Weekly Newsletter 001/2019

Weekly Newsletter 001/2019



Kenya Law

Weekly Newsletter


Circumstances in which the Supreme Court can assume jurisdiction over an issue of constitutional interpretation which was not an issue at the High Court or the Court of Appeal
Geoffrey M Asanyo & 3 others v Attorney General
Petition No 21 of 2015
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, N S Njoki & I Lenaola,  SCJJ
November 20, 2018
Reported by Beryl A Ikamari
Download the Decision
Jurisdiction -jurisdiction of the Supreme Court-the Supreme Court's jurisdiction to determine questions of constitutional interpretation and application-where an issue arising at the Supreme Court was not an issue at the High Court or the Court of Appeal-whether the Supreme Court would assume jurisdiction over such an issue, as a departure from the principle that the subject matter of an appeal at the Supreme Court had to have been the subject of litigation at the High Court and it had to have risen through the judicial hierarchy on appeal-Constitution of Kenya 2010, article 163(4)(a).
Civil Practice and Procedure-judgments-validity of a judgment-validity of a judgment where one judge in a bench of judges fails to pen the judgment-where a Court of Appeal judgment was issued by only two judges out of a bench of three judges who sat to hear and determine the matter and one judge declined to pen the judgment on grounds that the parties had entered into a consent-whether such a judgment was valid-Court of Appeal Rules 2010, rule 32(3).
Constitutional Law -principles governing the exercise of judicial authority-promotion of alternative dispute resolution mechanisms-where the Court of Appeal Rules 2010 did not provide for the settlement of disputes by litigants via consent-whether the Court of Appeal could adopt a consent filed by the parties in light of article 159(2)(c) that provided for promotion of alternative dispute resolution as a constitutional principle-Constitution of Kenya 2010, article 159(2)(c).
Civil Practice and Procedure-costs-award of costs at the Supreme Court-discretion to award costs-principle that costs followed the event-departure from the principle that costs would follow the event at the Supreme Court-whether the Supreme Court would consider the peculiar circumstances of a case in awarding costs-Supreme Court Act, No 7 of 2011, section 3 and Supreme Court Rules 2010, rule 3(5).
 
Brief facts:
The appellants challenged a Court of Appeal ruling which dismissed an application that sought orders for the Court of Appeal to withhold the delivery of judgment and for the consent entered by the parties in  Civil Appeal No. 260 of 2014, on September 18, 2015 to be adopted as the judgment of the Court. They also prayed for the setting aside of the judgment delivered on November 13, 2015 in Civil Appeal No. 260 of 2014. In the alternative to having the consent adopted as the judgment of the Court, they prayed for the reinstatement of the High Court judgment made on May 21, 2014.
The 1st appellant owned 80 - 90% of the shareholding in the 2nd, 3rd and 4th appellants. He was charged in an anti-corruption case for allegedly corruptly giving money to the Nairobi town clerk to induce the town clerk to facilitate payments due to the 2nd appellant. After 6 years, the charges were withdrawn by the Attorney General on the basis that there was no evidence to support the charges. At the High Court, in HCCC No 671 of 2009, the appellants sued the Attorney General seeking general and special damages for unlawful arrest and detention, as well as malicious prosecution.
The appellants were successful and they obtained monetary compensation from the Court. The Attorney General then filed an appeal at the Court of Appeal. While the appeal was pending, the parties entered into a consent wherein the respondent was to pay the appellants Kshs. 42, 800,000/=. The consent was filed in court on September 18, 2015. The Court of Appeal's judgment was delivered in November 13, 2015, despite attempts by the appellants to have the consent adopted as the judgment of the Court. An application by the appellants to have the consent adopted was dismissed via a ruling delivered on November 12, 2015. The judgment entailed decisions delivered by only two out of the three judges of appeal on the bench as one of them declined to issue a judgment on the basis that the parties had filed a consent to settle the matter.

 
Issues:
  1. When would the Supreme Court assume jurisdiction over a matter of constitutional interpretation which was not an issue at the High Court and the Court of Appeal, under article 163(4)(a) of the Constitution.
  2. When would a judgment issued by only two judges of appeal out of a bench of three judges be said to be valid and binding, under rule 32(3) of the Court of Appeal Rules 2010?
  3. Whether in light of article 159(2)(c) of the Constitution, the Court of Appeal could adopt a consent entered into by the parties to a dispute, despite the fact that the applicable rules, including the Court of Appeal Rules 2010, did not provide for consent orders.
  4. What would the Court consider when exercising discretion to award costs?
 
Held:
  1. The subject matter of an appeal at the Supreme Court filed under the provisions of article 163(4)(a) of the Constitution, had to have been the subject of litigation at the High Court and it had to have risen through the judicial hierarchy on appeal. The appeal before the Supreme Court did not stream from the subject matter before the High Court; a claim for damages for wrongful prosecution. The subject of the appeal was on the mode of delivery of the Court of Appeal judgment and not the substance of the judgment. That peculiarity called for a pragmatic approach in determining whether the Court had jurisdiction.
  2. To determine the question of jurisdiction, the Court would be guided by the principle that each case had to be evaluated on its own facts. The question as to whether the Court had jurisdiction under article 163(4)(a) of the Constitution was a broad question involving a multiplicity of factors.
  3. The appellant's plea was that the parties entered into a consent but the Court of Appeal disregarded the consent in breach of article 159(2) of the Constitution. A concise reading of the judicial principles in article 159(2) of the Constitution showed that they were non-derogable and had to be adhered to by all courts and tribunals exercising judicial power/authority. Where there was a prima facie case of derogation, it behoved the Court to intervene so as to safeguard the Constitution within its jurisdiction under article 163(4)(a).
  4. Whereas the issue before the Court was not articulated at the Court of Appeal, the inherent jurisdiction of the Supreme Court to right jurisdictional wrongs committed by the Superior Courts in executing their constitutional mandates would necessitate that the Court should assume jurisdiction and interrogate the alleged wrongs. The Supreme Court had inherent powers which it could invoke, under appropriate circumstances, to do justice.
  5. The Supreme Court should only depart from the principle that issues of constitutional interpretation had to rise through the Superior Courts to the Supreme Court in the clearest of cases and the exception to that principle should be carefully considered by the Court.
  6. The Court of Appeal noted in its judgment that the appellants had urged it to adopt the consent as an order of the Court, as it was required to promote alternative dispute resolution under the provisions of article 159(2)(c) of the Constitution. However, the Court of Appeal did not interrogate or otherwise render judgment on the issue of the applicability of article 159(2)(c) of the Constitution to the circumstances of the case. That curious development in the Court of Appeal's analysis legitimately anchored the appeal within the ambit of article 163(4)(a) of the Constitution.
  7. The issue relating to the effect of a decision by one judge in a three judge bench declining or otherwise withhold the delivery of his judgment entailed a serious factual and legal issue that required a Supreme Court determination.
  8. The issues raised were such that if the Supreme Court declined to exercise jurisdiction the appeal would be left in limbo. The importance of the issues raised meant that the case warranted the Supreme Court's consideration. The Supreme Court was obligated to consider and settle the issue of how the Court of Appeal delivered its judgment. There were exceptional circumstances in the case that warranted assumption of jurisdiction by the Supreme Court.
  9. A judgment was a determination or decision of a court, that finally determined the rights and obligations of the parties to a case, and it included any decree, order, sentence, or essential direction for the execution of the intent of the Court. It was only valid and binding when delivered in accordance with the law. For a judgment to be valid it would have to be dated, signed and delivered in open court.
  10. Rule 32(3) of the Court of Appeal Rules, 2010, provided that separate judgments could be delivered by the remaining members of the bench where one judge was unable to pen his judgment due to reasons that included delays, death, ceasing to hold office or inability to perform the functions of his office because of an infirmity of mind or body. The terms of the rule had to be met in order to show that the two judges of appeal had validly delivered a judgment on November 13, 2015.
  11. The judge who did not write his judgment did not fail to do so for reasons stated in rule 32(3) of the Court of Appeal Rules 2010. He failed to write a judgment because in his opinion a judgment should not be delivered as the Court was functus officio, after the parties filed a consent.
  12. A matter duly heard by a bench of three judges, could not have a judgment delivered by two judges without the exceptions in rule 32(3) of the Court of Appeal Rules 2010 being established. Such a practice clearly violated the Constitution, particularly article 10 on the principle of adherence to the rule of law. Such a pronouncement could not be a valid judgment of the Court and was a nullity. It could not be said that the Court spoke in unanimity. The anomaly was grave and it rendered the judgment fatally defective.
  13. The copy of the email sent by one judge, to explain why he did not pen a judgment, was not part of the judgment. It did not matter that it was read at the time the impugned judgment was read. The indication that he concurred with the orders issued by the other judges as expressed in the judgment was a misrepresentation of the views of that judge.
  14. The pronouncement made on November 13, 2015 did not amount to a Court of Appeal judgment. It had no legal basis and it infringed on rule 32(3) of the Court of Appeal Rules 2010.
  15. In dismissing the application to adopt the consent order, the Court of Appeal was concerned with the rules of the Court only and failed to consider them in light of constitutional principles embodied in article 159 of the Constitution. A rule of procedure should not be applied or interpreted in a manner that derogated from the spirit of the constitutional principles it related to.
  16. Article 159 of the Constitution was the foundation of the exercise of judicial authority as donated by the people. It outlined principles that guided any person or body that exercised judicial authority. It provided for alternative dispute resolution as a principle in article 159(2)(c).
  17. There should be no rule of procedure that precluded a court of law from allowing a withdrawal of a matter or recording a consent between parties before delivery of judgment and making the judgment moot. The rules of the Court were handmaidens of the Court in its delivery of justice. The epitome of justice between parties before a court was when the parties finally and voluntarily came to an amicable settlement of the dispute between them. The Court only came in as an impartial arbiter when the parties failed to agree amongst themselves.
  18. In considering the matter between the parties, the Court should not close the door for parties to continue negotiating in order to reach at an amicable settlement. Parties had to remain at liberty to withdraw or consent to terms of the settlement of the matter before the Court.  However, alternative dispute resolution should be free of coercion and malice and be entered into with free will.
  19. The Court of Appeal interpreted the consent narrowly and found that it could not be adopted because it did not specifically provide for the withdrawal of the matter. A holistic interpretation of the consent showed that the consent was intended to settle the matter and that the Court should not have proceeded to enter judgment in a settled matter. Courts could only resolve live disputes between parties. Where parties consented to the settlement of their dispute, in light of article 159(2)(c) of the Constitution, the Court had no right to insist on determining the matter.
  20. The Court of Appeal should have paid due regard to the principle in article 159 (2) (c) of the Constitution while interpreting its Rules. It should have adopted the consent as filed in court and thereafter if need be, it should have invoked its Rules, particularly rule 96 of the Court of Appeal Rules and marked the appeal as withdrawn.
  21. The fact that an appeal had been heard and the judgment was reserved did not mean that the parties had lost their chance to withdraw the matter. A party/litigant before the Court should not at any time feel that he was no longer in-charge of his matter even as the Court proceeded to determine such a matter.
  22. The Supreme Court had to decide on the nature of appropriate reliefs to be granted. As provided in section 3 of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2012, the Supreme Court had inherent power to make such orders or give direction as was necessary for the ends of justice or to prevent abuse of the Court.  
  23. It was a principle of law that costs followed the event. The effect was that the party that instituted the suit would bear the costs if the suit failed but where the suit was successful, the defendant or respondent would bear the costs. However, the Supreme Court had discretion to decide on how to award costs and could be guided by the peculiar circumstances of the case.
  24. None of the parties could be faulted. The manner in which the impugned judgment was issued was solely a judicial activity while the ruling declining to adopt the consent was a misdirection by the Court of Appeal. It was therefore appropriate for each party to bear his or its costs. 
Petition allowed.
Orders:-
  1. A declaration was issued to the effect that the Court of Appeal judgment dated November 13, 2015 in Nairobi Civil Appeal No. 260 of 2014 was null and void.
  2. The ruling of the Court of Appeal dated November 12, 2015 in Nairobi Civil Appeal No. 260 of 2014 was set aside.
  3. An order was issued for the matter to be remitted back to the Court of Appeal for the adoption of the consent filed by parties on September 18, 2015 on a priority basis.
  4. Each party had to bear its own costs.
Kenya Law
Case Updates Issue 001/2019
Case Summaries

JUDICIAL REVIEW Environment and Land Court has no supervisory jurisdiction to review the orders or judgment of the High Court

Manjula Dhirajlal Soni Herself and on Behalf of The Estate of Dhirajlal Ratilal Soni (Deceased) v Dukes Investments International Limited and 2 others
Environment & Land Court at Nairobi
ELC Suit No 370 of 2014
S Okong’o, J
November 12, 2018
Reported By Ian Kiptoo

Download the Decision

Civil Practice and Procedure-judgments-review vis-à-vis appeal-where an applicant sought to challenge an order/judgment of a court- where judgment was made by the High Court in a land dispute-what was the proper process to challenge the orders /judgment of a court for lack of jurisdiction- Civil Procedure Rules, order 45 rule (1)
Constitutional Law-jurisdiction-jurisdiction of the High Court-jurisdiction of the Environment and Land Court-jurisdiction of the ELC Court vis-à-vis the High Court-where an applicant sought a review of the orders/judgment of the High Court for lack of jurisdiction in an ELC court-whether the ELC Court had supervisory jurisdiction to review the orders or judgment of the High Court-Constitution of Kenya, 2010, articles 162 (2) and 165

Brief facts:
The applicant’s application was to review and set aside the orders that were made by the Trial Court on December 18, 2014 and to hear afresh its notice of motion application that was dismissed and the interested party’s application dated June 30, 2014 allowed. The Applicant contended that the Trial Judge had no jurisdiction to hear the two applications because she was not an Environment and Land Court judge and as such lacked jurisdiction to make the orders that she made which were null and void and of no legal effect.

Issues:

  1. What was the proper process to challenge the orders/judgment of a court for lack of jurisdiction?
  2. Whether the ELC Court had supervisory jurisdiction to review the orders or judgment of the High Court.Read More..

Held :

  1. The Court had no jurisdiction to set aside the orders that were made on the grounds that had been put forward by the Bank. Under Order 45 Rule (1) of the Civil Procedure Rules, a person who was aggrieved with an order or a decree from which no appeal had been preferred or from which no appeal was allowed could apply for review of the order or decree to the court which passed the decree or made the order. The rule provided that such application could be brought on discovery of new and important matter or evidence which was not within the knowledge of the applicant or could not be produced by him at the time when the decree or order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. The rule also provided that the application had to be brought without unreasonable delay.
  2. The Trial Judge was not an Environment and Land Court judge when she heard the Bank’s and interested party’s applications that gave rise to the orders sought to be set aside. Furthermore, since the Trial Judge was not an Environment and Land Court Judge, she had no jurisdiction to preside over the Environment and Land Court and to hear and determine the two (2) applications that gave rise to the instant application. That position was supported by the landmark decision in the case of Republic v Karisa Chengo & Others [2017] eKLR.
  3. When a court proceeded to exercise jurisdiction it did not have, that was not a mistake or error apparent on the face of the record but an error of judgment that went to the merit of the decision. Such error could only be corrected through an appeal process. If a judge was to be called upon to review his decision on the ground of lack of jurisdiction, that would be tantamount to calling upon the judge to sit in an appeal against his own decision. Therefore, the grounds put forward by the Bank should have formed a basis for an appeal against the decision of the Trial Court but not an application for review of the decision.
  4. A review could be granted whenever the court considered that it was necessary to correct an apparent error or omission on the part of the court. The error or omission had to be self-evident and should not require an elaborate argument to be established. It would not be a sufficient ground for review that another Judge could have taken a different view of the matter.Nor could it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law could not be ground for review.
  5. The High Court was presumed to know the law. That was why the Constitution had conferred on the High Court in article 165(3)(a) unlimited original jurisdiction in civil and criminal matters; in article 20 (3)(a) jurisdiction to develop the law and in article 20 (3) (b) the mandate to interpret the Bill of Rights.
  6. Even if the application for review was properly before the Court, it would still not have allowed it on account of inordinate delay. The application for review was brought after a lapse of over one (1) year from the date of the decision sought to be reviewed which delay had not been explained by the Bank. Assuming that the Bank’s application was not for review but a sui generis application brought under the inherent power of the court, the court could grant the reliefs sought.
  7. The Trial Judge was a judge of the High Court when she made the orders complained of. The ELC Court was established pursuant to article 162(2) (b) of the Constitution of Kenya while the High Court was established by article 165 of the Constitution. The Court had the same status as the High Court. The court had no supervisory jurisdiction over the judges of the High Court and a judge of the ELC court could not therefore nullify the proceedings or decision of a judge of the High Court and vice versa. If the Court was to accede to the Bank’s application, it would have to make a finding that the decision of the Trial Judge was a nullity. The Court had no such jurisdiction in law and even the inherent power of the Court invoked by the Bank could not clothe it with such jurisdiction. The Bank’s remedy rested in appealing against the decision of the Trial Court to the Court of Appeal.
  8. The Court could not purport to sit as a supervisor or superintendent of a concurrent Court or purport to determine by way of an appeal (by whatever other name called) a decision of such a Court. Where the Constitution exhaustively provided for the jurisdiction of a court of law, the Court had to operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation nor could Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution conferred power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law. Therefore, the Banks application also failed when considered under the inherent power of the Court.
  9. Even if it was assumed that the decision of the Trial Court made on December 18, 2014 was a nullity and as such the Court had jurisdiction to determine a fresh the Bank’s and the interested party’s applications dated June 25, 2014 and June 30, 2014 respectively, It would still have reached the same decision as the Trial Court.
  10. The Bank’s notice of motion application that sought to set aside the order of status quo that was made by consent of the parties was misconceived and was bound to fail. The Bank was not a party to the suit and did not seek to be joined in the suit before seeking the setting aside of the said order made. However much the Bank was aggrieved with the Order, it was a stranger to the proceedings and could not just come in and seek the setting aside of the order that was made by consent of the parties to the suit. As rightly found by the Trial Court, the Bank did not have the locus standi to challenge the said orders of May 5, 2014.
  11. The interested party laid a proper basis for his joinder to the suit. He established his interest in the suit property and also demonstrated that the Plaintiff had intended to put the suit property beyond his reach by selling the same to the defendants. The interested party was therefore properly joined in the suit and the instant Court would have granted his application. In the circumstances, it was not necessary to disturb the orders that were granted by the Trial Court on December 18, 2014.

Application dismissed with no order as to costs

CRIMINAL LAW Whether life imprisonment is a mandatory sentence as opposed to maximum sentence for the offence of incest under section 20(1) of the Sexual Offences Act, where the complainant was below 18 years of age.

P M M v Republic
Criminal Appeal No 24 of 2017
High Court at Naivasha
R Mwongo, J
November 6, 2018
Reported by Beryl A Ikamari

Download the Decision

Criminal Law-sexual offences-incest-sentencing-where the complainant was below the age of 18 years-whether life imprisonment was a mandatory sentence as opposed to maximum sentence under section 20(1) of the Sexual Offences Act-Sexual Offences Act, No 3 of 2006, section 20(1).
Statutes- interpretation of statutes-interpretation of section 20(1) of the Sexual Offences Act-interpretation of the phrase 'shall be liable to imprisonment for life'-whether section 20(1) of the Sexual Offences Act required the imposition of a mandatory sentence of life imprisonment for the offence of incest where the complainant was under the age of 18 years-Sexual Offences Act, No 3 of 2006, section 20(1).
Criminal Law-sexual offences-incest-age of the complainant-where the complainant was alleged to be 13 years old and documentary evidence was not tendered-whether the age of the complainant was capable of being proved through the mother's oral testimony in the absence of documentary evidence such as a birth certificate.

Brief Facts:
The appellant was found guilty of the offence of incest contrary to section 20 (1) of the Sexual Offences Act and was sentenced to life imprisonment. The appellant lodged a High Court appeal on grounds that the Trial Court failed to objectively evaluate the evidence, failed to exercise its discretion in setting the sentence as life imprisonment was the maximum sentence and not the mandatory sentence and failed to note that the complainant's age was not proved.

Issues:.

  1. Whether in a sexual offence case, the age of the complainant was capable of being proved without documentary evidence.
  2. Whether life imprisonment was a mandatory sentence for incest, where the complainant was under the age of 18 years, in section 20(1) of the Sexual Offences Act. Read More...

Relevant provisions of the law
Section 20(1) of the Sexual Offences Act, No 3 of 2006;
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

Held:

  1. Age was a critical aspect in sexual offences and it would have to be proved. The complainant testified that she was 13 years old and her mother also testified that she was 13 years old. In the proceedings, a birth certificate copy marked PMF11 appeared to have been produced and it indicated that the complainant was 13 years old. The actual document appeared not to have been produced as an exhibit as it was not in the Lower Court's file.
  2. Although documentary evidence to prove age was not tendered, the complainant and her mother testified that she was 13 years old. The evidence did not provide a reason for the Court to find that the complainant was an adult.
  3. It was the prosecution that had the burden to prove the complainant's age. A simple statement from the complainant was not sufficient to prove age but the Court could rely on other evidence other than an age assessment report or birth certificate to prove age. Evidence from the victim's parents or guardian and observation and common sense could be used to prove age.
  4. The best evidence on age was a birth certificate followed by age assessment, the mother's evidence of the complainant's age together with the combination of all other evidence available. The medical evidence adduced by the clinical officer estimated the complainant's age as 13 years. The question of age did not arise during cross-examinations.
  5. Section 20 (1) of the Sexual Offences Act provided for a sentence for incest which depended on the age of the complainant. For an adult complainant, the Court had discretion to mete out a sentence of any length not being less than 10 years. For a child complainant, the Court had discretion to impose a sentence whose the maximum duration was life imprisonment. The correct interpretation of the proviso in section 20 (1) of the Sexual Offences Act was that a person convicted of incest when the female victim was under the age of eighteen years was liable to a term of imprisonment between 10 years and life imprisonment.
  6. The Court of Appeal in M K v Republic [2015] eKLR held that the term 'shall be liable to life imprisonment,' in the proviso to section 20(1) of the Sexual Offences Act was not mandatory. An analogy was used to explain that and a distinction was made between the use of words 'shall be forfeited' which meant that forfeiture was mandatory and 'shall be liable to be forfeited' which meant that the liability was capable of being enforced and also not being enforced.
  7. It was wrong for the Trial Court to make the finding that life imprisonment was the only sentence applicable to the offence. However, the sentence imposed was within the range that was permissible.

Appeal partly allowed.
Order:-

  1. Appeal remitted back to the Trial Court with the direction that the Trial Court would exercise its discretion given the material on record including the mitigation and probation officer’s report and, if appropriate, re-sentence the appellant, or uphold the sentence originally imposed.

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