Asanyo & 3 others v Attorney-General (Petition 7 of 2019) [2020] KESC 62 (KLR) (10 January 2020) (Judgment)
Geoffrey M. Asanyo & 3 others v Attorney-General [2020] eKLR
Neutral citation:
[2020] KESC 62 (KLR)
Republic of Kenya
Petition 7 of 2019
MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ
January 10, 2020
Between
Geoffrey M Asanyo
1st Petitioner
Makana Motors
2nd Petitioner
Multiple Sales Promoters Ltd
3rd Petitioner
Wakam Enterprises Company Ltd
4th Petitioner
and
The Attorney-General
Respondent
(Being an appeal from Order of the Court of Appeal at Nairobi (Waki, Musinga and Gatembu, JJA) dated 22 January 2019, in Nairobi Civil Appeal No. 260 of 2014)
The extent of the court’s duties when adopting a consent order filed by the parties.
Jurisdiction – jurisdiction of the Supreme Court - appellate jurisdiction - matters of constitutional interpretation and application - exceptions to the requirement that the appeal would have to relate to matters of constitutional interpretation and application that were raised at the other superior court, including the High Court, courts of equal status as the High Court and the Court of Appeal - whether the Supreme Court could exercise jurisdiction in relation to an issue that arose at the Court of Appeal but had not been raised at the High Court - Constitution of Kenya articles 163(4)(a) and (7)Civil Practice and Procedure - orders - consent order - adoption of a consent order by a Court - where a Court found that the issues relating to the adoption were contentious and ordered parties to make a formal application while giving a right of reply to the opposing party - whether such an order was within what a Court could require from the parties when adopting a consent order.Civil Practice and Procedure - doctrine of functus officio - applicability of the doctrine of functus officio – stage at which a court would become functus officio - where the Supreme Court gave directions for the Court of Appeal to adopt a consent filed by the parties - extent to which the Court of Appeal could exercise jurisdiction where all it was required to do was to adopt a consent order - whether the Court of Appeal rendered itself functus officio by undertaking procedural steps to adopt a consent order previously directed by the Supreme Court - Constitution of Kenya articles 163(7)
Brief facts
The petitioners sought to challenge directions issued by the Court of Appeal. The directions required the petitioners to file a formal application seeking compliance with a Supreme Court order and it gave the respondents a right of reply. They contended that contrary to the doctrine of functus officio, the directions amounted to a re-opening of litigation in a concluded matter. They added that the directions also infringed on article 163(7) of the Constitution which required all other courts to comply with the Supreme Court's decisions.The background to the matter was a consent dated September 18, 2015 which the Court of Appeal declined to adopt and instead delivered judgment which disposed of the substantial matter. On appeal, the Supreme Court issued various orders including orders for the setting aside of the judgment and orders for the Court of Appeal to adopt the consent filed by the parties.When the matter was mentioned at the Court of Appeal, the Attorney General opposed the adoption of the consent. He stated that the consent was recorded during the tenure of his predecessor - the retired Attorney General - and the position had changed. During a second mention of the matter, the Court of Appeal made a ruling. It ruled that the matter was contentious and the petitioners should approach the court by way of a formal application with the Attorney General having a right of reply. The petitioners lodged the instant appeal against the ruling.
Issues
- What was the scope of the doctrine of precedent and functus officio in Kenya?
- Whether the Court of Appeal rendered itself functus officio by undertaking procedural steps to adopt a consent order previously directed by the Supreme Court
- Whether the Supreme Court could exercise jurisdiction in relation to an issue that arose at the Court of Appeal but not at the High Court (trial court).
- What did the adoption of a consent order require a court to do?
- At what point would a court become functus officio?
Held
- The jurisdiction of the Supreme Court was limited by the Constitution and relevant legislation. Occasionally, there were situations wherein the court's jurisdiction was not so sharply defined and the court had to ascertain, on a case-by-case basis, whether jurisdiction could properly be assumed.
- The appeal did not stem from subject matter that was before the High Court. It was based on the petitioner's assertion that the Court of Appeal had conducted itself in a manner that did not give due regard to the Supreme Court's determination within the terms of article 163(7) of the Constitution and that the Court of Appeal had violated the doctrine of functus officio. The grievance arose at the Court of Appeal and in such a context the Supreme Court would adopt a pragmatic approach in relation to the issue of jurisdiction.
- Article 163(7) of the Constitution established the principle upon which rested the authority of judicial decisions as precedent in subsequent litigation, guiding judges who were bound to follow the same. Courts and tribunals exercising judicial authority were duty-bound to follow the principle.
- The Supreme Court had inherent power to do justice. The court should only depart from the principle that in order for it to exercise jurisdiction, issues of constitutional interpretation and application had to rise through the superior courts to the Supreme Court, in the clearest of cases.
- The issues raised by the petitioners would ordinarily involve questions on the application and interpretation of the Constitution that warranted entertainment by the court.
- Article 163(7) of the Constitution provided that all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. It embodied the common law doctrine of stare decisis and required the precedents set by the Supreme Court to bind all other Courts in the land. The doctrine of stare decisis was fundamental to the administration of justice in that it required the authority of decisions to be scrupulously respected by all courts upon which they were binding. It created uniformity and consistency in the law as pronounced.
- There was need for fidelity to the principle of stare decisis as it ensured that judges reached substantially the same legal conclusions that were reached in previous cases when considering similar legal issues. That created certainty, clarity, predictability and legitimacy.
- The doctrine of functus officio meant that the holder of adjudicative or decision- making powers could exercise them only once in relation to a particular matter. Once a decision was made it was final and conclusive and the decision-maker could not vary it.
- The decision of the Supreme Court of November 20, 2018 was to the effect that the judgment of the Court of Appeal was a nullity as one of the judges in the relevant bench failed to render a determination. That was still the position of the Supreme Court. The Supreme Court on November 20, 2018, also gave orders directing to the Court of Appeal to adopt the consent of the parties.
- Adoption of a consent order was a process wherein the court would discharge the duty of evaluating the clarity of the consent and giving directions on the manner of adoption. That would circumvent the risk of an unlawful order and validate the mode of adoption and compliance.
- A consent by parties would become an order of the court only when it had been formally adopted by the court. It was only at that stage that the Court would become functus officio. As the Court of Appeal had not formally adopted the consent, it was not functus officio. In directing the parties to make a formal application, the Court of Appeal was validly engaged in a judicial process attendant upon the consent adoption process which was in line with the Supreme Court's orders. Therefore, the Court of Appeal, in giving the directions, was engaged in the lawful exercise of its jurisdiction.
- The petition before the court was premature and was not a proper basis for invoking the jurisdiction of the Court.
Petition dismissed.
Orders
- The petition of appeal dated February 13, 2019, was disallowed.
- Costs borne by the parties respectively.
Citations
Cases Kenya
- Asanyo & 3 others v Attorney General Petition 21 of 2015; [2018] KESC 15 (KLR); [2018] eKLR - (Explained)
- Erad Suppliers & General Contractors Limited v National Cereals & Produce Board Petition 5 of 2012; [2012] eKLR - (Explained)
- Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Application 5 of 2014; [2014] eKLR - (Explained)
- Joho & another v Shahbal & 2 others Petition 10 of 2013; [2014] KESC 34 (KLR); [2014] eKLR - (Explained)
- Kidero & 4 others v Waititu & 4 others Petition 18 & 20 of 2014 (Consolidated); [2014] KESC 11 (KLR); [2014] eKLR - (Explained)
- Macharia & another v Kenya Commercial Bank Limited & 2 others Application 2 of 2011; [2012] eKLR; [2012] 3 KLR 199 - (Explained)
- Nduttu & 6000 others v Kenya Breweries Ltd & another Petition 3 of 2012; [2012] eKLR; [2012] 2 KLR 804 - (Explained)
- Ngoge v Kaparo & 5 others Petition 2 of 2012) [2012] KESC 7 (KLR; [2012] eKLR - (Explained)
- Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others Petition 5, 3 & 4 of 2013 (Consolidated); [2013] KESC 6 (KLR); [2013] eKLR - (Explained)
- Rai & 3 others v Rai & 4 others Petition 4 of 2012; [2013] KESC 20 (KLR); [2013] eKLR - (Explained)
- Canada v Craig [2012] 2 SCR 489; 2012 SCC 43 of 1 August 2012 - (Explained)
- David Polowin Real Estate Ltd v Dominion of Canada General Insurance Co (2008), 244 OAC 151 (CA);2008 ONCA 703 - (Explained)
- Gunn v Canada 2006 FCA 281, [2007] 3 FCR 57 - (Explained)
- Moldowan v Queen [1978] 1 SCR 480 - (Explained)
- Constitution of Kenya - (Interpreted) articles 163(4)(a); 163(7)
- Government Contracts Act (cap 25) - (Interpreted) section 2
- Supreme Court Act (cap 9B) - (Interpreted)
Judgment
A. Introduction
1.The Petition of appeal before the Court is filed under article 163(4)(a) and (7) of the Constitution, contesting the decision of the Court of Appeal dated 22 January 2019. Principally, the petitioners contest the Court of Appeal’s directions, which required them to file a formal application seeking compliance with a Supreme Court Order, with the respondents being given a right of reply. They urge that the Court of Appeal’s directions infringe on the doctrine of functus officio, in that they amount to a re-opening of litigation on a matter that has been heard with finality. The petitioners contend, further, that the Court of Appeal’s directions contravene article 163(7) of the Constitution, which requires all other Courts to comply with the decisions of the Supreme Court.
B. Background
2.This is not the first time the matter is being brought before this court. The Petitioners herein had previously filed in this court Petition No 21 of 2015 - challenging two decisions of the Court of Appeal, both arising from Civil Appeal No 260 of 2014. On the one hand, the petitioners faulted the Appellate Court for declining to adopt a consent Order dated 18 September 2015. On the other hand, they sought to set aside the Judgment of that court, which had disposed of the substantive matter in disregard of the consent Order. Upon considering the matter, on 20 November 2018, this court held that the Court of Appeal should have adopted the consent of the parties. The court also declared the Judgement of the Court of Appeal to be a nullity, and void ab initio, since one of the Judges failed to deliver his reasoning, yet such non-delivery did not fall within the regular legal exceptions.
3.Ultimately, the court gave the following Order:
4.Pursuant to the foregoing Order, on 21 November 2018, the petitioners wrote a letter to the President of the Court of Appeal, requesting him to constitute a three-Judge Bench, for purposes of adoption of the consent Order filed by the parties before that Court on 18 September 2015.
5.The matter was first mentioned before the Court of Appeal on 14 January 2019. On that occasion, the Attorney-General opposed the adoption of the consent. He urged that the consent was recorded during the term of the retired Attorney-General, a position that has since changed. After hearing the parties, the Presiding Judge adjourned the matter, so that he could familiarize himself with the case.
6.During the second mention of 22 January 2019, the Bench (Waki, Musinga & Gatembu JJA) rendered a Ruling in the following terms:
7.It is this Ruling that triggered the filing of the present appeal. The appeal is anchored on the following grounds:(i)that the learned Judges of Appeal infringed the doctrine of functus officio, when they purported to reopen the matter for a hearing of the adoption-of-consent, yet their Judgment had been declared null and void by the Supreme Court, and finality had been attained;(ii)that the respondent has changed his position as regards the said consent;(iii)that the learned Judges of Appeal, in failing to allow the parties to adopt the consent as directed by this Honourable Court, violated the principle laid down under article 163(7) of the Constitution, which provides that all Courts are bound by the decisions of the Supreme Court; and(iv)that this court has the requisite jurisdiction to hear and determine this matter under article 163(4)(a) of the Constitution.
8.The petitioners seek the following reliefs:(a)The entire Order of the Court of Appeal (Waki, Musinga & Gatembu JJA) dated 22 January 2019, in Civil Appeal No 260 of 2014, be set aside.(b)this court be pleased to adopt the consent letter dated 11th September 2015, and filed on 18 September 2015.(c)Any other Order as this court may deem fit, in the circumstances.
C. Submissions by Learned Counsel
(a) Petitioners
9.By their written submissions dated 14 March 2019, the petitioners urge that this court is clothed with the requisite jurisdiction to hear and determine this appeal, under article 163(4)(a) of the Constitution. They submit that, by the terms of article 163(7) of the Constitution, the decisions of this court are binding on all other courts in Kenya, and hence, the Court of Appeal was bound by this court’s Order which directed it to adopt the consent as filed by the parties. In the circumstances, it was submitted that the Court of Appeal is in contravention of the said article 163(7) — thus bringing this appeal under the limb of “appeals as of right,” under article 163(4)(a).
10.The petitioners urge that the Court of Appeal ought not to have ordered them to file a formal application, with a right of reply accorded the respondent: for, doing so amounts to a re-opening of litigation. In particular, they urge that the Appellate Court is functus officio, in so far as Civil Appeal No 260 of 2014 is concerned, as it had already rendered its Judgment on merit, which Judgment was set aside. As such, when the matter was remitted to the Court of Appeal, as directed by this court, the single action required of that Court, was to adopt the consent.
(b) Respondent
11.The respondent submits that the purpose of the mention before the Court of Appeal was not to adopt the consent, but to give directions on how the Judgement of this court ought to have been dealt with. Learned counsel thus urges that the Court of Appeal rightly directed that a formal application for adoption of consent be filed. It was submitted that the Court of Appeal had duly noted the Attorney-General’s opposition to the consent — as, under section2 of the Government Contracts Act, the Principal Secretary in Ministry of Interior and Co-ordination of National Government had not given his approval.
12.Submission was made for the Attorney-General, that stands in clear departure from the normative ultimacy of a Supreme Court directive: that the Appellate Court had rightly recognised that the procedural question was contentious, and should be canvassed before it, by way of a formal application.
13.Even though the Supreme Court had already required compliance with the consent Order, the Attorney-General’s position was that he was entitled to challenge it, and to seek its setting aside. Justification for such a stand was founded on the argument that the consent stood vitiated by the failure on the part of the Principal Secretary to give approval. It was further urged for the Attorney-General, that the consent-adoption question was res judicata: because it had already been in issue before the Supreme Court, and this court had already taken a decision upon it. The Attorney-General, to support the res judicata argument, thus quotes from the terms of this court’s Judgment (para. 108):
14.In conclusion, the Attorney-General urges that the appeal is premature, as the Court of Appeal has not made a determination on whether or not the consent should be adopted: and so, issues warranting the assumption of this court’s jurisdiction have not yet crystallized, and the Court lacks jurisdiction to hear and determine this matter. He seeks the dismissal of this appeal.
D. Issues for Determination
15.The following are the main issues arising for determination, as drawn from the petition of appeal, the responses thereto, and the written and oral submissions:(a)whether this court has jurisdiction to determine the petitioner’s appeal;(b)whether the Court of Appeal Order of 22 January 2019 is at variance with article 163(7) of the Constitution;(c)what is the meaning and effect of this court’s Order made on 20 November 2018?(d)what are the appropriate reliefs?
E. Analysis
(a) The Question of Jurisdiction
16.It is the petitioners’ case that this court is clothed with the requisite jurisdiction to hear and determine the matter at hand. In that behalf, learned counsel rely on the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others, Supreme Court Petition No 10 of 2013 [2014] eKLR, and Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board, Supreme Court Petition No 5 of 2012. It is contended that the present matter raises weighty issues of interpretation and application of the Constitution: specifically, whether or not the Appellate Court can reject a determination by the Supreme Court, in view of article 163(7), which ordains final pronouncement by the apex Court.
17.The respondent, taking a divergent view, argues that this appeal is only concerned with directions given during a mention before the Appellate Court, which Court is yet to take a decision regarding the adoption of the consent. It is contended that the petitioners’ rights have not been infringed, and that it is, therefore, premature to invoke the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
18.The operative provision of the Constitution is article 163(4)(a), which provides that an appeal lies from the Court of Appeal to the Supreme Courtthis court has already determined the import, scope, and limits of its appellate jurisdiction under article 163(4)(a) of the Constitution in a number of cases: Samuel Kamau Macharia and another v Kenya Commercial Bank and 2 others [2012] eKLR; Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & Another [2012] eKLR; Peter Oduor Ngoge v. Francis Ole Kaparo & 5 others [2012] eKLR; Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014] eKLR; Evans Odhiambo Kidero & 4 others v Ferdinand Ndung’u Waititu & 4 others [2014] eKLR; Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2013] eKLR — among others.
19.As we have observed in such decisions, the jurisdiction of this court is limited, and flows from the terms of the Constitution and the relevant legislation. Occasionally, however, there will arise situations in which the jurisdiction of the court is not quite so sharply defined, in which case it devolves to the Court to ascertain, on a case-by-case basis, whether jurisdiction may properly be assumed.
20.It is to be noted that the present appeal does not stem from a subject-matter that was before the High Court; but it is the petitioner’s case that the manner in which the Appellate Court has conducted itself not only goes against this court’s determination, and against its guiding principle under the law (specifically, article 163 (7) of the Constitution), but also infringes the well-known doctrine of functus officio.
21.We recall that when the matter first came up before this court, we did address ourselves to the question of jurisdiction: and we duly noted that the appeal, in its essence, did not flow from the subject-matter that had featured before the trial Court. The grievance of the petitioners had its origin in the Appellate Court; and it was our perception, in such a context, that the Supreme Court would have to adopt a pragmatic approach in relation to the issue of jurisdiction.
22.We recall our decision in the Joho case where we did emphasize that each case was to be evaluated on its own facts; and we observed that several factors, in that instance, merited consideration before we could assume jurisdiction under article 163(4)(a) of the Constitution. We thus remarked (at para. 37):
23.The petitioner herein raises the question as to the Court of Appeal being bound by the decision of the Supreme Court, so that the action taken by that Court would amount to reopening and rehearing the matter. article 163(7) of the Constitution establishes the principle upon which rests the authority of judicial decisions as precedent in subsequent litigation, guiding Judges who are bound to follow the same. Courts and tribunals exercising judicial authority are duty-bound to follow this principle. In Geoffrey M Asanyo & 3 others v Attorney-General, Sup Ct Pet No 21 of 2015 [2018] eKLR, we thus stated (at para. 61):
24.In that matter, we found that in spite of the fact that the issue before the court had not been argued in the Court of Appeal, it devolved to this court’s inherent jurisdiction to set right any jurisdictional wrongs committed by other Superior Courts. We thus observed (para. 62 – 63):
25.We see no reason to depart from this reasoning, and are in agreement with the petitioners that the dispute herein would ordinarily raise questions as to the application and interpretation of the Constitution, warranting entertainment by this court.
(b) Court of Appeal’s Order of 22 January 2019: Does it offend article 163(7) of the Constitution?
26.article 163 (7) of the Constitution provides thatThe nature of that provision is absolute. this court expounded this principle in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, as follows (para. 196):
27.In Kidero & 5 others v. Waititu and others, Sup Ct Petition No 18 of 2014 (Consolidated with Petition No 20 of 2014), Njoki Ndungu, SCJ, in her concurring opinion, made the following pertinent remarks (para 236):
28.In Dodhia v National & Grindlays Bank Limited and Another [1970] EA 195, Duffus, VP. expounded the principle of stare decisis stating that;
29.We had thus recounted in another case, Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Supreme Court Petition No 4 of 2012, [2013] eKLR,
30.We may draw from the comparative lesson: in Canada, the importance of the principle was clearly articulated by Laskin, J.A. of the Ontario Court of Appeal in David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2008), 244 OAC 151 (CA);2008 ONCA 703, in the following terms:
31.In another case, the Canadian Supreme Court reiterated the principles it will apply in determining whether to overrule one of its own prior decisions, and affirmed that lower Courts are bound to follow decisions of the Supreme Court, regardless of their views as to the correctness of those decisions (Canada v Craig, 2012 SCC 43 of 1 August 2012).
32.In the case aforementioned, a Federal Court of Appeal declined to follow the Supreme Court's 1977 decision in Moldowan v. The Queen [1978] 1 SCR 480, instead, following its own decision in Gunn v Canada, 2006 FCA 281, [2007] 3 FCR 57.
33.Speaking for a unanimous Court, Justice Rothstein confirmed that it is not open to a lower Court to purport to overrule a decision of the Supreme Court; in his words (at paras. 20 – 22):
34.The objective scenario bears the lesson that there is need for fidelity to the principle of stare decisis, a bearing that ensures that Judges reach substantially the same legal conclusions that were reached in previous cases, when considering similar legal issues: this creates certainty, clarity, predictability and legitimacy within the law. On that basis, the decision of this court in Petition 21 of 2015 was binding upon the Court of Appeal in Civil Appeal No. 260 of 2014.
35.The other crucial question in this matter is the functus officio concept: has the Appellate Court’s role become wholly redundant, and it may no longer entertain the relevant question?
36.this court, in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR, had cited with approval a passage in an article by Daniel Mala Pretorius entitled “The Origins of the functus officio Doctrine, with Special Reference to its Application in Administrative Law”, in South African Law Journal, Vol. 122 (2005), at p. 832, in the following terms:
37.In determining whether the Appellate Court was functus officio, we need to ask ourselves whether that Court resolved the matter before it with finality. In our Order of 20 November 2018, we declared the Judgment of the Court of Appeal to be a nullity, and void ab initio, since one of the Judges failed to render a judicial determination, and to furnish regular reasoning. That remains our position, as the said Judge’s statement was not on the record then.
38.We turn now to the standing of the consent filed by the parties before the Appellate Court. The pertinent question is: When does a consent by the parties transmute into an Order of the Court? What is the role of the Court in the adoption of the consent?
39.In this court’s Order of 20 November 2018, we directed that the Appellate Court do adopt the consent of the parties.
40.Adoption of a consent by a Court is a process, in the course of which a Court discharges the duty of evaluating the clarity of the consent placed before it by parties, and giving directions on the manner of adoption. This circumvents the risk of an unlawful Order, and validates the mode of adoption and compliance. Thus, a consent by parties becomes an Order of the Court only once it has been formally adopted by the Court. It is only from that stage, that the Court becomes functus officio. this court having ruled that the Judgment of the Court of Appeal (dated 13 November 2015) was a nullity; and that Court having not formally adopted the consent by parties, was not yet functus officio.
41.It follows, as we find, that the Appellate Court, in directing the parties, on 22 January 2019 to make formal application, was validly engaged in the judicial process attendant upon the consent-adoption process, entirely in line with the Orders emanating from this court.
42.From this standpoint, it is evident to us that the Appellate Court is at this stage engaged in the lawful exercise of its jurisdiction. It is under obligation to proceed on that basis; and so, this court will not encroach on such a legitimate exercise of judicial remit.
F. Conclusion, and Final Orders
43.In the final outcome, we recall that the petitioner had contested the Court of Appeal’s Order of 22 January 2019, an Order that directed the petitioner to lodge a formal application, to which the Attorney-General would have a right of reply. It devolves not to this court to reckon on how the Appellate Court would have resolved such an application — as it was but a procedural process for giving directions on the specific terms of the consent. It is clear, then, as we have held, that the Court of Appeal was not functus officio.
44.It follows, as is quite clear to us, that Petition No. 7 of 2019 is entirely premature, and is not a proper basis for invoking the jurisdiction of this court. The Appellate Court’s directions of 22 January 2019 stand in perfect consistency with the Orders of this court of 20 November 2018.
45.Consequently, our Orders are as follows:(a)The petition of appeal dated 13 February 2019 is disallowed.(b)Costs shall be borne by the parties respectively.
DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JANUARY, 2020.………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT ………………………………………….J. B. OJWANGJUSTICE OF THE SUPREME COURT ………………………………………….S.C. WANJALA JUSTICE OF THE SUPREME COURT ………………………………………….NJOKI NDUNGUJUSTICE OF THE SUPREME COURT ………………………………………….I.LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA