Weekly Newsletter 020/2020



Kenya Law

Weekly Newsletter


Factors considered by the Supreme Court in determining if a reference qualifies for the Supreme Courts advisory opinion jurisdiction
 
Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
Advisory Opinion Reference No. 1 Of 2017
Supreme Court of Kenya
DK Maraga, CJ &P; PM Mwilu, DCJ & VP; MK Ibrahim, JB Ojwang, SC Wanjala, SN Ndungu and I Lenaola, SCJJ
February 7, 2020
Reported by Ribia John
Download the Decision
 
Jurisdiction– jurisdiction of the Supreme Court – advisory opinion jurisdiction – qualification to be met before invoking the Supreme Court’s advisory opinion jurisdiction - what factors did the Supreme Court consider in determining if a reference qualifies for the Supreme Courts advisory opinion jurisdiction - whether the Supreme Court could issue an advisory opinion where the matter in respect of which the reference had been made was a subject of proceedings in a lower court - whether the issues of whether chapter six of the Constitution set up a fit and proper test for leadership including elective and appointive offices; and if so, what was that test, invoked the Supreme Court’s advisory opinion jurisdiction – Constitution of Kenya, 2010 articles 163(4)(b), (6) and 165; Supreme Court Act, section 13; Supreme Court Rules, 2016 rule 41.
Constitutional Law – locus standi – locus standi to seek an advisory opinion from the Supreme Court – whether the Kenya National Commission on Human Rights had the locus standi to seek an advisory opinion from the Supreme Court - Constitution of Kenya, 2010 articles 163(6); Supreme Court Act, section 13; Supreme Court Rules, 2016 rule 41.
Civil Practice and Procedure –sub judice – purpose of sub judice – factors to be proved in a claim of sub judice -  whether the issues of whether chapter six of the Constitution set up a fit and proper test for leadership including elective and appointive offices; and if so, what was that test was sub judice. – whether the Supreme Court could issue an advisory opinion in a matter that was sub judice.
Words and phrases – sub judice – definition of - before the Court or Judge for determination - Black’s Law Dictionary 9th Edition.
 
Brief Facts:
The applicant was the Kenya National Commission on Human Rights.  The applicant filed a reference which sought a purposive interpretation of chapter six of the Constitution in view of articles 38, 50, 99, 137, 180 and 193 of the Constitution, specifically in the context of the affairs of political parties. The reference was grounded on the contention that there was apparent contradiction, lack of clarity and/or guidance in High Court and Court of Appeal decisions on the place of chapter six of the Constitution, more so with regard to the leadership and integrity qualification of persons offering themselves to be elected or appointed to public service and/or offices within the Republic of Kenya.
The applicant averred that the superior courts as well as the various institutions set up under the Constitution and Statutes to vet the moral and ethical soundness of persons seeking elective or appointive offices, had interpreted the Constitution in an erroneous, restrictive, conflicting, inconsistent and incoherent manner hence the need for guidance by the apex Court. It urged further that such interpretation had resulted in a confused jurisprudence and rendered the provisions of chapter six of the Constitution ineffective and toothless.
In response the respondents filed a preliminary objection challenging the jurisdiction of the Supreme Court to hear and determine the matter on grounds that the applicant lacked locus standi and the reference was sub judice as the matters for determination in the referece were pending in the High Court of Kenya at Nairobi in Constitutional Petition No. 68 of 2017, Okiya Omtatah Okoiti vs. Jubilee Party of Kenya and Others and Constitutional Petition No. 142 of 2017, Okiya Omtatah Okoiti vs. Hon. Attorney General and 12 others (the two constitutional petitions).


Issues:
  1. What factors did the Supreme Court consider in determining if a reference qualified for the Supreme Courts advisory opinion jurisdiction?
  2. Whether the Kenya National Commission on Human Rights had the locus standi to seek an advisory opinion from the Supreme Court.
  3. Whether the Supreme Court could issue an advisory opinion where the matter in respect of which the reference had been made was a subject of proceedings in a lower court.
  4. Whether there were conflicting decisions on the fit and proper test for leadership including elective and appointive offices under chapter six of the Constitution.
    1. Whether such contradiction warranted determination under the Supreme Court’s advisory opinion jurisdiction.
  5. Whether the issues of whether chapter six of the Constitution set up a fit and proper test for leadership including elective and appointive offices; and if so, what was that test, invoked the Supreme Court’s advisory opinion jurisdiction.
  6. Whether the issues of whether chapter six of the Constitution set up a fit and proper test for leadership including elective and appointive offices; and if so, what was that test was sub judice.
Relevant Provisions of the Law
Constitution of Kenya
Article 163(6)
163.    Supreme Court

(6)      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.

Held:
  1. This Supreme Court’s jurisdiction to issue advisory opinions was anchored in the Constitution by dint of article 163(6) of the Constitution of Kenya, (2010) (Constitution), section 13 of the Supreme Court Act and rule 41 of the Supreme Court Rules, 2016 (Rules) that inter alia provided that the Supreme Court could issue 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. However, it was not automatic that once an applicant had invoked article 163(6) of the Constitution, the Supreme Court undeniably had jurisdiction. Article 163(6) specified who could seek an advisory opinion, and in what matters such an opinion could be sought.
  2. For a reference to qualify for the Supreme Court’s advisory opinion discretion, it had to fall within the four corners of article 163(6) of the Constitution:
    1. it had to be a matter concerning county government. The question as to whether a matter was one concerning county government, would be determined by the Court on a case-by-case basis.
    2. The only parties that could make a request for an advisory opinion were the national government, a State organ, or county government. Any other person or institution could only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae (friend of the court).
    3. The court would be hesitant to exercise its discretion to render an advisory opinion where the matter in respect of which the reference had been made was a subject of proceedings in a lower court. However, where the court proceedings in question had been instituted after a request had been made to the court for an advisory opinion, the court could if satisfied that it was in the public interest to do so, proceed and render an advisory opinion.
  3. Where a reference had been made to the court the subject matter of which was also pending in a lower court, the court could nonetheless render an advisory opinion if the applicant could demonstrate that the issue was of great public importance and requiring urgent resolution through an advisory opinion. In addition, the applicant could be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial court process.The court under article 163 (6) Constitution had to have locus standi. The court had to always consider whether the party seeking to move it, fell within the categories of parties decreed as having such standi by the Constitution. The court would then proceed to consider the subject matter to ascertain whether it was one involving a County Government and if it found in the affirmative, the other considerations then came into play.
  4. The applicant was a Constitutional Commission established under article 59 of the Constitution with the key mandate to promote, monitor, investigate and report on human rights matters in public and private institutions. Article 260 of the Constitution defined the term State organ, as: a commission, office, agency, or other body established under the Constitution.The applicant had been admitted as a party with correct standing to move the Supreme Court for an advisory opinion. The applicant was a state organ under the Constitution of Kenya.The applicant had the locus standi to seek the Supreme Court’s advisory opinion by virtue of article 163(6) of the Constitution.
  5. The court would be hesitant to exercise its discretion to render an advisory opinion where the matter in respect of which the reference had been made was a subject of proceedings in a lower court. The High Court had been entrusted with the mandate to interpret the Constitution and where it had discharged that task, one could only challenge its judgment by way of appeal to the Court of Appeal and, if still not satisfied, then to the Supreme Court. The High Court should be allowed to duly discharge its constitutional mandate without interference. The Supreme Court committed itself to order and efficacy in the administration of justice, and to that end it could require that the process of litigation commenced in the High Court, and entailing constitutional interpretation, be exhausted and if need be, followed by appellate procedures. The Supreme Court’s advisory opinion jurisdiction was not intended to usurp the other courts constitutional interpretation jurisdiction.
  6. The term sub-judice was defined as: before the Court or Judge for determination. The purpose of the sub-judice rule was to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter.That meant that when two or more cases were filed between the same parties on the same subject matter before courts with jurisdiction, the matter that was filed later ought to be stayed in order to await the determination to be made in the earlier suit.A party that sought to invoke the doctrine of sub-judice had to establish that; there was more than one suit over the same subject matter; that one suit was instituted before the other; that both suits were pending before courts of competent jurisdiction and lastly; that the suits were between the same parties or their representatives.
  7. The issues and prayers sought by the petitioner in the two constitutional petitions generally called for the interpretation and application of provisions of Chapter Six of the Constitution. The issues and orders in the two constitutional petitions substantially ascended from the criteria for the implementation of the provisions of chapter six of the Constitution. For the High Court to sufficiently pronounce itself in the two constitutional petitions, it had to interpret and apply the provisions of chapter six of the Constitution on leadership and integrity.
  8. The instant reference, as framed, mainly raised issues of constitutional interpretation. Those issues were also substantially in issue before the High Court in Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017. In view of article 165 of the Constitution, the High Court was the Court of first instance with regard to jurisdiction for interpretation and application of the Constitution and that court had already been moved. The instant reference was sub judice and the court would to usurp the High Court’s jurisdiction under article 165(3) of the Constitution.
  9. A preliminary objection consisted of a point of law which had been pleaded or which arose by clear implication out of pleadings and which if argued as a preliminary point could dispose of the suit. The true preliminary objection served two purposes of merit:firstly, it served as a shield for the originator of the objection against profligate deployment of time and other resources:and secondly, it could be committed only to deserving cases of dispute settlement.
  10. The court could address conflicting decisions, especially of the court of appeal if moved under article 163(4)(b) of the Constitution as a matter of general public importance. A preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts were incompatible with that point of law.
  11. The applicant’s enumerated the alleged contradicting decisions of the superior courts and invited the court to exercise its discretionary jurisdiction to address the contradicting decisions. The invitation could not be extended to the Supreme Court while exercising its discretionary jurisdiction under article 163 (6) of the Constitution. By its invitation, the applicant sought to create an original jurisdictional creature called ‘harmonization’ jurisdiction contrary to the provisions of the Constitution and the statutes.
Application dismissed
Orders
  1. The preliminary objection dated July 16, 2018, was upheld.
  2. The reference for an advisory opinion dated April 20, 2017, was dismissed.
  3. The High Court was to proceed, on the basis of priority, to hear and determine High Court Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017 that were pending before it.
  4. No order as to costs
Per I Lenaola and MK Ibrahim, SCJJ (Dissenting Opinion)
  1. The issues and prayers sought by the petitioner in the two constitutional petitions, generally called for the interpretation and application of certain provisions in chapter six of the Constitution. However, the constitutional petitions were between specific parties and raised substantive and specific issues in a specific context. The subject matters in the constitutional petitions involved litigation disputes entailing issues of specific constitutional interpretation in the context of the 2017 General Election whereas, the reference before the instant Court was not a litigation dispute.In the instant reference, the applicant was seeking the court’s advisory opinion on the set issues and which were not related to a specific dispute between specific parties.
  2. The issue before the High Court revolved around the question of who should determine whether a person had met the criteria for an elective position within chapter six of the Constitution and specifically in relation to the 2017 General Election (and perhaps in other such elections)/; while the broad issue in the instant reference revolved around the question of the criteria to be applied in vetting, appointing or electing persons in relation to the provisions of chapter six of the Constitution? Even if the two issues could be addressed as one, the High Court petitions and the instant reference could be distinguished and that the proceedings before the High Court and the instant court did not raise substantially similar and specific questions for determination and the applicant’s questions properly fell within the advisory opinion jurisdiction of the Supreme Court.
  3. The 17th interested party would not be prejudiced by the rendering of an opinion by the Supreme Court, as the applicant had no specific claim against the 17th interested party or any other party to the instant reference.
  4. If the dissenting court found that the instant reference was sub-judice, (which it did not), the instant court still had the discretion, depending on the circumstances of the case, to whether to issue an advisory opinion or not, where a matter in respect of which a reference had been made was the subject of proceedings in a lower court.
  5. Where a reference had been made to the Supreme Court, the subject matter of which was also pending in a lower Court, the Supreme Court could nonetheless render an advisory opinion if the applicant could demonstrate that the issue was of great public importance and requiring urgent resolution through an advisory opinion. The Supreme Court’s advisory opinion was an important avenue for settling matters of great public importance which could not be suitable for conventional mechanisms of justifiability. Such situations had clear evidence under the Constitution, and come with far-reaching implications.
  6. The fit and proper test or criteria set under chapter six of the Constitution, had an important and central application to vet the moral and ethical soundness of persons seeking elective or appointive offices, and thus constituted issues of great public importance. The realization of the fit and proper test under chapter six raised a variety of implementation challenges unbeknown to traditional integrity and leadership criteria previously in force and the Supreme Court had to give clear directions in that regard.
  7. Time was ripe for consideration and direction by the Supreme Court on the applicable criteria under chapter six of the Constitution and the instant reference was a distinctive situation in which the Supreme Court’s advisory opinion jurisdiction would be most propitious. An obligation unswervingly rested on the Supreme Court to render an opinion in accordance with the Constitution and the invitation to the Supreme Court to down it tools for lack of jurisdiction on account of the principle of sub-judice was not to be permitted, as such an action would occasion an injustice to the wider public interest.
  8. Although the applicant had raised 14 questions on which the Supreme Court’s advisory opinion was sought, the Court could, within its discretion, limit those questions and leave to the High Court certain litigational issues for its determination without throwing out the baby with the bath water.One of the issues the dissenting court expected the Supreme Court to render an advisory opinion on was whether chapter six of the Constitution set up a fit and proper test for leadership including elective and appointive offices; and if so, what was that test?
Application would have been partly allowed.
Dissenting orders
  1. The 17th interested party’s preliminary objection dated July16, 2018, would be disallowed.
  2. The instant reference would proceed to hearing on a limited number of questions taking into account the matters pending before the High Court, in High Court Constitutional Petitions No.68 and 142 of 2017.
Kenya Law
Case Updates Issue 020/2020
Case Summaries

JURISDICTION The CEO of the Retirement Benefits Authority has original jurisdiction to adjudicate upon a dispute between pensioners and the trustees of a pension scheme

Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme)
Petition No 3 of 2016
Supreme Court of Kenya
PM Mwilu, DCJ & VP, JB Ojwang, SC Wanjala, N Ndung'u, I Lenaola, SCJJ
November 8, 2019
Reported by Beryl Ikamari

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Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - appeals about matters of constitutional interpretation and application - where it was alleged that the High Court, Employment and Labour Relations Court and the Court of Appeal lacked jurisdiction in relation to the dispute - whether the Supreme Court could determine the question about to the proper forum for the exercise of original jurisdiction in a dispute between pensioners and the trustees of a pension scheme - Constitution of Kenya 2010, articles 163(4)(a), 162(2)(a), 162(3) and 165; Retirement Benefits Act, No 3 of 1997, sections 46(1) and 48(1).
Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - appeals on matters of constitutional interpretation and application - whether the Supreme Court could hear and determine an issue on violation of rights to a fair hearing where it had not been an issue at the Employment and Labour Relations Court or the Court of Appeal.
Civil Practice and Procedure – appeals - cross-appeals - cross-appeals at the Supreme Court - legal requirements relating to filing a cross-appeal at the Supreme Court - circumstances under which the Supreme Court would hear and determine a cross-appeal - Supreme Court Rules 2012, rule 38.

Brief facts:
The appellants filed an appeal at the Supreme Court. The basis of their appeal was that under section 46(1) of the Retirement Benefits Act, the High Court and the Employment and Labour Relations Court did not have jurisdiction to entertain the dispute. On their part, the respondents cross-appealed on the issue of failure to award interest on the decretal sum by the Court of Appeal.

Issues:

  1. Whether the Supreme Court had jurisdiction to determine a dispute between pensioners and the trustees of a pension scheme, wherein it was alleged that the High Court, Employment and Labour Relations Court and the Court of Appeal lacked jurisdiction over the dispute.
  2. Which forum had original jurisdiction to hear and determine a dispute, between pensioners and pension scheme trustees, in the first instance?
  3. Whether the Employment and Labour Relations Court had jurisdiction to hear and determine a dispute between pensioners and pension scheme trustees.
  4. Whether the appellant's rights to a fair hearing were violated on grounds that a dispute was heard and determined by a court that lacked jurisdiction.
  5. What were the circumstances under which the Supreme Court would hear and determine a cross-appeal? Read More..

Held:

  1. An appeal would lie to the Supreme Court under article 163(4)(a) of the Constitution if the issues it raised revolved around the interpretation and application of the Constitution and the interpretation or application of the Constitution had formed the basis of the determinations at the superior courts below the Supreme Court.
  2. The issue before the court was about the correct interpretation of articles 162(2)(a) and 162(3) of the Constitution as read together with section 12 of the Employment and Labour Relations Court Act on one hand and whether article 165 of the Constitution and section 60 of the repealed Constitution conferred on the High Court original jurisdiction to hear and determine the dispute between the parties. Those issues were canvassed at the High Court and the Court of Appeal. Therefore the Supreme Court's jurisdiction under article 163(4)(a) of the Constitution had been invoked properly.
  3. Despite the existence of sections 46(1) and 48(1) of the Retirement Benefits Act, the High Court, the Employment and Labour Relations Court, the Retirement Benefits Appeals Tribunal and the CEO heard and determined pension disputes involving retired employees. That meant that litigants had a choice on the forum for dispute resolution. The judicial forum seeking arising from that could lead to an abuse of the court process.
  4. There was uncertainty in law created by the discordant and inharmonious manner in which similar disputes related to pensioners and trustees of pension schemes had been adjudicated before courts, tribunals and statutory bodies with quasi-judicial authority. The Supreme Court's mandate included the settlement of inconsistencies in the lower courts and bringing clarity, uniformity and certainty to the law.
  5. The import of section 46(1) of the Retirement Benefits Act was that any member, beneficiary or dependents of the scheme who were aggrieved or dissatisfied by any decisions made by a manager, administrator or trustees of the scheme while exercising their powers under the provisions of the relevant scheme rules or the Act under which the scheme was established, could if he or she wished make a written request to the CEO to review such decisions with a view to ensuring that such decisions were in accordance with the provisions of the relevant scheme rules or the Act under which the scheme was established and above all lawful.
  6. The scope of the CEO's adjudicatory powers under section 46(1) of the Retirement Benefits Act related to the application of the rules of the retirement benefits scheme and the prevailing law under which the scheme was established. Under the circumstances the applicable rules were the deed of trust of 1998 which established the Kenya Ports Authority Pension Scheme.
  7. Conflict of interest was a matter of law. It was not left to the litigants to decide on whether the CEO was conflicted on grounds that he had assisted in the crafting of the impugned statutory remedial plan. A review wherein the issue of conflict of interest would have been canvassed should have been sought before the CEO. A decision on the same should have been rendered by the CEO and the decision would have been subject to appeal before the Retirement Benefits Appeals Tribunal.
  8. There was fault in the Court of Appeal's holding that the conflict of interest in the case of the CEO and the norm of optional jurisdiction, gave the disputing parties the option to seek refuge in other judicial forums despite the peremptory review and appellate mechanisms established under sections 46 and 48 of the Retirement Benefits Act. Jurisdiction could not be optional unless parallel avenues were provided with certain limitations by any written law. Additionally, jurisdiction could not be acquired or exercised depending on the unique facts and circumstances of each particular case. Jurisdiction was not an equitable remedy.
  9. The Retirement Benefits Appeals Tribunal had jurisdiction under section 48 of the Retirement Benefits Act to hear appeals from the decision of the Retirement Benefits Authority or its CEO. That jurisdiction would arise only after a matter had been acted upon by the authority or it’s CEO in the first instance.
  10. Under the Retirement Benefits Act there were statutory mechanisms and procedures to be followed in the cases of disputes between members of a pension scheme and trustees of the scheme. It was only after the exhaustion of those mechanisms that the superior courts could be accessed.
  11. Under articles 165(5) and 162(2) of the Constitution, the High Court did not have jurisdiction in matters of employment and labour relations, and matters of environment, use, occupation and title to land. The dispute in question was a dispute between members, beneficiaries and dependents of a pension scheme on one hand and the trustees of the pension scheme on the other hand. At the core of a pension scheme was the relationship between an employer and an employee. Money put into the pension scheme included deductions of the proceeds of the employment relationship between the respondents and the Kenya Ports Authority. Since the Kenya Ports Authority established the pension scheme, it was the sponsor. The sponsor of the scheme in question was the respondent's employer.
  12. Once a member left the sponsor's employment, that member became a pensioner and the employer-employee relationship between the pensioner and sponsor would end. The relationship that would remain was that of a trustee and beneficiaries of a trust. The trust relationship was governed by the Retirement Benefits Act, the Trustee Act and the general common law on trusts. The Employment and Labour Relations Court Act did not confer jurisdiction on the Employment and Labour Relations Court to resolve issues between trustees of a pension scheme and members of the scheme (pensioners).
  13. The Employment and Labour Relations Court had no jurisdiction to hear and determine a dispute that related to trustees of a pension scheme and members of the scheme particularly where the said members were no longer employees of the sponsor. Besides, the trust so established as a pension scheme retained autonomy from both the sponsor and the employees hence its regulation by the Retirement Benefits Authority.
  14. At the High Court and the Court of Appeal there were no pleadings, evidence, submissions or a determination made with respect to violations of rights to a fair hearing under articles 47(1) and 50(1) of the Constitution. Therefore the Supreme Court could not assume jurisdiction under article 163(4)(a) of the Constitution to hear and determine the issue on fair hearing as it had not arisen in the superior courts ranking below the Supreme Court in terms of hierarchy.
  15. A cross-appeal was distinguishable from an appeal. An appeal would be preceded by a notice of appeal under rule 31 of the Supreme Court Rules 2012 and instituted by lodging a petition of appeal, record of appeal and the payment of the prescribed fee within the specified timelines set out under rule 33 of the Supreme Court Rules. A notice of cross-appeal was handled differently under rule 38 of the Supreme Court Rules and it had to be in the form of Form F of the First Schedule to the Supreme Court Rules.
  16. In the absence of an appeal being filed, a cross-appeal could not arise because it was not an independent appeal. A cross-appeal was a corollary cause of action that was distinguishable from a response to a petition of appeal which was made in the form of grounds of objection and/or an affidavit contemplated under section 11 of the Supreme Court Act.
  17. A cross-appeal would have to be heard and determined alongside the substantive appeal to avoid any absurdity, judicial embarrassment and awkwardness that could accompany any other way of hearing and determining it. It should not matter whether or not a cross-appeal was filed at the Court of Appeal in order for one to be filed at the Supreme Court.
  18. The contentions set out in a cross-appeal had to fall within the jurisdictional sphere of the court as set out in the Constitution and be limited to issues not already addressed by the appeal or those that could not be argued during the appeal as a response. Where the appeal required certification as being a matter of great public importance under the provisions of article 163(4)(b) of the Constitution, during such certification, the respondent would be at liberty to raise the cross appeal and the grounds applicable for such. The grounds in the cross-appeal could only be canvassed at the Supreme Court where they were found to raise matters of general public importance. Where the main appeal was hinged on article 163(4)(a) of the Constitution, a cross-appeal whose subject matter required certification should fail. Such a cross-appeal would need to be one on constitutional interpretation and application.
  19. The respondents' cross-appeal was founded on rule 37 of the Supreme Court Rules. However, the said rule 37 dealt with institution of appeals. A cross-appeal had to be filed under rule 38 of the Supreme Court Rules and it was apparent that the respondents did not comply with the requirements of rule 38(2)(b). The respondents did not lodge the memorandum of appeal or the record of appeal.
  20. The appeal was founded on article 163(4)(a) of the Constitution, being an appeal as of right but the cross-appeal was about costs and interest and it did not raise any constitutional issues.
  21. The award of costs and interest was within the trial court's discretion. An appellate court had to treat the trial court's decision with utmost respect and refrain from interfering with it unless it was satisfied that the trial court proceeded on some erroneous principle or was plainly and obviously wrong.
  22. Questions that were not appealable to the Supreme Court included discretionary pronouncements appurtenant to the Court of Appeal's mandate. The Supreme Court had no jurisdiction to hear an appeal from a decision of the Court of Appeal on the exercise of discretion by a trial court on an issue of award of interest and costs.
  23. The situation would have been different if the exercise of discretion to award costs and interest involved constitutional interpretation or application and if such constitutional contestations had been adjudicated within the chain of the court system leading to a Supreme Court appeal.

Appeal allowed and cross-appeal dismissed.
Orders:-

  1. The judgment of the Court of Appeal of February 26, 2016 was set aside.
  2. The matter was remitted for adjudication by the Chief Executive Officer of the Retirement Benefits Authority under the attendant mechanism under the Retirement Benefits Act.
  3. There was no order as to costs considering the nature of the dispute as that involving members and trustees of the Kenya Ports Authority Pension Scheme and the weighty points of law that arose in the hearing and determination of the appeal.
JURISDICTION

Courts do not have jurisdiction to handle a multifaceted claim where another forum, institution or agency that has been legislatively conferred with jurisdiction to determine the matter exists.

Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR
Civil Appeal No. 153 of 2019
Court of Appeal at Kisumu
MSA Makhandia, PO Kiage and PO Odek, JJA)
January 31, 2020
Reported by Chelimo Eunice

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Jurisdiction - jurisdiction of the Environment and Land Court (ELC) – jurisdiction of National Environment Tribunal (NET) and National Environmental Complaints Committee (NECC) - jurisdiction of the ELC vis-a-vis jurisdiction of NET and NECC - whether where a claim was multifaceted, a court could have jurisdiction despite existence of another forum, institution or agency that had been legislatively conferred with jurisdiction to determine the matter - whether the ELC had jurisdiction simply because some of the prayers in a petition were outside the jurisdiction of NET or NECC - whether disputes on validity of and conditions imposed on an Environmental Impact Assessment (EIA) licence were within the competence of ELC or NET and NECC – whether ELC had jurisdiction to hear and determine a matter concerning environmental pollution and procurement of EIA licences - whether ELC had jurisdiction to cancel EIA licence which had not been cancelled by NEMA.
Jurisdiction – original jurisdiction – appellate jurisdiction - original vis-a-vis appellate jurisdiction – whether the jurisdiction of the Environment and Land Court (ELC) under was original or appellate – whether a claim of alleged violation of a constitutional right ousted the jurisdiction of any and all Tribunals thereby conferring jurisdiction at first instance to the ELC or High Court - whether original jurisdiction could operate to oust the jurisdiction of competent organs that had legislatively been mandated to hear and determine a dispute – Environmental Management and Coordination Act, sections 129 and 130; Physical Planning Act, sections 15, 19 and 38.
Environmental Law - environmental project report (EPR) - environmental impact assessment (EIA) study report – distinction between EPR and EIA Study Report - which report was required in order to get the EIA licence – requirement for publication of an EPR - whether non-publication of an EPR in the gazette divested jurisdiction from the National Environment Tribunal - Environmental Management and Coordination Act, 1999, section 58(1); Environmental Management and Coordination Act, section 2; Environmental (Impact Assessment and Audit) Regulations, 2003, section 2.
Interpretation of statutesretrospective or retroactive legislation- principles for determining whether a legislation was retrospective or retroactive – constitutionality of retrospective law – how to determine whether a retrospective law was unconstitutional - which environmental law was applicable in 2004 between EMCA,1990, which required submission of an EIA project report in order to obtain an EIA licence and EMCA, 2015 which required submission of an EIA study report instead – whether a party could invoke the provisions of the Constitution in a claim arising from facts which had occurred before the commencement of the Constitution - whether constitutional concept and value of public participation as embodied in the 2010 Constitution was a criterion to be used in the determination of procedural validity of the EIA licence issued on October 19, 2005- Constitution of Kenya, 2010, article 69 (1) (d); Environmental Management and Coordination Act, 1999, section 58(2); Environmental Management and Coordination Act, 2015, section 58(2); Environmental (Impact Assessment and Audit) Regulations, 2003, regulation 10 (2) and (3).
Environmental Law - environmental impact assessment licence – transfer of – effect of transfer – variation of EIA licence – where EIA licences and variations were cancelled because no EIA studies had been conducted and no EIA Reports had been submitted – when was fresh EIA study report had to be carried out after an EIA licence had been issued - conditions precedent to the requirement of a fresh EIA Report after issuance of a licence – whether the conditions precedent as stipulated in section 64(1)(c) of EMCA, 1999 were applicable to the instant matter where the EIA licence was issued in 2005 – who had the discretion to make a decision whether an EIA licence that had been issued was to be cancelled - Environmental Management and Coordination Act, 1999, section 64 (1) (a).
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to fair hearing – oral hearing - whether the right to a fair hearing and trial would be violated by failure to adduce viva voce evidence before a trial court - whether procedural fairness required an oral hearing in all circumstances – where it was claimed that oral hearing was necessary to ensure fair hearing – circumstances where oral hearing was necessary - whether viva voce evidence was a mandatory requirement in petitions for enforcement of fundamental rights and freedoms – whether the urgency of a petition or an alleged violation of a constitutional right was per se by itself a sufficient ground for a court to dispense with viva voce evidence and rely on affidavit evidence - Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 20.

Civil Practice and Procedure - pleadings – drafting of pleadings - petitions – requirement for petitions to be pleaded with reasonable precision - where it was claimed that the petition filed in the trial court did not meet the threshold of a constitutional petition to disclose or describe the nature of the complaints of violation of their constitutional rights or threats to such violations with specificity – whether the respondents’ petition filed in the trial court was pleaded with reasonable precision - Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rules 4 and 10.
Environmental Law - Environmental Impact Assessment (EIA) – EIA study – importance of EIA study – environmental pollution – what was required to proof existence of environmental pollution - whether in the absence of an EIA Study, the law presumed proof of threat or harm to the environment without need for any actual evidence of resultant pollution – whether the trial court erred in deducing and arriving at conclusions of fact on river pollution without any scientific, empirical and sampling evidence to prove point pollution and the causal link to the appellants.
Civil Practice and Procedure – judgments - retroactivity of court decisions – nature and import of retroactivity of court decisions – whether the decision in National Environment Tribunal v Overlook Management Limited, Silver Sand Camping Site Limited, NEMA & 4 others, that granted persons other than project proponents locus standi to access the NET, was retroactive.
Constitutional Law – public interest litigation – what consisted public interest litigation – where only personal reliefs were claimed in a petition purporting to represent the public - whether a matter would be considered public interest litigation where the relief sought was of a personal nature.
Civil Practice and Procedure - presumption of regularity – presumption of regularity in regards to public officials - who bore the burden of proof to rebut the presumption of regularity.

Brief Facts:
On October 25, 2018, the 1st, 2nd and 3rd respondents filed a constitutional petition against the appellants before the Environment and Land Court (the trial court) seeking several declaratory orders inter alia that their right to a clean and healthy environment had been violated; a declaration that the 1st to 3rd appellants (the appellants) illegally acquired environmental impact assessment (EIA) licences for Kibos Sugar and Allied Factory and a permanent injunction to restrain the appellants from continuing with operations of their factories and or milling sugar cane. They claimed, among others, that the appellants were polluting the environment by discharging raw effluent into Rivers Nyamasaria, Kibos and Lie Lango
The appellants denied all the allegations, and among others, contested the jurisdiction of the trial court to hear and determine the dispute at hand averring that it had no jurisdiction over the matters in dispute. Upon hearing the parties to the petition, the trial court, in a judgment dated July 31, 2019 allowed the petition. Aggrieved by the judgment, various parties filed a total of six separate appeals against the judgment. The grounds of appeal included that the trial court erred in holding that it had jurisdiction to hear and determine the petition and in issuing a permanent injunction against the appellants thereby stopping their operations without calling for viva voce evidence.

Issues:

  1. What principles guided first appeals to the Court of Appeal?
  2. Whether where a claim in a petition or suit was multifaceted, a court could have jurisdiction despite existence of another forum, institution or agency that had been legislatively conferred with jurisdiction to determine the matter.
  3. Whether disputes on procurement of and validity of and conditions imposed on an Environmental Impact Assessment (EIA) licence were within the competence of the Environment and Land Court (ELC) or National Environment Tribunal (NET) or National Environmental Complaints Committee (NECC).
  4. Whether the Environment and Land Court (ELC) had jurisdiction to cancel environmental impact assessment (EIA) licence which had not been cancelled by the National Environment and Management Authority (NEMA).
  5. Whether original jurisdiction could operate to oust the jurisdiction of competent organs that had legislatively been mandated to hear and determine a dispute.
  6. Whether viva voce evidence was a mandatory requirement in petitions for enforcement of fundamental rights and freedoms.
  7. Whether the right to a fair hearing and trial would be violated by failure to adduce viva voce evidence before a trial court.
  8. Whether in the absence of an environmental impact assessment study, the law presumed proof of threat or harm to the environment without need for any actual evidence of resultant pollution.
  9. What were conditions precedent to the requirement of a fresh EIA Report after issuance of an EIA licence?
  10. Which environmental law was applicable in 2004 between Environmental Management and Coordination Act (EMCA),1990, which required submission of an EIA project report in order to obtain an EIA licence and EMCA, 2015 which required submission of an EIA study report instead?
  11. Whether public participation was a criterion to be used in the determination of procedural validity of an EIA licence issued before the promulgation of the 2010 Constitution.
  12. Whether closure of factories was the only legal and effective way to enforce constitutional articles and statutory provisions guaranteeing the right to a clean and healthy environment.
  13. Whether a matter would be considered public interest litigation where the relief sought was of a personal nature. Read More...

Relevant provisions of the law
Environmental Management and Coordination Act, 1999
Section 58 (2);
“The proponent of a project shall undertake or cause to be undertaken at his own expense an environmental impact assessment study and prepare a report thereof where the Authority being satisfied, after studying the project report submitted under subsection (1), that the intended project may or is likely to have or will have a significant impact on the environment, so directs.”

Environmental Management and Coordination Act, 2015
Section 58 (2);
“The proponent of any project specified in the second schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority. Provided the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.”

Section 129 (1):
(1) Any person who is aggrieved by:

(a) a refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder:
(b) the imposition of any condition, limitation or restriction on his licence under this Act or regulations made thereunder;
(c) the revocation, suspension or variation of his licence under this Act or regulations made thereunder:
(d) the amount of money which he is required to pay as a fee under this Act or regulations made thereunder;
(e) the imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations made thereunder:
may within sixty days after the occurrence of the event against which he is dissatisfied appeal to the Tribunal in such manner as may be prescribed by the Tribunal.

Environmental (Impact Assessment and Audit) Regulation, 2003,
Regulation 7;
7. (1) A proponent shall prepare a project report stating -

(a) the nature of the project;
(b) the location of the project including the physical area that may be affected by the project’s activities;
(c) the activities that shall be undertaken during the project construction, operation and decommissioning phases;
(d) the design of the project;
(e) the materials to be used, products and by-products, including waste to be generated by the project and the methods of their disposal;
(f) the potential environmental impacts of the project and the mitigation measures to be taken during and after implementation of the project;
(g) an action plan for the prevention and management of possible accidents during the project cycle;
(h) a plan to ensure the health and safety of the workers and neighbouring communities;
(i) the economic and socio-cultural impacts to the local community and the nation in general;
(j) the project budget; and
(k) any other information the Authority may require.

Regulation 10:
(1) On determination of the project report, the decision of the Authority, together with the reasons thereof, shall be communicated to the proponent within forty-five days of the submission of the project report.
(2) Where the Authority is satisfied that the project will have no significant impact on the environment, or that the project report discloses sufficient mitigation measures, the Authority may issue a licence in Form 3 set out in the First Schedule to these Regulations.
(3) If the Authority finds that the project will have a significant impact on the environment, and the project report discloses no sufficient mitigation measures, the Authority shall require that the proponent undertake an environmental impact assessment study in accordance with these Regulations.
(4) A proponent who is dissatisfied with the Authority’s decision that an environmental impact assessment study is required may within fourteen days of the Authority’s decision appeal against the decision to the Tribunal in accordance with regulation 46.

Regulation 17
1. During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project.
2. In seeking the views of the public, after the approval of the project report by the Authority, the proponent shall;

(a) Publicize the project and its anticipated effects and benefits by-

i. posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project;
ii. publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and
iii. Making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks.

(b) hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments;.
(c) ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; and
(d) ensure, in consultation with the Authority that a suitably qualified coordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority”

Held:

  1. Being a first appeal, the court had to analyze and re-assess the evidence on record and reach its own conclusions. An appeal to the court from a trial by the High Court was by way of retrial and it was guided by various principles. The court had to consider evidence, evaluate it itself and draw its own conclusions though it had to bear in mind that it had neither seen nor heard the witnesses and had to make due allowance in that respect. In particular, the court was not bound necessarily to follow the trial court’s findings of fact if it appeared either that it had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness was inconsistent with the evidence in the case generally.
  2. Regarding the relevance and weight of the additional evidence, the Hansard record of the proceedings of the County Assembly of Kisumu for October 30, 2019 did not contain a specific resolution that the documents filed in court by the appellants were authentic and genuine. The issue of alleged forgery of the County Assembly Report of Water, Environment and Natural Resources Committee documents was not an issue for determination by the court. Noting that the authenticity of the two documents/report allegedly from the County Assembly of Kisumu was raised on October 30, 2019 before the County Assembly, and in the absence of a specific resolution by the Assembly on the authenticity and genuineness of the documents, the County Assembly of Kisumu documents that were produced in court as additional evidence pursuant to the ruling delivered on October 9, 2019 had no probative value. In addition, the said documents were not technical reports prepared by experts on environmental pollution. The County Assembly was not a competent organ under the Environmental Management and Coordination Act, (EMCA) that could make a finding that environmental degradation had taken place.
  3. As regards the National Environmental and Management Authority (NEMA) report forwarded to the Clerk of the National Assembly vide letter dated April 18, 2019, all parties agreed that the report was authentic and was prepared by NEMA. The report was thus relevant and had probative value.
  4. A court’s jurisdiction flew from either the Constitution or legislation or both. A court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. Where the Constitution exhaustively provided for the jurisdiction of a court of law, the court had to operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation.
  5. Not each and every violation of the law had to be raised before the High Court as a constitutional issue. Where there existed an alternative remedy through statutory law, then it was desirable that such a statutory remedy had to be pursued first.
  6. The exposition that a court could have jurisdiction to handle a multifaceted claim in a petition or suit despite existence of another forum, institution or agency that had been legislatively conferred with jurisdiction to determine the matter, was incorrect. Such an exposition implied that jurisdiction could be conferred through the art and craft of drafting of pleadings, that all that a litigant needed to do was to draft pleadings such that claims were raised in a multifaceted way and thereby oust the jurisdiction of any specialized tribunal or agency. That promoted forum shopping.
  7. Jurisdiction could not be conferred by way of judicial craft and innovation. Jurisdiction could not be conferred by the art and craft of counsel or a litigant drawing pleadings to confer or oust the jurisdiction conferred on a Tribunal or another institution by the Constitution or statute. Thus, the trial court erred in law in finding that the Environment and Land Court (ELC) had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the National Environment Tribunal (NET) or National Environmental Complaints Committee (NECC). A party or litigant could not be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings.
  8. Even if a court had original jurisdiction, the concept of original jurisdiction did not operate to oust the jurisdiction of other competent organs that had legislatively been mandated to hear and determine a dispute. Original jurisdiction was not an ouster clause that ousted the jurisdiction of other competent organs. Neither was original jurisdiction an inclusive clause that conferred jurisdiction on a court or body to hear and determine all and sundry disputes.
  9. Original jurisdiction meant the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To that end, where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure had to be strictly followed.
  10. The jurisdiction of the ELC was appellate under section 130 of EMCA. The ELC also had appellate jurisdiction under sections 15, 19 and 38 of the Physical Planning Act. An original jurisdiction was not an appellate jurisdiction. A court with original jurisdiction in some matters and appellate jurisdiction in others could not by virtue of its appellate jurisdiction usurp original jurisdiction of other competent organs. Original jurisdiction was not the same thing as unlimited jurisdiction.
  11. A court could not arrogate itself an original jurisdiction simply because claims and prayers in a petition were multifaceted. The concept of multifaceted claim was not a legally recognized mode for conferment of jurisdiction to any court or statutory body. In addition, section 129 (3) of EMCA conferred power upon the NET to inter alia exercise any power which could have been exercised by NEMA or make such other order as it deemed fit. The provisions of section 129 (3) of EMCA was an all-encompassing provision that conferred at first instance jurisdiction upon the Tribunal to consider the prayer that dealt with constitutional rights and freedoms in the petition. It was never the intention of the Constitution makers or legislature that simply because a party had alleged violation of a constitutional right, the jurisdiction of any and all Tribunals had to be ousted thereby conferring jurisdiction at first instance to the ELC or High Court.
  12. The competent organ with original jurisdiction to hear and determine the petition before the trial court, which petition was about whether the appellants were polluting the environment and whether the appellants’ EIA licences were lawfully procured, was NET or the NECC. To that extent, the trial court erred in usurping the jurisdiction of the NET and or the NECC. Further, the trial court in usurping the jurisdiction of the NET negated and rendered otiose the legal effect of section 130(5) of EMCA which made the decisions of the ELC on appeal to be final. Having erred in exercising original jurisdiction in the matter, the trial court erred in rendering superfluous and ineffectual the provisions of section 130(5) of EMCA.
  13. In civil cases, judicial decisions ordinarily were retroactive in application. Such retroactivity was a consequence of the nature and function of the judicial decision-making process. Retroactivity was founded on the notion that a judicial decision enunciated the law as it had always existed. To that end, the decision in National Environment Tribunal v Overlook Management Limited, Silver Sand Camping Site Limited, NEMA & 4 others, that granted persons other than project proponents locus standi to access the NET, was retroactive and the respondents misapprehended that they had no right to access the NET.
  14. Jurisdiction on a court or tribunal was not conferred or divested by knowledge or lack of knowledge on the part of a litigant. Jurisdiction was a question of law and not an issue to be inferred or determined by knowledge on the part of a litigant. Thus, the non-publication of the EIA Project report in the gazette did not divest jurisdiction from the tribunal.
  15. Disputes on validity of and conditions imposed on an EIA licence were within the competence of NET and NECC. The alleged violation of the 1st, 2nd and 3rd respondents’ constitutional rights was ancillary to and riding on their central complaint.
  16. As a general rule, there was no automatic right to an oral hearing. Procedural fairness did not require an oral hearing in all circumstances. In determining the form of a hearing, the critical question was whether meaningful participation was allowed by the process chosen by the decision-maker. It also could not be said that an oral hearing was always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognized that meaningful participation could occur in different ways in different situations.
  17. Although oral hearing was not always required, where a serious issue of credibility was involved, fundamental justice required that credibility be determined on the basis of an oral hearing.
  18. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (Mutunga Rules) required one to approach the court by way of a petition. The 1st, 2nd and 3rd respondents’ petition before the trial court was founded on enforcement of the right to a clean and heathy environment as guaranteed in articles 42 and 43 of the Constitution. It followed that the respondents correctly instituted the suit by way of petition. Rule 20 of the Mutunga Rules spelt out the manner in which a petition could be heard and determined.
  19. The record showed that the trial court gave directions that the petition was to be heard by way of affidavit evidence and written submissions. No application was made by any party that the petition or part thereof be heard by oral evidence. No objection was raised by the appellants or any party on the propriety of the directions given by the trial court. In the absence of any challenge to the directions given by the trial court, the directions given was in conformity and consonance with rule 20(1) of the Mutunga Rules.
  20. It could be wiser for the parties to give viva voce evidence since the same had a way of bringing out the facts more clearly, particularly in a contested matter. There were cases where the leading of evidence would not be necessary, particularly where the facts giving rise to the request were common cause. In such a case, it would serve no meaningful purpose for the parties to be required to give viva voce evidence. Where, however, the facts were not common cause, the parties had to, as a general rule, be required to give evidence.
  21. Where there was no real, substantial and material dispute of fact which made it impossible to dispose of a matter without resort to viva voce evidence, the factual differences could be decided on the papers by affidavit evidence.
  22. The appellants had not indicated the nature and type of witnesses and evidence that they would have called for the trial court to consider if viva voce evidence was necessary. They had not demonstrated what prejudice they had suffered as a result of the trial court not taking viva voce evidence. Further, no application was made to adduce oral evidence and no objection was raised against the directions given by the trial court. For those reasons, failure by the trial court to conduct the hearing by way of viva voce evidence did not vitiate the trial and proceedings that led to the judgment of the court.
  23. A right to a hearing was not exclusively and primarily a right to be heard by way of oral evidence. Oral or personal hearing was not an integral part of fair hearing unless circumstances were so exceptional that without oral hearing, a person could not put up an effective defence or advance his/her/its case.
  24. When facts in issue in a case were strongly contested, that would be a good basis for a court to allow viva voce evidence to enable cross-examination to separate the wheat from the chaff. There were two ardently contested issues on the procedure through which the appellants acquired their EIA licences and whether the rivers were being polluted by the appellants. The two issues ought to have been determined by viva voce evidence. Nonetheless, the trial court gave directions that the case proceeded by way of affidavits and written submissions and no objection was made by either party to the directions. The trial court had a discretion in the matter and it had not been demonstrated that the discretion was perversely exercised in proceeding by way of affidavit and not by oral evidence especially when the latter was not sought. That would not be interfered although there was probably something to be gained through adoption of viva voce evidence.
  25. The appellants had not demonstrated any exceptional circumstance that would vitiate the directions given by the trial court to proceed by way of affidavit evidence and written submissions. The trial court gave directions on how the petition was to be heard. It exercised discretion. At no time during the proceedings did the appellants apply for viva voce evidence to be adduced. In addition, the appellants had not pointed to court’s satisfaction that issues of credibility of the deponents of the various affidavits filed in court was raised to justify receiving oral evidence to test the veracity of their depositions. Thus, the appellants’ right to a fair hearing or right to be heard by way of viva voce evidence was not violated.
  26. Neither the urgency of a petition nor an alleged violation of a constitutional right was per se by itself a sufficient ground for a court to dispense with viva voce evidence and rely on affidavit evidence. If a party applied to court for viva voce evidence to be taken, the court ought to carefully consider the application and if persuaded to conduct the hearing by way of viva voce evidence unless for reasons to be recorded the court direct otherwise.
  27. In the petition dated October 25, 2018 filed in the trial court, the respondents specifically averred, inter alia, that their right to a clean and healthy environment as guaranteed by articles 42 and 43 of the Constitution had been violated. They also explicitly identified that section 58 (1) of the EMCA, 1999 and regulations 7, 8, 17, 19, 20, 22, 24 and 25 of the Environmental (Impact Assessment and Audit) Regulations 2003 (the Regulations) were violated. They pleaded with reasonable precision and specificity the constitutional articles and the statutory provisions they alleged were violated by the appellants, hence there was no merit in the contestation that the petition was not precise.
  28. Whether there was threat, harm or degradation of the environment was a question of fact. A presumption of fact meant presumption established from another fact or group of facts. In the instant matter, even if it were proved that there was no EIA study, the absence of such a study could not support a presumption or finding of fact that there was threat, harm or degradation of the environment. There was no presumption of threat or harm to the environment simply because no environmental impact assessment study had been done. There was no legal principle, a binding judicial authority or a statutory provision that established such a presumption.
  29. Even though the trial court held that the respondents had proved that the appellants were polluting and degrading the environment, a re-examination of the record revealed that there was no scientific evidence on record to prove that there was air pollution and that aquatic life in the water bodies in the neighborhood was affected through the activities of the appellants. There was no chemical analysis conducted by the respondents, more particularly NEMA, to prove that the waters of the rivers had been polluted. Other than the observations made by NEMA’s inspectors, no scientific causal link between the activities of the appellants and the alleged pollution of the rivers was proven. The sources of river or water pollution could be considered to be non-point and point. Point indicated the existence of pollutants coming from one source. River pollution came from a variety of different sources, including agricultural operations, industrial discharge, wastewater treatment plants and storm water runoff, that carried pollutants into waterways. All those were non-point sources of pollution.
  30. There was no scientific empirical evidence on record to prove point pollution and its causal link to the activities of the appellants. No sampling technique to prove river pollution was tendered in evidence. Above all, the alleged deleterious effect of the vinasse to the environment was not scientifically proven and no expert report on the effect of vinasse to the environment was produced in evidence.
  31. Further, it was an incorrect deduction and conclusion of fact to make a finding that the fact that the respondents had raised their complaints over raw effluent discharge into the environment by the appellants’ years before filing the petition was proof of environmental degradation. Proof that a complaint had been raised years before was not proof of environmental degradation. Pollution was primarily proved by empirical, technical and scientific evidence and not by lay man opinion testimony or depositions. The trial court erred in deducing and arriving at conclusions of fact that the appellants were responsible for river pollution without any scientific, empirical and sampling evidence to prove point pollution and the causal link to the appellants.
  32. NECC was a competent organ authorized by statute to conduct investigation on any alleged environmental degradation. NECC on its own motion investigated complaints of environmental degradation due to discharge of effluent into river Nyamasaria by the 3rd appellant. The finding as per a report dated October 5, 2017 were that there was a black effluent being discharged from a pipe near the distillery factory into River Nyamasaria through the southern storm drain. There was no scientific evidence to prove what the black effluent was and if the same was deleterious to the environment. The source of the black effluent was not unequivocally identified and stated. Thus, point pollution was not proved.
  33. The trial court did not have the benefit of the additional evidence in form of the NECC compliance report forwarded to the clerk of the National Assembly. Further, recalling the need for continuous monitoring of compliance, the court ordered that NEMA and or NECC had to continuously conduct inspection at the appellants’ factories to monitor compliance with environmental standards.
  34. The definition, meaning and content of an Environment Project Report (EPR) and EIA study report was contained in the EMCA as well as in the the Regulations. Section 2 of EMCA as well as section 2 of the Regulations defined a project report to mean a summary statement of the likely environmental effects of a proposed development. On the other hand, an EIA was defined to mean a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment. Regulation 2 of the Regulations defined an EIA study report to mean the report produced at the end of the environmental impact assessment study process. On the other hand, an environmental audit was defined in section 2 of EMCA to mean a systematic, documented, periodic and objective evaluation of how well environmental organization, management and equipment were performing in conserving or preserving the environment.
  35. An EPR was distinct from an EIA study report. The documents were very different with different functions addressing different requirements of the statute. A reading of section 58 (1) of EMCA, 1999 indicated that as at 2004, all that the 3rd appellant was required to submit to NEMA was a project report. A project report was a summary that was generated after an EIA study. Under EMCA, 2015 amendments, all proponents of a project were required to submit a full EIA study report. The EMCA, 2015 amendments did away with the requirement to submit a project report instead a full EIA study report was the one to be submitted. Thus, in 2004, the 3rd appellant was required to submit to the 4th appellant a project report and not an EIA study report.
  36. In law, there was a presumption of regularity. Under that presumption, a court presumed that official duties had been properly discharged and all procedures duly followed until the challenger presented clear evidence to the contrary. There was a presumption that all acts done by a public official had been done lawfully and that all procedures had been duly followed. The presumption of regularity was a presumption that executive officials had properly discharged their official duties. The presumption was captured in the ancient latin maxim “omnia praesumuntur rite esse acta,” which roughly translated meant all things were presumed to have been done rightly.
  37. Applying the presumption of regularity, the starting point was that NEMA acted lawfully and procedurally in issuing the various EIA Licences to the appellants. The burden of proof to rebut the presumption of regularity was upon the respondents. The evidence required to rebut the presumption of regularity had to be cogent, clear and uncontroverted. The presumption of regularity could not be rebutted through conflicting interpretation of a statutory or regulatory provision. Liability for any action could not be founded on conflicting interpretation of statute.
  38. The respondents did not lead cogent, undisputed factual evidence to dislodge the presumption of regularity. In arriving at its decision, the ltrial court erred in failing to take into account and consider the role and place of presumption of regularity in execution of official duty by NEMA when the EIA Licences were issued. The trial court erred and failed to give sufficient weight to the provisions of regulation 10 (2) and (3) of the Regulations. In so doing, it erred and failed to bear in mind that the discretion in regulation 10 (2) and (3) of the Regulations was vested upon NEMA and not the trial court. A court could not usurp the discretionary powers vested upon NEMA and substitute its own decision for that of NEMA.
  39. The issue of validity of the EIA licence No. 0000259 (the licence) issued to the 3rd appellant by NEMA on October 19, 2005 was partially to be determined by the concept of retroactivity of legislation. A retroactive or retrospective law was one that took away or impaired vested rights acquired under existing laws, created new obligations, imposed new duties, or attached a new and different legal effect to transactions or considerations already past. Settled principles of legislative construction presumed that legislation was not intended as retroactive unless its language expressly made it retroactive.
  40. Whether or not legislation operated retrospectively depended on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, courts were guided by certain rules of construction. One of these rules was that if the legislation affected substantive rights it could not be construed to have retrospective operation unless a clear intention to that effect was manifested, whereas if it affected procedure only, prima facie it operated retrospectively unless there was a good reason to the contrary. But in the last resort, it was the intention behind the legislation which had to be ascertained and a rule of construction was only one of the factors to which regard had to be had in order to ascertain that intention.
  41. As regards the licence, the procedural and constitutional validity of the Licence was to be determined by the law as it was on October 19, 2005 when it was issued. As at October 19, 2005, the environmental legislation that was in force was the EMCA, 1999 and not the EMCA, 2015 amendments. The Constitution that was in force was the repealed Constitution and not the 2010 Constitution.
  42. For non-criminal legislation, the general rule was that all statutes other than those which were merely declaratory or which related only to matters of procedure or evidence were prima facie prospective, and retrospectivity was not to be given to them unless, by express words or necessary implication, it appeared that that was the intention of the legislature. A retroactive law was not unconstitutional unless it:
    1. was in the nature of a bill of attainder;
    2. impaired the obligation under contracts;
    3. divested vested rights; or
    4. was constitutionally forbidden.
  43. In evaluating the evidence on record and arriving at its decision, the trial court stated that it relied on the second schedule to the EMCA. However, it did not specify whether it was relying on section 58 (2) of EMCA, 1999 or section 58 (2) of EMCA as amended in 2015. The trial court misapprehended fact that the 3rd appellant obtained the licence based on a project report submitted to NEMA, thereby applying section 58 (2) of EMCA, 2015 amendments to determine the validity of the licence. The trial court ought to have applied section 58 (2) of EMCA, 1999 which required the 3rd appellant to submit a project report and not an EIA study report.
  44. The trial court erred in retroactively applying the EMCA, 2015 amendments in determining the procedural validity of the licence. No EIA study was required in relation to the project report submitted to NEMA in 2004 upon which the licence was issued on October 19, 2005.
  45. The promulgation of the 2010 Constitution did not render invalid and unconstitutional the EIA Licences that had been issued by NEMA under EMCA, 1999 prior to the 2010 Constitution. A party could not invoke the provisions of the Constitution in a claim arising from facts which had occurred before the commencement of the Constitution unless it was expressly stated that the constitutional provision in question was retroactive.
  46. The trial court erred and failed to appreciate that as at October 19, 2005 when the licence was issued, the relevant Constitution was the repealed Constitution and not the 2010 Constitution. The constitutional concept and value of public participation as embodied in article 69(1)(d) of the 2010 Constitution was not a criterion to be used in the determination of procedural validity of the licence.
  47. The concept of public participation was incorporated into the Regulations, by Legal Notice No. 101 of June 13, 2003. Pursuant to regulation 17 of the Regulations, public participation was envisaged and required in the process of conducting an EIA. As of 2004, when the 3rd appellant applied for the licence, NEMA did not require it to prepare an EIA study. There was no evidence on record indicating that the 3rd appellant was required by NEMA to conduct an EIA study after the project report had been submitted. The trial court, thus, erroneously held that public participation was required for the 2004 Project report submitted by the 3rd appellant to NEMA when NEMA did not require an EIA to be conducted. The trial court also erred in finding that the 3rd appellant ought to have submitted an EIA study in 2004.
  48. Regulation 10 (2) and (3) of the Regulations had to be given meaning. When NEMA issued the licence pursuant to its power under regulation 10 (2) of the Regulations, it did not require the 3rd appellant to conduct an EIA study. Thus, NEMA was satisfied that the project report submitted by the 3rd appellant in 2004 indicated that the project would not have a significant impact on the environment and that the said project report disclosed sufficient mitigation measures.
  49. In addition, a reading of the licence indicated that the 3rd appellant’s project report dated January 30, 2004 was reviewed by NEMA and the licence was lawfully and procedurally issued. Thus, the trial court’s conclusion that the licence was issued unprocedurally, unlawfully and unconstitutionally was not supported by the evidence on record and the law applicable as at October 19, 2005.
  50. The trial court cancelled the licences nos. 0000151. 000042 and 000043 variation because no EIA studies had been conducted and no EIA reports had been submitted. Section 64(1)(a)(b)(c) of EMCA, gave scenarios when fresh EIA study report had to be carried out after a licence had been issued. Section 64(1)(a) of EMCA, 1999 required a fresh EIA Report when; there was a substantial change or modification in the project or in the manner in which the project was being operated; the project possessed environmental threat which could not be reasonably foreseen at the time of the study, evaluation or review; if it was established that the information or data given by the proponent in support of his application for an EIA licence under section 58 of EMCA was false, inaccurate or intended to mislead.
  51. Section 64 (1) of EMCA imposed conditions precedent to the requirement of a fresh EIA Report after issuance of a licence. On whether the conditions had been met, the only evidence on record was the increased capacity of sugar production and power generation. Founded on the evidence that there was increased and expanded capacity for sugar production and power generation, the trial court arrived at the conclusion that a fresh EIA Report was mandatory and required under section 64(1) of EMCA. The record did not show that any information or data that had been provided by the 3rd appellant in 2004 was false, inaccurate or intended to mislead. Therefore, the conditions precedent as stipulated in section 64 (1) (c) of EMCA, 1999 were inapplicable to the instant matter.
  52. In arriving at its decision, the trial court ignored the provisions of section 64 (3) of EMCA, 1999 which stipulated that where NEMA had directed that a fresh environmental impact assessment be carried out, any licence previously issued would be cancelled, revoked or suspended by NEMA. The discretion to make a decision whether a licence that had been issued was to be cancelled was with NEMA. NEMA neither cancelled nor revoked the EIA licences but instead approved the variations. A discretion once exercised by a competent organ under the EMCA, could only be appealed against to the NET. The trial court erred in substituting his own exercise of discretion and setting aside a discretion already exercised by NEMA in not cancelling the appellants EIA licences. The trial court did not have jurisdiction to cancel the licence as the decision of NEMA could only be challenged pursuant to section 129 (1) (a) (b) or (c) of the EMCA by way of appeal to NET.
  53. Further, the 3rd appellant had completed and submitted a detailed compliance plan of its activities in regard to pollution, prevention and sustainability of the ecological systems within the area. That per se fulfilled the condition in section 64(1)(b) of EMCA, 1999. From the interpretation of sections 129, 58(2) and 64 of the EMCA, 1999, had NEMA’s compliance status report of April 2019 been placed before the trial court, it would have found that there was compliance with the requirement for an environmental management plan and that mitigation measures had been undertaken satisfactorily.
  54. There was no evidence on record demonstrating that the conditions precedent for calling of a fresh EIA report under sections 64(1)(a)(b) and (c) of EMCA were fulfilled. The trial court erred in applying section 64 of EMCA without satisfying himself with cogent reasons that the section was applicable and that the conditions precedent to the application of the section had been fulfilled. The trial court erred in ursurping and exercising a discretion vested upon NEMA and further erred in exercising original jurisdiction when the court only had appellate jurisdiction.
  55. The appellants had already complied with the restoration order issued by NEMA. That was evident from the additional evidence contained in NEMA compliance and status report submitted to the clerk of the National Assembly vide the letter dated April 18, 2019. Thus, the restorative and demolition orders issued by the trial court in so far as pollution and environmental degradation was concerned had been overtaken by events.
  56. There was no evidence on record to prove that per se the structures on the appellants’ premises were responsible for environmental degradation. In principle, a structure on a property could be used for a purpose that did not threaten or endanger the environment. That being so, it was injudicious to order demolition of the appellants’ structures without proof that the structures per se were the cause of pollution.
  57. There were other innovative methods of ensuring that court orders on environmental protection were implemented. One such innovative relief was a continuing mandamus. Another example included monitoring committees constituted to implement court orders. It was, thus, not the case that closure and demolition orders were the only effective ways to protect and conserve the environment.
  58. The licence was issued to the 3rd appellant way back on October 19, 2005. The petition before the trial court was filed in 2018, thirteen years after the licence was issued. The appellants had been operating and undertaking the project for all those years with approval and licences issued by NEMA. A pertinent consideration was whether NEMA and the trial court could reopen and cancel a licence issued over thirteen years ago when section 129(1) of the EMCA expressly imposed a sixty-day limitation period. The appellants derived rights and incurred obligations and a legitimate expectation from the said EAI licence. It would well be that the doctrines of estoppel and legitimate expectation would apply against NEMA in respect of the EIA licences that were issued to the appellants.
  59. There was evidence on record that; the appellants had complied with the restorative orders issued by NEMA; the NECC being the competent organ charged with investigating pollution complaints recommended continuous monitoring of the appellants’ operations; NECC recommended the uplifting of the order closing the appellants’ factories. The court, thus, affirmed and confirmed recommendations by NECC as the technical competent organ. The demolition and closure orders issued by the trial court were disproportionate and inappropriate in the circumstances of the case. The restorative, injunctive and demolition orders issued by the trial court for the reason that the restorative order as related to pollution and mitigation of environmental damage had been complied with as per NEMA’s Report of April 18, 2019.
  60. The trial court’s declaratory order that NEMA and 4th appellant had failed in their statutory duties and had violated the provisions of section 108 of EMCA was not supported by the evidence on record. On the contrary, there was evidence that upon complaints and allegations of river pollution being raised by the 1st, 2nd and 3rd respondents, NEMA, the NECC and the 4th appellant independently visited the locus in quo to investigate the complaints. The evidence revealed that NEMA went further and issued restoration and closure orders. The 4th appellant’s Committee also visited the locus in quo and prepared its reports which were on record.
  61. There was no cross-appeal, thus, the trial court did not err in failing to award compensatory damages to the respondents.
  62. The project report submitted by the 3rd appellant to NEMA in 2004 had no significant impact on the environment or alternatively, the EPR disclosed sufficient mitigation measures. There was no sufficient basis to fault the action of NEMA to issue the 3rd appellant with EIA licence No. 0000259 upon the EPR without an EIA study report.
  63. The respondents did not lead an iota of evidence that individually they had suffered any injury. There was nothing like a presumption of damage or injury because there was no EIA study report. The respondents were claiming compensatory damages for Ksh. 100,000,000/- (One Hundred Million). That per se meant that the respondents were pursuing personal compensation and were neither pursuing nor advancing public interest litigation.
  64. NEMA was a statutory body charged with the responsibility of issuing EIA licences. In the instant matter, NEMA issued EIA licences to the appellants. However, in this appeal, NEMA had prevaricated and disowned the lcences. A public body could not issue a licence and then turn around and disown the same. Such a conduct had to be condemned by way of costs.

Appeal allowed, the judgment, declaratory orders and the decree of the trial court were set aside
Orders

  1. Order that the National Environment and Management Authority (NEMA) and NECC were to continuously conduct inspection at the 1st, 2nd and 3rd appellants’ factories to monitor compliance with environmental standards.
  2. Order compelling the 1st, 2nd and 3rd appellants to annually or as directed by NEMA or other competent organ, conduct an environmental audit of its project and activities and submit a Report to NEMA or any other competent organ as directed by NEMA or NECC or applicable law.
  3. The 1st, 2nd 3rd and 4th respondents were to jointly and severally bear the costs of the appeal and the costs before the trial court.

The instant judgment was delivered pursuant to rule 32(3) of the Court of Appeal rules as Odek, J.A. sadly passed on before the delivery of the Judgment.

JUDICIAL REVIEW

Circumstances under which the High Court would stop a private criminal prosecution.

Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot
Miscellaneous Civil Application No 622 of 2018
High Court at Nairobi
JM Mativo, J
March 11, 2020
Reported by Beryl Ikamari

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Judicial review - certiorari - decision or administrative action under challenge - whether it was necessary to attach a written copy of the decision against which the remedy of certiorari was sought in making a judicial review application - Constitution of Kenya 2010, articles 47 and 48; Fair Administrative Action Act ( No. 4 of 2015), sections 2 and 7.
Judicial Review - exhaustion doctrine - availability of alternative remedies - appeal and review as alternative remedies - effectiveness of an appeal or review as alternative remedy to judicial review remedies.
Civil Practice and Procedure - res judicata - applicability - where leave was granted for the commencement of judicial review proceedings - whether the grant of such leave would make an application between the same parties in relation to commencement of private prosecutions, res judicata.
Constitutional Law - Director of Public Prosecutions - powers to institute prosecutions - whether a decision by the Director of Public Prosecutions not to institute criminal proceedings could be challenged - Constitution of Kenya 2010, article 157(10).
Judicial Review- certiorari and prohibition – grounds for seeking judicial review remedies - illegality - disobedience or violation of court orders - institution of private prosecutions in violation of a court order - whether the private prosecution was an abuse of court process against which remedies of certiorari and prohibition could be granted.

Brief facts:
The 2nd respondent filed private prosecution case number 2 of 2017 seeking leave to institute and conduct private prosecution against the applicant and the 3rd interested party. He alleged that the applicant and the 3rd interested party forged company resolutions, minutes, letters and filed parallel returns and had conspired to defraud him and Galot Industries Limited. He further alleged that illegal meetings, in which resolutions such as the appointment of a company secretary had been made, were held. The 2nd respondent applied to commence private prosecutions while stating that the Director of Public Prosecutions had failed to act on his complaints against the applicant and the 3rd interested party.
The application was opposed by the applicant. Via a notice of preliminary objection, the applicant argued that the subordinate court lacked jurisdiction to entertain the application in view of the fact that the court in HCCC No 430 of 2012 ordered that the parties should not file any other suit or application except with leave of court. Leave necessary to file the application had not been sought.
The subordinate court dismissed the preliminary objection after making the finding that leave had been granted in Misc. Application Number 651 of 2016 by the High Court. The applicant stated that the private prosecution was an abuse of court process as it had not been approved by the Board of Directors of Galot Industries Limited through a resolution. The applicant sought orders of certiorari and prohibition with the aim of halting the private prosecution.
The respondent opposed the application whilst stating that there was no decision capable of being quashed and that alternative remedies such as an appeal or revision had not been sought. On the other hand, the 2nd interested party filed a notice of preliminary objection in which it stated that the application was res judicata as it raised issues that had been the subject of HC JR No. 651 of 2016.

Issue:

  1. Whether it was necessary to attach a copy of the decision against which orders of certiorari were sought when making a judicial review application.
  2. Under what circumstances would an appeal or review not be an alternative remedy to judicial review?
  3. What were the circumstances in which the doctrine of res judicata would be applicable to a suit?
  4. When would a decision of the Director of Public Prosecutions to institute or not to institution a prosecution be open to a legal challenge?
  5. Whether a private prosecution which was instituted in violation of a court order was an abuse of court process against which the court could grant orders of certiorari and prohibition as remedies. Read More...

Held:

  1. Under section 2 of the Fair Administrative Action Act, the term administrative action included the powers, functions and duties exercised by authorities or quasi-judicial tribunals or any act, omission or decision of any person, body or authority that affected the legal rights or interests of any person to whom such action related. Further, the right to access justice was guaranteed under article 48 of the Constitution. The entrenchment of judicial review as a constitutional guarantee expanded the scope of the remedy;
    1. Parties who were once denied judicial review of the basis of the public-private power dichotomy should access judicial review if the person, body or authority against whom it was claimed exercised a quasi-judicial function or a function that was likely to affect his rights.
    2. The right to access the courts was constitutionally guaranteed. That meant that the requirement for the existence of a decision, order or proceedings should be read to include administrative actions as defined in section 2 of the Fair Administrative Action Act.
    3. Under article 22 of the Constitution, a person could approach the court citing a threat to or violation of fundamental rights. That rendered the existence of a written order, decision or judgment irrelevant.
    4. An order of judicial review was one of the reliefs for violation of fundamental rights and freedoms under article 23(3) (f) of the Constitution.
    5. The import of section 7 of the Fair Administrative Action Act was that a person aggrieved with an administrative action or decision could apply for a review of the administrative action or decision. It did not require the impugned decision to be in writing.
  2. The definition of administrative action under section 2 of the Fair Administrative Action Act meant that the decision of a public authority or quasi-judicial tribunal was out rightly amenable to judicial review while the decision of any other person or body was amenable to judicial review if it affected the legal rights or interests of the concerned party.
  3. Judicial review was about the decision-making process and not the decision itself. The court's role in judicial review was supervisory. Judicial review was not an appeal. Judicial Review was the review by a judge of the High Court of a decision, proposed decision or refusal to exercise a power of decision to determine whether that decision or action was unauthorized or invalid. Judicial review was more concerned with the manner in which a decision was made than the merits or otherwise of the ultimate decision. In light of the principles applicable to judicial review, the argument that alternative remedies such as appeal or review should have been sought failed.
  4. In HCC No. 651 OF 2016, the court granted leave for the commencement of judicial review proceedings. That leave could not apply to the instant proceedings and it did not relate to leave to commence private prosecutions.
  5. The judgment in HCC No. 651 of 2016 did not mean that the instant proceedings were res judicata. Res judicata covered issues or facts that were so clearly part of the subject matter of litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. The requirements for res judicata were that the same cause of action, for the same relief and involving the same parties, was determined by a court previously.
  6. Under article 157(10) of the Constitution, the DPP did not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions, he would not be under the direction or control of any person or authority. The decision to institute or not institute criminal proceedings was a high calling imposed upon the DPP by the law and had to be exercised in a manner that left no doubt that the decision was made by the DPP independently.
  7. The discretion of the DPP on the question as to whether to prosecute had to be exercised properly. The exercise of such discretion was capable of being questioned on various grounds. If the DPP knowingly invoked power to arrest and prosecute for a purpose not contemplated by the law that exercise of discretion would be unlawful. A decision to prosecute had to be based on an intention to bring the arrested person to justice and the decision to terminate pending proceedings had to be undertaken in order to advance the administration of justice.
  8. The rule was not that suspected criminal offences had to automatically be prosecuted. A prosecution should not be instituted or continued unless there was admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused.
  9. Resources should not be wasted pursuing inappropriate cases but had to be used to act vigorously in those cases worthy of prosecution. There had to be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued.
  10. When evaluating evidence for purposes of deciding on whether to prosecute, the following matters had to be considered;
    1. Were there grounds for believing the evidence could be excluded bearing in mind the principles of admissibility at common law and under statute?
    2. If the case depended in part on admissions by the accused, were there any grounds for believing that they were of doubtful reliability having regard to the age, intelligence and apparent understanding of the accused?
    3. Was it apparent that a witness was exaggerating, or that his or her memory was faulty, or that the witness was either hostile or friendly to the accused, or could be otherwise unreliable?
    4. Did a witness have a motive for telling less than the whole truth?
    5. Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute.
    6. Whether the alleged offence was of considerable public concern.
    7. The necessity to maintain public confidence. As a matter of practical reality the proper decision in most cases would be to proceed with a prosecution if there was sufficient evidence available to justify a prosecution.
  11. In HCC No. 430 of 2016, the court issued an order that the parties should not file any other suit or application except with leave of court. There was no ambiguity in the words used in the order. A purposive and contextual reading of the order showed that the words used were broad enough to include the institution of a private prosecution. At the center of all disputes between the parties was the directorship of certain companies and what was being sugar-coated as a private criminal prosecution was a civil dispute in disguise. The private prosecution offended the terms of the court order. So long as the order remained in force, the private prosecution could not be sustained.
  12. A criminal prosecution commenced in violation of a court order was an illegality. To advance the rule of law, the court could grant remedies such as certiorari, prohibition, mandamus or permanent stay of proceedings.
  13. An abuse of process justifying the stay of a prosecution could arise in the following circumstances:-
    1. where it would be impossible to give the accused a fair trial; or,
    2. where it would amount to a misuse/manipulation of process because it offended the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
  14. A prosecution commenced in violation of a court order would undermine the integrity of the criminal justice system. Criminal proceedings commenced to advance other gains other than promotion of public good were vexatious and ought not to be allowed to stand.
  15. The argument that the orders issued in HCCC No. 430 of 2012, were inapplicable to the 2nd interested party because he was not party to the proceedings should fail for the following reasons:-
    1. The dispute in all the cases was the same dispute presented in the complaint in the private prosecution.
    2. At the centre of the dispute was the directorship of the said companies.
    3. The said company was a party in the case in which the order was issued.
    4. The 2nd interested party was a director in the said company and so intertwined were the disputes between the directors, the shareholders and the companies that they could not be separated.
    5. It was the same company whose documents the applicant was accused of having falsified.
    6. The said order affected the 2nd interested party in person and also as a director of the companies because companies would act through their directors.

Application allowed.
Orders:-

  1. An order of certiorari quashing Nairobi Chief Magistrates Private Prosecution Case number 2 of 2017, Republic through Mohan Galot v Pravin Galot, Rajesh Galot and Director of Public Prosecutions (interested party).
  2. An order of prohibition, prohibiting the said Mohan Galot either by himself or acting through the Director of Public Prosecutions or any other person acting on his behalf from further prosecuting the applicant in Private Prosecution Case Number 2 of 2017 or charging the said Pravin Galot and Rajesh Galot in any court in the Republic of Kenya with any offence premised on the same facts as in the impugned private prosecution case.
CIVIL PRACTICE AND PROCEDURE

Effect of undue delay in filing a constitutional petition.

Daniel Kibet Mutai & 9 others v Attorney General
Civil Appeal 95 of 2016
Court of Appeal at Eldoret
HM Okwengu and J Mohammed, JJA
November 28, 2019
Reported by Ribia John

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Civil practice and procedure – doctrine of latches – limitation of time – limitation of time in constitutional petitions – where a constitutional petition was filed 30 years after the cause of action arose - whether a constitutional petition would be defeated by the doctrine of laches if the action was filed after an unexpected - what was the effect of undue delay in filing a constitutional petition.
Evidence Law – weight of oral evidence – weight of affidavit evidence – weight of oral evidence vis-à-vis weight affidavit evidence - whether the weight of oral evidence was superior to the weight of affidavit evidence.
Evidence Law – uncontroverted evidence – challenging uncontroverted evidence - whether a trial court in exercise of its discretion could question evidence that had not been challenged - whether doing so would be applying a higher standard of proof than that of a balance of probability.
Evidence Law – medical evidence – medical report – where affidavit evidence was uncontroverted – where an applicant was not able to attain medical reports due to incarceration for a long time - whether it was necessary to provide medical evidence for injuries suffered where the injured party had no opportunity to get such medical reports due to incarceration for a long period and the injured party having being released long after the events that caused injury.
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – award of damages – public interest occasioned by awarding damages from public coffers - whether public interest occasioned by awarding damages from public coffers outweighed the enforcement and protection fundamental rights and freedoms.
Constitutional Law – fundamental rights and freedoms – right to a fair trial – claim of violation of the right to a fair trial – where the trial court’s proceedings were not available for review by the court - whether a court could determine if one’s right to fair trial was violated without the proceedings of the trial court – Constitution of Kenya, 2010 article 50(2).
Criminal Law – remission – denial of remission – denial of remission without justification – impact of - whether the denial of remission without justification meant that one was unlawfully deprived of freedom.
Statutes – interpretation of statutes – Prisons Act – section 46(1) – remission – use of the word ‘may’ in providing that 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 - whether the use of the word “may” in section 46(1) of the Prisons Act connoted a discretion to give or not to give remission.
Constitutional Law – constitutional petition – matters that could be addressed in a constitutional petitioner – unfair dismissal claim - whether an action of unfair dismissal could be determined in a constitutional petition as opposed to under a claim under the Employment Act

Brief facts:
The appeal arose from the events of the 1982 coup attempt that was initiated by members of the then Kenya Air Armed Force. The attempted coup failed following the intervention of the Kenya Army Armed Forces who quelled the coup and matters reverted back to normal. Following the attempted coup, the appellants who were all serving as officers of the Kenya Air Force (KAF) at the material time, were arrested, detained, arraigned and charged before a Court Martial; and then all dismissed from the Kenya Air Force. The appellants were each aggrieved by their dismissal which they contended was unfair, they also claimed that their constitutional rights were violated during their arrest and pre- arraignment.
The appellants’ action was lodged at the trial court on October 2, 2012, almost 30 years after the cause of action arose. The appellants filed only affidavit evidence at the trial court. The trial court found that had there had been undue laches as the appellants’ claim was brought after inordinate delay, and that no explanation was given for the delay. Further, that the appellants failed to adduce concrete and tangible evidence to prove any of their allegations of violation of their fundamental rights not to be tortured or deprived of personal liberty, nor did they offer any factual or evidential evidence that could form the basis for an award of damages. Consequently, the trial dismissed the petition. Aggrieved by the trial court’s decision, the applicant filed the instant decision.

Issue:

  1. Whether a constitutional petition would be defeated by the doctrine of laches if the action was filed after an unexpected delay.
  2. What was the effect of undue delay in filing a constitutional petition?
  3. Whether a trial court in exercise of its discretion could question evidence that had not been challenged and whether doing so would be applying a higher standard of proof than that of a balance of probability.
  4. Whether the weight of oral evidence was superior to the weight of affidavit evidence.
  5. Whether psychological and mental torture that could not necessarily leave any telltale signs needed to be proved by medical documents in court.
  6. Whether it was necessary to provide medical evidence for injuries suffered where the injured party had no opportunity to get such medical reports due to incarceration for a long period and the injured party having being released long after the events that caused injury.
  7. Whether public interest occasioned by awarding damages from public coffers outweighed the enforcement and protection fundamental rights and freedoms.
  8. Whether the use of the word “may” in section 46(1) of the Prisons Act connoted a discretion to give or not to give remission.
  9. Whether the denial of remission without justification meant that one was unlawfully deprived of freedom.
  10. Whether a court could determine if one’s right to fair trial was violated without the proceedings of the trial court.
  11. Whether an action of unfair dismissal could be determined in a constitutional petition as opposed to under a claim under the Employment Act Read More...

Relevant Provisions of the Law
Prisons Act
Section 46
46. Remission of part of sentence of certain prisoners
(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) or 297(1) of the Penal Code (Cap. 63) or to be detained during the President’s pleasure.

(2) For the purpose of giving effect to the provisions of subsection (1) of this section, each prisoner on admission shall be credited with the full amount of 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 while malingering; or
(b) while undergoing confinement as a punishment in a separate cell.
(3A) 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 Minister for the time being responsible for internal security considers that it is in the interests of public security or public order.

(4) Notwithstanding the provisions of subsection (1) of this section, on the recommendation of the Commissioner, the Minister may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special grounds.
(5) The Minister shall have power to restore forfeited remission in whole or in part.

Court of Appeal Rules
Rule 32
Judgment
(3) In civil applications (other than applications heard by a single judge) and civil appeals, separate judgments shall be given by the members of the Court unless, the decision being unanimous, the presiding judge otherwise directs, but where one judge delays, dies, ceases to hold office, or is unable to perform the functions of his office because of infirmity of mind or body, separate concurring judgments may be given by the remaining members of the court.

Held:
Per H Okwengu, JA

  1. It was the duty of the first appellate court to analyze and re-assess the evidence on record and reach its own conclusions in the matter. As the hearing of the petition did not proceed by way of oral evidence, but through affidavit evidence and submissions, the appellate court was in the same position as the High Court, to the extent that just like the High Court it did not have the advantage of seeing and assessing the demeanour of the witnesses. The appellate court had the obligation of reconsidering the affidavit evidence, the rival submissions made by the parties, and the law, in order to draw its own conclusions.
  2. The trial court treated oral evidence (which in the instant case was not available), as superior to affidavit evidence and thereby dismissed the appellants’ affidavits as bare allegations. The trial court failed to appreciate that what was sworn under oath was not a simple matter but a serious issue, for which a deponent could be charged with perjury if it turned out that the deponent had lied under oath. The consequences were the same as that for a witness who testified orally and perjures himself by lying on oath. The affidavit evidence was legally admissible evidence in a court of law. It occupied the same place as any other evidence that was admissible in a court of law.
  3. A reading of rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 showed that affidavit evidence was provided for on the same pedestal as oral evidence. The trial court had the discretion to direct that the hearing of the petition proceeds by way of oral evidence if it deemed it necessary to do so. The parties sought to proceed by way of affidavit evidence, and the trial court having not exercised the discretion to direct the parties to proceed by way of oral evidence, or to call any of the deponents of the affidavits for cross-examination, the trial court had no reason to disparage the affidavit evidence.
  4. Not only was no replying affidavit sworn, but the respondent to some extent pleaded justification. The respondent was asserting that assuming that the facts were as alleged they were justified in the actions taken. The appellants’ affidavits not having been challenged by the respondent, the facts averred were essentially admitted. The trial court erred in rejecting the affidavit evidence as it formed an appropriate basis for the claim.
  5. The trial court failed to distinguish admission of the claim from admission of the facts alleged in support of the claim. The respondent did not file any replying affidavit challenging the facts that were alleged. However, the respondent filed grounds of opposition maintaining that it was not liable to the appellants basically on grounds of law, to wit that the petition was incurably defective; that it did not rise to the threshold of a constitutional petition as envisaged by article 22 of the Constitution; that there has been undue laches running into thirty years; that the Department of Defence was entitled under the Armed Forces Act to take certain disciplinary measures; and that the petitioners were subjected to due process.
  6. The burden of proof was on the appellants to prove the facts which they asserted. The appellants in their supporting affidavit deposed to facts which showed how they were arrested immediately after the attempted coup; the treatment that they were subjected to after they were arrested; the places where they were detained; how each was treated during pre-trial detention; and the trial and sentence at the Court Martial. Although there were no annexures or other evidence in support of the appellants’ alleged arrest, torture or even incarceration at the prison (except for the 1st appellant who annexed newspaper articles of his conviction and sentence for the charge of mutiny, and a subsequent appeal), the fact of the appellants being officers of the Kenya Airforce, their arrest and imprisonment for mutiny as a result of the attempted coup, was not denied. The trial court had no reason to question the appellants’ affidavit evidence as they laid an appropriate basis for the appellant’s claim.
  7. The appellants swore to what they personally suffered and experienced, and therefore their averments in the affidavits were direct evidence of what transpired. While the appellants did not have medical documents to substantiate their allegations that they were mistreated and suffered injuries, it had to be appreciated that they had no opportunity to get such medical reports as most of them were incarcerated for a long time and only released long after the events that they were complaining about. Moreover, much of the torture and inhuman treatment that they alleged they suffered such as being stripped naked and kept in solitary confinement in water logged cells for days; being kept in a permanently overcrowded cell without proper ventilation and with a permanent pungent foul odour and with lights on day and night; and being subjected to incessant interrogation; being held incommunicado without access to treatment, visits or access to any person; were all psychological and mental torture that could not necessarily leave any telltale signs.
  8. The standard of proof was one of a balance of probability, and the High Court could not treat the proceedings relating to the appellant’s petition differently merely because the respondent was the State. Much as there was an element of public interest in the litigation as payment of any damages would come from the public coffers, fundamental rights and freedoms were sacrosanct and the court had a high responsibility of protecting those rights. The respondent having made a conscious and deliberate decision not to respond to or challenge the appellants’ affidavit evidence, the trial court could not become the respondents’ advocates by questioning evidence that had not been challenged. In effect that would amount to applying a higher standard of proof than that of a balance of probability.
  9. The issue of medical evidence was of more relevance in the assessment of damages rather than in assessing the credibility of the appellant’s evidence. The similarity of the facts averred in the affidavits could not be read against the appellants. After all they were all being held for more or less the same reasons, and being subjected to interrogation by officers of the Kenya Army who were no doubt using similar tactics to break their resistance. The similarity reinforces and provides consistency in the conduct of the Kenya Army officials in the way they dealt with the Kenya Airforce officers whom they deemed to be insurgents. It would be unreasonable to expect that the appellants would know the names of the officers who subjected them to torture. As far as they were concerned the officers were officers of the Kenya Army, and it was not denied that they were arrested and detained. That was sufficient for the purpose of their petition.
  10. The appellants did not give any reasons in their affidavits, for the delay in filing their petition. Instead, an attempt was made by the appellants’ advocate to explain the delay in the written submissions. But written submissions were mere arguments postulated by counsel, which could not pass for proven facts. Moreover, assuming that the appellate court was to take judicial notice of the fact that the appellants could not bring their claim during President Moi’s regime, there was no explanation given as to why the claim was not filed immediately after the impugned President Moi left power after the 2002 elections.
  11. The delay of 30 years was not explained. Where there had been inordinate delay in bringing an action for violation of fundamental rights, appropriate facts had to be placed before the court to enable the court exercise its discretion judicially, in accepting or rejecting the explanation for the delay, with the benefit of all information regarding the particular circumstances before it.
  12. Delay was an anathema to fair trial which was one of the key fundamental rights provided to all litigants under article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in article 159 that required justice to be administered without delay, to allow a party who alleges violation of constitutional rights, to bring their action after undue inordinate delay, without any justifiable reason. The appellants’ action was properly dismissed.
  13. section 46(1) of the Prisons Act provided that except for prisoners sentenced to life imprisonment, or sentenced under section 296(1) or sentenced under the president’s pleasure, all convicted prisoners could by industry and good conduct earn remission of their term of imprisonment as section 46(2) indicated that each prisoner was to be credited upon admission with full amount of remission that he would be entitled to if he did not lose any remission of sentence. Section 46(3) and (4) listed the circumstances in which a prisoner could lose or be deprived of the remission. Therefore, the use of the word “may” in section 46(1) did not connote a discretion to give or not to give remission, but the fact that remission was not absolute as it could be lost in certain circumstances.
  14. The 2nd appellant, 7th appellant, and 8th appellant swore that they were not given any remission and each served their full term of imprisonment. The reason why the appellants lost their remission was a matter that was specially within the knowledge of the Prisons Department. In the absence of a replying affidavit from the respondent, there was no justification given for the denial of the remission. Remission was a legal right that the 2nd, 7th and 8th appellants were entitled to enjoy, and contrary to the finding of the trial court, the denial meant that the appellants were unlawfully deprived of their freedom.
  15. Section 102(6) of the Armed Forces Act (repealed) was applicable for the 1st, 2nd,6th, 7th, 8th, 9th and 10th appellants who were all convicted by the Court Martial for the offence of mutiny. Their dismissal was the logical and legal consequence of their conviction. The action for unfair dismissal was not maintainable in regard to the the 1st, 2nd,6th, 7th, 8th, 9th and 10th appellants. As for the 3rd, 4th and 5th appellants, they were not convicted of any offence under the Armed Forces Act (repealed) nor did the respondent demonstrate that they committed any act that warranted their dismissal from the service. Each of them claimed not to have been involved in the mutiny, and the fact that they were released without being charged with any offence vindicated them. Their dismissal had not been shown to have been justified under section 102 of the Armed Forces Act (repealed). However, the appellants did not seek any relief for this in their petition. Moreover, their claim for unfair dismissal was an independent claim that ought to have been pursed under the Employment Act.
  16. The trial court did not draw a distinction between the appellants who were tried and convicted for the offence of mutiny, and those appellants who were detained for several months and subsequently released without being charged. The trial court noted that there was dearth of evidence to support the allegations that the appellants were held for long periods before being arraigned in court. The trial court did not take into account the affidavit evidence that was availed by each appellant explaining how each was subjected to physical and mental torture, and the periods that they were held. The affidavit evidence was not controverted.
  17. Under article 25(a) of the Constitution, freedom from torture and cruel, inhuman or degrading treatment or punishment was a fundamental right that could not be limited. That meant that the fact that the appellants were members of the disciplined forces did not preclude them from enjoying this right. The actions of being physically and mentally tortured through brutal beatings, denial of food for days and solitary confinements were all acts of torture and degrading treatment intended to demoralize, demean and weaken the appellants in order to breakdown their resistance.
  18. The appellants had the obligation to avail evidence in proving the extent of the injury they suffered from the physical and mental torture that each of them experienced. That was necessary for purposes of helping the court in assessing the damages that should be awarded. In the absence of such evidence the court could only award a nominal amount, and a global amount of Kshs. 2 million would have sufficed as damages to each appellant for violation of their fundamental rights in regard to human dignity, protection against torture, cruel, inhuman and or degrading punishment during their arrest and pre-arraignment detention following the attempted coup.
  19. Without copies of proceedings of the court martial, the evidence placed was insufficient to come to the conclusion that the appellants were denied a right to fair trial. The dismissal of the appellants’ claim in that regard by the trial court was upheld. The appellants’ action for violation of their fundamental rights could not succeed.

    Per J Mohammed, JA

  20. The appellants had not given any explanation at all for the delay in bringing their action. Although there was no time limit in respect of constitutional petitions, and such a petition would ordinarily not be defeated by the doctrine of laches; an unexplained delay of almost 30 years in bringing the action, made it impracticable for the court to properly administer justice and render the action an abuse of the court process.

Appeal partly allowed, no order as to costs.
*The judgment had been delivered in accordance with rule 32(3) of the Court of Appeal Rules as Justice P Waki, JA had retired from service.

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