The Constituencies Development Act, 2013, declared unconstitutional for, among others, violating the constitutional principles of separation of power, accountability, good governance public finance and division of revenue
Summary Significance: The appellants challenged the constitutionality of the Constituencies Development Fund Act, 2013 (CDF Act, 2013) and the Constituencies Development Fund (Amendment) Act No. 36 of 2013 (CDF Act, 2013). The court held that failure to involve the Senate in the enacting of the CDF (Amendment) Act, 2013, rendered the CDF Act 2013 unconstitutional. The court further held that where a Member of the National Assembly was allowed to play a role related to functions vested in devolved units, then that would compromise the vertical division of powers between the National and County governments. The court pointed out that a constituency was a form of territorial districting that defined how voters were grouped for the election of Members of Parliament and were not conceptually envisaged to be service delivery units. The court found that the CDF Act, 2013, violated the division of functions between the national and county levels of Government and the constitutional principles on public finance. The court finally held that allowing legislators any role in discharging a mandate that belonged to the Executive branch at either the national or the county level, would promote conflict of interest and compromise their oversight role.

Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment)
Neutral citation: [2022] KESC 39 (KLR)

Supreme Court of Kenya
MK Koome, CJ; PM Mwilu, DCJ; SC Wanjala, NS Ndungu and W Ouko SCJJ
August 8, 2022
Reported by James Nginya & Kakai Toili
Download the Decision

Constitutional Law - constitutionality of statutes - constitutionality of the Constituencies Development Fund Act, 2013 (CDF Act, 2013) and the Constituencies Development Fund (Amendment) Act, 2013 (CDF (Amendment) Act, 2013) - where the CDF Act, 2013, established a constituencies development fund (CDF) - claim that the CDF Act, 2013, shared revenue raised nationally to constituencies - claim that the Senate was not involved in the passing of the (CDF (Amendment) Act, 2013) despite it containing matters that concerned counties - whether failure to involve the Senate in the enactment of the CDF (Amendment) Act, 2013, rendered the CDF Act, 2013 unconstitutional - what was the nature of a constituency and whether it had a service delivery mandate - whether the CDF Act, 2013, violated the division of functions between the national and county levels of Government by sharing revenue raised nationally to constituencies - whether the CDF Act, 2013 violated the constitutional principles on public finance by requiring the Cabinet Secretary responsible for matters relating to the CDF in allocating the fund to seek concurrence of the relevant parliamentary committee - Constitution of Kenya, 2010, articles 202(1), 206(2)(c) and 218(1)(a); Constituencies Development Act, 2013, sections 4 and 10.
Devolution - functions of the National Government vis a vis county government - inter-governmental transfer of functions - whether the constituencies development fund, which was distributed to constituencies, amounted to an inter- governmental transfer of functions - whether granting of Members of the National Assembly the power of appointment of members of the constituency development fund committee and being an ex-officio member of the committee amounted to a violation of values and principles of accountability and good governance - Constitution of Kenya, 2010, article 187(1).
Devolution - principle of subsidiarity - nature of the principle of subsidiarity - division of powers between the National and County Governments - role of the Legislature in the performance of functions by devolved units - whether allowing a Member of the National Assembly to play a role related to functions vested in devolved units compromised division of powers between the National and County Governments - Constitution of Kenya, 2010, Fourth Schedule.
Civil Practice and Procedure - institution of suits - doctrine of mootness - when would a matter be considered to be moot.

Brief facts:
Aggrieved by the enactment of the Constituencies Development Fund Act, 2013 (CDF Act, 2013) and the Constituencies Development Fund (Amendment) Act No. 36 of 2013 (CDF Act, 2013), two petitions, which were consolidated, were filed at the High Court by the appellants. The consolidated petitions challenged the constitutionality of the CDF Act 2013. The High Court determined that the CDF Act, 2013 was unconstitutional and held that the CDF Act, 2013, was passed without the involvement of the Senate. The High Court established that the constituencies development fund (CDF) was not a conditional grant to the county governments within the meaning of article 202(2) of the Constitution of Kenya, 2010.
The High Court also held that the CDF Act, 2013, violated the division of functions between the National and County Government, the court found that in as much as the National Government was free to infiltrate its policies at the county levels, it had to do so through the structures recognized under the Constitution and those that did not run parallel to them. The court also noted that charging the CDF with implementing local development projects under section 22 of the CDF Act, 2013, upset the division of functions between the two levels of government.
Aggrieved with the judgment of the High Court, the 1st and 4th respondents filed appeals at the Court of Appeal. The appellants raised a preliminary objection to the appeals challenging the Court of Appeal’s jurisdiction on the ground of the doctrine of mootness. They urged that the appeals had been rendered moot following the repeal of the CDF Act, 2013 and the enactment of the National Government Constituencies Development Fund, 2015 (NGCDF Act, 2015).
The Court of Appeal partially allowed the appeals, by declaring sections 24(3)(c), 24(3)(f), and 37(1)(a) of the CDF Act, 2013 unconstitutional and invalid for violating the principle of separation of powers. The court also overturned the declaration, that the CDF Act, 2013, was unconstitutional in its entirety. The Court of Appeal also held that the NGCDF Act, 2015, did not expressly repeal the CDF Act, 2013. Dissatisfied with the Court of Appeal’s decision, the appellants filed the instant appeal. The 1st respondent also filed a notice of cross-appeal in the instant court.

Issues:
  1. Whether the Constituencies Development Act, 2013, violated the division of functions between the national and county levels of Government by sharing revenue raised nationally to constituencies.
  2. Whether failure to involve the Senate in the enactment of the Constituencies Development Fund (Amendment) Act, 2013 , rendered the Constituencies Development Fund Act, 2013 unconstitutional.
  3. Whether allowing a Member of the National Assembly to play a role related to functions vested in devolved units compromised division of powers between the National and County Governments .
  4. Whether the constituency development fund, which was distributed to constituencies, amounted to an inter- governmental transfer of functions .
  5. Whether the Constituencies Development Act, 2013 violated the constitutional principles on public finance by requiring the Cabinet Secretary responsible for matters relating to the CDF in allocating the fund to seek concurrence of the relevant parliamentary committee.
  6. Whether granting of Members of the National Assembly the power of appointment of members of the constituency development fund committee and being an ex-officio member of the committee amounted to a violation of values and principles of accountability and good governance.
  7. What was the nature of a constituency and whether it had a service delivery mandate?
  8. What was the nature of the principle of subsidiarity?
  9. When would a matter be considered to be moot?

Held:
  1. A matter was moot when it had no practical significance or when the decision would not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court would have no such practical effect on the rights of the parties, a court would decline to decide on the case. Accordingly, there had to be a live controversy between the parties at all stages of the case when a court was rendering its decision. If after the commencement of the proceedings, events occurred changing the facts or the law which deprived the parties of the pursued outcome or relief then, the matter became moot. Where a new statute was enacted that unequivocally addressed the concerns that were at the heart of a dispute then such a dispute would be moot.
  2. Sections 3, 4 and 53 of the NGCDF Act, 2015 contained some of the pertinent issues that were raging controversies before the Court of Appeal for determination even after the coming into force of the NGCDF Act, 2015. Moreover, given that the impugned provisions of the CDF Act 2013 had also been re-enacted in the NGCDF Act, 2015, it did not unequivocally settle the issues in dispute between the parties. As such, there was live controversy between the parties and therefore it was in the public interest to have the questions that were raging adjudicated and determined by the Court of Appeal. The appeal before the Court of Appeal was not moot
  3. Applying a purposive interpretation, the amendment in section 2 CDF (Amendment) Act, 2013 of the touched on the main object and purpose of the CDF Act, 2013, which was to ensure that a specific portion of the national annual budget was devoted to the constituencies for inter alia community projects and infrastructural development. Essentially, the amendment had the effect of changing the constitutional basis for the fund from being an additional revenue to the county governments from the National Government under article 202(2) of the Constitution; to transforming the CDF into a fund of the National Government under the consolidated fund established under article 206(2) of the Constitution.
  4. Some of the functions contemplated by section 3 of the CDF Act, 2013, concerned county governments. Therefore, the CDF (Amendment) Act, 2013 should have been tabled before the Senate in accordance with article 96 of the Constitution for consideration.
  5. While the concurrence of the Speakers of the National Assembly and the Senate was significant in terms of satisfaction of the requirements of article 110(3) of the Constitution it did not by itself oust the power of the court vested under article 165(3)(d) of the Constitution where a question regarding the true nature of legislation in respect to article 110(1) was raised.
  6. The CDF (Amendment) Bill, 2013 involved matters concerning county governments and therefore the Bill should have been tabled before Senate for consideration, debate, and approval in accordance with article 96 of the Constitution. Failure to involve the Senate in the enacting of the CDF (Amendment) Act, 2013, rendered the CDF Act 2013 unconstitutional. The Constitution did not create a federal State but a unitary system of government that decentralized key functions and services to the county unit.
  7. Article 6(2) of the Constitution provided that the governments at the national and county levels were distinct and interdependent and should conduct their mutual relations on the basis of consultation and cooperation. In addition, article 186(1) of the Constitution stated that the functions and powers of the National Government and county governments would be as set out in the Fourth Schedule to the Constitution.
  8. Parliament was one of the arms of the Government under the Constitution. It consisted of the Senate and National Assembly. The legislative remit of the National Assembly fell under the National Government in the vertical division of powers between the National Government and the county governments. That was evident from article 95 of the Constitution which provided for the roles of the National Assembly
  9. From article 95 of the Constitution, the Constitution did not grant the National Assembly the power to implement projects as a service delivery unit at the county level. Members of the National Assembly were granted the mandate to legislate and oversight the national revenue and its expenditure.
  10. Article 1(4) of the Constitution stipulated that the sovereign power of the people was exercised at the national level and the county level. In addition, the Constitution established the county executive committee as the executive authority in the county government. Article 179(1) of the Constitution stated that the executive authority of the county was vested and exercised by, a county executive committee. It meant that the service delivery mandate, which in its essence was an executive function, relating to functions assigned to the county governments ought to be exercised by the county executive committee.
  11. Members of National Assembly’s legislative mandate was linked or tied to the National Government and not the county governments. Therefore, where a Member of the National Assembly was allowed to play a role related to functions vested in devolved units, then that would compromise the vertical division of powers between the National and County governments.
  12. The determinative phrase “community-based” was not defined anywhere in the statute. A look at the Fourth Schedule to the Constitution (pursuant to the terms of article 186(1) of the Constitution) that distributed functions between the National Government and the county governments, showed that it was the county governments that were allocated most of the functions and powers that could be said to be community or local in orientation. Examples of such functions and powers included those relating to county health services, county transport, trade development, county public works and services, pre-primary education, and village polytechnics, amongst others. In contrast, to a large extent, the functions and powers of the National Government with respect to most of those functions related to policy formulation.
  13. The approach in the Fourth Schedule to the Constitution resonated with the principle of subsidiarity which underpinned the division of powers under devolved systems of Government. Subsidiarity was the broad presumption that sub-national governments ought to be assigned those functions and powers which vitally affected the life of the inhabitants and allowed the development of Kenya in accordance with local conditions of sub-national units, while matters of national importance concerning Kenya as a whole and overarching policy formulation were assigned to the National Government.
  14. The implementation of community-based projects envisaged under section 22 of the CDF Act, 2013, and the infrastructural development projects envisaged under section 3 of the CDF Act, 2013, would inevitably cover and target the functions assigned to county governments.
  15. The CDF did not amount to an inter- governmental transfer of functions. The Constitution paid keen attention to ensure that the National Government did not usurp the mandate of county governments by specifying a clear process for the transfer of functions from a county government to the National Government. Article 187(1) of the Constitution stipulated that a function or power of government at one level could be transferred to a government at the other level by agreement between the governments.
  16. The instant dispute subject did not involve the transfer of functions by agreement between governments as contemplated under article 187(1) of the Constitution. Instead, it was a dispute about alleged constitutionally forbidden encroachment by an agency of the National Government onto the terrain of the county governments.
  17. Under article 1(4) of the Constitution, the sovereign power of the people was exercised at the national level and the county level. The functions of service delivery which was the character and nature of community-based projects targeted by the CDF Act, 2013, were by nature Executive functions. Accordingly, by nature they would be discharged by the Executive structures of the appropriate level of Government in terms of article 1(3) (b) of the Constitution which vested Executive functions in the National Executive and the executive structures in the county governments.
  18. The constituency as conceptualized in the Constitution was tied to political representation. Throughout the Constitution, the idea of constituency whenever it was used was linked to being an electoral unit for political representation. In its true essence, a constituency was a form of territorial districting that defined how voters were grouped for the election of Members of Parliament and were not conceptually envisaged to be service delivery units.
  19. The role that a constituency as an electoral unit discharged and its place within the constitutional scheme was tied to the functions constitutionally vested in the Member of the National Assembly. That role was a legislative role and not a service delivery mandate. The constituency under the constitutional scheme was tied to the election of representatives to the Legislature and representation of the people of the constituency at the National Assembly.
  20. The decentralization of service delivery had to be undertaken within the confines of the structures of the National Government or county governments, not parallel to the two levels of Government. Therefore, the court saw a third or parallel structure of Government as altering the basic premises of the system of Government created by the Constitution and as distorting the devolved structure of Government. That was more so in a context such as the CDF fund which had the effect of creating structures that were incompatible with the nature of the distribution of functions between the two levels of Government. The CDF Act, 2013, violated the division of functions between the national and county levels of Government .
  21. In interpreting article 202(1) of the Constitution which stipulated that revenue raised nationally should be shared equitably among the National and County Governments, the court needed to bear in mind a key concern behind the enactment of the provision was to ensure the optimal funding and working of the devolved system of government. In addition, a harmonious interpretation of the Constitution as one whole. Pursuant to that interpretive approach article 218(1)(a) of the Constitution provided for the manner of enacting the Division of Revenue Bill. It provided that a Division of Revenue Bill, should divide revenue raised by the National Government among the national and county levels of Government in accordance with the Constitution
  22. What was contemplated by articles 202(1) and 218(1)(a) of Constitution was that revenue raised nationally was all the revenue accruing from all the revenue-raising powers of the National Government. Revenue raised nationally was synonymous with what was termed equitable share and was allocated between the two levels of Government. Prior to allocation, the revenue was not yet available to the National Government to allocate to its agencies. Only after the National Government had received its portion of the equitable share under the Division of Revenue Act as envisaged in article 218(1)(a), would be in a position to allocate funds to agencies and instrumentalities falling under its mandate.
  23. The National Government and county governments were the only entities entitled to participate in the vertical division of the revenue raised nationally. To allow an agency of the National Government or a third structure whose location within the constitutional system was unclear to participate in the sharing of the revenue raised nationally was a violation of not only article 202(1) but also article 218(1)(a) of the Constitution.
  24. Section 4 of the CDF Act, 2013, violated the provisions of the Constitution as it sought to disrupt the revenue sharing formula by directly allocating 2.5% of all the national revenue while the Constitution required that the revenue raised should be shared equitably among the National and County Governments. If at all any monies was to be deducted from the national revenue, the money should be granted from the National Government revenue as a grant but not directly from the national revenue. The CDF Act, 2013, violated the principles of the division of revenue as stipulated in article 202(1) of the Constitution.
  25. Article 201 of the Constitution expressed the idea of responsible governance. It envisaged that the two levels of Government would manage fiscal resources prudently by putting in systems that ensured that the implementation of projects aimed at delivering a public good and service was cost-effective. It also embodied the desire for fiscal efficiency which spoke to the need to eliminate wastages in service delivery and provision of public good and service. It meant that where it was a policy objective of the Government to deliver a particular public good or service then the system for delivery of that policy objective should be designed in a manner that ensured that public funds were not wasted or abused
  26. There was a real threat of the CDF creating confusion as to which project was being implemented by which level of Government. In addition, it created the prospect of duplication of funding for the same project leading to wastage of scarce public resources. It created a state of lack of clarity as to which level of Government was responsible for which particular project therefore compromising on accountability.
  27. While the court appreciated the concerns that motivated the creation of the CDF and public support for it, there were more effective ways of decentralizing funding to the local level without compromising on key constitutional principles like those of public finance.
  28. Even though the CDF (Amendment) Act, 2013 provided that the monies under the Act should be considered as funds allocated under article 206(2)(c) of the Constitution, under section 10 of the CDF Act, 2013, the Cabinet Secretary responsible for matters relating to the CDF in allocating the fund for each financial year had to seek concurrence of the relevant parliamentary committee. That violated the principles of accountability and integrity due to likely conflict of interest. That was because a Member of Parliament could not oversee the implementation or coordination of the projects and at the same time offer oversight over the same projects. To that end, the CDF as structured under the CDF Act, 2013, violated the constitutional principles on public finance, particularly the principle of prudent and responsible management of public funds as enshrined in article 201(d) of the Constitution .
  29. The doctrine of separation of powers was a fundamental principle of law that required the three arms of Government to remain separate, and that one arm of Government should not usurp functions belonging to another arm. article 1(3) of the Constitution delegated power vertically and horizontally to State organs namely, Parliament and the legislative assemblies in the county governments, National Executive and the executive structures in the county governments, and Judiciary and the independent tribunals. Therefore, the Constitution required that each level of Government have both institutional and functional distinctiveness from each other.
  30. The impugned section 22(3)(c) of the CDF Act, 2013, envisaged that the Member of the National Assembly was to appoint eight (8) of the ten (10) members of the constituency development fund committee. That was in addition to section 24(3)(f) of the CDF Act, 2013, which made the Member of the National Assembly an ex-officio member of the committee. The Black’s Law Dictionary defined an ex-officio member as a member appointed by virtue or because of an office and explained that an ex-officio member was a voting member unless the applicable governing document provided otherwise. As the CDF Act, 2013, did not provide otherwise, a Member of the National Assembly who was a member of the committee by virtue of his office as a Member of National Assembly was a voting member.
  31. It was the constituency development fund committee that was vested with the responsibility of initiating the process for identification and prioritization of the projects, employment of staff, allocation of funds to various projects, the tabling of reports and monitoring the implementation of the projects. Two of its members were among the three signatories to the bank account. The projects implementation committee which implemented the projects works under its direction. Those were typical service delivery mandates that fell within the constitutional mandate of the Executive branch.
  32. The power of appointment of the members of the constituency development fund committee and being an ex-officio member of the committee, the Member of the National Assembly was in effective control of the constituency development fund committee and that meant that he/she influenced the selection, prioritization of projects, allocation of funds and also monitored the implementation of the projects. That meant that the fund as conceived under the CDF Act, 2013, vested in the Legislature and its personnel – being the Members of the National Assembly, functions that typically fell within the nucleus, core function, or pre-eminent domain of the Executive branch.
  33. The national values and principles idea of good governance and accountability represented the aspiration that a person in a position of public trust should not make decisions regarding questions on which they had an interest. Put differently, all State and public officers should avoid conflict of interest in the discharge of their mandate.
  34. As conceived and structured under the CDF Act, 2013, Members of the National Assembly would have a personal interest or stake in the determination and implementation of projects by the fund in their constituencies. The perceived failure or success of the fund within their constituency would also influence their prospects of re-election. What that state of affairs did, was that, it created a conflict of interest with the Member of Parliament’s oversight role.
  35. Given the constitutional edict in article 259(1)(a) and (d) that the Constitution should be interpreted in a manner that promoted its purposes, values, and principles, and contributed to good governance. Adopting an interpretation that allowed conflict of interest undermined the oversight role of the Legislature. Allowing legislators any role, even a merely ceremonial role in discharging a mandate that belonged to the Executive branch at either the national or the county level, would promote conflict of interest and compromise their oversight role. Therefore, the CDF Act, 2013 violated values and principles of accountability and good governance .
  36. A fund operating outside the strictures of separation of powers and the system of checks and balances would not be constrained given the absence of legislative oversight and therefore would be prone to be abused. In effect, a fund that allowed personnel from the legislative branch to exercise Executive powers was problematic from a constitutional lens. In the context of the case, the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values; that was the maintenance of accountability and good governance. Were the court to adopt a contrary approach, even for the best of policy reasons, those constitutional values and principles would be eroded.
  37. Given the constitutional scheme on separation of powers; members of legislative bodies, being members of the National Assembly, senators, county women representatives, and members of county assemblies ought not to be involved in the implementation of any service-based mandates which were a preserve of the Executive branch. That was the only way to respect the constitutional scheme on separation of powers and ensure that the legislators’ oversight mandate was not compromised through conflict of interest. Tolerating a contrary position would harm the Constitution’s value system, particularly the national values and principles of accountable and good governance. The fund as structured violated the vertical separation of powers.
  38. The fact that the CDF had been operational in Kenya since 2003 was not a good enough answer to the question on the constitutionality of the fund in the post-2010 constitutional dispensation. A fund directed at service delivery mandate could only be constitutionally complaint if structured in a manner that did not entangle members of legislative bodies and legislative bodies in the discharge of the service delivery mandate however symbolic. Such funds ought to be integrated and subsumed within the structures of either the county executive or the National Executive.
Appeal allowed; cross-appeal dismissed; each party to bear their own costs.
Orders
  1. A declaration made that the Constituencies Development Fund Act, 2013 was unconstitutional.


Kenya Law
Case Updates Issue 023/22-23
Case Summaries
CONSTITUTIONAL LAW

Section 14 of the Political Parties Act declared unconstitutional to the extent that it required a sitting member of county assembly to resign as a precondition to switching political parties for purposes of general elections within 180 days preceding the date of the general elections

Summary Significance: The petition challenged the constitutionality of section 14 of the Political Parties Act. The court issued a declaration that to the extent that section 14 of the Political Parties Act required a sitting member of county assembly to resign from their respective seats as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional null and void and of no effect for violating article 38(3((c) as read with articles 4(2); 10, 19, 20 and 259 of the Constitution. The court held that it would have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election.

Mbae v Speaker, County Assembly of Nakuru & another; others (Interested Party) (Constitutional Petition E004 of 2022) [2022] KEHC 3313 (KLR) (7 July 2022) (Judgment)
Neutral citation: [2022] KEHC 3313 (KLR)

High Court at Nakuru
JM Ngugi, HK Chemitei & TM Matheka, JJ
Reported by Kakai Toili
Download the Decision

Constitutional Law - constitutionality of statutes - constitutionality of section 14 of the Political Parties Act - whether to the extent that section 14 required a sitting member of county assembly to resign as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional - what was the nature of the element of party discipline anticipated by the Constitution - Constitution of Kenya, 2010, articles 194(1)(e) and 103(1)(e); Political Parties Act, 2011, section 14.
Constitutional Law - interpretation of the Constitution - canons of interpretation of the Constitution - interpretation of articles 38, 101 and 194 of the Constitution - whether articles 101(4) and (5) which described what happened when a vacancy arose in Parliament applied mutatis mutandis to vacancies in the county assemblies - what was a purposeful reading of the Constitution that harmonized article 194 on vacation of office of member of county assembly, article 101 on election of Members of Parliament and article 38 on political rights expected to do - Constitution of Kenya, 2010, articles 38, 101 and 194.
Constitutional Law - fundamental rights and freedoms - political rights - where a member of county assembly resigned from the political party s/he used during his/her election within one hundred and eighty (180) days preceding the date of the general elections - whether political rights of the electorate in a ward would be violated if a ward was left with no representative as a result of the resignation - Constitution of Kenya, 2010, articles 38, 101, 103 and 194; Political Parties Act, 2011, section 14.
Constitutional Law – locus standi – locus standi to seek an advisory opinion from the Supreme Court – whether a sitting member of a county assembly could request for an advisory opinion at the Supreme Court - Constitution of Kenya, 2010 articles 48 and163(6).
Devolution - counties - county assemblies - resignation of members of county assemblies - what was the effect of mass resignations by members of county assemblies at the tail end of the electoral cycle - Constitution of Kenya, 2010, article 258; County Governments Act, 2012, sections 14 and 19.

Brief facts
The petitioner was a sitting member of the County Assembly of Nakuru County (the County Assembly). He filed the instant petition seeking among others; a declaration that to the extent that section 14 of the Political Parties Act required a sitting member of the County Assembly and the National Assembly to resign from their respective seats as a precondition to moving from one political party to another for purposes of an election within the timelines set by the law and the Independent Electoral and Boundaries Commission (IEBC) for such change of membership ahead of a general election, that section was unconstitutional; and a reading in order in section 14 that a Member of Parliament or a county assembly who resigned from one political party to the other on the last day of the times lines set by the law and the IEBC for purposes of participation in a general election needed not thereby resign from and/or lose his seat by reason of such change of party membership.
The petition was centered on an alleged unconstitutionality of section 14 of the Political Parties Act in light of articles 194(1) of the Constitution of Kenya, 2010 (Constitution) articles 38 and 101(4)-(5) of the Constitution as read together on the other hand. In particular, the petitioner was aggrieved by the 1st respondent’s, the Speaker of the County Assembly of Nakuru (the Speaker) interpretation of article 194 as read together with section 14 as revealed in the Speaker’s communication made to the Nakuru County Assembly on February 22, 2022 (the impugned communication).
The petitioner argued that the Speaker fell into error when he read article 194(1)(e) of the Constitution in isolation to require that any time a member of the County Assembly resigned from the party that sponsored him or her, the office of the member of the County Assembly fell vacant. Instead, the petitioner argued, when read together with articles 38 and 101(4)-(5) of the Constitution, article 194(1)(e) did not mandate that such a seat of the member of the County Assembly fall vacant at the end of the electoral cycle when a by-election could not be held by virtue of article 101(5) of the Constitution. According to the petitioner, that was the necessary interpretation to preserve and promote the objects, purposes and principles of the Constitution.

Issues:

  1. Whether to the extent that section 14 of the Political Parties Act required a sitting member of county assembly to resign as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional.
  2. Whether political rights of the electorate in a ward would be violated if a ward was left with no representative as a result of the resignation of the representative from the political party s/he used during his/her election within one hundred and eighty (180) days preceding the date of the general elections .
  3. Whether articles 101(4) and (5) of the Constitution which described what happened when a vacancy arose in Parliament applied mutatis mutandis to vacancies in the county assemblies.
  4. Whether a sitting member of a county assembly could request for an advisory opinion at the Supreme Court.
  5. What were the canons of interpretation of the Constitution of Kenya, 2010?
  6. What was the nature of the element of party discipline anticipated by the Constitution?
  7. What was a purposeful reading of the Constitution that harmonized article 194 on vacation of office of member of county assembly, article 101 on election of Members of Parliament and article 38 on political rights expected to do?
  8. What was the effect of mass resignations by members of county assemblies at the tail end of the electoral cycle? Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 101 - Election of members of Parliament
(1) A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.
(2) Whenever a vacancy occurs in the office of a member of the National Assembly under Article 97(1)(c), or of the Senate under Article 98(1)(b), (c) or (d), the respective Speaker shall, within twenty-one days of the occurrence of the vacancy, give notice in writing of the vacancy to—

(a) the Independent Electoral and Boundaries Commission; and
(b) the political party on whose party list the member was elected or nominated.

(3) A vacancy referred to in clause (2) shall, subject to clause (5), be filled in the manner prescribed by an Act of Parliament within twenty-one days of the notification by the respective Speaker.
(4) Whenever a vacancy occurs in the office of a member of the National Assembly elected under Article 97(1)(a) or (b), or of the Senate elected under Article 98(1)(a)—

(a) the respective Speaker shall, within twenty-one days after the occurrence of the vacancy, give notice in writing of the vacancy to the Independent Electoral and Boundaries Commission; and
(b) a by-election shall be held within ninety days of the occurrence of the vacancy, subject to clause (5).

(5) A vacancy referred to in clause (4) shall not be filled within the three months immediately before a general election.

Article 194 - Vacation of office of member of county assembly
(1) The office of a member of a county assembly becomes vacant—

(a) if the member dies;
(b) if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence;
(c) if the member is removed from office under this Constitution or legislation enacted under Article 80;
(d) if the member resigns in writing addressed to the speaker of the assembly;
(e) if, having been elected to the assembly—
(i) as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or
(ii) as an independent candidate, the member joins a political party;
(f) at the end of the term of the assembly; or
(g) if the member becomes disqualified for election on grounds specified in Article 193(2).

(2) Parliament shall enact legislation providing for the circumstances under which a member of a political party shall be deemed, for the purposes of clause (1)(e), to have resigned from the party.

Political Parties Act, 2011
Section 14 - Resignation from political party
(1) A member of a political party who intends to resign from the political party shall give a written notice prior to his resignation to—

(a) the political party;
(b) the clerk of the relevant House of Parliament, if the member is a member of Parliament; or
(c) the clerk of a county assembly, if the member is a member of a county assembly.

(2) The resignation of the member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant House or county assembly.
(3) The political party of which the person is a member, the member, or the clerk of the relevant House of Parliament or of a county assembly of which the person is a member shall notify the Registrar of such resignation within seven days of the resignation.
(3A) Upon receiving the notification under subsection (3), the Registrar shall cause the name of such member to be removed from the membership list of that political party.
(4) A person shall not be a member of more than one political party at the same time.

Held:

  1. Article 194(1)(e) of the Constitution was Kenya’s constitutionalized anti-defection or party-hopping law. In many countries throughout the world, anti-defection or party-hopping laws required any elected Member of Parliament or representative who left the party in which he or she was elected to also leave his or her seat in the legislative body and seek a new mandate from the electorate. The aim of the law was to instill party discipline by preventing political defections which could be prompted by reward of office or other similar unprincipled considerations. As was textually clear, article 194(1)(e) stipulated that a member of the county assembly who defected or changed his or her party from the one that sponsored him or her to the county assembly would lose his or her seat: the seat would become vacant upon such defection or switch of parties.
  2. The legislation contemplated in article 194(2) as well as article 92(c), (d), (e) and (i) of the Constitution was the Political Parties Act, No. 11 of 2011 aimed at clarifying the party-hopping clause as well as effectuating the regulation of political parties. Articles 101(4) and (5) of the Constitution described what happened when a vacancy arose whether by resignation of a member or through defection or death. While the two provisions spoke directly about vacancies in the National Assembly and the Senate, they applied mutatis mutandis to vacancies in the county assemblies.
  3. The locus standi to a request for an advisory opinion vested on the National Government, any State organ, or any county government. The petitioner was not any of those. To reach the conclusion that the matter was a fit one for an advisory opinion and decline to exercise jurisdiction was to deny the petitioner an opportunity to have a constitutional grievance determined by a court of law as guaranteed by article 48 of the Constitution. The original jurisdiction to determine issues of the interpretation and implementation of the Constitution and of threats to rights and fundamental freedoms, was vested in the High Court under article 165 of the Constitution.
  4. The petitioner had set out the specific set of facts that gave rise to the petition. He had pointed out the effect of the impugned communication and his understanding of the overall effect of the implementation of section 14 of the Political Parties Act. More importantly he had pointed out the threat to his rights as an elected member of county assembly and to his constituents.
  5. It was not sufficient for a party to cursorily state in its submissions that a matter should have been submitted for an advisory opinion; a party ought to demonstrate from the set of facts how the matter was not suitable for that court, which was clothed with the constitutional mandate to interpret the Constitution. The petitioner had demonstrated that that was a matter for constitutional interpretation and not one suitably amenable to a request for an advisory opinion as envisaged by article 163(6) of the Constitution.
  6. The provisions of article 2 of the Constitution were plain that the Constitution was the supreme law of Kenya and bound all. Its validity/legality could not be the subject of a challenge before the court or any State organ, the petition was not a challenge to any part of the Constitution. It was, instead, a call for the court to exercise its interpretive jurisdiction granted by article 165 of the Constitution to give an interpretation of the Constitution that harmonized articles 38, 101, and 194 of the Constitution in light of the interpretive commands given to the court by articles 4(2), 10, 19, 20 and 259 of the Constitution.
  7. There was a penumbral and apparent conflict capable of judicial interpretive resolution between article 38 of the Constitution (on political rights of citizens) on the one hand and articles 101 and 194 of the Constitution as read together with section 14 of the Political Parties Act (aimed at achieving political parties’ discipline and overall good governance through a vibrant multi-party system) on the other hand.
  8. The petitioner was not asking for any part of the Constitution to be declared unconstitutional. It was also a well-established principle of constitutional interpretation that each constitutional provision sustained the other and none was greater than the other. That was what had been popularly known as the harmonization principle.
  9. The facts of the petition were precise and the articles of the Constitution at issue specifically identified. The petition had described the factual issues and defined the legal issues at stake sufficiently to both notify the respondents the case at bar and to enable the determination by the court without the embarrassment which could be caused by vagueness.
  10. The canons of constitutional interpretation divined by the Constitution and developed by the court’s decisional law included that:
    1. the Constitution had to be interpreted in a manner that promoted its purposes, values and principles and contributed to good governance. That was the express provision of article 259(1)(a) and (d). Those constitutional purposes, values and principles were expressly stated in the Preamble and in article 10 of the Constitution. They were also discoverable through purposive interpretation of the Constitution;
    2. the Constitution had to be interpreted and be given a construction which was purposeful;
    3. the Constitution had to be interpreted holistically; only a structural holistic approach breathed life into the Constitution in the way it was intended by the framers;
    4. the Constitution had to be given a liberal and organic not a mechanistic and positivistic interpretation. It should not be interpreted as one would a mere statute;
    5. the Constitution had provided its own theory of interpretation to protect and preserve its values, objects and purposes; and 
    6. in interpreting the Constitution, non-legal considerations were important to give its true meaning and values.
  11. Articles 194(1)(e) and 103(1)(e) of the Constitution served the important constitutional value of instilling party discipline. The element of party discipline anticipated by the provisions of the Constitution was a two-edged sword: On the one hand it worked to instill discipline on the party and its elected members to the county assembly; on the other hand, it was considered a boon to the electorates as it enhanced democracy both in the party and in the county assembly.
  12. Knowing how political parties were managed, the Constitution gave room to the dissatisfied and or disgruntled member(s) to make a choice of either staying in the party or opting out. It would for instance have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election.
  13. The Political Parties Act did not allow dual membership in political parties by an individual. That democratic space provided ensured that a member of the county assembly was either loyal to his sponsoring party or if not he conscientiously resigned from the party otherwise the member was deemed to have resigned from the political party. The other purpose of articles 194(1)(e) and 101(4) and (5) of the Constitution was the right to political representation.
  14. Articles 194(1)(e) and 101(4) and (5) of the Constitution ensured that even if an elected member resigned from the party and thus lost his or her seat his electorate would have another chance of electing a new representative within 90 days as provided by the Constitution. It would violate the political rights of the electorate for the affected ward to be left with no representative for the remainder of the term in the event that their representative resigned from the political vehicle used during the election. The Constitution, however, contained the rider that no by-election should be conducted within three months to the general elections.
  15. Articles 194(1)(e) and 101(4) and (5) of the Constitution enhanced the right to freedom and association. Article 38 of the Constitution provided for political rights, including the right to make political choices by forming, participating in, and campaigning for a political party. It also provided for the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors as well as the right to be registered as a voter, to vote, to be a candidate for public office, or office within a political party and to hold office if elected. Those eternal rights were sacrosanct and at all costs had to be enhanced and protected especially in Kenya’s young multi-party democracy.
  16. One could suggest that the provision of the law had check mated politicians who were meant to frustrate the growth of political parties. Put another way, the road map of resigning from the political party had enough checks and balances to ensure that it was only those members of the county assembly that were serious who would want to take that route.
  17. From history, Kenyans intended that;
    1. elected leaders were at liberty to switch parties according to their conscience;
    2. the only penalty such an elected leader would suffer for switching parties would be to lose their elected seat;
    3. both the electorate and the elected leader would have an opportunity to vet the (defected) elected leader’s new ideology (reflected in their new party) through a by-election; and
    4. the by-election would protect the electorate both from having an elected leader whose vision and ideology no longer represented the electorate’s own vision and ideology as well as from remaining un-represented in the legislative body. That aligned with the very strong political rights entrenched in the Constitution at article 38: the right to political representation. The right enshrined in that article was protected even when an elected representative defected from their party or, if independent, joined a political party, by providing for a by-election within ninety days of the vacancy caused by the defection.
  18. The Constitution explicitly envisioned that the only time that a by-election would not be held was the ninety days before a general election ring-fenced to ensure that the IEBC had sufficient time and resources to prepare for the general elections. The constitutional intention was that no ward, constituency or county would remain unrepresented in the county assembly or Parliament for more than ninety days. A purposeful reading of the Constitution was, therefore, one that cohered the disparate provisions of the Constitution to yield that result.
  19. 19. A purposeful reading of the Constitution was one that harmonized articles 194, 101 and 38 of the Constitution . Such a construction of the Constitution would optimally do at least four things at the same time;
    1. it had to maximize the constitutional goal of instilling party discipline (through the operationalization of the anti-defection clause);
    2. it had to incentivize political parties to enhance internal democracy (through the opportunity for an elected official to seek re-election in a different party);
    3. it had to minimize the risk of non-representation of the electorate due to the effect of the anti-defection clause to the least possible period which the Constitution envisaged as 90 days (through the by-election provisions); and
    4. it had to remove the potential for legislative paralysis in the county assemblies or Parliament (by ensuring that the interpretation of articles 194, 101 and 38 of the Constitution did not lead to a possibility that the legislative bodies would be left inquorate for more than 90 days due to the effects of the anti-defection provision).
  20. The constitutional interpretation proposed by the Speaker failed to achieve the four-fold goal of purposeful interpretation. Conversely, the interpretation suggested by the petitioner did. That was because, in addition to the constitutional history;
    1. the constitutional interpretation suggested by the Speaker in the impugned communication harmed the affected wards by denying them representation for more than 180 days contrary to the constitutional intention; and
    2. the constitutional interpretation suggested by the Speaker in the impugned communication potentially harmed the county (and country) by precipitating a possible constitutional crisis through a paralysis of the County Assembly.
  21. The constitutional interpretation preferred by the Speaker in the impugned communication would result in situations where a ward electorate was left unrepresented for a period of more than 180 days at the county assembly. That was because there could be no by-election in the period of 90 days immediately preceding the general elections by dint of article 101(5) of the Constitution. The interpretation suggested by the Speaker in the impugned communication would, therefore, harm wards affected by members of county assemblies who chose or were compelled to switch parties within 180 days to the general elections. That was because such wards would remain unrepresented for the entire period of 180 days preceding the general elections.
  22. The effect of the constitutional interpretation suggested by the Speaker, the constitutional conundrum it led to and the suggested alternative constitutional construction could be stated in the following series of twelve deductive statements:
    1. The impugned communication would require members of county assemblies wishing to switch parties to write to the Speaker of the County Assembly announcing their resignations from the parties which sponsored them to the County Assembly whereupon their seats would automatically fall vacant.
    2. The Constitution, in article 101(4)(b), mandated the IEBC to arrange for a by-election to fill the vacancy within ninety (90) days (of the seats falling vacant).
    3. The Constitution in article 101(5), provided that any such vacancy could not be filled within three months (that was 90 days) immediately before a general election.
    4.  (b) and (c) above meant that if a vacancy either in Parliament or county assembly arose within 180 days immediately before a general election that was the 90 maximum days for IEBC to organize for a by-election and the 90 days ring-fenced by the Constitution in article 101(4)(b), no by-election could be held.
    5. The implication of (d) above was that if a vacancy arose within 180 days immediately before a general election, the ward, constituency or county in the case of member of county assembly, Member of Parliament, or senator respectively, would remain unrepresented for that period (of up to 180 days).
    6.  The Constitution, at article 101(4)(b) envisaged that the maximum period that a ward, constituency or county in the case of member of county assembly, Member of National Assembly, or senator respectively, could remain unrepresented was no more than 90 days.
    7. A constitutional interpretation that yielded the outcome that an action (of resignation) taken by a of member of county assembly, Member of Parliament, or senator would result in a ward, constituency or county remaining without representation for a period exceeding 90 days was, therefore, impermissibly restrictive given the outer limits set by article 101(4)(b) of the Constitution.
    8. The interpretation of article 194 of the Constitution and section 14 of the Political Parties Act given by the Speaker in the impugned communication would have the effect of bestowing on the members of the County Assembly who switched parties within the 180 days immediately preceding the general elections of September 8, 2022 with the ability and capacity to deny their wards representation for a period exceeding the maximum 90 days allowed by the Constitution. By the same token, such members of the County Assembly would have induced the democratic disability of non-representation on their ward electorate for a period of more than the 90 days which was constitutionally stipulated. Such an interpretation would, ipso facto, have the effect of needlessly diminishing the political rights guaranteed in article 38 of the Constitution of the electorate in the affected wards.
    9. For that reason, an alternative interpretation of the Constitution was constitutionally required to forestall the possibility stipulated in (h) above.
    10. The constitutionally-compliant interpretation which would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.
    11. The constitutionally-compliant interpretation in (j) above would have to be operationalized through a read in order to section 14 of the Political Parties Act to provide that a Member of Parliament or a county assembly who resigned from one political party to another at the tail end of the electoral cycle (that was within 180 days immediately preceding the general elections) needed not resign from and/or lose his seat by reason of such change of party membership.
    12. That the constitutional interpretation suggested by the petitioner as well as the relief suggested in (k) above would also forestall the possibility that mass resignations of members of county assemblies at the tail end of the electoral cycle when no by-elections could be held to re-fill the vacancies would lead to operational paralysis of the County Assembly as explained below.
  23. What section 19 of the County Governments Act meant was that while section 14(2) of the County Governments Act insulated the validity of county assembly proceedings and actions despite there being a vacancy, the county assembly had to meet the quorum threshold in order to function or for its proceedings to be valid. In other words, if members of the county assembly resigned in big enough numbers to dip below the statutory third, then the county assembly would no longer be legally quorate and would be incapable of transacting business. The consequence would be that all the functions of the county assembly would come to a standstill.
  24. It could be gleaned from section 14 of the County Governments Act that county assemblies were essentially run through committees. Therefore, since the County Assembly was generally run by committees, should there be mass resignation of members at the tail end of the electoral cycle , many committees or sub committees would be paralyzed further compounding the Assemblies’ problems. 
  25. The incidence of mass resignations leading to mass vacancies in county assemblies if the interpretation assigned to the impugned communication held sway was more than a fantastical possibility; it was a plausible probability. The consequences and implications for such a probable event were so dire for the functioning of the County that the petitioner was right to invoke article 258 of the Constitution which obligated the court to act where there was a credible threat of violation of the Constitution. The probability of quorum hitched in the whole County Assembly as well as the various committees of the Assembly constituted sufficient, cogent threat of violation of the Constitution to warrant the court to prefer an interpretation of the constitutional provisions which was more in line with the Constitution’s overall purposes, objects and principles.
  26. The constitutional interpretation taken in the impugned communication failed to cohere and harmonize all the constitutional provisions. In particular, that interpretation needlessly privileged article 194 of the Constitution and sought to have it trump over article 38 of the Constitution. That interpretation had the inimical effect of potentially harming both the ward electorate of a resigning member of the County Assembly (by leaving the ward unrepresented in the County Assembly for a period of up to 180 days – and beyond the constitutionally sanctioned maximum 90 days) as well as the whole County (by paralysing the operations and functions of the County Assembly or its committees should there be mass resignations dipping the numbers below a third of the members of the County Assembly).
  27. The only interpretation that was constitutionally sound as derived from a faithful application of the canon of constitutional interpretation applicable in Kenya was one that avoided the constitutional harms by reading the Constitution holistically and in a way that aggrandized its purposes, objects and principles. That interpretation was one that would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days. Differently put, the constitutionally-compliant interpretation was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.
  28. The constitutionally-compliant interpretation was not the one taken by the impugned communication and section14 of the Political Parties Act. Therefore, both the impugned communication and section 14 were constitutionally deficient.
  29. The interpretation to article 194(1)(e) of the Constitution as read with section 14 of the Political Parties Act taken by the Speaker in the impugned communication negated and derogated from the objects and purposes of articles 101(4) and 38 of the Constitution in view of the outer limits set in article 101(5) of the Constitution and in view of the theory of constitutional interpretation commanded by article 259(1)(d) as read together with articles 4(2); 10; 19; and 20 of the Constitution.
  30. To cure the unconstitutionality inherent in section 14 of the Political Parties Act, the court had jurisdiction to read in a proviso to section 14 of the Political Parties Act to provide that a vacancy did not arise after the last day for changing parties set by IEBC before a general election or within the 180 days preceding a general election so as to bring that statute in line with the Constitution. The instant matter was a proper case for reading in to save the legislative scheme from a declaration of unconstitutionality. Besides, the curative measure suggested was not fundamentally at odds with the intent of the legislation in question.
Petition allowed; each party to bear its own costs.
Orders:
  1. A declaration was issued that to the extent that section 14 of the Political Parties Act required a sitting member of the County Assembly to resign from their respective seats as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional null and void and of no effect for violating article 38(3((c) as read with articles 4(2); 10, 19, 20 and 259 of the Constitution.
  2. A reading in order to section 14 of the Political Parties Act was issued to the effect that a member of county assembly who switched from one political party to another; or from a political party to become an independent member; or from being an independent member to join a political party within one hundred and eighty (180) days immediately preceding the general elections needed not thereby resign from and/or lose his seat by reason of such change of party membership. The read in order would be a proviso to section 14(4) and would read: “except that a sitting member of the county assembly who intends to resign or has resigned from a political party which sponsored him to the county assembly under subsection (1) within the final one hundred and eighty (180) days immediately preceding the General Elections shall not be deemed to be a member of two political parties at the same time.”
  3. A conservatory order was issued directed to the 2nd to 50th interested parties restraining them from declaring as vacant a seat of any member of the respective county assemblies who moved from one political party to another or who was independent but joined a political party; or who was a member of a political party but resigned to become independent within one hundred and eighty (180) days immediately preceding the general elections scheduled for August 9, 2022.
CONSTITUTIONAL LAW

Procedure to be followed in disciplinary proceedings against a judicial officer

Summary Significance: The appellant in the instant case, who was then a magistrate, challenged his interdiction and dismissal for delivery of a decision a day earlier than scheduled without notifying one of the parties. The court explained the procedure to be followed in disciplinary proceedings against a judicial officer and reiterated the principles to guide courts in considering matters concerning disciplinary proceedings before the Judicial Service Commission. The court also held that the Chief Justice was not required to carry out an investigation before framing charges and interdicting the appellant. The court noted that rule 25 of the Third Schedule to the Judicial Service Act provided that the Chief Justice carries out an inquiry.

Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR) (8 July 2022) (Judgment)
Neutral citation: [2022] KESC 37 (KLR)

Supreme Court of Kenya
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
Reported by Kakai Toili
Download the Decision

Constitutional Law - commissions and independent offices - Judicial Service Commission (JSC) - disciplinary proceedings before the JSC - procedure to be followed in disciplinary proceedings against a judicial officer - what were the guiding principles in considering matters concerning disciplinary proceedings before the JSC - whether the mere overlap of roles by a statutory body carrying out quasi-judicial functions was contrary to the principle of nemo judex in causa sua (the duty to reach a decision untainted by bias) - Judicial Service Act, 2011, Third Schedule rules 10,11, 19 and 25(9).
Constitutional Law - Judiciary - Chief Justice - powers of the Chief Justice - interdiction of judicial officers - whether the Chief Justice was required to carry out an investigation before framing charges and interdicting a judicial officer - Constitution of Kenya, 2010, article 172; Judicial Service Act, 2011, section 32, Third Schedule rules 16 and 25.
Judicial Officers - doctrine of judicial immunity - nature and rationale of the doctrine of judicial immunity - whether the doctrine of judicial immunity applied where proceedings for a judicial officer’s removal had been instituted before the Judicial Service Commission for delivery of judgment earlier than scheduled and in the presence of only one party.
Civil Practice and Procedure - appeals - appeals to the Supreme Court - appeals as of right in a matter involving the interpretation or application of the Constitution - what were the requirements for one to appeal to the Supreme Court under article 163(4)(a) of the Constitution as of right in a matter of interpretation or application of the Constitution - Constitution of Kenya, 2010, article 163(4)(a).
Evidence Law - confessions and admissions - admissions in criminal vis a vis civil matters - what was the distinction between a confession and an admission - Evidence Act, Cap 80, sections 17 to 24 and 25A; Civil Procedure Rules, 2010, Order 13 rule 2.
Words and Phrases - admission - definition of admission - any statement or assertion made by a party to a case and offered against that party; an acknowledgment that facts are true - Black’s Law Dictionary.

Brief facts
The appellant was a principal magistrate at the time of his dismissal. He delivered a judgment of a matter he had reserved judgment a day earlier than scheduled and in the presence of the defendant’s counsel who emerged victorious. Counsel for the plaintiff in that case filed a formal complaint against the appellant through a letter addressed to the resident judge at Mombasa and copied to inter alia the Office of the Ombudsman. The Chief Justice instituted disciplinary proceedings against the appellant by interdicting him with immediate effect and forwarded two framed charges being: delivery of a decision a day earlier than scheduled without notifying one of the parties and absenteeism.
The Chief Justice also annexed a brief statement of the allegations to the appellant. The appellant admitted to delivering the judgment a day earlier and termed it an honest mistake. On the charge of absenteeism, he gave a detailed account of his time at the station both on duty and off duty. After an oral hearing, the respondent, Judicial Service Commission (JSC) informed the appellant that it had resolved to dismiss him with immediate effect on grounds of misconduct which had been proved on the first charge levelled against him.
Aggrieved, the appellant challenged the decision at the Employment and Labour Relations Court. The appellant claimed that he was condemned unheard and that he was not accorded a chance to cross-examine persons who gave adverse evidence against him. The appellant asserted that the JSC did not have jurisdiction to exercise judicial or administrative authority over judicial officers’ sittings in court while rendering judgments. The appellant contended that the fifteen (15) months it took to hear his disciplinary case violated his right to have expeditious and efficient administrative action. He thus prayed for among others the setting aside of his interdiction and eventual dismissal; and compensation in damages for violation of his rights. The court having found no other breach of the Constitution other than that of the appellant’s right to have an expeditious hearing infringed upon, awarded the appellant damages for that breach to the tune of Kenya Shillings one million (Ksh.1,000,000).
Aggrieved by the decision of the Employment and Labour Relations Court, the JSC filed an appeal at the Court of Appeal challenging part of the judgment that awarded the appellant damages and costs. The appellant cross-appealed and prayed for reinstatement and payment of all back salaries, enhancement of the damages and costs of the cross-appeal. The Court of Appeal held that the appellant did not prove his case and was therefore not entitled to the compensation awarded to him. The court dismissed the cross-appeal. Aggrieved, the appellant filed the instant appeal as of right in a matter involving the interpretation or application of the Constitution of Kenya, 2010 (Constitution). The JSC filed a preliminary objection contending that the appeal did not raise any matters of constitutional interpretation or application under article 163(4)(a) of the Constitution and thus sought for the same to be struck out.

Issues:

  1. What was the procedure to be followed in disciplinary proceedings against a judicial officer?
  2. What were the guiding principles in considering matters concerning disciplinary proceedings before the Judicial Service Commission?
  3. Whether the Chief Justice was required to carry out an investigation before framing charges and interdicting a judicial officer.
  4. Whether the mere overlap of roles by a statutory body carrying out quasi-judicial functions was contrary to the principle of nemo judex in causa sua (the duty to reach a decision untainted by bias).
  5. What was the nature and rationale of the doctrine of judicial immunity?
  6. Whether the doctrine of judicial immunity applied where proceedings for a judicial officer’s removal had been instituted before the Judicial Service Commission for delivery of judgment earlier than scheduled and in the presence of only one party.
  7. What were the requirements for one to appeal to the Supreme Court under article 163(4)(a) of the Constitution as of right in a matter of interpretation or application of the Constitution?
  8. What was the distinction between a confession and an admission ? Read More..

Held:

  1. Article 163(4)(a) of the Constitution had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. The only other instance when an appeal could lie to the Supreme Court was one contemplated under article 163(4)(b).
  2. It was not the mere allegation in pleadings by a party that clothed an appeal with the attributes of constitutional interpretation or application. The appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a) of the Constitution.
  3. Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate was that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application. The issues before the Employment and Labour Relations Court as well as the Court of Appeal involved the interpretation and application of the  Constitution. The instant court had jurisdiction in respect of the appeal.
  4. The right to fair hearing was enshrined under article 50(1) of the Constitution which stated that every person had the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 25 of the Constitution stipulated that certain freedoms were so fundamental that they could not be limited, despite any other provision of the Constitution. The right to a fair trial was one of those fundamental, non-derogable rights under the Constitution. That right was applicable to both judicial and administrative cases.
  5. The principles to guide the courts in considering matters concerning disciplinary proceedings before the JSC were as follows:
    1. The JSC had to comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.
    2. The JSC had to always give an employee reasonable time to defend himself or herself.
    3. An employee had to be informed the basis of complaint(s) or who his or her accusers to enable the employee defend themselves.
    4. The JSC had to furnish an employee with details of allegations against him or her.
    5. The JSC had to always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee had to be accorded fresh notice to prepare his/her defence.
    6. An employee had to be accorded a public hearing if he/she desired to have one. A decision to decline such a request had to be accompanied with reasons which should be given to the employee.
    7. An employee had to be given detailed reasons for any administrative action/decision by the JSC. An employee should access and receive any relevant documents relating to his/her matter. Any decision to the contrary had to be accompanied by a written reason.
    8. An employee had to be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice.
    9. An employee undergoing disciplinary proceedings had to be given an opportunity to call witnesses, be heard; cross examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.
  6. The court may not have applied the principles to guide the courts in considering matters concerning disciplinary proceedings before the JSC as JSC heard and determined the appellant’s case before the instant court pronounced those guiding principles.
  7. What was filed before the Employment and Labour Relations Court was not a judicial review application filed pursuant to section 9 of the Fair Administrative Actions Act. Rather, the appellant filed a substantive suit by an employee against his employer challenging the terms of the dismissal. Further, as a first appellate court, the role of the Court of Appeal, pursuant to rule 29 of the Court of Appeal Rules, 2010, was to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.
  8. Article 172(1)(c) of the Constitution provided that one of the JSC’s functions was to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament. The Judicial Service Act No. 1 of 2011 was the statute that was enacted by Parliament pursuant to article 172. The appointment, discipline and removal of judicial officers and staff was governed by section 32 of the Judicial Service Act together with the Third Schedule to the Act.
  9. The Chief Justice was not required to carry out an investigation before framing charges and interdicting the appellant. Rather, as rule 25 of the Third Schedule to the Judicial Service Act provided that the Chief Justice carries out an inquiry. Rule 16 of the Third Schedule which empowered the Chief Justice to interdict, made no reference to an investigation, only that the Chief Justice had to be satisfied that public interest required interdiction, provided that proceedings which could lead to their dismissal were being taken or were about to be taken.
  10. The Chief Justice on receiving a reply to charges framed, if not convinced by the defence raised by an officer, then forwarded the charges and reply, if any, to the JSC to determine whether or not to proceed with disciplinary proceedings. If the JSC elected to proceed with disciplinary proceedings, it then appointed a committee or panel. Therefore, it was the committee or panel of the JSC that carried out the investigation into a disciplinary case of an officer. Once the committee concluded its investigation, it prepared a report containing the charge, the evidence, the defence, its proceedings and its recommendations to the JSC to consider. The JSC then elected what to do with the report and if it concluded that a punishment was warranted, it chose appropriate sanctions from those provided under rule 19 of the Third Schedule to the Judicial Service Act. That was pursuant to rule 25(9), (10), and (11) of the Third Schedule.
  11. The principle of nemo judex in causa sua, the duty to reach a decision untainted by bias was entrenched in the Constitution as the right to fair hearing and the right to fair administrative action, pursuant to articles 50(1) and 47(1) of the Constitution. A critical exception to the principle was where the overlap of functions was a creation of statute and as long as the constitutionality of the statute was not in issue. One of the justifications that legislatures had for allowing overlapping of functions, which in normal judicial proceedings would be kept separate, was to achieve efficiency when such a body had to undertake several activities, both in administrative and adjudicative capacities. 
  12. The appellant had not called to question the constitutionality of section 32 of the Judicial Service Act or the Third Schedule to the Act, on the JSC’s functions of disciplining and removing judicial officers. In order to avoid running afoul the nemo judex in causa sua principle, a statutory body had to comply with the requirements of impartiality and independence under article 50(1) and 47 of the Constitution. The mere overlap of roles by a statutory body carrying out quasi- judicial functions was not in itself contrary to the principle of nemo judex in causa sua . Statutory bodies had to always apply and adhere to the requirements of impartiality and independence in carrying out its quasi- judicial duties.
  13. The JSC, through rule 25 of the Third Schedule to the Judicial Service Act, avoided a situation of being the accuser, the investigator, the judge and the appellate body, all rolled into one. Through rule 25, the JSC ensured that different actors took on the different roles: the Chief Justice framed the charges, a committee or panel of the JSC carried out the investigation, the JSC then played the role of judge, and finally an aggrieved party had a right of appeal to the judicial system, either by way of judicial review pursuant to section 9 of the Fair Administrative Act or substantive suit to the Employment and Labour Relations Court. In that way, there were inbuilt safeguards that ensured a judicial officer or staff had their right to fair administrative actions, and right to fair trial observed throughout the entire disciplinary process.
  14. The appellant had throughout admitted to his mistake. The law relating to admissions was found in sections 17 to 24 of the Evidence Act. Admissions in criminal matters were treated very differently from civil matters. Pursuant to section 25A of the Evidence Act confessions and admissions were both inadmissible unless made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of inspector of police, and a third party of the person’s choice.
  15. A confession was a direct acknowledgement of guilt on the part of the accused while an admission was a statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tended to prove his guilt, but which, of itself, was insufficient to found a conviction. Admissions were treated differently in civil matters, whereby pursuant to Order 13 rule 2 of the Civil Procedure Rules, 2010, judgment could be entered on the strength of an admission. Section 24 of the Evidence Act provided that admissions were not conclusive proof of the matters admitted, but they could operate as estoppels under the provisions thereinafter contained.
  16. The appellant had all along admitted to making the mistake of delivery of judgment a day earlier than scheduled and in the presence of only one party who happened to the victorious party. The circumstances of the appellant’s error were interrogated fairly substantively by the committee of the JSC. The appellant, due to his own admission, was precluded from blaming the JSC for not calling witnesses who accused him or disallowing him from cross-examining them as the same proved unnecessary.
  17. Once the appellant admitted to the error, all that was left was for him to convince the JSC that the circumstances surrounding the mistake were defensible. Further, since admitting to his mistake, when required to explain to circumstances of the mistake, it was not an unfair shifting of the burden of proof. Pursuant to section 112 of the Evidence Act, in civil proceedings when any fact was especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact was upon that party. In the instant case, the circumstances of how the mistake occurred was within the appellant’s knowledge and control as the judicial officer charged with hearing parties and rendering decisions on disputes.
  18. The JSC followed the elaborate laid out procedure set out in article 172, section 32 of the Judicial Service Act and the rules under the Third Schedule to the Judicial Service Act. The appellant was afforded an opportunity for hearing and that the same was reasonable. Consequently, the appellant was afforded the right to fair hearing, fair labour practices and fair administrative actions pursuant to articles 50, 41 and 47.
  19. Judicial immunity was meant to provide protection to judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and ensure transparency and accountability. Under the doctrine of judicial immunity, a judicial officer was absolutely immune from criminal or civil suit arising from acts taken within or even in excess of his jurisdiction and the protection or immunity of a judge also went into administrative acts. Judges and judicial officers remained unquestionably immune as long as they did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights.
  20. While a party aggrieved by a judicial officer’s decision or action could not sue them in their personal capacity, in either criminal or civil proceedings, they were not without recourse. Aggrieved parties could institute proceedings before the JSC seeking removal of judges and judicial officers. Which was the case therein. The appellant was not protected by judicial immunity in the circumstances of the case, as the complainant triggered proceedings for the appellant’s removal when they lodged their complaint with the Ombudsman.
  21. It was a long-held practice that parties were precluded from arguing their cases piecemeal. They had to present the entirety of their case at the first instances to allow the courts or administrative bodies to make a full and final determination of all pertinent issues relevant to a case. The appellant should have used every defence in his arsenal at the first instance, being while he was before the committee of the JSC defending himself. When he failed to do so, he was precluded from raising preliminary arguments thereafter, more so on appeal to the Court of Appeal. The proceedings before the JSC were lawful and the determination, following due process, to remove the appellant were well within the confines of the Constitution.
  22. The Judicial Service Act did not prescribe a time within which the JSC had to hear and determine disciplinary cases. The Judiciary’s Human Resource Policies and Procedures Manual also did not specify a time period for conclusion of disciplinary cases. Delay on its own, did not lead the court to conclude that there was infringement of rights. Where there was delay, the court had to interrogate whether the same was justifiable and thus excusable, or not. In order to do that, the court had to interrogate the circumstances of the case.
  23. The reasons the JSC had put forward demonstrated both external and internal factors, some beyond its control. The JSC was a major employer of one arm of the Government managing numerous judges, judicial officers and Judiciary staff stationed all over Kenya. A delay of fifteen (15) months, without knowing whether he would lose his job caused the appellant anguish, despair and economic distress having half his salary taken away due to being on interdiction. The JSC as the appellant’s employee was required to accord him disciplinary administrative action which was expeditious and efficient pursuant to article 47 of the Constitution. Indeed, the JSC owed that duty to each of its personnel, regardless of rank.
  24. The reasons forwarded by the JSC were not insubstantial. Key among them was the exercise of recruiting a chief justice to head the Judiciary, which needed to rank exceedingly high on the JSC’s obligations. The circumstances of the appellant’s case were distinguishable from the cases of Dennis Moturi Anyoka v Kenya Revenue Authority & 2 Others and Grace A Omolo v Attorney General & 3 others as the employers in those cases had set timelines as part of their disciplinary policies, unlike the JSC. The appellant’s case could also be distinguished from Judicial Service Commission v Daniel Ochenja as the delay therein was 26 months, which was nearly a whole year more than in the appellant’s case.
  25. The delay in the appellant’s case was not unreasonable as to warrant an award of damages. Due to having the question of its applicable administrative procedure questioned, the JSC should include a prescribed a timeline for disposal of disciplinary cases after relooking at its policy on the reasonable period it was likely to take, in hearing and expeditiously disposing of disciplinary cases.

Appeal dismissed; preliminary objection dismissed; each party to bear its own costs at the Employment and Labour Relations Court, Court of Appeal and the Supreme Court.