Weekly Newsletter 004/2019

Weekly Newsletter 004/2019



Kenya Law

Weekly Newsletter


An interested party cannot lodge a cross-petition in a suit.
Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR
Petition 16 Of 2016
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P;M K  Ibrahim,J B Ojwang, N Njoki & I Lenaola SCJJ
January 23, 2019.
Reported by Kakai Toili
Download the Decision
 
Civil Practice & Procedure-parties to a suit -joinder of parties-where a party sought to be enjoined to the proceedings as an interested party- what were the factors to consider before a person could be enjoined as an interested party in a suit-whether an interested party could lodge a cross-petition in a suit-Constitution of Kenya, 2010, article 10, 159(2)(d)(e) & 259(1); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 2, 10(2) & 15(3)
Civil Practice & Procedure-pleadings-cross-petitions-issues raised in a cross-petition-response to issues raised in a cross-petition-oral arguments-whether referring to issues raised in a cross-petition through oral arguments amounted to formal pleadings in response to the issues raised
Words and Phrases-hijab-definition of hijab- a head covering won in public by some Muslim women; the religious code which governs the wearing of such clothing- Concise Oxford English Dictionary, 12th edition(Angus Stevenson and Maurice Waite)

Brief Facts
The Board of Management and the Parent Teachers Association of St. Paul’s Kiwanjani Day Mixed Secondary School (the school) together with the church sponsoring the school met to discuss whether Muslim girls in the school could wear hijabs and white trousers. It was alleged that out of the 22 members who attended the meeting, 18 voted for status quo to remain and therefore students were not allowed to wear hijabs and white trousers. The 3rd respondent subsequently directed that Muslim girls in the school wear hijabs and white trousers. She also directed that the principal of the school be transferred and a transfer letter to that effect was issued.
The appellant, aggrieved by the series of events, filed a petition at the Trial Court seeking a declaration that the respondents’ decision was discriminatory, unlawful, unconstitutional and contrary to the school rules and regulations among other orders. The 1st respondent filed a replying affidavit in response to the petition and at paragraph 34 thereof deponed that he was cross-petitioning that Muslim students be allowed to wear a limited form of hijab as a manifestation, practice and observance of their religion. The Trial Court allowed the petition. Aggrieved by the decision, the 1st respondent filed an appeal at the Appellate Court which allowed the appeal. Aggrieved by that decision, the appellant filed the instant appeal.

Issues:
  1. What were the factors to consider before a person could be enjoined as an interested party in a suit?
  2. Whether an interested party could lodge a cross-petition in a suit.
  3. Whether referring to issues raised in a cross-petition through oral arguments amounted to formal pleadings in response to the issues raised.

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 10

(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.
 

Article 159
2. In exercising judicial authority, the courts and tribunals shall be guided by the following principles –

d. justice shall be administered without undue regard to procedural technicalities; and
 e. the purpose and principles of this Constitution shall be protected and promoted.

Article 259
(1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.

Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Rule 15(3)

The respondent may file a cross -petition which shall disclose the matter set out in Rule 10 (2).
 

Rule 10 (2)
The petition shall disclose the following—

(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f)   the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g) the relief sought by the petitioner.

(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.”
 

Rule 2
 “interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation;

Civil Procedure Act
Section 1A (1)

The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.”
 

Held:

  1. The 1st respondent was admitted to the suit at the High Court as an interested party. The Trial Court could join interested parties to proceedings where necessary, a party could be enjoined in a matter on the basis of certain considerations namely:
    1. joinder of a person because his presence would result in the complete settlement of all the questions involved in the proceedings;
    2. joinder to provide protection for the rights of a party who would otherwise be adversely affected in law; and
    3. joinder to prevent a likely course of proliferated litigation
    The Trial Court was well within its rights to admit the 1st respondent as an interested party.
  2. The most crucial interest or stake in any case was that of the primary parties before the Court. The Trial Court ought not to have entertained issues arising from the cross-petition by the 1st respondent, especially in view of article 163 (7) of the Constitution which provided that aMoreover, the cross-petition did not comply with rule 15 (3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) which spoke to a filing a cross-petition, it was also not in conformity with rule 10 (2) of those Rules.Rule 10(3) of the Mutunga Rules could not be invoked as the replying affidavit of the 1st respondent did not fit any of the descriptions contained therein.
  3. The issues set out in the cross-petition did not afford the opportunity for the appellant to respond to the same effectively because;
    1. it introduced a different cause of action from that raised in the original petition; and
    2. it was not framed in a manner, for which there was a known laid out procedure for an exhaustive response
    The fact that the appellant could have referred to the issues therein through oral arguments, could not amount to formal pleadings in response to those issues. Both the Trial and Appellate Courts violated the appellant’s right to be heard, as provided for under articles 25 and 50 of the Constitution.
  4. The was improperly before the Trial Court, and ought not to have been introduced by an interested party. The cross-petition should not and could not have been entertained by the Appellate Court, neither court had proper jurisdiction to do so.
  5. The issue as contained in the impugned cross-petition was an important national issue that would provide a jurisprudential moment for the Court to pronounce itself upon in the future. However, to do so, it was imperative that the matter ought to reach the Court in the proper manner. When a party sought redress from the Court, they ought to have had the matter properly instituted, the issues canvassed and determined in the professionally competent chain of courts leading up to the apex court. Should any party wish to pursue the issue raised in the cross-petition, they ought to consider instituting the matter formally at the High Court.
  Per J B Ojwang, SCJ (dissenting)
  1.  The 1st respondent featured in the Trial Court’s proceedings only in a somewhat peripheral depiction, as an interested party, an equivocation no less matched by the labeling of his motion masked as a cross-petition. The 1st respondent at the trial stage would have appeared as a primary party, a and would have been entitled to lodge a cross-petition in the ordinary sense.
  2. The 1st respondent before the Court was much more than just an interested party before the Trial Court. The most crucial question, if not the for most practical purposes before the Trial Court was the in accordance with recognized religious orientation and its relevance and priority within the schooling process.
  3. Article 159 (e) of the Constitution required courts to uphold the purpose and principles of the Constitution. The abode of such purposes and principles was (b) of the Constitution.A regular scheme for discharging the judicial mandate was embodied in a number of statutes; a typical example of such a statute was the It was within such a framework of discharge of mandate that the Trial Court proceeded to make its findings and orders of March 5, 2015 wherefrom proceeded to the Appellate Court.
  4. A proper reading of the appellant’s affidavit at the Trial Court did not warrant the striking-out of the 1st respondent’s in spite of its shortcoming. There would be no justification for overlooking the Constitution’s requirement in article 22 (3) (b) that any formalities relating to the proceedings, including commencement of the proceedings, to be and in particular that the court, if necessary, The Trial Court’s finding disallowing Muslim girls wearing the hijab in school was devoid of any legal or factual merits.
  5. The appellant was accorded a on the regardless of the technicality attending the formal lodgment of the cross-petition. It was of no legal consequence that the replying affidavit was inelegant in paragraph 34, with the 1st respondent averring that he was The constitutional charter, article 159 (2) (d) of the Constitution declared that and article 22 (3) (b) declared that
  6. The reference to the cross-petition had been inexact in a technical sense. It was for recognition that such a flaw was, as a matter of law, There was no factual or legal basis for the holding that, allowing Muslim girls to wear the favoured Muslim girl students and discriminated against non-Muslims. The appellant paid no or insufficient attention to the proscribed indirect discrimination and the principle of accommodation as the answer to the problem of discrimination.
  7. Section 27 (d) of the Basic Education Act, 2013 imposed upon a school’s sponsor the obligation of maintenance of spiritual development while safeguarding the denominations or religious adherence of others. All the applicable terms of the Constitution and of the enacted law entailed a in the multi-cultural environment prevailing at the pertinent school, would by no means be jeopardized on account of the variation to the school dress-code.
  Appeal allowed
Kenya Law
Case Updates Issue 004/2019
Case Summaries

JURISDICTION Circumstances under which the Supreme Court would interfere with a decision involving the exercise of discretion by the Court of Appeal.

Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others
Petition 13 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
January 18, 2019
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters that were appellable as of right-matters of constitutional interpretation and application-where the Court of Appeal had occasion to interpret the extent of applicability of article 159(2)(d) of the Constitution to situations where there had been non-compliance with the Court of Appeal (Election Petition) Rules 2017 (filing a notice of appeal at the wrong registry)-whether such an issue was within the scope of matters over which the Supreme Court could exercise jurisdiction-Constitution of Kenya 2010, articles 163(4)(a); Court of Appeal (Election Petition) Rules 2017, rules 5 & 6.
Civil Practice and Procedure-appeals-appeal against a decision which involved the exercise of discretion-circumstances under which the Supreme Court would interfere with the Court of Appeal’s exercise of discretion-whether the Supreme Court would interfere with a discretionary decision where it was not shown that the Court of Appeal exercised discretion wrongfully, arbitrarily, unreasonably or in violation of the law or Constitution.

Brief facts:
In the general elections of August 8, 2017, the 3rd respondent was declared the winner for the position of Member of the National Assembly for Eldama Ravine Constituency. The petitioner, a candidate in the election, was aggrieved by the outcome and he filed a petition at the High Court at Kabarnet but the petition was dismissed. The petitioner, in appealing against the High Court decision, filed a notice of appeal at the High Court at Kabarnet and a record of appeal at the Court of Appeal at Nakuru, on March 9, 2018 and March 29, 2018, respectively.
The 3rd respondent made an application to strike out the notice of appeal on grounds that it was filed in the wrong registry and to strike out the record of appeal as it was founded on a 'non-existing' notice of appeal. The 1st and 2nd respondents also filed a similar application which was consolidated with the 1st respondent's application. In allowing the applications, the Court of Appeal struck out the notice of appeal and the record of appeal.
While alleging violations of the right of access to justice and the right to a fair hearing arising from the decision of the Court of Appeal, the petitioner lodged a Supreme Court appeal. In response, the respondents filed two notices of preliminary objection contending that the Court had no jurisdiction to hear the appeal as of right under article 163(4)(a) of the Constitution.

Issues:

  1. Whether the Supreme Court had jurisdiction, under article 163(4)(a) of the Constitution, over a matter in which the Court of Appeal determined the extent of applicability of article 159(2)(d) of the Constitution to situations where there had been non-compliance with the Court of Appeal (Election Petition) Rules 2017 (filing a notice of appeal at the wrong registry.)
  2. When would the Supreme Court interfere with a decision entailing the exercise of discretion by the Court of Appeal? Read More..

Held :

  1. Article 163(4)(a) of the Constitution, would apply across the board to all matters including election petition matters. It provided that appeals would lie from the Court of Appeal to the Supreme Court as of right in cases involving the interpretation or application of the Constitution. A litigant had to have a case within the confines of that provision in order for his case to be admissible as of right.
  2. Constitutional interpretation involved revealing or clarifying the legal content, or meaning of constitutional provisions, for purposes of resolving the dispute at hand. On the other hand constitutional application entailed creatively interpreting the Constitution to eliminate ambiguities, vagueness and contradictions, in furtherance of good governance.
  3. The issue of constitutional interpretation to be canvassed at the Supreme Court had to be the subject of determination at the High Court and the Court of Appeal. The issue would have to have progressed through the normal appellate mechanism and reach the Supreme Court by way of appeal.
  4. It was necessary for the appellant to demonstrate that a given constitutional provision required interpretation and that it was incorrectly interpreted at the Superior Courts in which an issue of interpretation or application was determined. It was necessary to show the context in which it became necessary for the Supreme Court to render an interpretation or how the relevant provision would impact on the case.
  5. There was a failure to observe rule 6 of the Court of Appeal (Election Petition) Rules 2017 which required a notice of appeal to be filed at the Court of Appeal Registry. The Court of Appeal's decision to strike out the notice of appeal and record of appeal was based on rule 5 of the Court of Appeal (Election Petition) Rules 2017. Rule 5 of the Court of Appeal (Election Petition) Rules 2017, was to the effect that where there was failure to comply with the rules, that failure was a matter for the determination of the Court of Appeal which would exercise its discretion subject to article 159(2)(d) of the Constitution and the need to observe timelines set by the Constitution and any other electoral laws. Under article 159(2)(d) of the Constitution, justice had to be administered without undue regard to procedural technicalities.
  6. Article 159(2)(d) of the Constitution was the only subject of constitutional interpretation at the Court of Appeal. The issue before the Supreme Court was on the extent of the application of article 159(2)(d) of the Constitution in determining the effect of non-compliance with the Court of Appeal (Election Petition) Rules, 2017 and not on violations of articles 25, 48 and 50. The Supreme Court had jurisdiction to hear the petitioner's appeal under article 163(4)(a) of the Constitution to the extent of that issue only.
  7. The Ngoge case (Peter Odiwuor Ngoge t/a O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni t/a Namada & Co Advocates & 725 others SC Petition No. 13 of 2013; [2014] eKLR) could be distinguished from the instant suit. In the Ngoge case the Court of Appeal struck out a notice of appeal while exercising discretion under rule 81 of the Appellate Jurisdiction Rules but the Court of Appeal did not interpret article 159(2)(d) in making that determination. In circumstances of the case, the Court of Appeal interpreted article 159(2)(d) and therefore an issue of constitutional interpretation and application was in existence.
  8. Under rule 5 of the Court of Appeal (Election Petition) Rules 2017, the effect of failure to comply with the Rules was a matter within the discretion of the Court of Appeal. The Supreme Court was hesitant to assume jurisdiction where a litigant was challenging the exercise of discretion by another court. However, where there was an apparent injustice or an infringement of fundamental freedoms, the Supreme Court would not shut its eyes to such an illegality.
  9. The Supreme Court would interfere with another court's exercise of discretion where that court acted arbitrarily or capriciously or ignored relevant facts or completely disregarded the principles of the governing law, leading to an unjust order. Where discretion was exercised reasonably and judiciously, the fact that the Supreme Court would have arrived at a different decision, would not be a reason for the Supreme Court to interfere with the Court of Appeal's exercise of discretion. Therefore, the Supreme Court would interfere with the exercise of such discretion where:-
    1. the Appellate Court acted on a whim;
    2. its decision was unreasonable;
    3. its decision was in violation of any law or the Constitution; or
    4. its decision was plainly wrong and had caused undue prejudice to one party.
  10. In the circumstances of the case, there was no basis for interfering with the exercise of discretion by the Court of Appeal. Once a notice of appeal was properly struck out, no record of appeal could stand.
  11. It was apparent that since 2017, there were differing decisions on questions related to violation of the rules and on filing a notice of appeal at the wrong registry. The Court of Appeal (Election Petition) Rules 2017 were published on July 28, 2017 and it was possible that parties and their advocates were not aware of the Rules when notices of appeal from election courts were being filed in 2018. The rules were in the public domain and litigants were aware of where and how to file notices of appeal. Therefore conflicting decisions on that subject should not be an issue in the next election cycle.

Petition of appeal dismissed. Each party had to bear its own costs.

JURSDICTION Guiding principles for application for review of a decision of the Supreme Court

Parliamentary Service Commission v Martin Nyaga Wambora & 5 others
Application No 8 of 2017
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, P M Mwilu, DCJ & VP, M K Ibrahim, J B Ojwang, S N Ndungu, SCJJ
December 21, 2018
Reported by Chelimo Eunice

Download the Decision

Jurisdiction – review-jurisdiction of the Supreme Court to review its decisions – scope of the Supreme Court’s power to review its decisions – circumstances in which the Supreme Court may review its decisions - claim seeking orders for the Supreme Court to review its two judge bench decision which dismissed the applicant’s plea for extension of time to file an appeal out of time-Supreme Court Act, sections 21(2) and 24(2); Supreme Court Rules, rules 4(4) and 4(3)
Jurisdiction – review-jurisdiction of the Supreme Court to review its decisions- review of a two judge bench decision- whether Supreme Court, constituted as a five judge bench could interfere with the exercise of discretion by a two judge bench- Supreme Court Rules, rules 4(4) and 4(3)
Statutes- interpretation of statutes-interpretation of section 24(2) of the Supreme Court Act as read together with rule 4(4) of the Supreme Court Rules- whether the powers donated to a single judge by section 24(2) of the Supreme Court Act and rule 4(4) of the Supreme Court Rules was to be solely exercised by a single judge-Supreme Court Act, section 24(2); Supreme Court Rules, rules 4(4)
Civil Practice and Procedure-reviews- applications for review to Supreme Court-guiding principles for application for review of a decision of the Supreme Court-scope of the Supreme Court’s discretionary powers of review- Whether under circumstances, the Supreme Court could review its decision

Brief Facts:
The applicant sought to review a two judge bench decision of the Court which dismissed it’s plea for extension of time to file an appeal out of time. The applicant averred, among others, that the Court failed to consider the public interest element in the interpretation of article 181 of the Constitution and that the issue concerning removal of a governor from office was one of great public interest. The 1st respondent opposed the application arguing that the law under which the application was brought was limited to review of the decision of a single judge of the Court, hence, the Court had no jurisdiction to review a two judge bench decision.

Issues:

  1. Whether powers donated to a single judge by section 24(2) of the Supreme Court Act and Rule 4(4) of the Supreme Court Rules was to be solely exercised by a single judge.
  2. Whether the Supreme Court had jurisdiction to review a two judge bench decision as envisioned by rule 4(4) of the Supreme Court Rules, 2012.
  3. Whether Supreme Court, constituted as a five judge bench could interfere with the exercise of discretion by a two judge bench?
  4. Whether Supreme Court had the jurisdiction to review its own decisions, and if so, what was the scope of that jurisdiction?
  5. What were the guiding principles for application for review of a decision of the Supreme Court? Read More...

Relevant Provisions of the Law
Supreme Court Act, 2011;
Section 24;

(1) In any proceeding before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding.
(2) Any person dissatisfied with the decision of one judge in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of five judges.

Supreme Court Rules, 2012;
Rule 4;
(3) Without prejudice to the provisions of sub-rule (1) or sub-rule (2), a single Judge of the Court may hear applications and make orders with regard to-

(a) change of representation;
(b) admission of consent;
(c) consolidation of matters;
(d) dismissal of a matter for want of prosecution;
(e) correction of errors on the face of the record;
(f) withdrawal of documents;
(g) review of the decision of the Registrar;
(h) leave to file additional documents;
(i) admission of documents for filing in the Registry; or
(j) substitution of service.

(4) A party aggrieved by the decision of a single Judge of the Court may file an application for review of the decision to the Court.

Held:

  1. Rule 4(4) of the Supreme Court Rules, 2012 (the Rules) did not apply to the instant application since it was not filed under rule 4(3) of the Rules, which sub-rule provided for matters which could be determined by a single judge. Those matters listed, an application for extension of time was not one of matters reserved for a single judge. Further, the application was filed pursuant to sections 21(2) and 24(1) of the Supreme Court Act, 2011 (the Act) and rules 24 and 53 of the Rules. Hence it was not an application determined within the pretext of rule 4(3) and (4) of the Rules.
  2. Under rule 4(4) of the Rules, as regards the matters reserved for a single judge, it was not cast in stone that those matters would only be heard by a single judge. The words without prejudice to the provisions of sub-rule 1 or sub-rule (2), demonstrated that the mandate of a single judge would be varied or was subject to what the Chief Justice or the Deputy Chief Justice could direct.
  3. One of the functions of the Chief Justice, which would be delegated to the Deputy Chief Justice under rule 4(1) of the Rules was constituting a bench to hear and determine any matter filed before the Court.Hence the matters listed under rule 4(3) of the Rules as being reserved for a single judge of the Court, would legitimately be heard and determined by any other bench as constituted by the Chief Justice or the Deputy Chief Justice.
  4. The two judge bench had the requisite jurisdiction to hear the matter, being an application for extension of time. Such an application, being a preliminary motion which sought the exercise of the Court’s discretion was well reserved for determination by a limited bench of the Court.
  5. The power(s) bestowed to a single judge of the Court by the Act and the Rules would be ably exercised by a collegial bench of more than one judge. The two judges had the jurisdiction competence to hear and determine it. Having determined the application pursuant to Rule 24(1) of the Rules, it was well in order that an aggrieved person had a right of review under sub-rule 24(2). A decision made by a limited bench of the Court under section 24(1) of the Act was made in exercise of discretion. It followed that a person aggrieved by the exercise of discretion by a court would file an application seeking for its review and setting aside.
  6. The two judges exercised their discretion in making their decision. The Court, constituted as a five judge bench could interfere with the exercise of discretion by a two judge bench. The Court had the power to rise above a decision of one or a limited bench, where compelling reasons were given that the decision given was erroneous. However, as such a review would entail an interference with the exercise of a judge’s discretion, it was guided by stringent legal principles.
  7. A Court of Appeal could not interfere with the exercise of the discretion of a judge unless it was satisfied that the judge in exercising his discretion had misdirected himself in some matter and as a result had arrived at a wrong decision, or unless it was manifest from the case as a whole that the judge had been clearly wrong in the exercise of his discretion and that as a result there had been mis-justice.
  8. An application for review of a decision of a single or limited bench of the Court by a bench of five or more, was not as a matter of course to be undertaken in a casual way. The provisions in the Act and the Rules allowing review of such a decision before a bench of five or more were not part of the normal appellate jurisdiction mandates of the Court so that any decision made by a limited bench of the Court would automatically be reviewed by a bench of five judges or more. That would be tantamount to abuse of court. The review window was to be exercised sparing and only deserving cases were to be allowed.
  9. If caution was not taken, then in the ultimate, the abuse of section 24(2) of the Act and Rule 4(4) of the Rules by filing of frivolous applications seeking review would defeat the whole essence and spirit of the legislation and the jurisprudence that procedural matters be handled by a limited bench. While those provisions were meant to speed up access to justice, their abuse would in turn inhibit access to justice by allowing all and sundry review applications to clog the system and take up judicial time.
  10. The review window so envisaged was not meant to grant an applicant a second bite at the cherry. It was not an opportunity for an applicant to re-litigate his/her case. At the core of an application for review was the Court’s exercise of discretion. It was the Court or judge’s decision that was impugned and not the substantive application being re-argued. Hence an applicant was under a legal burden to lay a basis, to the satisfactory of the Court, that in exercise of its discretion, the limited bench acted whimsically or misdirected itself in reaching the decision it made.
  11. The guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as:-
    1. a review of exercise of discretion was not as a matter of course to be undertaken in all decisions taken by a limited bench of the Court;
    2. review of exercise of discretion was not a right; but an equitable remedy which called for a basis to be laid by the applicant to the satisfaction of the Court;
    3. an application for review of exercise of discretion was not an appeal or a chance for the applicant to re-argue his/her application;
    4. in an application for review of exercise of discretion, the applicant had to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically;
    5. during a review application, in focus was the decision of the Court and not the merit of the substantive motion subject of the decision under review; and
    6. the applicant had to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise of discretion and:
    7. as a result a wrong decision was arrived at; or
    8. it was manifest from the decision as a whole that the judge had been clearly wrong and as a result, there had been an apparent injustice.
    The applicant had failed to meet the laid down threshold. It had made no attempt at showing how the judges abused their discretion. The application, while clothed and titled review, was a re-litigation of the application for extension of time. Where the applicant impugned the judges’ conduct, it emerged that it was a clear case of appeal rather than review.
  12. Article 159(2)(d) of the Constitution was not applicable in the instant case. Article 159(2) (d) was not a panacea for all procedural shortfalls. All that the courts were obliged to do, was to be guided by the principle that justice ought to be administered without undue regard to technicalities. It was applicable on a case-by-case basis.

Application dismissed with costs to the 1st respondent.

ELECTORAL LAW The effect of failure to produce form 35B in an election petition challenging the results of an election of a Member of National Assembly.

Mawathe Julius Musili v Independent Electoral & Boundaries Commission & another [2018] eKLR
Petition 16 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P; J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ)
December 21, 2018.
Reported by Kakai Toili

Download the Decision

Electoral Law-election petitions-statutory forms-form 35B-failure to produce form 35B in an election petition-effect of-what was the effect of failure to produce form 35B, which contained the results declared in each polling station in a constituency, in an election petition challenging the results of an election of a Member of National Assembly
Electoral Law-appeals- record of appeal-supplementary record of appeal-circumstances in which a supplementary record of appeal was prepared-time for filing supplementary record of appeal- what were the circumstances in which a supplementary record could be prepared and when was it required to be filed- Court of Appeal (Election Petition) Rules, 2017,rule 8(5)
Electoral Law-elections-election officials-returning officers-mandate of returning officers- what was the mandate of a returning officer at the constituency level during elections for the position of Member of National Assembly-Constitution of Kenya, 2010, article 81(e); Elections (General) Regulations, 2012, regulation 83
Evidence Law – witnesses – witnesses in election petitions- witnesses who made depositions on a crucial subject-failure to call witnesses who made depositions on a crucial subject-effect of-whether a court was entitled to draw adverse inference from the absence of a witness who made depositions on a crucial subject of testimony in an election petition- Elections (Parliamentary and County Elections) Petition Rules, 2013, rule 15 (3)
Electoral Law–election petitions–burden and standard of proof-who bore the burden of proof in election petitions and when did that burden shift

Brief facts:
The appellant was declared duly-elected as the Member of the National Assembly for Embakasi South constituency following the August 8, 2017 general elections. Aggrieved by the said declaration, the 2nd respondent filed a petition at the High Court, contesting the election of the appellant. The High Court dismissed the petition and confirmed the appellant as the Member of the National Assembly for Embakasi South Constituency. Aggrieved by that decision, the 2nd respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal and directed the 1st respondent to conduct a fresh election for the position of Member of the National Assembly for Embakasi South Constituency in conformity with the Constitution and the Elections Act. Aggrieved by the Court of Appeal’s decision the appellant filed the instant appeal.

Issues:

  1. What was the effect of failure to produce form 35B, which contained the results declared in each polling station in a constituency, in an election petition challenging the results of an election of a Member of National Assembly?
  2. What were the circumstances in which a supplementary record could be prepared and when was it required to be filed?
  3. What was the mandate of a returning officer at the constituency level during elections for the position of Member of National Assembly?
  4. Whether a court was entitled to draw adverse inference from the absence of a witness who made depositions on a crucial subject of testimony in an election petition.
  5. Who bore the evidential burden of proof in an election petition and when did that burden shift? Read More..

Relevant Provisions of the Law
Evidence Act
Section 107
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”; and
(3) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Elections (General) Regulations, 2012
Regulation 5 (1A)
The functions of a presiding officer shall be—

(a) presiding over elections at an assigned polling station;
(b) tallying, counting and announcement of results at the Polling station;
(c) submitting polling station results to the Constituency returning officer; and
(d) electronically transmitting presidential results to the constituency, counties and national tallying centers.

Held:

  1. The reasoning and the conclusions of both the High Court and the Court of Appeal took a trajectory of constitutional interpretation or application. The instant case raised cardinal issues requiring the interpretation of article 87 (1) of the Constitution, in light of section 85A of the Elections Act which limited the Court of Appeal’s jurisdiction to matters of law only. Further, it fell to the Court to determine whether the Court of Appeal misconstrued the terms of articles 81 and 86 of the Constitution. In that regard the Court had jurisdiction.
  2. The impugned supplementary record of appeal was filed on May 2, 2018. The High Court judgment was delivered on March 2, 2018. In compliance with section 85A of the Elections Act and rule 9 (1) of the Court of Appeal (Election Petition) Rules 2017(the Rules), the appellant was required to file a memorandum and record of appeal within 30 days of the date of judgment of the High Court.
  3. A supplementary record of appeal was usually prepared when a party was of the view that the record of appeal was defective or insufficient. The Rules did not expressly provide for the time-frame for filing a supplementary record of appeal. The supplementary record of appeal was, however, mentioned in rule 8(5), in those circumstances in which the High Court did not avail relevant documents. In such a case, the appellant was allowed to file the record of appeal, followed within seven days by a supplementary record of appeal.
  4. The supplementary record of appeal, just like the record of appeal, was to be filed within 30 days of the date of judgment of the High Court. The supplementary record of appeal was filed out of time and without leave of the Court. The contents of that record were copies of polling station diaries which were produced by the appellant before the High Court and were relied upon by the parties and their witnesses during the hearing of the election petition.
  5. The court hearing the appeal was an ideal forum for ascertaining whether the supplementary records introduced new evidence; whether they raised legal issues; and whether they were relevant to the matters in controversy in the appeal. The Court of Appeal determined that, as the first nine volumes had been filed in time, the belated filing of the rest of the documents contained in the supplementary record appeal did not affect its jurisdiction.
  6. The Court of Appeal Rules, 2010, in rule 92 (3) allowed an appellant at any stage to lodge in the appropriate registry four copies of a supplementary record of appeal, and as soon as practicable thereafter, to serve copies of it upon every respondent who had complied with the requirements of rule 79. Rule 79 obligated respondents to furnish an address for service. However, in the Rules there was no express statutory timeline for filing a supplementary record of appeal.
  7. In the circumstances, the Court of Appeal did not contravene article 163 (7) of the Constitution. The Court of Appeal did not err by not dismissing the supplementary record of appeal.
  8. A perusal of the record revealed that all 18 grounds in the memorandum of appeal save for one, raised issues of law and fact, in compromise to the jurisdictional bar set in section 85A of the Elections Act. Section 85A stipulated that appeals to the Court of Appeal should be on matters of law only. The question of law dimension of the appeal mandate was not compromised even though the memorandum of appeal avowed that the respondent erred in law and fact.
  9. The Court was guided in its consideration of the Court of Appeal decision through a set of questions:
    1. was the court cautious enough to limit itself to issues regarding the interpretation and application of the law by the High Court, in relation to the petition at the High Court?
    2. did the Court of Appeal limit itself to evaluating the conclusions of the High Court on the basis of the evidence on record; and
    3. whether such conclusions were not supported by the evidence; or
    4. whether the conclusions were not so perverse that no reasonable tribunal could arrive at the same?
  10. The Court of Appeal did not descend into the arena of examining the probative value of the evidence presented in the petition, or engage in the calibration of evidence, with a view to determining the veracity or otherwise of evidence tendered by witnesses.
  11. Only upon a proper statement of claim, would the Court of Appeal be expected to respond most effectively. Short of such propriety in the conduct of litigation, all the Court of Appeal could do was employ its best judgment and discretion, in the context of the governing law on jurisdiction. That principle was quite clearly reflected in the position taken by the Court of Appeal.
  12. The original form 35B was not availed to the High Court, despite its direction to the 1st respondent to produce the same, for scrutiny. The High Court could not in the circumstances, verify the entries. The returning officer was an integral factor in the verification process. Under regulation 83 of the Elections (General) Regulations, 2012,(the Regulations) the returning officer at the constituency level was mandated to collate and declare the results from each polling station, in the presence of candidates, agents and observers and then to complete the relevant form 35B. The tallying and collation of ballots was required to be administered in an impartial, neutral, efficient, accurate and accountable manner, as prescribed by article 81 (e) of the Constitution.
  13. Form 35B bore the formal declaration of election results. In the instant case, it was impossible to state with certainty and clarity what the contents of the original form 35B showed and whether the certified copy was a true copy of the original. As a consequence, it became impossible to conclude that the appellant was the declared winner of the election. The declaration form was missing and the ostensible result was both suspect and uncertain.
  14. The absence of the original form 35B and the presence of the divergent results negated the constitutionally prescribed principles of verifiability, accuracy, accountability and transparency. In the circumstances, the election process was unverifiable. The declared results were indeed unverifiable.
  15. An election represents the will of the people. Whenever the paper trail enabled the Court to understand the intention of the voters, then the Court should not interfere. In the instant case, however, the primary declaration form 35B was unavailable and moreover, the conflicting totals negated the constitutional requirements of verifiability, accuracy, exactness and fairness.
  16. The 1st respondent was not bothered to produce the original form 35B despite being; the custodian of the document and the constitutionally-mandated body, pursuant to article 86 (c) of the Constitution, to ensure that the results from the polling stations were openly and accurately collated and promptly announced by the returning officer. The respondent, moreover, disobeyed the High Court’s order to produce a vital document. Besides, the 1st respondent, after intimating that the returning officer would adduce evidence in Court, on which premise the 2nd respondent prosecuted his case, left that assurance unfulfilled.
  17. The 1st respondent did not ensure that the results from the polling stations were openly and accurately collated and promptly announced as prescribed in articles 86(c) and 81 (e) of the Constitution and regulation 83 of the Regulations. The results declared were unsustainable as they were unsupported by any evidence.
  18. Rule 15 (3) of the Elections (Parliamentary and County Elections) Petition Rules, 2013 provided that a respondent’s replying affidavit formed part of the record of the trial, and a deponent could be cross-examined by the petitioners and re-examined by the respondent. In view of the weighty factors moving a deponent to make averments on oath, a court was entitled to draw adverse inference from the absence of a witness who had made depositions on a crucial subject of testimony. For the court, in its quest for justice, expected that the anticipated testimony would shed light on the subject in question.
  19. The High court’s proven mechanism of fact-ascertainment, in the well-established common-law tradition, was the cross-examination of witnesses. It was through that device that the High Court could gauge the truth or otherwise of an allegation which could have appeared in depositions by way of affidavit. Consequently, the failure of a party to avail himself or herself, to affirm the content of depositions in affidavit, was destined to minimize the probative value of the affidavit evidence.
  20. When a party failed to produce the witness, the court could infer that the testimony would have been unfavourable to the party calling the witness. The absence of the returning officer inevitably weakened the 1st respondent’s response and evidence. A court could look the other way if the reason given for the absence of the returning officer was satisfactory and credible. Such, however, was not the case in the instant matter. The replying affidavit was inadmissible
  21. In electoral matters, the legal burden rested on the appellant, who was under obligation to discharge the initial burden of proof, before the respondents were invited to bear the evidential burden. The 2nd respondent placed sufficient, credible and compelling evidence before the High Court, to prove that there existed different sets of results, such that it was not possible to know who won the election. The evidential burden therefore shifted to the 1st respondent, to show that that was not so.
  22. The evidence relied on by the 1st respondent was its replying affidavit sworn by the returning officer. That evidence was of no probative value. It could not possibly be concluded that the 1st respondent discharged its evidential burden. The appellant’s application for the striking out of the petition, for non-joinder of the returning officer as respondent was heard, and a ruling delivered. No appeal was lodged against that decision and therefore that issue was definitively settled by judicial decision. The issue of joinder of the returning officer was res judicata.
  23. The Court of Appeal duly limited itself to evaluating the conclusions of the High Court, on the basis of the evidence on the record and ascertained that the conclusions were inapposite, by the standards of a reasonable tribunal. The Court of Appeal did not delve into factual issues with regard to the conduct of the presiding officer. The fact of the presiding officer being an official of Wiper party, raised the apprehension of bias. That was particularly so because of the key roles ascribed to election presiding officers. Article 86(b) of the Constitution required the 1st respondent to ensure that the votes cast were counted, tabulated and the results announced promptly by the presiding officer at each polling station. The election in question was not conducted substantially in accordance with the constitutional charter, and the organic statute law incorporated within its ambit.

Appeal dismissed

  1. The petition of appeal dated July 19, 2018 disallowed.
  2. The Judgment of the Court of Appeal in Election Petition of Appeal No. 22 of 2018 upheld.
  3. The Certificate issued by the High Court pursuant to section 86 of the Elections Act set aside and substituted with a certificate that the appellant was not validly declared as having been elected as Member of the National Assembly for Embakasi South Constituency during the elections held on the August 8, 2017.
  4. The 1st respondent directed to organize and conduct a fresh election for the position of Member of the National Assembly for Embakasi South Constituency, in conformity with the Constitution and the Elections Act.
  5. Parties to bear their own respective costs in the appeal.
JURISDICTION Supreme Court orders for fresh elections for Member of the National Assembly, Wajir West Constituency.

Abdirahman Ibrahim Mohamud v Mohamed Ahmed Kolosh & 2 others
Petition 26 of 2018
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
January 18, 2019
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-jurisdiction over matters of constitutional interpretation and application- degree of specificity required in the pleadings-claim that an issue that arose during the conduct of scrutiny was not specifically pleaded for in an election petition-whether the Supreme Court would exercise jurisdiction over such an issue-Constitution of Kenya 2010, article 163 (4)(a).
Electoral Law-scrutiny of votes-striking out of votes during scrutiny-circumstances under which an election court could strike out votes during the conduct of scrutiny-whether votes could be disregarded by an election court where the votes cast exceeded the voter turnout and there were indications that some votes were unlawfully stuffed into ballot boxes-Elections Act, No 24 of 2011, section 82(2).
Electoral Law-conduct of an election-electoral irregularities and malpractices-claim that an election was not conducted in accordance with the electoral laws and the Constitution-whether the result of the election would be nullified-Constitution of Kenya 2010, articles 81, 82 & 86.

Brief facts:
In the general elections held on August 8, 2017, the 1st respondent was declared the elected Member of the National Assembly, Wajir West Constituency. The appellant came in second in that election. The appellant challenged the outcome of the election at the High Court where he alleged that it was marred by various irregularities and illegalities. Upon the making of an application by the appellant, the High Court allowed for a scrutiny of votes in 4 polling stations-Qara, Korich, Arbajaha and Mathow Primary School. As a consequence of the scrutiny, the results for Qara Polling Station were disregarded. The High Court delivered its judgment on March 2, 2018 and found that the elections were not conducted in accordance with the law and nullified the results.
The appellant lodged an appeal at the Court of Appeal where he asserted that the High Court should have declared him the winner of the election. He explained that after disregarding the results at Qara Polling Station, the final tally showed that he had garnered more votes than the 1st respondent. The 1st respondent cross-appealed and stated that the High Court went beyond its jurisdiction and made determinations on matters that did not arise from the pleadings. He stated that the issues relating to Qara Polling Station were not pleaded in the petition and only arose during scrutiny. The appeal was dismissed and the cross-appeal was allowed. The judgment and decree of the High Court were set aside and substituted with an order dismissing the High Court petition. In response, the appellant filed an appeal at the Supreme Court.

Issues:

  1. Whether the Supreme Court would exercise jurisdiction over an election petition matter that was said to raise questions of constitutional interpretation and application.
  2. Whether the High Court erroneously considered matters that arose out of a scrutiny exercise but which were not specifically pleaded in the petition.
  3. What circumstances would allow the High Court to disregard or strike out votes during the conduct of scrutiny?
  4. Whether the election of August 8, 2017 for Member of the National Assembly, Wajir West Constituency, was conducted in accordance with the law and the Constitution. Read More..

Held:

  1. The provision that only a cause entailing interpretation or application of the Constitution qualified for a hearing and determination at the Supreme Court, was not a technically precise one but a recipe for an objective, forthright and pragmatic construction. Such a construction required a full appreciation of factors of merit and principle on the part of the Court. The Court had to be guided by evaluations of the fundamental purpose and overall intent in the constitutional document, rather than a litigant's yearning for an appellate forum.
  2. The appeal raised issues of interpretation and application of certain provisions of the Constitution and those provisions were articles 38, 81 and 86. Therefore, the Supreme Court had jurisdiction to entertain the appeal.
  3. The Court of Appeal found that the High Court's decision to disregard votes cast as Qara Poling Station was unrelated to the facts pleaded in the petition. The result of a scrutiny exercise was that the votes cast for Qara exceeded voter turn-out at the station and that the ballot box contained votes that were inserted unlawfully. From that scenario, the issue arising for determination was on the degree of specificity that had to accompany a petitioner's pleading that the conduct of an election failed to comply with article 86(a) of the Constitution.
  4. The High Court allowed scrutiny and recount in four polling stations including Qara and Korich. The inevitable conclusion was that the appellant met the criteria for the grant of scrutiny and recount. The question that remained was whether the petition laid a sufficient basis for the High Court to consider and make findings related to irregularities or anomalies found during scrutiny.
  5. In the original petition at the High Court, the appellant pleaded that the election was not free and fair, or verifiable, voting was compromised by violence and intimidation, voting, counting and declaration of results were not conducted in an impartial, neutral, efficient, accurate and accountable manner, and the election was not conducted substantially in accordance with the law. The application for scrutiny and recount of votes was within the profile of the pleadings as filed and the High Court acted judiciously in relation to the findings on scrutiny.
  6. Section 82 (2) of the Elections Act specified conditions under which the High Court could strike out certain votes after the conduct of scrutiny. The irregularities that occurred at Qara Polling Station were not within the category provided for in section 82(2) of the Elections Act. Therefore, the High Court lacked the jurisdiction to disregard the votes recorded at Qara Polling Station.
  7. The scrutiny process did not identify a certain contestant as the winner of the election; it only created uncertainty and blurred the outcome of the election. The doubt relating the correct winner had various indicators. The total number of votes cast at Qara exceeded the voter turnout. The votes cast could not be attributed to the candidates individually. Considering what the winning margin was in the 74 polling stations, the vote at Qara Polling Station had the potential to shift victory to either the appellant or he 1st respondent. The irregularities at Qara Polling Station, therefore, affected the entire election process.
  8. The election for the seat of Member of Parliament for Wajir West Constituency was not conducted substantially in accordance with the terms of the Constitution, and more specifically, the terms of articles 81, 82 and 86 of the Constitution.

Orders:-

  1. The judgment and decree of the Appellate Court, dated July 27, 2018 in Election Petition No. 15 of 2018, was set aside.
  2. The declaration made by the 2nd and 3rd respondents on August 10, 2017, that 1st respondent was the winner of the Wajir West National Assembly election held on August 8, 2017, was declared invalid.
  3. The 2nd and 3rd respondents were directed to conduct a fresh election for the seat of Member of Parliament for Wajir West Constituency, while ensuring due compliance with the governing terms of the Constitution.
  4. The costs of the appellant at the High Court, the Court of Appeal and the Supreme Court had to be borne by the 2nd and 3rd respondents —the details thereof were to be the subject of taxation by the Deputy Registrar.
  5. The 1st respondent had to bear his own costs at the High Court, the Court of Appeal and the Supreme Court.

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