Weekly Newsletter 041/2018

Weekly Newsletter 041/2018



Kenya Law

Weekly Newsletter


Magistrates’ Courts have jurisdiction to hear and determine disputes which concern allegations of violations of the rights of minorities and marginalized groups in election petitions.
Orange Democratic Movement v Yusuf Ali Mohamed & 4 others
Civil Appeal No 37 of 2018
Court of Appeal at Eldoret
E M Githinji, J Mohammed, Otieno-Odek, JJA
October 4, 2018
Reported by Beryl A Ikamari
Download the Decision

 
Jurisdiction-jurisdiction of the Magistrates’ Courts-extent of the Magistrates’ Courts jurisdiction in election petitions which included allegations on violations of fundamental rights and freedoms-disputes emanating from elections and nomination to County Assemblies-claim that the nomination of certain persons to the membership of a County Assembly entailed violations of the rights of minorities and marginalized groups-whether the appropriate forum for the hearing and determination of the dispute was the Magistrate’s Court-Constitution of Kenya 2010, articles  87(1) & 165(3); Elections Act, No 24 of 2011, sections 75(1A) & 75(4); Magistrates Courts Act, No 26 of 2015, section 8.
 
Brief facts:
By Gazette Notice dated August 28, 2017, Vol. CXLX- No. 124, the IEBC gazetted the 4th Respondent and the 5th Respondent as the duly nominated Members of Turkana County Assembly under the Party List of the Orange Democratic Movement (ODM.) ODM submitted the Party List under the provisions of section 35 of the Elections Act.
The 1st Appellant challenged the nomination of the 4th Respondent. He stated that his right to representation was prejudiced as the 4th Respondent was not a registered voter in Turkana County and the 4th Respondent's nomination violated articles 90 and 177 of the Constitution. The 2nd Appellant challenged the nomination of the 5th Respondent while stating that he was a public servant-the Assistant Chief of Nachukui sub-Location, Ng’isiger Location, Turkana North Sub-County.
The 2nd Appellant contended that the nomination of the 4th and 5th Respondents was a violation of the right to fair administrative action as they were far below in priority in their respective categories of Gender and Marginalized people and their nomination entailed discrimination against the other applicants in their respective lists.
In response, the 4th Respondent and 6th Respondent each filed a Notice of Preliminary Objection and the common contention was that the High Court lacked the jurisdiction to hear and determine the matter under section 75 (1A) of the Elections Act. The Preliminary Objection was dismissed as the High Court found that the claim was for a violation of constitutional rights over which the High Court had jurisdiction under article 165 of the Constitution. The High Court also found that the Preliminary Objection was premised on disputed facts which would be clarified at the hearing of the Petition.
The Appellants were aggrieved by the High Court's ruling and they filed an appeal at the Court of Appeal. Their main contention was that the appropriate forum for the dispute, in which the nullification of the nomination of the 4th and 5th Respondents as Members of Turkana County Assembly was sought, was an election court and not the High Court.

 
Issue:
  1. Whether the jurisdiction of Magistrates’ Courts in election petitions included jurisdiction over questions concerning alleged violations of the rights of minorities and marginalized communities.
 
Held:
  1. It was a misconception of law to state that remedies in an election petition were in personam whereas remedies in a constitutional petition were in rem. The electoral and nomination process and the declared results thereof were in rem. Similarly any election petition judgment or relief was a judgment or relief in rem. The outcome would bind the whole world and alter the legal status of the candidate in so far as it related to the election outcome and petition.
  2. The High Court was not the only forum vested with jurisdiction to determine questions related to a violation of fundamental rights and freedoms. There were other fora but the existence of those fora did not oust the jurisdiction of the High Court. Under section 8 of the Magistrates’ Courts Act, Magistrate’s Courts were vested with jurisdiction to deal with human rights claims that were guaranteed under article 25 of the Constitution.
  3. The appeal raised a jurisdictional question on whether the High Court had jurisdiction over a dispute relating to membership to a County Assembly where it involved alleged violations of minority rights or protection and enforcement of the rights of marginalized groups. Jurisdiction was everything and without it the Court would not continue to hear a dispute.
  4. Disputes relating to the jurisdiction of the Court entailed questions to be determined upfront. A question on jurisdiction would not be determined at the end of a full hearing of the merits of the case. It was a preliminary issue to be determined at the outset. Therefore, the High Court erred in determining that it could only decide on whether it had jurisdiction after hearing the parties and having the disputed facts clarified.
  5. The prayers sought at the High Court, in the petitions filed, included the nullification of the nomination and gazettement of the 4th and 5th Respondents as members of the Turkana County Assembly. That nullification was only available as a relief in an election petition. Such prayers would be granted by an election court.
  6. What was before the High Court was an election petition couched as a constitutional petition. Pleadings would not confer jurisdiction upon a court where none existed. Jurisdiction was conferred by law and not pleadings or draftsmanship.  Both the substance of the claim and relief sought would determine the jurisdictional competence of a court.
  7. Any contest to an election, whatever its manifestation, would have to be by way of an election petition. A judicial review application or constitutional petition could not resolve or initiate electoral dispute resolution after gazettement of nomination or election results.
  8. Upon gazettement, both nominated candidates as well as persons elected by way of universal adult suffrage were deemed to be elected members of either the County Assembly or Parliament. Section 75 (1A) of the Elections Act entailed a statutory bar against the handling of electoral disputes relating to Membership to the County Assembly by the High Court as part of its original jurisdiction. The said section 75(1A) provided that a question as to the validity of the election of a Member of a County Assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice. Section 75 (4) of the Elections Act provided for the High Court's appellate jurisdiction to hear appeals from the Magistrate's Court, relating to the elections based on matters of law only.
  9. The grounds raised at the High Court against the nomination of the 4th and 5th Respondents included the protection and enforcement of the rights of minorities and marginalized communities. The Magistrate's Court had jurisdiction to hear and determine a dispute on membership to a County Assembly which was based on any ground properly raised before it. There was no principle or rule of law that in an election petition properly before a magistrate’s court, the Court shall not have jurisdiction to hear and determine any ground urged in violation of the Bill of Rights.
Appeal allowed.
Orders:-
  1. The Ruling of the High Court dated April 4, 2018 and all consequential orders were set aside.
  2. All the preliminary objections filed before the High Court were upheld.
  3. It was declared that the High Court lacked jurisdiction to entertain, hear and determine Constitution Petition Nos. 2 and 3 of 2017 filed at the Lodwar High Court.
  4. Each party was to bear his//her/its costs in the appeal.
Kenya Law
Case Updates Issue 044/2018
Case Summaries

JURISDICTION Supreme Court does not have jurisdiction to determine a matter involving interpretation and application of the Constitution where the substantive matter has not been determined in the lower Court

Boniface Katana Kilaveri v Ethics & Anti – Corruption Commission and Another [2018] eKLR
Supreme Court of Kenya
Petition No 15A of 2016
P M Mwilu, DCJ & VP, M K Ibrahim, J B Ojwang, N S Ndungu, I Lenaola, SCJJ
October 9, 2018
Reported by Ian Kiptoo

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction-test to be applied to evaluate the jurisdictional standing of the Supreme Court-where a petition of appeal raised constitutional issues-where the substantive matter had not been determined in the Superior Courts of first instance-whether the Supreme Court, in a petition of appeal, had jurisdiction to determine a matter involving interpretation and application of the Constitution where the substantive matter had not been determined in the lower Court-Constitution of Kenya, 2010, article 163(4) (a)

Brief facts:
The Instant matter was a petition of appeal challenging the decision of the Court of Appeal that affirmed the High Court’s ruling that the Ethics and Anti-Corruption Commission (EACC) had locus standi to properly file suit for the recovery and protection of public land in conformity with its powers and mandate enshrined in Chapter 6 and article 252 of the Constitution of Kenya, 2010, (Constitution) as read with section 11 (1) (k) of the Ethics and Ant-Corruption Commission Act (EACCA) Number 22 of 2011.
The Appellant contended that the suit before the High Court was instituted by the 1st Respondent, EACC, against a private citizen and not a person subject to Chapter Six, specifically articles 79 and 80 of the Constitution, which provisions only applied to a state officer or a public officer. Further, that the matter raised issues of interpretation of article 79, 80, 252 and 260 of the Constitution.
On the other hand, the 1st Respondent objected to the appeal on the grounds that the matter did not fall within the purview of article 163(4) (a) of the Constitution where an appeal under the provision had to be founded on cogent issues of constitutional controversy; that leave had to have been sought and granted for the Applicant to do so under article 163(4) (b).

Issue:

  1. Whether the Supreme Court, in a petition of appeal, had jurisdiction to determine a matter involving interpretation and application of the Constitution where the substantive matter had not been determined in the lower Court.Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 163(4) (a)
“Appeals shall lie from the Court of Appeal to the Supreme Court, as of right in any case involving the interpretation or application of this Constitution”.

Held :

  1. The Court had previously and in a number of decisions affirmed its position on instances in which its appellate jurisdiction may be invoked. First, it had jurisdiction on an appeal from the Court of Appeal, as a matter of right, in a matter involving the application or interpretation of the Constitution; and secondly, on an appeal from the Court of Appeal on a matter certified as involving a matter of general public importance.
  2. The appeal had to originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation.
  3. The test to be applied to evaluate the jurisdictional standing of the Court in the instant appeal was whether it raised a question of constitutional interpretation or application and whether the same had been canvassed in superior courts, progressing through the normal appellate mechanism so as to reach the instant Court by way of appeal.
  4. The record showed that the instant appeal was from a ruling of the High Court clothing the EACC with jurisdiction to prosecute the matter. The substantive matter was yet to be heard and still lay at the Trial Court. A question involving the interpretation or application of the Constitution that was integrally linked to the main cause in a superior court of first instance was to be resolved at that forum in the first place, before an appeal could be entertained.
  5. The guiding principle was to be that the chain of courts in the constitutional set-up, running up to the Court of Appeal, had the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment would deserve further input of the Supreme Court. The substantive matter still lay at the High Court and until it had been heard and determined, and the proper appellate processes had been followed, the Court did not have jurisdiction to entertain the instant appeal.

Petition of appeal dismissed; each party to bear its own costs.

STATUTES Legal procedure applicable to the designation and cessation of national reserves

Samuel M'Amoroo M'Kaura & 9 others v Meru County Government & 3 others
Petition No 33 of 2014
Environment and Land Court at Meru
Lucy N Mbugua, J
October 3, 2018
Reported by Beryl A Ikamari

Download the Decision

Statutes-interpretation of statutory provisions-interpretation of section 18(1) of the Wildlife (Conservation and Management Act) (repealed)-legal requirements relating to the designation of a given area as a National Reserve-whether legal requirements were complied with when the Nyambene National Reserve was created vide Legal Notice No. 86 of 2000-whether the Nyambene County Council was consulted before Legal Notice No. 86 of 2000 was published-Wildlife (Conservation and Management Act) (Cap 376) (repealed), section 18(1).
Statutes-interpretation of statutory provisions-interpretation of section 7 of the Wildlife (Conservation and Management Act) (repealed)-legal requirements relating to the cessation of a National Reserve-whether a presidential roadside declaration would suffice to revoke an intent to designate a given area as a National Reserve-Wildlife (Conservation and Management Act) (Cap 376) (repealed), section 7.
Constitutional Law-fundamental rights and freedoms-community rights-claim that community rights recognized in articles 27, 40 & 43 had been violated-threshold set for pleading and demonstrating how fundamental rights and freedoms had been violated-whether the Petitioners had sufficiently pleaded for and demonstrated how their fundamental rights and freedoms had been violated-Constitution of Kenya 2010, articles 27, 40 & 43.

Brief Facts:
The dispute related to land which had been gazetted as the Nyambene National Reserve vide Legal Notice No. 86 of 2000 dated June 6, 2000 by the then Minister of State. The Minister was exercising powers under section 18(1) of the Wildlife (Conversation and Management) Act (repealed.) The Petitioners' contention was that the gazettement was done without making the requisite consultations with the then Nyambene County Council or people at the grassroots level. The Petitioners said that the County Government of Meru and the Kenya Wildlife Service had not considered the population increase in the area and the limited grazing and farming land. They said that the contemplated Nyambene National Reserve would heighten community tensions among the clans and families who would be displaced or relocated.

Issues:

  1. Whether Legal Notice No. 86 of 2000 was published in compliance with the applicable law.
  2. Whether a presidential roadside declaration was a sufficient mode of withdrawing an intent to designate an area as a national reserve where a gazette notice had already been issued for purposes of designating the area as a national reserve
  3. Whether there was an adjudication process underway at the Nyambene National Reserve.
  4. Whether community rights recognized under the Constitution had been violated in the creation of the Nyambene National Reserve. Read More...

Relevant provisions of the law.
Wildlife (Conservation and Management Act) (Cap 376) (repealed).

Section 7
Cessation of area as a National Park, National Reserve or local sanctuary;
 (1) subject to subsection (2) of this section, the Minister after consultation with the competent authority, may by order declare any National Park, National Reseverve or Local Sanctuary specified thereof, shall cease to be a National Park, National Reserve or Local Sanctuary.

Section 18(1)
With the agreement of the competent authority, the minister may, by notice in the Gazette, declare any area of land to be a National Reserve.

Held:

  1. Section 117 (1) of the Constitution of Kenya (repealed) and section 18 of the Wildlife (Conservation and Management Act (repealed) were the applicable law at the time Legal Notice No. 86 of 2000 was published. Section 117 of the Constitution of Kenya (repealed) provided for the setting apart of Trust Land vested in a county council by that county council on certain terms for purposes which could include the designation of the land as a national reserve. Section 18(1) of the Wildlife (Conservation and Management Act) (repealed) provided that with the agreement of the competent authority, the minister had power, by notice in the Gazette, to declare any area of land to be a National Reserve.
  2. No evidence was tendered to prove allegations that there were no consultations between the Minister and the Nyambene County Council as required by law before the Legal Notice No. 86 of 2000 was published. The impugned notice was clear that there were consultations between the Minister and the Nyambene County Council. In the absence of evidence to the contrary, the Court found that there were consultations between the Minister and the Nyambene County Council.
  3. Section 7 of the Wildlife (Conservation and Management Act) (repealed) provided for the procedure for cessation of an area as National Park, National Reserve or Local Sanctuary. It provided that after consultations with the competent authority, the Minister had power to declare any National Park, National Reserve or Local Sanctuary to have ceased to be a National Park, National Reserve or Local Sanctuary, respectively. A roadside declaration would not suffice.
  4. No evidence was tendered to show that Legal Notice No. 86 of 2000 had been withdrawn by the then President via a roadside declaration. Additionally, a roadside declaration would be of no effect as the process of revoking or withdrawing a legal notice was provided for in law. It would not be complied with when only a roadside declaration was used.
  5. The Nyambene National Reserve had not been degazetted and the land on which it was situate was not available for alienation.
  6. The Petitioners did not demonstrate that any adjudication process was taking place at the Nyambene National Reserve. The Petitioners ought to have brought the District Land Adjudication and Settlement Officer (DLASO), to shed light on the alleged adjudication process.
  7. The allegation that community rights had been violated was not proved. The Petitioners had not laid a basis for the allegation and they did not demonstrate how their rights under articles 27, 40 and 43 of the Constitution of Kenya 2010 had been violated. They did not meet the legal threshold set for purposes of pleading and demonstrating how constitutional rights had allegedly been infringed.

Petition dismissed.

APPEALS Supreme Court enlarges the time for filing of a supplementary record of appeal by the Lamu County Senator in an appeal challenging the nullification of his election.

Anuar Loitiptip v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR
Petition (Application) No. 18 of 2018
Supreme Court of Kenya
D K Maraga, CJ; M K Ibrahim, J B Ojwang, S C Wanjala & N Ndungu, SCJJ
October 5, 2018
Reported By Kakai Toili

Download the Decision

Appeals-appeals to the Supreme Court-documents required in filing appeals-record of appeal-supplementary record of appeal- time for filing supplementary record of appeal-enlargement of time for filing-what were the circumstances in which the Supreme Court could enlarge the time for filing a Supplementary Record of Appeal-Supreme Court Rules, rule 53 & 33(6)

Brief facts:
Following the August 8, 2017 general elections, the Applicant was declared the duly elected Senator for Lamu County. His election was unsuccessfully challenged in the High Court by the 3rd Respondent. Aggrieved by the High Court decision, the 3rd Respondent moved to the Court of Appeal on appeal. The Court of Appeal allowed the Appeal with the consequence that the Applicant’s election was nullified and a fresh election ordered. Aggrieved by that nullification, the Applicant moved to the Court and filed an Application seeking stay orders against the execution of the Court of Appeal decision pending the hearing and determination of the Appeal. He subsequently filed the Appeal. The stay Application was granted by the Court.
During the pendency of the Appeal before the Court, the Applicant filed the instant Application in which he sought several orders including; that the time for filing a Supplementary Record of Appeal be enlarged and that the Supplementary Record of Appeal dated August 14, 2018 and filed on August 15, 2018 be deemed to be properly filed and served on the Respondents’ Advocates on record.

Issue:

  1. What were the circumstances in which the Supreme Court could enlarge the time for filing a Supplementary Record of Appeal? Read More..

Held:

  1. Under rule 53 of the Supreme Court Rules (Rules), the Court was empowered to extend the time for doing anything provided for in the Rules, which Rules also included rule 33(6). The 3rd Respondent had not demonstrated how extension of the time to file the Supplementary Record of Appeal would infringe on the timely disposal of the Election Petition Appeal. In fact the Appeal had already been set up for hearing
  2. The insinuation that the application of rule 33(6) of the Rules in election matters would offend article 87(1) of the Constitution could not stand and was not convincing. In any event, the documents sought to be allowed by way of the Supplementary Record of Appeal were already in the possession of the 3rd Respondent and he was privy to them from the Court of Appeal. It was not any new evidence being introduced.
  3. The Appeal in the instant matter having been filed on July 24, 2018, the Applicant had until August 8, 2018 to file a Supplementary Record of Appeal without leave. The Applicant set out the reasons why he could not file the said documents, particularly that one of the omitted documents, the Order, had not been prepared by the 3rd Respondent. The 3rd Respondent did not respond to the Applicants explanation, hence it remained unrebutted.
  4. The 3rd Respondent did not respond to the Applicant’s Counsel inadvertent omission to include Parties’ submissions in the Court of Appeal in the Record of Appeal he filed in the Court. The 3rd Respondent also failed to outline any prejudice that would be occasioned to him if the extension was granted and the Supplementary Record of Appeal filed.

Application allowed

Orders

  1. Notice of Motion dated September 4, 2018 allowed.
  2. Time for filing a Supplementary Record of Appeal under rule 33(6) of the Rules was enlarged.
  3. Supplementary Record of Appeal dated August 14, 2018 and filed on August 15, 2018 deemed properly filed and served on the Respondent’s Advocates on record.
  4. Costs to abide the Appeal.
CIVIL PRACTICE AND PROCEDURE Procedure to be followed in execution of decrees against a County Government

Republic v Principal Magistrate's Court at Mavoko & another Ex-Parte Joseph Ole Lenku Governor Kajiado County & another [2018] eKLR
Misc.Civil Application No 6 of 2018
High Court at Kajiado
Reuben Nyakundi, J
September 19, 2018
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure-decrees-execution of decrees-where the decree was against a County Government-what was the procedure to be followed in execution of a decree against a County Government - Government Proceedings Act, section 21(1), (3) & (4)
Jurisdiction-jurisdiction of the Principal Magistrate’s Court-jurisdiction in contempt of court applications- where the application was based upon nonperformance of a decree by a County Government- whether a Principal Magistrate’s Court had jurisdiction to entertain a contempt of court application based upon nonperformance of a decree by a County Government- Government Proceedings Act, section 21(1), (3) & (4); Contempt of Court Act, section 6

Brief facts:
The Interested Party sought an order to compel the Ex parte Applicant to raise rates invoices on Plot Numbers 111, 112, 121 and 122 Noonkopir Town. The Respondent entered judgment for the Interested Party and subsequently issued a decree compelling the 2nd Exparte Applicant, Kajiado County, to raise the Rate Invoice of the said plots. An application seeking to set aside the said Judgment and Order was dismissed with costs to the Interested Party who subsequently sought to execute the Decree through an application for contempt of court dated February 29, 2016 against the then Governor of Kajiado County. In a ruling dated July 19, 2017, the Respondent allowed the Application and subsequently issued an extract order to the same effect.
On March 12, 2018 a warrant of arrest was issued against the Governor of Kajiado County Government which warrant did not impugn any charge or sentence against a specific person but against the office of the 1st Exparte Applicant. Aggrieved by the actions of the Respondent the Exparte Applicants filed the instant Application. The 1st Exparte Applicant alleged that he was neither a party to the committal proceedings in Mavoko Civil Case No. 384 of 2018 nor was he afforded an opportunity of being heard before the said warrants were issued.

Issues:

  1. What was the procedure to be followed in execution of a decree against a County Government?
  2. Whether a Principal Magistrate’s Court had jurisdiction to entertain a contempt of court application based upon nonperformance of a decree by a County Government. Read More..

Relevant Provisions of the Law
Government Proceedings Act Cap 40 Laws of Kenya
Section 21 (1)
Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.

Section 21 (3)
If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.

Section 21(4)
 Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, and no person shall be individually liable under any order for the payment by the Government or any Government department, or any officer of the Government as such, of any money or costs. 

Contempt of Court Act no. 46 of 2016
Section 6 - Jurisdiction of subordinate courts to punish for contempt of court
 Every subordinate court shall have power to punish for contempt of court on the face of the court in any case where a person —

(a) assaults, threatens, intimidates, or willfully insults a judicial officer or a witness, during a sitting or attendance in a court, or in going to or returning from the court to whom any relevant proceedings relate;
(b) willfully interrupts or obstructs the proceedings of a subordinate court; or
(c) willfully disobeys an order or direction of a subordinate court.”

Held:

  1. In a judicial review application, it was not the merit of a decision that invited scrutiny to it but rather propriety or lack thereof of the procedure that led to the decision itself. It was peculiar that upon obtaining a decree against the 2nd Exparte Applicant, the Interested Party proceeded to seek its enforcement by instituting committal proceedings against the Governor of Kajiado County for failure to comply with the Decree. That peculiarity began with the fact that the Interested Party did not follow the laid down procedure for executing a claim against Government.
  2. Even though one could not pursue execution proceedings against the Government perse, a party wishing to realize the fruits of a judgment against the Government had to first start by getting issued with a certificate of costs and certificate of order against the Government. In the instant case, the Governor who was served with court process on the matter was the previous Governor. The Interested Party had not discharged the burden that the decree issued on January 20, 2015 had been brought to the attention of the Exparte Applicant.
  3. The Interested Party did not state that he had requested for the information from the 1st Exparte Applicant in particular and the request had been rejected. Order 11 of the Civil Procedure Rules had express provisions where discovery and exchange of pleadings could have answered the question being raised in the instant Application. Coercive orders of the Court should only be used to enforce article 35 of the Constitution where a request had been made to the State or its agency and such request denied. Where the request was denied, the Court would interrogate the reasons and evaluate whether the reasons accorded with the Constitution. Where the request had been neglected then the state organ had to be given an opportunity to respond and peremptory order made should in the circumstances justify such an order
  4. The display of enforcing right to access to information by use of the Police was one described as coercive powers of the Court in unnecessary circumstances. The Court was clothed with constitutional jurisdiction to intervene in cases where an inferior Tribunal had wrongly exercised the discretion occasioning a failure of justice.
  5. After compiling the certificate of costs and certificate of order against the Government, the next step would have been for the Interested Party to seek a writ of mandamus compelling the relevant officer in the County Government to honor the Decree. Rather than follow the procedure in the execution of the Decree in his favour, the Interested Party instituted contempt of court proceedings as the first step. Curiously, the Trial Court allowed the Interested Party’s Application, that was a misapprehension of the law. The Trial Court ought not to have granted the contempt order on the basis that the Interested Party had failed to follow the laid down procedure for execution of decrees against Government. In granting the orders and issuing a warrant of arrest, the Trial Court had acted beyond its powers.
  6. By allowing a contempt of court application based upon nonperformance of a decree, the Trial Court acted beyond its jurisdiction as envisioned under section 6 of the Contempt of Court Act. Section 6 envisioned a scenario where one willfully disobeyed a decree. The Decree complained of was extracted in January 2015. The procedure in and by itself prima facie did not typify that the Exparte Applicant willfully disobeyed or acted against the Court Order. 
  7. To the extent that the Trial Court made a finding that the Exparte Applicant was in contempt of court, the evidence ought to show that there was adherence to constitutional right to a fair hearing and due process. That was a conditional precedent to trigger contempt proceedings. It was up to the Interested Party to satisfy the Court that the Decree and Order had been served upon the Exparte Applicant before exercising jurisdiction over the subject matter.
  8. It was not the absoluteness of the discretion nor the authority exercising it that mattered but whether in its exercise some person’s legal right or interests had been affected. That made the exercise of such discretion justifiable and therefore subject to judicial review. The action by the Trial Court fell under the threshold to warrant judicial review intervention. The granting of orders against the Exparte Applicant was tainted with impropriety of procedure, breach of the principles on natural justice and due process, failure to serve the requisite notice on the pendency of proceedings to which he had suffered prejudice. There was no sufficient evidence or material which could have entitled the Trial Court to commence contempt proceedings against the Exparte Applicants.

Application allowed

  1. An order of certiorari issued quashing the decision of Honourable L Kassam contained in the Warrant of Arrest in execution to arrest the Governor of Kajiado County Government dated March 12, 2018
  2. An order of prohibition directed to the Respondent was issued prohibiting further enforcement of the warrants of arrest dated March 12, 2018 and/or incarceration of the Ex-parte Applicant in civil jail arising out of the same facts and proceedings in Mavoko Civil Suit No. 386 of 2014.
  3. An order of prohibition issued directed to the Respondent, Hon L. Kassam, from in any manner howsoever establishing or continuing with any execution proceeding against the Exparte Applicants whatsoever whether the proceedings were the same or arose out of the same facts as those which led to warrant of arrest dated March 12, 2018.
  4. No order as to costs.

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The Kenya Law Team

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