disputes had to be resolved by the election law that existed on the date of the elections. The Trial Court did not err in applying section 83 of the Elections Act as it existed on the date of the Homa Bay gubernatorial elections on August 8, 2017.
  3. The Trial Court did not err in adopting a dual approach in arriving at its determination. An inquiry about the effect of electoral irregularities and other malpractices was necessary where an election court concluded that the non-compliance with the law relating to that election, did not offend the principles laid down in the Constitution or in that law. When a Trial Court made a determination that the election was substantially conducted in accordance with the principles in the Constitution and electoral law, it was incumbent upon the Court to inquire into how any proven irregularity affected the result of the election.
  4. The explicit wordings in section 83 of the Act were “affect the result of the election”. The phrase “effect on the result” and “affect the result” had different meanings, for instance, assuming that the margin between a winner of election and the runner up was 5,000 votes. Upon recount, the margin reduced by 1,000. It was clear that the results of the recount had effect on the results but did not affect the result. In determining the effect of any irregularities, a court had to confine itself to the explicit words in section 83 of the Act and determine if the irregularities affected the result. The correct test was “affect the result” and not “effect on the result.”
  5. The Trial Court in evaluating the evidence correctly laid emphasis on whether the irregularities were substantial and whether they affected or had an effect on the results in a substantial manner. By adopting the substantial approach, no error of law was committed by the Trial Court in stating that the irregularities should affect or have effect on the result in a substantial manner.
  6. The Deputy Registrar’s Scrutiny and Recount Report dated January 24, 2018 was not referred to. Scrutiny and Recount pursuant to court orders were important in three situations:
    1. Where it was the only plea in the petition.
    2. Whereupon recount of the ballots cast, the winner was apparent
    3. Where the margin of victory was narrow.
    Recounts not only assisted in the expeditious disposal of election petitions but they also enhanced transparency and public confidence in the electoral dispute adjudication.
  7. The emerging jurisprudence emphatically showed that a judicial scrutiny and recount report had to be considered and evaluated by the Trial Court. Case law revealed that whereas the judicial scrutiny and recount report was not binding on the Trial Court, it had to be considered, evaluated and weighed with all other evidence on record. The Trial Court could not ignore, overlook and fail to refer to the report. The Court had to analyze the report and either adopt its findings or discount the Registrar’s findings. Whichever way, the Trial Court had to give reasons for adopting or discounting the report.
  8. At paragraph 160 of the Trial Court’s Judgment, it was held that irregularities and/or discrepancies established by the Petitioners was corroborated by the report of the deputy registrar dated November 21, 2017. A plain reading of paragraph 160 showed that the Trial Court did not consider and evaluate the Deputy Registrar’s scrutiny and recount report dated January 24, 2018. The Trial Court neither considered, nor evaluated that report. The Court never adopted nor discounted the contents of the report.
  9. Evaluation of contents of a document could either be verbose or succinct. It could be a rehashing and reproduction of excerpts of the content or a synopsis of content. It was all a question of style. In the instant case, the Trial Court neither mentioned nor alluded to the existence of the Deputy Registrar’s Scrutiny and Recount report dated January 24, 2018. A judicial scrutiny and recount report had to be considered, evaluated and weighed with all other evidence on record. The Trial Court erred in law in failing to mention, considering and evaluating the Deputy Registrar’s scrutiny and recount report dated January 24, 2018.
  10. The Trial Court did not ignore the Deputy Registrar’s Report dated November 21, 2017, it considered and evaluated it against the entire evidence on record and arrived at a determination that the Deputy Registrar’s Report was corroborative evidence.
  11. In weighting and determining the probative value of a judicial scrutiny and recount report a Trial Court had to bear in mind that such a report was akin to direct evidence;
    1. It emanated from factual and physical observations made by a judicial officer in the presence of all parties.
    2. The Trial Court had to determine whether any irregularities identified through the scrutiny report affected the results.
    3. The Trial Court had to make a determination whether the report was a fairly accurate reflection of what the scrutiny exercise had unearthed.
    4. The Trial Court had to determine if the report raised issues of accountability and transparency of electoral forms.
    5. Any inferences and conclusions to be drawn from the findings in the scrutiny report were to be made by the Trial Court. Conjecture and extrapolation of findings was not permissible. A Trial Court could not ignore or simply gloss over a scrutiny and recount report. There had to be demonstration of convincing analysis, evaluation and findings of fact.
  12. The Court was alive to the fact there was no requirement in law on the number of witnesses to prove or disprove a fact. When a person failed to call a relevant witness to prove or disprove a fact in issue, a trial court could draw an adverse inference from the failure to call such a witness. An adverse inference ordinarily should not be drawn simply because a respondent had chosen not to call any or some witnesses. The legal burden of proof always remained with the petitioner and a court should be careful not to draw an adverse inference when a respondent who had no legal burden to prove any fact failed to call a witness or witnesses.
  13. The question of whether the Trial Court erred in holding that the Presiding Officers who conducted elections on behalf of IEBC should have been called to testify depended on whether the 3rd and 4th Respondents had laid prima facie evidence that required IEBC to explain. If prima facie evidence was laid, then the evidential burden of proof shifted to IEBC. The Trial Court held that the evidential burden had shifted, having examined the record, the evidential burden of proof had shifted to IEBC for the following reasons.
    1. The Trial Court established as a fact at paragraph 180 of its judgment that the documents put in evidence by the 3rd and 4th Respondents originated from IEBC.
    2. The Trial Court established as fact at paragraph 178 of its judgment that there were some irregularities in the documents tendered in evidence by IEBC.
    3. The Trial court noted at paragraph 176 of its judgment that there was prima facie evidence that the results declared at the polling station were different from those declared at the constituency tallying centers and at the County tallying centre.
    4. There was prima facie evidence on record that some statutory declaration forms were not signed by presiding officers and that some forms had no stamps.
  14. Based on the findings of fact as established by the Trial Court, whereas the Trial Court did not err in holding that the evidential burden of proof had shifted to IEBC, the Trial Court erred in drawing an adverse inference that failure to call agents and presiding officers was fatal. At a prima facie level, some evidence had been laid before the Trial Court that required explanation or clarification by the IEBC. It was not the law that such explanations or clarification could and had to only be given by agents or presiding officers. Other cogent, convincing and corroborative evidence to explain or clarify any irregularity could be led by the IEBC.
  15. IEBC as a respondent in election petitions had no legal burden to prove that an election was conducted substantially in compliance with constitutional principles and election law. However, just as any Respondent, if a prima facie case had been laid against the IEBC, the evidential burden shifted and failure to discharge that burden could convert the prima facie evidence into evidence proving the disputed fact. The Trial Court erred in holding that the presiding officers who conducted elections on behalf of IEBC had to have been called to testify on results in disputed polling stations. There was no legal obligation on the part of a respondent to call any witness to testify.
  16. In considering whether there was non-compliance with the law by the 1st and 2nd Respondents in the conduct of the said elections or if so, whether such nonconformity materially or fundamentally affected the results, the Trial Court was faced with qualitative and quantitative aspects of the conduct of elections. Qualitative and quantitative aspects of the electoral process have four distinct stages:
    1. The qualitative or quantitative aspects of nomination, eligibility and qualification of candidates to vie for elections. Those were pre-election nomination disputes.
    2. The qualitative or quantitative aspects of the conduct of the election on the polling day from the opening of the polling station to the close of the polling station. The quantitative aspects included voter turnout.
    3. The qualitative or quantitative aspects of post-polling activities up to the formal declaration of results. Activities at that stage included the collation, tallying, verification, transposition and transmission of results. It also included the filling and signing of statutory forms containing the results of the election at each polling station, constituency and county levels and at the national level.
    4. The qualitative or quantitative aspects post-declaration of results relating to custody and integrity of election materials until hearing of an election petition, if any. Tampering with election material could affect the quantitative and qualitative aspects of the election and vitiate the integrity of the declared results.
  17. In any election petition alleging or founded on qualitative or quantitative violation of articles 81and 86 of the Constitution, for the petition to succeed, a petitioner had to demonstrate that in any of the four qualitative or quantitative stages, there was substantial or material non-compliance with the constitutional and electoral laws governing the elections. Substantial non-compliance with constitutional and electoral principles in any of the four stages could affect the results of the election and void the declared results.
  18. In the instant case, there was no issue urged in the Petition relating to pre-election nomination disputes. The Trial Court in analyzing the evidence in relation to whether the gubernatorial election for the County of Homa Bay was conducted in accordance with the Constitution and electoral laws, considered whether the conduct of the elections on the polling day from the opening of the polling station to the close of the station was free and fair. Upon evaluating the evidence, the Trial Court established as a matter of fact and held at paragraph 97 of the judgment that the balloting process was free and fair.
  19. After finding that the conduct of the election on the polling/balloting or voting day was free and fair, the Trial Court embarked on determining whether the post-poll process of collating, tallying, transposition, signing of the statutory forms and final declaration of results was free and fair. that was one of the issues to be determined by the Trial Court. The submission by the Appellants that the judgment of the Trial Court was inconsistent had no merit. The judgment by the Trial Court was not inconsistent. The Appellants’ contestation did not take into account that there were four distinct stages in determining the qualitative aspects of the conduct of election. In its judgment, the Trial Court properly considered the qualitative aspects of the conduct of election to determine if the post-balloting process of collation, tallying, transposition and declaration of results substantially complied with articles 81 and 86 of the Constitution.
  20. Inquiry about the effect of electoral irregularities and other malpractices, became only necessary where an election court had concluded that the non-compliance with the law relating to that election did not offend the principles laid down in the Constitution or in that law. Even where a Court had concluded that the election was not conducted in accordance with the principles laid down in the Constitution and the applicable electoral laws, it was good judicial practice for the Court to still inquire into the potential effect of any irregularities that could have been noted upon an election. That helped to put the agencies charged with the responsibility of conducting elections on notice.
  21. A reading of the judgment of the Trial Court showed that the Trial Court compared and contrasted the Forms 37A tendered in evidence by the 3rd and 4th Respondents and Forms 37A put in evidence by the 1st and 2nd Respondents. All the statutory documents separately exhibited by both the Petitioners and Respondents confirmed that there was serious breach of fundamental provisions of the electoral laws and in particular, the Elections (General) Regulations, 2012, which was most operative during the electoral process which followed the voting exercise.
  22. In principle, the Court could not interfere with findings on credibility of witnesses. However, the Court could interfere with findings of fact made by the Trial Court if any of the following conditions were fulfilled:
    1. If the conclusion arrived at by the Trial Court was based on no evidence.
    2. If the conclusion arrived at by the Trial Court was not supported by established facts or evidence on record.
    3. If the conclusions were so perverse or so illegal that no reasonable tribunal would arrive at the same.
  23. Contents of documents could be proved by either primary or secondary evidence. Primary evidence meant the document itself produced for inspection of the Court. Where a document was executed in several parts, each part was primary evidence of the document. Where a document was executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart was primary evidence as against the parties executing it. Where a number of documents were all made by one uniform process, as in the case of printing, lithography or photography, each was primary evidence of the contents of the rest but where they were all copies of a common original, they were not primary evidence of the contents of the original.
  24. In the instant case, the 3rd and 4th Respondents tendered in evidence statutory Forms 37A that were alleged to be original carbon copies of the sextuplicate. The IEBC tendered statutory Forms 37A that were photocopies of the sextuplicate. IEBC also produced some original Forms 37A during scrutiny and recount exercise. However, entries in the two sets of documents were different. Entries in a copy of a document had to be the same as entries in the original. When the two differed, the copy could not be said to be a copy of the original. In case of conflict in content, the original document carried more weight, credibility and it prevailed.
  25. The Trial Court did not err in finding that the documents tendered in evidence by the 3rd and 4th Respondents were authentic and came from IEBC. Pursuant to section 64 and 65 (1) of the Evidence Act, the original statutory forms ought to have been produced in court by IEBC to establish the contents of the statutory forms used to declare results and to ascertain the accuracy and verifiability of the results at each polling station.
  26. On a comparative basis, duplicate originals had the same evidentiary status as an original. The duplicate in legal conception was an original instrument repeated. Whenever carbon copies were involved, the approach to determine whether a document was a duplicate was to examine whether the writing was created simultaneously with the original. If the reproduction was complete, there was no practical reason why all products of the single act of writing the document and affixing the signature thereto should not be regarded as of equal value. That was because the same stroke produced the written text and both signatures. Any writing created subsequent to the original were secondary evidence and were inadmissible. They could only be admitted if the original was available and could be produced.
  27. The documents tendered in evidence by the 3rd and 4th Respondents were not hearsay.
    1. There was nothing on the record to show that the Appellant objected to admissibility of those documents.
    2. The 1st and 2nd Appellants had through their submissions in the Appeal confirmed that the documents originated from them.
    3. The 1st and 2nd Appellants having accepted in the Appeal that the documents originated from them, the issue of authenticity of the documents was closed.
    4. Under section 65 (2) and (3) of the Evidence Act, the documents tendered in evidence by the 3rd and 4th Respondents were executed in several parts or in counterpart and they prima facie qualified to be primary documents.
    5. The documents were relevant and admissible pursuant to the provisions of section 6 of the Evidence Act through the doctrine of res gestae. They were also relevant vide section 11 of the Evidence Act as being facts inconsistent with or affecting probability of other facts. The same documents were also relevant pursuant to section 15 of the Evidence Act being documents prepared in the course of business of IEBC.
  28. In the instant case, the Petition had been heard and determined by the Trial Court. It would be an exercise in futility for the Court to have considered whether the Trial Court erred in law by ignoring the Preliminary Objection raised to dismiss the Petition for failure to comply with the mandatory requirements of rules 8 (4) (b) and 12 (1) (b)of the Elections (Parliamentary and County elections) Petition Rules, 2017. The Court could not make an order in vain
  29. A reading of the paragraphs 151 to 159 of the Trial Court’s Judgment showed that the specific Forms 37A in issue were identified and were contained in annexures to PW 13’s Affidavit. Paragraphs 150, 151 and 154 of the Judgment clearly specified the polling stations where irregularities in statutory forms were detected. The Trial Court referred to the various annexures in PW13’s Affidavit which were incorporated and were an integral part of the Judgment. The annexures which were incorporated in the judgment and which in detail specified the polling stations with irregularities were GO-2, GO–3, GO –4, GO–6, GO-9, GO-12, GO-13 and GO-14. The annexures were bulky and it was a question of style and the Trial Court could not be faulted for incorporating those annexures into the judgment by way of reference. The Trial Court identified the Forms 37A that had irregularities and the identified Forms 37A were part of the record.
  30. The Trial Court indicated how the identified irregularities affected the result of the election and made express findings of fact that the irregularities were qualitative in nature and they affected the credibility of the process of tallying and declaration of the results. The ground of appeal that the Trial Court did not show how the irregularities affected the result had no merit. The determination by the Trial Court was qualitative in nature. The credibility and integrity of the declared results was found wanting.
  31. The Deputy Registrar’s Report dated November 21, 2017 did not address the issue of forgery of any document, the Report did not state whether the documents perused and accessed by the parties were the documents tendered in evidence by the 3rd and 4th Respondents. DW11 never saw any original document, she never compared documents submitted by IEBC with documents tendered in evidence by the 3rd and 4th Respondents. She compared the Appellants’ documents with the 3rd and 4th respondents’ documents and she never saw Forms 37A produced by IEBC and used in the scrutiny and recount exercise. A document examiner could not give a credible opinion when there were no original documents which formed the basis of any comparison. DW11 not having seen any original document, there was no cogent evidence supporting any of her conclusions. Accordingly, the attempt by DW11 was a flop not only for want of necessary qualification but more importantly, she never saw an original document.
  32. The Deputy Registrar’s Report dated November 21, 2017 could not be a basis to claim that forgery was proved or disproved. The Deputy Registrar’s mandate did not extend to preparing a report to prove or disprove allegations of forgery of documents by any party. The Appellants’ contention that the Deputy Registrar’s Report proved that documents tendered in evidence by the 3rd and 4th Respondents were forgeries had no merit.
  33. It was not established which forms were altered, whether it was the IEBC’s forms or the 3rd and 4th Respondents’ Forms. All that the record showed were that in some forms the entries were different. In the absence of a finding of fact as to whose form was altered, the Trial Court did not err in failing to find that the 3rd and 4th Respondents and PW 13 had committed an electoral offence. In any event, pursuant to section 87A of the Act, the Trial Court had no jurisdiction to make a determination that an election offence had been committed. The Court could only make a recommendation that an electoral malpractice could have been committed and refer the matter to the Director of Public Prosecutions of further investigation.
  34. The finding of fact by the Trial Court that the documents tendered in evidence by the 3rd and 4th Respondents originated from the IEBC was supported by evidence, the testimony of DW 2 and DW5. The Trial Court did not err in arriving at the conclusion that Forms 37A tendered in evidence by the 3rd and 4th Respondents originated from the IEBC. The finding of fact by the Trial Court that there were differences in the results in Forms 37A when comparing entries in the Forms tendered in evidence by the IEBC and the 2nd Respondent and the Forms put in evidence by the 3rd and 4th Respondents was supported by evidence. A reading of DW1, DW2, DW3, DW4, DW5 and DW7’s testimonies, there was evidence on record to support the Trial Court’s finding of fact that there were differences in figures and results in Forms 37A tendered by the IEBC and the 2nd Respondent compared to entries in Forms 37A put in evidence by the 3rd and 4th Respondents.
  35. The finding of fact by the Trial Court that some Forms 37A produced by the IEBC did not have signatures of presiding officers was supported by evidence. The observations made by the 3rd and 4th Respondents’ agents on the Report on Access Orders dated November 7 and 15, 2017 revealed that 67 original Forms 37A were not signed by either the Presiding Officer or the Deputy Presiding Officer. The Deputy Registrar in her report noted that that issue was outside the scope of the scrutiny exercise and it was for the Trial Court to determine. DW 2 testified that page 84 of annexure KY had the name of the Presiding Officer but neither he nor his deputy signed, his deputy did not also put his name. At page 76 of annexure KY the Form was not signed by the Deputy Presiding Officer.
  36. The requirement for signing of forms was provided for in the Regulations, that requirement was couched in mandatory terms. The burden to successfully challenge non-existence of a signature in Form 37A and its authenticity if any, purely lay on the person alleging such omission. Regarding Deputy Returning Officers’ signature, the same was not mandatory as long as the Presiding Officer had signed. There was no law requiring both of them to sign concurrently. A deputy could sign in the absence of a Presiding Officer for good reason or both could sign if present hence no harm.
  37. In the instant case, other than the 3rd and 4th Respondents Observation Report on Access Orders, it was not manifestly clear how the failure to sign the forms would quantitatively affect the result of the election. Whereas there was evidence on record that some Forms 37A did not have signatures of presiding officers, how absence of such signatures affected the results of the election had to be demonstrated. The Trial Court did not consider that aspect and there was no specific finding how absence of some presiding officer’s signature affected the result of the election. Prima facie, a statutory form that was neither signed by the Presiding Officer nor Deputy Presiding Officer could not authenticate results of the election at the specific polling station.
  38. The finding of fact by the Trial Court that some Forms 37A produced by the IEBC did not have IEBC stamps was supported by the evidence on record. The testimony of PW13 and the 3rd and 4th Respondents’ observation report revealed contradictory evidence on the number of Forms 37A that were not stamped. That apparent contradiction enjoined the Trial Court to evaluate and determine if failure to stamp the Forms affected the result. The Trial Court erred in failure to determine the specific number of Forms 37A that were not stamped and further erred in not determining how failure to stamp Forms 37A affected the result.
  39. The finding of fact by the Trial Court that some Forms 37A produced by the IEBC were photocopies and not originals was supported by the evidence on record. The Deputy Registrar’s Report dated November 21, 2017 revealed that a total of 50 Forms 37A out of 1062 were photocopies. The photocopies were 46 from Suba North Constituency and 4 from Kasipul Constituency. That observation was in sync with the 3rd and 4th Respondents’ Observation report dated December 20, 2017. The Trial Court ought to have determined how production of photocopy forms affected the result.
  40. The finding that figures in Form 37 B and Form 37C differed from figures in Form 37A was supported by the evidence on record. The testimony of DW5 that what was in Form 37As and 37Bs was what was in Form 37C except errors in transposition. However, he observed that any rectification of the errors would still return the Appellant as the winner of the election. The Trial Court’s holding that the entry in Form 37C differed from entries in Forms 37A was supported by the evidence on record. However, there was no specific finding on how the difference affected the result of the election.
  41. The finding by the Trial Court that some Forms 37A produced by IEBC were blank was supported by the evidence on record. DW7testified as the Chief Agent for the 1st Appellant, he observed that the result Form for Migwar Primay School, Kochienge Primary School and Lwala Primary School were blank. The Respondents’ report showed that 8 original Forms 37A were blank. However, there was no finding how the blank Forms affected the result of the election.
  42. The finding by the Trial Court that some ballot boxes were broken was not corroborated by the Deputy Registrar’s Report dated November 21, 2017. In the report, there was an observation that the ballot boxes appeared intact though some had cracked lids. The Deputy Registrar’s Report revealed that there was no evidence of interference with the contents of the ballot boxes. There was no evidence on record that the results of the election were affected by the presence of unofficial seals, cracks in the lids of the ballot boxes or different colours of the lid of ballot boxes. The Deputy Registrar observed that there were a negligible number of boxes that had broken seals or seals that had not been properly affixed and were not intact. The Report showed that there were no obvious defects in all inspected ballot boxes that would lead to an inference of interference with contents. Whereas there was evidence of suspicion of interference or attempted interference with the contents of the ballot boxes, suspicion was not enough to vitiate an election.
  43. The Trial Court erred in law in holding that there were two sets of results. The law neither allowed nor recognized two sets of results. There could only be one result that could be challenged or impugned in an election petition. That was the officially declared result, the officially declared result was the result declared by the IEBC which was the only competent and lawful authority to declare results. In the instant matter, the IEBC declared only one result for the Homa Bay gubernatorial election. Any result tabulated, tallied or tendered before the Trial Court by a party other than IEBC was not the official declared result and could not be considered even remotely to be one set of election result. Electoral law did not recognize the concept of true results, what the law recognized was the declared result.
  44. The Constitution gave exclusive jurisdiction and mandate to the IEBC to hold elections for all elective positions. The role could not be transferred to other persons so that results generated by the 3rd and 4th Respondents’ campaign secretariat could not be given undue consideration given that it lacked legal sanction under the election law. The polling station was where the people cast their vote and it was where the vote was counted and the results declared at the polling station were final. The 3rd and 4th Respondents’ case was centered on alleged irregularities which occurred mostly at the polling stations and the constituencies tallying centres during the process of counting, tallying, collating, tabulating and declaring of the results. Interference with the electoral process at any stage in any untoward manner such as manipulation, rigging or tampering with statutory forms would amount to a serious illegality and compromise the integrity of the entire process.
  45. For a question to be one of law, the same had to not involve an examination of the probative value of the evidence presented by the litigants or any of them and that a Petition which required the Appellate Court to re-examine the probative value of the evidence tendered at the Trial Court, or invited the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. The Court was constrained not to disturb the findings of fact by the Trial Court on the credibility of PW 13. The Appellate Court would hardly interfere with the conclusions made by a Trial Court after weighing the credibility of the witnesses in cases where there was a conflict of primary facts between witnesses and where the credibility of the witnesses was crucial. The Court did not have jurisdiction to interfere with the Trial Court’s findings of fact. All grounds in the Memorandum of Appeal and Cross-Appeal inviting the Court to re-evaluate the evidence on record and determine credibility of witnesses had no merit as they were outside the jurisdiction of the Court.
  46. The observations and reports addressing the issues emerging from the scrutiny and recount exercise filed by parties were not evidence per se. The author had not been subjected to cross-examination and the observations were individual opinions of the author. A trial court was not bound by the report or observations made by counsel or agents who took part in the scrutiny exercise. However, their observations were factual impressions made in the course of scrutiny.
  47. Counsel or agents observations ought to be considered and weighed against all other evidence on record though such observations did not bind the Trial Court. The Trial Court was obligated to give reasons why the observation report was accepted or rejected. At best, the observation reports had a corroborative probative value. By itself, the observations by counsel or parties did not prove or disprove a fact in issue because the veracity of the observations had not been tested in cross-examination. If observations made by parties or counsel were in conflict, it was the duty of the Trial Court to make findings and conclusions of fact arising from the scrutiny exercise.
  48. In the instant case, there were good reasons for the Court not to declare the 3rd and 4th Respondents as duly elected.
    1. The scrutiny and recount exercise conducted by the Deputy Registrar did not show the 3rd and 4th Respondents as apparent winners of the election.
    2. PW 13 or any other person except the IEBC, could not provide and produce any electoral results that an election court could use to declare any person a returned candidate.
    3. Even where the criteria in the section 80 (4) of the Act were met, a winner could not be declared if the impugned election was fundamentally flawed. In the instant Appeal the Trial Court made findings of fact that there were other flaws and irregularities disclosed in the tallying process that made the declared results indeterminate as to who the winner was.
  49. Pursuant to section 87 of the Act, the jurisdiction of an election court was to determine if an electoral malpractice could have been committed. An election court had no jurisdiction to determine if an election offence had been committed. It followed that an appellate court likewise had no jurisdiction to determine and make a finding or declaration that an election offence had been committed.
  50. The instant matter had not gone to full hearing on the merits. No two cases were similar and there was no one straight jacket figure of costs to be awarded in gubernatorial elections or any elections. Each case was to be looked at individually. However, the capping of total costs at Ksh. 6,000,000/= by the Trial Court was on the excessive side. The Trial Court awarded costs against the Appellants in the sum of Ksh. 2 million, that sum compared favourably with costs awarded at the High Court in other gubernatorial election petitions. For that reason, the contention that the costs awarded against the Appellants ware excessive had no merit.

Appeal and Cross-Appeal partly allowed

  1. Appeal on costs dismissed and the cross-appeal on costs allowed.
  2. No order as to costs at the High Court and in the Appeal made against the 2nd Respondent.
  3. Costs at the High Court capped as follows:
    1. Appellants to pay costs at the High Court to the 3rd and 4th Respondents and the cost was capped at Ksh. 2 million.
    2. The IEBC to pay costs to the 3rd and 4th Respondents at the High Court and the costs capped at the sum of Ksh. 3 million only.
    3. The total costs awarded to the 3rd and 4th Respondents at the High Court reduced from Ksh. 6 million to Ksh. 5 million.
  4. Subject to the variation on order for costs, the judgment delivered on February 20, 2018 in Homa-Bay High Court Election Petition No 1 of 2017 confirmed and upheld in its entirety.
ELECTION LAW Supreme Court dismisses an application for extension of time where the application failed to give cogent reasons for the delay

Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission & 17 others [2018] eKLR
Civil Application No. 41 Of 2014
Supreme Court
D. K. Maraga, CJ & President, J. B. Ojwang, S. C. Wanjala, N. S. Njoki & I. Lenaola, SCJJ
May 8, 2018.
Reported by Felix Okiri

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Election Law - election appeals-extension of time for filing election appeal -whether the Supreme Court could extend time to file an election petition appeal out of time - whether the Applicant had laid satisfactory basis to warrant the Court to extend time to file the appeal-Supreme Court Rules, 2012, Rule 31(1).
Constitutional Law-Supreme Court-appeals from Court of Appeal to Supreme Court-certification of a Notice of Appeal raising matters of general public importance- whether the intended appeal raised any constitutional matters to warrant appeal – whether the two-Judge Bench in the instant Court should have addressed the application for extension of time, without digressing into a determination of the question whether the intended appeal had met the criteria set out in article 163 (4) (a) of the Constitution - Constitution of Kenya, 2010, article 164(4).

Brief Facts:
In compliance with the orders of the Court of Appeal, the Independent Electoral and Boundaries Commission (IEBC) published the TNA party list, in which it deleted the names of the Applicants as nominated members of the Nyeri County Assembly on November 29, 2013.
Having been aggrieved by the Court of Appeal’s decision, the Applicants (who were not parties to the proceedings at the Court of Appeal) filed an application out of time before the Supreme Court seeking extension of time to file a notice of appeal at the Court of Appeal.
The Applicants submitted that they filed the application out of time as they were not sure whether the proper forum was the Magistrate’s Court in which case they would file an election petition, or the Supreme Court, in which case they would file an appeal.

Issues:

  1. Whether the Court could grant an extension of time for the Applicants to file a notice of appeal and a petition of appeal.
  2. What were the principles to be considered in an application for extension of time?
  3. Whether the application for extension of time met the criteria set in Nicholas Kiptoo arap Korir Salat v. Independent Electoral and Boundaries Commission and 7 Others, Sup. Ct Application No. 16 of 2014 (Nick Salat Case).
  4. Whether an application for extension of time ought to be heard without digressing into a determination of the question whether the intended appeal had met the criteria set out in article 163 (4) (a) of the Constitution. Read More...

Relevant provisions of the law
Supreme Court Rules
Rule 31(1)
A person who intends to appeal to the Court shall file a notice of appeal within fourteen days from the date of Judgment or Ruling, in Form B set out in the First Schedule, with the Registrar of the Court or with the tribunal it is desired to appeal from.

Held:

  1. There were two aspects of delay that had to be addressed: the initial delay in filing the notice of appeal; and the delay in filing the application for review.
  2. Rule 31(1) of the Supreme Court Rules provided that a notice of appeal was to be filed within 14 days of the delivery of judgment. A notice of appeal was a primary document to be filed outright whether or not the subject matter under appeal was that which required leave or not. It was a jurisdictional pre-requisite.
  3. The Applicants had 14 days from the date of delivery of the judgment of the Court of Appeal to file a notice of appeal. Consequently, the Applicants did not file the notice of appeal on or before the November 22, 2013 since the Court of Appeal judgment was delivered on November 8, 2013 yet they ought to have. Instead, the Applicants waited till the February 13, 2014. That was 96 days after the delivery of the Court of Appeal judgment to move the Court seeking to extend time within which to file the notice of appeal.
  4. The Applicants had sought to explain that delay on grounds that they did not know the appropriate forum in which to seek redress: an argument which, could not excuse such inordinate delay. To allow an intending Appellant who had inordinately delayed in moving the appeal process, to come to the Court and claim that he/she did not know whether to move the Court or not, would be setting a negative precedent.
  5. The second delay was with respect to the filing of the application for review. The impugned ruling was delivered on March 18, 2014. The Applicants thereafter filed the application for review on November 20, 2014. That was approximately 235 days after the delivery of the ruling. No explanation was given for that delay. Instead, the Applicants maintained that it was only to the Court they could turn, having been aggrieved by the appellate Court’s judgment. There was no doubt that the Court, for sustaining ends of justice, had an inherent jurisdiction to grant an application for the extension of time, to enable a party to pursue its cause. However, the Court would only exercise that discretion in favour of an Applicant, where the latter presented a compelling case justifying the inordinate delay.
  6. Although those proceedings originated in the High Court as a constitutional petition, essentially, the cause was an electoral dispute, which ought to have been commenced by way of election petition before an election Court entrusted with jurisdiction. The Constitution provided for two modes of election. The first was election in the conventional sense, of universal suffrage; the second was election by way of nomination, through the party list. It followed from such a conception of the electoral process, that any contest to an election, whatever its manifestation, was to be by way of an election petition.
  7. It was not in doubt that in deleting the Applicants’ names from the nomination list, the IEBC was acting not on its own motion, but in compliance with the Court of Appeal’s orders following the earlier suit filed in the appellate Court by the Respondents. In the circumstances, the most logical course of action open to the Applicants was to appeal the decision and consequential orders of the Court of Appeal to the instant Court.
  8. The Constitution and the electoral law envisaged the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC as an integral part of the election process. Being an electoral dispute, the parties were bound by the imperative of time. There was nothing that prevented the Applicants from filing a notice of appeal against the decision of the Court of Appeal, even as they pondered their next course of action.
  9. Although the two-judge bench in the instant Court should have addressed the application for extension of time, without digressing into a determination of the question whether the intended appeal had met the criteria set out in article 163 (4) (a) of the Constitution, such action by the Court, did not excuse the inordinate delay in filing the instant application by the Applicants.

Per N.S. Ndungu, SCJ (Dissenting)

  1. The Majority had found that there was inexcusable delay in filing of the application and had consequently dismissed it. However, since it was important to take into account the legal principles propounded by the Court on extension of time in Nick Salat case. The Ruling of the two-judge bench was rendered on March 18, 2014; while the Nick Salat ruling came later, on July 4, 2014. Nick Salat case set out cogent principles on extension of time applications which might be considered to represent the current jurisprudential state of affairs. The Court had been categorical that, at the stage of application for extension of time, an Applicant only needed to demonstrate a prima facie case that raised issues of constitutional interpretation or application.
  2. Nick Salat case set out the following guiding principles on the question of extension of time.
    1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;
    2. a party who sought extension of time had the burden of laying a basis to the satisfaction of the Court;
    3. whether the Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis;
    4. where there was a reasonable cause for the delay, the delay should be explained to the satisfaction of the Court;
    5. whether there would be any prejudice suffered by the Respondents if the extension was granted;
    6. whether the application had been brought without undue delay; and
    7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
  3. It was apparent from the ruling of March 18, 2014 that after considering the question as to whether the intended appeal raised issues of constitutional interpretation and application, the two judge bench, had not considered the pertinent issue of extension of time. The question as to whether the Applicants had demonstrated cause for the delay in filing the notice of appeal, to the satisfaction of the Court, merited consideration.
  4. For an application for extension of time to have met the criteria set in Nick Salat case, one of the requirements was that the Applicant should furnish the Court with sufficient reasons for the delay. The Applicants had submitted that the reason for the delay was that the Applicants were not party to the proceedings at the Court of Appeal; and so, after the Appellate Court delivered its judgment on November 8, 2013, the Applicants waited for the National Alliance Party (TNA) to come up with a list of nominees of Member of County Assembly Representatives, for gazettement by the IEBC. When the list was finally gazetted on November 29, 2013 the Applicants realized that their names were missing, and they sought to remedy the situation. The Applicants were unclear as to the proper avenue to redress the substantial injustice they had suffered. It was not clear whether the proper forum was the Magistrate’s Court in which case the Applicants would file an election petition, or the Supreme Court, in which case they would file an appeal.
  5. The time gap between the date of delivery of judgment of the Court of Appeal (November 8, 2013), and the date of its implementation by the IEBC, which was the date of the gazettement of the nomination list (November 29, 2013) was sufficient reason for the delay. That was because the prescribed period (14 days) for filing a notice of appeal had already lapsed. Further, the lack of clarity on the part of the Applicants as to the proper forum to seek recourse for the grievances they had against the Court of Appeal decision was reason enough for the delay. That was especially because it appeared that the Applicants were indirect parties in the matter before the Court of Appeal.
  6. The prejudice likely to be occasioned was another factor that should be taken into account before an application for extension of time was allowed. In the instant matter it was evident that the Respondents, with the exception of the IEBC, were sitting Members of the County Assembly of Nyeri; and thus, if the application was allowed, no prejudice would be occasioned on them. Conversely, the Applicants would suffer prejudice if extension of time was denied.
  7. The development of law on extension of time, by the Nick Salat ruling, provided a basis for reviewing the decision of the two-judge bench, and for extending time for filing a notice of appeal. The application would have been allowed.

Application dismissed,each party was to bear own costs.

CONSTITUTIONAL LAW Applicability of legitimate expectation in taxation and imposition of license fees

Republic v Communications Authority of Kenya v Ex Parte Airtel Networks Kenya Limited [2017] eKLR
Misc. Civil Application Number 494 Of 2017
High Court
At Nairobi
G .V Odunga, J
December 18, 2017
Reported By Felix Okiri

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Constitutional law - rule of law - predictability and certainty in government dealings with the public - where the Communications Authority of Kenya (Authority) revised its license renewal fee from US$ 5.4 million to US$ 27 million - whether the Respondent by its action in demanding for certain amount of license fees created a legitimate expectation in the Applicant that a different amount of license fees would not be payable in the circumstances - what constituted legitimate expectation in taxation and imposition of license fees - Constitution of Kenya, 2010, article 210(1) and (2); Public Finance Management Act, 2012, section 77
Tax law – tax imposition - issuance of license renewal notice - procedure of issuance of license renewal notice - legality and rationality in revision of terms of a license renewal notice – claim that the Respondent’s decision to issue a notice demanding that the Applicant pays US$ 20,025,000.00 within 14 days from the date of demand violated the principle of legality and rationality- whether having varied its earlier policy, it became necessary for the Respondent to consult the Applicant with respect to the mode of the payment of the balance- Kenya Information and Communication Act, section 5A; Constitution of Kenya, 2010, article 210(1) and (2); and Public Finance Management Act, 2012, section 77
Constitutional Law - fundamental rights and freedoms - right to fair administrative action - whether the Applicant’s right to fair administrative action was violated by the Respondent’s inordinate imposition of license fees - Constitution of Kenya, 2010, article 47; Fair Administrative Actions Act, 2015, section 4(3)

Brief facts:
The Applicant had requested the Respondent for a Licence renewal in line with relevant Regulations which required an operator to apply for licence renewal two years prior to expiry.
Essar Telecom Kenya Limited wanted to exit the market due to financial challenges and approached the Applicant and Safaricom Litmited to acquire Essar’s subscribers, GSM Licenses and subscriber related contacts. The Applicant informed the Respondent of its intention to acquire a substantial part of Essar’s Mobile business. The Applicant also requested the Respondent’s approval of the transaction and indicated that as part of the transaction between itself and Essar, the Applicant would like to have the Applicant’s Spectrum Licenses.
The proposed acquisition of Essar’s business by the Applicant was approved by the Respondent subject to fulfillment of specific conditions. The Respondent also signified that the Applicant could exercise its option to renew its license for a further period of 10 years by way of acquiring the Essar Licenses and upon payment to the Authority of an upfront license fee of US$ 5,400,000/= as the fees that the Applicant would pay in order to take over the unexpired term of 8 years of the Essar License and for its 2G and 3G spectrum to be synchronized with the Essar License.
Subsequently, the Applicant received a letter from the Respondent indicating that the Frequency Spectrum Initial renewal fees was a sum of US$ 27,000,000/=. In the aforesaid letter, the Respondent acknowledged receiving a sum of US$ 6,975,000/= from the Applicant. Thus the Respondent demanded an outstanding sum of US$ 20,025,000/= from the Applicant as a condition for the renewal of the Applicant’s radio frequency spectrum and operating licenses. The Applicant contended that the Respondent’s decision to demand a sum of US$ 20.025 million from the Applicant as a condition for the renewal of the Applicant’s radio frequency spectrum and operating licenses was arrived at without giving the Applicant any reason as to why the Respondent departed from its earlier position communicated nor did the Respondent accord the Applicant a hearing prior to the making of the said decision contrary to section 4(3) of the Fair Administrative Actions Act, 2015 as read with article 47 of the Constitution.

Issues:

  1. What constituted legitimate expectation in imposition of license fees?
  2. Whether an inordinate imposition of license fees violated the Respondent’s Applicant’s right to fair administrative action. Read More..

Relevant provisions of the law
Kenya Information and Communication Act (KICA/the Act)
Section 5A
(1) The Authority shall be independent and free of control by government, political or commercial interests in the exercise of its powers and in the performance of its functions.
(2)In fulfilling its mandate, the Authority shall be guided by the national values and principles of governance in Article 10 and the values and principles of public service in Article 232(1) of the Constitution.

Constitution of Kenya, 2010 (the Constitution)
Article 34(5)
(5) Parliament shall enact legislation that provides for the establishment of a body, which shall—

(a) be independent of control by government, political interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c) set media standards and regulate and monitor compliance with those standards.

Held:

  1. The Applicant’s case was largely anchored on the principle of legitimate expectation. Legitimate expectation was based not only on ensuring that legitimate expectations by the parties were not thwarted but on a higher public interest beneficial to all including the Respondents, which was the value or the need of holding authorities to promises and practices that they had made and acted on and by so doing upholding responsible public administration. That in turn enabled people affected to plan their lives with a sense of certainty, trust, reasonableness and reasonable expectation. Legitimate expectation arose for example where a member of the public as a result of a promise or other conduct expected that he would be treated in one way and the public body wished to treat him or her in a different way. Public authorities had to be held to their practices and promises by the courts and the only exception was where a public authority had sufficient overriding interest to justify a departure from what had been previously promised.
  2. To qualify as a subject for judicial review the decision had to have consequences which affected some person or body of persons other than the decision maker, although it could affect him too. It had to affect such other person either by altering rights or obligations of that person which were enforceable by or against him in private law; or by depriving him of some benefit or advantage which either he had in the past been permitted by the decision maker to enjoy and which he could legitimately expect to be permitted to continue to enjoy.
  3. It was a requirement that for the doctrine of legitimate expectation to be successfully invoked, the expectation had to in the first place be legitimate in the sense of an expectation which would be protected by law. The law did not protect every expectation but only those which were legitimate.
  4. Legitimate expectation, however strong it could be, could not prevail against express provisions of the Constitution. If a person or a statutory body promised a certain relief or benefit to a claimant or undertook to do something in favour of a claimant but in a way that offended the Constitution, the claimant could not purport to rely on the doctrine of legitimate expectation to pursue the claim or the promise. Since the doctrine of legitimate expectation was based on considerations of fairness, even where benefit claimed was not procedural; it was not to be invoked to confer an unmerited or improper benefit.
  5. Legitimate expectation involved notions of fairness and unless the person making the representation had actual or ostensible authority to speak on behalf of the public body, there was no reason why the recipient of the representation was to be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one.
  6. The cornerstone of legitimate expectation was a promise made to a party by a public body that it will act or not act in a particular manner. For the promise to hold, the same must be made within the confines of the law. A public body could not make a promise which went against the express letter of the law.
  7. In all legitimate expectation cases, whether substantive or procedural, three practical questions arose, the first question was to what had the public authority, whether by practice or by promise, committed itself; the second was whether the authority had acted or proposed to act unlawfully in relation to its commitment; the third was what the court was to do.
  8. A legitimate expectation arose where a person responsible for taking a decision had induced in someone a reasonable expectation that he would receive or retain a benefit of advantage. It was a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations was at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.
  9. The principle of a legitimate expectation to a hearing was not to be confined only to past advantage or benefit but was to be extended to a future promise or benefit yet to be enjoyed. It was a principle, which was not to be restricted because it had its roots in what was gradually becoming a universal but fundamental principle of law namely the rule of law with its offshoot principle of legal certainty. If the reason for the principle was for the challenged bodies or decision makers to demonstrate regularity, predictability and certainty in their dealings, that was, in turn enabled the affected parties to plan their affairs, lives and businesses with some measure of regularity, predictability, certainty and confidence. The principle had been very ably defined in public law in the last century but it was clear that it had its cousins in private law of honoring trusts and confidences. It was a principle, which had its origins in nearly every continent. Trusts and confidences had to be honored in public law and therefore the situations where the expectations were to be recognised and protected had to of necessity defy restrictions in the years ahead. The strengths and weaknesses of the expectations had to remain a central role for the public law courts to weigh and determine.
  10. By entering into a transaction to purchase Essar Telecommunications Kenya Limited (ETKL) remaining term, the Applicant was deemed to have been exercising its option to renew its existing licenses for a further ten 10 year term. The mere fact of entry into that transaction was deemed to amount to an exercise of the option without the necessity of an application to that effect. The word deemed was commonly used both in principal and subsidiary legislation to create what was referred to as legal or statutory fictionand the legislature used the word for the purpose of assuming the existence of a fact that in reality did not exist.
  11. Upon the payment of an upfront fee of US$ 5.4 million, the Commission was to vary and extend the term of Airtel’s existing licenses to the year 2024. The Applicant’s existing licenses would be similarly extended to the year 2024. Representations were made to the Applicant that upon the payment of the said US$ 5.4 million and negotiations on the conditions of the licence, the Applicant’s existing licence as synchronized with that of Essar would be renewed for the said period of ten (10) years. That however did not mean that the Respondent was waiving its policy requirement as communicated to the Applicant together with other Mobile Network Operators on August 7, 2013. What the Respondent was stating was that it would not insist on the upfront payment of the said US$ 27 Million as a condition precedent to the renewal of the Applicant’s licence as it was prepared to renew the licence upon payment by the Applicant of the said US$ 5.4 million.
  12. The Applicant was clear in its case that it was not seeking a waiver of payment of the said US$ 27 Million in the instant proceedings. It was therefore not seeking that the Court directs the Respondent to waive the said payment or any part thereof. Pursuant to article 210(1) and (2) of the Constitution as read together with the provisions of section 77 of the Public Finance Management Act, 2012, only the Treasury Cabinet Secretary could waive the set renewal license fee imposed by the Authority as an Entity of the National Government and such waiver could only be granted upon authorization by an Act of Parliament. The Court could not direct the Respondent to waive its policy with respect to the amount payable for the renewal of the licence.
  13. The negotiations on the new licence conditions was to commence once the proposed transactions took effect and the proposed transactions were to be approved after the payment of the licence fee of US$ 5.4 million by the Applicant. The employment of the phrase licence fee in reference to US$ 5.4 million as opposed to the transaction fee meant that the said US$ 5.4 million was part of the fee required in order to renew the licence and was not just for the purposes of acquisition of Essar’s Licence by the Applicant, as the Respondent would like the Court to believe.
  14. By entering into the transaction to purchase Essar’s said licence and paying the said US$ 5.4 million, the Applicant would be deemed to have exercised its option to renew its existing licence and would be entitled to renewal of its existing licences by way of taking the remaining term of 8 years on the Essar’s operating licence on terms and conditions to be agreed and the Respondent would provide a mechanism for the Applicant’s 2G and 3G spectrum to be synchronized with the Essar’s GSM Telecommunications Licences.
  15. There was no issue of the balance of US$ 20,025,000.00 being paid before the renewal was to be done. By a letter dated October 31, 2014, the Respondent submitted to the Applicant an invoice for the sum of US$ 5.4 million which would be the fees that the Applicant would pay in order to take over the unexpired term of 8 years of the Essar License and for its 2G and 3G Spectrum to be synchronized with the Essar License. In December 2014, the Applicant paid the sum of US$6.975 million to the Respondent and by a letter dated December 15, 2014; the Respondent confirmed that all regulatory fees in respect of the transaction had been settled. The issue of payment of the balance as a condition for renewal of the Applicant’s licence did not arise and a draft licence terms and conditions, was duly prepared and submitted to the Applicant for approval. That draft did not however mention the said balance of US$ 20,025,000.00 so that it was clear that the said balance was not part of the terms and conditions for the renewal of the licence as was contended by the Respondent.
  16. Once the payment of US$ 6.975 million was made by the Applicant to the Respondent, in so far as the renewal of the Applicant’s licence was concerned, the only outstanding item was the finalization of the actual terms and conditions of the main operating license. If the said discussions were concluded as the Applicant contended, then the Respondent was bound to issue the Applicant with a licence incorporating the new terms and conditions and bearing the Applicant’s name. That must be so since the Respondent appreciated that section 25 of the Kenya Information and Communication Act mandated the Authority to grant licenses thereunder authorizing all persons, whether of a specified class or any particular person to operate telecommunication systems; or provide telecommunication services.
  17. The powers of public authorities were different from those of private persons. While a private person had an unfettered discretion, a public authority must act reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion was inappropriate to a public authority which possessed powers solely in order that it might use them for the public good. Any action to be taken by public bodies must be justified by positive law.
  18. The Court was entitled to interfere with the exercise of powers by public bodies in the following situations:
    1. Where there was an abuse of discretion;
    2. Where the decision-maker exercised discretion for an improper purpose;
    3. Where the decision-maker was in breach of the duty to act fairly;
    4. Where the decision-maker had failed to exercise statutory discretion reasonably;
    5. Where the decision-maker acted in a manner to frustrate the purpose of the Act donating the power;
    6. Where the decision-maker fettered the discretion given;
    7. Where the decision-maker failed to exercise discretion; and
    8. Where the decision-maker was irrational and unreasonable.
  19. Where the Respondent’s failure to issue the licence was intended to frustrate the purpose of the Act donating to it the power or where it fettered the discretion given to it or where it failed to exercise that discretion, the Court was empowered by section 11 of the Fair Administrative Action Act to bring it back on track. Under section 25(3) (d) and (e) of the Act, the issuance of a license was subject to the payment of license fee and on fulfillment of such conditions as could be prescribed by the Authority. However, where the Authority had represented to a person that it would not insist on its own policy, the Authority must be held to its representation.
  20. The Court’s task was not to interfere or impede executive activity or interfere with policy concerns, but to reconcile and keep in balance, in the interest of fairness, the public authorities’ need to initiate or respond to change with the legitimate interests or expectation of citizens or strangers who had relied, and had been justified in relying on a current policy or an extant promise.
  21. Whereas the Respondent had expressed a policy regarding the fees payable for renewal of licenses, nothing barred it from departing from the same and if it conducted itself in a manner suggesting that it had so departed and made a person to believe that it would not insist on that policy, for it to suddenly make an about-turn without notifying the person concerned of its intention to revert to its earlier position, would be frowned upon by the Court. The Respondent had not completely varied its licence fee, it was clear that it represented to the Applicant that it would renew its licence upon payment of the sum of US$ 5.4 million and successful negotiations of new license terms and conditions. Frequency Spectrum license was not a separate matter and was part of the transaction or negotiations between the Authority and the Applicant and the Frequency Spectrum fees was not to be paid before issuance of the license. The balance of USD 20,025,000.00 was also not to be invoiced upon expiry of the two years which would have been after January 27, 2015. That representation could not amount to a contravention of the law in order to render it illegitimate.
  22. The Court could not determine the terms and conditions to be attached to the license. It could not therefore issue a mandatory order granting the license as prayed by the Applicant. However, the Court could compel the Respondent to carry out its statutory duty of completing the conditions and terms of the licence and issuing the same to the Applicant.
  23. Having set the policy for the renewal of the initial license fees, there could not be a legitimate expectation that the Applicant would be given a hearing in respect of the amount payable. A right to be heard did not take away the Authority’s right to pursue the payment of the balance of the fee in respect of the renewal of initial license. In the instant case, however, the Respondent had assured the Applicant that upon payment of the sum of US$ 5.4 million and successful negotiations of new license terms and conditions, the Applicant’s licence would be renewed. It was very clear that where an authority represented to a person that upon fulfillment of certain conditions, the person would enjoy certain benefits, and that person on reliance on the said representations fulfilled the stated conditions, unless there was a change in circumstances that made it impossible to fulfill the promise, the authority must be held to the terms of the representation.
  24. In the instant circumstances, the Applicant ought to have been heard in relation to how the balance of the licence fee was to be paid since the Respondent had clearly represented to the Applicant that it would not insist on the payment of the licence fee upfront as a condition to the renewal of the licence. Having varied its earlier policy, it became necessary that consultation be undertaken with respect to the mode of the payment of the balance.
  25. Where there was a legitimate expectation, the expectation ought not to have been summarily disappointed. Expectation arose not because the claimant asserted any specific right to a benefit but rather because his interest in it was one that the law held protected by the requirements of procedural fairness. The law recognised that the interest could not properly be withdrawn or denied without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. The Respondent was not entitled to unilaterally demand for the full payment of the balance without recourse to the Applicant.
  26. Section 5A of the Act derived its origin from article 34(5) of the Constitution. An attempted amendment to section 5 of the Act was quashed by the Court. The quashed amendments had introduced to the Act a requirement for consultation. That had an impact on article 34(5) of the Constitution because the amendments had the effect of eroding the independence of the 1st Respondent as envisaged under article 34(5)(a) of the Constitution.
  27. The Respondent’s demand for payment of US$ 20,025,000.00 was made without consulting the Applicant on the mode and manner of payment thereof. The Respondent stated that the direction emanated from the Treasury. That interpretation was contrary to both article 34(5) of the Constitution and section 5A of KICA. The Treasury had no power to direct the Respondent on how to carry out its mandate. By passively permitting the Treasury to do so, the Respondent abdicated its mandate.
  28. In order to succeed in an application for judicial review, the Applicant had to show that the decision or act complained of was tainted with illegality, irrationality and procedural impropriety. Illegality was when the decision-making authority committed an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. An example of illegality was where a Chief Administrative Officer of a District interdicted a public servant on the direction of the District Executive Committee, when the powers to do so were vested by law in the District Service Commission.
  29. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety was when there was a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness might be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. That position was countenanced by section 7(2) (a) (i)(ii) and (iii) of the Fair Administrative Action Act, 2015 which empowered a Court or Tribunal to review an administrative action or decision, if the person who made the decision was not authorized to do so by the empowering provision.
  30. In order to ascertain whether or not the Respondents decision and the intended action was an abuse of power, the Court was guided by a fairly broad view of the major factors such as the abruptness, arbitrariness, oppressiveness and the quantumof the amount of tax imposed retrospectively and its potential to irretrievably ruin the Applicant. All those were traits of abuse of power.
  31. The Respondent’s decision to demand that the Applicant pays US$ 20,025,000.00 within 14 days from the date of demand, in light of the Respondent’s conduct and representations though attractive in terms of enhanced public revenue and perhaps for the zeal of meeting annual tax targets was not such an overriding interest to satisfy the principles of legality. The manner in which the Respondent went about demanding for the same violated the principle of legality. The renewal of the licence and the issuance thereof as well as the completion of the negotiations of the terms of the licence ought not to have been subjected to the payment of the said sum.


Application allowed
Orders

  1. An Order of Certiorari issued quashing the Respondent’s decision contained in the letters dated June 23, 2017 and July 25, 2017 demanding a sum of US$20,025,000/= from the Applicant as alleged radio frequency spectrum fees within Fourteen (14) days from the date of receipt thereof or without any further delay.
  2. An Order of Prohibition prohibiting the Respondent by itself, agents, employees or whomsoever from taking any steps, actions and or measures to enforce its decision contained in the letters dated June 23, 2017 and July 25, 2017 demanding a sum of US$ 20,025,000/= from the Applicant as a condition precedent to issuance of the Applicant’s radio frequency spectrum and operating licenses.
  3. An Order of Mandamus issued directing the Respondent to conclude the terms of the renewed Network Facility Provider Licence or such other documents confirming the renewal of the Applicant’s Network Facility Provider Licence as well as the signed Licence Terms and Conditions.
  4. Each party was to bear own costs of the proceedings.

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