Weekly Newsletter 011/2019

Weekly Newsletter 011/2019



Kenya Law

Weekly Newsletter


County governments and governors have no powers to stop withdrawal or withhold the disbursement of funds after approval by the Controller of Budget
County Assembly of Machakos v Governor, Machakos County & 4 others
Petition 17 of 2017
High Court at Machakos
G.V. Odunga, J
February 21, 2019
Reported by Chelimo Eunice
Download the Decision
Constitutional Law-independent offices-the Controller of Budget- functions of Controller of Budget- whether any institution or entity had the power to stop withdrawal of funds after the Controller of Budget had approved the withdrawal of such funds-independence of the Controller of Budget- whether the Court could direct the Controller of Budget on how to conduct its constitutional mandate where it was alleged that the Controller of Budget had failed to approve the County assembly's requisitions-Constitution of Kenya, 2010, article 228.
Constitutional Law-arms and levels of government-the doctrine of separation of powers-the scheme of checks and balances- whether doctrine of separation of powers applied to the National Government as well as devolved governments-application of scheme of checks and balances to the three arms of government- restraint and deference by arms of government in not trespassing onto each other’s reserved functions-avoiding judicial tyranny through delineation of the parameters of encroachment on the powers of the other arms of government-justification and rationale for judicial restraint- Constitution of Kenya, 2010, article 1(3).
Jurisdiction– jurisdiction of the High Court – jurisdiction of the High Court to hear any question respecting the interpretation of the Constitution, to determine whether any law was inconsistent with or in contravention of the Constitution and to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution- the duty and obligation of the High Court to intervene in actions of other arms of Government where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation-Constitution of Kenya, 2010, articles 2(4) & 165(3).
Constitutional Law- the right to institute court proceedings to safeguard a right or fundamental freedom- existence of an alternative remedy- whether the petitioner needed to exhaust internal dispute resolution mechanisms before petitioning the Court- whether it was proper to petition the Court before exhausting the alternative mechanism and whether that rendered the proceedings premature-effectiveness and adequacy of an alternative remedy-whether a petitioner needed to split its case into two or more causes and file them before different tribunals when the matter could be dealt with by one tribunal- Constitution of Kenya, 2010, articles 22, 23 and 165(3).

Brief facts:
The petitioner contented, among other things, that despite preparing Program Based Budget and Itemized Budget and the same having been approved by the relevant bodies, at the time of filing the petition, the 1st and 2nd respondents had not released any monies for the months of September and November, 2017. That, despite the approval by the Controller of Budget, the 1st and 2nd respondents failed, declined and or refused to sign necessary forms to wit, Form C’s to authorize withdrawal of the funds from the County Revenue Fund, that the 1st respondent further purported to adjust the petitioner’s budget lines downwards.
The 1st and 2nd respondents opposed the petition arguing, among others, that the petitioner was part and parcel of the 2nd respondent and could not sue itself; that the petition was made prematurely and as such, the Court lacked jurisdiction to entertain it; that the petitioner had not exhausted its internal mechanisms; that the 1st respondent was not signatory to any account or to any form required to authorize release or disbursement of any funds; that the petitioner was dissolved by the members of County Assembly of Machakos on December 6, 2017 when they passed a motion to create an amorphous entity they called People’s Assembly and that the Court could not usurp the powers of the senate and the petitioner in dealing with the issues raised under the principle of separation of powers.
The Controller of Budget on the other hand argued that after she has approved the release of funds, no person had the authority or mandate to withhold release of the funds; that she had performed her duty under the law by approving withdrawal of funds whenever requisitions had been submitted and that the bone of contention was that the County Treasury had failed to issue instructions to the Central Bank to transfer the approved funds from the Exchequer Account and that the inaction of the County Treasury would not be construed as a fault of the Controller of Budget.


Issues:
  1. Whether the High Court had jurisdiction to handle disputes against the Executive arm of Government on the exercise of its mandate in light of the doctrine of separation of powers.
  2. Whether it was mandatory to exhaust internal dispute resolution mechanisms under County Assemblies Standing Orders before petitioning the Court.
  3. Justification and rationale for judicial restraint from encroaching on the powers of the other arms of Government.
  4. Whether a County Assembly had the locus to file a petition against its County Government and the Governor for alleged impediment of its constitutional and legal mandate.
  5. Whether County Governments and Governors had powers to oversight the manner in which County Assemblies carried out their constitutional mandate.
  6. Whether County Governments and Governors had powers to stop withdrawal or withhold the disbursement of funds after the Controller of Budget had approved the withdrawal of the funds.
  7. Whether the Court would approve withdrawal of funds or direct the Controller of Budget to approve such withdrawal.

Relevant provisions of the Law
Constitution, 2010;
Article 22(1) and (2);

 (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
 (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by––

 (a) a person acting on behalf of another person who cannot act in their own name;
 (b) a person acting as a member of, or in the interest of, a group or class of persons;
 (c) a person acting in the public interest; or
 (d) an association acting in the interest of one or more of its members.

Article 228;
  (1) There shall be a Controller of Budget who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.
 (2) To be qualified to be the Controller, a person shall have extensive knowledge of public finance or at least ten years’ experience in auditing public finance management.
 (3) The Controller shall, subject to Article 251, hold office for a term of eight years and shall not be eligible for re-appointment.
 (4) The Controller of Budget shall oversee the implementation of the budgets of the national and county governments by authorising withdrawals from public funds under Articles 204, 206 and 207.
 (5) The Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorised by law.
 
(6) Every four months, the Controller shall submit to each House of Parliament a report on the implementation of the budgets of the national and county governments.

Held:

  1. The doctrine of separation of powers applied to the national government as well as devolved governments. County governments were miniature national governments structures and ordered in line with traditions and principles that govern the National Government. To that extent, the doctrine of separation of powers applied with equal measure.
  2. The principle of separation of powers was reflected in the Constitution in article 1(3) which provided that sovereign power, which, pursuant to article 1(1) of the Constitution belonged to the people of Kenya and had to be exercised only in accordance with the Constitution, was delegated to Parliament and the legislative assemblies in County Governments, the National Executive and the executive structures in County Governments and the Judiciary and independent tribunals.
  3. Although the Constitution contained no explicit clause on separation of powers, the Montesquieuian influence was palpable throughout the foundational document, the Constitution, regarding the necessity of separating the governmental functions. The Constitution consciously delegated the sovereign power under it to the three branches of Government and expected that each would carry out those functions assigned to it without interference from the other two. Thus, while the Constitution provided for several state organs, including commissions and independent offices, the people’s sovereign power was vested in the Executive, Legislature and Judiciary.
  4. The broad principle of separation of powers incorporated the scheme of checks and balances. However, the principle was not to be applied in theoretical purity for its ultimate object was good governance, which involved phases of co-operation and collaboration, in a proper case.  The system of checks and balances that prevented autocracy, restrained institutional excesses and prevented abuse of power applied equally to the Executive, the Legislature and the Judiciary. No one arm of Government was infallible, and all were equally vulnerable to the dangers of acting ultra vires the Constitution. Whereas, the Executive and the Legislature were regularly tempered and safeguarded through the process of regular direct elections by the people, the discipline of an appointed and unelected judicial arm of government was largely self-regulatory. The parameters of encroachment on the powers of other arms of Government had to be clearly delineated, their limits acknowledged and restraint fully exercised. It was only through the practice of such cautionary measures, that the remotest possibility of judicial tyranny could be avoided.
  5. The spirit and vision behind separation of powers was that there be checks and balances, and that no single person or institution should have a monopoly of all powers.
  6. Article 2(4) of the Constitution made it clear that any law that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid. Under article 165(3)(d)(i) and (ii) of the Constitution, the High Court was clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law was inconsistent with or in contravention of the Constitution and the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution.
  7. Whereas the legislative authority vested in parliament and the county legislative assemblies, where a question arose as to whether an enactment was inconsistent with the Constitution or was passed in contravention of the Constitution, the High Court was the institution constitutionally empowered to determine such an issue subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court. That was in recognition of the fact that there was nothing like supremacy of the legislative assembly outside the Constitution since, under article 2(1) and (2) of the Constitution, the Constitution was the supreme law of the Republic and bound all persons and all state organs at both levels of government and no person would claim or exercise state authority except as authorised under the Constitution.
  8. The jurisdiction of the Court to invalidate laws that were unconstitutional was in harmony with its duty to be the custodian of the Constitution, which Constitution pronounced its supremacy at article 2. Similarly, the general provisions of the Constitution, which were set out in article 258, of the Constitution contained the express right to every person to institute court proceedings, claiming that the Constitution had been contravened, or was threatened with contravention.
  9. When an issue arose as to the constitutionality of any act done or threatened by either the Legislature or the Executive, it fell upon the laps of the judiciary to determine the same. The Court, vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution, had the duty and obligation to intervene in actions of other arms of Government and State organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.  In that regard, the invitation to do so was most welcome as that was one of the core mandates of the Court.
  10. It did not, however, mean that the Judiciary should superintend the other two arms of government in all their undertakings in order to determine whether their decisions were right or wrong. Checks and balances on actions taken by other organs of Government were not a licence to take over functions vested elsewhere. There ought to be judicial, legislative and executive deference to the repository of the function.
  11. A court had to keep in mind, while applying the principle of the separation of powers, the deference it owed to the legislature in devising a remedy for a breach of the Constitution in any particular case. It was not possible to formulate in general terms what such deference ought to embrace, for that depended on the facts and circumstances of each case. In essence, however, it involved restraint by the Courts in not trespassing onto that part of the legislative field which had been reserved by the Constitution, and for good reason, to the legislature.
  12. The rationale for exercise of restraint would be explained by the fact that Members of Parliament should not look over their shoulders when conducting debates in Parliament. They ought to express their opinions without any fear. The Court should be hesitant to interfere, except in very clear circumstances, in matters that were before Parliament and even those before the county assemblies.
  13. On interference by the Court with a political or legislative process, whatever the technicalities or the legal theory, sound constitutional law had to be founded on the bedrock of common sense and courts had to appreciate the limitations on formulation of policy, legislative process and practical politics because they were ill equipped to handle such matters.
  14. The doctrine of separation of powers required that each of the three arms of Government stuck to their lanes and that they ought not to trespass onto the lanes of the other organs. Since the petitioner’s case was that the 1st and 2nd respondents, which fell under the executive arm, had unlawfully and unconstitutionally purported to exercise their mandates in a manner that crippled the petitioner’s constitutional and legal mandate, then that was an issue falling within the ambit of article 165(3)(d)(ii) and (iii) of the Constitution. That being the case, the Court could not be barred from inquiring into the matter on the basis of separation of powers.
  15. If confronted with a question as to which remedy a litigant ought to seek, a court should examine whether the alternative remedy provided an efficacious and satisfactory answer to the litigant’s grievance. Articles 22, 23 and 165(3) (b) of the Constitution granted every person the right to institute court proceedings claiming that a right or fundamental freedom had been violated or was threatened with an infringement. That right, to access courts, should not be impeded or stifled in a manner that frustrated the enforcement of fundamental rights and freedoms except in justified circumstances.
  16. It would not be fair, convenient or conducive to the proper administration of justice to require a petitioner to split its case into two or more causes and file them before different tribunals when the matter could be dealt with by one tribunal. The petitioner in such circumstances ought to commence the case before the tribunal with the jurisdiction to hear and determine all the questions in controversy and grant all the reliefs sought. That tribunal, in the circumstances of the petitions was the High Court.
  17. It would be ridiculous and fundamentally wrong for any court to adopt a separationalistic view or approach and insist on splitting issues between the courts where a court was properly seized with a matter but a constitutional issue not within its obvious exclusive jurisdiction was raised. Thus, the Court had the jurisdiction to entertain the issues raised in the petition and further that the alternative remedies did not offer the petitioner efficacious remedies since the said forums were not proper forums in which the issues raised could be fully ventilated.
  18. The fact that article 165(3)(d)(iii) of the Constitution empowered the Court to determine any matter relating to constitutional powers of state organs in respect of county governments was a clear pointer to the fact that the Constitution contemplated conflicts between constitutional powers of State organs including the Legislature and the Executive whether at national or county level. Thus, the petitioner had locus to invoke the Court’s jurisdiction to determine the question whether the actions of the 1st and 2nd respondents impeded the petitioner’s constitutional and legal mandate.
  19. The Constitution was clear on how a County Assembly was to be dissolved and the formation of the People’s Assembly was not such mode of its dissolution.
  20. The 1st and 2nd respondents had not addressed the factual issues raised by the petitioner. The respondents’ view that they had the powers to oversight the manner in which the petitioner carried out its Constitutional mandate was misconceived and had no legal or constitutional basis.
  21. The law did not provide for any institution or entity to stop withdrawal of funds after the Controller of Budget had approved the withdrawal of funds. Once the said approval was given as per article 228 of the Constitution, the role of the 1st and 2nd respondents was facilitative. They could not question the manner in which the petitioner intended to use the funds as that function belonged to the office of the Auditor General and the senate. The 1st and 2nd respondents had to respect the financial independence of the petitioner as guaranteed by the Constitution and would not impede that mandate by inventing roadblocks on its path. To do so amounted to abuse of their powers.
  22. The actions or inactions of the 1st and 2nd respondents were actuated and motivated by ulterior motives. That was the only way one could explain the unwarranted axe grinding voyage that they embarked on. A power which was abused should be treated as a power which had not been lawfully exercised. The exercise of public power had to comply with the Constitution and the doctrine of legality.
  23. The 1st and 2nd respondents did not explain the basis upon which they decided to withhold the disbursement of the funds that were earmarked for the petitioner by those constitutionally mandated to approve. They were misusing and abusing the state power to settle their own scores rather than to render service to the people of Machakos County. State power was geared towards service to the people and ought not to be annexed for achievement of collateral and mischievous, improper and collateral purposes. To deliberately set out to cripple the activities of a constitutional body in order to bring its operations to a halt with a view to making it toe the line could only call for condemnation from the Court. Therefore, the actions or inactions of the 1st and 2nd respondents were not based on law and were ultra vires their powers and mandate. They were in fact unconstitutional.
  24. Pursuant to article 228(4) and (5) of the Constitution, the requisitions by the petitioner were subject to the approval of the Controller of Budget. The Court could not therefore direct the Controller of Budget on how to conduct its Constitutional mandate. The Constitution allocated certain powers and functions to various bodies and tribunals. It was important that those bodies and tribunals be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. The Court could not issue orders whose effect would be to compel the Controller of Budget to approve the petitioner’s requisitions for funds without considering the law and the Constitution.
Petition partly allowed.
Orders;
  1. Declaration issued that the process of releasing funds to the petitioner by the 1st, 2nd, 3rd and 4th respondents was based on specific provisions of the Constitution of Kenya 2010, the County Government Act, 2012, the Public Finance Management Act, 2012 and other Acts and the 1st respondent had no authority to refuse to release funds and or to revise downwards the petitioner’s budget as long as the same had been approved by the 4th respondent.
  2. Permanent injunction issued restraining and/ or prohibiting the 1st and 2nd respondents jointly and severally, their agents, or any person acting under their behest from withholding any funds budgeted for, approved and allocated to the petitioner by the 4th respondent.
  3. Mandatory order issued compelling the 1st and 2nd respondents to release all the funds due and owing to the petitioner as per the itemized budgets submitted to the 2nd respondent after approval by the 4th respondent.
  4. Each party was to bear their own costs.
Kenya Law
Case Updates Issue 017/2019
Case Summaries

CONSTITUTIONAL LAW Requirements for the admission and appointment of a foreign advocate to act as an advocate in Kenya

Philomena Mbete Mwilu vs Director of Public Prosecutions & 3 Others [2018] eKLR
Petition 295 of 2018
High Court at Nairobi
January 17, 2019
Omondi H.A, Ngugi M, Tuiyott F, Musyoka W, Mwita E.C, JJ
Presented by Chelimo Eunice

Download the Decision

Constitutional Law-powers of the Director of Public Prosecutions-powers of the Director of Public Prosecutions to appoint a private legal practitioner as a public prosecutor- powers of the Director of Public Prosecutions to appoint a private legal practitioner to represent Director of Public Prosecutions in other proceedings- what were the conditions to be met by the Director of Public Prosecutions before a private legal practitioner is appointed as a public prosecutor or to represent him- whether the Director of Public Prosecutions would appoint a foreign advocate to appear on his behalf in cases which were not of a criminal nature under section 85(1) of the Criminal Procedure Code-Constitution of Kenya, 2010, articles 157 & 158; Office of the Director of Public Prosecutions Act, sections 30 & 31; Criminal Procedure Code, section 85(1).
Procurement Law-procurement process-procurement of the services of a foreign advocate by the Director of Public Prosecutions- where it was claimed that process of procurement and appointment of the foreign advocate did not comply with principles of the Constitution and the Public Procurement and Asset Disposal Act and generally breached principles applicable to public procurement - whether the appointment of the foreign advocate met the criteria and processes set in law- Constitution of Kenya, 2010, articles 10 & 227; Public Procurement and Asset Disposal Act, sections 4, Office of the Director of Public Prosecutions Act, sections 30 & 31.
Advocates-foreign advocates-admission of foreign advocates to practise as an advocate in Kenya-powers of the Attorney General to admit a foreign advocate to practise as an advocate in Kenya-what were the conditions to be met by a foreign advocate before being admitted to practise in Kenya-whether a foreign advocate was required to take a local practicing certificate-where it was claimed that a foreign advocate had not been properly admitted to practice in Kenya-whether the admission of the foreign advocate met the criteria and processes set in law- Advocates Act, section 9, 11 & 22.
Administrative Law-administrative review of a procurement process -what was the procedure and the right forum for the administrative review of a procurement process-a constitutional petition challenging the process of procurement of the services of a foreign advocate- what was the procedure for challenging the decision of the Director of Public Prosecutions of procuring the services of a foreign advocate- a claim that the appointment of the foreign advocate raised constitutional questions- whether the Constitutional Court, in proceedings challenging the procurement, admission and appointment of a foreign advocate, was the appropriate forum to challenge the process of procurement of the services of such an advocate- the Public Procurement and Asset Disposal Act, section 175 (1).
Statutes-interpretation of statutory provisions-interpretation of sections 9, 11, 22 of the Advocates Act-requirement for advocates to hold a local practicing certificate-whether a local practicing certificate needed to be taken out by a foreign advocate admitted to practise in Kenya- what was the rationale for requiring an advocate who ordinarily practices in Kenya to obtain a local practicing certificate- Advocates Act, section 9, 11 & 22.
Statutes-interpretation of statutory provisions-interpretation of section 85(1) of the Criminal Procedure Code which gave power to the Director of Public Prosecutionsto appoint public prosecutors in respect to any specified case or classes of cases of a criminal nature- interpretation of sections 30 and 31 of the Office of the Director of Public Prosecutions Act, which gave general power to the Director of Public Prosecutions to engage a private legal practitioner to appear for him in any proceedings-what was the difference between engagement of foreign advocate under section 85(1) of the Criminal Procedure Code and sections 30 and 31 of the Office of the Director of Public Prosecutions Act- Criminal Procedure Code, section 85(1); the Office of the Director of Public Prosecutions Act, sections 30 and 31.
Constitutional Law–constitutional offices-independence of constitutional offices-independence of the office of the Director of Public Prosecutions-obligation on the Director of Public Prosecutions, on cases of delegation of his power, to retain responsibility for his office- a requirement for persons engaged under contract by the Director of Public Prosecutions to uphold the independence expected of the office of the Director of Public Prosecutions- whether the appointment by the Director of Public Prosecutions of a foreign private practitioner to represent him in the proceedings was a surrender of the independence of his office-Constitution of Kenya, 2010, article 157; Office of the Director of Public Prosecutions Act, section 22.
Advocate-client relationship– legal representation – conflict of interest – what was meant by conflict of interest-prove of conflict of interest-where two senior counsels representing the petitioner were members of the Senate Committee on Justice, Legal Affairs and Human Rights, which committee had held a meeting with the Director of Public Prosecutions regarding engagement of the foreign advocate, which engagement was the subject of the instant petition- where it was claimed that the two senior counsels misconducted themselves by failing to disclose that they had a personal interest in the matter under discussion- whether such failure to make that disclosure by itself warranted a finding that a conflict of interest arose from their representing the petitioner - Code of Conduct for Members of Parliament (the Fourth Schedule to the Parliamentary Powers and Privileges Act), paragraph 6 (1) (b).
Words and phrases-definition-definition of relevant interest-an interest that would be seen by a reasonable member of the public to influence the way a member discharges his or her parliamentary duties- Code of Conduct for Members of Parliament (the Fourth Schedule to the Parliamentary Powers and Privileges Act), paragraph 6 (2).
Words and phrases-definition-definition of conflict of interest- a real or seeming incompatibility between one’s private interest and one’s public or fiduciary duties- Black’s Law Dictionary, 10th edn.

Brief facts:
The petitioner was charged with several offences in Anti-Corruption Court. She then filed the instant petition in which she alleged that the investigations by the Director of Criminal Investigations (DCI) and the institution of the criminal proceedings by the Director of Public Prosecutions (DPP) violated her constitutional rights and was an abuse of court process. When the matter came up for hearing, issues arose in respect of representation of the petitioner and the DPP. The petitioner contested the appearance of Mr. Khawar Mehood Qureishi, QC as counsel for the DPP, challenging the manner of his recruitment, appointment and appearance.
The DPP sought disqualification of Senior Counsels Mr. James Orengo and Mr. Okongo Omogeni (senior counsels) from further acting for the petitioner in the petition as well as in the Anti-Corruption Court and all related matters. The DPP argued that the two senior counsels were members of the Senate Committee on Justice, Legal Affairs and Human Rights, where in one of its meetings, the DPP was asked various questions relating to the engagement of Mr. Qureshi, QC to act on his behalf and that the two senior counsels actively participated in the meeting, hence a clear case of conflict of interest.

Issues:

  1. What were the requirements for the admission of a foreign advocate to act as an advocate in Kenya?
  2. What were the requirements for the appointment of a foreign private practitioner to represent the Director of Public Prosecutions in Kenyan courts?
  3. Whether a foreign advocate was required to takea Kenyan practicing certificate.
  4. What was the difference between engagement of foreign advocate under section 85(1) of the Criminal Procedure Code and under sections 30 and 31 of the Office of the Director of Public Prosecutions Act?
  5. Whether the appointment by the Director of Public Prosecutions of a foreign private practitioner to represent him in the proceedings was a surrender of the independence of his office.
  6. Whether failure by an advocate to disclose that they had personal interest in the matter by virtue of having sat in committees which had discussed the issue at hand amounted to a conflict of interest.
  7. What was the right procedure and forum for challenging the decision of the Director of Public Prosecutions of procuring the services of a foreign advocate? Read More..

Relevant provisions of the Law
The Office of the Director of Public Prosecutions Act;
Section 30;

“(1) The Director may from time to time, and as need may arises, engage the services of a qualified private legal practitioner to assist in the discharge of his mandate.
(2) In engaging the services of a private legal practitioner under subsection (1), the Director shall comply with the relevant public procurement law and regulations.

Section 31;
“In proceedings to which the Office is a party or in respect of which the Office otherwise has any function under this Act, the Director may appear in person or be represented by—

(a) any other officer subordinate to him; or
(b) a private legal practitioner engaged in accordance with section 30”.

The Advocates Act;
Section 11;
“(1) The Attorney-General may, in his absolute discretion, admit to practise as an advocate, for the purpose of any specified suit or matter in or in regard to which the person so admitted has been instructed by the Attorney-General or an advocate, a practitioner who is entitled to appear before superior courts of a Commonwealth country, if such person has come or intends to come to Kenya for the purpose of appearing, acting or advising in that suit or matter and is not disqualified or suspended by virtue of this Act, and a person so admitted (hereinafter in this section referred to as a “foreign advocate”) shall not, for the purpose of that suit or matter, be deemed to be an unqualified person.
(2) No foreign advocate shall be entitled to practise until he has paid to the Registrar the prescribed admission fee.
(3) No foreign advocate shall be entitled to practise unless he is instructed by, and if appearing in court appears with, an advocate or any person mentioned in section 10, nor shall any foreign advocate be entitled to sign or file any pleadings in court.
(4) Every foreign advocate shall, during and for the purposes of his admission, be deemed to be an advocate for the purposes of Parts VIII, IX, X, and XI:
Provided that in respect of a foreign advocate references in Part XI, or in any rules made under this Act, to the Disciplinary Committee shall be construed as references to the Chief Justice and references to striking the name of an advocate off the Roll shall be construed as references to disqualifying a foreign advocate from practice in Kenya.
(5) Where a complaint under Part XI has been made in respect of a foreign advocate, the Chief Justice, in addition to the powers conferred upon him by that Part as modified by subsection (4), shall have power, in his discretion at the instance of the complainant or of the Council of the Society, to suspend immediately such foreign advocate from practice in Kenya pending the dismissal of the complaint or the making of a final order in respect thereof”.

The Criminal Procedure Code;
Section 85(1; )

“(1) The Director of Public Prosecutions, by notice in the Gazette, may appoint public prosecutors for Kenya or for any specified area thereof, and either generally or for any specified case or class of cases”.

Held :

  1. The Office of the Director of Public Prosecutions Act (the ODPP Act) was intended to give effect to articles 157 and 158 of the Constitution and for connected purposes. Section 30 of the ODPP Act granted power to the DPP to appoint a private legal practitioner as a public prosecutorfrom time to time and on need basis, but in compliance with the relevant public procurement law and regulations. Similarly, section 31 of the ODPP Act gave powers to the DPP to appoint a private legal practitioner to represent him in other proceedings.
  2. Mr. Qureshi was a private legal practitioner and his engagement to act for the DPP in the proceedings would have to be in comport with public procurement law. That was the express expectation of section 30(2) of the ODDP Act. However, even without that explicit prerequisite, the provisions of section 4 of the Public Procurement and Asset Disposal Act, would require the office of the DPP to comply with the provisions of the Public Procurement and Asset Disposal Act with respect to procurement, planning, processing, inventory and asset management, disposal of assets and contract management. That conformed with the constitutional imperative set out in article 227 (1) of the Constitution that when a public entity contracted for goods or services then it should do so in accordance with a system that was fair, equitable, transparent, competitive and cost effective.
  3. Article 10 of the Constitution required that the DPP complied with the rule of law, public participation, exercise of good governance, integrity, transparency and accountability.
  4. Part XV of the Public Procurement and Asset Disposal Act provided an elaborate procedure for the administrative review of a procurement process, the forum for which was the Public Procurement Administrative Review Board. Section 175 (1) of the Public Procurement and Asset Disposal Act allowed a party aggrieved by a decision of the Review Board to seek judicial review in the High Court within 14 days of the decision of the Review Board.
  5. There was a clear procedure provided by statute for challenging the decision of the DPP. Where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.Even if the appointment of Mr. Qureshi raised constitutional questions, the proper way of raising them would be by way of a substantive constitutional petition in which the issues would be at the centre of the proceedings and not as an interlocutory challenge in proceedings such as the instant case. All arguments of whatever guise made against the recruitment of Mr. Qureshi as affronting the law in respect to public procurement had to fall by the way side.
  6. An interrogation as to whether Mr. Qureshi had been properly admitted to practice in Kenya had to start with an analysis of the provisions of section 11 of the Advocates Act and whether Mr. Qureshi’s admission met the criteria and process set out in the Advocates Act.
  7. From the fairly simple and uninvolved language of section 11 of the Advocates Act, the Attorney General (AG) was granted absolute and unfettered discretion, subject only to the law, to admit a foreign advocate to practice in Kenya if that person was entitled to appear before a Superior Court of a Commonwealth country, was not disqualified or suspended and that the foreign advocate was instructed by, and if he appeared in court, had to appear with an advocate or an officer from the AG’s Office or DPP, or any other person who had a right of audience in Kenyan courts.
  8. A foreign advocate would, however, not be entitled to practice until he had paid the prescribed admission fee to the Registrar, in the current constitutional dispensation, the Chief Registrar of the Judiciary. Unlike a local advocate, a foreign advocate was not entitled to sign or file any pleadings in court.
  9. There was no prescribed format in the Advocates Act for admission of a foreign advocate. The AG appointed Mr. Qureshi by a letter dated December 5, 2018, but subject to various conditions, including the requirement that he had to maintain a valid practicing certificate. It was not clear, however, from the letter of admission whether the practicing certificate referred to was a local practicing certificate or a valid practicing certificate from the jurisdiction where he was ordinarily admitted to practice.
  10. A plain textual reading of the provisions of section 11 of the Advocates Act did not support the proposition that a local practicing certificate needed to be taken out by a foreign advocate. In reaching that conclusion, the Court had to interrogate the rationale for requiring an advocate who ordinarily practices in Kenya to obtain a local practicing certificate.
  11. Under section 9 of the Advocates Act, a person could not qualify to practice as an advocate in Kenya unless, inter alia, he or she held a practicing certificate. A practicing certificate was issued by the Chief Registrar of the Judiciary upon application in terms of section 22 of the Advocates Act. Drawing from the statutory requirements, one of the reasons why a practicing certificate was issued, was to disqualify any person who had been suspended from practice. The occasion for issuing the certificate was also the occasion for checking, among other things, that the applicant was an admitted advocate and had paid the prescribed practicing fees to the Law Society of Kenya (LSK)as well as to the Advocates Benevolent Association. In addition, a no objection approval from the Law Society was required.
  12. A foreign advocate needed not be a member of the Law Society of Kenya and the Advocates Benevolent Association as the advocate did not ordinarily practice in Kenya. Subscription fees in respect thereof was not necessary for such advocate. In addition, not being a member of the LSK, the written approval or a letter of no objection by the President of the LSK would not be required. The LSK could not approve or disapprove a person whom it did not supervise.
  13. In the exercise of his discretion to admit a person to practice as an advocate in Kenya, the AG was under a duty to satisfy himself that the person he admitted was a practitioner entitled to appear before Superior Courts of the Commonwealth. A person suspended or expelled from appearing before a Superior Court of a Commonwealth country did not qualify. Once the foreign advocate satisfied the requirement of the relevant Commonwealth country which entitled him or her to practice before the Superior Courts of that country, then it was needless to ask that advocate to satisfy local requirements for issuance of a Kenyan practicing certificate.
  14. A foreign advocate who had been admitted by the AG to practice as an advocate in Kenya in consonance with the provisions of section 11 of the Advocates Act needed not to take out a local practicing certificate.
  15. A certificate showing that Mr. Qureshi was a self-employed barrister in England and Wales was produced in Court. He had a right of audience before every court in those two countries in relation to all proceedings regarding administration of oaths, immigration work, probate activities and reserved instrument activities. They included an audience before the Superior Courts of those countries. The certificate showed a validity period from April 1, 2018 to April 30, 2019.
  16. England and Wales were members of the Commonwealth family. In addition, the Bar Council of England and Wales certified Mr. Qureshi as an advocate of good standing with a valid certificate. As at December 5, 2018 when the AG admitted Mr. Qureshi to practice as an advocate in Kenya, he met the criteria for such admission and there was no flaw in the manner in which the AG exercised his discretion. In so far as Mr. Qureshi paid Kshs.400 on December 5, 2018 as admission fees, he met the further condition imposed by section 11(2) of the Advocates Act. While it was accepted that he did not have a Kenyan practicing certificate, it was not required by statute.
  17. Mr. Qureshi’s appointment was made through Gazette Notice No. 12613, dated December 4, 2018, where the DPP appointed him as a Special Public Prosecutor in the criminal case but also in the constitutional petition and all matters incidental thereto. The DPP invoked the provisions of section 85(1) of the Criminal Procedure Code.
  18. As at the date of the Gazette Notice, December 4, 2018, Mr. Qureshi had not been admitted to practice in Kenya since his letter of admission was dated December 5, 2018. However, the issue of the gazette notice preceding the date of admission was not taken up by the petitioner, and since it emerged later in the ruling, nothing turned upon it.
  19. The power donated to the DPP under section 85(1) of the Criminal Procedure Code was to appoint public prosecutors in respect to any specified case or classes of cases of a criminal nature. The proceeding before the Court was a constitutional petition challenging, inter alia, the commencement and prosecution of criminal proceedings against the petitioner. While there was a nexus between the petition and the criminal proceedings, in that the petition confronted the constitutionality of the criminal proceedings, the petition was not a criminal proceeding. The appointment of Mr. Qureshi to appear for the DPP in the instant proceedings could not be properly done under section 85(1) of the Criminal Procedure Code.
  20. By dint of the provisions of section 31 of the ODPP Act, however, the DPP had an undoubted power to engage a private legal practitioner to appear for him in the proceedings. Having been properly admitted to practice in Kenya, Mr. Qureshi became available for the said appointment. Unlike under section 85(1) of the Criminal Procedure Code under which his appointment required gazettement with respect to criminal prosecutions, his engagement to act in any other matter in which the DPP was a party under section 31 of the ODPP Act did not require gazettement. Mr. Qureshi was thus properly appointed to appear in the instant proceedings.
  21. The Office of the DPP was established by article 157(1) of the Constitution. Article 157(10) of the Constitution and section 6 of the ODPP Act affirmed the independence of the Office of the DPP. With that independence, even a person engaged under contract, such as Mr. Qureshi, was under obligation to uphold the independence expected of the office of the DPP.
  22. In the constitutional and statutory scheme of things, whenever the DPP was permitted to delegate his power, there was an obligation placed on him/her to retain responsibility for his office. The Office of the DPP was created and given specific mandate by the Constitution and the ODPP Act. The reality was that the DPP could not work alone, on occasion he would delegate. Even when he did, the DPP had to remember the high calling of his office in which independence had to be an enduring feature, as per the requirements of article 157 (9) of the Constitution and section 22 of the ODPP Act.
  23. The appointment by the DPP of a foreign private practitioner to represent him in the proceedings was not a surrender of the independence of his office. When a private practitioner acted on the instructions and under the directions of the DPP, the counsel was the alter ego of the DPP.
  24. The Respondents produced in Court a special pass issued to Mr. Qureshi to work with the DPP as an advocate/public prosecutor. Section 36 of the Kenya Citizenship and Immigration Act permitted for the issuance of permits and passes prescribed under section 40 of the statute. The latter section set out the procedure for issue of permits and passes.
  25. The Kenya Citizenship and Immigration Regulations, which were promulgated under the Kenya Citizenship and Immigration Act, set out the category of passes that could be issued by an Immigration Officer. One such pass is a special pass. The Immigration Officer issued Mr. Qureshi a special pass to enable him work as an advocate/public prosecutor. One of the things such a pass enabled the holder to do temporarily included conducting any business, trade or profession. The petitioner had not demonstrated how the issuance of that special pass violated the Kenya Citizenship and Immigration Act, hence there was no basis to fault the issuance of the pass.
  26. The appointment of Mr. Qureshi, met the requirements of statute and hence the petitioner’s application was without merit.
  27. A conflict of interest meant a situation where a person found himself or herself confronted by two different interests so that serving one interest would be against the other interest.
  28. For there to be conflict of interest, the participation of the two senior counsels in the Senate Committee, and their role as counsel for the petitioner in the matter, or any other related matter, had to be inconsistent or incompatible, bearing in mind the information they received or that would have come to their knowledge during the exercise of their oversight role over the DPP and which would be prejudicial to the course of justice.
  29. Mr. Orengo and Mr. Omogeni (SC) were members of the Senate and sat in the Senate Committee of Justice Legal Affairs and Human Rights Committee. They were in that Committee on the material day when the DPP appeared before the Committee as senators and members of the Committee. Any matters that were discussed in the Senate Committee were discussed in their presence by virtue of their position as members of the Committee.
  30. Paragraph 6 (1) (b) of the Code of Conduct for Members of Parliament (the Fourth Schedule to the Parliamentary Powers and Privileges Act (No 29 of 2017)) provided that members of the house had to declare any relevant interest in the context of parliamentary debate or the matter under discussion before contributing to debates in the house or its committees. Relevant interest was defined in paragraph 6 (2) as an interest that would be seen by a reasonable member of the public to influence the way a member discharges his or her parliamentary duties.
  31. Any misconduct in respect to the failure to make the disclosure before the committee was a misconduct in the discharge of a member’s parliamentary duty. However, such misconduct if any, would not have a bearing on whether there was a conflict of interest in respect to the proceedings before the Court. What was critical was that the information that the two senior counsels obtained during the proceedings was such that it was relevant, and could cause their client to have an unfair advantage in respect to the instant proceedings.
  32. From the discussions of the day as captured in the Hansard, it was clear from the proceedings of that day that the issues that were discussed were general in nature and did not go into specifics that would be prejudicial to the hearing of the petition. There was no evidence of discussion relating to the petition or the case before the Anti-Corruption Court to give an impression that the merits of the petition or the other case were discussed.
  33. A party alleging a conflict of interest bore the burden of presenting clear evidence that the person said to be acting in conflict of interest was acting in a manner prejudicial to the interests of the other party. The facts placed before the Court did not satisfy the Court that the conduct of the two senior counsels would amount to a conflict of interest in so far as the petition or related matters were concerned. The information that was given to the Committee by the DPP related to the appointment of Mr. Qureshi. It did not touch on or had any bearing on the merits of the petition or any other matter involving the petitioner.
  34. The application by the DPP was without merit.

Both applications dismissed with no order as to costs.

CONSTITUTIONAL LAW Circumstances in which a judge would be removed from office

Joseph Mbalu Mutava v Tribunal Appointed to Investigate the Conduct of Justice Joseph Mbalu Mutava
Petition 15 "B" of 2016
Supreme Court at Nairobi
P M Mwilu, DCJ & DP, M K Ibrahim, J B Ojwang, Njoki Ndungu & I Lenaola, SCJJ
March 12, 2019
Reported by Beryl A Ikamari

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Constitutional Law-removal of a judge from office-gross misconduct or misbehaviour-claim that a judge under investigation colluded with others in order to have a pending case irregularly allocated to him, wrote a ruling in a case concerning which a complaint was pending against him before the JSC and tried to influence a ruling in a case pending before a different judge-whether the judge would be removed from office.
Jurisdiction-jurisdiction of the Supreme Court-jurisdiction relating to a Tribunal appointed to investigate a judge for purposes of removal from office-questions relating to the constitution of the Tribunal-claim that two out of seven members of the Tribunal were appointed outside of the 14 days period allowed for such appointments-where a challenge on constitution of the Tribunal had been pursued at the High Court under article 165(d)(ii) of the Constitution and an appeal was lodged against the High Court's decision at the Court of Appeal but no further appeal was lodged at the Supreme Court-whether the Supreme Court could entertain the same issue on constitution of the Tribunal as part of its jurisdiction under article 168(7) of the Constitution-Constitution of Kenya 2010, articles 165(d)(ii) & 168(7).
Jurisdiction-jurisdiction of a tribunal appointed to investigate the conduct of a judge for purposes of removal from office-withdrawal of complaints lodged at the JSC against the judge after the appointment of the Tribunal-whether the mandate of the Tribunal would be affected by the withdrawal of complaints.
Constitutional Law-fundamental rights and freedoms-right to a fair hearing-fair hearing rights before a tribunal appointed to investigate the conduct of a judge for purposes of removal from office-where there was failure to comply with the petitioner's statutory rights relating to a fair trial-effect of a statutory provision that the Tribunal was not strictly bound by rules of procedure but would have to adhere to the rules of natural justice-whether the right to a fair hearing was violated-Judicial Service Act, No 1 of 2011, second schedule sections 8(2), 13 & 17(1).
Evidence Law-admissibility and relevance of evidence-witness testimony-evidence of an advocate whose client made a complaint but withdrew the complaint-whether the evidence ought to have been considered.
Evidence Law-standard of proof-standard of proof in proceedings before a tribunal established to investigate the conduct of a judge for purposes of removal from office-whether circumstantial evidence tendered before such a tribunal would require a different standard of proof.

Brief facts:
The petitioner was appointed a judge of the High Court of Kenya on August 23, 2011. Starting from March 2012 to March 2013, the Judicial Service Commission (JSC) received 13 complaints against the petitioner. The Committee of the JSC that investigated the complaints found that 3 of them laid a sufficient basis for the petitioner's removal from office. On May 20, 2013, the JSC sent a petition to the President recommending the petitioner's suspension and the appointment of a Tribunal to investigate the allegations made against the petitioner. A tribunal was appointed and a gazette notice was issued to that effect.
The petitioner challenged the competence of the Tribunal and alleged that the JSC had not given him a fair hearing in H. C. Petition No. 337 of 2013. The High Court delivered a judgment in favour of the petitioner and declared the Tribunal void as two of its members were appointed outside of the prescribed 14 day period. On appeal, the Court of Appeal found that the Tribunal was appointed within the terms of the Constitution and it ought to discharge its mandate. In response, the petitioner filed a notice of appeal at the Supreme Court but did not pursue the appeal further.
When the proceedings before the Tribunal began, the petitioner, through a preliminary objection, challenged the Tribunal's jurisdiction to handle complaints that had been withdrawn. The Tribunal made the finding that after the JSC investigated the complaints they ceased to exist independently as complaints that were capable of being withdrawn. The Tribunal's findings were that certain complaints were proved to the required standard and it recommended that the petitioner ought to be removed from office. The following were the complaints that were proved:-

  1. that the petitioner irregularly, inappropriately and knowingly in collusion with other parties caused Nairobi High Court Misc. (JR) application No. 305 of 2012 Republic v Attorney General and 3 others, Ex parte Kamlesh Mansukhlal Damji Pattni to be allocated to himself and without the knowledge and consent of the Duty Judge and the Presiding Judge of the Judicial Review Division;
  2. that the petitioner proceeded to write a judgment in respect of Nairobi High Court Misc. (JR) application No. 305 of 2012 Republic v Attorney General and 3 others, Ex parte Kamlesh Mansukhlal Damji Pattni at a time when the Judicial Service Commission was inquiring into allegations of misconduct against him with regard to the same matter; and,
  3. that the petitioner sought to influence a ruling in the case of Nairobi HCCC No 705 of 2009, Sehit Investments Ltd v Josephine Akoth Onyango & 3 others in favour of the Plaintiff therein through oral and text messages from his cell phone to the judicial officer who was presiding over the hearing of that matter.

The petitioner filed a Supreme Court appeal against the findings of the Tribunal. He stated that the Tribunal had no jurisdiction to investigate allegations made against him as it was not properly constituted and that it could not consider allegations based on complaints that had been withdrawn. He added that the Tribunal's findings were not founded on evidence; that there were unfounded presumptions made and that the evidence of some key witnesses was ignored. The petitioner added that there was failure to apply the correct standard of proof applicable to proceedings of a tribunal established under article 168(5) of the Constitution and that the Tribunal erroneously considered the merits of orders that the petitioner issued in a certain matter.

Issues:

  1. Whether the Tribunal had jurisdiction to investigate the conduct of a judge where complaints made against the judge at the JSC had been withdrawn and appointments were made to the membership of the Tribunal outside the constitutional timelines.
  2. Whether in light of allegations that the petitioner was not provided with a list of allegations together with a summary of the supporting evidence as was required by statute, that he was not served with a document that a witness referred to and that a witness who was not scheduled to testify appeared and testified, the petitioner was accorded a fair hearing before the Tribunal.
  3. Whether the Tribunal correctly weighed the evidence and arrived at its determinations with respect to allegations concerning the petitioner's collusion with others in order to have a particular pending case allocated to him.
  4. Whether the evidence of an advocate whose client had withdrawn its complaint against a judge, was correctly weighed and considered by the Tribunal that investigated the judge.
  5. Whether it was proved that the petitioner's inquiries on the progress of a case that was pending before another judge were meant to influence a ruling in that case.
  6. What was the correct standard of proof in the proceedings of a Tribunal established under article 168 of the Constitution to investigate the conduct of a judge?
  7. Whether the Judicial Service Commission (JSC) had the mandate to ask a judge to stop handling a pending case on grounds that the JSC was inquiring into the conduct of the judge as related to that pending case. Read More..

Held :

  1. While exercising jurisdiction under article 168(8) of the Constitution, unlike under article 163(4) of the Constitution, the Supreme Court's mandate was expansive; it was required to re-evaluate and re-assess the evidence on record in order to establish whether the Tribunal misdirected itself and whether its conclusions should stand.
  2. Under article 168(5) of the Constitution, members of the Tribunal were to be appointed by the President within 14 days of the receipt of the JSC petition. Five members of the Tribunal were appointed within the requisite 14 days but two were appointed outside of the constitutional timelines. Those appointments raised questions on whether the Tribunal was properly constituted.
  3. An improperly constituted tribunal had no capacity to determine any issue since it was an unknown entity in law and its proceedings were null and void ab initio. Article 165(d)(ii) of the Constitution gave the High Court jurisdiction to interpret the Constitution and the petitioner sought an interpretation as to whether the Tribunal was properly constituted. The High Court found that the Tribunal was improperly constituted but the Court of Appeal overturned the High Court's decision and determined that the members of the Tribunal need not necessarily be appointed within 14 days after the presentation of the petition to the President by the JSC. Having failed to appeal against the Court of Appeal's decision, the petitioner was estopped from raising the same issue in the instant appeal. Once the issue concerning the jurisdiction of the Tribunal was settled, the Tribunal could then lawfully exercise its mandate under article 168(7) of the Constitution.
  4. If there had been no attempt to utilize the mechanism provided for in article 165(3)(d)(ii) of the Constitution, the Supreme Court would have had jurisdiction to determine the question concerning the constitution of the Tribunal. However, since the High Court had been approached under that provision that question would have to be determined through the appeal mechanism in the constitutionally provided hierarchy of courts. The petitioner's invitation for the Supreme Court to assume jurisdiction on that issue was not acceptable.
  5. Any withdrawal of a complaint after the setting up of a tribunal would not strip the Tribunal of its powers because the Tribunal's role was to inquire into the matter expeditiously and report on the facts and make binding recommendations to the President. If there was evidence to support the allegations, the Tribunal would have to make determinations and present its recommendations to the President.
  6. The presentation of the petition to the President meant that by that point in time, the individual complaints had changed in substance and were a totality of allegations which in the opinion of the JSC disclosed grounds for the removal of a judge, subject to investigation by a tribunal. The role of the JSC would end after the presentation of the petition to the President. The subsequent withdrawal of complaints presented to the JSC would have no effect as the Tribunal's point of reference would be the JSC's petition which would particularize the allegations made against the judge without reference to the specific individual complaints. The Tribunals' jurisdiction was not affected by the withdrawal of individual complaints.
  7. In the proceedings before the Tribunal, there was evidence that a witness made reference to a letter that had not been served on the petitioner. The Tribunal issued directions for the assisting counsel to provide the letter to the petitioner. There was also evidence that there was a witness who was scheduled to testify without the knowledge of the petitioner. The Tribunal gave the petitioner latitude to decide on whether to cross-examine the witness a day later after internalizing his evidence.
  8. Section 13 of the Second Schedule to the Judicial Service Act provided that the Tribunal would not be bound by strict rules of evidence but would be guided by the rules of natural justice and relevancy. The Tribunal made deliberate efforts to ensure that the petitioner's right to a fair hearing was protected.
  9. Under section 17(1) of the Second Schedule to the Judicial Service Act evidence before the Tribunal could be presented in the form of a memorandum, affidavit or other documentation. The petitioner had a statutory right under section 8(2) of the Second Schedule to the Judicial Service Act to be provided with a list of allegations together with a summary of supporting evidence at least 14 days before the hearing. At the pre-trial conference the petitioner complained of non-service of certain relevant documents. However, the pre-trial conference was not the commencement of the hearing but rather a time to decide on when and how to proceed.
  10. The Tribunal proceedings were not adversarial; they were inquisitorial. More witnesses were likely to come on board during the proceedings and in such instances the petitioner would be granted adequate time to prepare his case. Therefore, the Tribunal acted within expected limits of natural justice and fair hearing.
  11. Through its advocate, the petitioner confirmed the authenticity of the hansard report by signing the certificate of verification. The certificate indicated that the petitioner verified and agreed that the hansard record of the Tribunal was correct and he did not dispute the certificate. The petitioner did not point out a specific error on the record that he thought had prejudiced his case in any way. Therefore, there was no merit in the petitioner's claim that the hansard report had fundamental errors.
  12. Neither the Constitution nor the Judicial Service Act specified the method of investigation to be employed by the Tribunal in gathering evidence before or during its proceedings. However, the Tribunal was required to comply with the rules of natural justice meaning that the judge under investigation would be allowed to cross-examine all the witnesses and to tender evidence to rebut the allegations made against him.
  13. It was alleged that the petitioner sent text and oral messages to a judicial officer in an attempt to influence a ruling. A lead police investigator had been contacted to confirm the allegations on sending messages to influence a ruling. It was unclear why the petitioner was against the use of police officers to investigate the allegation. The petitioner, in rebuttal, sought to rely on the evidence of an expert witness who was an Inspector of Police to confirm that the judicial officer concerned was unable to identify the person that called him. On the other hand, the petitioner confirmed communicating with the judicial officer concerned through his Safaricom number. What the petitioner's objection sought to achieve was unclear.
  14. Section 12 (1) of the Second Schedule to the Judicial Service Act gave the Tribunal discretion to summon any person to testify before it. The petitioner's wife testified before the Tribunal without the petitioner's counsel objecting to it despite having known in advance that she would testify. Even though the Tribunal summoned the petitioner's wife, she was not compelled to testify.
  15. The evidence indicated that the advocates for the ex parte applicants in application No. 305 of 2012, requested for the matter to be placed before the petitioner by writing two letters. The letters contained some inaccuracies; for example, one had a false claim that the matter was part-heard before the petitioner and the other claimed that all the parties in the matter required clarification from the petitioner while in fact the DPP said that it did not require the clarification. Therefore, there was a clear scheme to have the matter mentioned before the petitioner and not any other judge.
  16. The petitioner was not the vacation duty judge in August 2012 but he handled application No. 305 of 2012 on August 10, 2012. He did not have permission or authority to deal with judicial review matters. It was only the vacation duty judge that could legitimately ask another judge to stand in and handle a matter and the petitioner did not claim that he was asked to do so. Questions on how the petitioner handled the matter on August 10, 2012 remained unanswered.
  17. On the cause list of September 24, 2018, application No. 305 of 2012 was listed as a civil case as opposed to a judicial review case. That faulty listing was meant to disguise the nature of the suit and to conceal the identity of the applicant.
  18. It was reasonable for the petitioner to act on the letter of the ex parte applicant's advocate seeking clarification. It was clear from the petitioner's testimony that when the matter was mentioned, no clarification was sought. It was unclear why the petitioner failed to ask the parties questions on the nature of clarification that they sought. After realizing that no clarification was sought, the petitioner did not transmit the file back to the judicial review division but proceeded to adopt the consent of the parties and to fix the matter for hearing.
  19. Considering all the relevant facts, the only inference that could be drawn was that the petitioner, while colluding with others, caused application No. 305 of 2012 to be allocated to himself.
  20. In making its determination, the Tribunal set out the background that led to the filing of application No. 305 of 2012. In doing so, the Tribunal did not examine the merits of the orders granted by the petitioner in application No. 305 of 2012. Whether that background was relevant or irrelevant did not affect the substance of the Tribunal's findings. Additionally, the petitioner did not point out specific instances where the Tribunal delved into the merits of the orders he issued.
  21. While handling cases, judges were presumed to be independent and to act without being controlled by any one. Judges should always ensure that their conduct was beyond reproach in the eyes of a reasonable observer and had to uphold the principle that justice had to not only be done but be seen to have been done.
  22. The petitioner delivered a ruling in a matter concerning which he was facing investigations at the JSC. Generally, it would be reasonable to infer that such investigations would cause a reasonable judge in good conscience to refrain from dealing with the matter until the investigations were complete. The fact that a reasonable judge would have acted differently did not necessarily translate to a finding of gross misconduct on the part of the petitioner.
  23. In the absence of any contrary information, the decision as to how a judge would proceed with a matter would rest solely on the judge’s conscience guided by the Judicial Code of Conduct and Ethics. A judge would be presumed to be properly in office until the instigation of a petition for his removal and the President taking action on it. There was no reason to condemn a judge for performing his duties.
  24. Any communication to suspend the participation of a judge in a matter under inquiry before the JSC should come from the Chief Justice as the head of the judiciary as opposed to the JSC which had no mandate to make the communication. No communication was issued to the petitioner to request him to suspend his participation in application No. 305 of 2012. In writing the ruling in question, the petitioner had not engaged in gross misconduct as provided in article 168(1)(e) of the Constitution.
  25. An advocate whose client had withdrawn a complaint lodged at the JSC, testified before the Tribunal. Being a witness like any other, there was a possibility that the advocate's evidence would be inconsistent with the evidence of other witnesses and the Tribunal had to weigh the evidence and determine whether it was reliable. The findings of the Tribunal were not based on that advocate's allegedly contradictory evidence.
  26. The petitioner did not explain how evidence from the advocate in question led to a miscarriage of justice. The exclusion of that evidence would not mean that the petitioner would be exonerated from the accusations that he faced. The Tribunal relied on various pieces of evidence to make an adverse finding against the petitioner. Additionally, the complaint against the advocate as a witness was based on assumptions and conjecture and was not legally sustainable.
  27. At the material time, no person was registered as the owner of the Airtel number allegedly used by the petitioner to send messages to influence a judicial officer to make a ruling in favour of the plaintiff in a given case. There was contradictory evidence on whether the judicial officer who received the messages was able to identify the sender through the True Caller application. It was therefore not possible to rely on that evidence to identify the petitioner as the sender of the message.
  28. There was evidence of call logs showing that the Airtel number was used in certain locations including Thomsons area in Nairobi, Milimani Commercial Courts and Mbui Nzau. The record showed that the petitioner lived in Thomsons area, worked at Milimani Commercial Courts and would pass through Mbui Nzau on his way to his rural home. That number was also used to communicate to the petitioner's wife. However, call logs were not a foolproof mechanism for identifying the author of a particular message. The available information made it highly probable that the petitioner was the user of that number.
  29. The petitioner admitted that he used his Safaricom number to communicate to the presiding judicial officer about the pending case. The relevant evidence showed that the petitioner used his professional relationship with the concerned judicial officer to attempt to influence the outcome of a pending matter.
  30. The applicable standard of proof was higher than proof on a balance of probabilities but not proof beyond reasonable doubt; it was in between proof on a balance of probabilities and proof beyond reasonable doubt. Circumstantial evidence would not require a different standard of proof but it would have to meet certain recognized principles before a verdict of guilt could be reached.
  31. In principle, circumstantial evidence entailed the use of reasoning and logic to get to a conclusion. When relying on circumstantial evidence, a court or tribunal would be presented with facts through which an inference was capable of being drawn in order to prove the existence of a fact. For the instant matter, the inference should not go beyond reasonable doubt but should be higher than a balance of probabilities. Therefore, it was not enough for an alleged fact to be far more likely to have happened but there should be a level of certainty or real possibility that it had to have happened.

Petition dismissed with no orders as to costs.

CIVIL PRACTICE AND PROCEDURE Circumstances in which a claim should be made under the COMESA Yellow Card instead of an insurance company, where a road accident occurred outside Kenya

JKG & another v General Accident Insurance Company Ltd
Civil Suit 205 of 2016
High Court at Nairobi
J Kamau, J
March 14, 2019
Reported by Mathenge Mukundi

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Civil Practice and Procedure- judgments-enforcement of a judgment- duty of insurer to satisfy judgments against persons insured-who was obliged to compensate lawful fare paying passengers, on an event of a road accident that occurred outside Kenya -whether the insurance company could raise the defence of COMESA cover which was valid and in place at the time of the material accident-whether raising the defence of COMESA Yellow Card amounted to appealing the judgment entered in the favour of the plaintiffs- Insurance (Motor Vehicle Third Party Risks) Act, (Cap 405), section 10.

Brief Facts:
The parties were both minors who were injured in a road accident that took place on May 5, 2007 along Nairobi-Arusha Road. They were both fare paying passengers in a bus. The suit was brought by their father and mother as their next friends they blamed the accident on the bus company. The bus company did not call any evidence and considering the facts that the plaintiffs were lawful fare paying passengers in the said motor vehicle the bus company were liable at 100% jointly and severally. The plaintiffs sought to enforce a judgement after a successful suit against the bus company. The accident had occurred in Tanzania, therefore, the insurance company claimed that it was supposed to be covered by COMESA Yellow Card policy which was valid and in place at the time of the material accident.

Issues:

  1. Whether the insurance company was obliged to settle the judgment of lawful fare paying passengers involved in a road accident while the same was covered under COMESA Yellow Card policy.
  2. Whether the insurance company could absolve itself by raising the defence of COMESA cover which was valid and in place at the time of the material accident. Read More...

Relevant provision of the law
Insurance (Motor Vehicle Third Party Risks) Act (Cap 405)
Section 10 (4);
(1) If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in section 5(b) prescribed in respect thereof in the Schedule…
(2) No sum shall be payable by an insurer under the foregoing provisions of this section—

(a) in respect of any judgment, unless before or within thirty days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or
(b) in respect of any judgment, so long as execution thereon is stayed pending an appeal; or
(c) in connexion with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provision contained therein, and either—

(i) before the happening of the event the certificate was surrendered to the insurer, or the person to whom the certificate was issued made a statutory declaration stating that the certificate had been lost or destroyed; or
(ii) after the happening of the event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was issued made such a statutory declaration as aforesaid; or
(iii) either before or after the happening of the event, but within a period of twenty-eight days from the taking effect of the cancellation of the policy, the insurer has notified the Registrar of Motor Vehicles and the Commissioner of Police in writing of the failure to surrender the certificate.

(3A) No judgment or claim shall be payable by an insurer unless the claimant had, before determination of liability at the request of the insurer, subjected themselves to medical examination by a certified medical practitioner.
(4) No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it:

Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto.

Held:

  1. Notwithstanding the fact that an insurer was entitled to avoid or cancel or could have avoided or cancelled the policy, it should pay to the persons entitled to the benefit of a judgment. However, that was conditional. Settlement of the claim would be made provided that- the sum payable should not exceed the maximum percentage of the sum specified in section 5(b) of Insurance (Motor Vehicle Third Party Risks) Act (the Act) prescribed in the Schedule; the insurer should have at least thirty (30) days’ notice of commencement of the suit in which the judgment had been obtained and there had to be no stay of execution pending an appeal.
  2. There should be no sum payable to the claimant under the following circumstances-
    1. If the policy had been cancelled by mutual consent of the insurer and the insured before the happening of the event which was the cause of death or injury giving rise to the liability.
    2. If the certificate had been surrendered by the insured to the insurer before the happening of the event which was the cause of death or injury giving rise to the liability.
    3. If after happening of an event, but before the expiration of 14 days, the certification was surrendered to the insurer or the person who was issued with a certificate made a statutory declaration as aforesaid.
    4. If either before or after the happening of an event, but within 28 days of the taking effect of the cancellation of the policy, the insurer notified the Registrar of Motor Vehicles and the Commissioner of police in writing of the insured’s failure to return a certificate.
    5. If the claimant would not have submitted himself or herself for medical examination by a certified medical practitioner.
    6. If within 3 months after institution of the suit in which judgment had been delivered, the insured had obtained a declaration to avoid the policy on the ground that; the policy was obtained by false representation in some material particular; he had avoided the policy on the ground that he was entitled to do so apart from any provision contained in it; the insured would only benefit from the provisions of section 10 (4) of the Act if before or within 14 days after the commencement of the proceedings, it had notified the Plaintiff in the said proceedings specifying the non-disclosure or false representation on which it proposed to rely and also given notice of such action to any other person, it thought fit to be made a party to the suit therein.
  3. The circumstances of the case were different from a case in which an insured avoided or cancelled a policy under the conditions set out in section 10 (4) of the Act. The issue of it repudiating liability did not arise in the circumstances of the case as the defendant had not avoided or cancelled the policy it had with its insured. Its assertion was that it was not liable to settle the judgment arising out of the accident that occurred in Tanzania as the claim was covered by the COMESA Yellow Card Scheme. The plaintiffs’ submissions that the defendant ought to have filed a declaratory suit so as to avoid settling the judgment were therefore misplaced, immaterial and irrelevant.
  4. The term “road” envisaged in section 4 of the Act related to roads in Kenya. In the absence of any contrary indication, insurance cover that had been issued to a vehicle in Kenya by virtue of section 5 of the Act only extended to public roads within the jurisdiction of Kenya which was further emphasized by the Public Roads and Roads of Access Act. In other words, the territorial jurisdiction of any insurance cover issued to an insured, unless otherwise provided for, was limited to Kenya only. The jurisdiction clause in the policy that the defendant issued to the insured supported that position. The policy’s territorial jurisdiction was Kenya.
  5. Under article 1 of the Northern Corridor Transit and Transport Agreement (the Agreement), the COMESA Yellow Card had been defined as follows; the Third Party Motor Vehicle Insurance system prescribed under the Protocol to that effect attached to the treaty establishing the common market for Eastern and Southern Africa. According to section 1 (1.2) of the Yellow Card Scheme and Reinsurance Pool, the Yellow card was an equivalent of a policy of insurance recognised as a valid motor insurance certificate and evidence of a guarantee to provide the compulsory minimum insurance cover required by the laws of the participating states party to the Scheme.
  6. Domestic transport meant the transport of goods and passengers within the territories of the contracting parties. Article 5(a) of the Agreement granted citizens of the respective contracting parties engaged in trade, free movement within their territories and the right to transit through each other’s territories under the conditions specified in the Agreement and its protocols. Article 35 of the Agreement stipulated that the contracting parties should take necessary steps for the insurance of their means of transport to cover third party liability incurred in the course of interstate traffic and traffic in transit. In accordance with the provisions, the Third Party Motor Vehicle Insurance established by the Common Market for Eastern and Southern Africa was known as the COMESA Yellow Card. The proviso to article 35 of the Agreement stated that if the COMESA Yellow Card Scheme ceased to exist, the contracting parties should establish a Northern Corridor Motor Third Party Insurance Scheme.
  7. The Protocol on the establishment of a Third Party Motor Vehicle Insurance (Lusaka 1981) (the Lusaka Protocol) provided for the establishment of a Third Party Motor Vehicle Liability Scheme that would be based on a PTA Yellow Card issued by the National Bureau. Claims on behalf of the member states were to be settled by each National Bureau and the legal administrative and financial operation of the scheme should be coordinated by a Council of Bureaus. The provisions of the article were couched in mandatory terms. Therefore, there could be no discretionary application of the provisions where there was a COMESA Yellow Card cover.
  8. The COMESA Operations Manual of the Yellow Card Scheme and Reinsurance Pool provided the procedure for lodging a claim, handling and settlement of the same. The COMESA Yellow Card National Bureau of Kenya wrote to the defendant on August 24, 2007 calling for the Yellow Card of the Insured’s bus. The defendant alluded to several letters in its supplementary list of documents but the Court did not see the same. The Court however, saw the letter dated April 27, 2016 from the defendant’s advocates to the plaintiffs’ advocates and adduced in evidence by the plaintiff and noted that the former had notified the latter that the bus had been insured under the COMESA Yellow Card cover.
  9. Article 2(6) of the Constitution of Kenya provided that any treaty or convention ratified by Kenya formed part of the law of Kenya under the Constitution. It therefore followed that being a signatory of the Agreement and the Protocols in respect of the said Agreement and on the establishment of a third party motor insurance to facilitate intra-regional transport and trade within Sub-Saharan Africa, Kenya was bound by the provisions therein. Once an insured had a COMESA Yellow Card and an accident occurred outside the jurisdiction of the country it had a primary insurance cover as aforesaid, the National Bureau of the country where the accident occurred would process the claim. In the case, that bureau was the National Bureau in Tanzania.
  10. Under the circumstances, the orders sought by the plaintiff could not be granted due to fact that the territorial jurisdiction of policy issued by the defendant to its insured for the bus was in Kenya and the applicable cover at the material time of the accident was under the COMESA Yellow Card Scheme as the accident occurred in Tanzania.

Suit dismissed with costs to the defendant.

JURISDICTION Whether an election court had jurisdiction to determine pre-election disputes

Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others
Petition 30 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu, Lenaola, SCJJ
February 8, 2019
Reported by Chelimo Eunice

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Jurisdiction-jurisdiction of an election court-pre-election disputes-whether an election court had jurisdiction to hear and determine pre-election disputes-whether article 105 (1)(a) of the Constitution limited an election court’s power and excluded its jurisdiction to hear and determine certain issues-whether the jurisdiction of an election court was limited to questions of validity of an election excluding pre-election matters- whether an election court had jurisdiction to adjudicate over issues relating to the pre-election disputes in view of article 88(4)(e) of the Constitution, which gave the Independent Electoral & Boundaries Commission authority to deal with such disputes-whether the Independent Electoral & Boundaries Commission and an election court had concurrent jurisdiction on pre-election disputes-Constitution of Kenya, 2010, articles 88(4)(e) & 105 (1)(a).
Constitutional law-interpretation of constitutional provisions-interpretation of article 88(4)(e) as read together with article 105 (1)(a) of the Constitution whether article 88(4)(e) of the Constitution which conferred jurisdiction on Independent Electoral & Boundaries Commission to hear pre-election disputes, took away the equivalent jurisdiction of an election court on similar matters- whether article 105 (1)(a) of the Constitution, which gave power to an election court to determine questions touching on the validity of an election of a member of Parliament, limited an election court’s power and excluded its jurisdiction to hear and determine pre-election disputes-whether the Independent Electoral & Boundaries Commission and an election court had concurrent jurisdiction on pre-election disputes-Constitution of Kenya, 2010, articles 88(4)(e) & 105 (1)(a).
Jurisdiction- jurisdiction of the Supreme Court -jurisdiction of the Supreme Court to hear appeals from the Court of Appeal- appeal involving interpretation or application of the Constitution- whether the constitutional provisions under consideration were the subject of interpretation in the superior courts- a claim that the appeal did not raise any question of constitutional interpretation or application to be appealed to the Supreme Court as of right under article 163(4)(a) of the Constitution-whether in the circumstances, the Supreme Court would hear the appeal-Constitution of Kenya, 2010, articles 88(4)(e), 99 & 105 (1)(a).

Brief facts:
The petitioner appealed to the Court challenging the decision of the Court of Appeal which dismissed his appeal thereby affirming the election of the 3rd respondent as the member of the National Assembly for Shinyalu Constituency. The petitioner argued, among others, that the 3rd respondent was neither qualified nor nominated by ODM party to vie for the position of a member of the National Assembly and that the election failed to meet the principles of verifiability, transparency and accountability standards set out in the Constitution. The 3rd respondent opposed the appeal on various grounds, including contesting the Court’s jurisdiction to hear the appeal under article 163(4)(a) of the Constitution.

Issues:

  1. Whether the Supreme Court had jurisdiction to hear and determine an appeal on interpretation of constitutional provisions under article 163(4)(a) of the Constitution.
  2. Whether the Election Court had jurisdiction to adjudicate over issues relating to the pre-election disputes in view of article 88(4)(e) of the Constitution, which gave the Independent Electoral & Boundaries Commission authority to deal with such disputes.
  3. Whether the ODM party disobeyed Political Parties Disputes Tribunal (PPDT) orders to conduct a fresh nomination for the Party’s candidates in Shinyalu Constituency.
  4. Whether the election for Member of the National Assembly for Shinyalu Constituency failed to meet the principles of verifiability, transparency and accountability as set out in the Constitution. Read More...

Relevant provisions of the Law
Constitution of Kenya, 2010;
Article 88(4)(e);
(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.

Article 99;
99. (1) Unless disqualified under clause (2), a person is eligible for election as a member of Parliament if the person—

a) is registered as a voter;
b) satisfies any educational, moral and ethical requirements prescribed by this Constitution or by an Act of Parliament; and
c) is nominated by a political party, or is an independent candidate.
Article 105;

105. (1) The High Court shall hear and determine any question whether—

a) a person has been validly elected as a member of Parliament; or
b) the seat of a member has become vacant

(3) Parliament shall enact legislation to give full effect to this article.

Held:

  1. The petitioner’s case inter-alia sought a determination of the question whether an election court had the jurisdiction to determine pre-election disputes in view of article 88(4)(e) of the Constitution which gave the Independent Electoral & Boundaries Commission (IEBC) authority to deal with such disputes. The petitioner also sought to know the place of article 105(1)(a) of the Constitution which gave power to the High Court to determine questions touching on the validity of an election of a member of Parliament. As such, the petitioner’s case revolved around the interpretation of articles 88(4)(e) and 105 of the Constitution. The petitioner also raised the issue, albeit peripherally, whether the impugned election met the constitutional principles of verifiability, accountability and transparency under articles 81 and 86 of the Constitution. The said constitutional provisions were the subject of interpretation in the superior courts’ decisions. Hence, the petitioner’s case met the criteria for admission under article 163(4)(a) of the Constitution.
  2. The answer to the question whether an election court was divested of jurisdiction to determine pre-election disputes, lay in the interpretation of articles 88(4)(e) and 105(1)(a) of the Constitution. Article 88(4)(e) of the Constitution clearly delineated the mandate of the IEBC with regard to the settlement of electoral disputes. The contention however lay in the proper interpretation to be given to article 105(1)(a) of the Constitution which outlined the jurisdiction of the High Court, sitting as an election court, with regard to determination of questions of membership to Parliament.
  3. Validity in its normal sense connoted legitimacy, something that met the legal test. The issues raised by the petitioner which required adjudication were with regard to the nomination and qualifications of a candidate. In that respect, article 99 of the Constitution provided for qualifications and disqualifications for election as member of Parliament. Article 99 of the Constitution showed that it was not every person that would qualify to vie for the election of a member of Parliament. One had to meet certain pre-requisites as detailed in that article.
  4. IEBC had been given the mandate to settle electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of results. Hence, even though the Constitution had not defined what electoral disputes in that regard meant, it specifically provided that some of those envisaged disputes, which were under the purview of the IEBC, would emanate from nominations. Nomination was one of the qualifications through which one became eligible to participate in an election. The IEBC in that context was expressly excluded from adjudicating over election petitions. That mandate was pursuant to article 105 of the Constitution, which donated to the High Court. However, the Constitution did not expressly define the term election petition. Nonetheless, the provisions of article 105(1) (a), (b) as well as (3) of the Constitution were useful.
  5. The legislation established by Parliament as ordained by the Constitution was the Elections Act (the Act). The Act defined a petition as an application to the election court under the Constitution or under the Act. Further, section 75 of the Act provided, with regard to county election petitions, that a question as to validity of an election of a county Governor should be determined by the High Court within the County or nearest County. Hence, it would seem that an election petition was an application that sought to determine the validity of an election.
  6. The High Court, as an election court, had been given the mandate to examine a question whether a person had been validly elected and in essence, adjudicate over an election petition. If a person was not qualified for election, or did not meet the set-qualifications such as being a registered voter, or being of certain educational standards or being nominated by a political party or an independent candidate and such a person was elected, then that could not be said to be a valid election. The election would be a nullity. When the election court was given the mandate to examine the validity of an election, it necessarily meant that the said court would have the power to investigate the legitimacy of that election including on issues of eligibility to contest in an election. In that context, and according to article 105(1)(a) of the Constitution, the election court stood as the custodian of the Constitution in matters of elections with the ultimate mandate of investigating the legitimacy of an election.
  7. There were conflicting decisions emanating from the superior courts with regard to powers of the election court to determine pre-election disputes. One such position was expressed by the Court of Appeal in the case of Kennedy Moki v. Rachel Kaki Nyamai & 2 Others Election Petition No. 4 of 2018; [2018] eKLR, where it was held, among others, that an election court had jurisdiction to hear and determine pre-election nomination disputes if such dispute went to eligibility and qualification to vie and contest in an election; that article 88 (4) (e) of the Constitution and section 74 (1) of the Elections Act were not clauses that ousted the jurisdiction of an election court; and that a nomination dispute that went to the root of the electoral process, or one that determined qualification and eligibility of a candidate to vie, was an issue of substance that went to the root of the election, and an election court had jurisdiction to hear and determine the dispute.
  8. A differing position was taken by the Court of Appeal in the instant matter where it held the view that the election court was divested of considering matters that had been dealt with by the PPDT and/or the IEBC Dispute Resolution Committee (DRC). That if that was not the case, then litigation would be open ended and time lines to file an appeal and/or judicial review would be of no consequence as matters determined by the PPDT and/or DRC would later be urged in an election court in spite of their determination in the PPDT and/or DRC. That such a fluid situation would not augur well in the administration of justice.
  9. Articles 88(4)(e) and 105(1) and (3) of the Constitution had to be read holistically and that whereas the IEBC and PPDT were empowered by the Constitution and statute to resolve pre-election disputes including nominations, there were instances where the election court in determining whether an election was valid, would look to issues arising during the pre-election period only to the extent that they had previously not been conclusively determined, on merits, by the IEBC, PPDT or the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution. Where a matter or an issue had been so determined, then the election court could not assume jurisdiction as if it were an appellate entity since that jurisdiction was not conferred on it by the Constitution.
  10. In holding so, the Court took note of its decision in George Mike Wanjohi v. Steven Kariuki & 2 others SC Petition No. 2A of 2014; [2014] eKLR (Wanjohi case) which affirmed the powers of the IEBC in determining disputes arising before the declaration of results in line with article 88(4)(e) of the Constitution. In that case, it held that any dispute arising after the declaration of results could only be resolved by an election court under article 105(1) of the Constitution. However, unlike the instant case, the Wanjohi decision did not analyse the extent of the powers of an election court, if at all, with regard to adjudication of disputes arising before the declaration of results such as a contestation touching on nominations or qualification of candidates. Nonetheless, the decision recognised the broad powers of an election court in protecting and safeguarding the electoral values and principles enunciated in the Constitution.
  11. There was evidence that the question whether the 3rd respondent was a registered voter in Shinyalu Constituency by fact of a difference in names was determined by the IEBC’s DRC, which resolved that the names referred to the same person and proceeded to issue a nomination certificate to the 3rd respondent. No appeal or judicial review proceedings were instituted to challenge that decision and although the petitioner was not a party to the proceedings, it had not been shown that he was unaware of them or that when he became aware of the same, he took any action save for the filing of the election petition before the Election Court. The decision of that quasi-judicial body within the IEBC stood and had never been overturned. The High Court and the Court of Appeal were bound by it and therefore properly declined to assume jurisdiction on that matter. There was no reason to overturn that decision.
  12. The petitioner could not use the Court to review the decision of the High Court on contempt which decision had not transcended through the normal appellate mechanism. ODM was not a party to the instant proceedings, even if the Court had jurisdiction on the issue, it could not delve into its merits since its orders, one way or the other, would be in vain.
  13. The petitioner only quoted constitutional principles which were allegedly breached without showing at all how the Court of Appeal erred in its determination of that issue. He did not give a single explanation of how, in his view, the said constitutional principles were breached. Hence there was no merit in the petitioner’s assertions and the same were dismissed.
  14. On relief, the claim that the 3rd respondent had committed election offences and should be prosecuted for such offences was not prosecuted at all, hence the claim fell. The prayer requesting to have fresh elections in Shinyalu Constituency was not tenable since the election of the 3rd respondent had not been disturbed.
  15. Costs follow the event. However, in the instant case, the petitioner was not necessarily a loser. His cause was partly successful with the potential of greatly contributing to the jurisprudence of the country with regard to the choice of forum when handling pre-election disputes. No fault was found on the part of the respondents in the conduct of the impugned election. In view of those considerations, the Court exercised its discretion and held that each party should bear their costs of the instant appeal.

D.K. Maraga, CJ & P, concurring

  1. Whether or not a matter had been conclusively determined by the IEBC under article 88(4)(e) of the Constitution or PPDT under section 40 of the Political Parties Act and gone through the appellate or judicial review process thereunder stated or contemplated, if it was an issue of qualification or eligibility or any other aspect that went to the root of an election, the election court had jurisdiction to revisit it if raised in an election petition.
  2. Although the pre-election nomination dispute was initially on whether or not the 3rd respondent was a registered voter, for him to contest in the Shinyalu Member of the National Assembly election, a pre-requisite decreed by article 99(1)(a) of the Constitution, it transmuted into one of whether or not he was the same person nominated by ODM to contest in that election. With that transmutation, the issue ceased to be one of qualification/eligibility and therefore not one that went into the root of the election. As such, having been conclusively resolved by IEBC, the election court did not have jurisdiction to entertain.

Orders:

  1. The petition of appeal dated August 19, 2018 dismissed.
  2. The judgement of the Court of Appeal affirmed and the election of the 3rd respondent as Member of the National Assembly for Shinyalu Constituency upheld.
  3. Each party ordered to bear its costs of the appeal.

STATUTES Section 17(1) (a) and (b) of the National Cohesion and Integrations Act on the membership of the Commission and the procedure for nominating commissioners by the National Assembly under the first schedule to the Act declared unconstitutional

Okiya Omtatah Okoiti v Attorney General & another [2018] eKLR
Petition 385 of 2018
High Court at Nairobi
W A Okwany, J
January 14, 2019
Reported by Kakai Toili

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Statutes-interpretation of statutes-interpretation of section 17(1) (a) and(b) and the first schedule of the National Cohesion and Integrations Act-whether section 17(1) (a) and (b) of the National Cohesion and Integrations Act and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the first schedule to the Act was unconstitutional-what was the procedure to be followed in the appointment of the National Cohesion and Integration Commission commissioners- Constitution of Kenya, 2010, article 95, 234(2)(a) & 260; National Cohesion and Integrations Act, section 17(1) (a) and(b) and first schedule
Statutes-interpretation of statutes-principles of interpretation of statutes-what were the principles to be applied in construction of statutes
Constitutional Law-constitutionality of statutes-presumption of constitutionality of statutes-rationale-what was the rationale behind the rebuttable principle of presumption of constitutionality of statutes-whether there was a time limitation for challenging the constitutionality of a statute
Constitutional Law-constitutional doctrines and principles-doctrine of separation of powers-interference of actions of other arms of Government by courts-what were the circumstances in which a court could interfere with the actions of other arms of Government-Constitution of Kenya, 2010, article 165

Brief facts:
In November 2018 the 2nd Respondent embarked on the process of recruiting persons for appointment as commissioners of the National Cohesion and Integration Commission (NCIC). Aggrieved by the 2nd respondent ’s actions, the petitioner filed the instant petition. The petitioner contended that the said recruitment by the 2nd Respondent contravened the constitutional principle of separation of powers and that section 17(1)(a) and (b) of the National Cohesion and Integration Commission (the Act) and the procedure for nominating commissioners by the National assembly under the first schedule of the Act were unconstitutional. The petitioner also contended that recruitment of persons to be appointed to public office was the preserve of the Public Service Commission (PSC) and the executive, and not Parliament

Issues:

  1. Whether section 17(1) (a) and (b) of the National Cohesion and Integrations Act and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the first schedule to the Act was unconstitutional.
  2. What was the procedure to be followed in the appointment of the National Cohesion and Integration Commission commissioners?
  3. What were the principles to be applied in interpretation of statutes?
  4. What was the rationale behind the rebuttable principle of presumption of constitutionality of statutes?
  5. Whether there was a time limitation for challenging the constitutionality of a statute.
  6. What were the circumstances in which a court could interfere with the actions of other arms of Government? Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 165
(3) There is established the High Court, which –

(d) subject to clause (5) shall have jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of –
(i)the question whether any law is inconsistent with or in contravention of this constitution.

Article 234
(2) The Commission shall-

(a) Subject to this Constitution and legislation-

(i) establish and abolish offices in the public service and;
(ii) appoint persons to hold or act in those offices, and to confirm appointments.

Article 260
“Public officer” means-

(a) any state officer; or
(b) any other person, other than a State Officer, who holds a public office

“Public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
“Public service” means the collectivity of all individuals, other than State officers, performing a function within a State organ.
“State office” means any of the following offices—

(a) President;
(b) Deputy President;
(c) Cabinet Secretary;
(d) Member of Parliament;
(e) Judges and Magistrates;
(f) member of a commission to which Chapter Fifteen applies;
(g) holder of an independent office to which Chapter Fifteen applies;
(h) member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;
(i) Attorney-General;
(j) Director of Public Prosecutions;
(k) Secretary to the Cabinet;
(l) Principal Secretary;
(m)Chief of the Kenya Defence Forces;
(n) Commander of a service of the Kenya Defence Forces;
(o) Director-General of the National Intelligence Service;
(p) Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or
(q) an office established and designated as a State office by national legislation;

“State officer” means a person holding a State office;
“State organ” means a commission, office, agency or other body established under this Constitution.

Article 95 - Role of the National Assembly
(1) The National Assembly represents the people of the constituencies and special interests in the National Assembly.
(2) The National Assembly deliberates on and resolves issues of concern to the people.
(3) The National Assembly enacts legislation in accordance with Part 4 of this Chapter.
(4) The National Assembly—

(a) determines the allocation of national revenue between the levels of government, as provided in Part 4 of Chapter Twelve;
(b) appropriates funds for expenditure by the national government and other national State organs; and
(c) exercises oversight over national revenue and its expenditure.

(5) The National Assembly—

(a) reviews the conduct in office of the President, the Deputy President and other State officers and initiates the process of removing them from office; and
(b) exercises oversight of State organs.

(6) The National Assembly approves declarations of war and extensions of states of emergency.

National Cohesion and Integration Act
Section 17
(1) The commission shall consists of

(a) A chairperson appointed by the President from amongst the commissioners appointed under paragraph (b);
(b) Eight commissioners nominated by the National Assembly in accordance with the First Schedule and appointed by the President;

First Schedule
1. The Clerk of the National Assembly shall, within fourteen days of the commencement of this Act, by advertisement in the Gazette and in at least three daily newspapers of national circulation, invite applications from persons qualified under this Act for nomination as commissioners.
2. An application under paragraph 1 shall be forwarded to the Clerk within twenty-one days f the advertisement and may be made by any-

a) Qualified person; or
b) Any person, organization, or group of persons proposing the nomination of any qualified person.

3. The relevant Parliamentary Committee in consultation with the Minister shall, within seven days of the expiry of the period prescribed under paragraph 2-

a) Consider all the applications received under paragraph 2; and
b) Recommend to the National Assembly suitably qualified persons for nomination as commissioners.

4. The Committee shall rank and provide comments regarding each of the finalists to the National Assembly.
5. The National Assembly shall, upon receipt of the recommendations of the committee under paragraph 3, nominate fifteen persons for appointment as commissioners and shall submit the list of nominees to the Minister for onward transmission to the President.
6. The Minister shall forthwith forward the names of the persons nominated in accordance with paragraph 5 to the President who shall, by notice in the Gazette, appoint there from eight commissioners.
7. In nominating or appointing persons as commissioners, the National Assembly and the President shall have regard to gender equity and regional balance.

Held:

  1. In interpreting the Constitution, the starting point was article 259 of the Constitution which enjoined the Court to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributed to good governance. Further, in exercising its judicial authority, the Court was obliged under article 159 (2) (e) of the Constitution to protect and promote the purposes and principles of the Constitution.
  2. A Constitution was a living instrument with several provisions that should be read as an integrated whole, reading one provision alongside others so that they were seen as supporting one another and not contradicting or destroying each other. There were important principles which applied to the construction of statues such as:-
    1. presumption against absurdity – meaning that a court should avoid a construction that produced an absurd result;
    2. the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produced unworkable or impracticable result;
    3. presumption against anomalous or illogical result, - meaning that a court should find against a construction that created an anomaly or otherwise produced an irrational or illogical result and
    4. the presumption against artificial result – meaning that a court should find against a construction that produced artificial result and,
    5. the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which was in any way adverse to public interest, economic, social and political or otherwise.
  3. Courts were under an obligation, when interpreting the Constitution, to be conscious of the legal environment under which they operated and to take into account the contemporary situation of each age so as to attach such meaning and interpretation that met the purpose of guaranteeing constitutionalism, non-discrimination, separation of powers, and enjoyment of fundamental rights and freedoms. In doing that, the court was under a duty to examine the objects and purport of an Act and to read the provisions of the legislation in conformity with the Constitution.
  4. In considering the constitutionality of the Act, one had to bear in mind the rebuttable principle of presumption of constitutionality of statutes. The principle stated that statutes should be presumed to be constitutional until the contrary was proved. The philosophy behind that principle was that Parliament as peoples’ representative legislated laws to serve the people they represented and therefore, as legislators, they understood the problems people faced and enacted laws to solve those problems.
  5. It was the duty of the person alleging constitutional invalidity of a statute or statutory provision to prove that indeed the statute or any of its provisions was unconstitutional. The Court had to also consider whether the purpose and effect of implementing the statute or statutory provision would result into unconstitutionality. Even though the NCIC was not an independent commission expressly established and provided for under chapter 15 of the Constitution, it was nonetheless a State office established by national legislation.
  6. A holistic reading of articles 260 of the Constitution on the interpretation of the meaning of the words public office, public officer and public service showed that NCIC was a public office whose appointment of commissioners fell within the purview of the Public Service Commission(PSC) under article 234(2)(a)(ii) of the Constitution. NCIC was a commission like any other commission established under article 250 of the Constitution and the argument that NCIC was a sui generis body that was subject to a different set of rules from other commissions was misguided and bereft of any constitutional backing.
  7. Article 95 of the Constitution was clear and specific on the role of the National Assembly and nowhere in that article was the National Assembly given the mandate to make appointment of the commissioners of the NCIC. The impugned section of the Act was not consistent with the provisions of article 95 of the Constitution. Articles 2(4) and 165(3) (d)(i) of the Constitution gave the Court the power to invalidate any law, act or omission that was inconsistent with the Constitution.
  8. The Constitution did not set out the timelines within which any law could be challenged or declared unconstitutional. Section 7(1) of the sixth schedule of the Constitution was categorical that all law in force before the effective date continued to be in force and had to be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
  9. The impugned Act having been enacted in 2008 prior to the promulgation of the Constitution ought to be construed in conformity with the Constitution and the mere fact that the law had been in operation for a long period of time did not preclude the Court from declaring the said law unconstitutional if it was found to be inconsistent with the Constitution. The petition should serve as a wake-up call to the Legislature to take urgent measures to amend the impugned sections of the Act so as to make them compliant with the Constitution bearing in mind the critical role that the NCIC was supposed to play in Kenya’s young and fragile democracy.
  10. When any of the state organs stepped outside its mandate, the Court would not hesitate to intervene when called upon to do so. The Court was vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution. The Court had an obligation to intervene in actions of other arms of Government and State organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. The doctrine of separation of powers did not preclude the Court from intervening and arresting a violation of the Constitution by any arm of the Government.
  11. The Court had the power to enquire into the constitutionality of the actions of the National Assembly notwithstanding the privilege of debate accorded to its members and its proceedings. The Constitution was the supreme law of Kenya and Parliament had to function within the limits prescribed by the Constitution. In cases where it had stepped beyond what the law permitted it to do, it could not seek refuge in or hide behind the twin doctrines of parliamentary privilege and separation of powers to escape judicial scrutiny.
  12. The doctrine of separation of powers had to be read in the context of the constitutional framework and where the adoption of the doctrine would militate against the constitutional principles the doctrine had to bow to the dictates of the spirit and the letter of the Constitution.

Petition allowed

  1. A declaration issued that section 17(1) (a) and (b) of the National Cohesion and Integrations Act No. 12 of 2008 and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the first schedule to the Act was unconstitutional and therefore, invalid, null and void.
  2. A declaration issued that any appointments made pursuant to section 17(1) (a) and (b) of the National Cohesion and Integration Act No. 12 of 2008 and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the first schedule of the Act was unconstitutional, and therefore, invalid, null and void ab initio.
  3. An order issued quashing section 17(1)(a) and (b) of the National Cohesion and Integration Act No. 12 of 2008 and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the first schedule to the Act.
  4. No orders as to costs.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org