Weekly Newsletter 006/2019

Weekly Newsletter 006/2019



Kenya Law

Weekly Newsletter


Accounting officers of public entities are responsible for ensuring that procurement processes comply with the law even if the accounting officers do not sit in the tender committees.
Njuguna S. Ndung’u v Ethics & Anti-Corruption Commission (EACC) & 3 others [2018] eKLR
Civil Appeal 333 of 2014
Court of Appeal at Nairobi

EM Githinji, H Okwengu & J Mohammed, JJA
December 20, 2018
Reported by Kakai Toili
Download the Decision

 

Procurement Law-public procurement-termination of tenders-duty to communicate the termination of tenders-failure to communicate the termination of tenders-where a public entity terminated a tender-whether an accounting officer in a public entity was under a duty to communicate termination of tenders to the lowest bidder and the Public Procurement and Administrative Review Board-whether accounting officers of public entities were responsible for ensuring that procurement processes complied with the law-what was the purpose of the procurement procedures contained in the Public Procurement and Disposal Act 2005(repealed)

Appeals-appeals from the Public Procurement Administrative Review Board- duty to appeal-where the Public Procurement Administrative Review Board made an adverse decision to a public entity-whether an accounting officer of a public entity had a statutory duty to appeal decisions of the Public Procurement and Administrative Review Board which were adverse to the public entity

Constitutional Law- office of the Director of Public Prosecutions -powers of the Director of Public Prosecutions-institution of criminal proceedings-discretion to institute criminal proceedings-what were the factors to consider in determining the proper exercise of the Director of Public Prosecutions in exercising the discretion in instituting prosecutions-Constitution of Kenya, 2010, article 157


Brief Facts:

The appellant was the Governor and the Chief Executive of Central Bank of Kenya (the bank). Following an advertisement calling for bids for a tender for the supply, installation and commissioning of the Integrated Security Management Systems (ISMS), six companies offered their bids for the tender. A dispute arose concerning the award of the tender, after the bank’s tender committee (tender committee) declined to award the tender to lowest bidder. The lowest bidder filed an application in the Public Procurement and Administrative Review Board (Review Board) against the decision of the tender committee not to award it the tender. The Review Board ordered that the tender be awarded to it. Notwithstanding internal and external legal advice given to the appellant questioning the Review Board’s jurisdiction and advise to the appellant to appeal against the said decision, the appellant directed the tender committee to comply with the order of the Review Board.
The 1st respondent (EACC), initiated investigations into the procurement process and subsequently the 2nd respondent (DPP) consented to the prosecution of the appellant on charges of corruption in regard to the procurement process. The appellant filed a petition in the High Court in an attempt to stop the prosecution proceedings against him seeking orders that the allegations made on the material tender, did not disclose any criminal offence among other orders. The High Court dismissed the appellant’s petition. Aggrieved by the dismissal of his petition, the appellant filed the instant appeal.

 

Issues:

  1. Whether accounting officers of public entities were responsible for ensuring that procurement processes complied with the law.
  2. Whether an accounting officer in a public entity was under a duty to communicate termination of tenders to the lowest bidder and the Public Procurement and Administrative Review Board.
  3. Whether an accounting officer of a public entity had a statutory duty to appeal decisions of the Public Procurement and Administrative Review Board which were adverse to the public entity.
  4. What were the factors to consider in determining the proper exercise of the Director of Public Prosecutions in exercising the discretion in instituting prosecutions?
  5. What was the purpose of the procurement procedures contained in the Public Procurement and Disposal Act 2005(repealed)?

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 157

(11) In exercising the powers conferred by this Article, the Director of Prosecutions shall have regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of legal process.
 

National Prosecution Policy
Paragraph 4 (B) (1)

The decision to prosecute as a concept envisages two basic components namely; that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted…


Paragraph 4 (B) (2)
The Evidential Test –
Public prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, public prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available?”


Public Procurement and Disposal Act, 2005(repealed)
Section 2

(a) to maximize economy and efficiency;
(b) to promote competition and ensure that competitors are treated fairly;
(c) to promote the integrity and fairness of those procedures;
(d) to increase transparency and accountability in those procedures;
(e) to increase public confidence in those procedures; and
(f) to facilitate the promotion of local industry and economic development.


Section 26
(1) For the purpose of ensuring that its decisions are made in a systematic and structured way, a public entity shall establish procedures to provide for the making of decisions, on behalf of the public entity, relating to procurement.
(4) A public entity shall establish a tender committee, procurement unit and such other bodies as are required under the regulations for the purpose of making such decisions on behalf of the public entity as are specified in this Act and the regulations.
(7) A procurement unit established under subsection (4) shall be staffed with procurement professionals whose qualifications have been recognised by the Authority.


Section 27
(3) Each employee of a public entity and each member of a board or committee of the public entity shall ensure, within the areas of responsibility of the employee or member, that this Act, the regulations and any directions of the Authority are complied with.


Held:

  1. The DPP in exercise of State powers of prosecution under article 157 (6) of the Constitution could institute and undertake criminal proceedings against any person. By article 157 (10), the DPP in exercise of his powers did not require the consent of any person and should not be under the direction or control of any person or authority. In addition to the provisions of the Constitution, the principles which guide the DPP in exercising his powers were stipulated in section 4 of the Office of the Director of Public Prosecutions (ODPP Act) and in the National Prosecution Policy formulated by DPP under powers conferred upon him by section 5 (1) (c) of ODPP Act.
  2. The public procurement process was an elaborate statutory process assigning several bodies independent and distinct functions. The bank had a tender committee, legal department and a procuring unit all established under the Public Procurement and Disposal Act, 2005(repealed)(the Act) which were directly responsible for the communication of the termination of the tender. Those institutions were required to make decisions on behalf of the procuring entity and had a legal duty to ensure that the provisions of the Act were complied with. In the circumstances, it would prima facie be unreasonable of the EACC to attribute the failure to inform the Review Board of the termination solely on the appellant.
  3. The Review Board, a quasi-judicial body, in its decision of January 4, 2013 in Review No. 65 of 2012 made a finding that the minutes of the tender committee purporting to show that it held a meeting on September 26, 2012 which terminated the tender had been manufactured in an attempt to oust the jurisdiction of the Review Board.It was therefore speculative to contend that had the minutes been availed to the Review Board in Review No. 51 of 2012, it could have reached a different decision on the authenticity of the minutes.
  4. The decision not to appeal was a discretionary administrative decision partly based on policy considerations by the chief executive officer of the bank who was subject to the superintendence of the board of directors. It was not contended that the board of directors had a different view. The reasons that the appellant gave for not appealing were in the best interest of the bank and rational. There was no statutory or legal duty for the appellant to appeal.
  5. It was prima facie evident that the benefit that the lowest bidder enjoyed was conferred by the public procurement process which the Review Board affirmed to have been carried out in accordance with the Act. The award of the tender to the lowest bidder was validated by two decisions of the Review Board. The High Court further gave the procurement process a stamp of legality when it issued orders of mandamus. The 1st respondent filed an appeal against the grant of orders of mandamus by the High Court and the Court of Appeal dismissed that appeal.
  6. The standard of review of the discretion of DPP to prosecute or not to prosecute was high and courts would interfere with the exercise of discretion sparingly. The charges against the appellant were largely dependent on documentary evidence and most of the facts were not in controversy. The High Court erred in law by failing to scrutinize the charges, the relevant documents including the decisions of evaluation committee, tender committee, review board and the High Court proceedings and failing to reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction.
  7. The charges had no legal or factual foundation and thus there was no realistic prospect of conviction. The intended prosecution was oppressive and violated the appellant’s constitutional rights, particularly the right to a fair administrative decision that was lawful, reasonable and procedurally fair. The 3rd and 4th respondents who did not appear at the hearing had no role in the prosecution, they were wrongly joined in the petition.
Per H Okwengu, JA (dissenting)
  1. The discretion of the DPP to initiate prosecutions had to be exercised in accordance with article 157(11) of the Constitution taking into account the principles and values of the Constitution. In determining the petition before it, the High Court was obliged to consider whether in exercising his discretion to initiate prosecutions against the appellant, the DPP properly exercised his discretion.In doing so, the High Court had to consider the circumstances presented before it and determine whether the DPP was properly guided by the Constitution or abused his discretion by being motivated by factors other than the vindication of justice; or by taking into account extraneous factors. Critical to that consideration, was the issue whether the DPP acted in violation of the appellant’s fundamental rights and freedoms.
  2. The discretion of the DPP to initiate prosecutions was a constitutional power conferred through article 157 of the Constitution. To interfere with the exercise of that power was to interfere with the Constitution. The role of the High Court as the guardian of the Constitution was not to hinder the DPP from exercising his constitutional powers, but to ensure that the DPP exercised his powers in accordance with the Constitution. That meant that the High Court had to be satisfied that the decision taken by the DPP to prosecute the appellant was to advance the key values and principles of governance espoused in the Constitution, and did not violate the fundamental rights and freedoms enshrined in the Bill of Rights.
  3. Although the Act was enacted before the Constitution, its purpose as stated under section 2 of the Act was in consonance with the Constitution. The purpose of the procedures provided under the Act were intended to achieve the same ideals that were posited by article 227 of the Constitution, which was a system of procurement that was fair, equitable, transparent, competitive and cost effective and therefore it was imperative that those procedures be followed.
  4. The appellant was the chief executive of the bank, under section 27 of the Act, although the appellant was not a member of the tender committee, as the chief executive of the bank he was the accounting officer within the meaning of section 3(1)(a) of the Act, and therefore responsible for ensuring that the provisions of the Act and all regulations relating to the procurement process were complied with in the tender process for the ISMS for the bank. The appellant could not avoid responsibility by shifting the blame to the tender committee or the tender evaluation committee.
  5. The procurement process for the ISMS raised questions of public interest and it was not appropriate to delve into those questions. The issue of whether in the circumstances obtaining the appellant as the chief executive of the bank, properly exercised his authority in ensuring that the procedures and the procurement process for the ISMS for the bank were followed, or whether the appellant exercised his authority in a manner that irregularly conferred a benefit on the lowest bidder was one that EACC had powers to address. That was the subject of the criminal charges that were proposed against the appellant. Whether there was substance in such criminal charges, and whether the same could be proved was not a matter for consideration by the High Court, but a matter to be addressed in the criminal trial. There was a sufficient legal and factual basis for the investigations.
  6. The procurement of the ISMS for the bank was a matter of public interest given the value of the contract and the fact that it involved a public entity. While the complaints could have originated from disgruntled bidders, the investigations undertaken by EACC and the decision by the DPP to prosecute the appellant were undertaken pursuant to powers underpinned by the Constitution, and not motivated by any malice.
  7. The Act imposed upon the appellant a heavy responsibility in ensuring the propriety of the procurement process. In light of the controversy that surrounded the ISMS tender process, it was only proper that the constitutional values of transparency and accountability be achieved through a public trial process that would engender public confidence in the administration of justice by addressing any issues regarding criminal culpability.
  8. As the chief executive of the bank, the appellant was in a special position. He was not in an equal position with other officers of the bank ashe was the whipping boy who had to take responsibility for the bank’s actions including actions, relating to the procurement process for the bank. In addition, the appellant was fully involved in the procurement process as he was informed and consulted at all stages, including the plea for the bank to appeal the decision of the Review Board. Besides, the appellant was the one who eventually gave his officers the go ahead to award the contract to the lowest bidder as directed by the Review Board.
  9. In moving to court to stop his prosecution even before the charges were brought, the appellant jumped the gun. The prosecution had barely started; there was nothing to stop EACC and the DPP from carrying out further investigations and prosecuting any other officer of the bank that could be culpable in breaching the law in the procurement process of the ISMS for the bank. The fact that the appellant was the first person targeted did not reveal any discrimination given his position in the bank. There was no discrimination nor was the appellant’s right to freedom contravened or threatened with contravention nor had the appellant demonstrated any violation or threatened violation of any constitutional rights by the actions taken by the EACC and the DPP.
Appeal allowed
  1. Appeal allowed with costs both in the appeal and in the High court against the 1st and 2nd respondents, jointly and severally.
  2. Judgment of the High Court dismissing the petition with costs set aside and substituted with a judgment allowing the petition as against the 1st and 2nd respondents. The petition was dismissed against the 3rd and 4th respondents.
  3. Declaratory orders sought in paragraph 19 of the petition as summarised in paragraph 1 of the judgment granted against the 1st and 2nd respondents.
  4. A judicial review order of prohibition granted prohibiting the 1st and 2nd respondents from charging and prosecuting the appellant on the charges framed.
  5. The appeal against the 3rd and 4th respondents dismissed with no order as to costs.
Kenya Law
Case Updates Issue 006/2019
Case Summaries

CIVIL PRACTICE AND PROCEDURE Failure to include the proceedings of an appellate court judge in a record of appeal is not sufficient to warrant the striking out of the record of appeal.

Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 others [2018] eKLR
Petition No. 23 of 2018
Supreme Court of Kenya
MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ
November 26, 2018
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure-appeals-record of appeal-supplementary record of appeal- time for filing supplementary record of appeal in the Supreme Court- what was the effect of filing a supplementary record of appeal in the Supreme Court without leave of the Court after 15 days of filing the record of appeal-whether an application to strike out a record of appeal by a respondent could be a ground for an application to file a fresh record of appeal by an appellant-whether a record of appeal filed at the Supreme Court could be amended-Supreme Court Rules, rule 33
Civil Practice and Procedure-appeals-record of appeal-components of a record of appeal- proceedings of an appellate court judge- failure to include the proceedings of an appellate court judge in a record of appeal-whether the failure to include the proceedings of an appellate court judge in a record of appeal was sufficient to warrant the striking out of the record of appeal - Supreme Court Rules, rule 33

Brief facts:
The 1st respondent was declared the duly elected Member of the National Assembly for Marakwet East Constituency in the August 2017 general elections. Aggrieved by the declaration, the applicant challenged the election results in the Trial Court citing several infractions, illegalities and irregularities. The Trial Court allowed the petition, annulling the results and ordered for a fresh election. Aggrieved by the decision, the 1st respondent filed an appeal to the Appellate Court seeking to set aside the Trial Court’s decision. The 2nd and 3rd respondents filed cross appeals. The Appellate Court allowed both the appeal and the cross appeal with costs. Aggrieved by the decision, the applicant filed an appeal seeking to set aside the Appellate Court’s judgment and reinstatement of the Trial Court’s judgment.
The applicant filed a record of appeal which did not contain the proceedings of one of the Appellate Court judges; he subsequently filed a supplementary record of appeal. During the pendency of the appeal the 1st respondent filed a notice of motion application seeking to strike out the record of appeal and to expunge the Supplementary Record of Appeal. That application was mentioned before the Deputy Registrar of the Court and directions were given to the effect that the respondents and the applicant file their responses within 14 days. While the 1st respondent’s application was still pending before the Court, the applicant filed his own notice of motion application seeking leave to file and serve a fresh record of appeal out of time and in the alternative, leave be granted to amend his record of appeal among other orders.

Issues:

  1. Whether the failure to include the proceedings of an appellate court judge in a record of appeal was sufficient to warrant the striking out of the record of appeal.
  2. What was the effect of filing a supplementary record of appeal in the Supreme Court without leave of the Court after 15 days of filing the record of appeal?
  3. Whether an application to strike out a record of appeal by a respondent could be a ground for an application to file a fresh record of appeal by an appellant.
  4. Whether a record of appeal filed at the Supreme Court could be amended.Read More..

Relevant Provisions of the Law
Supreme Court Rules, 2012
Rule 33
(4) For the purpose of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court-

(a) the certificate, if any, certifying that the matter is of general public importance;
(b) the memorandum of appeal;
(c) the record of proceedings; and
(d) the certified decree or order.

Held :

  1. The Court would not entertain maneuvers from counsel and/or litigants meant to steal a match over others. Litigants had to pragmatically follow the prescribed rules, procedures and practices in litigation. That onus was more paramount to counsel since as officers of the Court, a higher standard was expected of them.
  2. Under the Supreme Court Rules (Rules), rule 33(6), the appellant could file a supplementary record of appeal with the missing document without leave of the Court within 15 days of filing the record of appeal. The 15 days lapsed on September 2, 2018 without a supplementary record of appeal being filed, that meant that any subsequent filing of a supplementary record of appeal required leave of the Court. No such leave was ever sought and/or granted. The Supplementary Record of Appeal having been filed on September 13, 2018, without leave of the Court, the same was fatally defective. There was no application and/or prayer by the applicant seeking extension of time to file a supplementary record of appeal or to deem the one filed, as duly filed.
  3. The applicant’s application was cunningly filed alongside his replying affidavit to the 1st respondent’s application. Having been served with the 1st respondent’s application, the applicant was under a duty to duly respond to it. The applicant did not abide by the Deputy Registrar’s directions timeously and when he chose to, he filed alongside his replying affidavit, an application under certificate of urgency, which sought to frustrate the 1st respondent’s application. If the applicant’s application was heard and the Court was inclined to grant the prayers sought, the 1st respondent’s application would be rendered superfluous despite the fact that the 1st respondent’s application was filed first.
  4. The applicant’s application was an equitable application that sought the Court to exercise its discretion to grant an equitable remedy. As such, such an application was bound by the equitable principle that he who sought equity had to do equity. One had to come with clean hands before the Court when seeking such an equitable remedy. Unfortunately, there was no such cleanliness in the applicant’s application. Its motive reeked of mala fides and stealing a match over the 1st respondent. The first equity in time prevailed, hence, the applicant could not frustrate the 1st respondent’s application.
  5. In seeking leave to file a fresh record of appeal, the applicant sought to muddle the Court’s record. No explanation was given on what would happen to the record of appeal filed on September 17, 2018 if the Court found on merit and were inclined to grant leave to file a fresh record of appeal. In essence, the Court would be faced with two records of appeal. The fact that there was an application by the 1st respondent to strike out the applicant’s record of appeal was not a sufficient ground for grant of leave to file a fresh record of appeal.
  6. A record of appeal, filed under rule 33 of the Rules was not capable of amendment. A record of appeal contained documents emanating from the trial court(s) such as judgments, rulings, notices, proceedings and documents like the pleadings, affidavits, interlocutory applications, that were subject of proceedings in the trial court(s) which were not alive to be capable of amendment. The much one could do was to seek to expunge a document and/or file an additional document.
  7. Under rule 33(4) of the Rules, the appellate court’s notes were not a mandatory requirement in the record of appeal. Rule 33(3) dealt with a record of appeal where one was appealing from a court or tribunal exercising original jurisdiction. In the instant case, under rule 33(3)(h), the Trial Court’s notes of the hearing, was a mandatory inclusion in the record. The same was however, not a mandatory requirement under rule 33(4) where it was an appeal from a court or tribunal in its appellate jurisdiction. The lack of the proceedings of one of the Appellate Court judges from the record of appeal filed on August 17, 2018, by itself, was not sufficient to warrant the striking out of the record of appeal.

1st respondent’s application dismissed.

  1. The Supplementary Record of Appeal dated September 12, 2018 and filed on September 13, 2018 was struck out from the Record.
  2. The 1st respondent’s Notice of Motion application dated September 14, 2018 disallowed.
  3. The appellant’s Notice of Motion application dated October 4, 2018 was dismissed.
  4. Each party to bear its own costs.
JURISDICTION A party appealing to Supreme Court from the Court of Appeal was under a constitutional duty to clearly set out the particulars of the constitutional transgressions committed by the Court of Appeal.

Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR
Petition 19 of 2018
Supreme Court of Kenya at Nairobi
MK Ibrahim, JB Ojwang, SC Wanjala, N Njoki & I Lenaola, SCJJ
December 21, 2018
Reported by Kakai Toili

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction-requirements to be met before appealing to the Supreme Court-statement of the particular appellate jurisdiction of the Supreme Court-whether it was mandatory for a party appealing to the Supreme Court to out rightly state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so-whether it was sufficient for a party appealing to the Supreme Court as of right in any case involving interpretation or application of the to state that the Court of Appeal in its reasoning and conclusions took a constitutional trajectory-Constitution of Kenya, 2010, article 163(4)

Brief Facts:
The appellant and 3rd respondent were among the candidates for the position of Women Representative to the National Assembly for Marsabit County during the August 8, 2017 general elections. Upon conclusion of counting and tallying of the votes, the 2nd respondent declared the 3rd Respondent winner, hence the duly elected Woman Representative to the National Assembly for Marsabit County.
Aggrieved by the declaration, the appellant challenged the election of the 3rd respondent and sought its nullification at the High Court on the grounds of illegalities and irregularities allegedly committed in all the four constituencies of Marsabit County. The High Court dismissed the petition for lack of merit. Aggrieved by the High Court’s decision, the appellant filed an appeal at the Court of Appeal, the Court of Appeal dismissed the appeal. Aggrieved by the decision of the Court of Appeal, the appellant filed the instant appeal.

Issues:

  1. Whether it was sufficient for a party appealing to the Supreme Court, as of right in any case involving interpretation or application of the Constitution, to state that the Court of Appeal in its reasoning and conclusions took a constitutional trajectory.
  2. Whether it was mandatory for a party appealing to the Supreme Court to out rightly state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so? Read More...

Held:

  1. A jurisdictional issue was fundamental and could even be raised by the court suo moto. A court had to be moved under the correct provisions of the law. In the instant Court, that was not an idle requirement but had its rationale anchored in the specialized nature of the jurisdiction of the Court as provided in article 163(3) of the Constitution. Appeals to the Court from the Court of Appeal were therefore not as a matter of course as the Court was not established as another tier of court in the judicial hierarchy. Not every appeal from the Court of Appeal was appealable to the Court.
  2. Article 163(4) of the Constitution demarcated a two prong appellate jurisdiction of the court from decisions of the Court of Appeal. Those two jurisdictional avenues were not mutually inclusive but were independent of each other and there was need for a party that came before the Court to clearly state which one she/he invoked.
  3. Parties seeking to appeal to the Court had a duty to outrightly state the particular jurisdiction of the Court that they invoked. Jurisdiction was thus so fundamental that it should not be left to conjecture. The Court and other parties in a matter should not be left agonizing under what appellate jurisdiction a matter was filed. The Court faulted the appellant for not having outrightly disclosed under which appellate jurisdiction she moved the Court. She left that fundamental indicator far late in the day during her submissions when she mentioned that the Court had jurisdiction to hear the appeal under article 163(4)(a) of the Constitution.
  4. A matter that directly involved an interpretation and/or application of a particular provision of the Constitution constituted an appeal as of right under article 163(4)(a) of the Constitution.
  5. Where a party in an election petition invoked the Court’s jurisdiction under article 163(4)(a) of the Constitution, it was not enough for one to generally allege that the Court of Appeal erred in its decision(s) and that its reasoning and conclusions took a constitutional trajectory. The constitutional trajectory was not illusionary. It was tangible and should be discernable from a party’s pleadings. A party was under a constitutional forensic duty to clearly set out the particulars of the constitutional transgressions that in his/her opinion the Court of Appeal committed in their interpretation and/or application. Those grounds had to be pleaded with precision and the constitutional principle and/or provision alleged to have been violated clearly set out.
  6. The Court retained the constitutional discretion to filter and determine whether a matter before it satisfied the constitutional muster in article 163(4)(a) of the Constitution. The phrase appeal as of right as provided under article 163(4)(a) of the Constitution did not in any way absolve a party from fulfilling that constitutional forensic requirement.
  7. Upon perusal of the petition, there was no mention of any provision of the Constitution that was alleged to have been violated and/or misapplied or misinterpreted by the Court of Appeal. Being an appeal from the Court of Appeal, the appellant was under an obligation, with clarity and precision, to point out the errors of law in the judgment of the Court of Appeal. The appellant was supposed to satisfy the Court that the Court of Appeal erred in reaching at the decision it made. Hence, the focal point of the appellant’s grievances should be directed at specific portions of the Court of Appeal judgment with the aim of demonstrating how the Court of Appeal erred and/or misinterpreted and/or misapplied the Constitution. The Appellant had to state with precision the particular constitutional principle and/or provision violated. All the eight grounds upon which the petition was grounded fell short of that requirement.
  8. The Court was at pain to discern which constitutional issue(s) the appellant wanted the Court to settle. The appellant was generally aggrieved by the High Court decision and the fact that the Court of Appeal did not reverse that decision on her appeal. Her grievances were anchored on the factual findings by the High Court which issues could not invoke the Court’s jurisdiction under article 163(4)(a) of the Constitution. Further, none of the issues framed by the appellant in her petition or submissions was framed as a constitutional issue.
  9. The appellant had not rightfully invoked the Court’s jurisdiction under article 163(4)(a) of the Constitution. There was no issue of constitutional interpretation and/or application that beckoned the Court’s further input. The Court could not delve into determination of the other issues framed for determination since it did not have jurisdiction to admit the appeal for consideration.

Appeal dismissed with costs to the respondents.

JURISDICTION Guiding principles which the Supreme Court considers before hearing appeals brought pursuant to article 163(4)(a) of the Constitution

Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 2 others
Petition No. 29 of 2018
Supreme Court of Kenya at Nairobi
DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, SC Wanjala, SN Ndungu, I Lenaola, SCJJ
January 18, 2019
Reported by Chelimo Eunice

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court to hear appeals from the Court of Appeal- appeal involving interpretation or application of the Constitution- guiding principles before hearing appeals brought before Supreme Court pursuant to article 163(4)(a) of the Constitution- whether electoral disputes involve the application and determination of the Constitution- whether the Supreme Court would entertain the instant matter which involved the interpretation of article 159(2)(d) of the Constitution as expressed under rule 5 of Court of Appeal Rules-Constitution of Kenya, 2010, articles159(2)(d) & 163(4); Court of Appeal (Election Petition) Rules, 2017, rule 5
Electoral Law-election petition appeal-notice of appeal-form and content of a notice of appeal-effect of failure to comply with the legal requirements as to the form and content of a notice of appeal in an election petition-Constitution of Kenya 2010, article 159(2)(d); Court of Appeal (Election Petition) Rules, 2017, rules 6 & 8.
Electoral Law-election petition appeal-notice of appeal-time allowed for filing a notice of appeal-extension of time allowed for the filing of a notice of appeal-whether the Court of Appeal could enlarge time allowed for the filing of a notice of appeal -Court of Appeal (Election Petition) Rules, 2017, rules 17(1), 3, 4(3) & 5.

Brief facts:
The appellant appealed against the Court of Appeal decision striking out his notice of appeal, which sought, among others, enlargement of time to file a fresh appeal out of time. The appellant contended that his appeal was not heard and determined on its merits and thus sought to invoke the Court’s jurisdiction to hear the instant appeal as a matter of right under article 163(4)(a) of the Constitution.

Issues:

  1. Whether the Supreme Court had jurisdiction to hear and determine a petition brought under article 163(4)(a) of the Constitution.
  2. Whether the Court of Appeal could enlarge time allowed for the filing of a notice of appeal.
  3. What was the effect of failure to comply with legal requirements as to the form and content of a notice of appeal as stipulated in rule 6 of the Court of Appeal (Election Petition) Rules, 2017?
  4. What were the guiding principles which the Supreme Court would consider before hearing appeals brought before it pursuant to article 163(4)(a) of the Constitution? Read More..

Relevant provisions of the Law
Court of Appeal (Election Petition) Rules, 2017;
Rule 5;
The effect of any failure to comply with these Rules shall be a matter for determination at the Court’s discretion subject to the provisions of Article 159 (2) (d) of the Constitution and the need to observe the time set by the Constitution or any other law.

Held:

  1. The Court would consider the following guiding principles before hearing appeals brought before it pursuant to article 163(4)(a) of the Constitution;
    1. the Court’s jurisdiction was regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
    2. the chain of courts in the constitutional set-up had the professional competence to adjudicate upon disputes coming up before them; and only cardinal issues of law or of jurisprudential moment deserve the further input of the Supreme Court;
    3. the lower court’s determination of an issue which was the subject of further appeal, ought to have taken a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
    4. an appeal within the ambit of article 163(4)(a) was one founded on cogent issues of constitutional controversy; and
    5. with regard to election matters, the Elections Act and the Regulations were normative derivatives of the Constitution and, in interpreting them, a Court of law could not disengage from the Constitution.
    Those principles were to be considered in context alongside article 87(1) of the Constitution on the enactment of legislation to establish a mechanism for timely settlement of election disputes as well as article 105(1) of the Constitution which empowered the High Court, as the trial election court, to determine matters of whether a person was validly elected as a Member of Parliament.
  2. Pursuant to article 87(1) as read with article 105(1) of the Constitution, it would follow that electoral disputes would generally involve the application and determination of the Constitution subject to each case meeting the threshold.
  3. The issue before the Court involved an interpretation of article 159(2)(d) of the Constitution as expressed under rule 5 of Court of Appeal (Election Petition) Rules, 2017 (the Rules). The majority decision of the Court of Appeal did not interpret or apply articles 25(c), 48 or 50 of the Constitution. However, to the extent that article 159(2)(d) was in issue, the appeal was properly before the Court under article 163(4)(a) of the Constitution and that was the only reason why the Court assumed jurisdiction.
  4. The decision of the Court of Appeal to dismiss the appeal by striking out the notice of appeal and record of appeal filed by the appellant was made in exercise of its discretionary powers under rule 5 of the Rules. The Court of Appeal had the mandate to evaluate the matter before it, consider the mitigating circumstances and make a determination that was, in its opinion, just, considerate and fair. There were limitations to the Court’s interference with the exercise of judicial discretion. Discretionary power was to be exercised in a manner that was not capricious or whimsical, and that judicial officers to whom that power was donated should exercise the same judiciously.
  5. By stating that the notice of appeal was not in conformity with the Rules and that it did not have the jurisdiction to enlarge the time to allow an intended appellant to file an appeal out of time, the Court of Appeal was exercising its discretionary powers. It had considered the prevailing circumstances and the issues at hand. It was not bound by rules of procedure, but rather guided by them, and in exercise of judicial enterprise and mandate of a just, effective and expeditious determination of matters, dismissed the appeal.
  6. In an appeal from a decision based on an exercise of discretionary powers, an appellant had to show that the decision was based on a whim, was prejudicial or was capricious. The Court would only interfere with the exercise of discretion by another court where there was plain and clear misapplication of the law.
  7. The appellant had not shown how the decision by the Court of Appeal was arrived at wrongly, or that the same was an exercise of the whims of the judges. He had not shown that the appellate court failed to consider relevant matters, or that it considered irrelevant matters or that it erred in law or in principle in arriving at its decision.
  8. The Court of Appeal applied the Rules to examine the document filed as a notice of appeal, analysed it in the context of rules 5 and 6 of the Rules as read with article 159(2)(d) of the Constitution and concluded that the document was filed out of time and noting the pre-requisite under rule 5 of the Rules that timelines set by the Constitution or any other electoral law had been violated, declined to extend time to file the notice of appeal. If the application to extend time had been allowed, the resultant appeal would have been filed outside the statutory timeline, a jurisdiction the Court of Appeal did not have hence its finding that it had no business crafting a jurisdiction it did not have.
  9. Article 159(2)(d) of the Constitution was not meant to grant a court jurisdiction denied by a statute and in the instant case, a matter that was well regulated by rule 6 of the Rules. The Court of Appeal did not exercise its jurisdiction whimsically or unreasonably to warrant the Court’s interference with its decision.
  10. While it was clear that parties and their advocates would not have been aware of the publication of the Rules, the Rules were no longer strange and were in the public domain. Parties in the subsequent elections petitions cycle ought to abide by the Rules.
  11. Costs followed the event subject to the Court’s discretion. Noting the nature of the appeal before the Court, the Court exercised discretion and ordered each party to bear its costs of the appeal, without interfering with the orders on costs at the High Court and Court of Appeal.

Appeal dismissed. Each party to bear costs.

JURISDICTION Supreme Court had jurisdiction to entertain an appeal on a matter emanating from arbitration proceedings

Synergy Industrial Credit Limited v Cape Holdings Limited
Petition No 2 of 2017
Supreme Court of Kenya at Nairobi
DK Maraga, CJ & P, MK Ibrahim, SN Ndungu, SC Wanjala & I Lenaola, SCJJ
November 8, 2018
Reported by Chelimo Eunice

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Jurisdiction –appeals- appeals to the Supreme Court- jurisdiction of the Supreme Court to entertain an appeal based on a matter emanating from arbitration proceedings –whether Supreme Court would entertain the instant matter as it emanated from arbitration proceedings-Constitution of Kenya, 2010, article 163(4)(a) & (b)

Appeal – right of appeal - appeal to the Court of Appeal from a decision of the High Court in an arbitration agreement - whether a party to arbitral proceedings has a right of appeal to the Court of Appeal from a decision of the High Court given under the Arbitration Act - Arbitration Act, sections 10, 35,36 and 39

Brief facts:
The respondent filed a notice of preliminary objection on points of law that the Supreme Court lacked jurisdiction to entertain appeals based on matters emanating from arbitration proceedings by virtue of the provisions of article 163(4) of the Constitution and the Arbitration Act.

Issues:

  1. Whether Supreme Court had jurisdiction to entertain an appeal based on a matter emanating from arbitration proceedings.
  2. Whether there was a right of appeal to the Court of Appeal from arbitration proceedings under the Arbitration Act. Read More..

Held:

  1. The path that a litigant would take was determined on the basis of the subject matter. Once the Court of Appeal rendered its decision, the litigant could elect which course to follow. That decision was taken in advance, as it was the basis of determination on whether to seek certification first, or proceed straight to the Supreme Court. The decision on how to proceed rested on the character of the issues involved in the subject matter.
  2. The scope of articles 48 and 164(3) of the Constitution and their interplay with section 35 of the Arbitration Act was a question deserving a further and final authoritative input of the Court.
  3. The subject matter of a case determined the cause to follow. There were instances where particular issues would qualify as raising constitutional questions while at the same time, qualifying as matters of general public importance. A party would not be precluded from exercising his/her rights under article 163(4) in the best way they deemed fit.
  4. In the instant appeal, the appealing chose to move the Court under article 163(4) (a) of the Constitution as a matter of right. The appeal ought to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. An appellant ought to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Thus, the instant appeal was properly before the Court and the preliminary objection was without merit.

Orders:
(i) The Preliminary Objection was overruled.
(ii) The appeal to be set down for hearing.
(iii) Costs to abide the cause.

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