Supreme Court Of Kenya: Insider’s Perspective on the Emerging Groundwork.
By The Hon. Justice (Prof.) Jackton B. Ojwang, Ph.D. (Cantab);
Justice of the Supreme Court of Kenya.
The designation “Supreme Court”, in general1, refers to the apex adjudicatory agency of the judicial system. The establishment of such a Court suggests, firstly, that consequences of the motions of the governance set-up, and the impacts of these on the rights and claims of private persons or groups of persons; or any disputed issues among such persons or groups or persons, fall to the domain of the Courts; and the determination made by the Courts is perceived as the legitimate recourse, by the principles of the Constitution. And such a demarcated platform of legitimacy in the broad sphere of dispute-settlement, narrows down still further, in a proper case, to the determination of one final Court, the Supreme Court.
One of the oldest Supreme Courts, that of the United States of America, was established in 1789, by Article III of that country’s Constitution, which vests it with the “judicial power of the United States”. The special role of that Court in the American constitutional order led to the donation of a wide mandate, clearly extending from the more limited and more structured disputes between persons or private organizations, to what may be perceived as political questions, touching on the powers of public agencies. The nine Justices of the American Supreme Court are appointed by the President, with the approval of the Senate – both agencies of clear political complexion.
Such a political dimension to the apex Court manifested itself in a different way in the case of the English House of Lords, which was essentially a parliamentary organ, but part of the membership was made up of a Judicial Committee of the most distinguished Judges, functioning professionally as the ultimate appellate Court. This judicial element of the House of Lords has, in recent times, been formally renamed the Supreme Court, and remains the apex Court.
Kenya’s Supreme Court, by contrast, is designed as simply a judicial agency, being the ultimate Court, appointed on the basis of professional qualifications prescribed by the Constitution of Kenya, 20102.
Supreme Courts in general, as they have the final word in all situations of dispute falling within their jurisdiction, labour in the context of certain challenges: notably those borne of intra-government activity, or of relations between government and non-government agencies – such relations so often involving issues of political colouration. Inevitably, the question arises whether the Supreme Court Judges have been guided by law, in its proper disciplinary identity, or by political preference, and whether they have not improperly dispensed their own political prejudice.
There are still other challenges. A notable one is the burden of the flow of the dispute-settlement business on to the Supreme Court Bench. Numerous matters come up in litigation before the Magistrates’ Courts, the High Court and the Court of Appeal. Must all appeals flowing from those Courts end up in the Supreme Court?
Although the Constitution3 provides that “Sovereign power under this Constitution is delegated to…the Judiciary and independent tribunals”, it is not the case that all appeals are to come before the Supreme Court. For this Court’s appellate jurisdiction is limited. Article 163(4) and (5) thus provides:
“(4) Appeals shall lie from the Court of Appeal to the Supreme Court –
(a) as of right in any case involving the interpretation or application of this Constitution; and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
“(5) A certificate by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
The Constitution has defined the Supreme Court’s mandate, for contestations on merits, in precise terms: (i) the Court has jurisdiction in respect of all appeals “involving the interpretation or application of the Constitution”; (ii) it has ordinary appellate jurisdiction, but this is limited to matters certified as being “of general public importance”; (iii) it has4 “exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140”; and lastly5 (iv) –
“The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”
The jurisdiction of this Court, therefore, has been specifically defined, though scope is left for ordinary legislation to “make further provision for the operation of the Supreme Court”, and for the publication of subsidiary legislation to regulate the mode of exercise of the Court’s jurisdiction. By the Supreme Court Act, 20116, the Court may exercise inherent powers of upholding its authority, by way of correctional powers in contempt cases.
It is clear then that only a select set of matters will be lodged before the Supreme Court, as the ultimate custodian of the processes of dispute settlement; and this is the context in which the insider’s experience of the Court’s career, in the last two years of operation, may be recounted.
B. The Supreme Court: Maiden Tasks
(a) Case-experience: Categorization
Owing to limitations of jurisdiction, the flow of cases to the Supreme Court has been regulated and, in the case of a number of such matters, the Court declined jurisdiction. The greatest number of matters coming up before the Court, so far, has been on lawyers’ preliminary queries, rather than substantive matters-in- dispute between parties – the spin-off being the opportunity for the Court to give practical guidelines on its admission criteria. The next category of matters coming up has been the invocation of the advisory-opinion mandate; and lastly, the Presidential-election dispute.
(b) Preliminary Applications: Clarifying the Court’s Remit
Is a party perfectly at liberty, by defining a complaint as a matter of interpretation or application of the Constitution7, to move the Supreme Court to hear and determine a particular appeal cause? The Court answered this question in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo and Five Others8, when it declined to entertain an appeal on an ordinary question in contest, in the following terms:
“In the petitioner’s whole argument, we think, he has not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court.”
Since, as the Court held, the material cause did not fall within the scope of “interpretation or application of the Constitution,” it followed that it required due certification for appeal, by the Court of Appeal or in a proper case, by the Supreme Court; and as such leave had not been granted, the petition was dismissed with costs.
The Court went further to pronounce upon the principles applicable to the prosecution of appeals, in ordinary-dispute cases, up to the Supreme Court9:
“We draw analogies with the plurality of autonomous structures created by the Constitution of Kenya, 2010 which represent a progressive new trend of governance. The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. In the instant case, it will be perverse for this Court to assume a jurisdiction which, by law, is reposed in the Court of Appeal, and which that Court has duly exercised and exhausted.
“In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law, or of jurisprudential moment, will deserve the further input of the Supreme Court.”
In a kindred case, Erad Suppliers and General Contractors Limited v. National Cereals and Produce Board10, the appellant had lost in a Ruling made before the Court of Appeal. The appellant sought to move the Supreme Court, on the basis that the said Court of Appeal Ruling was the outcome of proceedings that were “in violation of Article 160(1) of the Constitution.” This foundation to the appeal was being challenged at the threshold, by way of preliminary objections raised by the respondent. The respondent raised, inter alia, the following questions: is this a matter that lies on appeal as of right, as provided in Article 163 of the Constitution? did the matter occasioning appeal fall within the category of “matter of interpretation or application of the Constitution”? was this an appeal as envisaged by the Constitution: had the Court of Appeal already exercised its appellate jurisdiction?
It was not the said appeal that was, at this stage, brought before the Court; instead, the appellant was contesting a grant of stay-of-execution of a High Court Order made by the Court of Appeal – on the ground that there was a constitutional flaw to the Court of Appeal’s Order. The Court considered the materiality of the linkages among the series of contests to constitutionality. It was urged before the Supreme Court that a letter from the Permanent Secretary in the Ministry of Agriculture, is what occasioned the session at which the Court of Appeal made the stay Order being challenged: and that the said Order, therefore, constituted the constitutional wrong of infringement of the independence of the Judiciary.
The Court’s position was that a keen perception of the essence of a claim is essential, where differing claims run in chain at different judicial levels, and the Constitution is pleaded as the basis of exercise of the Supreme Court’s jurisdiction. The essential point emerges from two passages in the ruling11:
(i) “In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”
(ii) “Whether or not the said communication from the Executive Branch was so crucial, is essentially an evidentiary question; but the Court of Appeal’s record shows that Court’s perception to be that the letter had no relevance. We would take judicial notice of the solemnity of the Court of Appeal’s record, while bearing in mind that the appellant’s main cause is not before the Supreme Court. The [judicious] position to take, in our opinion, is that the matter before us had a collateral nature, falling outside this Court’s jurisdiction, failing the express consent of the Court of Appeal.”
Just as the Erad Suppliers case – much like the Peter Oduor Ngoge case – shows a forensic ingenuity in activating the Supreme Court’s jurisdiction, so does The Kenya Section of the International Commission of Jurists v. The Attorney-General and Two Others12, which related to a ruling on a preliminary point in the Court of Appeal. The appellant herein had objected to the appearance of the Attorney-General as a party; and the objection had been overruled, in these terms:
“[W]e are satisfied that the Attorney-General is a proper party to these proceedings and we accordingly find no merit in the preliminary objection. As the proceedings are neither criminal nor civil, we see no wrong in bringing the application under Rule 5(2)(b) [of the Court of Appeal Rules]. We therefore dismiss the objection.”
This limited point was blown out into a substantive constitutional issue, urged to merit the exercise of the Supreme Court’s jurisdiction in the interpretation or application of the Constitution. Learned counsel for the appellant, Mr. Nderitu, submitted that the Court of Appeal had failed to “adopt a normative, purposive, broad and liberal approach to the interpretation of Article 156(4)(b) [on the representation of the national government in Court proceedings] and Clause 31(5) of the Sixth Schedule [to] the Constitution of Kenya, 2010”. And so, the Supreme Court was asked to quash the Court of Appeal’s Order dismissing the said preliminary objection. Did this preliminary matter entail a constitutional question so significant as to merit the invocation of the Supreme Court’s appellate jurisdiction? In the Court’s decision, one perceives the makings of a jurisprudential path which may, in the future, inform its engagement in causes raised by litigants. The Court held13:
“There was, therefore, no legitimate issue of interpretation or application of the Constitution, regarding the role of the Attorney-General in the proceedings before the Court of Appeal, which merited an appeal to the Supreme Court. The issue raised before the Court of Appeal and which is now sought to be brought to the Supreme Court squarely fell within the category of a collateral cause – a matter not appealable save with the leave and certificate of the Court of Appeal. There being no such certificate, and there not having been a reference leading to a differing position taken in this Court, this is the typical case in which no appellate jurisdiction lies in the Supreme Court.”
Does a statutory “enlargement of jurisdiction” lawfully empower the Supreme Court to reopen cases concluded before the former apex Court, namely the Court Appeal?
Following the promulgation of the Constitution, on 27 August 2010 the Kenya Parliament enacted the Supreme Court Act, 201114, which came into force on 23 June 2011. This Act had a provision bearing the marginal note to its section 14, in the phrase “special jurisdiction.” The section thus provided:
“(1) To ensure that the ends of justice are met, the Supreme Court shall, within twelve months of the commencement of this Act, either on its own motion or on the application of any person, review the judgments and decisions of any judge –
(a) removed from office on account of a recommendation by a tribunal appointed by the President, whether before or after the commencement of this Act; or
(b) removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011; or
(c)who resigns or opts to retire, whether before or after the commencement of this Act, in consequence of a complaint of misconduct or misbehavior.
“(2) To qualify for review under subsection (1), the judgment or decision shall have been the basis of the removal, resignation or retirement of, or complaint against, the judge.”
Did the foregoing provision constitute just an elaboration of the mode of exercise of the Supreme Court’s mandate as laid out in Article 163 of the Constitution? Or was this the donation of a substantive and entirely new jurisdiction?
In Samuel Kamau Macharia and Another v. Kenya Commercial Bank and Two Others15, the applicants sought leave to appeal against the judgment of the Court of Appeal in Kenya Commercial Bank Limited and Kenya Commercial Finance Co. Ltd v. Samuel Kamau Macharia and Two Others16, which had been delivered on 31 July 2008, just over two years ahead of the promulgation of the Constitution of 2010. The application cited as its foundations Article 163 of the Constitution, as read together with Sections 14-16 of the Supreme Court Act, 2011. The applicants invoked the following grounds:
(i) a matter of general public importance was invoked;
(ii) substantial miscarriage of justice may occur unless the proposed appeal is heard and determined;
(iii) the intended appeal is arguable;
(iv) the intended appeal raised “major constitutional issues.”
The Supreme Court had to consider several questions, as a basis for determining whether an appeal was permissible. Firstly, certification for appeal had not come from the Court of Appeal; and the Court took the position that “those seeking certification to appeal from the Court of Appeal, on the basis of Article 163(4)(b) [of the Constitution] have to originate their applications in that Court17.” The basis of such a stance is that “the course of experience shows cases in which appeal to the Supreme Court has been sought on grounds other than of merit”, and “the Court of Appeal has the case-management obligation to grant leave only for weighty cause19.”
That, however, was not the Court’s reason for disallowing the application; the critical question was jurisdiction – and the consistency of Section 14 of the Supreme Court Act with the terms of the Constitution. This issue was thus set out by the Court20:
“Can the Supreme Court entertain appeals from cases that had already been heard and determined by the Court of Appeal before this Court came into existence? Does the appellate jurisdiction of the Supreme Court stretch back to the time prior to the promulgation of the Constitution?”
It was urged by the respondents that the Court of Appeal’s judgment of 31 July 2008 was a final disposal of the issues in dispute, from the highest Court in the land; and that the judgment had conferred absolute rights upon the respondents – rights now well and truly vested and accrued, not capable of being taken away in the absence of express provisions of the law.
Quite apart from lawyers’ misgivings about retroactive application of law21, the Court addressed its mind to the question whether Article 163(4)(b) of the Constitution was intended to confer appellate jurisdiction upon the Supreme Court, the exercise of which would have retrospective effect upon vested rights of individuals.
At a general level, the Court held that the Constitution, given its essential reflection of the political order, does not bear a restricted perspective:
“…it is important to note that a Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of [the] rendering of political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a Court of law must pay due regard to the language of the Constitution…. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of … rights legitimately [accrued] before the commencement of the Constitution.”
The Court had the advantage of comparative judicial experience, and relied in particular on the South African Constitutional Court case, Du Plessis and Others v. De Klerk and Others23 in which Chaskalson P, Langa & O’Regan JJ and Kentridge, Ag. J thus stated:
“…a right of action was a form of incorporeal property and there was no warrant in the Constitution for depriving a person of property which he lawfully held before the Constitution came into force by invoking against him a right which did not exist at the time when the right of property vested in him.”
From that foundation, the Supreme Court held that there was no basis for reversing the status quo ante, by retroactive application of the law:
“In the instant case, we find that a final judgment by the highest Court in the land at the time vested certain property rights in, and imposed certain obligations upon the parties to the dispute. We hold that Article 163(4)(b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution24.”
The Court refused the application for admission to appeal against the 2008 judgment, still more decisively on another ground: the constitutionality of Section 14 of the Supreme Court Act which appeared to enhance the jurisdiction of the Court. The Court thus pronounced itself25:
“What is the proper province of Article 163(9) of the Constitution [which empowers Parliament to make further provision with respect to the operation of the Supreme Court]? Does the Article contemplate a situation where Parliament can confer further jurisdiction upon the Supreme Court? We hold that it doesn’t. The Act contemplated by Article 163(9) is operational in nature. Such an Act was intended to augment the Rules made by the Supreme Court for the purpose of regulating the exercise of its jurisdiction. It is an Act that must confine itself to the administrative aspects of the Court. It is a law that addresses the manner in which the Supreme Court exercise its jurisdiction as conferred by the Constitution or any other legislation within the meaning of Article 163(4)(b). Such an Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution.”
The Court held Section 14 of the Supreme Court Act to be unconstitutional, insofar as it purported to confer “special jurisdiction” upon the Supreme Court, contrary to the express terms of the Constitution.
The principle and authority of the Macharia decision was later re-visited, but reaffirmed, in Jasbir Singh Rai and Three Others, v. Tarlochan Singh Rai and Four Others26, in which the petitioners asked the Supreme Court to reverse its position. The Court of Appeal in that matter, had conclusively determined the case on the merits of an appeal from the High Court. But the petitioners were invoking the “special jurisdiction” which had been provided for under Section 14 of the Supreme Court Act, to have the Supreme Court re-determine the cause: on the ground that one of the appellate judges had lacked rectitude, so that this was a matter fit for re-opening before the Supreme Court. Finding the principles laid down in the Macharia case to stand in the way, the petitioners asked the Court to reverse its decision in that case.
The petitioners’ case was refused, the Supreme Court coming to its conclusion as follows27:
“From the design of the application herein and from its detailed mode of prosecution, it has emerged, in our perception, that the essence of the case is that the Macharia case was wrongly decided, and the decision should be reversed. The remarkable element in the conduct of the applicant’s case, has been the sustained invocation of general principles declared in the Constitution; but no self-evident instances of interpretive fault, or of erroneous application of law, [were] laid before the Court. Learned counsel invoked his client’s constitutional entitlement to fair trial, which the Macharia precedent would deny; but he barely took into account the prior jurisdictional question which, alone, must determine whether even a genuine grievance is to be entertained. The Court had been obliged to pronounce upon Section 14 of the Supreme Court Act, as part of the initial resolution of the jurisdictional question. If it may be thought that any error was entailed in the Court’s perception of jurisdiction, such an apprehension by itself, would not justify the reversal of the Macharia Ruling, a decision which, as we must take judicial notice, will have established itself as a mark of certainty and predictability in the law, …on the basis of which numbers of people will have figured out their rights and expectations. In these circumstances, in our view, public policy will not stand on the side of reversal of precedent.”
(c) Ordinary Appellate Jurisdiction of the Supreme Court: “ Matter of General Public Importance”
The Supreme Court’s decision in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo and Five Others28, spells out the vital principle of the Constitution in respect of day-to-day appeals: “the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or jurisprudential moment, will deserve the further input of the Supreme Court29.”
Thus, no ordinary appeal cause has a place before the Supreme Court, save that it entails “a matter of general public importance.” Necessarily, therefore, to the new Supreme Court, fell the initial task of laying out the scope of issues that merit categorization as “matters of general public importance.” What was the basis of this principle? Although this question gives room for conjecture, the Supreme Court’s recent experience shows the nature of its responsibility to be so broad-based, as to render this Court a significantly inappropriate forum for all the most detailed evidentiary elements of the cases that parties may be minded to bring up on a final appeal. The charge to “assert the Supremacy of the Constitution and the sovereignty of the people of Kenya30”; “provide authoritative and impartial interpretation of the Constitution31”; “develop rich jurisprudence that respects Kenya’s history and tradition and facilitates its social, economic and political growth32”; and “enable important constitutional and other legal matters…to be determined having due regard to the circumstances, history and cultures of the people of Kenya33” – is unlike the more closely-defined tasks of the other Courts in the judicial hierarchy; and it would be an inordinate responsibility, if the Supreme Court were to endeavour to further resolve all remaining grievances after cases had been concluded by other Courts.
Besides, the Constitution34 has laid down exacting criteria of appointment and retention of office for all Judges of the superior Courts; and it is to be postulated that they will, in general, endeavour to arrive at their decisions conscientiously, and with the best standards of professionalism. Therefore, only on matters of general public importance, is it permissible for an ordinary category of dispute to be brought on appeal before the Supreme Court.
The Supreme Court’s task, in this regard, has been to define the category of matters that merit a hearing, on final appeal.
The first comprehensive attention to the proper basis of such appeal was in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone35. The guiding principles were, in that case, generally agreed, though two Judges out of the Bench of five, dissented as to application, on the facts of the case. The full range of governing principles are to be found, in composite listing, in the separate opinions; and the same has been more recently consolidated and restated in Malcolm Bell v. Hon. Daniel Torotich arap Moi and Another36, as follows:
(i) “for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;”
(ii) “where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have significant bearing on the public interest”;
(iii) “such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination”;
(iv)“where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination”;
(v)“mere apprehension of miscarriage of justice, a matter most apt for resolution [at earlier levels of the] superior Courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163(4)(b) of the Constitution”;
(vi)“the intending applicant has an obligation to identify and concisely set out the specific elements of ‘general public importance’ which he or she attributes to the matter for which certification is sought”;
(vii) “determinations of fact in contests between parties are not, by [and of] themselves, a basis for granting certification for an appeal before the Supreme Court;”
(viii) “issues of law of repeated occurrence in the general course of litigation may, in proper context, become ‘matters of general public importance’, so as to be a basis for appeal to the Supreme Court”;
(ix) “questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court”;
(x) “questions of law that are destined to continually engage the workings of the judicial organs, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court”;
(xi) “questions with a bearing on the proper conduct of the administration of justice, may become ‘matters of general public importance’, justifying final appeal in the Supreme Court.”
The application of the foregoing principles was the basis of the dissent in the Hermanus Phillipus Steyn case. The relevant questions in this regard were: When an agent claims commission from a principal, can such agent be said to have earned a right to the commission if he or she cannot establish that the event has happened which, alone, calls fourth the payment of a commission? Can the Court make an order for payment to an agent on the basis of “services rendered”, on the basis of graduated proportional assessment, where the contract is one for brokerage as a specified commission – but the relevant event cannot be shown to have happened?
The applicant had urged that the matter related to a particular class of litigants in Kenya, namely brokers and commission agents; and that it related to an award of damages which paid no regard to the compensation terms embodied in the commission agreement. The Court had to decide the question whether brokers and commission agents constituted a category of litigants of general importance; and it was urged that the matter raised questions of general importance to business persons, especially investors and commission agents. It was contended that an error such as that which was being attributed to the Court of Appeal, was destined to stand in law as precedent for future disputes – and that this scenario raised a matter of general public importance. The majority Ruling (Tunoi, Wanjala, Ndungu, SCJJ) was that:
“It is our opinion…that counsel is treading a journey of legal innovation so as to clothe a private-agency contract between two parties with ingredients of public interest. The nature of the commission agreement in the instant case and the dispute arising therefrom cannot affect all business people in Kenya including all agents and investors.”
The minority (Ibrahim, Ojwang SCJJ) position was as follows:
“Although this is a dispute of immediate relevance only to the parties, the course of judicial resolution will establish legal principles of general application in future cases. This being a dispute regarding commercial transactions, a sector of the most active relationships in a growing economy such as that of Kenya – a fact of which we take judicial notice – it is reasonably to be expected that such legal principles as will emerge from the adjudication of the intended appeal will, in time, have a significant recurrence in the incidence of dispute settlement. Not only will considerable numbers of litigants be affected, but the proper conduct of administration of justice, and the workings of the judicial organs too, will be touched by the lines of principle which this Court has the occasion to lay out.”
From the experience of the Hermanus Phillipus Steyn case, it is clear enough that the exercise of the Supreme Court’s remit of laying the grandes lignes in the jurisprudential path is not free of difficulty, either at the threshold stage, or at the stage of application. However, in a number of instances the application of the principles in the Hermanus Phillipus Steyn case has occasioned no dissent. In Shabbir Ali Jusab v. Anaar Osman Gamrai and Others37, the Court doubted that there was, as alleged, any uncertainty in the law relating to international child trafficking such as would warrant the exercise of an ultimate appellate jurisdiction. In the words of the Court38:
“There are assertions that there is an uncertainty in the law, but these are short of categorical, as this matter has not yet been determined by a superior court.”
The petitioner had besides, merely held up the gravity of the subject, as the merit justifying a hearing before the Supreme Court, but this element had not been canvassed in other Courts; the Court thus held39:
“…[T]his matter does not fall within the jurisdiction of the supreme Court, as stipulated by the Constitution. This Court is not inclined, on an ordinary appellate cause, to pronounce itself on an issue that has not been canvassed and determined by the Courts or tribunals below, as provided by law. The High Court has not heard the petition before it…, and neither has the matter before the Children’s court (on custody of the child) been determined. Those Courts ought to have an opportunity to hear the matters before them, and to make a finding, before the stage is reached for an appeal to this Court, as contemplated under Article 163(4) [of the Constitution].”
Similarly in Malcolm Bell v. Hon. Daniel Toroitich arap Moi and Another40, the Court was in agreement that no matter of general public importance had been raised, as a basis for invoking its jurisdiction41:
“…the respondents failed to establish a foundation for the lodgment of an ultimate appeal in the Supreme Court. As the cause raises no matters of general public importance, this Court’s jurisdiction has not been properly invoked, and the Court of Appeal was in error, as a matter of law, in granting certification for a further appeal. The guiding principles for determining whether a question is one of general public importance and therefore merits such an appeal, have been elaborated in the Hermanus Steyn case: and the proposed appeal herein fails the test, notwithstanding that its subject-matter is landed property.”
The Constitution of Kenya, 2010 creates a novel jurisdiction, which it reposes in the Supreme Court. Article 163(6) thus provides:
“The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”
It is evident that this provision was necessitated by the complications and sensitivities of the devolution process which took the form of counties, a crucial factor in the design and purpose of the new constitutional dispensation. In the live lesson of history, such devolution initiative had aborted some five decades earlier, and in the aftermath, Kenya’s governance had regressed to the fringes of crisis; and so, major hopes and aspirations moored on county-units. Thus, for the devolved governance system, such disputes as might emerge would be redressable not only by the ordinary judicial mechanism, but, in addition, by the advisory opinions of the apex Court.
This scenario is well depicted in the several instances of advisory opinion which have been brought before the Supreme Court. The very first time the Court’s advisory opinion was sought was in In the Matter of the Interim Independent Electoral Commission42, in which the immediate object was to have the date of the first general elections, under the new Constitution, ascertained. Could such a matter be associated with county government, so it would become a proper subject for an advisory opinion? There was a significant connection, as the Court held43:
“Now on the facts of the instant case, we would hold that election date is a question so central to county government, as to lie within the jurisdiction of this Court, in relation to the request for an Advisory Opinion. We are not, on this point, in agreement with counsel for the second interested party, that the request for an advisory opinion is beyond jurisdiction because no county government has as yet been set up, and so no party has locus to seek such an opinion.”
Proceeding, however, on certain practice guidelines44, and taking into account causes bearing on the same question which were already lodged in the High Court, the Court upheld a preliminary objection, and declined to issue an advisory opinion.
Apart from spelling out the relationship between the advisory-opinion jurisdiction and the devolved governance-units, the Court stated an important principle of status, in respect of such opinion45:
“While an Advisory Opinion may not be capable of enforcement in the same way as ordinary decisions of the Courts (in the shape of Rulings, Judgements, Decrees or Orders), it must be treated as an authoritative statement of the law. The Opinion must guide the conduct of not just the organ(s) that sought it, but all governmental or public action thereafter. To hold otherwise, would be to reduce Article 163(6) of the Constitution to an ‘idle provision’….”
From that foundation-decision, the Supreme Court has proceeded by determining its advisory-opinion jurisdiction firstly on the basis of Article 163(6) of the Constitution, and secondly on the basis of the merits of each case, while sustaining the principle that the subject-matter is to be one relating to county government.
The Court gave its first comprehensive advisory opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate46.
It is this matter, perhaps, that shows most clearly the rather diffuse frontiers of certain constitutional phenomena which, on that account, better suit them to the Supreme Court’s advisory opinion, rather than to the path of the litigated cause moved by evidence and argument.
The Attorney-General, apprehending crisis in national elections then due to be held, firstly, as the various political parties had made nominations of parliamentary candidates that would not lead to the exact constitutional gender quotas; and secondly, as it was unclear which persons were entitled to move a petition regarding a possible second round in the presidential election, sought the Supreme Court’s advisory opinion on two specific questions:
“A. Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March 2013?
“B. Whether an unsuccessful candidate in the first round of presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of such election under Article 140 or any other provision of the Constitution?”
A core question in the hearing before and the analysis by the Supreme Court, turned on the concept of gender equity in the membership of the legislature: is it for immediate, or for progressive realization? On the basis of a careful analysis, with inspirations from international law instruments, the Supreme Court, by a majority, found in favour of a progressive scheme of realization47:
“As Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the National Assembly and Senate are concerned, it follows – and this is the burden of our Opinion on this matter – that it cannot be enforced immediately. If the measures contemplated to ensure its crystallization into an enforceable right are not taken before the elections of 4 March 2013, then it is our opinion, Article 81(b) will not be applicable to the said elections. The effect is that Article 81(b) of the Constitution is amenable only to progressive realization – even though it is immediately applicable in the case of County Assemblies under Article 177.”
The principle thus stated led to a more specific statement48:
“Bearing in mind the terms of Article 100 [on promotion of representation of marginalized groups] and of the Fifth Schedule [prescribing time-frames for the enactment of required legislation], we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August 2015.”
The learned Chief Justice, Mutunga, P. had delivered a dissenting opinion on the gender-representation question, in which the rationale is thus rendered:
“[Learned counsel] Mr. Mwenesi raised the issue of the implications of the timeline of [five] years for Parliament to legislate under the Fifth Schedule of the Constitution. He argued that [five] years would expire in the mid-term of the new Parliament. It is implied that Parliament would legislate. These scenarios suggest that the best option, in my view an option that avoids the unconstitutionality of the next Parliament, is to legislate here and now and secure the rights of women under the two-thirds gender principle. It is my opinion, therefore, that the answer to the Attorney-General’s first question is that the two-thirds gender principle be implemented during the General Election scheduled for 4 March 2013.”
The second main question before the Supreme Court related to an aspect of the Presidential elections which appeared blurred, in the constitutional provisions: could an unsuccessful candidate in the first round of Presidential election bring petition under Article 136, challenging the outcome founded on Article 140? As the Court ascertained49, “[t]here is a lacuna in the Constitution and, short of a suitable amendment being effected, in accordance with the detailed provisions of Chapter 16 thereof, it is the Supreme Court’s responsibility to make such interpretation as will have the effect of upholding the meaning, intent and integrity of the Constitution as a whole.”
The Court gave the advisory opinion that50:
“…presidential-election disputes, in their whole range, should be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body, within practical time-lines to be read into Article 138(5); and in our unanimous opinion, in the event of a second round of election, the words ‘within thirty days after the previous election’ should be read to mean thirty days from the date on which the dispute in respect of the first round will have been resolved.”
The second advisory-opinion reference before the Supreme Court was The Speaker of the Senate and The Senate of the Republic of Kenya v. The Hon. The Attorney-General and the Speaker of the National Assembly51. This entailed discord in the law-making process, as between the two Chambers of Parliament. The National Assembly after initially involving the Senate in the deliberation processes of the Division of Revenue Bill, 2013 proceeded by overlooking the Senate’s role and its contributions, and securing Presidential assent for its separate approvals which resulted in the Division of Revenue Act, 2013. The Attorney-General joined in as the first interested party, urging that the Bill in question was a “money Bill”, and a matter of financial policy falling exclusively to the domain of the National Assembly and permitting no role of the Senate.
The applicants’ position was that, on a prima facie impression, Article 109 of the Constitution signals that a Bill not entailing issues of county government, steers clear of Senate’s mandate; but any Bill touching on the scheme or functions of county government, is clearly captured by the Senate’s legislative mandate.
Throughout the Supreme Court’s detailed opinion, and notably from Chief Justice Mutunga’s concurring opinion, it is plain that the devolution element, and its embodiment in the county-units, is a core principle of Kenya’s current constitutional dispensation; and it is no less manifest that the main safeguard-agency of that principle, in the law-making process, is the Senate. This aspect of the Constitution bears repeating, as had been duly affirmed in an earlier decision of the Supreme Court: In Re The Matter of the Interim Independent Electoral Commission52 (2011); the following paragraph is relevant53:
“Many offices established by the Constitution are shared by two levels of government ….We have taken note too that the Senate (which brings together county interests at the national level) and the National Assembly (a typical organ of national government) deal expressly with matters affecting county government; and that certain crucial governance functions at both the national and the county level – such as finance, budget and planning, public service, land ownership and management, elections, administration of justice – dovetail into each other and operate in unity.”
The Court’s conclusion in the Senate opinion-matter is perfectly consistent with the foregoing observation54:
“It is quite clear to us that the Division of Revenue Bill is a Bill bearing provisions that deal with the equitable sharing of revenue – which will certainly affect the functioning of county government. We have found no justification in the contention that the Division of Revenue Bill deals strictly with ‘national economic policy and planning’ and so, on this account it is a measure unrelated to county government. The Bill deals with equitable allocation of funds to the counties, and so any improper design in its scheme will certainly occasion inability on the part of the county-units to exercise their powers and to discharge their functions as contemplated under the Constitution.”
Contrary to the propositions of learned counsel for the interested parties, the Supreme Court held that the potential legislative crisis that may issue fourth from a unilateral course of conduct by one Chamber or the other, was intrinsically not a justiciable matter by normal judicial process, and that this was a proper case for an advisory opinion. And in the opinion rendered by a distinct majority of the Bench, it was thus stated55:
“We find merit, therefore, in upholding the stand of the applicants….It is clear to us that the Senate had a clear role to play, in the processing of the Division of Revenue Bill. The Speaker of the National Assembly should have complied with the terms of Article 112 of the Constitution; and the National Assembly should have considered the deliberations of the Senate on record and, failing concurrence on legislative choices, the matter should have been brought before a mediation committee, in accordance with the terms of Article 113 of the Constitution.”
There was, however, a dissenting opinion by Ndungu, SCJ who thus remarked [para.286]:
“An opinion that is not open to the parties…is for an amendment of the Constitution through an edict or opinion of this Court. It is my considered opinion that to ask this Court to give Senate powers that belong in plain language to the National Assembly would be to seek an amendment to the Constitution in a manner not recognized by the supreme law. I must be categorical and repeat…that, whatever the case may be, the tools for reviewing the Constitution to address [the] restructuring of [the] authority, power and functions of the Legislature, and the roles of the Senate and the National Assembly, lie squarely in a political and not judicial process.”
(e) Presidential Election
The very first Presidential election under the current Constitution took place alongside a multifarious set of elections under the scheme of the general elections of 3 March 2013 – elections of exceptional importance and which, indeed, were anticipated by some of the earlier motions in the Supreme Court56. This Court has been entrusted with categories of the most eminent jurisdiction under the Constitution, one of these being provided for in Article 163(3)(a), thus:
“The Supreme Court shall have –
(a)exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140….”
The general elections were conducted by the Independent Electoral and Boundaries Commission (IEBC) which, by virtue of Article 138(4) of the Constitution, declared Mr. Uhuru Kenyatta as President, on the basis that he had received more than half of all the votes cast, and at least 25 per cent of the votes cast in each of more than half of the counties. Three petitions were thereafter filed in the Supreme Court: the first contested the inclusion of rejected votes in the final tally – on the ground that such votes must have had a distorting effect on the percentage of votes won by each candidate. The second contested the manner in which the electoral process was conducted by IEBC, with regard to accession to the Presidential office. The third contested the legality of IEBC’s declaration of the third and fourth respondents as President-elect and Deputy President-elect, respectively. It was alleged, in the last petition, that the electoral process had been so substantially flawed as to render it impossible to hold the outcome to have been lawful.
The overall context of the said general election was a special one. It is often remarked, and with justification, that the promulgation of the new Constitution, on 27 August 2010 marked an unprecedented achievement in the nation’s democratization endeavours. But the main objects of the initiative would remain unaccomplished, save with the inaugural elections that would bring to life legitimate institutions of governance: the Presidency; the Senate; the National Assembly; the gubernatorial offices; the County Assemblies. The elections of 4 March 2013 were, thus, not ordinary elections, but institution-building elections, upon which the course of implementation of the Constitution would depend.
Large-scale as the elections were, they posed – objectively – the greatest challenge ever, to the responsible agencies. The nominative and elective agencies were all tested to the limit; same as the administering agencies; and cases of apprehension of impropriety or prejudice precipitated redress-proceedings in Court57.
Article 140 of the Constitution is concerned with “questions as to the validity of presidential election”, and prescribes clear courses of action within specified time-lines:
“(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
“(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
“(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.”
The constitutional significance of the Supreme Court’s decision at the end of the petition-proceedings is clear: it determines whether or not a swearing-in ceremony is to take place. Article 141(2)(b) of the Constitution provides:
“The President-elect shall be sworn in on the first Tuesday following –
(b)the seventh day following the date on which the court renders a decision declaring the election to be valid, if any petition has been filed under Article 140.”
The first national elections under the new Constitution entailed still more complications. The IEBC was, for the first time, endeavouring to apply certain technologies: biometric voter registration (BVR) at the stage of voter registration; electronic voter identification (EVID) on polling day; and electronic results transmission system (RTS) during vote-tallying – but the efforts proved mostly unsuccessful.
The voter-registration exercise began on 19 November 2012, ending with the registration of approximately 14 million voters, for a national population of 40 million. A record 86 per cent of the registered voters turned up at the polling stations and cast their votes on 4 March 2013. IEBC, thereafter, set upon the task of vote-tallying, culminating in the public announcement of results.
Mr. Issack Hassan, the Chairman of IEBC, on 9 March 2013 announced the votes received by each of the Presidential election candidates: Mr. Kenyatta had received 6,173,433 votes out of a total of 12,338,667 votes cast (50.07 per cent of all the votes cast); and runner-up, Mr. Odinga had received 5,340,546 votes (43.31 per cent of all votes cast). On that basis, and pursuant to Article 138(4) of the Constitution, Mr. Kenyatta was declared as the President-elect.
The Supreme Court directed that the three Petitions be consolidated and heard as one, with the last one providing the pilot file. The issues in the petitions, after consolidation, resolved into one fundamental cause: whether Mr. Kenyatta and Mr. Ruto were validly elected and declared as President-elect and Deputy President-elect, respectively.
On the basis of the Constitution’s rigidly-defined time-frames, the matter was intensively canvassed, on the basis of sworn statements and the submissions of counsel. For compliance with these time-frames, the Court made appropriate rulings from time-to-time, to facilitate timeous disposal, and due compliance with the terms of the Constitution. Such an orderly approach, in the Court’s perception, was the requisite method for averting the possibility of a constitutional crisis flowing from vacuums in essential governance-functions.
Unlike the advisory-opinion matters that have come up before the Supreme Court, with their unlimited scope for interpretation of the terms of the Constitution and for the reconstruction of, and reflection upon legal principle – opportunities that provided scope for charting novel lines of jurisprudence – the Presidential-election case, though so vital in the progress of the new Constitution, and so momentous in political profile, was a matter the scope of which was well defined by elements of procedure, evidence and probability-evaluation. The Court’s scope for juristic creativity, thus, was essentially circumscribed. The outcome of the proceedings, however, would have a special significance in the entire judicial system, as it would be a primary precedent guiding the superior Courts dealing with electoral disputes at all levels58.
The Presidential-election petition was vigorously canvassed before the Court, which thereafter gave careful consideration to the evidence of merit and the submissions of counsel. The Court thus prefaced the essential part of its decision59:
“The evidence in the consolidated Petition has been laid out in detail, and is the primary basis for disposing of the several prayers. The Court has also considered various questions of law and of general constitutional principle, upon which the petitioners rely….As such broader foundations to the cases concerned specific prayers, and as the relevant issues were squarely canvassed by counsel, we were able to make our findings, and embody the same at various stages in this Judgment.
“But, ultimately, the primary issue is the claim made by the petitioners in Petitions No. 4 and No. 5; and these resolve into the issue of Petition No. 5, namely: Must the certificate of election as President-elect, issued to the [third] Respondent, be cancelled; and should an Order be made for a fresh Presidential election to take place in Kenya?”
The Court thus set the context in which the Presidential election, against the background of the evidence on record, should be perceived60:
“An alleged breach of an electoral law, which leads to a perceived loss by a candidate, as in the Presidential election which has led to this petition, takes different considerations. The office of President is the focal point of political leadership and, therefore, a critical constitutional office. This office is one of the main offices which, in a democratic system, are constituted strictly on the basis of majoritarian expression. The whole national population has a clear interest in the occupancy of this office which, indeed, they themselves renew from time to time, through the popular vote.”
Quite in departure from the well known American Presidential election case, Bush v. Al Gore61 in which all credible account62 shows some Supreme Court Judges to have had definite lines of political preference, the Kenyan Supreme Court took a different course – whether by settled judicial inclination, design or happenstance – and thus expressed itself in unanimity63:
“As a basic principle, it should not be for the Court to determine who comes to occupy the Presidential office; save that this Court, as the ultimate judicial forum, entrusted under the Supreme Court Act, 2011 (Act No. 7 of 2011) with the obligation to ‘assert the supremacy of the Constitution and the sovereignty of the people of Kenya’ [s. 3(a)], must safeguard the electoral process and ensure that individuals accede to power in the Presidential office, only in compliance with the law regarding elections.”
On those lines of perception and reasoning, the Court further pronounced itself thus64:
“We take judicial notice that Kenya, thanks to the relentlessness of the people’s democratic struggles, has recently enacted for herself the current Constitution, which assures for every citizen an opportunity for personal security and for self-actualization in a free environment. The Judiciary in general, and this Supreme Court in particular, has a central role in the protection of that Constitution and in the realization of its fruits so these may inure to all within our borders; and in the exercise of that role, we choose to keep our latitude of judicial authority unclogged: so the Supreme Court may be trusted to have a watchful eye over the play of the Constitution in the fullest sense. Even as we think it right that this Court should not be a limiting factor to the enjoyment of free political choices by the people, we hold ourselves ready to address and to resolve any grievances which flow from any breach of the Constitution, [or of] the laws in force under its umbrella.”
While noting that “by no means can the conduct of this election be said to have been perfect,” the Court found no evidence laying out a case for orders of annulment. The Court posed the question65:
“Did the petitioner clearly and decisively show the conduct of the election to have been so devoid of merits, and so distorted as not to reflect the expression of the people’s electoral intent?”
The Court asserted that66:
“It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.”
On those principles the Court proceeded to hold thus67:
“In summary, the evidence in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.”
Consequently, the Supreme Court disallowed the Petition, and upheld the Presidential-election results as declared by IEBC on 9 March 2013.
This one case, by its unique character, by its absolute political significance, and by the institutional-reconstruction instant at which it fell to a new Supreme Court to set the path, has given a singular opportunity for the laying of a juridical threshold in the consolidation of democratic governance regulated by the rule of law. This perception falls at separate, significant levels. Firstly, the course of the law, through the agency of the Supreme Court, has sanctified and buttressed the provision of the Constitution of Kenya, 2010 that68: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Secondly, that the people in shaping their destiny by their own will, speak through majoritarian expression in elections. Thirdly, that the essential choice in such elections, is to be safeguarded; and its regular agency of safeguard is the Judiciary. Fourthly, that the judicial process, in safeguarding the majoritarian expression, should take a broad view, being guided by the principle that the clear popular intent is not to be defeated. Fifthly, the general principles emerging from the decision, as herein profiled, should inform the general process of electoral dispute settlement at other levels as well.
And lastly, the Presidential-election case has demonstrated the precious role of the judicial process, in sanctifying the pillars of the new democratic dispensation. This position already appears in a work of record69:
“The judicial remit of interpretation of law is all-important, in any perception of governance powers under the Constitution. That the law is the substratum of all lawful governance-action is axiomatic. It is precisely this principle that assigns to the Judiciary the vital role of guardian of constitutionality and legality – and thus accords this organ the most treasured role in the design of the constitutional process.”
As most of the Supreme Court’s work to-date has not fallen in the limelight-drawing category, its special significance in setting directions – firstly, in respect of the interplay of differing public-governance functions, and secondly, by laying essential rules of dispute settlement bearing on all sectors – may have missed due attention.
The various motions that have come up, mainly concerned with scope for appeals, and with other preliminary matters, have enabled the Court not only to clarify its jurisdiction, but also to define the rules of engagement coming with the new Constitution, and bearing upon the various judicial fora.
The most substantial scope for originality in the Supreme Court’s functioning, so far, has come through the motions for advisory opinions – thanks to which the Court has established the span of its mandate, and demonstrated its crucial role in the shaping of new governance-arrangements under the Constitution. It is, indeed, in this sphere of decision-making that the Court has most distinctly approached its mandate as specified in the Supreme Court Act, to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth70.” For instance, in dealing with the principle of gender representation in the State’s law-making process, the Court has pronounced itself on the essentials of representational equity, and the relevance in this regard of time and transition. And on the working relations between the two Parliamentary Chambers, the Court has elaborated general constitutional principles to keep the machinery of legislative governance in motion.
Although the scope for innovation was more limited in the Presidential-election case, it did present an opportunity for the Supreme Court to establish an important precedent, which has recently guided the settlement of scores of disputes71 coming up in the wake of the general elections of March, 2013. The relevant principle is that, so many pragmatic considerations move the wheels of an election, that no single one of them is likely to be, in all fairness, decisive in facilitating or obstructing a particular vote-outcome. Therefore, the Court is not to uphold or nullify an election result, just on the bare account that one particular evidential circumstance has or has not been established. The precedent coming from the Supreme Court is that an election Court should be slow to turn down what clearly emerges as the true electoral intent of the majority of the voters.
For the electoral dispute has special characteristics distinguishing it from the normal justiciable cause in contracts, torts, or equitable claims. The electoral process is, firstly, a governance issue touching on the aspirations and legitimate expectations of many voters, at the same time. Secondly, success in the conduct of an election has a public-institutional significance, touching on notable expanses of territory, and on a wide range of constitutionally-safeguarded interests. Thirdly, such prejudice as one candidate in an election may ascribe to himself or herself, is not stricto sensu, merely a personal or family loss, occasioning private asset-damage. Fourthly, an electoral loss, for any candidate, runs alongside such numerous and diffuse political, social and economic permutations as are not capable of mathematical verification and individual apportionment. The Court, therefore, has to bear in mind the broader context of propriety in the conduct of the elections and, above all, endeavour to uphold the clear intent of the majority of the voters.
This is the rationale behind the Supreme Court’s precedent in the election petition.
1. It can be used differently, of course, as Kenya’s constitutional history bears witness. In Kenya’s colonial history of nearly seven decades, the appellation “Supreme Court” denoted the effective superior Court of unlimited civil and criminal jurisdiction, namely, the High Court of contemporary times. Appeals lay from that Court to appellate courts entrusted with specially defined jurisdictions; see Y.P. Ghai and J.P.W.B. McAuslan, Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Nairobi: Oxford University Press, 1970), p. 164.
2. Article 166.
3. Article 1(3)(c).
4. Article 163(3)(a).
5. Article 163(6).
6. Act No. 7 of 2011.
7. Article 163(4)(a).
8. Supreme Court Petition No. 2 of 2012, para. 26.
9. Paras. 29, 30.
10. Supreme Court Petition No. 5 of 2012.
11. Paras 13A, 15.
12. Supreme Court Crim. App. No. 1 of 2012.
13. Para. 34.
14. Act No. 7 of 2011.
15. Supreme Court Application No. 2 of 2011.
16. Civil Appeal No. 181 of 2004.
17. Para. 63.
21. See Halsbury’s Laws of England, 4th ed, Vol. 44, p.570.
22. Para. 62.
23.  1 LRC 637.
24. Para. 65.
25. Para. 70.
26. Supreme Court Petition No. 4 of 2012.
27. Para. 73.
28. Supreme Court Petition No. 2 of 2012.
29. Para. 30.
30. The Supreme Court Act, 2011 (Act No. 7 of 2011), s.3(a).
31. Id., s.3(b).
32. Id., s. 3(c).
33. Id., s. 3(d).
34. Articles 166, 167, 168.
35. Supreme Court Application No. 4 of 2012.
36. Supreme Court Application No. 1 of 2013, para. 53.
37. Supreme Court Petition No. 1 of 2013.
38. Para. 41.
39. Para. 43.
40. Supreme Court Application No. 1 of 2013.
41. Para. 75.
42. Supreme Court Const. Application No. 2 of 2011.
43. Para. 41.
44. Para. 83.
45. Para. 93.
46. Supreme Court Advisory Opinion No. 2 of 2012.
47. Para. 74.
48. Para. 79.
49. Para. 84.
50. Para. 106.
51. Supreme Court Advisory Opinion Reference No. 2 of 2013.
52. Supreme Court Constitutional Application No. 2 of 2011.
53. Para. 39.
54. Para. 114.
55. Para. 116.
56. Notably: Supreme Court Const. Application No. 2 of 2011; and Supreme Court Advisory Opinion No. 2 of 2012.
57. Scores of election petitions were lodged throughout the country, necessitating special duty-preparedness sessions for the High Court in particular, with unprecedented re-arrangement of the operations of the superior Courts, to accommodate the claims of electoral litigation.
58. This perception is borne out by ensuing observations on the ground. In a Press account, Sam Kiplagat in his article “Why Most Election Petitions were Dismissed,” in The Star (Nairobi) [14 November 2013] [at p.28] brings the following record and remarks:
(i). . . “A total of 88 election petitions were filed following the March 4 general election “But only a handful of the cases went through….
“Among the petitions filed were 24 challenging the election of governors, 13 against senators, 70 against members of the National Assembly and nine against county women’s representatives.
. . “At the County Assembly, some 67 petitions were filed with five against county assembly speakers.”
(ii). . “When the hearing commenced, 17 cases were withdrawn as parties hammered out agreements. Judges on the other hand struck out some 31 cases on technical grounds. Election petitions have strict timelines and failure to comply with them leads to striking out of the case.”
59. Paras. 295, 296.
60. Para. 298.
61. 531 U.S. 98 (2000).
62. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Anchor Books, 2008).
63. Para. 299.
64. Para. 301.
65. Para. 304.
67. Para. 306.
68. Article 1(1).
69. Jackton B. Ojwang, Ascendant Judiciary in East Africa (Nairobi: Strathmore University Press, 2013), p. 26.
70. Section 3(c).
71. See p.58.