Procurement and contractual agreements for the standard gauge railway done on behalf of the Kenyan and Chinese Governments were not subject to the provisions of the Public Procurement Disposal Act, 2005
Headnote: The instant appeal arose from a challenge on the procurement process for the construction of the standard gauge railway (SGR) and the resultant contracts in favour of China Road and Bridge Corporation (CRBC). The court found that the Kenya Railways Corporation (KRC) was not the procuring entity but merely an implementing entity because it only followed directives issued to it by the Executive. The court also held that the procurement and contractual agreements between KRC and CRBC were done on behalf of the Governments of Kenya and China and that squarely brought the arrangement within the realm of a government to government transaction that was not subjected to the provisions of the Public Procurement Disposal Act, 2005.

Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (Civ) (16 June 2023) (Judgment)
Neutral citation: [2023] KESC 38 (KLR)

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

Procurement Law - procuring entities - nature of procuring entities - whether a State corporation qualified to be a procuring entity where it followed directives issued to it by the Executive and never allocated funds towards a project directly from the consolidated funds - whether procurement and contractual agreements between two State corporations of two governments was a government-to-government transaction and thus not subject to the provisions of the Public Procurement and Disposal Act, 2005 - Public Procurement and Disposal Act, No 3 of 2005, section 26(6).
Evidence Law - evidence - irregularly obtained evidence - whether irregularly obtained public documents/information were admissible as evidence in court - whether documents obtained pursuant to parliamentary processes mutated into public documents where parties to a suit got into possession of the documents through an opaque process - Constitution of Kenya, 2010, article 35 and 50(4); Evidence Act, Cap 80, sections 80 and 81.
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - right to access information - when did the right to institute an action in a claim of violation of the right to access information crystallize - Constitution of Kenya, 2010, article 35.
Jurisdiction - jurisdiction of courts in environmental matters - jurisdiction in matters relating to issuance of environment impact assessment licenses - whether courts had the jurisdiction to determine matters relating to issuance of environment impact assessment licenses when the same had not been challenged at the National Environment Tribunal - Environmental Management and Co-Ordination Act, No. 8 of 1999, sections 125 and 129(1).
Civil Practice and Procedure - appeals - appeals to the Supreme Court - appeals as of right in any case involving the interpretation or application of the Constitution - what were the requirements for one to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution - Constitution of Kenya, 2010, article 163(4)(a).
Civil Practice and Procedure - doctrine of mootness - nature of the doctrine of mootness - what was the nature of the doctrine of mootness.
Words and Phrases - moot case - definition of a moot case - a matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights, and as a verb, as means to render a question as of no practical significance - Black’s Law Dictionary, 9th edition.
Words and Phrases - letter of intent - definition of letter of intent - a written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement; a noncommittal writing preliminary to a contract. A letter of intent is not meant to be binding and does not hinder the parties from bargaining with a third party. Business people typically mean not to be bound by a letter of intent, and courts ordinarily do not enforce one; but courts occasionally find that commitment has been made - Black’s Law Dictionary, 11th Edition at page 1180.

Brief facts
On August 12, 2009, the Ministry of Transport executed a memorandum of understanding (MOU) with the 4th respondent, China Road and Bridge Corporation (CRBC), a state- owned corporation of the People’s Republic of China. Under the MOU, CRBC was to undertake, at its own cost, a feasibility study of the construction of phase 1 of the standard gauge railway (SGR) and come up with a preliminary design for the project. The feasibility and preliminary design report was approved by the 1st appellant, Kenya Railways Corporation (KRC) with revisions on June 26, 2012. KRC and CBRC executed commercial contracts. In a bid to meet its portion of the funding of the project, the Government introduced a railway development levy at the rate of 1.5% of the customs value of imported goods to be charged on all imports.
The 1st, 2nd and 3rd respondents filed petitions at the High Court challenging the procurement process for the construction of the SGR and the resultant contracts in favour of CRBC. In their petition, the 1st and 2nd respondents urged that there was lack of due diligence on the part of the Government. The 1st and 2nd respondents argued that single sourcing or direct procurement for a mega project such as the SGR was illegal. Consequently, they sought among other orders; a declaration that there was no valid contract between the Government of Kenya and CRBC; and a declaration that the railway should be procured through competitive bidding.
The petition by the 3rd respondent (LSK) challenged the procurement process of the SGR project on largely similar grounds as those raised by the 1st and 2nd respondents, the only addition being that KRC should have ensured public participation in the procurement. LSK sought among other orders; an order of certiorari to quash the award of contract for the supply and installation of facilities, locomotives and rolling stock for the SGR or any agreement for the supply of the same. KRC lodged a cross petition challenging the reliance by the 1st, 2nd and 3rd respondents on documents that were produced contrary to articles 31 and 35 of the Constitution and section 80 of the Evidence Act.
The High Court dismissed the consolidated petitions and allowed the cross petition to the extent of expunging documents it had found inadmissible. The High Court found that the project was funded by a loan from China through Exim Bank and as such, the procurement in question was not subject to the Public Procurement and Disposal Act, 2005 (PPDA, 2005), but was governed by the terms of the negotiated loan. The court found that an autonomous environmental impact assessment (EIA) was conducted and an EIA license issued and that the respondents failed to challenge the EIA license issued to CRBC for the project at the National Environment Tribunal (the Tribunal). The High Court also found that the SGR was not a World Bank funded project and therefore the blacklisting of CBRC was not an automatic bar to participation of CRBC in any other project.
Aggrieved, the 1st, 2nd and 3rd respondents filed appeals at the Court of Appeal which upheld the High Court’s decision save for setting aside the finding that the procurement of the SGR project was exempt from the provisions of PPDA, 2005. It substituted the same with a declaration that KRC, as the procuring entity, failed to comply with, and violated the provisions of article227 (1) of the Constitution of Kenya, 2010 (Constitution) sections 6(1) and 29, of the PPDA, 2005 in the procurement of the SGR project. Aggrieved by the Court of Appeal’s decision, the appellants filed the instant appeal.

Issues
  1. Whether a State corporation qualified to be a procuring entity where it followed directives issued to it by the Executive and never allocated funds towards a project directly from the consolidated funds.
  2. Whether procurement and contractual agreements between two State corporations of two governments was a government-to-government transaction and thus not subject to the provisions of the Public Procurement and Disposal Act, 2005.
  3. Whether irregularly obtained public documents/information were admissible as evidence in court.
  4. Whether documents obtained pursuant to parliamentary processes mutated into public documents where parties to a suit got into possession of the documents through an opaque process.
  5. Whether courts had the jurisdiction to determine matters relating to issuance of environment impact assessment licenses when the same had not been challenged at the National Environment Tribunal.
  6. What were the requirements for one to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution ?
  7. What was the nature of the doctrine of mootness?
  8. When did the right to institute an action in a claim of violation of the right to access information crystallize?

Relevant provisions of the law
Constitution of Kenya, 2010
Article 227 - Procurement of public goods and services
1. When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Held
  1. A court’s jurisdiction emanated from either the Constitution or legislation or both, and a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. A court could not arrogate itself jurisdiction exceeding that which was conferred upon it by law.
  2. Under article 163(4)(a) of the Constitution, appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. For a litigant to invoke the court’s appellate jurisdiction, it must be demonstrated that the matter in issue revolved around constitutional contestation that had come through the judicial hierarchy, and requiring the court’s final input. Further, at the very least, an appellant must demonstrate that the court’s reasoning and conclusions which led to the determination of the issue, could properly be said to have taken a trajectory of constitutional interpretation or application. Each case must, however, be evaluated on its own facts.
  3. The issues identified revolved around the interpretation and application of provisions of the Constitution. In the premises, the issue of certification under article 163(4)(b) of the Constitution did not arise. The court was clothed with jurisdiction under article 163(4)(a) of the Constitution to determine the three identified issues.
  4. Mootness of a matter arose where a live controversy no longer existed between parties to a suit and the decision of the court, in such instance, would have no practical effect. The doctrine of mootness enquired whether events subsequent to the filing of a suit would have eliminated the controversy between the parties.
  5. At the time the petitions were presented to the High Court, the construction was yet to commence. Parties, however, opted to forego applications seeking interim conservatory relief aimed at stopping the construction. In focusing on instead, pursuing the hearing of the substantive petitions, it only meant that the respondents were alive to the fact that execution of the contract would have an impact on their pending petitions. The orders sought at the High Court, seeking to restrain the appellants from contracting with CRBC, and to ensure that there was no single sourcing in the procurement of the SGR were moot as they were overtaken by events, the contracts having been executed.
  6. Completion of the construction of the SGR project did not render moot the consideration and determination of the remaining issues as to whether the SGR project complied with article 227 of the Constitution and section 6(1) of the PPDA, 2005; whether the 1st, 2nd and 3rd respondents could rely on evidence provided by whistle blowers in support of their petitions, and the environmental considerations under the Constitution. Those were live issues that remained available for the court’s consideration. Further, they raised matters of public importance owing to the sheer enormity of the project, the public finance expended and the project being for public use. In any event, the operative law surrounding the litigation remained unsettled.
  7. The SGR project, though completed continued to raise questions especially in relation to the constitutionality of the project and the surrounding procurement process. The matters which the Court of Appeal dealt with were not moot.
  8. From the pleadings filed at the High Court, the 1st, 2nd and 3rd respondents did not disclose their source for the documents in support of the petitions at the High Court. The Evidence Act applied to all proceedings, including constitutional petitions save for the exceptions set out therein. The Evidence Act provided for admissibility of evidence with section 80 setting out the manner in which public documents may be produced in court. That procedure ensured the preservation of the authenticity and integrity of the public documents filed and produced in court. Further, section 81 of the Evidence Act allowed the production of certified copies of documents in proof of the contents of the documents or parts of the documents of which they purported to be copies.
  9. Public documents could only be produced in court as evidence through the procedure set out. They could be produced as evidence in court by way of producing the original document or a copy that was duly certified. The documents having been adduced in evidence without adhering to the rather straightforward provisions, were outrightly rendered inadmissible.
  10. Article 35 of the Constitution provided for the right to access information held by the State, including that held by public bodies. The Access to Information Act No. 31 of 2016 was enacted to give effect to article 35 and set out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to that provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency. The right to institute an action in court only crystallized once a citizen had requested for the information from the State and the request had been denied or not provided. The 1st, 2nd and 3rd respondents did not make a request to be provided with the information relied on.
  11. To admit the illegally obtained information was detrimental to the administration of justice and the provisions of article 50(4) of the Constitution. Allowing such documents was akin to sanitising illicit actions of the 1st, 2nd and 3rd respondents of irregularly obtaining evidence, in violation of article 31 of the Constitution on the right to privacy including privacy of communication. Further, such documents adduced by the 1st to 3rd respondents were of utmost confidentiality and related to communication within Government circles, between civil servants, relating to Government engagement and operations. Even if the authenticity or contents of the documents was not questioned by the appellants, the production of such documents as evidence must be in accordance with the law. Not having obtained and adduced the documents in the manner set out under sections 80 and 81 of the Evidence Act or requested for information under article 35 of the Constitution, the documents were inadmissible.
  12. It did not matter that some of the documents in issue had been readily tabled before Parliament and were subjected to debate at the different committees. Parliamentary processes were subject to certain privileges and immunities. Article 117 of the Constitution provided for powers, privileges and immunities. The objective of the powers, privileges and immunities as set out in article 117(2) was for the purpose of the orderly and effective discharge of the business of Parliament. Those powers, privileges and immunities extended to the parliamentary committees, the chairpersons of committees and Members of Parliament.
  13. Parliament was empowered under article 125 of the Constitution to call for evidence including the production of documents. It could not be that documents obtained pursuant to parliamentary processes mutated into public documents just because the respondents somehow were in possession of the documents through an otherwise opaque process. The 1st to 3rd respondents had not demonstrated how they gained possession of the impugned documents that were otherwise within a constitutionally sanctioned parliamentary process, to which the respondents had not explained their role.
  14. The National Environment Management Authority (NEMA), just like any other statutory regulator, was only seized of the documents in furtherance of its statutory mandate to grant a licence. There existed a specific mechanism of dealing with and/ or relying upon information and documents availed to NEMA, bearing in mind the context within which NEMA received such documents. NEMA was not party to the court proceedings subject to the instant appeal. It was not enough for the 1st to 3rd respondents to allege that the documents were obtained from NEMA without the attendant contextualisation especially when the respondents failed to invoke the mechanism provided under the Environmental Management and Co-Ordination Act No. 8 of 1999 (EMCA).
  15. The burden of proof always lay with the claimant, that was to say, he who asserted. Indeed, the reading of sections 35, 107 and 109 of the Evidence Act together with rules 15 and 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 revealed that newspaper articles were inadmissible as evidence in law. That was because facts contained in newspaper articles were merely hearsay.
  16. In respect of corruption allegations complained of by the 1st and 2nd respondents, there were constitutional and statutory mandated bodies to address those. The Ethics and Anti-Corruption Commission Act No.22 of 2011 enacted pursuant to article 79 of the Constitution provided for the functions of the Ethics and Anti-Corruption Commission (EACC) at section 11(1) to include receiving complaints on the breach of the code of ethics by public officers, investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under the Act or any other law enacted pursuant to Chapter Six of the Constitution. Further, the Witness Protection Agency established under section 3A of the Witness Protection Act No.16 of 2006 had its purpose set out under section 3B(1) as to provide the framework and procedure for giving special protection on behalf of the State, persons in possession of important information and who are facing potential risk or intimidation due to their co-operation with prosecution and other law enforcement agencies.
  17. Whereas article 22 of the Constitution entitled every person to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened, and article 258 of the Constitution entitled every person to institute court proceedings claiming that the Constitution had been contravened or was threatened with contravention, those provisions ought not to be abused in the name of public interest. That was, more so, where the litigants sought to advance private or political interests or other considerations through proxies. Attractive as it may sound, public interest litigation must abide by laid down rules of procedure and the law, and must be aimed at addressing genuine public interests and not used for personal gain or vendetta.
  18. Public-spirited litigants rushed to courts to file cases in profusion under the attractive name of public interest litigation. They must however inspire confidence in courts and amongst the public, and most importantly, be above suspicions. Easy access to courts under article 22 and 258 of the Constitution should therefore not be misused as a license to file frivolous claims disguised as public interest. Articles 22 and 258 of the Constitution were not open-ended panacea or bogey provisions to be resorted to as a panacea to any person under the guise of public interest. Like any other well intended provision of the Constitution, it was bound to be abused and when that happened, the courts should not hesitate to rein in such abuses.
  19. Article 42 of the Constitution entitled every person to the right to a clean and healthy environment which included the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in article 69 and to have obligations relating to the environment fulfilled under article 70 of the Constitution.
  20. Article 69 of the Constitution set out the obligations of the State which included, to eliminate processes and activities that were likely to endanger the environment and establishing systems of EIA, environmental audit and monitoring of the environment. Article 70 of the Constitution provided for the enforcement mechanism and provided that where there were allegations of violations of the rights under article 42 of the Constitution, or there was a likelihood of being denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that were available. The court may then make orders or directions appropriate to prevent, stop or discontinue any act or omission that was harmful to the environment; compel the public officer to take measures to prevent or discontinue any act or omission that was detrimental to the environment or provide compensation for victims of violation of the right.
  21. EMCA was the legislation enacted to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto. Section 58 of EMCA, made provision for the application of an EIA. Every proponent of a project specified under the Second Schedule to EMCA was required to conduct an EIA. Under regulation 4 of the Environmental (Impact Assessment and Audit) Regulations of 2003, no licensing authority shall issue any license, permit or approval prior to the issuance of an EIA.
  22. From the EIA report on record, the scope of the report included the identification and discussion of any adverse negative impacts to the environment anticipated from the proposed project and mitigation measures set out therein, on the possible impacts on the environment including emissions to air and exhaust emissions. A notice of the EIA study report of the SGR project in accordance with the provisions of EMCA was published in the Kenya Gazette and a similar publication in a newspaper of wide circulation in Kenya. The gazette notice and the newspaper publication invited members of the public to give comments and/ or complaints within sixty days as required under EMCA. The 1st to 3rd respondents had neither rebutted that proposition nor indicated any attempts to react to that notice. Kenya Wildlife Service being a statutory body mandated to conserve and manage wildlife in Kenya, was at liberty to engage its appropriate mechanism. As it was not a party to the instant proceedings.
  23. NEMA granted an EIA license to the CRBC. Pursuant to section 129(1) of EMCA, any person aggrieved by the grant of a license or permit or a refusal to grant a license or permit or the transfer of a license or permit under the Act may within sixty days appeal to the tribunal established under section 125 of EMCA. The 1st and 2nd respondents’ grievances on the issuance of the license and the EIA therefore fell within the jurisdiction of the tribunal. They did not avail themselves their day before the tribunal, thereby taking a fatal step to the courts.
  24. The bilateral agreement and the MoU were executed in 2009 prior to the promulgation of the Constitution of Kenya, 2010, while the commercial contracts were signed in 2012. From the definition in the Black’s Law Dictionary 11th Edition, an MoU was preliminary to a contract and or agreement between parties and was characterized as non-binding and unintended to create any contractual obligations on either party. That did not mean that courts were not faced with the question of establishing the binding nature of an MoU. When that happened, a court considered the wording and the apparent intention of the parties.
  25. The intention of the parties could be inferred from the wording of the MoU. The MoU was a precursor to the parties entering into legally binding agreements depending on the results of the feasibility study. It was those commercial contracts, once entered into that operationalized the SGR project. The contracts, signed in 2012 and 2014 created legally binding obligations and not the MoU. That was after the Constitution of Kenya, 2010 had been promulgated and operationalized.
  26. The issue of retrospective application of the Constitution did not arise as the operationalization of the SGR project occurred under the dispensation of the Constitution of Kenya, 2010. The petitions before the High Court were filed in 2014, four years into the 2010 constitutional dispensation invoking the High Court’s jurisdiction under article 165 of the Constitution and under the Sixth Schedule to the Constitution of Kenya, 2010, section 7 thereof allowed all law in force immediately before the effective date to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
  27. Article 227 of the Constitution, just like any other provisions of the Constitution were applicable. The applicability of the Constitution of Kenya, 2010 was not pegged on when and how the SGR project was conceptualized or the timing of the documents. The execution of the MoU was before the Constitution of Kenya, 2010 while the commercial agreements and the financing agreement were executed after the Constitution of Kenya, 2010, had already come into force.
  28. Article 227(2) of the Constitution provided for the enactment of a statutory framework within which policies relating to procurement and asset disposal may be implemented to give effect to article 227. That resulted in the enactment of the Public Procurement and Asset Disposal Act, No. 33 of 2015 (PPADA, 2015) which commenced on January 7, 2016, after procurement processes for the SGR. The effect of that enactment was that it repealed the PPDA 2005. Despite its repeal, the PPDA, 2005 applied to the instant dispute as it was the law in force as at the time the petition was filed at the High Court.
  29. Section 29 of the PPDA, 2005 dealt with choice of procurement procedure and allowed a procuring entity to use open tendering or an alternative procurement procedure under Part VI which included restricted tendering, direct procurement, request for proposals, request for quotations, low-value procurement, and specially permitted procurement procedure. Section 26 of the PPDA set out the threshold matrix and segregation of responsibilities which any procurement entities needed to have in place for the purpose of ensuring that its decisions were made in a systematic and structured way. Part of such responsibilities was to ensure sufficient funds had been set aside in the budget to meet the obligations.
  30. The provisions of the PPDA, 2005 could be ousted under section 6(1) of the PPDA, 2005 where any provision of the Act conflicted with any obligations of the Republic of Kenya arising from a treaty or other agreement to which Kenya was a party, the Act shall prevail except in instances of negotiated grants or loans.
  31. KRC was not the procuring entity but merely an implementing entity. That was because it only followed directives issued to it by the Executive . KRC was, despite being a State corporation, never allocated funds towards the project directly from the consolidated funds as the Government itself opted to implement the financing model . KRC could not and did not therefore qualify as a procurement entity under the provisions of section 26(6) of the PPDA 2005.
  32. The procurement and contractual agreements between KRC and CRBC, who were both State corporations, were done by the two entities in furtherance of government-to-government understandings for an on behalf of those two governments. That squarely brought the arrangement within the realm of a government to government transaction that was not subjected to the provisions of the PPDA, 2005 as stipulated by section 6(1) of PPDA, 2005. The 1st to 3rd respondents, perhaps appreciating the nature of the procurement- as being government to government, never challenged the Ministry’s actions before the 3rd appellant.
  33. The position that KRC should have undertaken limited tender inviting other Chinese firms with the necessary expertise to bid was untenable as it was no longer upon KRC to undertake any tender process, the Government having intervened and done government to government agreements. The procurement of CRBC was not undertaken by KRC but by the Government through the Ministry of Transport. As the Ministry was not included in the proceedings both before the 3rd appellant and before the instant court, it would be academic for the court to interrogate the issue further. In any event, the provisions of the PPDA 2005 were ousted in the SGR project.
  34. Procurement must conform to the provisions of article 227 of the Constitution even when done pursuant to the obligations of a treaty or agreement or any other procedure. The use of any procurement method including direct procurement did not exclude the principles of fairness, equitability, transparency, competitiveness and cost-effectiveness as provided for under article 227(1). Legality of the Executive’s actions and directives could only be interfered with by the courts when it is in breach of the Constitution.
  35. It had not been demonstrated how KRC, acting not as the procuring entity, but on the directives of the Executive, failed to comply with the provisions of article 227(1) of the Constitution. In any event, government to government procurement was permissible under section 6 of the PPDA 2005. None of the respondents were challenging the constitutionality of that statutory provision. There were avenues such as public participation during the enactment of section 17 of the Customs Tax Act that introduced the railway development levy; the challenge of the constitutionality of the provision of section 6 of the PPDA 2005, and challenge of the environmental concerns at the licensing stage of the project before the National Environment Tribunal pursuant to EMCA to name just but a few of them. None of the respondents and/or the members of the public pursued such avenues before resorting to court litigation.
  36. The SGR project was subject to interrogation before Parliament in two committees and none of the respondents opted to be involved. That parliamentary process, which was open to the public, cleared the projects. Under Kenya’s constitutional design, the people had the power to exercise their oversight power through elected representatives who were domiciled in Parliament. Whether a citizen agreed with or was satisfied with what was undertaken was a matter of conjecture provided that the laid-out procedure was followed. Like in every democracy, the concept of representing the people or public interest remained a hydra headed mongrel which could not be defined with certainty as it was never possible to get a homogenous view point from the populace. The procurement process for the SGR project met the requirements of article 227 of the Constitution as read together with the provisions of the PPDA, 2005.
Appeal partly allowed; cross-appeal dismissed; each party to bear own cost.
Orders
  1. The Court of Appeal judgment dated June 19, 2020 was set aside.
  2. The superior courts’ decision on the expunging of documents was affirmed.
  3. The procurement process for the SGR project was undertaken in conformity with the provisions of article 227 of the Constitution.
  4. The SGR procurement was undertaken as a government to government contract hence exempt from the provisions of the PPDA, 2005 by virtue of section 6(1) of that Act.


Kenya Law
Case Updates Issue 012/23-24
Case Summaries

CIVIL PRACTICE AND PROCEDURE

Supreme Court�s appellate jurisdiction should not to be invoked merely for the purpose of rectifying errors with regard to matters of settled law

Headnote: The application sought for among others a review of the Court of Appeal’s decision declining to grant certificate of leave to appeal against the decision of the Court of Appeal. The court reiterated that if the applicant’s appeal was based on a point of law, the applicant must demonstrate that such point was a substantial one, the determination of which would have a significant bearing on the public interest. The court held that as a matter of principle and of judicial policy, the appellate jurisdiction of the Supreme Court was not to be invoked save in accordance with the terms of the Constitution and the law, and not merely for the purpose of rectifying errors with regard to matters of settled law.
Kagina v Kagina & 2 others (Application E002 of 2023) [2023] KESC 54 (KLR) (16 June 2023) (Ruling)
Neutral citation: [2023] KESC 54 (KLR)

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

Civil Practice and Procedure - appeals - appeals to the Supreme Court - appeals in cases certified as matters of general public importance - what was the requirement for one to appeal to the Supreme Court as a matter of general public importance where the appeal was based on a point of law - whether the appellate jurisdiction of the Supreme Court could be invoked merely for the purpose of rectifying errors with regard to matters of settled law.

Brief facts
The application sought for among others a review of the Court of Appeal’s decision declining to grant certificate of leave to appeal against the decision of the Court of Appeal. The applicant contended that: the intended appeal raised matters of general public importance as it presented controversy on the law of succession and required precedence on the threshold of what constituted intermeddling and the application of section 45(1) and (2)(a) and (b) and section 55 of the Law of Succession Act Cap 160 Laws of Kenya. The applicant further contended that the matter transcended the circumstances of the case and had an important bearing on the public interest. The applicant’s grievance was that the respondents, who were his co-administrators in the estate of the deceased, had intermeddled with the estate and had either subdivided and sold, alienated or earmarked fraudulently to sell certain properties of the estate.

Issues:

  1. What was the requirement for one to appeal to the Supreme Court as a matter of general public importance where the appeal was based on a point of law ?
  2. Whether the appellate jurisdiction of the Supreme Court could be invoked merely for the purpose of rectifying errors with regard to matters of settled law. Read More..

Held:

  1. The Originating Motion which the applicant sought to prosecute as a pauper was not availed to court. The Supreme Court was unable to determine the objective merit of the instant application in that context. The motion would be determined separately if need be.
  2. Rule 63 (2) of theSupreme Court Rules, 2020 bestowed upon the Registrar the power to consider a request for waiver of fees at the first instance. The decision of the Registrar was reviewable by a single judge whose decision was final. The Supreme Court was not clothed with jurisdiction to entertain the prayer for leave to approach the Court as a pauper in the first instance.
  3. Three principles guided a court in deciding an application for stay. The principles required an applicant to demonstrate, first that the appeal was arguable and not frivolous; that if the order of stay was not granted the appeal would be rendered nugatory; and finally, that it was in the public interest to grant an order of stay.
  4. The instant application was filed together with Presidential Election Petition No. E001 of 2023 which was arguable. Article 140 of theConstitutionvested the Supreme Court with the mandate to determine questions relating to the validity of a presidential election. The instant Presidential Election Petition was filed seven months after the declaration of the results of the presidential election. The question of timelines in the electoral process was addressed inRaila Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others(Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) (26 March 2013) (Ruling). Parties had a duty to ensure they complied with their respective timelines, and the Supreme Court had to adhere to its own. It was important to adhere to electoral timelines. TheConstitutionset clear timelines as to when a person could file a presidential election petition, the court was also bound by the same provisions to admit a presidential election petition within the stipulated timeframe.
  5. The Supreme Court could only possess the requisite jurisdiction if a presidential election petition was filed within that fixed timeframe. The Supreme Court lacked jurisdiction to entertain any presidential election petition filed outside the stipulated time frame.

Petition dismissed and struck out for want of jurisdiction, no order as to costs.

CIVIL PRACTICE AND PROCEDURE

Adverse possession is normally proved through interrogation of evidence in a particular case and thus not a question to be set forth as a matter of general public importance

Headnote: The application sought the review of the ruling and orders of the Court of Appeal dismissing the application for grant of certification to appeal to the Supreme Court. The applicants had instituted their claim for adverse possession in relation to the suit property at the High Court which dismissed the claim. The court held that adverse possession was an issue that was normally proven through interrogation of evidence in a particular case therefore not a question to be set forth as a matter of general public importance .

Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased) v Mukolwe & another (Sued as administrators of the Estate of David Nyambu Jonathan Kituri (Deceased) & another (Application E010 of 2023) [2023] KESC 53 (KLR) (16 June 2023) (Ruling)
Neutral citation: [2023] KESC 53 (KLR)

Supreme Court of Kenya
MK Koome, CJ, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ
June 16, 2023
Reported by Kakai Toili
Download the Decision

Civil Practice and Procedure - appeals - appeals to the Supreme Court - appeals in cases certified as matters of general public importance - whether adverse possession was a question that could be set forth as a matter of general public importance capable of appeal at the Supreme Court - Constitution of Kenya, 2010, article 163(4) and (5); Limitation of Actions Act, Cap 22, sections 7, 13, 17 and 38.

Brief facts
The instant application sought the review of the ruling and orders of the Court of Appeal dismissing the application for grant of certification. Among the orders sought by the applicants were; a certificate that the applicants intended appeal raised a matter of general public importance and that substantial miscarriage of justice may occur if an appeal was not lodged against the judgment delivered by the Court of Appeal.
The applicants had instituted their claim through an originating summons where they sought orders under the doctrine of adverse possession in relation to the suit property. The High Court dismissed the applicants’ action on the ground that it had failed to prove the claim of adverse possession. Subsequently, the applicants filed an appeal to the Court of Appeal which upheld the decision of the High Court and dismissed the appeal. The applicants aggrieved by the judgment of the Court of Appeal sought certification to appeal to the instant court. The Court of Appeal dismissed the application for certification.
The applicants contended that the Court of Appeal failed to appreciate the gravamen of the application; and that the main issue that was yet to receive a firm and jurisprudence-setting address by the instant court was the interplay between the doctrine of adverse possession and entry into a property pursuant to a sale agreement that was not completed by no fault of the purchaser. The applicants urged that it was of importance to a sufficiently large section of the public; the point of law transcended the facts of the individual case as there were numerous other cases that had had different outcomes and dealing with the same issue and had a significant bearing on the public interest.

Issues:

  1. Whether adverse possession was a question that could be set forth as a matter of general public importance capable of appeal at the Supreme Court . Read More..

Held:

  1. Under article 163(4) and (5) of the Constitution of Kenya, 2010 (Constitution) appeals lay from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation and application of the Constitution and in any other case in which the Supreme Court or the Court of Appeal certified that a matter of general public importance was involved. A certification by the Court of Appeal may be reviewed by the Supreme Court, and either affirmed, varied or overturned. Under section 15B of the Supreme Court Act, 2011 as read with rule 33 of the Supreme Court Rules 2020, an aggrieved party may apply by way of originating motion to the court for review within fourteen days.
  2. The applicants’ claim was solely premised on adverse possession.In Malcom Bell v Toroitich Arap Moi, Sup Ct Appl No 1 of 2013 [2013] eKLR (Malcom Bell case), the court held that what constituted adverse possession had been answered time and again by the superior courts. The Limitation of Actions Act at sections 7, 13, 17 and 38 provided the procedure that an applicant should undertake to ascertain a claim for adverse possession. Adverse possession was also an issue that was normally proven through interrogation of evidence in a particular case therefore not a question to be set forth as a matter of general public importance.
  3. While acknowledging that there was need to align past decisions with regard to the question of when time starts running for purposes of adverse possessory rights, so as to create consistency, the court in the Malcom Bell case held that it was a straightforward issue, which lent itself to resolution on the basis of a review of factual scenarios, and a review of the decisions of the superior courts rendered over the years; and on that basis the Court of Appeal had it in its power to canvass the legal principles and to settle the technicality of the law, for the time being. Such a scenario fell outside the profile of a matter of general public importance.
  4. The dispute at the trial court and the Court of Appeal only related to the dispute between applicant and the 1st respondent. The same did not encompass the prevalence of such agreements in informal settlements. Therefore, it could not be said to be a matter of public interest. The Court of Appeal in its judgment held that once applicant took possession of the suit property pursuant to the alleged agreement for sale, that in itself negated a claim based on adverse possession because the possession would have been with the consent of 1st respondent. That equally resolved the question on the parameters of the doctrine adverse possession where the purchase price under the sale agreement was paid in full but the sale was not completed.
  5. The issue whether adverse possession amounted to a right to property under article 40 of the Constitution was not raised by the applicants in the trial court and the Court of Appeal, and, that issue could not be raised at that stage hence the question did not meet the threshold to be a matter of general public importance worthy of the court’s appellate jurisdiction. Further, that question had been skewed and or put differently to the question determined by the Court of Appeal in Mtana Lewa v Kahindi Ngala Mwahindi, Civil Appeal No 56 of 2014; [2015] eKLR. In the case the main issue for contention was whether sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act were not in contravention of article 40(2) (a) and (b) of the Constitution. The Court of Appeal in its determination held that the doctrine of adverse possession was neither an arbitrary nor an unconstitutional limitation of the right to property.
  6. The applicants had restated the same arguments set out in its application at the Court of Appeal. They did not seek to distinguish how the Court of Appeal erred and/or arrived at an incorrect determination. The Court of Appeal correctly applied the principles in Hermanus Phillipus Steyn v Giovanni Gnecchi- Ruscone, SC Appl No 4 of 2012; [2013] eKLR and entered a proper determination in dismissing the application.

Application dismissed; applicants to bear costs of the application.