Section 23(2) of the Sixth Schedule to the Constitution which ousts the jurisdiction of courts with respect to decisions of the Judges and Magistrates Vetting Board applies to magistrates
Headnote: The appeal stemmed from the ensuing litigation initiated by several magistrates challenging their removal from office by the Judges and Magistrates Vetting Board (the Board). The court held that a contest to the decision of the Board, insofar as such a decision affected particular judges involved in the vetting process was a collateral challenge to the Board’s authority and that would be inconsistent with the terms of the Constitution. The court further held that there was no expectation that the judges and magistrates would expect different treatment before the Board undertaking a similar vetting exercise. That amounted to a reading in of the specific provisional Constitution in section 23(2) of the Sixth Schedule, or equating magistrates to judges. The court finally held that section 23(2) of the Sixth Schedule in so far as it implicated the function of the Board in the vetting of judges and magistrates, was not subject to the review jurisdiction of the High Court.

Judicial Service Commission v Oduor & 5 others (Petition 18 (E025) of 2021) [2023] KESC 32 (KLR) (21 April 2023) (Judgment)
Neutral citation: [2023] KESC 32 (KLR)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
April 21, 2023
Reported by Kakai Toili
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Constitutional Law - interpretation of constitutional provisions - interpretation of section 23(2) of the Sixth Schedule to the Constitution - where section 23(2) provided that a removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under section 23(1) shall not be subject to question in, or review by, any court - whether the ouster in section 23(2) of the Sixth Schedule to the Constitution applied to magistrates - whether a contest to the decision of the Judges and Magistrates Vetting Board affecting judges involved in the vetting process was inconsistent with the terms of the Constitution - Constitution of Kenya, 2010, articles 160,167, 168, Sixth Schedule, section 23(2).
Constitutional Law - Judges and Magistrates Vetting Board (the Board) - functions of the Board - vetting of judges and magistrates - scope of the Board in considering the conduct of serving judges and magistrates - Constitution of Kenya, 2010, article 262, Sixth Schedule, section 23(2).
Jurisdiction - jurisdiction of the High Court - review jurisdiction of the High Court - review jurisdiction against the Judges and Magistrates Vetting Board’s function of vetting of judges and magistrates - whether the Judges and Magistrates Vetting Board’s function of vetting of judges and magistrates was subject to the review jurisdiction of the High Court - Constitution of Kenya, 2010, articles 160,167, 168 Sixth Schedule, section 23.
Civil Practice and Procedure - orders - orders as to costs - orders as to costs against public bodies and organizations - when could public bodies and organizations which ordinarily existed to serve a country’s government and who were acting within their mandate be condemned to pay costs in a suit.

Brief facts:
The 1st to 4th respondents, who were serving magistrates, were vetted by the 5th respondent, the Judges and Magistrates Vetting Board (the Board) and found unsuitable to continue serving as such. Their attempt to have the Board review its decision was dismissed and as a result, the Judicial Service Commission, the appellant removed them from office. Aggrieved, various petitions were filed by individual magistrates before the High Court challenging their removal as magistrates by the Board. The 1st to 4th respondents sought to quash the determination of the Board regarding their suitability to continue serving as magistrates, alleging violation of fundamental rights and freedoms and breach of process.
The High Court held that the intention of the drafters of the Constitution of Kenya, 2010 (Constitution) was that both the serving judges and magistrates were to be vetted under a process insulated from court proceedings. Accordingly, the provisions of section 23(2) of the Sixth Schedule to the Constitution as to the decisions by the Board on the removal of a magistrate were not subject to question in any court.
The High Court also found that the Supreme Court’s decision in Judges and Magistrates Vetting Board and 2 Others v Centre for Human Rights and Democracy and 11 Others, Petition No 13A of 2013 as consolidated with Petition No 14 of 2013 and 15 of 2013 [2014] eKLR (JMVB 1) held that courts lacked jurisdiction to review the process or outcome of the vetting process by the Board. Further, in Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another, SC Petition No 29 of 2014; [2014] eKLR (JMVB 2) the Supreme Court determined that courts could intervene in decisions of the Board only where the Board exceeded its constitutional and statutory mandate and more specifically, where there was proof that the Board considered matters outside the period provided under the law.
The High Court concluded that the Board acted within its powers and dismissed the petitions. Aggrieved, the 1st to 4th respondents filed appeals to the Court of Appeal, which by a majority held that the Supreme Court in JMVB (1) never addressed the question as to whether the reference to a judge under section 23(2) of the Sixth Schedule extended to include a magistrate. Consequently, the Court of Appeal held that the Supreme Court had not determined with finality the issue of the High Court’s jurisdiction over decisions by the Board in respect of magistrates as it was only judges who were exclusively mentioned. The Court of Appeal allowed the appeals and set aside the High Court’s judgment. Aggrieved, the appellant filed the instant appeal.

Issues:
  1. Whether the ouster in section 23(2) of the Sixth Schedule to the Constitution applied to magistrates.
  2. Whether the Judges and Magistrates Vetting Board’s function of vetting of judges and magistrates was subject to the review jurisdiction of the High Court.
  3. Whether a contest to the decision of the Judges and Magistrates Vetting Board affecting judges involved in the vetting process was inconsistent with the terms of the Constitution.
  4. What was the scope in which the Judges and Magistrates Vetting Board in considering the conduct of serving judges and magistrates?
  5. When could public bodies and organizations which ordinarily existed to serve a country’s government and who were acting within their mandate be condemned to pay costs in a suit?

Relevant provisions of the law
Constitution of Kenya, 2010
Sixth Schedule
Section 23 - Judges
1. Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.
2. A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.

Held:
  1. The instant appeal easily met the requisite jurisdictional threshold since it involved the interpretation of section 23(2) of the Sixth Schedule to the Constitution vis-à-vis its applicability to magistrates which issue had been subject of the litigation and transcended through the superior courts to the court. In any event, section 23(2) had previously been before the court through JMVB 1 and JMVB 2 the effect of which was partly in issue in the instant appeal.
  2. Following the court’s decision in JMVB 1 and JMVB 2, section 23(2) of the Sixth Schedule to the Constitution ousted the jurisdiction of the courts. In the JMVB cases, the focus of the court’s decision was the mechanism contemplated under section 23 of the Sixth Schedule. That mechanism revolved around the operations and functions of the Board as per the legislation enacted under section 23(1). It did not matter whether the judges, magistrates or any other litigant, considering the expanded scope of access to justice that the Constitution brought with it, were challenging the decisions or mechanisms of the Board in relation to vetting.
  3. To avert the potential excesses by the Board in the vetting of magistrates and judges, it was necessary to clarify and delineate the time zone within which the Board was to consider its activities. The Board having been established as a transitional institution was expected to consider the conduct of the serving judges and magistrates as at the effective date of the promulgation of the Constitution. Any consideration beyond that date would turn it into what the court equated to the unruly dog.
  4. It was not entirely accurate to proclaim that magistrates were not represented in the JMVB cases. Indeed, while the JMVB cases pit at least 7 judges, serving at the time, amongst the litigants were the appellant and the Kenya Judges and Magistrates Association (KJMA) – the umbrella body dealing with the welfare of judicial officers to which magistrates comprised a large constituency. The KMJA was at all times capable of articulating the position of magistrates alongside those of judges.
  5. The court’s findings in the JMVB cases on the interpretation of section 23(2) of the Sixth Schedule to the Constitution was adequate. In arriving at that decision, the court considered the tenets of the interpretation of the Constitution, the history, purpose, objective and unique circumstances of Kenya. The court’s findings in the JMVB cases were neither per incuriam nor obiter dictum. The alleged absence of magistrates among the direct litigants did not overshadow the constitutional imperative which shielded the operations of the Board itself under which both the judges and magistrates fell. The mandate of the Board itself was not at the moment under challenge and the respondents willingly submitted to its jurisdiction both at the first instance and in appellate capacity when they sought a review of the Board’s decision.
  6. The constitutionality of section 22(4) of the Vetting of Judges and Magistrates Act No 2 of 2011 (the Act) was not framed by either of the superior courts as an issue for determination. At the heart of the instant dispute on appeal was the interpretation of section 23(2) of the Sixth Schedule to the Constitution and whether the ouster contemplated under section 23(1) of the Sixth Schedule extended to magistrates. It therefore served no further purpose to spend judicial time and resources in answering a peripheral question by way of unconstitutionality of section 22(4), the main constitutional provision of section 23(2) of the Sixth Schedule having already been addressed by the court. In any event, the 4th respondent never put a spirited attempt to make his argument around the constitutionality of that statutory provision as to try to persuade the court otherwise.
  7. In construing the Constitution, article 259 of the Constitution posited that interpretation ought to be in a manner that promoted its purpose, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance.
  8. The main aim of the vetting process was to ensure that any serious complaints against sitting judicial officers were properly considered. Even though the committee of experts’ (CoE) recommendation on vetting was limited to judges, it was alive to the fact that most of the public’s experiences of the justice system were at the magistracy level. However, the challenge faced was that the magistracy was large and would pose implications in the operations of subordinate courts; and by reason of judges having stronger protection, their removal being a rare occurrence. Nevertheless, before the draft Constitution was submitted to the people of Kenya in the ensuing referendum, the vetting process was extended to cover both judges and magistrates who were in office on the effective date of August 27, 2010. Resultantly, it led to the transition clause contained in section 23 of the Sixth Schedule to the Constitution as promulgated.
  9. The suitability of a judicial officer to continue in service under the Constitution of Kenya, 2010, constitutional dispensation, was a matter reserved by law to the Board. Hardly any cogent argument had been advanced before the court, that the Act, which implemented the ouster clause, was not indeed the legislation contemplated under section 23(1) of the Sixth Schedule to the Constitution; and as there was no other legislation such as would claim that status, there was nothing out of harmony in the common purpose of the Constitution, section 23 of its Sixth Schedule, and the relevant statute – the Act.
  10. A contest to the decision of the Board, insofar as such a decision affected particular judges involved in the vetting process, was in effect, a collateral challenge to the Board’s authority: and that would be inconsistent with the terms of the Constitution.
  11. Shielding the vetting process by the Board from the review jurisdiction of the courts represented the unique situation that Kenya found itself in as a country that was transitioning from the old order. In any event, the transition only operated in a specific time frame and historical context of Kenya. Moreover, that transition between the repealed Constitution and the Constitution of Kenya, 2010 was more people centric having accrued from a referendum. It was within that prism that the court went for the broader consideration of the vetting exercise in the transition context.
  12. The only logical conclusion out of the vetting exercise by the Board was to either recommend suitability of judges and magistrates to continue serving or unsuitability with the latter resulting to removal. There was no expectation that the judges and magistrates would expect different treatment before the Board undertaking a similar vetting exercise. That by no means amounted to a reading in of the specific provisional Constitution in section 23(2) of the Sixth Schedule, or equating magistrates to judges. The vetting of judges and magistrates was a constitutional requirement that was time bound under article 262 of the Constitution. Any legislative enactments made to effect the Sixth Schedule, including section 23 thereof had to be sustained.
  13. On the contention that the drafters of the Constitution knew the difference between magistrates and judges and used the words in the Constitution deliberately, nothing could be further from the truth. In the transition context, articles 160, 167 and 168 were inapplicable, and were thus unavailable for comparative purposes. The issue appeared to be more of grievances regarding the outcomes for the specific respondents who did not agree with the decisions of the Board. Section 23(2) of the Sixth Schedule to the Constitution, in so far as it implicated the function of the Board in the vetting of judges and magistrates, was not subject to the review jurisdiction of the High Court.
  14. The appellant sought declarations with regard to a process that was time bound as it was to conclude not later than December 31, 2015 and the Board was to be subsequently dissolved within thirty (30) days as per the Act. The Board was non-existent. Moreover, the declarations the appellant sought were not matters that were before the superior courts for their determination.
  15. The issues raised in the appeal did no more than seek clarity on a legal position that the court had previously provided. There was no purpose to be served by making declarations touching on the defunct Board. Nevertheless, it did not matter that the term of the Board may have lapsed. That was to say, lapse of time was not a factor that contributed towards the interpretation and/or application of the Constitution when the jurisdiction was properly invoked and more so, found to have merit.
  16. Public bodies and organizations which ordinarily existed to serve a country’s government and who were acting within their mandate needed not be condemned to pay costs where such an entity had brought or defended proceedings while acting purely in that regulatory capacity. Therefore, award of costs against such entities should only be made where such an entity had acted unreasonably or in bad faith. The appellant being an independent commission and having filed the petition in that capacity did so with no ill intent but rather to clarify the position in relation to the litigants. The court could not punish the respondents, particularly the 1st to 4th respondents for pursuing their legitimate right to access justice under the Constitution.
Appeal allowed; each party to bear their own costs.
Orders
  1. Appeal allowed to the extent that:
    1. The judgment and order of the Court of Appeal dated and delivered on October 22, 2021 was set aside.
    2. The judgment and decree of the High Court dated and delivered on June 22, 2018 was upheld.


Kenya Law
Case Updates Issue 06/23-24
Case Summaries
WORDS AND PHRASES

Succession proceedings do not permit joinder of interested parties

Headnote: The Applicant made an application to be joined as an interested party in a Succession Cause. The court held that the Law of Succession Act and the Probate and Administration Rules did not provide for joinder of interested parties. Applicants were to file whatever application that they had in mind and the court would deal with the application on its own merits.

In re Estate of David Aura Wesonga (Deceased (Succession Cause 257 of 2012) [2023] KEHC 20222 (KLR) (17 July 2023) (Ruling)
Neutral Citation: [2023] KEHC 20222 (KLR)
High Court at Busia
WM Musyoka, J
July 17, 2023
Reported by John Ribia
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Words and Phrases – definition of joined – definition of enjoined – definition of joined vis-à-vis enjoined – enjoin means to urge or injunct – Joined means adding parties to a cause.
Civil Practice and Procedure – applications – joinder of parties – meaning of the word “enjoined” vis-à-vis the meaning of the word “joined” – which was the right term to use in an application that sought to add parties to a cause
Law of Succession – succession proceedings – joinder application - whether succession proceedings allowed for a party to be added as an interested party

Brief Facts:
The applicant sought to be enjoined as an interested party in a succession cause.

Issues:

  1. Between the word “enjoined” and the word “joined”; which was the right word to use in an application that sought to add parties to a cause?
  2. Whether succession proceedings allowed for a party to be added as an interested party. Read More..

Held:

  1. If the court were to strictly take the word “enjoin” for what it meant, the application would be struck out for making no sense at all. “Enjoin” meant to “urge” or “injunct.”. That was not what the applicant intended to ask the court to order. The proper prayer should be for an order to be “joined.” The word “enjoin” was not used in any of the provisions in the Civil Procedure Act and the Civil Procedure Rules for joinder or adding of parties to a cause.
  2. The Law of Succession Act and the Probate and Administration Rules did not provide for joinder of interested parties. That would leave room for whoever sought intervention in a probate matter to just file their application, without seeking leave to be added as a party.
  3. There were no parties in a succession cause, for such cause was not a suit in the same vein with the suits envisaged in the Civil Procedure Act and the Civil Procedure Rules.

Application dismissed, applicant asked to file whatever application they had in mind for the court to deal with in its own merits.

JURISDICTION

The High Court can only revoke grants made by itself but not those made by magistrates

Headnote: The instant matter sought the revocation of the grant in made by the High Court before the succession proceedings were transferred to the Chief Magistrate’s Court. The court found that the exclusive jurisdiction conferred on the High Court, to revoke all grants, regardless of the court that had made them had come to an end and jurisdiction was extended to the magistrates, who, effective from January 2, 2016, got jurisdiction to revoke the grants made by them. The court thus held that the High Court could only revoke grants made by itself, but not those made by magistrates. The court further held that it did not have original jurisdiction to revoke a grant made in a matter that was pending before the Chief Magistrate Court.

Musine v Osamo (Sued as co-administrator of the Estate of Stephen Osamo (Deceased) (Miscellaneous Application E012 of 2022) [2023] KEHC 20217 (KLR) (17 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20217 (KLR)

High Court at Busia
WM Musyoka, J
July 17, 2023
Reported by Kakai Toili
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Jurisdiction - jurisdiction of the High Court - jurisdiction of the High Court as a probate court - jurisdiction to revoke grants made by magistrates - where a grant was made in a matter that was pending before the Chief Magistrate Court - whether the High Court had the original and exclusive jurisdiction to revoke grants made by magistrates - whether the High Court had original jurisdiction to revoke a grant made in a matter that was pending before the Chief Magistrate Court - what was the process to be followed where a grant was issued by the High Court in a matter that was later on transferred to the Chief Magistrate’s Court -Magistrates’ Courts Act, 2015, section 23; Law of Succession Act, Cap 160, section 48(1).

Brief facts
The instant proceedings were initiated for the purpose of revoking the grant in made in Busia HCSC No. 85 of 1999, in the matter of the estate of Stephen Osamo. The succession proceedings were initiated at the High Court, then the cause was subsequently transferred to the Chief Magistrate’s Court, sometime in 2018, where it became Busia CMCSC No. 503 of 2018.

Issue:

  1. Whether the High Court had the original and exclusive jurisdiction to revoke grants made by magistrates .
  2. Whether the High Court had original jurisdiction to revoke a grant made in a matter that was pending before the Chief Magistrate Court.
  3. What was the process to be followed where a grant was issued by the High Court in a matter that was later on transferred to the Chief Magistrate’s Court? Read More..

Held:

  1. The matter of the estate of Stephen Osamo was being handled under Busia CMCSC No. 503 of 2018, and any application for revocation of the grant, with respect to that estate, ought to be made in Busia CMCSC No. 503 of 2018, and be heard and determined by the judicial officer seized of the matter in Busia CMCSC No. 503 of 2018.
  2. The law, with respect to revocation of grants in succession causes pending before the Magistrate’s Courts, had changed. Prior to January 2, 2016, the High Court enjoyed exclusive jurisdiction to revoke all grants of representation, whether made by itself or the Magistrate’s Court. The Magistrate’s Court had no jurisdiction to revoke grants that it had power to make. However, all that changed on January 2, 2016, when the Law of Succession Act was amended, by the coming into force of the Magistrates’ Courts Act, No 26 of 2015.
  3. Section 23 of the Magistrates’ Courts Act, 2015, amended section 48(1) of the Law of Succession Act, which had granted exclusive jurisdiction to the High Court to revoke grants made by the Magistrate’s Court, and extended that jurisdiction to the Magistrate’s Court. That meant that the exclusive jurisdiction conferred on the High Court, to revoke all grants, regardless of the court that had made them, was ended, and jurisdiction was extended to the magistrates, who, effective from January 2, 2016, got jurisdiction to revoke the grants made by them. That meant the High Court could only revoke grants made by itself, but not those made by magistrates. The High Court lost the original and exclusive jurisdiction to revoke grants made by magistrates, and it could only deal with them in exercise of its appellate jurisdiction, with respect to decisions by magistrates revoking grants made by them.
  4. The summons for revocation of grant therein, dated November 17, 2021, should be heard and determined within Busia CMCSC No. 503 of 2018. The cause in Busia HCSC No. 85 of 1999 ceased to exist when that cause was transferred to the Chief Magistrate’s Court, and assigned number Busia CMCSC No. 503 of 2018. The instant court did not have original jurisdiction to revoke a grant made in a matter that was pending before the Chief Magistrate . That jurisdiction rested with the Chief Magistrate, by dint of the current law. The instant court could only exercise jurisdiction on revocation of a grant, in a cause being handled by a magistrate, by way of an appeal, from a decision of the magistrate revoking it.
  5. It could be that the grant in Busia CMCSC No. 503 of 2018 was made by a judge of the High Court in Busia HCSC No. 85 of 1999, and was issued out of Busia HCSC No. 85 of 1999. However, once the matter was transferred to the Chief Magistrate’s Court, whatever and whichever orders the judge had made, before the transfer of the matter, became orders of the Chief Magistrate, and any of the other magistrates in that court, and were available for review, setting aside, variation or vacating as any order made thereafter by the magistrates who became seized of the matter. That would include making orders revoking or rectifying any grant made by the judge, and issued out of the High Court registry, prior to the transfer of the matter. There should be no difficulty in dealing with such orders, and there should be no confusion around the orders.
  6. What should have happened, after the file in Busia HCSC No. 85 of 1999 was transferred, and became Busia CMCSC No. 503 of 2018, was the grant issued in Busia HCSC No. 85 of 1999, and any certificate of confirmation of grant that issued out of Busia HCSC No. 85 of 1999, if at all, should have been re-issued in Busia CMCSC No. 503 of 2018, and signed by the magistrate seized of the matter, thereby making them court processes in Busia CMCSC No. 503 of 2018. Such re-issuance ought to be made administratively, once the transfer was effected to obviate the need for parties to move the court formally, by way of application in chambers.
  7. The file, in Busia CMCSC No. 503 of 2018, should be returned to the Chief Magistrate’s Court registry, for the re-issuance of the grant and certificate of confirmation of grant, in terms of what was stated in the previous paragraph. Subsequent to the re-issuance, the applicant should be at liberty to file his summons for revocation of grant in Busia CMCSC No. 503 of 2018. The summons for revocation of grant therein was misconceived and incompetent.

Summons for revocation of grant struck out; the file therein shall be closed, and the file in Busia CMCSC No. 503 of 2018 shall be returned to the Chief Magistrate’s Court registry; no order on costs.