The National Police Service Commission cannot determine the benefits of graduate police constables without the advice of the Salaries and Remuneration Commission
Headnote: The appellants’ case was that the National Police Service Commission and the Inspector General of Police (the 2nd and 3rd respondents respectively) had been receiving degree certificates from graduate police constables in the National Police Service (the police service) but had selectively upgraded some to job group J and ignored others with similar qualifications. The court found that from a reading of the Public Service Commission Act and the Judicial Service Act (JS Act), in reviewing and making recommendations on the conditions of service, consultation with the Salaries and Remuneration Commission (SRC) was not mandatory. However, the court held that the 2nd respondent could determine the appropriate remuneration and benefits for the police service only with the advice of the SRC. The court further held that SRC’s advice was required at the point of reviewing any salary or benefit for a particular job group.

Muthuuri & 4 others v National Police Service Commission & 2 others (Petition 15 (E022) of 2021) [2023] KESC 52 (KLR) (23 June 2023) (Judgment)
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
June 23, 2023
Reported by Kakai Toili
Download the Decision

Constitutional Law – constitutional commissions – Salaries and Remuneration Commission (SRC) – role of the SRC – reviewing and making recommendations on the conditions of service of State public officers - whether consultation with the SRC was mandatory in reviewing and making recommendations on the conditions of service by the Public Service Commission and the Judicial Service Commission - whether the National Police Service Commission could determine the appropriate remuneration and benefits for the National Police Service without the advice of the Salaries and Remuneration Commission - whether the SRC’s advice was mandatory in reviewing any salary or benefit for a particular job group by the National Police Service Commission - Constitution of Kenya, 2010, article 172(1)(b), 234(2)(g) and 259(11); National Police Service Commission Act, No 30 of 2011, section 10; Salaries and Remuneration Commission Act, No 10 of 2011, section 11.
Jurisdiction – jurisdiction of courts – jurisdiction to make a determination on an un-pleaded issue - under what circumstance could a court may make a determination on an un-pleaded issue.
Constitutional Law – doctrine of legitimate expectation – principles in establishing legitimate expectation - what were the principles to consider in establishing of legitimate expectation.
Evidence Law – admissibility of evidence – admissibility of evidence of parties who were not involved in court proceedings - whether pay slips of people not involved in court proceedings as witnesses or by way of express authority in the form of affidavits or other depositions were admissible as evidence.

Brief facts:
Through a circular issued on January 1, 1969 (the 1969 circular), the then Police Commissioner granted graduate police officers in the rank of constable a salary higher than their counterparts who were not graduates. Over time, that practice developed into a policy within the police force (as it was then known) as evinced by a subsequent letter from the Permanent Secretary in charge of personnel management dated July 26, 1995 (the 1995 letter). In that letter, the Permanent Secretary directed that graduate police constables be differentiated and designated as university graduate constables and placed in job group J.
At the time of filing the petition before the Employment and Labour Relations Court (ELRC), the 1st to 4th appellants were police constables having been recruited on varying dates between 2007 and 2016. While in service, they enrolled and completed university studies attaining bachelor's degrees in different fields. The appellants’ case was that the 2nd and 3rd respondents had been receiving degree certificates from graduate police constables in the National Police Service (the police service) but had selectively and capriciously upgraded some to job group J and ignored others with similar qualifications. Consequently, they sought among other orders, a declaration that the respondents’ conduct and action amounted to denial, violation, infringement and/or threat to their fundamental rights and freedoms under the Constitution.
The ELRC allowed the petition on the basis of the evidence of some pay slips exhibited by the appellants allegedly belonging to officers designated as graduate police constables, which showed a difference in their earnings from those of the appellants, yet both categories were in the rank of police constables. The ELRC further held, on a balance of probabilities, that the press statement released on March 19, 2018 by the 2nd respondent’s chairperson, set out the 2nd respondent’s prevailing policy on the graduate constables; and that the appellants were accordingly entitled to benefit from the policy. The ELRC issued an order of mandamus directing the 2nd and 3rd respondents to pay all graduate constables salaries equivalent to that of an inspector of police (job group J).
Aggrieved, the respondents appealed to the Court of Appeal which allowed the appeal, setting aside the judgment of the ELRC in its entirety. The court found that the Constitution of Kenya, 2010 (the Constitution) had established the Salaries and Remuneration Commission (SRC) one of whose functions was to set and review the remuneration and benefits of all State officers and other public officers and that its role was recognized in the National Police Service Commission Act (NPSC Act). The court opined that the appellants and other degree holders in the police service should submit their papers to the 2nd and 3rd respondents for consideration as to their qualifications for promotion to the corresponding job groups and that such emplacements and salary grading would also have to be done in consultation with SRC. Aggrieved, the appellants filed the instant appeal.

Issues:
  1. Whether the National Police Service Commission could determine the appropriate remuneration and benefits for the National Police Service without the advice of the Salaries and Remuneration Commission.
  2. Whether consultation with the Salaries and Remuneration Commission was mandatory in reviewing and making recommendations on the conditions of service by the Public Service Commission and the Judicial Service Commission.
  3. Under what circumstance could a court may make a determination on an un-pleaded issue ?
  4. What were the principles to consider in establishing of legitimate expectation?
  5. Whether pay slips of people not involved in court proceedings as witnesses or by way of express authority in the form of affidavits or other depositions were admissible as evidence .
  6. Whether the Salaries and Remuneration Commission’s advice was mandatory in reviewing any salary or benefit for a particular job group by the National Police Service Commission.

Held:
  1. Apart from the fact that the respondents had not cross-appealed the issue of jurisdiction of the ELRC to entertain the dispute, that question was being introduced for the first time before the instant court. It was neither raised in the ELRC nor determined by the Court of Appeal. The general rule was that parties were bound by their pleadings. However, a court may make a determination on an unpleaded issue where in the course of the hearing, parties had canvassed the issue and left it to the court to determine. That was not the case in the instant matter. The court could not, in those circumstances, consider or determine the question in vacuo without the benefit of the opinions of the two superior courts below.
  2. Jurisdiction was everything. If the court found, for instance, that it did not have jurisdiction, it must down its tools at that point, save in exceptional circumstances. Appeals from the Court of Appeal would lie to the court under article 163(4) of the Constitution, either on matters of constitutional interpretation and application, or upon certification, by either the Court of Appeal or the instant court, on matters of general public importance. From the record of appeal, all through from the chain of courts starting with ELRC, to the Court of Appeal through to the instant court, the issue had remained the interpretation and application of articles 27, 41 and 47 of the Constitution. The court was clothed with the requisite jurisdiction to determine the instant appeal.
  3. The principles on legitimate expectation were as follows:
    1. There must be an express, clear and unambiguous promise given by a public authority;
    2. the expectation itself must be reasonable;
    3. the representation must be one which it was competent and lawful for the decision-maker to make; and
    4. there could not be a legitimate expectation against clear provisions of the law or the Constitution.
  4. The appellants were employed on diverse dates between 2007 and 2016. Their respective degree certificates were conferred upon them between 2015 and 2017. The origin of recruitment of graduate police constables at the level of job group J was a circular issued on January 1, 1969, followed on July 26, 1995 by a letter. At the time the 1995 letter and the circular of 1969 were issued, none of the appellants had been employed in the former police force. The 2nd respondent was also nonexistent.
  5. Save for the 4th appellant who was employed in 2007, the rest of the appellants were employed after the promulgation of the Constitution and the establishment of the 2nd respondent in 2011. The Recruitment and Appointment Regulations and Promotion Regulations were subsequently developed in 2015. Therefore, the provisions of the Constitution, the National Police Service Act and the NPSC Act, the Recruitment and Appointment Regulations, 2015, the Promotion Regulations, 2015 and the Career Progression Guidelines, 2016 applied to the appellant at the time they received their degrees between 2015 and 2017.
  6. Recruitment and promotions in the police service couldonly be done strictly in accordance with the Constitution and the law. At the time the appellants approached the respondents to consider their promotions or salaries enhancement, the ground had shifted. The circular of 1969 and the letter of 1995 could not form the basis of the claim of legitimate expectation. In the hierarchy of laws, no policy paper or letter could override written law.
  7. From the contents of the press release of March 19, 2018 by the Chairperson of the 2nd respondent, the release was a reaction to some misrepresentation in the media regarding an alleged decision by the 2nd respondent about the payment of salaries of graduate constables and officers with disabilities. The release merely confirmed that payment of special salaries (job group J) to graduate police officers in the police service was legally protected and was provided for in the new service policy guidelines.
  8. While the press release was in fact an express promise issued by a public authority, the chairperson of the 2nd respondent, it was addressing a specific category of officers and a specific problem; it merely restated the procedure of promotion of graduate police constables in accordance with the terms of the Promotion Regulations, Recruitment and Appointment Regulations and made no reference to old policy documents. In any case the press release could not replace the law or these guidelines and regulations.
  9. There was no rank in the police service categorized as graduate police constables. Under section 22 and the First Schedule to the National Police Service Act, there were thirteen (13) ranks in the police service, with the Inspector General at the apex and constables held the nadir position in the hierarchy. The Career Progression Guidelines developed by the 2nd respondent indeed made provision for two distinct entry points into the police service at the lowest level, the constable, PG 1. One could either be a holder of a Kenya Certificate of Secondary Education (KCSE) with a mean grade of D+ and above or have a Bachelor’s Degree in fields like criminology, law, police science, education, public administration, strategic management, human resource management, physical education, music, media and public relations. That was in addition to a raft of other requirements, such as basic police training course lasting not less than nine (9) months; be a Kenyan citizen; physically and medically fit; have no criminal record; met the requirements of Chapter Six of the Constitution, and must be between the age 18 and 28 years and 30 years for graduates.
  10. The procedure applied before 2010 under the 1969 circular and the letter of 1995 became obsolete and inoperative once the new ones were introduced. It was no longer mere presentation of a degree certificate by a constable to qualify for promotion to the rank of inspector. A little more was required. It was an absurdity to read into the press release a promise by the Chairperson of the 2nd respondent that the mere presentation of a degree certificate, irrespective of where it was obtained, or its authenticity or relevance, the officer would automatically be upgraded and be entitled to the salary of an inspector.
  11. To corroborate their claim of legitimate expectation and discrimination and, further to rebut the respondents’ assertion that the position of graduate constables was not recognized, or did not exist, the appellants relied on and produced copies of pay slips allegedly belonging to their colleagues. Without full terms of employment, particulars of the owners of the pay slips, and in the absence of their involvement in the proceedings as witnesses or by way of express authority in the form of affidavits or other depositions, the pay slips were of no evidential significance. Further, the pay slips were not certified as true copies of the original by the 2nd respondent who was the employer of all police officers and custodian of the pay slips. In terms of section 35 of the Evidence Act, the pay slips were inadmissible.
  12. Although generated and kept by the 2nd respondent, a pay slip was the personal property of the employee to whom it belonged. It contained sensitive confidential personal information. If evidence of a pay slip was not properly obtained, there may be a violation of the owner’s right to privacy and a violation of data protection laws. Documents belonging to third parties must flow freely from them to whoever wished to use them in court. It was unacceptable to use ‘self-help’ or clandestine means to obtain documents as doing so would be detrimental to the administration of justice.
  13. If the evidence of the pay slip was excluded, the appellants could not prove that there was a differential treatment of officers holding the same qualifications and performing the same duties and their claim to legitimate expectation fell flat. The respondents’ contention that the position of graduate constables did not exist had not been controverted.
  14. The concept of horizontal career development was recognized and formulated in regulation 12 of the Promotion Regulations, which provided for alternative avenues for career development. Regulation 12 made the scheme non-promotional. The reward was in the form of either higher financial incentives or other opportunities and rewards. The regulation vested in the 2nd respondent full discretion in the formulation and implementation of the scheme. In its implementation, the 2nd respondent took into consideration several factors.
  15. The case presented by the appellants before the ELRC was specific that, as graduate police officers of the rank of constable they were entitled, as a matter of right to a grant of salaries at the scale of job group J, equivalent to an inspector. They indeed instituted the action in the ELRC to enforce those rights.
  16. In discharging its mandate, the SRC was guided by the principles set out in article 230(5) of the Constitution, which required, among others, that SRC ensured: fiscal sustainability of the total public compensation bill, transparency and fairness in the public service. Whereas article 230(4)(b) of the Constitution integrated SRC in the determination of matters relating to remuneration and benefits of public officers, that provision must be read alongside other provisions of the Constitution which conferred power to some of the chapter fifteen commissions to review and make recommendations on the conditions of service of public officers under them.
  17. Article 234(2)(g) of the Constitution empowered the Public Service Commission (PSC) to, review and make recommendations to the National Government in respect of conditions of service, code of conduct and qualifications of officers in the public service with the exception of State offices, an office of high commissioner, ambassador or other diplomatic or consular representative of Kenya. The article also did not apply to an office or position that was subject to the Parliamentary Service Commission, Judicial Service Commission (JSC), Teachers Service Commission (TSC) and the 2nd respondent.
  18. Article 172(1)(b) of the Constitution empowered JSC to review and make recommendations on the conditions of service of the staff of the Judiciary. The JSC was equally granted the power to review and make recommendations on the conditions of service of judges, except those terms and conditions that relate to their remuneration. In other words, the JSC was at liberty and exercised freedom to determine and review the conditions of service of the staff of the Judiciary.
  19. From a reading of the Public Service Commission Act and the Judicial Service Act (JS Act), in reviewing and making recommendations on the conditions of service consultation with SRC was not mandatory .
  20. Section 10 of the NPSC Act provided specifically for the role of SRC in the 2nd respondent’s functions. The NPSC Act had specifically been amended in 2014 to include the role of SRC in the functions of the 2nd respondent. From a reading of section 10(1)(b), the 2nd respondent could determine the appropriate remuneration and benefits for the National Police Service only with the advice of the SRC. The 2nd respondent could not by any means proceed to determine the benefits of graduate police constables without the advice of the SRC . Its role was mandatory and must be obtained prior to taking any action that required that advice. The advice was binding in terms of article 259(11) of the Constitution
  21. The role of SRC did not come into play only when the 2nd respondent was determining new salaries. Its advice was also required at the point of reviewing any salary or benefit for a particular job group . The role of SRC was provided for under section 11 of the Salaries and Remuneration Commission Act.
  22. Police officers were public officers within the meaning of article 260 of the Constitution as their remuneration and benefits were payable directly out of the funds provided by Parliament. The SRC (Remuneration and Benefits of State and Public Officers) Regulations (SRC Regulations) stipulated that besides carrying out a periodical four-year review of the remuneration and benefits of State and public officers, SRC was mandated to undertake special reviews to ensure attraction and retention of critical or scarce professional skills required to effectively execute the functions of the public service. Therefore, according to the SRC Regulations, if a public organization like the 2nd respondent, which required the advice of SRC, was desirous of reviewing allowances or any remunerative benefits of any cadre of police officers, the Regulations stipulated the procedure to be followed and the factors to be considered.
  23. Where the SRC had already given its advice and salaries were set and subsequently implemented in accordance with that advice, should any public organization wish to review the existing allowances or any other remunerative benefits including extending any other form of incentives, it must submit the proposals to the SRC for consideration. If the 2nd respondent wished to ensure it attracted and retained professional skills of police constables who were holders of degrees by reviewing their remuneration packages upwards to that of job group J, to actualize their horizontal career development, SRC had to be consulted. If the 2nd respondent were to proceed to independently review the salaries of police constables with degrees, it would be tantamount to usurping the mandate of SRC.
  24. There was no proof that SRC had determined the benefits of graduate constables or that the salaries had been reviewed and that the SRC granted the 2nd respondent approval to treat the salaries of graduate constables differently from those who were not graduates. The respondents could not be ordered or directed to interfere with the appellants’ salaries without involving the SRC. The appellants had failed to prove that after the establishment of the 2nd respondent, the 2nd and 3rd respondents had been selectively and capriciously receiving degree certificates from some graduate police constables and ignoring others with similar qualifications.
  25. Police officers who were holders of degrees from recognized universities and other such institutions must follow the law and the guidelines, by submitting their applications to the authorized bodies for consideration of whether to grant either a promotion or a reward under the horizontal career development scheme.
Appeal dismissed.
Orders
  1. Parties to bear their own costs.
  2. The court directed that the sum of Kshs 6,000 deposited as security for costs upon lodging of the instant appeal, be refunded to the appellants.



Kenya Law
Case Updates Issue 034/23-24
Case Summaries
CIVIL PRACTICE PROCEDURE Enforcement of a foreign judgment was an issue of public interest warranting an appeal to the Supreme Court

Headnote:The main issues before the Supreme Court were whether the enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court, and whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court. The Supreme Court held that the question of recognition and enforcement of foreign judgments in Kenya was an issue that had transcended through the superior courts below. The applicants had an arguable appeal, the merit of which could only be interrogated at the hearing. On the facility agreement, the court held that the facility agreement entered into by the parties were private interests that did not have a bearing on public interest.

Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023 & Application E017 of 2023 (Consolidated)) [2023] KESC 90 (KLR) (6 October 2023) (Ruling)
Neutral Citation: [2023] KESC 90
Supreme Court of Kenya
PM Mwilu, DCJ and V-P; MK Ibrahim, SC Wanjala, NS Ndungu, and W Ouko, SCJJ
October 6, 2023
Reported by John Ribia

Download the Decision

Civil Practice and Procedure – appeals – appeals to the Supreme Court on matters of general public importance - whether enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court - whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court – Constitution of Kenya, 2010 article 163(4)(b)

Brief Facts
The Supreme Court in the instant ruling was determining over three applications. The applicants filed the first application in which they sought conservatory orders staying the execution of a judgment of the Court Appeal which condemned the applicant to pay USD 15,162,320.95 to the respondent for default in repayment of a loan arising from a facility agreement.
The other two applications were by the respondent which sought to strike out the applicant’s supplementary affidavits. The distinguishable difference between the two applications was that one application sought to strike out the affidavits on grounds that they presented privileged documents which had been improperly and/or unlawfully obtained. The second application contended that the documents presented in the affidavits did not form part of the record of the High Court and Court of Appeal and as such ought not to be considered and or interrogated for purposes of determination of the petition as they did not form part of the record before the Supreme Court.

Issues:

  1. Whether the enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court.
  2. Whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court. Read More..

Held:

  1. Empowered by rule 40(3) of the Supreme Court Rules, the Supreme Court may, on application of any party, direct certain documents to be excluded from the record, and an application for such exclusion may be made orally. The annexures adduced by the applicants in the supplementary affidavit were not produced in the superior courts below. It was a party’s duty to satisfy all the elements under the provisions of section 20 of the Supreme Court Act that guided the Court in admitting additional evidence. Under rule 26, a party that sought to adduce additional evidence should make a formal application to the Court. The supplementary affidavits sought to rebut averments made by the respondent. However, that did not extend to allowing the applicants to introduce additional evidence through the backdoor. Proper procedures as prescribed by the law must be followed. The applicants failed to do so. The supplementary affidavits were struck out.
  2. Under section 21 (2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, the Supreme Court had inherent power to make any ancillary or interlocutory orders that it deemed fit to make as it may be necessary for the ends of justice or prevent abuse of the process of the court. To consider whether to entertain the interlocutory relief sought, an applicant must demonstrate that the appeal was arguable and not frivolous; that if stay was not granted the appeal will be rendered nugatory; and that it was in the public interest that the order of stay was granted.
  3. The proceedings pending before the High Court did not directly arise in the instant appeal. The impugned judgment by the Court of Appeal made no reference to the instant proceedings. The stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of the High Court that declined to extend that stay orders that had been issued by the Court of Appeal. The applicants had not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, the pending proceedings before the High Court were beyond the Supreme Court’s remit.
  4. Questions of the arguability of an appeal did not call for the interrogation of the merits of the appeal and the Court, at the preliminary stage, must not make any definitive findings of either fact or law. An arguable appeal was not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinged their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violated article 50 as read with article 25 of the Constitution. That was an issue that had transcended through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. The applicants had an arguable appeal, the merit of which could only be interrogated at the hearing.
  5. In determining whether the subject matter to be stayed was reversible, a court had to balance the interest of the applicant vis-à-vis that of the respondent who was seeking to enjoy the fruits of its judgment. The balance of probability favoured the respondent. Though the respondent held securities being charges over the suit properties which were located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent was colossal with a decretal sum of USD 15,162,320.95 that continued accruing interest. The appeal before the court was founded on the enforcement and recognition of a foreign judgment as against the Supreme Court’s judgment in Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment)
  6. The money decree issued was a result of the findings on the primary dispute. The enforceability and validity of the facility agreement dated April 10, 2015 as between the different parties was a distinct issue whose determination accrued from a different course of action. The parties were, in any event, still engaged before the High Court.
  7. The respondent remained a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent did not suffice. The applicants had not demonstrated the extent to which, if at all, the alleged immunity accrues and applied to the instant case. The court could not be called upon to make a determination on immunity or otherwise of the respondent, as the issue was not on appeal before the Supreme Court, having not been subject of judicial determination in the superior courts below.
  8. The dispute between the parties arose out of the facility agreement entered into by the parties on April 10, 2015 and the terms thereunder. They were at best private interests that were at stake that did not have a bearing on public interest as the settings were specific to the parties in the dispute. Enforcement of a foreign judgment was not in and of itself an affirmation of public interest until it was interrogated further as may be applicable on a case to case basis. Prima facie, the applicants’ dispute was a matter of “private international law” or “conflict of laws”.
  9. It was premature for the Supreme Court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. That position extended to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. The applicants had not demonstrated that they could surmount the public interest criteria for exercise of our discretion in their favour.

Application partly allowed.
Orders:-

  1. The notice of motion application dated April 25, 2023 and filed on April 26, 2023 was dismissed.
  2. The notice of motion application (Petition (Application) No E012 of 2023) dated June 23, 2023 and filed on June 27, 2023 was allowed.
  3. The notice of motion application (Application No E017 of 2023) dated June 23, 2023 was allowed.
  4. Costs of the application were to abide the outcome of the appeal.
JURISDICTION

Jurisdiction of the High Court to review its decision where there was a mistake in its judgment

Headnote: The application sought the review of the mistakes/errors apparent on the face of the judgment by the High Court. The court found that there was an error or mistake which was apparent. Further, the trial court erred in finding that persons with disability ranked in priority over youths and other marginalized groups. In the circumstances, the court held that it was entitled to recall its decision for purposes of correcting the error or slip to give effect to the manifest intention of the decision.

Vincent v Langat & 5 others; Omollo & 15 others (Interested Parties) (Election Petition Appeal E001 of 2023) [2023] KEHC 22471 (KLR) (20 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22471 (KLR)

High Court at Kericho
JK Sergon, J
September 20, 2023
Reported by Kakai Toili
Download the Decision

Jurisdiction – jurisdiction of the High Court – jurisdiction to review its decisions – scope - whether the High Court could review its decision where there was a mistake in its judgment where it dismissed an appeal but disagreed with the trial court.

Brief facts
The application sought among other orders; that the mistakes/errors apparent on the face of the judgment delivered and issued on May 24, 2023 be corrected by way of review. The applicant submitted that from the judgment of the court delivered on May 24, 2023 that there were patent mistakes or errors of law or otherwise apparent on the face of record which ought to be corrected by way of review with the end result that the appeal succeeds. The applicant pointed out that the 4th issue framed by the court for determination in the judgment was whether persons with disability were nominated or otherwise appointed in priority over youths and other marginalized groups.
The applicant further pointed out that in the judgment, the court came to the conclusion that persons living with disabilities and youths were in the same category and therefore none of them ranked higher than the other and therefore it was upon the political party to identify the special interest in the broad sense and nominate the person falling within the special interest group to represent every person in that group. The applicant stated that the court having come to that conclusion should have allowed the appeal in terms of grounds 10, 11 and 12 of the memorandum of appeal. On May 24, 2023, the court delivered its judgment whereof it dismissed the appeal and upheld the decision of the trial court.

Issue:

  1. Whether the High Court could review its decision where there was a mistake in its judgment where it dismissed an appeal but disagreed with the trial court.Read More...

Held:

  1. After considering the arguments put forward, the court came to the conclusion that person with disability and the youths were in the same category and none ranked higher than the other and therefore it was upon the political party to identify the special interest in that broad sense and to nominate a person or persons falling within the special interest group to represent every person in that group.
  2. The trial court stated in its judgment delivered on February 10, 2023 that persons with disability were nominated or otherwise appointed in priority over youths and or other marginalized groups. There was an error or mistake which was apparent. The trial court erred in finding that persons with disability ranked in priority over youths and other marginalized group. In the circumstances, the court was entitled to recall its decision for purposes of correcting the error or slip to give effect to the manifest intention of the decision. The court made an accidental slip which could be corrected by review.
  3. The finding that persons with disability and the youths were in the same category and none ranked in priority over the other should have led to the automatic allowance of the appeal in terms of grounds 10, 11 and 12 of the memorandum of appeal. Those grounds could not be treated as peripheral grounds. In the circumstances, the judgment should be corrected and rectified by way of review.
  4. The court’s finding that it did not matter whether the appellant was heard or not before the decision was made did not merit to be treated as a ground for review. The court made a conscious decision before coming to the conclusion. The ground was basically a ground for appeal which could not be entertained as a ground for review.

Application allowed.
Orders

  1. The court’s judgment delivered on May 24, 2023 dismissing the appeal was set aside and was substituted with an order allowing the appeal. The judgment of the trial court delivered on February 10, 2023 vide Kericho Chief Magistrate Court, Election Petition No E002 of 2022 was set aside and was substituted with an order dismissing the petition dated September 16, 2022.
  2. Each party to bear its own costs.