Weekly Newsletter 022/2019



Kenya Law

Weekly Newsletter


Exclusion of prisoners serving life sentences or detention at the President's pleasure from the benefit of remission under section 46(1)(ii) of the Prisons Act is discriminatory.
Kenneth Otieno Odhiambo & 4 others v Republic
Petition 68 of 2018
High Court at Kisumu
T W Cherere, J
March 28, 2019
Reported by Beryl A Ikamari
Download the Decision
 
Constitutional Law-fundamental rights and freedoms-right to equality and freedom from discrimination-constitutionality of a statutory provision-whether section 46(1)(ii) of the Prisons Act was discriminatory on grounds that it excluded prisons serving life sentences or detention at the President's pleasure from benefitting from remission of their sentences-Constitution of Kenya 2010, article 50(2)(p).
Statutes-constitutionality of statutory provisions-constitutionality of section 46(1)(ii) of the Prisons Act-whether in denying prisoners, serving life sentences and detention at the President's pleasure, the benefit of remission of sentence, section 46(1)(ii) of the Prisons Act was discriminatory and unconstitutional-Constitution of Kenya 2010, article 50(2)(p); Prisons Act (Cap 90), section 46(1)(ii).
 
Brief facts:
The petitioners challenged section 46 of the Prisons Act on grounds that it discriminated against offenders in the enjoyment of the remission of a third of the sentence imposed. Under the said section 46 certain prisoners including those sentenced to life imprisonment or detention at the President's pleasure were not entitled to remission.
 
Issue:
Whether in excluding prisoners that were serving a life sentence or detention at the President's pleasure from benefiting from remission of their sentences, section 46(1)(ii) of the Prisons Act was discriminatory and unconstitutional.
 
Relevant provisions of the law
Prisons Act (Cap 90), section 46;

(1) Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences.
 Provided that in no case shall -
 (i)  any remission granted result in the release of a prisoner until he has served one calendar month;
 (ii)  any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained during the President's pleasure.
 (2) For the purpose of giving effect to the provisions of subsection (1), each prisoner on admission shall be credited with the full amount for remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.
 (3) A prisoner may lose remission as a result of its forfeiture for an offence against prison discipline, and shall not earn any remission in respect of any period-
 (a) spent in hospital through his own fault; or
 (b) while undergoing confinement as a punishment in a separate cell.
 (4)  A prisoner may be deprived of remission -
 (a)  where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;
 (b)  where the Cabinet Secretary for the time being responsible for Internal security considers that it is in the interests of public security or public order.
 (5) Notwithstanding the provisions of subsection (1) of this section, the Commissioner may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special ground. [Act No. 25 of 2015].

 
Held:
  1. Under article 50(2)(p) of the Constitution, every accused person had the right to a fair trial including the right to the benefit of the least severe of the prescribed punishments, if the prescribed punishment for the offence changed between the time of the commission of the offence and the time of sentencing.
  2. Section 46(1)(ii) of the Prisons Act, which excluded prisoners sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained at the President's pleasure from remission was inconsistent with article 50(2)(p) of the Constitution on account of being discriminatory. Consequently, the petitioners were entitled to benefit from remission unless they were lawfully excluded under sections 46(3) and 46(4) of the Prisons Act.
Petition allowed.
Kenya Law
Case Updates Issue 023/2019
Case Summaries

LIMITATION OF ACTIONS In public procurement, a contractor has to ensure that the procuring entity complies with procurement procedures before providing its services

Royal Media Services v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR
Civil Suit 352 of 2014
High Court at Nairobi
F. Tuiyott, J
April 5, 2019
Reported by Chelimo Eunice

Download the Decision

Limitation of Actions-institution of suit against the Government-barring of suit by a statute-where a plaintiff instituted a suit against the Attorney General outside the 3 year’ period stipulated by statute-whether the suit against the Attorney General was barred by statute as time had elapsed for which the plaintiff could bring an action- Public Authorities Limitation Act, section 3(1).
Procurement Law-law governing procurement in public entities-alternative procurement methods for public entities-where direct procurement was adopted as an alternative method of procurement- situations when a public entity could adopt direct procurement-what was the procedure for adopting direct procurement-what was the import of the strict rules governing adoption of direct procurement by public entities-Constitution of Kenya, 2010, article 227 (1); Public Procurement and Disposal Act, 2005 (repealed) sections 74 & 75; Public Procurement Rules (repealed),  regulations 58 & 62.
Procurement Law-procurement procedures and processes-compliance of procurement procedures and processes by both procuring entity and contractor-whether compliance was an internal matter of the procuring entity-whether a contractor could, in all circumstances, benefit from the proposition that it was entitled to presume that all legal requirements had been met by the procuring entity when it came to public procurement matters- where a contractor was not entirely blameless-Public Procurement and Disposal Act, 2005 (repealed), section 27.
Contract Law- procurement contracts- requirements for contracts that resulted from the direct procurement-where the resulting contract was neither written nor signed by both parties-whether courts would enforce contracts that were contrary to statute-need for courts to consider greater public good in declining to enforce illegal contracts-Public Procurement and Disposal Act, 2005 (repealed), section 75(c).

Brief facts:
The plaintiff sued for the principal sum of Kshs. 182,000,000/= and interest on a claim predicated upon services allegedly procured through single sourcing by the 1st defendant (IEBC). The plaintiff claimed that in December 2012, the 2nd defendant and the Minister for Finance visited its offices and enquired how the plaintiff could promote the voter registration exercise that was then ongoing.  Present in the meeting was the plaintiff’s chairman and its group managing director. The concern then of IEBC was that voter registration was lagging behind and there was need for an aggressive campaign to be mounted throughout the country through roadshows, in radio stations and on television. That the plaintiff offered to help in the provision of those services. However, the plaintiff was aggrieved that it had not been paid for the services offered.
 The defendants opposed the claim. They deny the existence of a contract or that services were rendered as alleged; that any procurement of services by IEBC were subject to the Public Procurement and Disposal Act 2005 (PPD Act) and that the services in controversy were not procured as required by statute; that the claim was contra bonos mores (against good morals and conscience), illegal, unlawful and irregular and that the services offered by the plaintiff were gratuitous and did not attract any liability on the part of the defendants.

Issues:

  1. Whether a suit brought against the Government after the lapse of 3 years was statute barred under the Public Authorities Limitation Act.
  2. Whether the procurement of the services by the Independent Electoral & Boundaries Commission was in compliance with the relevant procurement laws.
  3. Whether a contractor was entitled to presume that all legal requirements had been met by the procuring entity.Read More..

Relevant provisions of the Law
Constitution of Kenya, 2010;
Article 227(1);
When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Public Authorities Limitation Act;
Section 3(2);
No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.

Public Procurement and Disposal Act, 2005;
Section 2;
The purpose of this Act is to establish procedures for procurement and the disposal of unserviceable, obsolete or surplus stores and equipment by public entities to achieve the following objectives—

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

Section 27;
(1) A public entity shall ensure that this Act, the regulations and any directions of the Authority are complied with respect to each of its procurements.
(2) The accounting officer of a public entity shall be primarily responsible for ensuring that the public entity fulfils its obligations under subsection (1).
(3) Each employee of a public entity and each member of a board or committee of the public entity shall ensure, within the areas of responsibility of the employee or member, that this Act, the regulations and any directions of the Authority are complied with.
 (4) Contractors, suppliers and consultants shall comply with all the provisions of this Act and the regulations.
(5) The accounting officer may use the procurement unit and tender committee of another procuring entity which shall carry out the procurement in accordance with this Act and the regulations.
(6) The Authority shall have power to transfer the procuring responsibility of a procuring entity to another procuring entity or procuring agent in the event of delay or in such other instances as may be prescribed.

Section 74;
(1) A procuring entity may use direct procurement as allowed under subsection (2) or (3) as long as the purpose is not to avoid competition.
 (2) A procuring entity may use direct procurement if the following are satisfied—

 (a) there is only one person who can supply the goods, works or services being procured; and
(b) there is no reasonable alternative or substitute for the goods, works or services.

 (3) A procuring entity may use direct procurement if the following are satisfied—

(a) there is an urgent need for the goods, works or services being procured;
(b) because of the urgency the other available methods of procurement are impractical; and
(c) the circumstances that gave rise to the urgency were not foreseeable and were not the result of dilatory conduct on the part of the procuring entity.

Section 75;
The following shall apply with respect to direct procurement—

 (a) the procuring entity may negotiate with a person for the supply of the goods, works or services being procured;
 (b) the procuring entity shall not use direct procurement in a discriminatory manner; and
(c) the resulting contract must be in writing and signed by   both parties.

Public Procurement Rules;
Regulation 58;
(1) A procuring entity shall not enter into any negotiations pursuant to section 84 of the Act until the tender committee has approved the successful proposal.
(2) The negotiations shall be conducted by at least two members of staff of the procuring entity appointed by the accounting officer or the head of the procuring entity on the recommendation of the procurement unit.
(3) The members of staff conducting the negotiations under paragraph (2) shall prepare a report of the negotiations and submit it to the tender committee for decision making.
(4) The report prepared under paragraph (3) shall form part of the records of the procurement.

Regulation 62;
(1) A procuring entity that conducts procurement using the direct procurement method pursuant to section 74 of the Act shall be subject to the procurement thresholds set out in the First Schedule.
(2) Where a procuring entity uses direct procurement, the procuring entity shall record the reasons upon which it makes a determination that the relevant condition set out in section 74 of the Act has been satisfied.
(3) A procuring entity shall, within fourteen days after the notification of the award of the contract, report any direct procurement of a value exceeding five hundred thousand shillings to the Authority.
(4) The procedure for negotiations for proposals set out in regulation 58 shall apply mutatis mutandis to negotiations relating to direct procurement pursuant to section 75(a) of the Act.
(5) A procuring entity shall not enter into a contract under section 75(c) of the Act unless it is satisfied that the offer—

 (a) meets the requirements of the procuring entity as specified under paragraph (2); and
(b) is at the prevailing real market price.

Held :

  1.  The 4th defendant was not sued in a personal capacity and the proceedings against him were civil proceedings brought against the Government. Although the 4th defendant in claiming that the suit against him was statute barred did not specify the nature of the bar, the Court concluded that it was in respect to limitation imposed by the Public Authorities Limitation Act (PAL Act). PAL Act was a statute providing for limitation of proceedings against Government. The action of the plaintiff being founded on contract then, the provisions of section 3(2) of the PAL Act would apply.
  2. The contract was said to have been entered sometime in December 2012. Although it was unclear from the evidence how soon after the provision of the services, payment was to be made, it was clear that by November 19, 2013, the plaintiff was alleging breach of payment. That was the day when it called for payment of Kshs. 203,840,000/= within 14 days. The cause of auction, therefore, had accrued by at least the first week of December 2013. Three (3) years hence would lapse in December 2016.
  3. In respect to the 4th defendant, the suit was brought against him not on the presentation of the original plaint but on the further amended plaint which first joined him. To hold that the amendment had retroactive effect would be to deny the 4th defendant the right conferred on him by the PAL Act. The further amended plaint was filed on February 10, 2017, outside the 3 year’ period.  The action against the 4th defendant ran afoul the provisions of limitation of section 3 of the PAL Act. The action would not go any further in respect to the 4th defendant.
  4. The plaintiff provided the various services, including roadshows, radio and TV coverage. Advertising Booking Sheets bore the stamp of IEBC.  The approval by IEBC was to signify that the services therein could be provided. Those sheets were not disputed by the defence.
  5. There was evidence that the voter registration exercise carried out by IEBC in the year 2012 was falling short of target and that there was an urgent need for voter mobilization. IEBC was a commission established under article 88 of the Constitution. It was therefore a public entity and procurement of services to the commission was governed by the Public Procurement and Disposal Act, 2005 (PPD Act), which Act governed public procurement at the time relevant to the instant dispute.  That statute had since been repealed by the Public Procurement and Asset Disposal Act, 2015 (PPAD Act).
  6. Under the provisions of the PPD Act, public entities such as IEBC could only procure for goods and services by way of open tendering, restricted tendering, direct procurement, request for proposals, request for quotations, procedure for low-value procurements and specifically permitted procedure.
  7. Given the overall and broad objectives under article 227(1) of the Constitution, procurement procedures which were an alternative to open tendering could only be adopted in the limited circumstances permitted by the statute.  Direct procurement could only be employed as long as the purpose was not to avoid competition.  That was the avowed statement of section 74(1) of the PPD Act.  Section 74 of the PPD Act also delineated when direct procurement would be used.
  8. Even where there was justification for direct procurement, statute required that the procedure set out in section 75 of the PPD Act be adhered to.  In addition to that requirement was regulation 62 as read with regulation 58 of the Public Procurement Rules (the Rules). Regulation 62 of the Rules required that negotiations be undertaken between the public entity and the proposed contractor and that regulation 58 of the Rules was to be applied in the negotiations. Read together, the hallmarks of that procedure included:-
    1.  The head of the user department was the person responsible for initiating the procurement;
    2. That reasons for adopting the procedure had to be clearly spelt out by the public entity;
    3. Negotiations with the contractor had to be conducted by at least 2 members of staff of the entity;
    4. The best prevailing real market price was to be obtained.

    The resulting contract had to be in writing and signed by both parties.
    The objective of those strict rules was to guard against the abuse of direct procurement. Reasons for adopting the method had to be readily apparent and available to scrutiny.  The method could not be employed in a discriminatory manner or to avoid competition or to achieve any other collateral reason.  In addition, the public entity and by extension the public ought to get the best deal in the circumstances. Those were safeguards that ensured that even in the exceptional circumstances where statute permitted direct procurement, the overall objective of sound procurement practices contemplated by article 227 (1) of the Constitution were not trampled over or defeated. In essence parties to a direct public procurement had to ensure an irreproachable compliance with the law.

  9. As was apparent from the provisions of regulation 62 of the Rules, the inception of the process could be an internal affair of the public entity. However, having decided to apply that method, the public entity was then required to negotiate with the proposed contractor. The procedure for negotiations was found in regulation 58 of the Rules. The negotiations were to be conducted by at least 2 members of staff of the procuring entity. The language of regulation 58(2) of the Rules was mandatory in that respect.
  10. The meeting of December 11, 2012 was the only meeting that preceded the alleged contract. There was no evidence of other negotiations. The only representative of IEBC was the 2nd defendant. Yet the law required at least 2 representatives of the procuring entity. The objective of that requirement was to minimize the possibility of an individual negotiator either colluding with the proposed contractor or negotiating a bad deal for the procuring entity. Whatever the policy consideration, it was a binding requirement. The meeting did not meet the mandatory requirements of regulation 58 of the Rules, and thus not negotiations within the contemplation of regulation 58 of the Rules. On that single score, the alleged direct procurement was flawed.
  11. By dint of the provisions of section 75(c) of the PPD Act, a contract that resulted from the direct process had to be in writing and signed by both parties. The resulting contract intended by statute was not entered. While the Advertising Booking Sheets issued by the plaintiff and duly endorsed by IEBC could in different circumstances be accepted as constituting a contract/s, the Court doubted that those sufficiently met the formality required by section 75(c) of the PPD Act. Further, it was not said that there was such a pressing urgency that it was impossible to make the contract required by the said section 75(c).
  12. The law in respect to direct procurement by public entities was not complied with. Unfortunately for the plaintiff, it was in the genre of law that had to be observed scrupulously.
  13. It was doubtful that a contractor could, in all circumstances, benefit from the proposition that it was entitled to presume that all legal requirements had been met by the procuring entity when it came to public procurement matters. In that regard the force of section 27 of the PPD Act was not to be taken lightly. It was the duty of the contractor as it was of the procuring entity, to observe the provisions of statute and the Regulations. Section 27 of the PPD Act imposed an unequivocal responsibility on any contractor, supplier or consultant intending to supply goods or services to a public entity to comply with all the provisions of the PPD Act and the Regulations. That duty extended to the contractor making due enquiries as to whether the procuring entity had complied with its side of the law and declining to enter into a contract which was procured in apparent disregard of the law. For that reason, a contractor or supplier could not find refuge in the argument that compliance was an internal matter of the public entity when s[he] had not done enough to enquire about compliance or s[he] was herself or himself guilty of infringement.
  14. The law on direct procurement was clearly expressed in both the substantive and subsidiary provisions of the PPD Act. The plaintiff knew that IEBC was a public entity.  The plaintiff was expected to know the law on public procurement because ignorance of the law was no defence. It was apparent to the plaintiff that the meeting of December 11, 2012 were not negotiations required by the statute. It would be further apparent to the plaintiff that it was offering services when the contract required by section 75(c) of PPD Act had not been concluded. Those two aspects of the transaction were not matters internal to IEBC only.  Negotiations and entering of a formal contract were matters that required the participation of the plaintiff.  The plaintiff knew or ought to have known that certain facets of direct procurement were being overlooked.  Non-compliance could easily be seen. Hence, the plaintiff would not be excused from the flawed process.
  15. There was a greater public good in a court declining to enforce a transaction that was contrary to statute. Judicial tradition in Kenya frown upon illegal contracts. Regard had to be given to the doctrine of ex lurpi causa non oritur action (from a dishonorable cause, an action did not arise). There would be good reason not to resolve such argument in favour of a contractor or supplier who was partly to blame or who was not entirely blameless.
  16. The defence argument that the contract was tainted with abuse of office, nepotism and corruption were allegations of a criminal conduct which needed to be specifically pleaded and particularized and proved to the standard required by law, being higher than a balance of probabilities but not as high as beyond reasonable doubt. Those were not allegations to be made casually. It was unfair for the defence to make such grave assertions at the submission stage yet they were unpleaded and unproven.
  17. In regard to the liability of the 2nd and 3rd defendants, there was no material that supported a proposition that the two were personally liable for the plaintiff’s claim.

 Suit dismissed with costs.

CIVIL PROCEDURE AND PRACTICE Procedural error by counsel for an applicant due to ignorance of the law is a valid ground for extension of time to file notice of appeal

Sundowner Lodge Limited v Kenya Tourist Development Corporation
Civil Application 2 of 2019
Supreme Court of Kenya
D K Maraga, CJ &P; P M Mwilu, DCJ &VP; M Ibrahim, S Wanjala & I Lenaola, SCJJ
April 29, 2019
Reported by Ian Kiptoo

Download the Decision

Civil Practice and Procedure -notice of appeal-extension of time to file notice of appeal-application for extension of time to file notice of appeal-where counsel for the applicant was unaware of the amendment to the Supreme Court Rules allowing a party to file a notice of appeal even before obtaining certification/leave-claim that counsel’s ignorance of the law was not one of the grounds for extending time-whether a procedural error by counsel for an applicant occasioned by ignorance of the amendment of the Supreme Court Rules in 2012 was a valid ground for extension of time to file notice of appeal

Brief facts:
The applicant filed an application for extension of time to file and serve a notice of appeal out of time against the judgment and orders of the Court of Appeal. The application was based on ground that counsel for the applicant was unaware of the amendment to the Supreme Court Rules allowing a party to file a notice of appeal even before obtaining certification/leave. The applicant argued that a procedural error of counsel should not be visited upon a litigant and urged the Court to grant it leave to file a notice of appeal out of time adding that no prejudice would be caused to the respondent.
The respondent argued that the application lacked merit; that it was every counsel’s duty to keep abreast with legal developments; and that indolence or ignorance of the law was not one of the grounds for extending time.

Issue:

Whether a procedural error by counsel for an applicant due to ignorance of the amendment of the Supreme Court Rules in 2012 was a valid ground for extension of time to file notice of appeal.Read More..

Held :
Ignorance of the amendment of the Supreme Court Rules in 2012 making it unnecessary to obtain certification before lodging the notice of appeal was an innocent mistake which the applicant had not sought to hide. Moreover, a delay of only four months was not inordinate. .

Application allowed
Orders

  1. The applicant would file and serve its notice of appeal within 14 days of the date of the instant ruling. Failure to which the application would stand dismissed with costs.
  2. Costs of the application would abide the result of the intended appeal.
APPEALS A party should be allowed to file an appeal out of time where there is a non-disclosure of the delivery date of the impugned judgment.

Moi Teaching and Referral Hospital Board & 2 others v Uasin Gishu Memorial Hospital Ltd & 3 others [2019] eKLR
Civil Application 16 & 25 of 2018 (Consolidated)
Supreme Court of Kenya
DK Maraga, CJ&P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ
April 29, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

Download the Decision

Appeals-time within which to file an appeal to the Supreme Court-extension of time for the filing of an appeal-considerations of the Supreme Court in determining whether to extend time for filing an appeal-where it was alleged that the delay in filing an appeal was caused by non-disclosure of the date that the impugned judgment was delivered-whether the Supreme Court was to consider non-disclosure of judgment delivery date as a   ground for allowing the extension of time for filing an appeal- Supreme Court Act, Sections 3, 14(5), 19, 21 (3), 31.

Brief Facts:
The subject matter of the suit that gave rise to the application was a parcel of land over which there had been an ownership tussle since 1998 between applicants and respondent. The 1st application was based on the ground that the applicant had no notice of the delivery of the Court of Appeal judgment on October 6, 2017. They only knew about it on March 20, 2018 when the respondent sought compensation. Between that date and June 18, 2019 when the application was filed, the 1st applicant was involved in consultation with the 2nd and 3rd applicants.
The 2nd and 3rd applicants argued that they were served with notice a day before the delivery of the judgment. They came to know of the impugned judgment on February 23, 2018, when the 1st respondent forwarded a copy of the judgment seeking compensation. The time for filing a notice of appeal had lapsed.

Issues:

  1. Whether the Supreme Court should extend the time to file an appeal, where it was alleged that the delay in filing an appeal was caused by non-disclosure of the date that the impugned judgment was delivered.
  2. Whether the Supreme Court was to consider non-disclosure of a judgment’s delivery date as a ground for allowing the extension of time for filing an appeal.Read More...

Held:

  1. The 1st applicant was not given notice and the 2nd and 3rd applicants were given a day’s notice of the delivery of the impugned judgment of the Court of Appeal. An applicant could not be blamed for the lower courts’ failures or omissions. 
  2. The explanation given was that consultations were the reason for the delay between the date when the applicants learnt of the judgment and when they filed the application and it was satisfactory.

Application allowed.

Orders

  1. The applicants should file and serve fresh notices of appeal within 14 days of the date hereof failing of which the applications would stand dismissed with costs.
  2. The costs of the application would abide by the outcome of the appeal.
CIVIL PROCEDURE AND PRACTICE Supreme Court disallows the filing of additional grounds of appeal that were not part of the subject of the appeal at the Court of Appeal.

Coast Professional Freighters Limited v Welsa Bange Oganda & 2 others
Petition (Application) 4 of 2017
Supreme Court of Kenya
D K Maraga, CJ & P, M K Ibrahim, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
April 30, 2019
Reported by Beryl A Ikamari

Download the Decision

Civil Practice and Procedure-appeals-filing of additional grounds of appeal and a supplementary record-where the additional grounds of appeal related to new issues that did not form the subject of the appeal at the Court of Appeal-whether the Supreme Court would allow the filing of additional grounds of appeal and a supplementary record under the circumstances-Supreme Court Act, No 7 of 2011, sections 8, 17 and 20; Supreme Court Rules 2012, rule 26.

Brief facts:
The applicant made an application seeking to file additional grounds of appeal and a supplementary record in the appeal. The applicant stated that the additions were crucial in understanding the substance of its case. According to the applicant, the High Court had ignored its pleadings and granted orders that had not been sought. Particularly, the applicant said that the order for the return of the disputed property amounted to unjust enrichment as the applicant had made significant improvements to the property for which no compensation had been awarded. The respondent stated that the application was incompetent as the Court lacked jurisdiction and that it was baseless, bad in law and vexatious as well as an abuse of the Court's process.

Issue:

Whether the Supreme Court would allow the filing of additional grounds of appeal and a supplementary record where the additional grounds of appeal related to issues that were not canvassed at the Court of Appeal.Read More..

Held :

  1. The 1st respondent's conclusion that the Court lacked jurisdiction was premature since the jurisdiction in question related to the Court's power to determine the application and not the substantive appeal.
  2. Granting the orders sought would be prejudicial to the respondents as the additional grounds concerned issues that were not part of the appeal at the Court of Appeal. Additionally, the respondents were not able to respond to the new substantive grounds of appeal.

Application dismissed. Applicant to bear the costs of the application.

CIVIL PROCEDURE AND PRACTICE Supreme Court has no jurisdiction to issue an order for stay of execution where there is no pending appeal

Invollate Wasike Siboe v Kenya Railways Corporation and another
Application 9 of 2017
Supreme Court of Kenya
P M Mwilu, DCJ &V-P; M K Ibrahim, S C Wanjala, N Njoki, & I Lenaola, SCJJ
April 30, 2019
Reported by Ian Kiptoo

Download the Decision

Civil Practice and Procedure-stay of execution-application for-where there was no pending appeal before a court-whether the Supreme Court had jurisdiction to issue an order for stay of execution where there was no pending appeal
Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters of general public importance-certification of appeals as matters of general public importance-where certification had not been sought or granted-whether the Supreme Court had jurisdiction to hear and determine an intended appeal, on a claim that it was of general public importance, where no certification had been sought and granted-Constitution of Kenya, 2010, article 163 (4) (b)

Brief Facts:
The application before the Court was for stay of the judgment and orders of the Court of Appeal. The applicant urged that the Court was vested with jurisdiction to grant the interlocutory orders under sections 21 and 24(1) & (4) of the Supreme Court Act, 2011; that the intended appeal involved a matter of general public importance; and that the application met the requirements for an application for stay.
The respondent contended that the application was fatally defective since the applicant had not sought certification to appeal from the Court of Appeal or the Supreme Court; that the orders sought could not be granted in a vacuum since there was no pending appeal the substratum of which was sought to be preserved; and that the application was merely intended to prolong the applicant’s stay.

Issues:

  1. Whether the Supreme Court had jurisdiction to issue an order for stay of execution where there was no pending appeal.
  2. Whether the Supreme Court had jurisdiction to hear and determine an intended appeal, on a claim that it was of general public importance, where no certification had been sought and granted.Read More...

Held:

The Court lacked jurisdiction to entertain the application there being no appeal on the basis of which a stay could be granted. Although the application was predicated upon the provisions of article 163 (4) (b) of the Constitution of Kenya, 2010, no certification to appeal had been sought and granted either by the Court of Appeal or the Supreme Court.

Application disallowed; no orders as to costs.

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