Requirements in the Mutunga Rules for litigants to pay court fees before instituting constitutional petitions to enforce the Bill of Rights are not unconstitutional.
Jacob Nyandega Osoro v Chief Justice of Kenya & another
Constitutional Petition 115 of 2017
High Court at Nairobi
E C Mwita, J
September 17, 2018
Reported by Beryl A Ikamari
Download the Decision
Jacob Nyandega Osoro v Chief Justice of Kenya & another
Constitutional Petition 115 of 2017
High Court at Nairobi
E C Mwita, J
September 17, 2018
Reported by Beryl A Ikamari
Download the Decision
Constitutional Law-interpretation of constitutional provisions-interpretation of article 22(3)(c) of the Constitution-constitutionality of payment of court fees for purposes of instituting a constitutional petition for the enforcement of the Bill of Rights-whether the requirement that no fees may be paid was the equivalent to a requirement that no fees shall be paid, for purposes of institution of petitions for the enforcement of fundamental rights and freedoms-whether it was permissible for Rules promulgated by the Chief Justice under article 22(3) of the Constitution to provide for the payment of court fees for purposes of the institution of petitions for the enforcement of fundamental rights and freedoms-Constitution of Kenya 2010, article 22(3)(c); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules), rules 3(5)(c), 33 and 34.
Brief facts:
The Petitioner challenged the constitutionality of rules 3(5)(c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules.) Those rules entailed stipulations on the payment of court fees for persons filing constitutional petitions for the enforcement of fundamental rights and freedoms. Rule 3(5)(c) of those Rules provided for the timely disposal of such proceedings at an affordable cost, rule 33 required parties to pay fees that were the same as those applicable to civil proceedings at the High Court and rule 34 provided for applications to the Registrar for purposes of seeking an exemption from paying court fees.
The Petitioner contended that the impugned rules violated his fundamental rights and freedoms guaranteed under articles 19(3)(a), 21(1), 22(1) and 22(3)(c) of the Constitution. Inter alia, the Petitioner sought court orders compelling the Chief Registrar of the Judiciary (the 2nd Respondent) and her agents to accept documents on the enforcement of the Bill of Rights and to undertake all the necessary procedures for the proper commencement of proceedings without court fees being paid.
Constitution of Kenya 2010
Article 22(3);
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that––
(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Rule 3(5);
(5) For the purpose of furthering the overriding objective, the Court shall handle all matters presented before it to achieve the—
(a) just determination of the proceedings;
(b) efficient use of the available and administrative resources;
(c) timely disposal of proceedings at a cost affordable by the respective parties; and
(d) use of appropriate technology.
Rule 33;
33. Court Fees
There shall be paid in respect of all proceedings under these Rules the same court fees as are payable in respect of civil proceedings in the High Court in so far as the same are applicable.
Rule 34;
34. Waiver of court fees
(1) A person who wishes to be exempted from paying court fees may apply to the Registrar.
(2) An application under sub-rule (1) may be made by informal documentation.
(3) The reasons for the Registrar’s decision shall be recorded.
Brief facts:
The Petitioner challenged the constitutionality of rules 3(5)(c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules.) Those rules entailed stipulations on the payment of court fees for persons filing constitutional petitions for the enforcement of fundamental rights and freedoms. Rule 3(5)(c) of those Rules provided for the timely disposal of such proceedings at an affordable cost, rule 33 required parties to pay fees that were the same as those applicable to civil proceedings at the High Court and rule 34 provided for applications to the Registrar for purposes of seeking an exemption from paying court fees.
The Petitioner contended that the impugned rules violated his fundamental rights and freedoms guaranteed under articles 19(3)(a), 21(1), 22(1) and 22(3)(c) of the Constitution. Inter alia, the Petitioner sought court orders compelling the Chief Registrar of the Judiciary (the 2nd Respondent) and her agents to accept documents on the enforcement of the Bill of Rights and to undertake all the necessary procedures for the proper commencement of proceedings without court fees being paid.
Issues:
- Whether the provisions of rules 3(5)(c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules) in so far as they required litigants to pay court fees before instituting petitions for the enforcement of fundamental rights and freedoms, were inconsistent with article 22(3)(c) of the Constitution and were therefore unconstitutional.
- What principles of interpretation were applicable to a determination by the Court as concerned the constitutionality of a statute?
- What was the rationale of article 22(3)(c) of the Constitution which provided that no fees may be charged for commencing proceedings relating to the enforcement of the Bill of Rights?
Constitution of Kenya 2010
Article 22(3);
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that––
(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Rule 3(5);
(5) For the purpose of furthering the overriding objective, the Court shall handle all matters presented before it to achieve the—
(a) just determination of the proceedings;
(b) efficient use of the available and administrative resources;
(c) timely disposal of proceedings at a cost affordable by the respective parties; and
(d) use of appropriate technology.
Rule 33;
33. Court Fees
There shall be paid in respect of all proceedings under these Rules the same court fees as are payable in respect of civil proceedings in the High Court in so far as the same are applicable.
Rule 34;
34. Waiver of court fees
(1) A person who wishes to be exempted from paying court fees may apply to the Registrar.
(2) An application under sub-rule (1) may be made by informal documentation.
(3) The reasons for the Registrar’s decision shall be recorded.
Held:
- Article 22(3) gave the 1st Respondent power to make rules for the manner of initiating proceedings for the enforcement of the Bill of Rights and it provided in part that no fee may be charged for commencing such proceedings. Under that provision, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, the Mutunga Rules, were promulgated.
- The Mutunga Rules provided for court fees to be paid for constitutional petitions for the enforcement of fundamental rights and freedoms. Rule 3(5) of the Mutunga Rules, inter alia, provided that the Court should handle all matters presented before it for the purpose of achieving the timely disposal of proceedings at a cost affordable by the respective parties. Rule 33 of those rules was to the effect that the court fees payable in constitutional petitions for the enforcement of fundamental rights and freedoms would be the same as the fees payable for civil proceedings at the High Court. Rule 34 of the Mutunga Rules provided for applications for exemptions from the payment of court fees to be made to the Registrar.
- Rule 3(3) of the Mutunga Rules provided inter alia that the Rules would be interpreted in accordance with article 259(1) of the Constitution in order to advance the purposes and values that they stood for. Therefore, the Rules should be given a purposive interpretation in order to advance the values and principles in the Bill of Rights.
- A statute or statutory provision should be read in a way that would aid in achieving fundamental values. The reading of the statute or statutory provision should also include an examination of the object and purpose of the Act or statutory provision including rules. As far as possible the provisions should be read in conformity with the Constitution. A statute or statutory provision should be read to be consistent with the Constitution and it should only be declared unconstitutional or void where it was impossible to rationalize or reconcile it with the Constitution or the Act.
- Part of the criteria that the Rules made by the Chief Justice under article 22(3) of the Constitution had to satisfy was that no fees may be charged for commencing the proceedings. The Mutunga Rules required fees to be paid before a constitutional petition alleging violations of fundamental rights and freedoms was instituted. It was important to note that the provision provided that "no fees may be paid" and not that "no fees shall be paid." The words were permissive and they had to be interpreted to mean that fees should be paid except where the circumstances may not allow. Rule 34 of the Mutunga Rules made provision for an application for an exemption from paying court fees and that provision satisfied the requirements of article 22(3)(c) of the Constitution.
- In undertaking statutory interpretation, the Court had to look at both the text and context in order to ascertain the true legislative intent. Neither the text nor the context could be ignored as both were important and a statute would best be interpreted when there was an appreciation of why it was enacted.
- The payment of court fees should not be a hindrance to the right of access to justice as provided for in article 48 of the Constitution. The exemption provided for under rule 34 of the Mutunga Rules enabled those who were unable to pay court fees to access courts.
- The rationale of article 22(3)(c) of the Constitution was that all persons would exercise their right of access to justice regardless of their financial status. However, those who were able to pay court fees had to pay court fees while those that were unable, would not be denied the right to access courts.
Petition dismissed.