Kenya: Jurisprudence that Emanated from the Kenyan Supreme Court in 2014

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Jurisdiction of the Judges and Magistrates Vetting Board

The Judges and Magistrates Vetting Board was set up to vet the suitability of all the Judges and Magistrates, in office prior to the promulgation of the Constitution of Kenya. Since the establishment of the board, it had vetted a number of Judges and Magistrates and declared some unfit to serve. The Board’s establishment by the Vetting of Judges and Magistrates Act and some of its declarations, has triggered various lawsuits challenging its jurisdiction and scope.

The Supreme Court has clarified the position in the following cases

In Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association [2014]eKLR.

The main issue that was determined was whether the Judges and Magistrates Vetting Board (Vetting Board), in determining the suitability of a Judge or Magistrate to continue to serve in the Judiciary could consider conduct after the effective date of the Constitution of Kenya 2010.

The holding of the majority was that The Vetting Board could only make determination on the suitability of a Judge or Magistrate to continue to serve on the basis of what the Judge or Magistrate was alleged to have done or omitted to do during his tenure in office before the Constitution of Kenya 2010, for it was the actions or omissions, that would determine whether judge or Magistrate was to be vindicated or condemned.  The Board could not wait to act on the basis of what a Judge or Magistrate would do after the promulgation of the Constitution of Kenya 2010.

The Court further held that the Vetting Board in execution of its mandate as stipulated in Section 23 of the Sixth Schedule to the Constitution could only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date and not after and that to have held otherwise would not only defeat the transitional nature of the vetting process but would transform the Board into something akin to what Lord Mersey in G & C Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd (1913) once called an unruly dog which, if not securely chained to its own kennel, was prone to wander into places where it ought not to be. In the instant matter, that analogy was used to refer to a jurisdictional mandate within the constitutional set up and not the Vetting Board per se.

Another case that touched on the Jurisdiction of the Judges and Magistrates Board was the case of Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others [2014]eKLR, the main issue for determinationwas whether the effect of section 23(2) of the Sixth Schedule to the Constitution of Kenya, 2010 and section 22(3) of the Vetting of Judges and Magistrates Act, No 2 of 2011 was to oust the supervisory jurisdiction of the High Court.

The majority opinion was that section 23(2) of the Sixth Schedule to the Constitution ousted the jurisdiction of the High Court or any other Court to review the decisions of the Judges and Magistrates Vetting Board and also excluded the powers of the High Court to exercise original jurisdiction in claims brought as a consequence of the decisions of the Vetting Board.

It was further held that as per the provisions of section 23(1) of the Sixth Schedule to the Constitution of Kenya 2010, the purpose of the vetting process was to ensure that Judges and Magistrates continued to serve in accordance with the national values and principles of good governance and in accordance with the requirements of article 259 of the Constitution. That among the provisions of article to 259 was the requirement that the Constitution would be interpreted in a manner that promoted its purposes, values and principles and advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights.

The Chief Justice in the said case concurred and emphasized that  that in interpreting the Constitution, Courts had to take cognizance of Kenya’s unique historical context and that the locus classicus case on statutory ouster, Anisminic case, would not apply in interpreting section 23(2) of the Constitution due to Kenya’s unique historical circumstances. He further held that there was need to interrogate other international jurisdictions on whether they had Constitutions with provisions such as articles 1, 23, 159 and 259 which emphasized on sovereignty of the people, article 10 on the national values and principles of good governance, which applied to the interpretation of Kenya’s Constitution 2010. If the answer to these questions was negative, then common law doctrines found in other jurisdictions, foreign cases and foreign Constitutions were to be interpreted in a manner that reflected Kenya’s modern Constitution and unique conditions and needs.

Meaning of Declaration of Election Results

The Issue of what constituted declaration of electoral results gave rise to difference in judicial reasoning in both the High Court and the Court of Appeal , however the Supreme Court finally settled the issue in the case of Hassan Ali Joho & another v Suleiman Said Sharbal & 2 others [2014]eKLR. The main issue before the Court was whether the 28 days limitation period for filing an election petition begun running after the declaration of election results by the Independent Electoral and Boundaries Commission as provided by article 87(2) of the Constitution or after the publication of the election results in the Kenya Gazette as provided by section 76(1)(a) of the Elections Act, and whether section 76(1)(a) of the Elections Act was inconsistent with article 87(2) of the Constitution and to that extent a nullity.

Section 76(1) (a) of the Election Act ( Cap 7 ) provided that a petition to question the validity of an election had to be filled within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation.

According to the court, declaration or election results took place at every stage of tallying. For example, the first declaration took place at the polling station; the second declaration at the Constituency tallying center and the third declaration at the County returning center. Thus the declaration of election results was the aggregate of the requirements set out in the various forms involving a plurality of officers. The finality of the set of stages of declaration was depicted in the issuance of the certificate in Form 38 to the winner of the election. That marked the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

The Court further held that where a candidate was challenging the declared results of an election, a quantitative breakdown would be a key component in the cause.  It had to be ascertained who the winner and the loser (s) in an election were. The certificate in Form 38 declared the winner of the election and terminated the mandate of the returning officer who acted on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the Election Court. The certificate in Form 38 comprised the declaration of election results. That declaration set in motion the time-frame within which to lodge an election petition. Consequently, the provision of section 76 (1) (a) of the Elections Act was inconsistent with the provisions of article 87 (2) of the Constitution.

Unconstitutionality of section 76(1) of the Election Petition Act, and its Effect on Election Petitions

 Following the Joho’s  decision of declaring section 76(1)(a) of the Elections Act as unconstitutional various petitions have been filled before the courts seeking inter-alia interpretation of what was the effect of declaring the said section of the Elections Act invalid.  In Mary Wambui Munene v Peter Gichuki King’ara & others, the Supreme Court had to deal with issue whether the declaration of section 76(1)(a) of the Elections Act, 2011 as being invalid had retrospective effect, therefore invalidating the proceedings filed before the date of the Joho’s decision.

It was held that, The Supreme Court had been silent in the Joho’scase on the effect of declaration of invalidity of a statute and therefore unequivocal about the invalidity of any action emanating from section 76(1)(a) of the Elections Act, in appropriate cases, it might exercise its jurisdiction to give its constitutional interpretations retrospective or prospective effect. That was derived from the broad mandate accorded by article 1, 10, 163, 159 and 259 of the Constitution, and section 3 of the Supreme Court Act, 2011.

It was further held that in line with the Constitution, the Court was not precluded from considering the application of the principles of retro activity or pro activity on a case by case basis. As such, in the instant matter, the issue of invalidity of section 76(1)(a) of the Elections Act was bound to the issue of time. Time, as a principle, was comprehensively addressed through the attribute of accuracy, and emphasized by article 87(1) of the Constitution, as well as other provisions of the law. Time, in principle and applicability was a vital element in the electoral process set by the Constitution.

Similarly in the case of Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 others [2014]eKLR, the Supreme Court affirmed its position by holding that, the declaration of invalidity of section 76(1)(a) of the Elections Act, applied retrospectively in the instant case, as in the case ofMary Wambui Munene v Peter Gichuki King’ara & 2 Others Sup Ct Applic. No. 12 of 2014 because the Elections Act was an essential derivative of the Constitution enacted after the promulgation of the Constitution and was meant to set out the guidelines for the proper and effective conduct of elections and necessarily incorporated the element of time and timelines.

The Court further held that the lesson of comparative jurisprudence was that while a declaration of nullity for inconsistency with the Constitution annulled statute law, it did not necessarily entail that all acts previously done were invalidated. In general, laws have a prospective outlook and prior to annulling declarations, situations otherwise entirely legitimate might have come to pass and differing rights might have accrued, that have acquired entrenched foundations. That gave justification for a case by case approach to time span effect in relation to nullification of statute law. In that regard, the Court had a scope for discretion, including the suspension of invalidity and the application of prospective annulment. Such recourses, however, were for sparing and most judicious application in view of the overriding principle of the supremacy of the Constitution as it stood.

Timelines in filing and determining Electoral Appeals

The Supreme Court in the case of Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014]eKLR, had set out the timelines in filing and determining Electoral Appeals. The genesis of the case was that the petitioner had filed an appeal to the Court of Appeal against a High Court’s decision of dismissing the 1st respondents (Waititu) request for scrutiny and recount for votes in an election petition.

However, the appeal was filed 72 days after the delivery of the High Court’s judgment, notwithstanding the provisions of section 85A of the Elections Act, that provided that electoral appeals from the High Court to the Court of Appeal had to be filed within 30 days of the delivery of the High Court’s judgment.

The Court of Appeal In admitting & entertaining the appeal, held that section 85A (a) of the Elections Act being a statutory timeline, was not as mandatory as the timelines named in the Constitution itself; and so a court of law could extend the period within which an intending petitioner could lodge an appeal beyond the 30 day limit prescribed in the Elections Act, and that such an extension was proper in the interest of justice, especially where there had been delay in the preparation of court proceedings. That Parliament could not have intended to shut out a litigant from filing an appeal as that would have offended other constitutional provisions such as articles 10, 20 and 25(c). The Court further held that on the strength of rule 35 of Election (Parliamentary and County Elections) Petition Rules, the Court of Appeal Rules were applicable in their totality to election petition appeals before the court; and so Rule 82 (1) of the Court of Appeal Rules (which provided for the certificate of delay) could apply to extend the time for filing an election petition appeal beyond the 30 day.

The petitioners main ground of appeal before the Supreme Court was that the Court of Appeal acted without jurisdiction when they entertained heard and determined an incompetent appeal filed beyond the prescribed timelines, which was in breach of the provisions of article 87(1) of the Constitution of Kenya, 2010 and section 85A of the Elections Act.

The Supreme Court overturned the decision and held that the question of timeliness in filing and determining election petitions as set by the Constitution and the Elections Act, section 85A(a) were neither negotiable nor could they be extended by any court for whatever reason. Section 85A of the Elections Act was neither a legislative accident nor a routine legal prescription. It was a product of a constitutional scheme that required electoral disputes to be settled in a timely fashion.

Thereafter the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014]eKLR , set out the principles to be considered in exercise of discretion to extend time for filing an appeal . The principles were:

  1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court.
  2. A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
  3.  Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis.
  4.  Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the Court.
  5. Whether there would be any prejudice suffered by the respondents if the extension was granted.
  6. Whether the application had been brought without undue delay, and.
  7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

Broadcasting Signal Distribution Licensing

Communications Commission of Kenya & 5 others v Royal Media Services & 5 others [2014]eKLR

The case had its origins at the High Court where Royal Media Services and 5 others sought orders to compel the Communications Commission of Kenya to issue them with Broadcasting Signal Distribution (BSD) licenses & frequencies & an order restraining the CCK from switching off their analogue frequencies, broadcasting spectrums and broadcasting services pending the issuance of a BSD license. However, the High Court dismissed the petition holding that Royal Media Services and other media the petitioners were not entitled to be issued with a BSD license merely on the basis of their established status or legitimate expectation on their part and further that the implementation of the digital migration was not a violation of the petitioners fundamental rights and also that their intellectual property rights had not been infringed.

Aggrieved by that decision, they appealed to the Court of Appeal who set aside the decision of the High Court by holding inter alia that.

  1. The Communications Commission of Kenya was not the independent body contemplated by article 34(3) (b) & (5) of the Constitution and therefore could not grant the BSD licenses.
  2. The direction for the then respondents to air the appellants’ (now respondents’) Free to Air (FTA) programmes  without their consent was a violation of the appellants’ intellectual property rights and was thus declared null and void.

Subsequent to the determination by the Court of Appeal, four petitions were filed at the Supreme Court by the appellants (Petitions Nos. 14, 4A, 14B & 14C of 2014) and were all consolidated into the instant petition.

The main issues for determination before the Supreme Court were whether Communication Commission of Kenya violated the intellectual property rights of the content producers (respondents) by authorizing the 4th & 5th appellants to transmit the respondents’ broadcasts without the respondents’ consent and Whether legitimate expectation for the grant of Broadcasting Signal Distribution (BSD) license can arise on account of substantial/ massive investments in the broadcasting sector.

The Supreme Court held that CCK had exclusive powers under section 5(1) of the Kenya Information & Communications Act to issue broadcast licenses. Section 5B thereof guaranteed the independence of CCK in the performance of its functions. However the promises made to the respondents on account of their substantial investment in broadcast infrastructure, and upon which they claimed legitimate expectation for the grant of BSD licenses emanated from the Permanent Secretary, Ministry of Information, Communications & Technology. Under the Kenya Information & Communications Act, the Permanent Secretary had no role in the granting or cancellation of a BSD license or any other broadcast licenses. It was therefore unlawful for the Permanent Secretary to make such promises to the 1st and 2nd respondents.

The Court further held that although CCK deployed the procurement procedure in the Public Procurement & Disposal Act, in granting a BSD license to the 5thappellant (Pan African Network Group Kenya, Limited) and denying the same to the 1st, 2nd & 3rd respondents, that decision was not informed by the imperatives of the values of the Kenyan Constitution as decreed in article 10. Given the fact that the subject matter of the license was a critical public resource and whose capitalization the Kenyan public had an interest in, CCK was bound to conduct its affairs more responsibly & transparently. Instead CCK chose to be hamstrung by the technicalities of procedure as if it were an ordinary procurement of goods and services. It was operating as if the constitution did not exist.

Mandate of the National Land Commission vis a vis Ministry of Lands, Housing & Urban Development

Since the establishment of the National Lands Commission, disagreements have arisen in regard to the powers and functions of the National Lands Commission and the Ministry of Lands, Housing & Urban Development.

In Re the Matter of the National Lands Commission under Article 163(6) of the Constitution of Kenya in the Supreme Court of Kenya Reference No 2 of 2014. The National Lands Commission sought an advisory opinion on the said conflicting roles. The main issue before the Court was whether the dispute concerning the powers and functions of the National Land Commission vis a vis those of the Ministry of Lands, Housing & Urban Development were those that raised a Justiciable issue and whether the High Court would have been the best forum to resolve that dispute.

The court held that the National Land Commission was a state organ established under article 67(1) of the Constitution, and recognized under article 248(2) (b), and it therefore had the capacity to request the Supreme Court for an advisory opinion.

It was also held that under the National Land Commission Act, 2012 (Act No. 5 of 2012), section 5(2) (b) all land vested in the people and was to be administered by the National Land Commission. Therefore, the applicant as the State organ entrusted with the function of managing public land on behalf of both the national and county governments, its mandate cut across both spectra of national and county government.

The Court further held that the instant reference involved matters concerning county government; in particular, as the relevant issues involved the administration and management of public land, at both the national and the county level, precisely as contemplated under articles 62(2) and 67(2) of the Constitution. From the terms of the Constitution, the applicant (National Land Commission) was a shared institution at the two levels of government, and did not fall within the exclusive sphere of the national government.

Reported by: Andrew Halonyere

Source: Kenya Law