Decisions by foreign courts and tribunals must be examined by Kenyan courts for them to gain recognition and to be enforced
Headnote: The All-Scotland Sheriff Personal Injury Court (Scottish Court) granted locus inspection orders for a site visit of the respondent’s premises in Kenya. The respondent to halt the execution of those orders. The court held that automatic recognition of foreign decisions may result in enforcement of decisions that went against the laws or public policies of the enforcing country. The court further held that decisions by foreign courts and tribunals were not automatically recognized or enforceable in Kenya and must be examined by the courts in Kenya for them to gain recognition and to be enforced. The court found that interlocutory orders such as the impugned locus inspection orders did not fall within the parameters of the Foreign Judgments (Reciprocal Enforcement) Act because; they were not on the list of decisions that the Act applied to; and they were not final and conclusive. The court further found that the appropriate method of seeking judicial assistance was through the issuance of commission rogatoire or letter of request to the High Court in Kenya seeking assistance.

Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment)
Neutral citation: [2023] KESC 22 (KLR)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
March 31, 2023
Reported by Kakai Toili
Download the Decision

Civil Practice and Procedure – orders – interlocutory orders - interlocutory orders by foreign courts – recognition and enforcement of interlocutory orders by foreign courts - whether interlocutory orders of foreign courts could be recognized and enforced in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act - whether judicial assistance was a prerequisite in enforcing interlocutory orders of a foreign court - what was the appropriate method of foreign courts seeking judicial assistance in Kenya in the examination of witnesses, carrying out local investigations, examination or adjustment accounts; or making a partition – Civil Procedure Act, Cap 21, sections 22, 52, 54 and 55.
Civil Practice and Procedure – judgments – foreign judgments - recognition and enforcement of foreign judgments – doctrine of comity - effect of allowing universal recognition and enforcement of foreign decisions - whether decisions by foreign courts and tribunals must be examined by Kenyan courts for them to gain recognition and to be enforced – whether a court presented with a foreign judgment for recognition and enforcement could rehear the same on merits or as an appeal - Civil Procedure Act, Cap 21, section 9.
Civil Practice and Procedure – doctrine of res judicata – nature of res judicata – what was the nature of the doctrine of res judicata - Civil Procedure Act, Cap 21, section 7.
Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – jurisdiction in appeals as of right in appeals involving interpretation or application of the Constitution - what was the nature of the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution as of right in appeals involving interpretation or application of the Constitution - Constitution of Kenya, 2010, article 163(4)(a).
Words and Phrases - comity – definition of comity - a practice among political entities (as nations, states, or courts of different jurisdictions) involving esp. mutual recognition of legislative, executive and judicial acts - Black’s Law Dictionary, 9th Edition.
Words and Phrases – commission – definition of commission - a warrant or authority from the government or a court, that empowers the person named to execute official acts. The authority under which a person transacts business for another. A body of persons acting lawful authority to perform certain public services - Black’s Law Dictionary, 9th edition.

Brief facts:
The appellants were either serving or former employees of the respondent, who owned and managed tea estates. The respondent was a company incorporated under the Companies Act of Scotland with its registered office being at Scotland. The appellants filed seven suits at the All-Scotland Sheriff Personal Injury Court (Scottish Court) at Edinburgh in Scotland in respect of each appellant. The appellants claimed to have suffered work related injuries while at work in the respondent’s various tea estates and factories in Kericho, Kenya. They alleged breach of duty to provide a safe working environment on account of negligence on the respondent’s part.
The Scottish Court was asked, inter alia, to issue locus inspections orders (locus inspection orders) for a site visit of the respondent’s tea estates and factories in Kericho. The Scottish Court granted the locus inspection orders, in respect of the seven appellants for the respondent’s premises. It was those orders that the respondent sought to halt their execution. Aggrieved, the respondent, filed a petition at the Employment and Labour Relations Court (trial court) . The trial court held that interlocutory orders required judicial aid to ensure that the orders of a foreign court were not inconsistent with public policies of Kenya. The trial court found that the locus inspection orders directly impacted the right to fair hearing as well as the sovereign and territorial integrity of Kenya. The trial court concluded that the experts listed could not travel to Kenya to enforce the orders without the consent of the Kenyan authorities, judicial or Executive.
Aggrieved by the decision of the trial court, the appellants filed an appeal, at the Court of Appeal. The Court of Appeal found that though there was no provision in statute or procedure on how interlocutory orders issued by foreign courts could be enforced in Kenya, a broad reading of the statutes dictated that foreign courts were required to seek assistance either from the Kenyan Judiciary or other Kenyan authorities before enforcing court orders. Consequently, the Court of Appeal dismissed the appeal with costs to the respondent. Further aggrieved, the appellants filed the instant appeal.

Issues:
  1. Whether decisions by foreign courts and tribunals must be examined by Kenyan courts for them to gain recognition and to be enforced.
  2. Whether interlocutory orders of foreign courts could be recognized and enforced in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act.
  3. Whether a court presented with a foreign judgment for recognition and enforcement could rehear the same on merits or as an appeal.
  4. Whether judicial assistance was a prerequisite in enforcing interlocutory orders of a foreign court.
  5. What was the appropriate method of foreign courts seeking judicial assistance in Kenya in the examination of witnesses, carrying out local investigations, examination or adjustment accounts; or making a partition.
  6. What was the effect of allowing universal recognition and enforcement of foreign decisions?
  7. What was the nature of the doctrine of comity?
  8. What was the nature of the doctrine of res judicata?
  9. What was the nature of the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution as of right in appeals involving interpretation or application of the Constitution?

Relevant provisions of the law
Foreign Judgments (Reciprocal Enforcement) Act, Cap 43 Laws of Kenya
Section 3 - Judgments to which the Act applies
(1) Subject to subsections (2) and (3), this Act applies with respect to—
(a) a judgment or order of a designated court in civil proceedings whereby a sum of money is made payable, including an order for the payment of a lump sum as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another;
(b) a judgment or order of a designated court in civil proceedings under which movable property is ordered to be delivered to any person, including an order for the delivery of movable property as part of a scheme for the provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another;
(c) a judgment or order of a designated court in criminal proceedings for the payment of a sum of money in respect of compensation or damage to an injured person or for the delivery of movable property by way of restitution to an injured person;
(d) a judgment given in any court on appeal against a judgment or order of a designated court referred to in paragraphs (a) to (c);
(e) a judgment of a designated superior court for the costs of an appeal from a subordinate court, whether or not a designated court, or from an award referred to in paragraph (f); and
(f) an award in arbitration proceedings, if the award has, under the laws in force in the country where it was made, become enforceable in the same manner as a judgment given by a designated court in that country.

(2) This Act applies to a judgment referred to in subsection (1) if it—

(a) requires the judgment debtor to make an interim payment of a sum of money to the judgment creditor; or
(b) is final and conclusive as between the parties thereto,but a judgment is deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.

(3) This Act does not apply to a judgment or order—

(a) whereby a sum of money is payable or an item of movable property is deliverable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty;
(b) to the extent to which it provides for the payment of a sum of money by way of exemplary, punitive or multiple damages;
(c) for the periodical payment of money as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of the person against whom the order was made;
(d) in a matrimonial cause or matter, or determining rights in property arising out of a matrimonial relationship, not being a judgment referred to in paragraph (a) or (b) of subsection (1), whereby a sum of money is payable or item of movable property deliverable;
(e) in proceedings in connection with the custody or guardianship of children;
(f) in proceedings concerning the administration of the property or affairs of a person who is incompetent or incapable of managing and administering his property and affairs;
(g) in a matter of succession to, or administration of, estates of deceased persons whereby a sum of money is payable or movable property is deliverable;
(h) in a matter of social security or public assistance whereby a sum of money is payable by or to a public authority or fund;
(i) in bankruptcy proceedings or in proceedings for the winding-up or re-organization of a corporation or in proceedings for judicial arrangements, compositions or similar matters;
(j) in proceedings relating to damage, death or injury caused by occurrences involving nuclear matter or the emission of ionising radiation;
(k) of a designated court in any proceedings if—

(i) the bringing of those proceedings in that court was contrary to an agreement, or to an instrument in respect of which the proceedings were instituted, whereby the dispute, or the proceedings, were to be settled otherwise than in the courts of the reciprocating country; and
(ii) those proceedings were not brought in that court by, or with the agreement of, the person against whom the judgment was given;
(iii) that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of the court;

(l) which is regarded for the purposes of its enforcement as a judgment of a designated country but which was given in another country;
(m) given by a designated court in proceedings founded on a judgment of a court in another country and having as their object the enforcement of the latter judgment.

Civil Procedure Act, Cap 21 Laws of Kenya
Section 9 - When foreign judgment not conclusive
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title, except—

(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in Kenya.

Held:

  1. The court’s jurisdiction under article 163(4)(a) of the Constitution of Kenya, 2010 (the Constitution) was that it must be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the court. Where the dispute had nothing or little to do with the interpretation or application of the Constitution, the court under article 163(4)(a) would have no jurisdiction to entertain the appeal.
  2. It was the manner of enforcement, application or compliance of the orders from the Scottish Court that had been in contention right from the trial court and progressed by way of appeal to ultimately reach the instant court. It was articles 1, 50, 159 and 238 of the Constitution that had been the subject of construction and interpretation. Accordingly, the appeal fell squarely within the ambit of article 163(4)(a) of the Constitution. The court had jurisdiction to consider it.
  3. One of the cornerstones of international law was the principle of territoriality, under which, sovereign states had sole authority over their own territory. Article 2(5) and (6) of the Constitution, recognized international law (both customary and treaty law) as a source of law in Kenya. It was why Kenya being as a member of the international community was bound by the provisions of the United Nations Charter. The centerpiece of the United Nations was the sovereign equality of the Member States as enshrined under article 2(1) to (4) of the United Nations Charter.
  4. Due to the territorial nature of jurisdiction, laws of one State did not apply to other states. As different States had different laws in place depending on the State’s history, culture and priorities. Sovereignty and the principle of territoriality prevented foreign judgments from having direct operation in other countries. The effect of that principle was ultimately, no judgment of a court of one country could be executed proprio vigore (of or by its own force independently) in another country.
  5. To allow universal recognition and enforcement of foreign decisions would result in recognizing that foreign courts were superior to the national courts, thereby infringing on the sovereignty of a country. Further, due to the diversity of laws, automatic recognition may result in enforcement of decisions that went against the laws or public policies of the enforcing country. It was for that reason that there must be adequate safeguards in place. The citizens or residents of the country where the decision was sought to be enforced should not be left without protection in respect to arbitrary measures which might be taken against them in foreign countries.
  6. Parliament enacted various statutes to deal with different scenarios. For instance, in extradition proceedings, there was the Extradition (Commonwealth Countries) Act (cap 77) and Extradition (Contiguous and Foreign Countries) Act (cap 76). Extradition cases, being criminal in nature the appropriate office to initiate extradition proceedings was the Director of Public Prosecutions (DPP). The Attorney General however retained the Executive authority to receive requests for extradition and to transmit the same to the DPP for necessary action before a Magistrates Courts in Kenya.
  7. In the case of foreign judgments, Parliament enacted the Foreign Judgments (Reciprocal Enforcement) Act (cap 43) for the enforcement of judgments given in countries outside Kenya which accorded reciprocal treatment to judgments given in Kenya. Courts had an active role to play where foreign decisions were concerned.
  8. Under the Constitution, it was in the courts and tribunals established in Kenya through article 159, that the people of Kenya vested judicial authority. That was what informed the view that, of the three arms of Government, the Judiciary was the better suited authority to scrutinize the decisions of a foreign court. It was also at the juncture of such scrutiny that the courts of an enforcing country examined a decision by the foreign court or tribunal to determine if the same adhered to the Constitution and laws of the country. It was there that the country’s public policy became crucial, as decisions that went against the enforcing country’s public policy considerations would not gain recognition.
  9. Kenya being a former colony and a member of the Commonwealth, its history was intricately tied to the United Kingdom. The need for recognizing and enforcing decisions by foreign courts or tribunals was anchored upon the doctrine of comity. The application of the doctrine of comity meant that the recognition of foreign decision was not out of obligation, but rather out of convenience and utility. That approach prioritized citizen protection while taking into account the legitimate interests of foreign claimants. That approach was consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.
  10. The principles of territoriality and sovereignty were reflected in various articles of the Constitution. Pursuant to article 2(1), the Constitution was the supreme law of the land and bound all persons and all State organs at both levels of Government. Pursuant to article 2(4) of the Constitution, any law that was inconsistent with the Constitution was void, and any act or omission in contravention of the Constitution was invalid. Any foreign decision that was not consistent with the Constitution was void and would not be recognised.
  11. Article 1 of the Constitution laid out the expression of sovereignty of the people of Kenya. Article 4(1) of the Constitution declared Kenya to be a sovereign republic. The people of Kenya exercised that sovereign power themselves and through the delegated State organs such as the judicial arm of Government. Article 159(1) of the Constitution provided that judicial authority of the courts was derived from the people and vested in, and shall be exercised by, the courts and tribunals established by or under the Constitution. While article 160(1) of the Constitution provided that in the exercise of judicial authority, the Judiciary, as constituted by article 161, shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority.
  12. Judicial authority in Kenya derived from and was exercised pursuant to the Constitution. The domestic courts therefore exercised donated power that the people democratically consented to. Democratic self-rule would be threatened where foreign courts, to whom the people had not donated judicial authority, could directly exercise influence within the polity without intermediation with domestic bodies.
  13. Decisions by foreign courts and tribunals were not automatically recognized or enforceable in Kenya. They must be examined by the courts in Kenya for them to gain recognition and to be enforced . Consequently, Kenya as a sovereign State could not automatically allow citizens, individuals or officers of a foreign state to carry out upon its own territory the decisions of a foreign court, without authorization from the Kenyan Government upon recognition of the decision of the foreign court or tribunal. Such an action would violate the principle of sovereignty enshrined in the Constitution. Therefore, the appellants’ experts/examiners could not enter Kenya to execute the locus inspection orders without authorization.
  14. One of the avenues Kenya had for the recognition and enforcement of decisions from foreign courts and tribunals was the Foreign Judgments (Reciprocal Enforcement) Act, cap 43 Laws of Kenya. That was the first port of call. The preamble of the statute provided that the Act served to make new provision in Kenya for the enforcement of judgments given in countries outside Kenya which accorded reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith. Section 3(2) of the Act complemented section 3(1) as it stipulated the two conditions that the judgments must meet. Section 3(3) listed out the nature of judgments that the Act did not apply to.
  15. Scotland was one of the constituent countries of United Kingdom, and therefore was one of the reciprocating countries under the Foreign Judgments (Reciprocal Enforcement) Act. However, interlocutory orders such as the impugned locus inspection orders issued by the Scotland Court did not fall within the parameters of the statute for two reasons ;
    1. they were not on the list of decisions that the Act applied to; and
    2. the locus inspection orders were not final and conclusive.
  16. The need for decisions to be final and conclusive was founded on two principles, the conclusiveness rule and res judicata. These two concepts were interlinked and were consistent with two maxims interest reipublicae ut sit finis litium meaning it was interest of the State that there should be a limit to litigation and nemo debet bis vexari pro eadem causa meaning no person should be punished twice for the same offence.
  17. The conclusive judgment reached by the foreign court or tribunal created an indefeasible right in favour of the judgment debtor and was to be exercised against the judgment creditor. It was not the judgment but the right vested under that judgment which was recognized and enforced.
  18. The principle of res judicata resonated with Kenyan laws as it was codified under section 7 of the Civil Procedure Act. Res judicata was a doctrine of substantive law, its essence being that once the legal rights of parties had been judicially determined, such edict stood as a conclusive statement as to those rights. That was not to say that when a court was presented with a foreign judgment for recognition and enforcement it proceeded to rehear the same on merits or as an appeal on the correctness or otherwise of the judgment. The issues for considerations for the courts in Kenya when examining a foreign decision were outlined in section 9 of the Civil Procedure Act, cap 21 Laws of Kenya.
  19. Additional considerations on the jurisdiction of the foreign court were set out in sections 4 and 5 of the Foreign Judgments (Reciprocal Enforcement) Act. Broadly they were considerations on whether there was opportunity for full and fair trial, whether the court was competent to hear and determine the matter, whether the defendant had notice of the trial, whether the legal system was one that ensured impartial justice and was devoid of fraud in procuring the judgment.
  20. The locus inspection orders issued by the court in Scotland did not meet the finality test and therefore did not fall within the ambit of the Foreign Judgments (Reciprocal Enforcement) Act. The locus inspection orders were part of the discovery process in litigation. Discovery at the very basic level entailed a pre-trial procedure to ascertain facts to be presented at the trial it had constitutional underpinning in the right to access information enshrined in article 35 of the Constitution.
  21. Section 22 of the Civil Procedure Act, cap 21, empowered a court, either on its own motion or application by the parties, to make any orders as may be necessary for discovery. Sections 54 and 55 of the Civil Procedure Act fell under Part IV of the Civil Procedure Act which dealt with incidental proceedings, more specifically commissions. Section 52 therein made provision for the power of the court to issue commission. The word ‘commission’ was not defined in the Civil Procedure Act or Rules.
  22. Sections 54 and 55 of the Civil Procedure Act empowered the High Court to issue commissions for the examination of witnesses outside Kenya and required the commissions from foreign courts for examination of witnesses be approved by the High Court before execution respectively. The procedural provisions were a demonstration that judicial assistance was a prerequisite in enforcing interlocutory orders. There was a procedure to be followed when a foreign court or tribunal issued orders geared towards discovery of evidence.
  23. Order 28 of the Civil Procedure Rules, 2010 on commissions and references activated sections 52 to 55 of the Civil Procedure Act. Order 28 rule 4 made provision for the courts in Kenya to make a request for commission of taking evidence of a witness outside Kenya. While conversely, Order 28 rule 5 was on the courts in Kenya receiving commissions from foreign courts and tribunals for the examination of a witness.
  24. Part V of the High Court (Practice and Procedure) Rules provided a standard form of a letter of request to a foreign tribunal to examine witness abroad. The import of sections 54 and 55 of the Civil Procedure Act, Order 28 of the Civil Procedure Rules, as well as the High Court (Practice and Procedure) Rules made pursuant to section 10 of the Judicature Act, was that the appropriate method of seeking judicial assistance was through the issuance of commission rogatoire or letter of request to the High Court in Kenya seeking assistance. Those provisions were specific for the examination of witnesses. However, section 52 of the Civil Procedure Act listed the various types of commissions that the court had the power to issue and those were not limited to examination of witnesses. Rather, it included the power to make a local investigation; to examine or adjust accounts; or to make a partition.
  25. The nature of the orders was useful in discovery, whose purpose, was to level the litigation field, to expedite hearing, reduce costs and allow parties to gauge the case they would face at the trial. The orders may also be issued in the course of trial when the court observed the need for them in order to better discern the root of the controversy and arrive a fair and just determination. That was why Order 28 of the Civil Procedure Rules was elaborate on commissions as evinced in the Rules.
  26. The same procedure of foreign courts seeking judicial assistance in Kenya for examination of witnesses was the same procedure to be followed for carrying out local investigations, examination or adjustment accounts; or to make a partition. That procedure was through the issuance of commission rogatoire or letter of request to the High Court in Kenya seeking assistance. That procedure was not immediately apparent. The High Court and Court of Appeal were wrong for extending the spirit of the Foreign Judgments (Reciprocal Enforcement) Act beyond its application as that was not the appropriate statute that was applicable to the instant case.
  27. Ignorance of the law was not a defence. However, where the law was not easily discernible or the proper course of action to follow was not easily perceptible by both courts and litigants, then that spoke to the clarity of the law or lack thereof, rather than the fault of the litigant. The appellants could not be faulted for stumbling through the complexity of ambiguous and obstruse statutes, and failing to find a solution.
  28. The procedural steps to be undertaken as set out under Part VII – Evidence For Foreign Tribunal of the High Court Practice and Procedure Rules made pursuant to section 10 of the Judicature Act, were not clear. It was not explicitly clear whether the letter of request was to be sent to the Attorney General, the Minister (Cabinet Secretary) or directly to the Registrar of the High Court. However, for procedural propriety, the appellants were directed to pursue having the court in Scotland channel a commission rogatoire or letter of request to the Registrar of the High Court in Kenya for assistance. That would then activate or trigger the High Court in Kenya to implement the Rules as contained in Order 28 of the Civil Procedure Rules, 2010 in executing the request.
  29. The laws currently in place regarding the issue at hand, required updating in order to be brought in line with the Constitution. There was also need to harmonize those laws with the other existing laws such as the Civil Procedure Act, Rules, 2010 any other relevant laws. The High Court (Practice and Procedure) Rules in the Judicature Act were stuck in time warp! It was surprising that the law in that regard was yet to be updated. Those procedures in their current state remained a hindrance to Kenyans realizing their right to access to justice as guaranteed by article 48 of the Constitution.
  30. The United Kingdom had since repealed the Foreign Tribunals Evidence Act, 1856 and had the Evidence (Proceedings in other Jurisdictions), Act, 1975 as read together with Part 34 (II) of the Civil Procedure Rules, 1998 for assistance in proceedings in foreign courts. The assistance related to the examination of witnesses, either orally or in writing; for the production of documents, the inspection, photographing, preservation, custody or detention of any property, the taking of samples of any property and the carrying out of any experiments on or with any property, the medical examination of any person or even for the taking and testing of samples of blood from any person. There was no reason why Kenyan own laws should not be brought up to date and include the advancements both in technology and case management systems.
  31. In order to achieve compliance with the judgement, the court directed that the Attorney General, Kenya Law Reform and Parliament commence an enquiry and develop the legislation on judicial assistance in obtaining evidence for civil proceedings in foreign courts and tribunals.
  32. The award of costs would normally be guided by the principle that costs followed the event, the effect being that the party who called forth the event by instituting suit, would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs. The vital factor in setting the preference, was the judiciously exercised discretion of the court, accommodating the special circumstances of the case while being guided by ends of justice. It would be unjust and undeserved to condemn the appellants to pay costs.
Appeal dismissed.
Orders
  1. Each party shall bear their own costs of the appeal.
  2. The court directed that the judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment and develop the legislation on judicial assistance in obtaining evidence for civil proceedings in foreign courts and tribunals.


Kenya Law
Case Updates Issue 028/23-24
Case Summaries

CIVIL PRACTICE AND PROCEDURE

Requirements for a matter to be certified as being of general public importance

Headnote: The application sought the review of the ruling of the Court of Appeal denying certification of the intended appeal. The court reiterated that for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest. The court further found that the applicant opted for review of the Court of Appeal’s judgment, in effect forfeiting his right of appeal at that instance.

Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation (Application E022 of 2023) [2023] KESC 88 (KLR) (Civ) (6 October 2023) (Ruling)
Neutral citation: [2023] KESC 88 (KLR)
Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, I Lenaola & W Ouko, SCJJ
October 6, 2023
Reported by Kakai Toili 
 Download the Decision

Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals in matters certified as being of general public importance - what were the requirements for a matter to be certified as being of general public importance – Constitution of Kenya, 2010, article 163(4)(b).
Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms - right to appeal - whether opting for the review of a Court of Appeal decision amounted to forfeiting the right of appeal over the decision.

Brief facts:
The application sought the review of the ruling of the Court of Appeal denying certification of the intended appeal as one involving matters of general public importance and leave to amend the notice of appeal. The applicants urged that the intended appeal raised the following questions of general public importance; conflicting case law from the Court of Appeal as to whether the in duplum principle applied retrospectively; applicability of section 4(4) and 19 of the Limitation of Actions Act prescribing a 6-year limitation period on interest on a guaranteed debt or a consent amounting to a preliminary decree; whether a guarantor assumed primary liability for the entire debt contrary to the fixed sum expressed in the contract; whether it was a clog and fetter on the equity of redemption for a chargee to charge unconscionable interest; whether a chargee was a constructive trustee of surplus monies following sale of charged property; what interest, between court rates, the bank’s fixed deposit rates or commercial rates should be applied to surplus monies held in trust by a chargor who refused to account for and refund the excess.

Issue:

  1. What were the requirements for a matter to be certified as being of general public importance ?
  2. Whether opting for the review of a Court of Appeal decision amounted to forfeiting the right of appeal over the decision. Read More..

Held:

  1. For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest.
  2. The motion lacked merit as the applicant had not satisfactorily highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification. Neither had the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest. In any event, the applicant opted for review of the Court of Appeal’s judgment, in effect forfeiting his right of appeal at that instance.
  3. The court had no jurisdiction to review certification of an intended appeal, where no right of appeal lay in the first instance. The applicants’ prayer to amend the notice of appeal dated August 8, 2019 was moot.

Application dismissed; costs of the application to be borne by the applicants.

CONCSTITUTIONAL LAW

Without any statutory or regulatory framework effectuating the rights of the marginalised, the State is simply perfecting tokenism

Headnote: The petition concerned the integrated political parties management system (IPPMS) which was stated to be a web application developed to facilitate efficient and effective management of political party records. The court also held that the 1st and 2nd respondents in failing to consult and engage the petitioners in public participation and civic education before launching the IPPMS deprived them and their communities of opportunities for self-expression in their political affairs. The court noted that there was no sufficient statutory or regulatory regime dealing with the rights of the marginalised groups or communities in Kenya. The court thus found that without any statutory or regulatory framework effectuating the rights of the marginalised, the State was simply perfecting tokenism and it was the realisation that the State was not upholding the rights of the marginalised that the Constitution expressly provided for the same.

Centre for Minority Rights Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Petition E002 of 2022) [2022] KEHC 955 (KLR) (4 April 2022) (Judgment)
Neutral citation: [2022] KEHC 955 (KLR)

High Court at Machakos
GV Odunga, J
April 4, 2022
Reported by Kakai Toili
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Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to access information – claim that the Government launched the integrated political parties management system (IPPMS) while part of the country did not have internet connectivity – claim that the launch of the IPPMS violated the rights of people from the marginalized communities - whether the development of a service that depended on internet connectivity where a segment of the society did not have internet connectivity amounted a violation of freedoms and fundamental rights of people in the affected areas – whether failure to sensitize the public on the options available as regards the checking of membership status, joining a party of choice and resigning from a party amounted to a violation of the right of access to information - Constitution of Kenya, 2010, articles 19(1), 27(4), 38, 56, 81(b) and 260; Political Parties Act, Cap 7D, sections 34B(1) and 4A(a).
Constitutional Law – national values and principles – public participation – claim that the Government launched the integrated political parties management system (IPPMS) without engaging in public participation and civic education with civil society organisations dealing with marginalised communities - whether failure to engage in public participation and civic education with civil society organisations dealing with marginalised communities and their rights before launching the IPPMS deprived the communities of opportunities for self-expression in their political affairs – Constitution of Kenya, 2010, articles 10, 35 and 81; Political Parties Act, Cap 7D, section 38..

Brief facts:
According to the petitioner, on November 10, 2021, the integrated political parties management system (IPPMS) was launched on the State’s e-Citizen platform by the Office of the Registrar of Political Parties in conjunction with the Ministry of Information, Communications and Technology (ICT) and its objective was the primary and only platform to manage the political parties’ membership register and to particularly avail the following services to Kenyans; checking of membership status, joining a party of choice and resigning from a party. The development of the IPPMS, according to the Government, was intended to enable Kenyans easily access the services and in so doing transform the Government’s service delivery to its citizens.

The petitioners lamented that the digitisation of the services impeded the political rights of minorities and indigenous peoples living in Kenya. The petitioner claimed that minorities and indigenous peoples had been subjected to historical marginalisation and legislative discrimination over the years, and the majority of their population were locked out of internet access; the primary tool in accessing any digital platform. Accordingly, the petitioner contended that the IPPMS curtailed the communities’ participation in governance and the political landscape generally. Since the minorities and indigenous communities represented a section of the populace that was limited in access to technology, and the integration of the services to an online system would further disenfranchise those groups.
The petitioner sought among other orders; that the respondents be compelled to suspend the IPPMS pending the formulation of adequate legislation and policy to specifically protect the political participation rights of minorities and indigenous peoples.

Issues:

  1. Whether the development of a service that depended on internet connectivity by the Government where a segment of the society did not have internet connectivity amounted a violation of freedoms and fundamental rights of people in the affected areas.
  2. Whether failure to sensitize the public on the options available as regards the checking of membership status, joining a party of choice and resigning from a party amounted to a violation of article 35 of the Constitution on the access to information.
  3. Whether failure to engage in public participation and civic education with civil society organisations dealing with marginalised communities and their rights before launching the integrated political parties management system deprived the communities of opportunities for self-expression in their political affairs. Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 10 - National values and principles of governance
(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—
(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions.
(2) The national values and principles of governance include—
(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency and accountability; and
(d) sustainable development.

Article 38 - Political rights
(1) Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.

Article 56 - Minorities and marginalised groups
The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups—
(a) participate and are represented in governance and other spheres of life;
(b) are provided special opportunities in educational and economic fields;
(c) are provided special opportunities for access to employment;
(d) develop their cultural values, languages and practices; and
(e) have reasonable access to water, health services and infrastructure.

Held:

  1. For one to exercise his right to participate in the activities of a political party, he must of necessity be at liberty to decide which political party to belong to and when to leave a particular party and join another party if he so wished. He also ought to have facilities that enabled him to confirm which political party the records indicated that he belonged to. Accordingly, it was important that efficient mechanisms be put into place to enable the citizens enjoy that right.
  2. The IPPMS was developed with a view to attaining efficiency in the service delivery to those who wished to access them. It therefore behooved the State to ensure that the service was availed to all parts of Kenya since the article 38 rights of the Constitution inured to all citizens. Any system being developed for the purpose of service delivery must be aimed at the realisation of the constitutional principles including the Bill of Rights which was expressed in article 19(1) of the Constitution as an integral part of Kenya’s democratic state and was the framework for social, economic and cultural policies. Accordingly, any system geared towards the abridgement of the fundamental rights could not pass the constitutional test.
  3. In developing a system such as one the subject of the petition, the State must ensure that the circumstances of the citizens were catered for so as to avoid violation of the rights of a particular sector of the citizenry. Accordingly, the place of the marginalised in the society must be protected. Article 260 of the Constitution defined “marginalised community” to mean a group of people who, because of laws or practices before, on, or after the effective date, were disadvantaged by discrimination on one or more of the grounds in article 27(4) of the Constitution.
  4. Protection of the marginalized was one of the national values and principles of governance espoused in the Constitution. The State was therefore obliged to ensure that where the prevailing circumstances disadvantaged the marginalized, affirmative action programmes designed to ensure that minorities and marginalised groups, inter alia, participated and were represented in governance and other spheres of life were put in place. Therefore, where a system such as the IPPMS would have the effect of disadvantaging the marginalized, the Constitution placed a duty on the State to ensure that there were in place such affirmative action programmes aimed at ensuring that minorities and marginalised groups were not thereby disadvantaged.
  5. Some parts of Kenya had no access to internet. It was the duty of the State to ensure that in the event that it wished to develop a particular service that depended on internet connectivity, that service was availed to all parts of the country and if not then an alternative similarly efficient system was availed. If the Government, under the guise of improving the efficient of its services purported to ignore a particular segment of the society and in the process violated their freedoms and fundamental rights, such an action could not be justified on the basis of efficiency.
  6. Article 81(b) of the Constitution provided that the electoral system ought to comply with inter alia, the principle of freedom of citizens to exercise their political rights under article 38 of the Constitution. Therefore, while section 34B(1) of the Political Parties Act commanded the 2nd respondent to establish a political parties management information system, an electronic system powered by technology, for the purpose of processing the political parties’ records and data for the purpose of the Act, in designing any system that was geared towards development or improvement of the electoral system, the State must at all times bear in mind that fact that the system must promote the rights under article 38 as opposed to curtailing the same.
  7. Under article 91(1)(e) of the Constitution every political party must respect the rights of all persons to participate in the political process, including minorities and marginalized groups while section 4A(a) of the Political Parties Act imposed upon political parties the obligation to recruit and enlist members and that in so doing the processes met the constitutional threshold under articles 91(1)(e), and 27 of the Constitution; and did not discriminate any persons including the marginalized groups and minority communities. However, the IPPMS was a system developed, not by the political parties, but by the 2nd respondent.
  8. Whereas the 2nd respondent contended that the IPPMS was developed with the involvement of all stakeholders including the political parties and the Political Parties Liaison Committee established under section 38 of the Political Parties Act and that the representatives of the various political parties had undergone training on the use of IPPMS, that did not suffice in so far as the citizens for whom the system was meant were concerned. The political parties may not necessarily act in the best interest of the members taking into account the fact that in Kenya the political parties were practically the properties of the leadership of the parties and they may well be acting in their self-interest or interest that were not necessary those of their members.
  9. Every adult citizen who wished to become a member of a political party was at liberty to use; manual registration by completing recruitment forms as long as such members consented and also through the IPPMS availed on the e-citizen platform, and web page link ippms.orpp.or.ke available for those who did not wish to use or have access to e-citizen account. Whichever way a party elected to enlist its members, such list must be submitted to the 2nd respondent for verification and certification (where required) to ensure compliance with the Political Parties Act.
  10. The IPPMS was distinct from other digital platforms as it impacted on the exercise of sovereignty protected under article 1(2) of the Constitution on the right to elect representatives and unlike the other digital Government platforms, IPPMS dealt with the right to self-determination which was the right through which all other rights flowed including the right to good governance, democracy, free and open society.
  11. The 2nd respondent did not place before the court any evidence that it took any steps towards the sensitization of the public about the options available to the public as regards the checking of membership status, joining a party of choice and resigning from a party. It seemed that the 2nd respondent was satisfied with the fact that the political parties were aware of the said options. By failing to sensitize the public about the available options the 2nd respondent failed to comply with article 35 of the Constitution on access to information.
  12. The 1st and 2nd respondents in failing to consult and engage the petitioners in public participation and civic education before launching the IPPMS deprived them and their communities of opportunities for self-expression in their political affairs.
  13. Kenya had developed a culture of procrastination in election preparations and only waited to be jumpstarted when the elections were round the corner notwithstanding the fact that the elections date was predictable and stone-carved in the Constitution. It was well known when elections were to take place. The month and the day of the elections was well set out in the Constitution and was no longer a matter of conjecture or secret weapon of the Head of State. One of the reasons behind expressly setting out the month and the day of the elections in such an important instrument as the Constitution itself was to create certainty in the electoral calendar and to enable those charged with electoral preparations to prepare themselves in advance and for the State to make necessary provisions for the realisation of the principles under article 81 of the Constitution.
  14. It had become customary for the political class to bay for electoral reforms after every election. However, that call died down after some time and it was forgotten that there was a need for such reforms until a year or two to elections when Kenya suddenly went into overdrive about some semblance of reforms. As a result, Kenya embarked on what the petitioners termed as ill-timed amendments to the law and in the process failed to adhere to the requirements of article 10 of the Constitution as the 2nd respondent failed to do in the instant case.
  15. For an election to meet the threshold of article 81 of the Constitution, it must, inter alia, be administered in an efficient and accountable manner at every stage of the process. An electoral process that was conducted in firefighting manner could not be efficient. When the electoral processes were conducted in that manner at every electoral period, to expect different results could only be termed as miraculous. Therefore, the assertion that the launch of the IPPMS a few months to election was ill-timed could not be said to be entirely without merit. The instant case was a classic case in which, all things being equal, the court would have suspended the IPPMS until after elections.
  16. The State developed the IPPMS without adhering to the provisions of article 56 of the Constitution. Not only should it have ensured that the system did not curtail the rights of the marginalised by putting in place alternative avenues through which the communities would realise their democratic rights but that the alternatives were sufficiently brought home to those affected in good time to enable them take advantage of the options.
  17. There was no sufficient statutory or regulatory regime dealing with the rights of the marginalised groups or communities in Kenya. It may well be the dearth of such regimes that had confined the minorities and the marginalised communities to the periphery. In order for the rights contemplated under articles 10, 56 and 91 of the Constitution to be realised, the State ought to take appropriate steps to make provisions that give meaningful effect to the same. The State could not continue paying lip service to the constitutional provisions while the people for which the said provisions were meant to protect were treated as if they were outside looking in without any statutory or regulatory framework effectuating the rights of the marginalised, the State was simply perfecting tokenism and it was the realisation that the State was not upholding the rights of the marginalised that the Constitution expressly provided for the same.
  18. Where the 2nd respondent failed to perform its functions or performed them in a way that violated the rights and fundamental freedoms of an individual, then the court was the proper forum for the victim of such violation to have his grievances addressed. The very reason for establishing a new legal order and vesting power to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened in the court was to protect the rights of minorities and others who could not protect their rights adequately through a democratic process. Those who were entitled to claim that protection included the social outcasts and marginalised people in the society. It was only if there was willingness to protect the worst and weakest, that everyone could be secure that everyone’s own rights would be protected.
  19. Article 56 of the Constitution placed a duty on the State to put in place affirmative action programmes designed to uplift the standards of living of minorities and marginalized groups. That was not a favour but a constitutional debt owed by those upon whom sovereign power had been delegated to those who had delegated that power including the minorities and marginalised groups.
  20. Article 23 of the Constitution provided that a court may grant appropriate relief when confronted with rights violations. The court in arriving at the appropriate relief must always consider article 1(1) of the Constitution which provided that all sovereign power belonged to the people of Kenya and shall be exercised only in accordance with the Constitution while under article 1(3)(c) sovereign power under the Constitution was delegated inter alia to the Judiciary and independent tribunals.
  21. In Kenya under the current constitutional dispensation judicial power whether exercised by the court or independent tribunals was derived from the sovereign people of Kenya and was to be administered in their name and on their behalf. To purport to administer judicial power in a manner that was contrary to the expectation of the people of Kenya would be contrary to the constitutional provisions. Therefore, in appropriate circumstances, courts of law and independent tribunals were properly entitled pursuant to article 1 of the Constitution to take into account public or national interest in determining disputes before them where there was a conflict between public interest and private interest by balancing the two and deciding where the scales of justice tilted. Therefore, the court or tribunals ought to appreciate that the principle of proportionality was part of Kenya’s jurisprudence and therefore it was not unreasonable or irrational to take that principle into account in arriving at a judicial determination.
  22. What the court ought to do when confronted with such circumstances was to consider the twin overriding principles of proportionality and equality of arms which were aimed at placing the parties before the court on equal footing and see where the scales of justice lay considering the fact that it was the business of the court, so far as possible, to secure that any transitional motions before the court did not render nugatory the ultimate end of justice. The court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.
  23. The court could not ignore the fact that the IPPMS had been used by many Kenyans in correcting their political party membership status. It may also have assisted them in choosing their parties by either joining or resigning therefrom. To suspend or reverse the system would mean that the crafty political party officials who enlisted Kenyans as members of their parties without their knowledge would have succeeded in beating the system and the law. That would clearly be inimical to the wider public interest. In the circumstances, it was not the court’s intention to throw the baby with the bathtub.

Petition partly allowed.
Orders

  1. A declaration that the State was obligated to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
  2. An order directing the respondents to put in place measures guaranteeing the full enjoyment of the fundamental rights and freedoms encapsulated under articles 6(3), 27, 35, 38 and 56 of the Constitution of Kenya, 2010, with specific attention to minorities and indigenous peoples.
  3. Costs of the petition be awarded to the petitioners to be borne by the 2nd respondent.

EVIDENCE LAW

Principles governing admission of additional evidence in appellate courts

Headnote: The application sought for admission of additional evidence to be adduced by the applicant. The court highlighted the principles governing admission of additional evidence in appellate courts.

Fanikiwa Limited v Sirikwa Squatters Group & 20 others (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 57 (KLR) (16 June 2023) (Ruling)
Neutral citation: [2023] KESC 57 (KLR)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, NS Ndungu, I Lenaola & W Ouko, SCJJ
June 16, 2023
Reported by Kakai Toili
 Download the Decision

Evidence Law – evidence -admission of evidence – admission of additional evidence in appeals - what were the principles governing admission of additional evidence in appellate courts.

Brief facts:
The application was filed by the appellant (applicant) and sought for among other orders; that the court admit additional evidence to be adduced by the applicant. The application was premised on the grounds that the trial court issued an order to cancel the proprietorship of the 7th respondent, in respect to the suit properties and also ordered that the title deeds for those parcels be issued to the 1st respondent. It was stated that the suit properties were awarded to the 1st respondent on the basis that the 7th respondent had surrendered the parcels to the Government for onward settlement of the 1st respondent’s members.
The applicants claimed that the decision by the trial court was founded upon a perceived legitimate expectation purportedly arising from a letter by the Director of Land Adjudication and Settlement and an approval by the late President Moi. The applicant claimed that the Court of Appeal held that: the 1st respondent was indubitably entitled to the suit properties on the basis of express conferment by the 7th respondent and that the express conferment alluded to was a letter by the General Manager of the 7th respondent of the suit properties.
According to the applicants, the additional evidence sought to be introduced related to; whether the 7th respondent could have surrendered land which had already been sold and transferred to purchasers; and whether the co-administrator of the estate of the 8th respondent was the chairman of the 7th respondent at the time of the sale agreement dated September 30, 2003. The applicants further claimed that the additional evidence could not have been tendered earlier for the reasons that the applicant was not a party in the trial court.

Issue:

What were the principles governing admission of additional evidence in appellate courts ? . Read More..

Held:

  1. The court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence. The principles governing admission of additional evidence in appellate courts in Kenya were as follows;
    1. the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
    2. it must be such that, if given, it would influence or impact upon the result of the verdict, although it needed not be decisive;
    3. it was shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
    4. where the additional evidence sought to be adduced removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit;
    5. the evidence must be credible in the sense that it was capable of belief;
    6. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
    7. whether a party would reasonably have been aware of and procured the further evidence in the course of trial was an essential consideration to ensure fairness and due process;
    8. where the additional evidence disclosed a strong prima facie case of willful deception of the court;
    9. the court must be satisfied that the additional evidence was not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful;
    10. a party who had been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
    11. the court would consider the proportionality and prejudice of allowing the additional evidence. That required the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
  2. The court would only allow additional evidence on a case-by-case basis and even then, sparingly with abundant caution. Even though it had been deposed that the evidence to be tendered was neither bulky nor argumentative and that it was specific, direct and extremely concise, that evidence had not been produced thus the court was left merely speculating as to its contents.
  3. The additional evidence outlined in the 7th respondent’s General Manager’s affidavit was a letter dated November 9, 2000 (the letter), from him to the Chairman of the 1st respondent requesting him to pursue the surrender by the 7th respondent of the titles to the suit properties with the relevant Government ministry for the final resettlement of the squatters, relied on by the appellate court. That letter formed part of the court record. It was nonetheless deponed that the letter was a forgery.
  4. Both superior courts relied on the letter to make a finding that the 1st respondent was entitled to the five properties on the basis of express conferment by the 7th respondent. The letter had been a running theme in both superior courts, it was the first time a claim of forgery was being made with regards to it. Even though the applicant was not a party in the trial court, the 7th respondent and the former employer of 7th respondent’s General Manager, had been a party in the matter since the trial court and had never raised the issue of the letter being a forgery. The court could not fathom why the applicant would wait until the 11th hour to make that claim. As such, the court was not convinced that the evidence could not be adduced earlier.
  5. The issue of surrender of the properties was a common thread in the matter and the 7th respondent had been a party from the onset of the matter at the trial court. Accordingly, the court was unconvinced that the additional evidence sought to be adduced by the applicant was not being utilized for the purpose of removing lacunae and filling gaps in evidence. As such, the application was an attempt by the applicant to make a fresh case in the petition. The applicant had not met the threshold for the grant of an order for admission of additional evidence.

Application dismissed with no order as to costs.