Supreme Court issues guidelines to courts, court staff, counsel, prosecutors and journalists as regarding the treatment of children facing criminal charges and children who were parties in civil suits.
Headnote The issue before the Supreme Court was whether publication of images and names of children who faced criminal charges in a public interest case was a violation of the children’s right to privacy and the right to have their best interests considered. The Supreme Court held that the respondents violated the appellants’ right to privacy, and the right to have their best interests considered of paramount importance as guaranteed under articles 31(c), and 53(2) of the Constitution (respectively).

CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others (Petition 13 (E015) of 2022) [2023] KESC 68 (KLR) (8 September 2023) (Judgment)
Neutral citation: [2023] KESC 68
Supreme Court of Kenya
PM Mwilu, DCJ and V-P; SC Wanjala, NS Ndungu, I Lenaola, and W Ouko, SCJJ
September 8, 2023
Reported by John Ribia
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Family Law – children – best interests of the child - what does the term the best interest of the child” - what was the rationale and scope of the principle of the best interests of the child - Constitution of Kenya, 2010 article 53
Constitutional Law – fundamental rights and freedoms – rights of the child – rights of the child on trial – applicable principles to be applied by courts, counsel, prosecutors, and the media in a criminal trial or a civil suit centering around a child – what principles were applicable by courts, court staff, counsel, prosecutors, and the media in protecting the best interests of the a child facing a criminal trial or a child in a civil suit – Constitution of Kenya, 2010 article 53; Children Act, 2022 sections 90, 93(5), 95, and first schedule, part XV; Children in Conflict with the Law (Practice and Procedure) Rules 2020 (Act No 8 of 2001 Sub Leg); Children Act, 2001 (repealed) sections 4(2)(3), 18, 19, 25, 74, 75, and 76(5); Child Offenders Rules, 2001 (Act No 8 of 2001 Sub Leg) (repealed); Media Council Act, 2013 (Act No 46 of 2013); Media Act, 2007 (repealed) section 18
Constitutional Law – fundamental rights and freedoms – rights of the child – rights of the child on trial – provisions restricting the publication of the details of a child facing trial – where a media house published the pictures and names of children facing trial on grounds of public interest - How did courts reconcile the best interests of the child and the competing right of the people to open justice through a public hearing, the freedom of expression of journalists, the freedom of the media and the right to access to information of the Kenyan public- whether the High Court and the Court of Appeal erred in placing public interest in the publication of the images and identities of children in a criminal trial over and above the children’s best interest - Constitution of Kenya, 2010 articles 33, 34, and 50(1); Children Act, 2022 sections 90, 93(5), 95, and first schedule, part XV; Children in Conflict with the Law (Practice and Procedure) Rules 2020 (Act No 8 of 2001 Sub Leg); Children Act, 2001 (repealed) sections 4(2)(3), 18, 19, 25, 74, 75, and 76(5); Child Offenders Rules, 2001 (Act No 8 of 2001 Sub Leg) (repealed); Media Council Act, 2013 (Act No 46 of 2013); Media Act, 2007 (repealed) section 18
Civil Practice and Procedure – constitutional petitions – claim for damages – where one had proved to the court that their rights had been violated – whether a petitioner that had proved to the High Court that their rights had been violated was required to also prove damage and injury suffered so as to be awarded damages
Civil Practice and Procedure – costs – award of costs – award of costs in public interest litigation - award of costs in a suit filed on behalf of children – whether a court could award costs against children in suits filed on behalf of children
Jurisdiction – jurisdiction of the Supreme Court – jurisdiction to determine appeals as of right in any matter involving the interpretation/application of the Constitution – where in such an appeal the appellant raised issues of fact that had not constitutional underpinning - whether the Supreme Court in an appeal filed as of right in a matter involving the interpretation/application of the Constitution, had the jurisdiction to determine matters of fact and evidence that did not have any constitutional underpinning – Constitution of Kenya, 2010 article 163(4)(a)

Brief Facts:
The appellants were seven children suspects that were facing arson related charges in a matter that was of public interest. When they were presented before court to answer to their charges, the 1st to 4th respondents aired and published the case through their respective media houses on various platforms. In their publications they revealed the faces and identities of the children.
Aggrieved the petitioners filed a constitutional petition in which they contended that their rights had been violated. In petition filed in the High Court, the appellants sought various declaratory orders; an order compelling the respondents to pay general, exemplary, punitive and aggravated damages to each minor for infringement of their rights; and an order compelling the respondents to remove the images, pictures stories or caricatures posted on the internet regarding the minors.
The respondents’ justification for doing so was, first, that they did not know that the suspects were minors in view of the fact that the proceedings were conducted in the normal manner in open court suggesting that they concerned adults; that generally, criminal proceedings are, by their nature public, open to other members of the public and the press; that the publication was a fair and accurate report of the proceedings and only exposed the minors to the extent that they were suspects of criminal involvement and misconduct; that the publications were authored and videos uploaded in public interest as a matter of informing the general public of the steps being taken, including charging in court those involved, to curb the arson menace; that it was the court’s responsibility, knowing that the case involved children, to conduct the proceedings in camera; and finally, that the minors’ right to privacy was not guaranteed in criminal proceedings but limited.
The petition before the High Court was dismissed and so was the appeal filed by the appellants at the Court of Appeal. Further aggrieved the appellants filed the instant court before the Supreme Court in which they contended that the child's best interests ought to have been prioritized over public interest; that article 21 of the Constitution places a duty on the 5th respondent and the courts as State organs, to observe, protect and promote the rights and fundamental freedoms in the Bill of Rights, especially in relation to vulnerable groups such as children.
The appellants’ further contended that the 1st to 4th respondents were guilty of irresponsible journalism; that the story was published with malicious intent, commercial consideration and profit, given prominence to gain popularity and with utter disregard for the dignity, privacy and best interest of the minors.The appellants contended that by posting a story on YouTube channels that included pictures of the children accompanied by a voice-over discussion of their alleged participation in the arson attack; that by reporting, televising, and publishing the story along with the images of the children, the respondents were in violation of the right to privacy and to protect and preserve the best interest of the children.

Issues:
  1. What does the term the best interest of the child”?
  2. What was the rationale and scope of the principle of the best interests of the child?
  3. How did courts reconcile the best interests of the child and the competing right of the people to open justice through a public hearing, the freedom of expression of journalists, the freedom of the media and the right to access to information of the Kenyan public?
  4. Whether the High Court and the Court of Appeal erred in placing public interest in the publication of the images and identities of children in a criminal trial over and above the children’s best interest.
  5. Whether a petitioner that had proved to the High Court that their rights had been violated was required to also prove damage and injury suffered so as to be awarded damages.
  6. What principles were applicable by courts, court staff, counsel, prosecutors, and the media in protecting the best interests of a child facing a criminal trial or a child in a civil suit?
  7. Whether the Supreme Court in an appeal filed as of right in a matter involving the interpretation/application of the Constitution, had the jurisdiction to determine matters of fact and evidence that did not have any constitutional underpinning.
Held:
  1. The instant appeal had properly been brought as of right pursuant to article 163(4)(a) of the Constitution. The petition filed in the High Court, the arguments before both superior courts below as well as the judgments of those courts, all involved the interpretation and application of articles 31(c), 33(1), 34 and 53(2) of the Constitution.
  2. Courts were to interpret the Constitution in a manner that promoted its purposes, values and principles and contributed to good governance. That was in addition to the consideration of national values and principles of governance under article 10 of the Constitution. They were also discoverable through purposive, holistic, organic and liberal interpretations of the Constitution.
  3. Article 53(2) of the Constitution was a right in and of itself of the child, and not merely a guiding principle. It also strengthened the broader framework of human rights under chapter four of the Constitution. The reach of article 53(2) (a child’s best interests) was not to be limited to the child's right to a name and nationality; to free basic education; to basic nutrition, shelter and health care; to be protected from abuse, neglect; to parental care and protection; not to be detained, except as a measure of last resort, and when detained, for the shortest appropriate period of time and in a separate cell from adults and in conditions that take into account the child’s age and sex, among other related rights. Article 53(2) must be interpreted to apply to all aspects of the law, civil or criminal which affected the child bearing in mind the principle of the best interest of a child. Beyond article 53, all the other rights in the Constitution applied to children, as human beings unless they were excluded because such rights only applied to adults, for example, the right to vote or to marry.
  4. Since the best interest of a child varied from case to case depending on the situation, its determination and what constituted it depended on the unique circumstances of each case. A child’s best interest was pliable, the term had not been defined by the Constitution or in United Nations Convention on the Rights of the Child (CRC) or the African Children’s Charter (ACC). However, the first schedule to the Children Act, 2022 listed 18 situations (not exhaustively) of what may constitute the best interests of the child headed “Best Interest Considerations”.
  5. In the context of criminal justice, the Children Act, 2022 affirmed the moral malleability or reformability of the child offender by emphasizing the concept of "diversion" as defined in section 2 and stipulated in Part XV of the Children Act to mean measures taken to address the root causes of the children's behavior, provide support, and help them reintegrate into society as law-abiding citizens. The primary goal was, among others, to reduce stigmatization; provide appropriate support services to reduce the likelihood of the children engaging in antisocial behaviour; reduce recidivism by children in conflict with the law; promote the rehabilitation, reconciliation, education and re-integration of the child, rather than punishment.
  6. Further, the protective procedures contained in the Children Act, including the prohibition of the imposition of a sentence of imprisonment and death penalty upon a child or committing a child under the age of twelve years to a rehabilitation school, or the prohibition of the use of words like “conviction” or “sentence” in relation to children, were all aimed at enhancing the best interest of the child and safeguarding their rights.
  7. Based on the recognition, that children in conflict with the law facing criminal charges were vulnerable due to their age and level of maturity, the trial process should not itself expose them further to avoidable intimidation, humiliation or distress. That explained why special courts had been established and special procedures adopted for the trial of children. Those procedures placed restrictions on who could attend court proceedings involving a child and permit the trial court to hold sittings in camera at which only the presiding judicial officer, officers of the court and a children’s officer were allowed to attend.
  8. Article 50(1) of the Constitution provided that every person had the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 50(1) should be read along with article 50(8) which provided that the article did not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion was necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
  9. Article 50(1) and (8) of the Constitution provided for the protection of vulnerable persons. Children, by article 21 were recognized as vulnerable members of society. Unlike other vulnerable groups, children were more susceptible to experiencing harm or disadvantage due to the fact of their age and other social or physical circumstances. While article 50(1) granted the right to a fair and public hearing, sub-article (8) qualified that right by extending discretion to the court to exclude the press or other members of the public from any proceedings under specific circumstances, including to protect vulnerable persons. Further, article 50(2)(a) enjoined trial courts to ensure that every accused person had the right to a fair trial, which included the right to be presumed innocent until the contrary was proved.
  10. The presumption of innocence was a fundamental principle behind the right to a fair trial. It was guaranteed by article 50(2)(a) of the Constitution, international and regional instruments like the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR), and the African Charter on Human and Peoples' Rights (ACHPR). The mere arrest and arraignment before the court of the appellants for the purpose of taking a plea alone does not amount to a conviction.
  11. Apart from the limitations imposed by article 24 of the Constitution, there were certain rights in the Bill of Rights that were expressly self-limiting in the sense that those rights or freedoms were subject to certain declared limitations or restrictions. Self-limiting rights recognized that the exercise of one's rights should not infringe upon the rights of others or undermine public order, or safety. All the competing rights identified in the instant appeal were not non-derogable rights in terms of article 25 of the Constitution. They were subject to the limitation clause in article 24. To limit a right, it had to be demonstrated that the principles of article 24 of the Constitution had been met.
  12. The two-step threshold for limitation of any constitutional right and fundamental freedoms were, first whether the right limited was by statute. There could be no limitation of a constitutional right except by the Constitution itself or by a law. Secondly, it had to be established whether the limitation imposed on a right was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account certain relevant factors listed in article 24(1)(a) to (e) of the Constitution, which list was not exhaustive. The focus on limitation is not based only on the formal existence of the law creating the limitation, but also on the nature of that law itself. Article 19(3)(c) of the Constitution was an emphasis that the rights granted in the Bill of Rights were subject only to the limitations contemplated in the Constitution, recognizing the fact that there could be no other way of limiting a fundamental right except in the manner and to the extent provided for by the Constitution.
  13. The basis of the limitation was expressed to be the provisions of the Children Act, 2001 (repealed) the Media Act (repealed) and the Media Council Act. The appellants contended, in that regard, that by posting a story on YouTube channels that included pictures of the children accompanied by a voice-over discussion of their alleged participation in the arson attack; that by reporting, televising, and publishing the story along with the images of the children, the respondents were in violation of the right to privacy and to protect and preserve the best interest of the children.
  14. Section 4(2) of the Children Act, 2001 (repealed), which was the law in force at the time this dispute arose, recapitulated that in all actions, including actions taken in courts of law concerning children, their best interests was a primary consideration. The Children's Courts established under section 73 (section 90 of the Children Act, 2022) were enjoined when hearing criminal charges against children in conflict with the law to do so separately from proceedings involving adult offenders.
  15. Courts were guided in proceedings involving children by sections 74, 75 and 76 of the repealed Children Act, 2001. Section 74 provided that the children’s court shall be situated in a different building or room from the other courts. Sections 74 and 75 provided for the persons that may be present in a civil and criminal (respectively) suit in sittings of the children’s court and proceedings of the criminal court (respectively). Under section 74 persons were the advocates, witnesses or persons concerned with the case, parents/guardians, bona fide registered representatives of news agencies and such other persons as the court may authorise to be present. For criminal proceedings under section 75, the court could direct any persons not being members or officers of the court, or parties to the case or their advocates, may be excluded from the court.
  16. The Media Act, 2007 (repealed) imposed further limitations on the right to freedom of expression, freedom of the media and the right of access to information. Section 13 of the Media Council Act, 2013 was categorical that the public’s right to know had to be weighed against the privacy rights of people in the news. However, Media Act, 2007 (repealed) was the law governing the conduct of proceedings involving children at the time of the dispute.
  17. Section 20 of the Media Act, 2007 (repealed) enjoined the media as a general rule to apply caution in the use of pictures and names and should avoid publication when there is a possibility of harming the persons concerned. The repealed Act further prescribed in the Second Schedule, the Code of Conduct for the practice of journalists, which reiterated the duty to protect children.
  18. Limitations to ones rights could be regarded as reasonable and justifiable under article 24 of the Constitution was reached at by considering the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the caveat that the need for enjoyment of the right by one individual does not prejudice the rights of others, the consideration of the relationship between the limitation and its purpose, and whether there was a less restrictive means to achieve the purpose of the limited right. A limitation would only be justified if the court was satisfied that it met that threshold.
  19. Apart from the limitation imposed by article 24 of the Constitution on freedom of expression and of the media, similar restrictions were contained in articles 33 (freedom of expression) and 34 (freedom and independence of the media).
  20. Whereas the general rule was that criminal trials were public, there were exemptions such as matters pertaining to children and witness protection under the Witness Protection Act. Section 76 of the Children Act, 2001 (repealed), (which was replicated in section 95(5) of the Children Act, 2022), together with sections 74 and 75, (section 93 of the Children Act, 2022) did not exclude the media from covering cases involving children. They included explicitly the journalists and media professionals in the class of very few persons permitted to be present in proceedings concerning children. What was restricted was what they could disclose in their reports and publications. They could not disclose the particulars of the child, the name, image or any information that could easily lead to the identification of the child. A child who was in conflict with the law was a vulnerable victim of a failure of a system in the society and therefore all efforts must be made to protect the child from further harm even if he or she had to be processed through the criminal justice system.
  21. Ordinarily when children were in court, the practice would be to close the court to other people; that in the instant case, when the file was placed before her to take the plea, she was informed that there were parents in court. The court was crowded and behind the minors were adult remandees who were waiting for their cases to be heard as well as court orderlies who were part of the court personnel; that she could also not adjourn to her chambers because it was small; that she did not see any of the media electronic equipment in the courtroom; and that she did not consent to the taking of the pictures of the students. The trial court that determined the criminal suit was aware that the case concerned children, and that in such cases no member of the public would ordinarily be allowed to be in court during the proceedings.
  22. The 1st to 4th respondents similarly fell into a more serious error than that committed by the trial court by failing to conform to the constitutional, statutory and ethical standards of reporting. They proceeded to take pictures of the children with abandon and recklessly posted the story and videos on online channels complete with details of their images and names, alleging their participation in the arson attack in the school. For that infringement, the 1st to 4th respondents were jointly liable to the appellants and the trial and the appellate courts ought to have so found.
  23. It was no defence that the trial court did not stop them from taking pictures. Similarly, they could not rely on the argument that they did not know that the suspects were children. That would amount to an admission of professional negligence because, with a little due diligence, they would have ascertained that fact. The instant appeal having been brought as of right under article 163(4)(a) of the Constitution, and therefore matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Court’s review on appeal.
  24. The respondents must have known they were reporting a case involving children because their own publications repeatedly referred to them as minors; and that it was evident that the suspects were not only school-going but were also being charged with the offence of arson within their school. The fact that they were arraigned in court as students, in school uniform, points to them ordinarily being minors. Moreover, the fact that the court ordered for age assessment of the children and for them to be remanded at a juvenile home was sufficient notice that it was not a case of adults. There was an infraction of the law committed by the respondents. Contrary to their assertions, the appellants bore no responsibility to ensure the court was cleared as indeed they had no power or capacity to do so.
  25. The failure by the respondents to comply with the legal safeguards was not for the paucity of a guide or template of what ought to happen when dealing with children in conflict with the law. Apart from the Constitution, international instruments and statutes, there were numerous documents to guide the courts, the defence and prosecution counsel as well as all those in the child justice system.
  26. At the time the minors were charged there were numerous and widespread cases of arson attacks in schools, and whereas there was a general concern and therefore the public deserved to be informed, what was contested was the manner in which the respondents exercised that right in gathering and disseminating the information. Due to children’s vulnerability on account of their age, their cases could not be used as pawns to deter others from committing crimes, they ought to be guided, counseled and taught good behavior and how to steer clear from acts that may bring them into conflict with the law.
  27. The limitations imposed by the Children Act on the public hearing of cases involving children and the publication of their images, names and school were reasonable. They were justifiable in an open and democratic society, considering the human dignity of the children concerned. The limitation was derived from a statute, the Children Act and also article 50(8) of the Constitution itself; the limitation was intended to protect a vulnerable group, the children; it was not a blanket limitation but one that only restricted the disclosure of the child’s name, the school or the images. In exceptional circumstances, the proceedings may be held in-camera. The limitation did not stop the media from carrying the story; the constitutional and statutory prescription on a child’s best interests did not preclude the trial and punishment of children in conflict with the law; children in conflict with the law did not enjoy immunity from criminal prosecution; the limiting provisions in the Children Act were precise as to the right or freedom to be limited and the nature and extent of the limitation. The provisions did not derogate the right in question from its core or essential content.
  28. The courts below erred in raising the status of public interest over the protection and the best interest of the children and their rights to privacy without properly subjecting the limitation to the provisions of article 24. The intrusion upon privacy of the children by publishing their particulars was demeaning not only to their dignity as individuals, but also to the integrity of their parents and the wider society of which they were part. The names, images and videos of the appellants were not essential for purposes of public information.
  29. The plea was taken in open court, even though the respondents knew of the requirement under sections 74 and 75 of the Children Act (repealed). They published, contrary to section 76(5) of the Children Act (repealed) and section 18 of the Media Act, 2007 (repealed) the names and images of the appellants who were minors. The combined respondents’ actions were in violation of articles 50(8), 31 and 53(2) of the Constitution. The limitation of the cited rights of the 1st to 4th respondents was in conformity with article 24 of the Constitution.
  30. Both the High Court and the Court of Appeal erred in applying the wrong test thereby arriving at an erroneous conclusion, absolving the respondents from liability. Moreover, the Court of Appeal’s finding that whether the minors were tried in public or in private, the gravity of the charges alone, was sufficient to cause them distress, trauma, anguish, fear and lowered self- confidence was not only erroneous but irrelevant in the circumstances. The consideration ought to have been whether there was a benefit in limiting the respondents’ rights in the manner the law provides. Had the appellate court properly addressed itself on this question, the clear answer would have been that the benefit of upholding the best interest of the appellants outweighed the loss the 1st to 4th respondents stood to suffer. The lifetime trauma and stigma the appellants were exposed to were more detrimental than the limitation of the respondents reporting the story without the appellants’ names and images.
  31. Under common law principles, an injured party was entitled to damages for the loss and injury suffered under private law causes of action, like in tortious claims. Compensation for personal loss depended on proof of such loss or damage. However, arising out of the violation of constitutional rights and fundamental freedoms of an individual under public law, the nature of the damages awardable were broadly compensatory or vindicatory, as should be apparent from the list of examples of reliefs in article 23. While it was not necessary to prove loss or damage in cases of constitutional rights violations, the court may consider the extent, nature, gravity and immensity of harm suffered by the aggrieved party when determining the appropriate remedy. In deserving cases, the redress may be in the form of an award of damages to compensate the victim. In some cases, a suitable declaration, an injunctive or conservatory order, or an order of judicial review would suffice to vindicate the right.
  32. In assessing the appropriate sum to be awarded as compensation, the court must feel satisfied that the sum would afford the victim adequate redress to vindicate the victim’s constitutional right. Assessment of the right quantum for compensation would take into account all the relevant facts and circumstances of the violation and the victim in the particular case, bearing in mind any aggravating features. The purpose of constitutional relief of an award of compensation was not necessarily intended to punish the violator, but only to vindicate the right of the victim.
  33. Once a petitioner had presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation. The approach in awarding damages or compensation in constitutional rights violation cases was different from that in tortious claims. The two courts below misdirected themselves in treating the case as if it was based on a claim of libel or one of personal injury by insisting that, even after proving an infringement, the victim must, in addition, demonstrate the extent of loss, injury or damage suffered as a result. It was erroneous for the two courts below to ignore the principles for the award of compensation in constitutional rights violation claims; namely, that once the burden of proving a violation was discharged, it was not necessary for the appellants to prove any damage or loss so as to be entitled to any of the reliefs contemplated in article 23(3) of the Constitution.
  34. Parties were bound and must abide by their pleadings, just as courts could not change the pleadings presented by the parties. It would be out of character for the Supreme Court to pronounce itself on any relief that had not flown directly from the parties. The Supreme Court could not, no matter how well-intentioned, go beyond the grounds or prayers raised by the appellants. The instant court was unable to consider the question of quantum of damages that would have been awardable.
  35. The legal action was initiated for the enforcement and advancement of constitutional justice and in the public interest. Perhaps informed by these considerations, the Court of Appeal did not award costs against the appellants even after losing the appeal.
  36. Journalists must approach their work with the highest standards of ethics bearing in mind the prevailing provisions of the law and the constitutional imperatives involved in every case. For the instant case, the question to ask was whether publishing the pictures of children suspected in a criminal case, would advance the best interest of the child. Journalists must seek the objective truth to obviate harm associated with misreporting.
  37. Apart from the provisions of the Constitution, international instruments and statutes there were several helpful policy documents that augment the law on children generally. Apart from simplifying the rules of procedure, those documents provided practical guidance on different aspects of children’s matters which were aimed at assisting all agencies in the child justice system to navigate the delicate contours of promoting, safeguarding, and fulfilling children’s rights. Because of the elaborate nature of those documents, which was expected of every court, prosecutor and counsel to be well conversant with. The principles were:
    1. At all times and in every circumstance, the child’s dignity, rights and well- being must be respected. A child in conflict with the law had the right to privacy during arrest, detention and appearance in court.
    2. In reporting cases concerning children in conflict with the law, the child’s image and identity, including the name, the parents, school, and residence shall not be revealed either directly or indirectly.
    3. It was the duty of the presiding officer to ensure that only those permitted by section 93(4) of the Children Act, 2022 were allowed in the courtroom where proceedings involving a child were held. Depending on the circumstances, the presiding officer may resort to section 93(5) of the Children Act and adjourn to an in-camera hearing. The prosecution and defence counsel as officers of the court were equally duty-bound to assist the court to comply with this requirement.
    4. The court, where proceedings concerning a child were being conducted, shall not be used at the same time for adults. Children’s Courts should be exclusively for children.
    5. Presiding officers could secure the privacy and confidentiality of a child in conflict with the law, a victim of physical or sexual abuse, or a child witness in court by designing an obscured or blurred screen between the child and the rest of those who are permitted to be in open court by section 93(4) of the Children Act.
    6. Code names, pseudo names, or initials of their names must be used to describe children in all children’s cases.
    7. The provisions of article 50 of the Constitution and section 235(c) of the Children Act must be adhered to in order to conclude cases involving children expeditiously.
Petition allowed.
Orders: -
  1. The Judgment of the Court of Appeal dated May 13, 2022, in Civil Appeal No 296 of 2017 was set aside, save for the determination on the costs of the appeal.
  2. The Judgment of the High Court dated February 2, 2017 in Constitutional Petition No. 56 of 2013 was set aside in its entirety.
  3. Declaration issued that the respondents violated the appellants’ right to privacy as guaranteed under article 31 (c) of the Constitution.
  4. Declaration issued that the respondents violated the appellants’ right to have their best interests considered of paramount importance as guaranteed under article 53(2) of the Constitution.
  5. Parties were to bear their own costs of the instant appeal, in the High Court and the Court of Appeal.
  6. The Supreme 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 030/23-24
Case Summaries
CIVIL PRACTICE PROCEDURE Whether the making of determinations about issues that were allegedly not in the pleadings is an error in the judgment which warrants a review.

Bank of Baroda (Kenya) Limited v Margaret Njeri Muiruri
Civil Appeal (Application) 282 of 2004
Court of Appeal at Nairobi
P N Waki, D K Musinga & S Gatembu Kairu, JJA
October 25, 2019
Reported by Beryl Ikamari

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Civil Practice and Procedure – review - grounds for review – errors - whether the making of determinations, with respect to issues that were alleged not to part of the pleadings, was an error warranting the exercise of review jurisdiction by the Court.

Brief Facts:
The applicant sought a review of the Court of Appeal's judgment delivered on October 10, 2014. It related to the question of variation of interest rates without seeking the relevant minister's approval under section 44 of the Banking Act. The Court of Appeal made determinations, inter alia, that there was no evidence that the interest rates charged by the applicant were in accordance with section 44 of the Banking Act and it was manifestly excessive and morally wrong. The court issued orders for the preparation of statements of account, by the appellant in that appeal, which included interest rates charged at different times and any amount claimed by the bank to be outstanding in each account. The orders issued also required remission of the matter back to the High Court for a determination relating to the indebtedness of the deceased's estate to the bank and whether the interest rate charged was legal.
The grounds for review were that there were errors in the judgment. The first one was that there were determinations relating to section 44 of the Banking Act and yet the issue on the import of that provision was not pleaded by the parties or before the court for determination. The second error was that the court relied on excerpts supposedly of the applicant’s witness’ testimony given in the High Court but those excerpts were not reflected in the proceedings on record.

Issue:

  1. Whether the court made determinations with respect to an issue that was not in the pleadings or before it for determination.
  2. Whether the making of determinations in a judgment, with respect to issues that were allegedly not in the pleadings, was an error in the judgment which would allow the court to exercise its review jurisdiction. Read More..

Held:

  1. The issue concerning the interest rate chargeable by the bank arose in the pleadings. Issue number 8 of the list of agreed issues for determination was on the applicable interest rate. The issue was also canvassed during the proceedings. PW1 said that the interest rate chargeable was unimaginable and like robbery and DW1 stated that he was unaware if the approval of the minister was sought with respect to the interest rate.
  2. The apparent intention behind the application was to have another bite at the cherry. A review application was not an opportunity for the applicant to re-litigate his or her case. The applicant had to lay a basis that would satisfy the court and cause it to exercise its discretion.
  3. The application did not meet the applicable legal principles and it was not appropriate for the court to exercise its residual jurisdiction of review.

Application dismissed with costs to the respondent.
JURISDICTION

Jurisdiction of the Supreme Court to issue an advisory opinion over matters pending in the High Court

Council of Governors and 47 others v Attorney General & 6 others [2019] eKLR
Reference 3 of 2019
Supreme Court of Kenya
D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Ndungu, and I Lenaola, SCJJ
October 8, 2019
Reported Ian Kiptoo

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Jurisdiction – jurisdiction of the supreme Court – jurisdiction to issue advisory opinions – Supreme Courts discretion – considerations the Supreme Court took into account in exercising its discretion to give an advisory opinion – whether the Supreme Court had jurisdiction to give an advisory opinion where issues before it, involving the question of division of revenue between the two levels of government, were pending determination before High Court – Constitution of Kenya, 2010 article 163(3); Supreme Court Act, section 31; Supreme Court Rules, rule 41

Brief Facts:
The matter before the court was a preliminary objection against a reference filed by forty-seven county governments (the applicants) seeking an advisory opinion pursuant to article 163(6) of the Constitution of Kenya, 2010 (Constitution). The preliminary objection was based on the grounds that the issues raised in the reference were subject of pending proceedings before the High Court in particular issues (b) and (d) in Wanjiru Gikonyo v Attorney General & 8 others petition no. 277 of 2019;

(b) Whether the National Treasury and the National Assembly could formulate and publish a Division of Revenue Bill based on a share of revenue which was not based on the recommendations made by the Commission on Revenue Allocation and the criteria set out in article 202 and 203(1) of the Constitution.
(d) Whether the National Assembly could enact an Appropriation Act prior to enactment of a Division of Revenue Act.

Issues (f) and (g) in Senate & 3 others v Speaker of the National Assembly & 3 others; Petition No. 252 of 2016;

(f) Whether the Controller of Budget could approve withdrawal of funds from the Consolidated Fund and County Revenue Fund in accordance with article 206(4) and 207 of the Constitution in the absence of a Division of Revenue Act for each financial year.
(g) Whether the National Treasury and Parliament could allocate funds in the national government budget for functions exclusively reserved for county governments except as provided for in article 206 (2) of the Constitution.

On the other hand, the preliminary objection was opposed by the applicants stating that the Supreme Court had jurisdiction to give an advisory opinion at the request of the national government, any state organ or any county government with respect to any matter concerning county governments; that the issues before the court were of great public importance and required urgent resolution through an advisory opinion; that the delay in passing the Division of Revenue Bill would bring the functions and obligations of county governments to a halt for lack of funds; and that it would take a long time to determine matters pending in the High Court.

Issues:

  1. What were the considerations the Supreme Court took into account in exercising its discretion to give an advisory opinion?
  2. Whether the Supreme Court had jurisdiction to give an advisory opinion where issues before it, involving the question of division of revenue between the two levels of government, were pending determination before High Court. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 163(6)
“The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”.

Supreme Court Act, 2011 (Act No. 7 of 2011)
Section 13
“An advisory opinion by the Supreme Court under Article 163(6) of the Constitution shall contain the reasons for the opinion and any judges who differ with the opinion of the majority shall give their opinions and their respective reasons”.

Supreme Court Rules
Rule 41
“The National government, a state organ or county government may apply to the Court by way of reference for an advisory opinion under Article 163(3) of the Constitution”.

Held:

  1. The court’s jurisdiction to issue advisory opinions was anchored in article 163(6) of the Constitution of Kenya, 2010 (Constitution) and section 13 of the Supreme Court Act, 2011 (Act No. 7 of 2011). Furthermore, the Rules of the Supreme Court also provided for the exercise of that jurisdiction in rule 41.
  2. The exercise of the court’s jurisdiction in article 163(6) of the Constitution was discretionary and only deserving matters would justify the exercise of such jurisdiction. The Supreme Court had to guard against improper transformation of normal dispute-issues for ordinary litigation into advisory-opinion causes: as the court had to be disinclined to take a position in discord with core principles of the Constitution, in particular, the separation of powers principle, by assuming the role of general advisor to Government.
  3. The criteria for determining whether a reference qualified for the Supreme Court’s advisory-opinion discretion was that the matter:
    1. had to fall within the ambit of article 163(6) of the Constitution: it had to be a matter concerning county government. The question as to whether a matter was one concerning county government would be determined by the court on a case-by-case basis.
    2. The only parties that could make a request for an advisory opinion were the national government, a state organ, or county government. Any other person or institution could only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae;
    3. The court would be hesitant to exercise its discretion to render an advisory opinion where the matter in respect of which the reference had been made was a subject of proceedings in a lower court. However, where the court proceedings in question had been instituted after a request had been made to the court for an advisory opinion, the court could if satisfied that it was in the public interest to do so, proceed and render an advisory opinion.
    4. Where a reference had been made to the Supreme Court the subject matter of which was also pending in a lower court, the Supreme Court could nonetheless render an advisory opinion if the applicant could demonstrate that the issue was of great public importance and requiring urgent resolution through an advisory opinion. In addition, the applicant could be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial court process.
  4. The locus standi of an applicant and the subject matter of a reference were the two paramount considerations although other factors could be considered on a case by case basis. The 2nd – 48th applicants were county governments and were qualified to seek an advisory opinion from the court. The issues raised involved matters concerning county governments, namely, the formulation, and publication of the Division of Revenue Bill, and the reasonable period for release of the equitable share of the revenue to county governments among others and also what happened when both houses of parliament failed to agree on a Division of Revenue Bill.
  5. A matter qualified to be regarded as one of county government only where: that was the case in the terms of the Constitution; statute law; and in the perception of the court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other. In the last instance, the court would conscientiously consider the relationship between the two units as that emerged from the governance operation in question, or from any pertinent scenarios of fact.
  6. There were four issues in the applicants’ reframed issues that were replicated in the reference and were presently pending hearing and determination before the High Court; issues (b) and (d) in Wanjiru Gikonyo v Attorney General & 8 others petition No. 277 of 2019 and issues (f) and (g) in Senate & 3 others v Speaker of the National Assembly & 3 others petition No. 252 of 2016
  7. When exercising its advisory opinion jurisdiction, the court proceeded on a case by case basis, analyzing the subject matter of the reference, as indicated by the public interest. The reference equally attracted several participants and involved the question of division of revenue between the two levels of governments responsible for discharging services to citizens throughout the country.
  8. The issues raised in the instant reference, despite certain issues being live before the High Court, were of general public importance hence deserving of the court’s exercise of discretion to offer an opinion. Certain issues being raised could not await the normal appeal mechanism so as to reach the court. The court therefore would exercise its discretion to render an opinion as prayed

Application dismissed with no orders as to costs.
Order:
Direction on the specific issues to be addressed by parties in submissions would be given by the Deputy Registrar to the parties on October 16, 2019.
JURISDICTION

The consent or authorization of the relevant County Government is necessary in matters involving provision of water and sanitation services.

Murang’a County Government v Murang’a South Water & Sanitation Co. Ltd & another
Constitutional Petition 16 of 2019
High Court at Murang'a
K Kimondo, J
October 29, 2019
Reported by Beryl Ikamari

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Jurisdiction - jurisdiction of the Water Tribunal - dispute involving water and sanitation services - where the dispute was not an appeal under the Water Act or a contractual dispute relating to water resources or water services - whether the Water Tribunal had jurisdiction in relation to the dispute - Water Act, No 43 of 2016, section 121.
Civil Practice and Procedure - institution of suits - doctrine of sub judice - claim that issues raised in a suit were the same issues being litigated by the parties in prior pending suits - whether the doctrine of sub judice was applicable - Civil Procedure Act (Cap 21), section 6.
Statutes - subsidiary legislation - publication of a gazette notice - claim that the consent of a county government in relation to a decision contained in a gazette notice was not sought - where the decision related to a hike in tariffs for water and sanitation services that were a function within the exclusive competence of a county government - whether gazette notice No. 4805 of May 23, 2019, which related to a tariff hike for water and sanitation services within parts of Murang'a County, was lawful - County Governments Act, No 17 of 2012, section 120; Constitution of Kenya 2010, article 174, 175, 186, 187 & part 2 section 11 of the Fourth Schedule.

Brief facts:
The 1st respondent published gazette notice No. 4805 on May 23, 2019 which sought to hike water tariffs in the sub-counties of Murang’a South, Kigumo and Kandara. The petitioner challenged that decision. It stated that the decision was illegitimate and that it was done with the collusion of the 2nd respondent (Water Services Regulatory Board -WASREB) in a manner that usurped the functions of the petitioner.
The petitioner said that water and sanitation services were a devolved function within the exclusive mandate of the County Government. The petitioner added that without its authorisation the 1st respondent had no mandate to provide water and sanitation services. The petitioner also contended that sections 72, 74, 77, 85 & 86 of the Water Act which gave the 2nd respondent powers to supervise and licence water service providers and approve water tariffs were inconsistent with article 186 as read with section 11(b) of part 2 of the Fourth Schedule to the Constitution. The petitioner sought various orders including orders of certiorari to quash the impugned gazette notice and an injunction to stop the 1st respondent from providing water services or reviewing water tariffs without its express authority.
The 1st respondent raised two objections to the petition. First, that the proper forum for the dispute was the Water Tribunal established under section 121 of the Water Act and secondly, that the matter was sub judice in light of pending cases. Both respondents objected to the petition on grounds that it was imprecise in terms of how the claim and the alleged constitutional violations were set out.

Issue:

  1. When would the Water Tribunal have jurisdiction in relation to a dispute involving water and sanitation services?
  2. What were the circumstances under which the doctrine of sub judice would be applicable?
  3. Whether the process that led to the publication of gazette notice No. 4805 of May 23, 2019, which was about a tariff hike for water and sanitation services within parts of Murang'a County, was lawful. Read More...

Held:

  1. Under section 121 of the Water Act, the jurisdiction of the Water Tribunal related to an appeal against the decision or order of the relevant Cabinet Secretary, the Authority and Regulatory Board or of any person acting under their authority. The Water Tribunal also had jurisdiction where a dispute concerning water resources or water services stemmed from a business contract and the parties had not agreed to an alternative dispute resolution mechanism. The dispute between the parties was not an appeal or a contractual dispute contemplated under section 121 of the Water Act. The petition sought the interpretation of the Constitution and some reliefs it sought were capable of being granted only by the court. Therefore, the Water Tribunal was not the proper dispute resolution forum for the parties and the dispute was properly before the court.
  2. The dispute was not between the two levels of government and it was therefore outside the purview of article 189 of the Constitution or the mechanisms of the Intergovernmental Relations Act. Therefore the court had jurisdiction to handle the dispute.
  3. Section 6 of the Civil Procedure Act provided for the doctrine of sub judice. Under the doctrine, proceedings would not continue where the matter in issue was also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claimed, litigating under the same title, where such suit or proceeding was pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
  4. A number of issues in the petition were sub judice. Prayers (i), (ii), (iii), (iv), (v) and (ix) were largely the subject of at least two prior and pending suits. Namely Kahuti Water Sanitation Co. Ltd & others v Governor Murang’a & others, Murang’a Judicial Review 5 of 2017 and Mercy Kimwe & 2 others v Governor Murang’a County & others, Murang’a Constitutional Petition 55 of 2018. Therefore, the court would not make determinations relating to prayers (i), (ii), (iii), (iv), (v) and (ix).
  5. The petition raised a new issue that was not sub judice. It related to whether the respondents acted lawfully in commencing the Regular Tariff Adjustment or review under gazette notice No. 4805 of May 23, 2019 and whether the reliefs of certiorari and a permanent injunction should issue against the notice.
  6. Section 120 of the County Governments Act provided for tariffs and pricing of public services. The power to provide for tariffs or pricing was vested in a county government or any agency delivering services in the county. The tariffs were meant to finance operations, ensure sustainability of the resource, maintain the assets, carry out repairs on aged infrastructure and extend services to new areas.
  7. The 2nd respondent received a Regular Tariff Adjustment proposal from the 1st respondent and advised it to carry out public participation. Its guidelines on the exercise were followed by the 1st respondent.
  8. Under sections 154 and 156 of the Water Act, 2016, water services providers existing under the repealed Water Act, such as the 1st respondent, were to continue to operate as the county water services providers or cross county water services providers for a limited period.
  9. Under article 187 of the Constitution as read with part 2 section 11 of the Fourth Schedule to the Constitution, water and sanitation services were a devolved function within the competence of county governments. In light of those constitutional provisions, it was doubtful that the 2nd respondent could approve water and sewerage tariffs in the county without consulting and seeking the consent of the County Government. Any other interpretation would defeat the objects and principles of devolution decreed under articles 174 and 175 of the Constitution.
  10. The 1st respondent's implementation of the Regular Tariffs Adjustment had a shaky legal and constitutional foundation. The participation of the County Executive Committee Members or Members of the County Assembly at stakeholder meetings which culminated in the review of the tariffs did not mean that the consent of the County Government had been sought. Such a tariff hike was only possible where there was express authority or consent of the County Government.

Petition partly allowed.
Orders:-

  1. A declaration that the Regular Tariff Adjustment by the 1st respondent vide Kenya gazette notice No. 4805 of May 23, 2019 without the consent of the petitioner was illegal null and void.
  2. An order of certiorari for purposes of quashing the decision of the 1st and 2nd respondents to commence the tariff review or adjustment.
  3. An order of certiorari for purposes of quashing Kenya gazette notice No. 4805 dated May 23, 2019.
  4. A permanent injunction was granted to restrain the 1st and 2nd respondents from reviewing water tariffs without the express consent or authority of the petitioner.
  5. Each party had to bear its own costs.
JURISDICTION

Jurisdiction of the Retirement Benefits Appeals Tribunal to determine appeals and grant final orders

Joshua Sembei Mutua v Attorney General & 2 others [2019] eKLR
Civil Appeal 93 of 2015
Court of Appeal at Nairobi
PN Waki, Asike-Makhandia & F Sichale, JJA
October 11, 2019
Reported by Mathenge Mukundi

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Jurisdiction - jurisdiction of the Retirement Benefits Appeals Tribunal - constitutional and statutory provisions donating jurisdiction to the tribunal - whether the tribunal had the powers to grant any final or consequential orders - whether the tribunal could apply Civil Procedure Act and Civil Procedure Rules when exercising its jurisdiction where rules to be applied were yet to be drafted by Chief Justice - Retirement Benefits Act, sections 47, 48, 49 and 52
Judicial Review – judicial review approaches – judicial review under the Constitution of Kenya, 2010 - judicial review under common law vis-à-vis judicial review under the Constitution - whether judicial review under common law and under the Constitution were complementary and mutually non-exclusive judicial review approaches - Constitution of Kenya, 2010, articles 23(3)(c) and (f) and 47; Fair Administrative Action Act, sections 4 and 7

Brief facts:
The appellant joined Kenya Airports Authority Staff Retirements Scheme (KAA-SRBS) worked thereafter for seven years and was retrenched together with other employees in 2004. He applied to commute part of his pension into a lump sum and receive the rest on a monthly basis. According to KAA-SRBS, although it should have calculated the amounts payable under rule 4(f) of the KAA Pension Scheme Trust Deed and Rules (TDRs) as amended in the year 2006, on the basis that the appellant had been retrenched, they gratuitously calculated the payment under rule 4(b) on early retirement which was more beneficial to the appellant. Under rule 4(f) the appellant would not have been entitled to any monthly pension payments.
The appellant complained that he had been underpaid. According to him, the calculations had been made under the old regime of TDRs before they were amended in 2006. He asserted that his pension ought to have been calculated at not less than 40% of his final pensionable salary and that a 9% reduction factor introduced in the 2006 amendments, which would have given him a higher pension figure, was not considered in the calculations. The appellant assertions were adopted by the Retirement Benefits Appeals Tribunal (RBAT) (the tribunal), although it applied rule 4(a) of KAA-TDRs. He sought recalibration of his pension and when KAA-SRBS declined to comply, he filed suit in the High Court which was dismissed on the grounds that the RBAT had the jurisdiction to hear the appeal and decide on it but no power to grant any final or consequential orders. Aggrieved by the decision of the High Court, the appellant filed the instant appeal.

Issue:

  1. Whether the Retirement Benefits Appeals Tribunal had the jurisdiction to:
    1. hear an appeal before it;
    2. grant any final or consequential orders.
  2. Whether the Retirement Benefits Appeals Tribunal could apply Civil Procedure Act and Civil Procedure Rules when exercising its jurisdiction where rules to be applied in the Tribunal were yet to be drafted by Chief Justice.
  3. Whether the judicial review common law and judicial review under the Constitution were complementary and non-exclusive judicial review approaches and whether a party to judicial review proceedings could choose either or both of them.Read More...

Relevant Provisions of the Law
Retirement Benefits Act
Section 49
Powers of Appeals Tribunal
1) On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.
2) Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories are administered to make a full and true reply to the interrogatories within the time specified by the Tribunal.
3) In its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding that the evidence would not otherwise be admissible under the law relating to admissibility of evidence.
4) The Tribunal shall have power to award the costs of any proceedings before it and to direct that costs shall be paid in accordance with any scale prescribed for suits in the High Court or to award a specific sum as costs.
5) All summons, notices or other documents issued under the hand of the chairman of the Tribunal shall be deemed to be issued by the Tribunal.
6) Any interested party may be represented before the Tribunal by an advocate or by any other person whom the Tribunal may, in its discretion, admit to be heard on behalf of the party.

Section 52
Rules for appeals to the Appeals Tribunal
The Chief Justice may make rules governing the making of appeals and providing for the fees to be paid, the scale of costs of any such appeal, the procedure to be followed therein, and the manner of notifying the parties thereto; and until such rules are made and subject thereto, the provisions of the Civil Procedure Act (Cap. 21) shall apply as if the matter appealed against were a decree of a subordinate court exercising original jurisdiction.

Held:

  1. Judicial review was concerned with the decision making process not with the merits of the decision. The court focused on the common law grounds of illegality, irrationality and impropriety in considering the decision making process. Judicial review could no longer be confined to the traditional common law approach as it had been elevated to a constitutional level.
  2. The Constitution of Kenya, 2010 (Constitution) had elevated the process of judicial review to a pedestal that transcended the technicalities of common law. The power of judicial review was found in the Constitution as opposed to the principle of the possibility of judicial review established by common law with constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act.
  3. The common law judicial review was embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Rules (CPR) was a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies were part of the constitutional remedies that the High Court would grant under article 23(3)(c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies implied that Kenya had one and not two mutually exclusive systems for judicial review. A party was at liberty to choose the common law Order 53 of the CPR or the constitutional and statutory review procedure. It was not fatal to adopt either or both. The common law and statutory judicial review were complementary and mutually non-exclusive judicial review approaches.
  4. Section 49 of the Retirement Benefits Act (RBA) did not expressly confer upon RBAT powers to grant certain reliefs in the exercise of its appellate jurisdiction. When testing whether a statute had conferred jurisdiction on an inferior court or a tribunal, the wording had to be strictly construed expressly and not as a matter of implication. A tribunal was a creature of statute and had only such jurisdiction as had been specifically conferred upon it by the statute.
  5. The tribunal powers of hearing an appeal and the orders that it would grant were not expressly in the Act. There ought to be clarity in the applicable legal provisions. Its jurisdiction was to hear appeals from decisions of Retirement Benefits Authority, or any dispute arising between any person and Retirement Benefits Authority as to the exercise of its power. The matter before the instant court related to an appeal from Retirement Benefits Authority and therefore the tribunal had jurisdiction to admit and hear it.
  6. Section 52 of the Retirement Benefits Act provided for the rules applicable to the tribunal. It empowered the Chief Justice to make rules on various matters, including the procedure to be followed, and declared that until such rules were made, the provisions of the Civil Procedure Act would apply as if the matter appealed against was a decree of a subordinate court exercising original jurisdiction.
  7. Until the rules as required under section 52 of the Retirement Benefits Act were made, the Civil Procedure Act and Civil Procedure Rules provided sufficient basis for the tribunal to exercise its jurisdiction. It was express power given to the tribunal to exercise mutatis mutandis. The construction adopted by the trial court that the RBAT had the power to hear the appeal and decide on it but no power to grant any final or consequential orders would result in an absurdity, anomaly or illogical outcome which courts had always avoided.

Appeal allowed with costs to the appellant; decision of the Retirement Benefits Appeals Tribunal upheld.