Maingi & 4 others v Nthimbiri Farmers Co-operative Society (Petition 9 of 2016) [2016] KESC 17 (KLR) (26 July 2016) (Ruling)
Godfrey Kinuu Maingi & 4 others v Nthimbiri Farmers Co-opertative Society [2016] eKLR
Neutral citation:
[2016] KESC 17 (KLR)
Republic of Kenya
Petition 9 of 2016
JB Ojwang, SCJ
July 26, 2016
Between
Godfrey Kinuu Maingi
1st Applicant
Justus Murungi
2nd Applicant
Joseph Nturibi Mwithimbu
3rd Applicant
Harun Mburugu
4th Applicant
Andrew Gikundi
5th Applicant
and
Nthimbiri Farmers Co-operative Society
Respondent
Ruling
A. Background
1.On 8th June, 2016, the appellants moved to bring up an appeal before the Supreme Court, against the respondent. The appellants’ case was that the Court of Appeal, on 6th May, 2016 had denied them a hearing; and they were contesting that decision by the Appellate Court.
2.The Supreme Court Deputy Registrar, however, declined to allow the appeal- pleadings before this Court, on the basis that no substantive appeal-cause had been heard and determined by the Court of Appeal; and so there was no proper appeal case to be lodged in the Supreme Court. The essence of such a course by the Deputy Registrar was, in effect, that the matter sought to be laid before the Supreme Court was only a collateral cause – and was inadmissible as an appeal.
3.It is precisely the foregoing question, that brought the appellants before the single-Judge Bench of the Supreme Court, by virtue of Section 11 of the Supreme Court Act, 2011 (Act No. 7 of 2011), and Rule 4A (2) and (3) of the Supreme Court (Amendment) Rules, 2016.
B. Is This A Proper Appeal?
4.The Deputy Registrar declined to admit the appeal pleadings on specified grounds, as follows:
C. The Question before the Single-judge
5.It is the appellants’ contention that the Deputy Registrar’s direction was made in error: and so it should be reversed; and an appeal before the full Bench of the Supreme Court entertained.
6.The appellants contended as follows:(i)the Deputy Registrar had misunderstood the appeal pleadings being brought before the Supreme Court;(ii)the said pleadings are of substantive content, and come under the head of “Petition”;(iii)the appellants had a proper right of appeal against the High Court’s decision of 22nd May, 2015 – by virtue of Section 84(7) of the former [1969] Constitution (as amended), as read together with Rule 7 of Schedule Six of the Constitution of Kenya, 2010;(iv)it is contended in the appeal pleadings that Section 81 of the Co-operative Societies Act is ultra vires Section 84(7) of the 1969 Constitution, as well as Article 163(4) of the Constitution of Kenya, 2010.(v)the Court of Appeal’s decision denying the appellants a right of appeal, has the effect of depriving the appellants of two entitlements: right of appeal, and conservatory order;(vi)the appeal sought to be lodged in the Supreme Court, is brought against the Ruling and Order of the Appellate Court, of 6th May, 2016 denying the appellants the two entitlements indicated in (v) above;(vii)the appeal to be lodged in the Supreme Court is brought under Section 15(2) of the Supreme Court Act, 2011; Rules 30 and 32 of the Supreme Court Rules, 2011; and Article 163(4) (a) of the Constitution of Kenya, 2010 – and not Rule 5(2) of the Court of Appeal Rules;(viii)the appeal being brought before the Supreme Court rests on different foundations from this Court’s earlier decision, No. 16 of 2015, Teachers Service Commission v. Kenya National Union of Teachers and 3 Others – as in that case there was no substantive appeal or intended appeal; whereas in the instant matter there is an appeal, in the form of the Petition of the 7th June, 2016;(ix)the appeal herein raises serious issues for judicial determination.
7.It was the appellants’ prayer that the Deputy Registrar’s decision of 10th June, 2016 be set aside, and substituted with an Order admitting the appeal – pleadings before the Supreme Court.
D. Is there No Right of Appeal where the Appellate Court made No ‘substantive Decision’?
8.In Teachers Service Commission v. Kenya National Union of Teachers and 3 Others, Supreme Court Application No. 16 of 2015, this Court, in a matter bearing resemblances to this one, had thus observed (paras.34-36):
9.Learned counsel, Dr. Kamau Kuria submitted that the instant matter is unrelated to the context and particulars of the Teachers Service Commission case: as it is more concerned with the “supremacy of the Constitution,” as contemplated in Section 3(a) of the Supreme Court Act. Specifically, Dr. Kuria was concerned with Section 81(3) of the Co-operative Societies Act, which limits appeal to the High Court, in respect of decisions taken by a co-operative tribunal. He submitted that the said Section 81(3) of the Co-operative Societies Act had been adopted by both the High Court and the Court of Appeal without any reference to a party’s right of appeal, as provided for in Section 77(9) of the former Constitution, which coalesced into the current Constitution via the Sixth Schedule (on “transitional and consequential provisions”), Section 7(1) which provides that:
10.Learned counsel submitted that his clients had a legitimate point of appeal to the Supreme Court, by virtue of Article 163(4)(a) of the Constitution: they intended to urge that Section 81 of the Co-operative Societies Act is ultra vires both Section 84(7) of the former Constitution and Article 163 (4)(a) of the Constitution of Kenya, 2010.
11.Learned counsel urged that a matter of constitutional interpretation, in the terms of Article 163(4)(a) of the Constitution, arose from the particulars of the High Court determination rendered by Msagha, J on 14th December, 2015, in the following terms:
12.Similarly, the Court of Appeal, on 6th May, 2016, thus held (paras. 11, 12):
13.Dr. Kuria submitted that the question whether an appeal, on the facts of this matter, would lie from the High Court to the Court of Appeal, was one entailing constitutional interpretation; and it is in respect of this, that the appellants are coming before the Supreme Court, seeking to file the relevant papers, for a determination of the same. One of the sets of papers is a bundle of authorities, urging a certain course of constitutional interpretation.
14.Learned counsel relied on the apex Court decision in Sango Bay Estates Ltd v. Dresdner Bank AG [1971] E.A. 17, urging that there are in the instant matter, grounds of appeal which merit serious judicial consideration. He submitted that the appellants’ case falls within the mandate of the Supreme Court, as prescribed in Section 3 of the Supreme Court Act, namely:(i)to assert the supremacy of the Constitution;(ii)to provide authoritative and impartial interpretation of the Constitution;(iii)to develop jurisprudence;(iv)to enable important constitutional and other legal matters relating to the transition from the former Constitution to the present constitutional dispensation to be determined;(v)to improve access to justice.
15.In the Sango Bay case, the following passage came from Spry,V-P (pp.20-21):
16.On those principles, learned counsel urged that leave be granted in the instant matter, so that the appellants’ appeal may be properly lodged. He drew a distinction between the instant case, and the precedent in the Teachers Service Commission case: whereas in that case there was a pending appeal wherefrom a further appeal could follow, in the instant case, the Appellate Court has denied the right of appeal – with the effect that the High Court’s decision will stand as final.
17.Learned counsel invoked the guardianship role of the Supreme Court, in relation to the rights declared in the Constitution, as stated in Mary Wambui Munene v. Peter Gichuki Kingara & Two Others [2014] eKLR. He cited a comparative case law passage set out in the Wambui decision (para.83):
18.Counsel submitted that both the High Court and the Court of Appeal had relegated the standing of constitutional provisions, to the ordinary status of the Co-operative Societies Act. He sought a reconsideration of such a position by the Supreme Court, by virtue of the terms of Article 163(4)(a) of the Constitution.
19.Dr. Kuria urged that serious grounds of appeal had been raised, centred on constitutional interpretation which devolves to the Supreme Court; and consequently, that his client’s appeal papers should be received by the Court.
E. Conclusion
20.It emerges that the substantive decision occasioning grievance to the appellants, was taken at the Co-operative Societies Tribunal, and was subsequently sustained by the High Court. The appellant’s attempt to get a hearing at the Appellate Court was disallowed; the effect being that no substantive question of rights, was determined by the Court of Appeal. The appellants’ grievance is that their right of appeal, requiring the interpretation of the Constitution and its transitional provisions, has been denied by the Court of Appeal. The claimed denial of their constitutional safeguards, is the question which the appellants are asking the Supreme Court to pronounce itself upon, by virtue of this Court’s jurisdiction under Article 163(4)(a).
21.] Is it proper to hold that no substantive appeal case was heard and determined before the Appellate Court, and therefore no substantive appeal is now being brought before this Court? If there truly is a constitutional grievance, on a matter affecting the rights of a party: must it be held in abeyance until the Appellate Court has determined a substantive cause – before such party would have access to this Court as ultimate appellate Court?
22.That cannot be so, depending on the merits of the question, and its objective involvement of issues of constitutional interpretation. At this stage, it is not possible to rule out the perception that the appellants are raising serious issues of constitutional interpretation and application. Prima facie, therefore, the Supreme Court should in principle, give a hearing.
23.I will, therefore, order as follows:(a)The appellants’ documents of pleadings on appeal shall be duly received by the Court.(b)The appellants shall duly serve the said documents of pleadings upon the respondent, within 14 days of the date hereof.(c)The Deputy Registrar shall thereafter, conduct mentions as necessary, for the purpose of assigning a hearing date.
DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JULY, 2016..............................J.B. OJWANGJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalRegistrar Supreme Court of Kenya