Weekly Newsletter 006/2019

Weekly Newsletter 006/2019



Kenya Law

Weekly Newsletter


The National Land Commission does not have jurisdiction to revoke Titles even though it was established that they were acquired unlawfully
Mwangi Stephen Muriithi v National Land Commission & 3 others
Petition 100 of 2017
High Court at Nairobi
W A Okwany, J
December 7, 2018
Reported by Chelimo Eunice
Download the Decision
Statutes- interpretation of statutes-interpretation of section 14 of the National Land Commission Act- whether section 14 of the National Land Commission Act was unconstitutional to the extent that it granted powers to the National Land Commission to review all grants or dispositions of public land – whether the National Land Commission was vested with review powers pursuant to article 68 (c) (v) as read together with articles 67 (e) and 67(3) of the Constitution- whether section 14 (4) of the National Land Commission Act which empowered the National Land Commission to make a determination instead of recommendations to the Registrar contravened the Constitution-Constitution of Kenya, 2010, articles 68 (c) (v), 67 (2) (e) & 67(3); National Land Commission Act, section 14.
Jurisdiction - jurisdiction of the National Land Commission - whether the National Land Commission had jurisdiction to revoke titles, grants or dispositions of land- whether the National Land Commission had jurisdiction to revoke titles to land even where it finds, after an inquiry, that such title was irregularly or illegally acquired - whether the National Land Commission could revoke title to land or it could only issue recommendations for the Registrar to revoke title to land - Constitution of Kenya 2010, article 67 (2) (e); National land Commission Act, , section 14.
Constitutional Law-rights and fundamental freedoms-right to fair administrative action and fair hearing – where notice to interested parties was issued through print media-where the notice did not outline details of any complaint-whether such notice was sufficient and/or adequate- whether the National Land Commission in failing to furnish the petitioner with the complaint and to carry out proper investigations and to render a decision and reasons subsequent to the hearing violated the petitioner’s right to fair administrative action and fair hearing- Constitution of Kenya 2010, articles 47 & 50, Fair Administrative Actions Act, section 4.
Land Law-National Land Commission–functions of the National Land Commission – whether the National Land Commission was the entity empowered to review grants and dispositions of public land- whether the National Land Commission was the entity competent to make a binding finding as to whether property has been unlawfully acquired -Constitution of Kenya, 2010, articles 68 (c) (v) & 40(6).

Brief facts;
The National Land Commission (NLC), after reviewing the legality of the petitioner’s title, revoked and replaced the petitioner as the proprietor of the suit land. Aggrieved by that decision, the petitioner petitioned the Court arguing, among others, that the entire process carried out by NLC including the purported exercise of power to review grants and dispositions of public land, the publication of the notice calling for hearing, the conduct of the hearing and the purported revocation was conducted in an unconstitutional manner that offends the principles of natural justice, that the Constitution did not vest NLC with power to revoke titles, that the NLC was not the body contemplated under article 68 (c) (v) of the Constitution and that section 14 of the National Land Commission Act was unconstitutional to the extent that it purported to grant powers to the NLC that it could not constitutionally perform.
Issues:
  1. Whether the Court had jurisdiction to handle the matter involving alleged violation of the right to fair administrative action and fair hearing.
  2. Whether the National Land Commission had jurisdiction to review all grants or dispositions of public land.
  3. Whether section 14(4) of the National Lands Commission Act was unconstitutional to the extent that it granted the National Land Commission power to make a determination instead of recommendation.
Relevant provisions of the Law
Constitution of Kenya, 2010;

Article 67 (2) (e); The functions of the National Land Commission are to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
Article 68 (c) (v); Parliament shall enact legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality.

National Land Commission Act;
Section 14: Review of grants and dispositions;

(1) Subject to Article 68(c)(v) of the Constitution, the Commission shall, within
five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality.
(2) Subject to Articles 40, 47 and 60 of the Constitution, the Commission shall
make rules for the better carrying out of its functions under subsection (1).
(3) In the exercise of the powers under subsection (1), the Commission shall
give every person who appears to the Commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.
(4) After hearing the parties in accordance with subsection (3), the Commission shall make a determination.
(5) Where the Commission finds that the title was acquired in an unlawful
manner, the Commission shall, direct the Registrar to revoke the title.
(6) Where the Commission finds that the title was irregularly acquired, the
Commission shall take appropriate steps to correct the irregularity and may also make consequential orders.
(7) No revocation of title shall be effected against a bona fide purchaser for
value without notice of a defect in the title.
(8) In the exercise of its power under this section, the Commission shall be
guided by the principles set out under Article 47 of the Constitution.
(9) The Commission may, where it considers it necessary, petition Parliament
to extend the period for undertaking the review specified in subsection (1).


Held:
  1. Article 165(1) of the Constitution vested wide powers in the High Court including the power to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened and the jurisdiction to hear any question respecting the interpretation of the Constitution.
  2. According to article 23 (1) of the Constitution, the High Court had jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
  3. The High Court had supervisory jurisdiction over any body or authority exercising a judicial or quasi-judicial function and it had the power to call for the record of any proceedings before any subordinate court or person, body or authority.
  4. Since the petitioner was alleging violation of his rights under the Constitution following the review proceedings undertaken by the NLC, the Court had jurisdiction to handle the matter.
  5. The functions of the NLC were provided for under article 67(2)(e) of the Constitution, which included to initiate investigations into present or historical land injustices and recommend appropriate redress. Further, article 68(c)(v) of the Constitution provided for the enactment of legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality.
  6. Article 61 (2) of the Constitution classified land as public, community or private. According to article 62 of the Constitution, public land included land which at the effective date was un-alienated government land and land lawfully held, used or occupied by any State organ, except any such land that was occupied by the State organ as lessee under a private lease.
  7. Section 14 of the National Land Commission Act on the other hand mandated the NLC to review all grants or dispositions of public land to establish their propriety or legality within five years of the commencement of the NLC Act.
  8. Guided by the provisions of articles 67, 68 (c) (v) of the Constitution and section 14 of the NLC Act, the NLC had jurisdiction to review all grants or dispositions of public land. The jurisdiction in the context extended only to public land or land that was previously public but was subsequently converted to private land.
  9. The title exhibited by the petitioner was a grant. The land in question was once public land, which was granted to the petitioner by the then President. The original parcel which was subsequently sub-divided was initially registered in the name of the Permanent Secretary Treasury. One of the Special Condition of the original grant directed that the police were to use the land for purposes of a driving school. The petitioner obtained change of user by converting the land from public to private use. Since the NLC had jurisdiction to review all grants or dispositions of public land to establish their propriety or legality, it had the mandate to investigate how the instant title was acquired and how the land in question was converted from public to private use.
  10. NLC was the body vested with review powers pursuant to article 68 (c) (v) of the Constitution as read together with articles 67 (e) and 67(3) of the Constitution. In the performance of its legislative function, the enactment of the NLC Act and in particular, section 14 of the said Act was proper. To that extent, section 14 of the NLC Act was not unconstitutional for granting powers to the NLC.
  11. Whereas article 40 of the Constitution protected the right to property, that protection/right did not extend to title founded on an unlawful acquisition. Article 40(6) of the Constitution excluded any property that had been found to have been unlawfully acquired.
  12. NLC in discharging its functions by investigating the manner in which the title/ grant in question was acquired acted well within the ambit of articles 40 (6) 67 and 68 (c) (v) of the Constitution. It was not for the Court to stand in the way of a quasi-judicial body lawfully discharging its constitutional mandate.
  13. Article 47(1) of the Constitution granted every person with the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Article 50(1) of the Constitution on the other hand granted every person the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body. Section 4 of the Fair Administrative Actions Act resonated with article 47 of the Constitution and reiterated the entitlement of every Kenyan to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
  14. The public notice issued by NLC cited L.R numbers and names of interested parties, who were subsequently invited through the same notice to make representations before it. The notice did not outline details of any complaint. Adequate notice implied a notice that complied with the principles of natural justice which meant a written notice setting out the date and subject-matter of the hearing, grounds of the complaint, the basic facts in issue and the potential seriousness of the possible result of such hearing.
  15. The mode of service of notice adopted by the NLC did not meet the threshold of the principles of natural justice and articles 47 and 50 of the Constitution, hence could not be said to be adequate/ sufficient notice.
  16. The right to be heard transcended mere notice and extended to the person being given sufficient information to enable them prepare and/ or present their case. Such a person was entitled to be furnished, in good time, with information, including reports and documents in the body’s possession that would be prejudicial to his/her case and which would guide that body relied in arriving at its decision. Section 14(3) of the Act was clear that such a person, apart from entitlement to notice, had the right to inspect any relevant document.
  17. The petitioner was neither furnished with the details of the complaint before the NLC nor granted access to the critical documents before the NLC. In the circumstances, it was unfair to expect or conclude that in the absence of such critical information, the petitioner was granted a fair hearing as envisaged under article 50 of the Constitution. Thus the petitioner was not granted a fair hearing.
  18. Article 67(2)(e) of the Constitution empowered the NLC to initiate investigations into present or historical land injustices and recommend appropriate redress. Article 68(c)(v) of the Constitution empowered Parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety. The legislation anticipated was the National Land Commission Act (the Act). The Act provided at section 14 for the review of grants and dispositions, pursuant to article 68(c)(v) of the Constitution. The said section outlined the procedure for the review of grants and disposition of public land to establish their propriety and legality. Where the NLC under section 15 of the Act found that the title was acquired in an unlawful manner, it should direct the Registrar to revoke the title.
  19. There was no provision empowering the NLC to revoke titles even where it was established that the same were unlawfully or irregularly acquired. The power to revoke title was vested in the Registrar and not the NLC which could only recommend.
  20. The provisions of article 67 (2) of the Constitution were clear and overrode the provisions of section 14 (4) of the Act which empowered the NLC to make a determination after hearing the parties. The Constitution was the supreme law as espoused under article 2 (4) of the Constitution. To the extent that the NLC rendered a determination as opposed to a recommendation, the decision was tainted with illegality.
Petition allowed.
Orders:
  1. A declaration that the petitioner’s right to fair administrative action under article 47 of the Constitution as read together with the Fair Administrative Action Act, 2015 as well as his right to a fair hearing under article 50(1) of the Constitution had been violated.
  2. The purported revocation and/or replacement of the petitioner’s proprietorship on L.R 209/13760 with the Kenya Police Service were quashed for being illegal, null and void.
  3. No orders as to costs.
Kenya Law
Case Updates Issue 007/2019
Case Summaries

JURISDICTION Supreme Court affirms Court of Appeal decision to nullify results for the election for Member of the National Assembly for Ugenya Constituency held on August 8, 2017.

Christopher Odhiambo Karan v David Ouma Ochieng & 2 others
Petition 36 of 2018
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
December 21, 2018
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters involving issues of constitutional interpretation and application-whether an appeal at the Supreme Court raised issues of constitutional interpretation and application-Constitution of Kenya 2010, article 163(4)(a).
Constitutional Law-fundamental rights and freedoms-right to a fair trial-failure to observe procedural stipulations within which to file a response to an election petition-dismissal of an application for extension of time within which to file a response to an election petition and denial of an opportunity to participate in proceedings-whether under the circumstances, the right to a fair trial was violated-Constitution of Kenya 2010, articles 25(c), 50 & 159(2)(d); Elections (Parliamentary and County Elections) Petitions Rules 2017, rules 11 & 19.
Jurisdiction-jurisdiction of the Court of Appeal-jurisdiction of the Court of Appeal in election petitions-appeal limited to matters of law only-whether the Court of Appeal wrongfully delved into matters of fact when making its determinations in an election petition appeal-Elections Act, No 24 of 2011, section 85A.
Electoral Law-conduct of an election-electoral malpractices and irregularities-remedies related to an election which did not substantially comply with the law or had irregularities that affected the outcome of the election-nullification of the election result-when would the Court order for the nullification of the result of an election- Elections Act, No 24 of 2011, section 83.

Brief facts:
The Court of Appeal upheld a High Court decision to invalidate the appellant's election as the Member of the National Assembly for Ugenya Constituency.
The grounds of the High Court petition were electoral malpractices during the campaign period, the voting process and polling process. Other grounds included campaigning in polling stations during the polling day and harassment and intimidation of presiding officers and returning officers. The 2nd and 3rd respondent applied for enlargement of time within which to file a response to the petition after a delay in filing the response within the stipulated 7 days. The application was allowed by consent of the respective counsels.
The appellant also sought an extension of time within which to file a response to the petition. The appellant explained that he was not served with the petition (service was effected by way of newspaper advertisement) and that he fell sick and was admitted in hospital. The 1st respondent opposed the application and sought orders for the appellant's response to be struck out on the ground that it was filed out of time. The appellant's application for enlargement of time was dismissed and the 1st respondent's application was allowed. When the day for settlement of issues came, the 1st respondent objected to the appellant's participation in the proceedings pursuant to rule 11(8) of the Election Petition Rules, 2017, and the High Court upheld that objection. In spite of an application by the appellant for stay of proceedings pending an appeal on the rulings, related to enlargement of time for the filing of a response to the petition by the appellant, the High Court heard the matter and a judgment was delivered in March 1, 2018.
The appellant's appeal at the Court of Appeal was based on an alleged denial of the right to a fair hearing as concerned the dismissal of the appellant's application for enlargement of time within which to respond to the petition. The 2nd and 3rd respondents cross-appealed on two issues relating to whether discretion to disallow the appellant's application for enlargement of time was exercised properly and whether the Court of Appeal should interfere with that exercise of discretion.  The Court of Appeal found that the High Court properly exercised its discretion to dismiss the application to extend time and to strike out the appellant's response and affidavits judicially. The Court also stated that it could not grant orders to admit the appellant's response at the High Court and incorporate it to its determination because section 85A of the Elections Act limited the Court of Appeal's jurisdiction to matters of law only. The cross-appeal was also dismissed. The appellant filed an appeal at the Supreme Court.

Issues:

  1. Whether the Supreme Court had jurisdiction to hear and determine the matter under article 163(4)(a) as a matter involving issues of constitutional interpretation and application.
  2. Whether in dismissing an appellant's application for extension of time in which to file a response to an election petition and denying the appellant an opportunity to participate in proceedings, the High Court violated that appellant's right to a fair trial.
  3. Whether, in making its determinations, the Court of Appeal delved into matters of fact contrary to section 85A of the Elections Act.
  4. What reliefs were the parties entitled to? Read More..

Held :

  1. Under article 163(4)(a) of the Constitution an appeal from the Court of Appeal to the Supreme Court would lie as of right in matters involving constitutional interpretation and application. In such matters it would be necessary for the appellant to challenge the interpretation or application of the Constitution which the Court of Appeal used in determining a matter. The matter of constitutional interpretation and application would have to have been canvassed at the Superior Courts and to have progressed through the normal appellate mechanism and reach the Supreme Court via an appeal.
  2. The issues raised at the Superior Court included an issue at the Court of Appeal as to whether the High Court had denied the appellant the right to a fair hearing by declining to extend time within which the appellant could file a response to the petition and denying him an opportunity to participate in the proceedings. Considering the context in which the appeal arose, the appeal was within the ambit of article 163(4)(a) of the Constitution.
  3. Article 50(1) of the Constitution provided for the right to a fair and public hearing and article 25 of the Constitution stipulated that the right to a fair trial could not be limited. Pursuant to article 87(1) of the Constitution, there were timelines within which election disputes were to be heard and determined. Article 87(2) of the Constitution provided that election petitions, other than presidential election petitions, would be filed within 28 days after the declaration of results by the IEBC. Under article 105 of the Constitution, a dispute relating the validity of the election of a Member of Parliament would have to be heard and determined within 6 months of the date of lodging the petition. Compliance with timelines was a constitutional principle and it enhanced constitutional values. It was important to the operation of a democratic system.
  4. It was not generally the intention of the legislature to lock out a litigant from the right to be heard merely on the basis of inability to file a response on time due to inadvertent reasons. The Elections Act and the Rules made thereunder signified an intention by the legislature to facilitate the right to be heard by giving the Court the discretion to enlarge timelines within which to file a response.
  5. Under article 159(2)(d) of the Constitution, when courts exercised judicial authority, they had to be guided by the principle that justice was to be administered without undue regard to procedural technicalities. That did not mean that all procedural requirements were to be disregarded in the administration of justice. The courts had a duty to determine objectively, where a question of an undue procedural technicality arose, whether the procedural stipulation fell within the class of undue procedural technicality and if so, whether it should be disregarded in favour of substantive justice.
  6. Rule 11 of Election Petition Rules 2017 gave a respondent who wished to oppose a petition 7 days to file a response. The response would have to be supported by an affidavit and accompanied by the affidavits of any witnesses that the respondent wished to call. Rule 19(1) of Election Petition Rules 2017, provided that for purposes of ensuring that injustice was not done to any party, time could be extended or limited where the Rules or an order of the Court required an act or omission to be done within a certain timeframe.
  7. Extension of time was a creature of equity and one could only enjoy it if he acted equitably. Extension of time was not a litigant's right but a discretionary power of the Court. To enjoy it, a litigant had to demonstrate that he had a bona fide cause of action but that time had lapsed and that there were compelling reasons for the delay. Courts could only indulge such a litigant if it was established that the litigant was not at fault. The underlying principles that the Court should consider in exercising discretion to extend time were the following:-
    1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;
    2. a party who sought extension of time had the burden of laying a basis to the satisfaction of the Court;
    3. whether the Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis;
    4. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
    5. whether there would be any prejudice suffered by the respondents if the extension was granted;
    6. whether the application had been brought without undue delay; and
    7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.
  8. The appellant did not comply with the principles set by the Supreme Court so as to deserve extension of time to file his response. Electoral laws and regulations were not made in vain, they were meant to advance the provisions of the Constitution on settlement of electoral disputes which were disputes filed in the interest of the general public.
  9. Rule 11(8) of the Election Petition Rules 2017 provided that a respondent who had not filed a response to a petition as required under the rule would not be allowed to appear or act as a party in the proceedings. On the basis of that provision, the High Court disallowed the appellant from participating in the hearing of the petition. Article 159 of the Constitution was not meant to aid in overthrow or destruction of rules of procedure and could not help the appellant.
  10. Article 50(2) of the Constitution provided for the right to challenge evidence through cross-examination. It did not operate in a vacuum and it operated together with other laws to give the greatest effect. The Superior Courts were aware of the provisions of articles 20(3), 25(c) and 50 when making their determinations. There was no reason for faulting their interpretation and application of the Constitution.
  11. Section 85A of the Elections Act provided that the Court of Appeal's jurisdiction in election petitions was restricted to matters of law only. Under the provision a matter of law was an issue or question involving:-
    1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of county governor;
    2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of county governor;
    3. the conclusions arrived at by the Court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of county governor, where the appellant claimed that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the Court would probably have arrived at a different conclusion on the basis of the evidence.
  12. The record did not disclose that the Court of Appeal delved into evidence. The Court of Appeal only analysed the High Court's conclusions so as to address the grounds of appeal and the cross-appeal.
  13. In determining the question as to whether to nullify an election, the Court should be alive to the fact that an election was a direct expression of the sovereign will of the people and should not be interfered with whimsically or arbitrarily. Under article 1(1) of the Constitution, all sovereign power belonged to the people.
  14. An election could be nullified where it fell short of the principles stipulated in articles 81 and 86 of the Constitution. Additionally, section 83 of the Elections Act provided that an election could be nullified where it did not substantially comply with written law applicable to the election and where there were electoral irregularities which affected the result of the election.
  15. The right to a fair trial was a right that could not be limited under article 25(c) of the Constitution. However, it was an individual right that was held in personam and the remedy for the violation of such a right could not be the nullification of an election. An election reflected the people's views as expressed through the vote, not just rights of individuals and therefore, courts had to be careful not to exercise power in a manner that interfered with the people's expression in instances where proven irregularities did not affect the election results.
  16. The nullification of the appellant's election was based on the finding that electoral malpractices, irregularities and illegalities were such that the elections were not conducted substantially in accordance with the Constitution and relevant electoral laws and the results did not pass the test of being transparent, accountable, verifiable and credible. That finding was upheld by the Court of Appeal. The appellant did not demonstrate that the Court of Appeal erred in its interpretation and application of the Constitution in that regard.
  17. Had the appellant proved his claim of violation of the right to a fair trial, the remedies set out in article 23(3) of the Constitution would have been available to him. The remedies were such that the Court could grant appropriate relief including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of a law that denied, violated, infringed or threatened a right or fundamental freedom in the Bill of Rights and was not justified under article 24 of the Constitution, an order for compensation and an order for judicial review.
  18. Costs followed the event and the Court had discretion in awarding costs. The party that instituted a suit would bear costs if the suit failed and where that party was successful, the defendant or respondent would bear the costs.

Petition of appeal dismissed.

CIVIL PRACTICE AND PROCEDURE After opting to apply for a review against a decision unsuccessfully, a litigant cannot file an appeal against the same decision.

Serephen Nyasani Menge v Rispah Onsase
Misc Application 5 of 2018
Environment and Land Court at Kisii
J M Mutungi, J
November 23, 2018
Reported by Beryl A Ikamari

Download the Decision

Civil Practice and Procedure-appeals- matters not appellable as of right-institution of an appeal from a subordinate court to the High Court- failure to obtain leave before filing an appeal-effect of failure to obtain leave of court within time where a decision was not appellable as of right-Civil Procedure Act (Cap 21), section 75(1); Civil Procedure Rules 2010, order 43 rules 1 & 2.
Civil Practice and Procedure-appeal and review-exhaustion of review-where a litigant had opted to apply for a review of the orders of a subordinate court-whether that litigant, after exhaustion of the review option, could seek to appeal against the same orders-Civil Procedure Act (Cap 21), section 80; Civil Procedure Rules 2010, order 45 rules 1(a) & 1(b) .

Brief Facts:
The applicant applied for leave to appeal out of time against the decision of the Senior Resident Magistrate's Court of December 18, 2015. The applicant explained that the reason for the delay in filing the appeal was that she had sought a review of the same decision and the review application was dismissed. Similarly an appeal against the decision to dismiss the review application was dismissed. The effect was that the time allowed for purposes of filing an appeal ran out.
The respondent opposed the application. She stated that the decision issued on December 18, 2015 was not one that was appellable as of right under order 43 of the Civil Procedure Rules and that after exercising the option of review unsuccessfully the applicant could not opt to appeal against the decision.

Issues:

  1. What was the effect of failing to seek leave of court to appeal where a decision was not appellable as of right?
  2. Whether a litigant who opted to seek for a review of an order could seek to appeal against the same order, after an unsuccessful attempt at review. Read More...

Held:

  1. Section 75(1) of the Civil Procedure Act provided for the orders against which an appeal would lie as of right or those for which leave of court was required. Additionally, order 43 rule 1 of the Civil Procedure Rules set out orders and rules in respect of which appeals would lie as of right while order 43 rule 2 provided that an appeal would lie with leave of court from any other order made under the rules. That meant that unless the decision sought to be appealed against fell under the orders which were appellable as of right, it was necessary to obtain leave before an appeal could be preferred.
  2. The Subordinate Court's decision of December 18, 2015 was not one that was appellable as of right. There was no automatic right of appeal and there was need to obtain leave of court. The leave could be obtained orally from court at the time the order was made or within 14 days from the date the order was made. Without seeking that leave no competent appeal could be lodged against that order.
  3. Section 80 of the Civil Procedure Act was to the effect that a party could not seek the review of an order and at the same time appeal against the order. Order 45 rules 1(a) and 1(b) of the Civil Procedure Rules were of the same effect. A party who had opted to have a decision reviewed did not have the option of appealing against that decision.
  4. The applicant had exhausted the option of review. She had appealed against the review decision. She had her day in court and litigation had to come to an end.
  5. Under section 79G of the Civil Procedure Act, an appeal from a subordinate court to the High Court had to be filed within 30 days and extension of time for filing the appeal would be granted where good and sufficient cause for not filing the appeal in time was shown. Generally, no sufficient cause was demonstrated to show why there was a delay in filing the appeal.

Application dismissed. 

JURISDICTION Whether Supreme Court had jurisdiction to hear and determine an appeal concerning constitutionality and legality of title to land

Narok County Government v Livingstone Kunini Ntutu & 2 others
Petition 3 of 2015
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, P M Mwilu, DCJ & VP, M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu, I Lenaola, SCJJ
December 11, 2018
Reported by Chelimo Eunice

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Jurisdiction-jurisdiction of the Supreme Court to hear appeals from the Court of Appeal- The test to evaluate the jurisdictional standing of the Supreme Court in handling an 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-a claim that the appeal did not involve the interpretation or application of the Constitution – whether Supreme Court had jurisdiction to hear an issue of the constitutionality and legality of title to land allegedly converted from public land or land held in trust to private land-whether in the circumstances, the Supreme Court would hear the appeal on account of public interest-Constitution of Kenya, 2010, articles 163 (4), 81 & 86; Supreme Court Act, section 15.
Civil practice and procedure-consent judgments-setting aside of consent judgments- what were the principles of setting aside of consent judgments-a claim that the consent judgment violated the provisions of sections 115 (1) and (2), 116 and 117 of the repealed Constitution, as well as other statutory provisions-whether consent judgment that offended the Constitution and statutory provisions could be upheld by courts- Civil Procedure Act, section 80; Civil Procedure Rules, rule 1.

Brief facts:
The appellant had challenged in the High Court a consent judgment on the premises, among others, that it was in contravention of the Constitution and that the title to the suit land was also unconstitutionally and illegally acquired, that it was marred with fraud and irregularity and that it offended various statutory provisions. The High Court set the consent judgement aside on the grounds, among others, that it was in the public interest and in interest of justice that the issue of the said constitutionality and legality of title be determined conclusively and that it would be against public policy in the circumstances to uphold the consent judgment. That decision was set aside by the Court of Appeal, thus necessitating the instant appeal.

Issues:

  1. Whether the Supreme Court had jurisdiction under article 163(4)(a) of the Constitution to hear and determine an appeal concerning constitutionality and legality of title to land.
  2. Whether a consent order that offended the Constitution and statutory provisions could be upheld by courts.
  3. Whether title to the suit land was unconstitutionally and illegally acquired, and if so, whether the Supreme Court could cancel the said title. Read More...

Held:

  1. A matter coming on appeal to the Court ought to have first been subject of litigation before the High Court and risen through the judicial hierarchy on appeal. The test to evaluate the jurisdictional standing of the Court in handling an appeal was whether the appeal raised a question of constitutional interpretation or application, and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the Court by way of appeal, as contemplated under article 163(4)(a) of the Constitution.
  2. In order to invoke the Court’s jurisdiction under article 163(4)(a) of the Constitution, the matter in issue should have been first resolved by the High Court and risen through the judicial appellate hierarchy.  However, such a narrow conclusion would defeat the Court’s mandate under the Constitution as the apex court and hinder the realization of its objectives under section 3 of the Supreme Court Act. There was need for a holistic and pragmatic approach when considering the scope of the Court’s jurisdiction under article 163(4)(a) of the Constitution.
  3. There was a multiplicity of factors that the Court ought to always, and on a case to case basis, consider in determining whether it had jurisdiction in a matter under article 163(4)(a) of the Constitution. Whether the matter was first decided by a superior court was one such and primary consideration but not necessarily the only one.
  4.  Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate was that the court’s reasoning and the conclusions which led to the determination of the issue, put into context, could properly be said to have taken a trajectory of constitutional interpretation or application. A trajectory of constitutional interpretation or application was an important yet flexible consideration.
  5.  The Court would only assume jurisdiction if satisfied that the appeal fell squarely within the four corners of article 163(4)(a) of the Constitution. The question of whether the High Court was right or wrong in the application of the principles for setting aside a consent judgment did not lie on appeal before the Court. Those principles were well set out in statute and case law and they could not raise a matter of constitutional interpretation and/or application. Had the principles themselves been the subject of constitutional interpretation, the Court would have readily assumed jurisdiction. Had the setting aside issue been the only issue to be considered, then the Court would not have had jurisdiction.
  6. The land, subject matter of the instant appeal formed part of the Maasai Mara National Reserve. The Maasai Mara National Reserve was subject of a constitutional trust. What was in issue was how the said parcel of land was excised from the Maasai Mara National Reserve and registered in the name of the 1st respondent. That issue would have been settled had the initial matter, Civil Suit No. 1565 of 2000, been allowed to go full course and to be determined. That was not to be as a consent was apparently entered into settling the dispute as at then. Before the consent was signed, questions were raised as regards the legality or otherwise of the title held by the 1st respondent and the consent did not otherwise specifically address that issue.
  7. In that context the Court, as the apex Court and defender of the Constitution, was charged with inter alia protection of the Constitution. In exercising that mandate, the subject of land had been and was an emotive issue in Kenya. It was on that basis that the framers of the Constitution dedicated chapter 5 of the Constitution to Land.
  8. The Court was obligated, like all other courts to uphold the values of transparency, legality and public interest in matters of land, more so public land. The process of conversion of public land or land held in trust to private land had to be beyond reproach. Under the Constitution, that was the rationale behind the formation of the National Land Commission and at the core of the instant case was the legality of the title to the suit land held by 1st respondent, an individual who obtained it upon its purported excision from public land known as the Masaai Mara National Reserve.
  9. The issue of the constitutionality and legality of that title was live both in the High Court and the Court of Appeal. Upon finding that the constitutionality and legality of that title was not clear, the High Court set aside the consent judgment and ordered that the matter should go for trial to determine that issue.
  10. Public policy went to the protection of the public interest which was safeguarded by the national values and principles of governance in article 10 of the Constitution. The allegations of trust land being annexed for private purposes had not been determined on merits. The allegation of unconstitutionality and illegality of the title to the suit land raised a serious policy issue that the Court had to have regard to in determining whether it had jurisdiction and to be seized of the matter before it and in making the relevant orders.
  11. The Court and any other appellate court, even where there were no specific provisions to do an act, had inherent and/or residual powers to act in a fair or equitable manner in the interest of justice and/or to ensure the observance of the due process of the law. Also, there lay the power for the Court to act to prevent abuse of court process by one party so that fairness was maintained between all parties.
  12. The instant matter warranted the Court’s consideration given its importance. The issue before the Court was also exceptional and would require that the Court’s inherent jurisdiction be invoked to hear and determine the same. The Court in exceptional circumstances, and so as to meet the ends of justice, could invoke its inherent jurisdiction to consider and review judgments. Hence, the Court invoked its’ inherent jurisdiction to admit and consider the instant appeal limited only to a consideration of the constitutionality and legality of the title to the suit land.
  13. Parties could not consent to an illegality, hence a consent that upset the provisions of the Constitution also defeated the principle of legality and could not stand.
  14. There was need to establish the constitutionality and legality of the title to the suit land. To establish the status of the title to the suit land, the consent had to be set aside and for the substantive matter to be heard. To determine the status of the title called for evaluation of evidence to determine how the process was undertaken and if it infringed any law. That determination was yet to be made even as important as the matter was.
  15. The Court would not usurp the jurisdiction of other courts to determine matters which rightly ought to be determined by them at the first instance.
  16. The cancellation of the title called for determination of facts by a trial court. Such a determination did not exist both in the High Court and the Court of Appeal. That called for determination de novo by a court of competent jurisdiction. Thus, the prayer of cancellation of title could not be issued unless there was a proper determination by the Environment and Land Court, the court with the requisite competent jurisdiction to make that factual finding.
  17. In making a determination on the remedies to issue, the Court had wide powers under section 3 of the Supreme Court Act and particularly, rule 3(5) of the Supreme Court Rules. The remedies preferred by the Court had to be tailor made so as to be consistent with the objects in section 3 of the Supreme Court Act. What was before the Court was a matter involving trust land that was alleged to have been excised to a private individual. The dispute raised the issue of constitutionality and legality of the title to the suit land, which issue had not been heard and determined on merits by superior courts.
  18. The Court allowed the determination of the status of the title to the suit land, in the public interest and so that such a determination was made to bring certainty in the matter. The referral of the matter back to the Environment and Land Court and not the High Court which no longer had jurisdiction on such a dispute to determine the constitutionality and legality of the title to the suit property was the appropriate remedy.

Orders;

  1. The Petition of Appeal dated May 12, 2015 was allowed in the following specific terms:
    1. The judgment and orders of the Court of Appeal (R.N Nambuye, D.K Musinga and J. Mohammed J.J.A) dated April 24, 2015 in Nairobi Civil Appeal No. 109 of 2014 was set aside.
    2. The ruling and orders of the High Court dated March 19, 2014 in HCCC 1565 of 2000 were reinstated save to the extent expressed in (c) below.
    3. An order was issued that the matter be remitted back to the Environment and Land Court for hearing, pursuant to the ruling in HCCC No.1565 of 2000 dated March 19, 2014, on a priority basis.
  2. Each party ordered to bear own costs.
JURISDICTION It is mandatory for a party appealing to the Supreme Court to unequivocally state the particular appellate jurisdiction of the Supreme Court in which he was appealing.

Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR
Petition 12 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga,CJ & P; M K Ibrahim,J B Ojwang,S C 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 unequivocally state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so-Constitution of Kenya, 2010, article 163(4); Supreme Court Rules, rule 9

Brief facts:
The 1st respondent filed an election petition in the Trial Court challenging the election of the 6th respondent as the Governor of Kwale County.  The Trial Court struck out the petition. Aggrieved by the Trial Court’s decision, the 1st respondent lodged an appeal at the Appellate Court. However, before the appeal could be heard on merit, the 1st respondent wrote to the Appellate Court indicating his intention to withdraw the appeal. Subsequently, a formal consent to withdraw the appeal was executed by all the respondents who then filed it before the Appellate Court.
It was alleged that the 1st respondent advertised the notice of withdrawal in the Star Newspaper and called upon any person desirous of being substituted in his place to make the necessary application before the Appellate Court. Consequently, the appellants filed an application to the Appellate Court seeking to be substituted as the appellants in the Appellate Court. The Appellate Court dismissed the application. Aggrieved by that decision the appellants filed the instant appeal.

Issue:

  1. Whether it was mandatory for a party appealing to the Supreme Court to unequivocally 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. Appeals from the Appellate Court lay to the Court pursuant to articles 163 (4) (a) or 163 (4) (b) of the Constitution. An appeal would not lie to the Court, unless convincingly preferred within the confines of either of the two jurisdictional limbs.
  2. A party could not seek to invoke the Court’s appellate jurisdiction without unequivocally indicating under which constitutional provision he/she sought to move the Court. One could not seek refuge in rule 9 and the template in form B of the Supreme Court Rules to justify such a fundamental omission.
  3. The appellate jurisdiction of the Court was donated by the Constitution. It was neither original nor unlimited. The limits of its jurisdiction were set out by the Constitution. In the circumstances, an intending appellant had to either seek certification under article 163 (4)(b) of the Constitution or bring him/herself within the ambit of article 163 (4) (a) thereof, that second option was by no means automatic.
  4. The Court could not assume jurisdiction by way of elimination that since certification was not sought by the intending appellant, then it had follow that the said appellant was invoking the Court’s jurisdiction as of right under article 163 (4) (a) of the Constitution, even without demonstrating that such right obtained in the first place. A litigant should invoke the correct constitutional or statutory provision and an omission in that regard was not a mere procedural technicality to be cured under article 159 of the Constitution.

Appeal dismissed, each party to bear its own costs.

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