Kenya Law Weekly Issue 003/22-23

1. Whether the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022, having been made in exercise of the powers conferred upon the Supreme Court directly by the Constitution, were statutory instruments within the meaning of the Statutory Instruments Act.
2. Whether the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were unconstitutional for want of public participation.
3. Whether the Supreme Court usurped the role of Parliament in promulgating the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 that had the force of law and were enforceable by the court through penal provisions.

Relevant Provisions of the Law
Statutory Instruments Act, Act No. 23 of 2013
Sections 2 and 5A
Section 2
2. Interpretation
In this Act, unless the context otherwise requires—
"statutory instrument" means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.

Section 5A
5A. Explanatory memorandum
(1) Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain—

(a) a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;
(b) a brief statement of all the consultations undertaken before the statutory instrument was made;
(c) a brief statement of the way the consultation was carried consultation;
(d) an outline of the results of the consultation;
(e) a brief explanation of any changes made to the legislation as a result of the consultation.

(2) Where no such consultations are undertaken as contemplated in subsection (1), the regulation-making authority shall explain why no such consultation was undertaken.
(3) The explanatory memorandum shall contain such other information in the manner specified in the Schedule and may be accompanied by the regulatory impact statement prepared for the statutory instrument.

Supreme Court Act, Act No. 7 of 2011
Section 31
31. Rules
Without limiting the generality of Article 163(8) of the Constitution, the rules made by the Supreme Court under that Article may make provision for—

(a) regulating the sittings of the Supreme Court and the selection of judges for any particular purpose;
(b) regulating the right of any person other than an advocate of the High Court of Kenya to practise before the Supreme Court and the representation of persons concerned in any proceedings in the Supreme Court;
(c) prescribing forms and fees in respect of proceedings in the Supreme Court and regulating the costs of and incidental to any such proceedings;
(d) prescribing the time within which any requirement of the rules shall be complied with;
(e) empowering the Registrar, in order to promote access to justice, to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or intended proceeding, or to refund, in whole or in part, such a fee that has already been paid, if satisfied on the basis of criteria prescribed under paragraph (f) that—

(i) the person otherwise responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or
(ii) unless one or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued;

(f) prescribing, for the purposes of the exercise of a power under paragraph (e), the criteria—

(i) for assessing a person’s ability to pay a fee; and
(ii) for identifying proceedings that concern matters of genuine public interest; and

(g) any other matter required under the Constitution, this Act or any other written law

Held:

1. Article 259(1) of the Constitution commanded the Court to take a purposive approach in interpreting the Constitution. Courts were to exercise caution not to give constitutional provisions rigid and artificial interpretation. This court had a duty to give full life to the Constitution by giving effect to the Constitution as a whole.
2. Section 5A of the Statutory Instruments Act required that every statutory instrument was to be accompanied by an explanatory memorandum demonstrating that sufficient public consultation was conducted and if not, the reasons. The impugned rules were expressed to be made by the Supreme Court in exercise of the powers conferred by article 163(8) of the Constitution and section 31 of the Supreme Court Act. The power of the Supreme Court to make rules for the exercise of its jurisdiction was conferred upon it by the Constitution. The provisions of section 31 of the Supreme Court Act could not take away or limit what had already been given by the Constitution.
3. When enacting section 31 of the Supreme Court Act, Parliament was alive to the fact that no provision in the Act could limit the power already conferred upon the Supreme Court by the Constitution, hence the wording of section 31. The provision simply restated the Supreme Court’s powers under the Constitution to make rules, so that even supposing section 31 were not in the Act, the Supreme Court would still be able to make its own Rules by invoking the provisions of article 163(8) of the Constitution.
4. Constitutional instruments were not ordinary statutory instruments. They derived their legitimacy not from statute, but directly from the people of Kenya through the Constitution. Such instruments were not subject to the rigours of the law-making processes as provided for in the Constitution and the law. The impugned rules which were made in exercise of the powers conferred upon the Supreme Court by the Constitution were a constitutional instrument and not a statutory instrument.
5. The power of the Supreme Court to make rules was conferred upon it by the Constitution under article 163(8). The Constitution was the supreme law of the land and any power that flowed therefrom could not be limited by any statute, including the Supreme Court Act. Section 2 of the Supreme Court Act stated that rules meant the Rules of the Supreme Court made pursuant to article 163 (8) of the Constitution.
6. The power of the Supreme Court to make rules under article 163(8) of the Constitution was akin to the power conferred upon the Chief Justice to make rules under article 22(3). When the Chief Justice made the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (Mutunga Rules) the same were not subjected to parliamentary approval. That was because the power flowed straight from the Constitution and there was no provision that required that the rules be subjected to parliamentary approval. Similarly, the impugned Rules which were made pursuant to power flowing directly from the Constitution were not subject to the rigours of the law-making processes as provided for in the Constitution and the law.
7. The impugned Rules were not a ruling in respect of which the rule of stare decisis (to stand by things decided) may be invoked. The binding effect of a decision of the Supreme Court as a court of final judicial authority, would only apply to decisions made in judicial proceedings. The impugned Rules and indeed any rules made by the Supreme Court under article 163(8) of the Constitution were not a decision as contemplated in article 163(7) which provided that all courts, other than the Supreme Court, were bound by its decisions.
8. The impugned Rules having been made in exercise of the powers conferred upon the Supreme Court directly by the Constitution, were not statutory instruments within the meaning of SIA. While exercising its constitutional power to make the impugned Rules, the Supreme Court was not subject to the provisions of SIA.
9. The content and the manner in which legislation was adopted had to conform to the Constitution. National values and principles of governance were binding on all State organs, State officers, public officers and all persons whenever any of them applied or interpreted the Constitution, enacted, applied or interpreted any law, or made or implemented public policy decisions. Public participation was a constitutional imperative, which played a central role in legislative, policy and executive functions of Government. It informed stakeholders and the public of what was intended and afforded them an opportunity to express, and had their views taken into account.
10. Public participation bound all state organs, including the Supreme Court when, inter alia enacting law. Regardless of the nature of the impugned Rules and the fact that the power to make them flowed directly from the Constitution, the letter and spirit of the Constitution had to be upheld in the process of enactment. Any rules made by any entity had to be in conformity with the Constitution.
11. In promulgating the impugned Rules, the Supreme Court had a duty to facilitate meaningful engagement with the public in a manner that accords with the nature of the impugned Rules. Such engagement should have included access to and dissemination of relevant information, providing reasonable opportunity to the public and all interested parties to know about the impugned Rules and to sufficiently ventilate the same even if no guarantee was given that each individual’s views would be taken.
12. Whenever a challenge was raised, every agency was required to demonstrate what it had done in compliance with its duty to facilitate public participation in a given case.
13. The respondents position from the outset had been that given that the impugned Rules were a constitutional instrument, public participation was not necessary, in effect conceding that the rules were not subjected to public participation. To require the petitioner to prove that public participation was not done was at best to prove the obvious and at worst to prove the negative. Upon the petitioner stating that there was no public participation before the impugned Rules were promulgated, the burden of proof shifted to the respondents to demonstrate that there was.
14. The Supreme Court did not conduct public participation in any form or shape, before the promulgation of the impugned Rules. That was contrary to the requirement under articles 10 and 232 of the Constitution, to afford reasonable opportunity to persons likely to be affected by the impugned Rules, such as litigants in presidential petitions, advocates and the public, to voice and perhaps have incorporated in the decision making, their concerns, needs and values. It was immaterial that previous rules and amendments thereto had been made without public participation.Any rules made by the court had to always accord with the Constitution, failing which the same could not stand. There was no exemption given under the Constitution, to the Supreme Court, from complying with the provisions of article 10(1).
15. Participation of the people was not a progressive right to be realised sometime in the future. It was enforceable immediately. Any laws or rules made pursuant to constitutional or statutory provisions, had taken that into account. The decision by the Supreme Court to exclude the participatory rights of the people before promulgation of the impugned Rules, was unlawful and unconstitutional.
16. Section 28 of the Supreme Court Act already made provision for contempt of court. If there was need to expand the instances of contempt of court to include that which was contained in the impugned provisions, then the Supreme Court ought to have deferred to Parliament which had the constitutional mandate to undertake such exercise under article 94(5) of the Constitution. Legislative authority was derived from the people of Kenya and was vested in and exercised by Parliament at the national level. It was only Parliament that had the power to make provision that had the force of law. Any other person or body may only do so under authority of the Constitution or statute. The impugned Rules purported to make provision that had the force of law and enforceable by the court through penal provisions. The Supreme Court went overboard. Such provision could only be made by Parliament or with its approval. More so because the provision had the effect of taking away rights.
17. While the Supreme Court should be given the leeway and space to exercise the powers conferred upon it by the Constitution, such power had to be exercised within the Constitution and without usurping the powers of other constitutional entities. In making the impugned Rules which contained a penal provision that was enforceable by the Court, the Supreme Court went beyond its authority and usurped the law-making role of Parliament. The making of the impugned Rules, offended the Constitution and the doctrine of separation of powers which required each of the 3 arms of government to stick to its lane.

1. Declaration issued that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were not a statutory instrument within the meaning of the Statutory Instruments Act.
2. Declaration issued, that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were unconstitutional for want of public participation.
3. Declaration issued that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were unconstitutional for usurping the legislative power of Parliament.
4. Order of certiorari issued that quashed the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022.
5. No order as to costs.

Kenya Law Case Updates Issue 021/22-23 Case Summaries CONSTITUTIONAL LAW The Supreme Court could not determine the validity of a presidential election, before the same was held and the results thereof declared Summary Significance: The issue to be determined involved the jurisdiction of the Supreme Court determine the validity of a presidential election, before it was held and the results declared. The Court found that the Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicked in after the declaration of results, following a petition challenging the election. Njiru & 10 others v Ruto & 5 others; Azimio la Umoja One-Kenya Coalition & 3 others (Interested Party) (Petition 22 (E25) of 2022) [2022] KESC 55 (KLR) (Civ) (6 September 2022) (Ruling) Supreme Court of Kenya MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ Download the Decision Constitutional law – jurisdiction – jurisdiction of the Supreme Court – exclusive and original jurisdiction of the Supreme Court – where a petition raising a dispute regarding the presidency was instituted before the presidential election was held - whether the Supreme Court could determine the validity of a presidential election, before the same was held and the results thereof declared – Constitution of Kenya, 2010, article 140. Brief facts: The applicants sought an order of conservatory injunction to restrain the 1st and 2nd respondents from being sworn into offices of President and Deputy President respectively, in the event they got elected during the General Elections that was scheduled on August 9, 2022. The respondents filed a preliminary notice of objection challenging the jurisdiction of the court to entertain the appeal and its application. According to the respondents the court was only clothed with exclusive original jurisdiction pursuant to article 140 of the Constitution; that the petition and application offended the principle of exhaustion as regards avenues of recourse available pursuant to article 88 (4) (d) and (e) of the Constitution; that it failed the test of justiciability and ripeness and offended the principle of sub-judice. The main issue addressed by court was with regard to the preliminary objection on jurisdiction. Issue: Whether the Supreme Court could determine the validity of a presidential election, before the same was held and the results thereof declaredRead More.. Held: The Constitution conferred upon the Supreme Court, exclusive original jurisdiction to determine disputes relating to the election of the President arising under article 140 only. Though exclusive and original, that jurisdiction was limited to the circumstances contemplated in article 140 (1). It was not a blanket jurisdiction that empowerred the Supreme Court to extend its judicial authority over any and all interpretational questions touching upon the election of the President. Article 163 (3) of the Constitution had not ousted the High Court’s original jurisdiction to interpret the Constitution under article 165 (3) (d). The Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicked in after the declaration of results, following a petition challenging the election. The Supreme Court could not determine the validity or otherwise of a presidential election, before the same was held and the results thereof declared. It was one thing for the Court to pronounce itself on a constitutional or legal question, but it was another thing to determine the validity of an election. In other words, the Supreme Court could not anticipate the validity of a presidential election, within the meaning of article 140 (1) of the Constitution. It was general knowledge that the Presidential Elections were held on August 9, 2022 and the declaration of results of the Presidential Election made on the August 15, 2022. On the other hand, the instant petition and application were filed on August 8, 2022, a day before the General Elections and seven days before the declaration of the results of the Presidential Election. Therefore, the applicants were inviting the Court to assume jurisdiction outside the confines of article 163 (3) as read with article 140 (1) of the Constitution. They were inviting the Court to unconstitutionally expand its jurisdiction. To wait until a day to the General Elections, before seeking the Orders of such magnitude, cast the petitioners/applicants in a cynical scheme of abuse of the processes of the Court. The Supreme Court lacked jurisdiction to hear and determine the petition and also the present application. Orders The Objections raised by the 1st to 5th respondents in respect of the Notice of Motion dated August 5, 2022 and Petition dated August 5, 2022 were allowed The Notice of Motion dated August 5, 2022 and petition dated August 5, 2022, were incompetent and thereby struck out; The Applicants shall bear costs. DEVOLUTION Role of courts in petitions challenging the impeachment of governors Summary Significance: The appellant was removed from the Office of Governor, Nairobi City County, by way of an impeachment motion initiated by the 2nd respondent (the County Assembly). The court held that its role was confined to deciding whether the governor’s constitutional rights and fundamental freedoms had been breached and whether the procedures for removal from office had been followed. The court further found that the mover and all members in support of the impeachment motion signed a form and included the numbers of their identification cards against their names. The court held that that was the form of verification envisaged in the context of an impeachment motion and not an affidavit or any form of disposition. The court also held that impeachment proceedings were not in the nature of criminal proceedings and all that was required was that the allegations be substantiated. Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 26 (KLR) (15 July 2022) (Judgment) Supreme Court of Kenya MK Koome, CJ; PM Mwilu, DCJ; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ Reported by Kakai Toili Download the Decision Devolution - county governments - county governors - grounds of removal of a county governor from office - impeachment of county governors - nature of verification required in the context of an impeachment motion against a county governor to verify that the allegations therein were true - whether impeachment proceedings required criminal culpability to succeed - what was the role of courts in a petition challenging the impeachment of a governor - Nairobi City County Assembly Standing Orders, standing order 67(1). Civil Practice and Procedure - appeals - appeals to the Supreme Court - appeals as a matter of right in cases involving the interpretation or application of the Constitution - what were the requirements for one to appeal to the Supreme Court as a matter of right in a case involving the interpretation or application of the Constitution - Constitution of Kenya, 2010, article 163(4)(a). Brief Facts: The appellant was removed from the Office of Governor, Nairobi City County, by way of an impeachment motion initiated by the 2nd respondent (the County Assembly). The decision of the County Assembly was confirmed by the 6th respondent (the Senate). Attempts by the appellant and the 12th respondent to overturn the decision through a challenge both in the High Court and the Court of Appeal were unsuccessful, precipitating the instant appeal. The judgment of the Court of Appeal was impugned on among other grounds; whether due process was followed by the County Assembly in the removal of the appellant from the office of Governor; whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate; whether it was mandatory to verify the impeachment motion by affidavits or other statements on oath by members of the County Assembly who allegedly supported the motion; and whether public participation was undertaken. The 3rd respondent filed a notice of preliminary objection challenging the jurisdiction of the court to entertain the appeal for the reasons that the court was improperly moved by invocation of the wrong constitutional and/or statutory provisions; that the issues in the appeal did not concern any question involving interpretation or application of the Constitution of Kenya, 2010 (Constitution). Equally, the 7th respondent in its grounds of objection raised the issue of jurisdiction and faulted the appellant for failing to specify the provisions under which he invoked the court’s jurisdiction. Issues: What was the role of courts in a petition challenging the impeachment of a governor ? What were the grounds of removal of a county governor from office? What was the nature of verification required in the context of an impeachment motion against a county governor to verify that the allegations therein were true . Whether impeachment proceedings required criminal culpability to succeed. What were the requirements for one to appeal to the Supreme Court as a matter of right in a case involving the interpretation or application of the Constitution ? Read More.. Held: It was not every issue that was before the superior courts and which had been raised in the instant appeal was open for the court’s determination in exercise of its appellate jurisdiction. Matters of fact that touched on evidence without any constitutional underpinning were not open for the court’s review on appeal. A constitutional mandate, which embodied the remit of impeachment, vested in the legislative branches of Government, in the instant case in the County Assembly and the Senate. It was in those two constitutional organs’ exclusive spheres of jurisdiction, that the impeachment of a county governor was reposed. In discharging that function, they had to live by the edict of the Constitution. Where it was alleged that any of them had failed to act in accordance with the Constitution, then the courts were empowered by article 165 (3)(d)(ii) of the Constitution to determine that allegation. Similarly, the court could interfere where it had been demonstrated that there had been a failure to abide by the Standing Orders of either the County Assembly or the Senate, because those Standing Orders had a constitutional underpinning in article 124 of the Constitution. The impeachment architecture in the Constitution, the law and the Standing Orders left no doubt that removal of a governor related to accountability, political governance and personal responsibility and not necessarily about criminal responsibility. In so far as the process of removal of a governor from office was concerned, the court’s role was confined to deciding whether the governor’s constitutional rights and fundamental freedoms had been breached in the process and whether the procedures for removal from office had been followed, without the court constituting itself into any of the two constitutional organs in whose hands the power to remove was vested. Without jurisdiction a court had no power and had to down tools in respect of the matter in question. Appeals from the Court of Appeal lay to the instant court pursuant to articles 163(4)(a)or 163(4)(b) of the Constitution and that an appeal would not lie to the instant court, unless brought within the compass of either of the two jurisdictional limbs. The appellant in his petition of appeal had expressly moved the court under two rules of the Court’s Rules, namely the repealed rules, 9 and 33 [of 2012]. Properly cited, those two rules related to the contents of a petition of appeal and the timeframe for lodging an appeal as well as the documents that formed the record of appeal. They clearly did not give jurisdiction to the court. In view of the nature of its jurisdiction as far as appeals from the Court of Appeal were concerned, a party moving the court had to bear in mind the limits of its jurisdiction and had to decide either to seek a certification as a matter of general public importance (GPI) under article 163(4)(b) of the Constitution or came as a matter of right under article 163(4)(a) thereof. Even when a party invoked the latter, it was upon the party to identify and specify how the appeal concerned interpretation and application of the Constitution. It could never be the role of the court to wander around in the maze of pleadings and averments in order to assume jurisdiction by way of elimination. It was incumbent upon the appellant to demonstrate in limine that the grievance he had presented to the court concerned the application or interpretation of the Constitution which the Court of Appeal used to dispose of the matter in question before that court. The appellant had failed to do that. The preliminary objection met the threshold in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors ltd (1969) EA 696 and the court sustained it. The impeachment proceedings before the County Assembly and the Senate were properly conducted in accordance with article 181 of the Constitution, section 33 of the County Governments Act and Standing Orders of the County Assembly and the Senate. The appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate considering the timelines stipulated in the law within which the Assembly and the Senate had to conclude their investigations and the prevailing Covid-19 global pandemic restrictions that were in place at the time of the impeachment proceedings. The appellant had adequate time and facility, because he was able to sufficiently respond to the charges brought against him. Standing order 67(1) of the Nairobi City County Assembly Standing Orders, requires that the motion for impeachment had to be signed by the member moving the motion who affirmed that the particulars of allegations contained in the motion were true. In the same vein, each of the members constituting at least a third of all the members in support had to verify that the allegations therein were true of their own knowledge and belief on the basis of their reading and appreciation of information pertinent thereto. Each of them was required to signify that by signing a verification form provided by the clerk for that purpose. No material had been presented in the appeal to suggest that the Court of Appeal erred in its analysis and conclusion that the mover and all members in support signed the form and included the numbers of their identification cards against their names. That was the form of verification envisaged in the context of an impeachment motion and not an affidavit or any form of disposition. The two superior courts below in unanimity found uncontroverted evidence that the intended tabling before the County Assembly of a motion for the impeachment of the appellant was not only advertised in a local daily newspaper with wide circulation, in response to which people submitted memoranda, but also a survey was conducted in the county in the form of questionnaires. The proceedings were in public. Impeachment proceedings, though quasi-judicial were not in the nature of criminal proceedings. It did not require criminal culpability to succeed. All that was required was that the allegations be substantiated. But as a constitutional remedy, impeachment served as an important check on the exercise of Executive power regarding violations of law and abuses of power. There were four counts of impeachable charges against the appellant. The County Assembly, the Senate and the two superior courts below were convinced that the charges were proved to the standard required in such circumstances. The proof of even a single charge would be sufficient. Nothing had been placed before us to warrant the instant court’s departure from the conclusions by the two superior courts. Under article 1 of the Constitution, all sovereign power belonged to the people of Kenya. That power could only be exercised in accordance with the Constitution. Further, the people could exercise that power either directly or through their democratically elected representatives. Specifically, sovereign power of the people was delegated to State organs such as Parliament and the legislative assemblies in the county governments. In the instant situation, the people exercised their power through the latter to uphold and defend Chapter Six of the Constitution. The impeachment of the appellant was in compliance with the Constitution and the law. Chapter Six of the Constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a State officer was a public trust to be exercised in a manner that demonstrated respect for the people; brought honour to the nation and dignity to the office; and promoted public confidence in the integrity of the office. It vested in the State officer the responsibility to serve the people, rather than the power to rule them. Appeal dismissed; each party to bear its own costs.