Mere reference of constitutional principles is not sufficient to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution
Headnote: The application sought for among other orders; conservatory and/or interim orders staying the execution of the judgment of the Court of Appeal pending the hearing and determination of the application. The court highlighted the guiding principles in granting an order of stay of execution and the requirements to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution. The court further held that the mere reference to the rich generality of constitutional principles was not a sufficient ground to invoke article 163(4)(a) of the Constitution.

Kiamba & 3 others v Ethics & Anti-Corruption Commission & another (Petition (Application) E004 of 2024) [2024] KESC 19 (KLR) (Crim) (10 May 2024) (Ruling)
Neutral citation: [2024] KESC 19 (KLR)
Supreme Court of Kenya
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
May 10, 2024
Reported by Kakai Toili
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Civil Practice and Procedures – appeals – appeals to the Supreme Court – appeals as of right in any matter relating to the interpretation or application of the Constitution - requirements to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution - whether mere reference of constitutional principles by the Court of Appeal was sufficient to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution – Constitution of Kenya, 2010, article 163(4)(a).
Civil Practice and Procedures – orders - orders of stay of execution - what were the guiding principles in granting an order of stay of execution.

Brief facts
The instant application sought for among other orders; conservatory and/or interim orders staying the execution of the judgment of the Court of Appeal pending the hearing and determination of the application. The applicants claimed that their appeal was arguable with a high probability of success as it raised complex issues of constitutional interpretation that could not be properly determined at an interlocutory stage.
The applicants further claimed that their appeal was premised on several grounds including that their constitutional rights to property, fair hearing, fair administrative action and freedom from discrimination were infringed upon by the 1st respondent when it instituted proceedings at the High Court for forfeiture of unexplained assets under section 55(5) and (6) of the Anti-Corruption and Economic Crimes Act despite the High Court having made a finding that the assets were not acquired as a result of corrupt conduct.
The applicants contended that, unless the application was allowed, the appeal would be rendered nugatory and an academic exercise; and that the applicants would suffer prejudice. The 1st respondent on the other hand argued that the appeal did not involve the interpretation or application of the Constitution nor did it relate to any recurrent issue of cogent constitutional controversy and therefore no right of appeal under article 163(4)(a) of the Constitution lay to the court.

Issues
  1. What were the requirements to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution .
    1. Whether mere reference of constitutional principles by the Court of Appeal was sufficient to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution.
  2. What were the guiding principles in granting an order of stay of execution ?

Held
  1. Before the court granted an order for stay of execution, an appellant, or intending appellant, must satisfy the court that;
    1. the appeal or intended appeal was arguable and not frivolous;
    2. unless the order of stay sought was granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
    3. that it was in the public interest that the order of stay be granted.
  2. An appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. Where the interpretation or application of the Constitution had only but a limited bearing on the merits of the main cause, then the jurisdiction of the court could not be properly invoked. The mere reference to the rich generality of constitutional principle as the Court of Appeal did in the instant case, was therefore not a sufficient ground to invoke article 163(4)(a) of the Constitution .
  3. The application of section 26 of the Anti-Corruption and Economic Crimes Act to the effect that the provision was permissive rather than mandatory in informing persons of interest of the intention to investigate bank accounts or search premises and it was left to the discretion of the 1st respondent to do so, such a matter could not attract any interpretation or application of the Constitution and to attract the court’s attention under article 163(4)(a) of the Constitution.
  4. The gist of the applicants’ appeal involved a determination of the proper interpretation or application of the provisions of sections 55 and 56 of the Anti-Corruption and Economic Crimes Act and whether or not the threshold of forfeiture had been met to warrant the orders of forfeiture of assets granted, neither the High Court nor the Court of Appeal attempted to interpret or apply sections 26, 55 or 56 of the Anti-Corruption and Economic Crimes Act in the context of their constitutionality or otherwise.
  5. The issues raised by the applicants were not sufficient to trigger the court’s jurisdiction under article 163(4)(a) of the Constitution and neither the petition of appeal nor the instant motion were properly before the court. Consequently, the court had no jurisdiction to hear and determine Petition No. E004 of 2024 or the instant application for conservatory or stay orders.
Petition of appeal and application struck out; the court directed that the sum of Kshs. 6,000 deposited as security for costs in the appeal be refunded to the appellant; no order as to costs.


Kenya Law
Case Updates Issue 014/24-25
Case Summaries
CONSTITUTIONAL LAW Validity of the Excisable Goods Management System (EGMS) Regulations.

Headnote: The case concerned the implementation of the Excisable Goods Management System (EGMS) in Kenya, which was intended to affix excise stamps to excisable goods to curb counterfeit products and increase tax revenue. The High Court had invalidated certain regulations due to a lack of sufficient public participation. KRA appealed the decision to the Court of Appeal, which allowed the appeal, holding that the representation of key stakeholders during consultations was sufficient to meet the requirement for public participation, and that the procurement process was lawful.

Commissioner General Kenya Revenue Authority v Okoiti & 2 others (Civil Appeal 100 of 2018) [2023] KECA 1278 (KLR) (27 October 2023) (Judgment)
Neutral Citation: [2023] KECA 1278 (KLR)

Court of Appeal at Nairobi
HA Omondi, DK Musinga, and GW Ngenye-Macharia, JJA

Reported by John Ribia

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Constitutional Law – – national values and principles of governance – public participation – public participation in the passing subsidiary legislation - Excise Duty (Excisable Goods Management System) Regulations (Legal Notice 53 of 2017) – effect of representation by a representative body in a public participation meeting - whether sufficient public participation occurred before implementing the Excisable Goods Management System in Kenya - whether the representation of key stakeholder organizations in meetings on the implementation of the Excisable Goods Management System (EGMS) was sufficient to satisfy the constitutional requirement for public participation, given that the stakeholders represented the views of their members – Constitution of Kenya, 2010 article 10, 43(1)(a),(c) &(d), 226(3), and 229(7) & (8).

Procurement Law – – tender award - whether the tender awarded to SICPA to implement the Excisable Goods Management System in Kenya was lawful and in compliance with the Public Procurement and Asset Disposal Act (PPAD).

Brief Facts
In October 2017, the Cabinet Secretary for National Treasury issued a public notice mandating that bottled water, juices, soda, non-alcoholic beverages, and cosmetics manufactured or imported into Kenya be affixed with excise stamps. That was part of the Excisable Goods Management System (EGMS), which was intended to increase revenue and combat counterfeit products. KRA awarded the tender to a Swiss company, SICPA Securities Sol. SA, to implement the system.
The 1st respondent challenged the legality of the implementation, arguing that there was insufficient public participation, and that the direct procurement of the tender violated the law.
The High Court invalidated the regulations, prompting KRA and other respondents to appeal.

Issues:

  1. Whether sufficient public participation occurred before passing the legislation - Excise Duty (Excisable Goods Management System) Regulations and implementing the Excisable Goods Management System in Kenya.
  2. Whether the representation of key stakeholder organizations in meetings on the implementation of the Excisable Goods Management System (EGMS) was sufficient to satisfy the constitutional requirement for public participation, given that the stakeholders represented the views of their members.
  3. Whether the tender awarded to SICPA to implement the Excisable Goods Management System in Kenya was lawful and in compliance with the Public Procurement and Asset Disposal Act (PPAD).

Held:

  1. Being a first appeal, the court’s primary duty to reevaluate the evidence on the record in order to come to its own independent conclusion on the evidence and the law, as per rule 31 of the Court of Appeal Rules, 2022.
  2. Public participation played a central role in both legislative and policy functions of government, whether at national or county level, and applied to the procedure of legislative enactment. Lack of public participation was fatal, and if any action that required public participation was commenced without it, the same was invalid as it offended an express constitutional stipulation.
  3. The Kenya Association of Manufacturers, a large body, with representation in the whole country gave their considered view. The fact that there was representation of the membership of the key stakeholder in the meetings was sufficient as the representation of the membership of the stakeholder had the members view on the implementation of EGMS. A consultative meeting in every county was not necessary so that the EGMS could pass the public participation test.
  4. The rule of thumb was that a reasonable and real opportunity was given to the public and all interested parties, with timely access to information. Public participation was carried out, it passed the test of effectiveness. The requirement for public participation was met.
  5. The trial court applied the law retrospectively. If the more recent legislation, Public Procurement and Asset Disposal Act (PPAD) 2015 came into force on January 7, 2016, and the tender in question was awarded on July 17, 2015. The applicable law was the PPDA 2005.
  6. There was some variation that rendered the scope of the original contract incapable of being carried out; and that the 25% threshold would be exceeded under Legal Notice No. 110 of June 18, 2018, as set out in the Auditor General’s report. Since there was already an existing contract, and the platform was already in existence, then the easiest thing was to re-issue the tender and award it directly to the 3rd respondent, who was already laying the works in the pipeline. As per the Auditor General’s report, it would have cost the consumer much if a parallel system was to be put in place. The tender was not awarded irregularly. The appellant acted in accordance with section 103(1) of the PPDA Act.
  7. Orders: The appeal was dismissed, and each party was ordered to bear its own costs, acknowledging the public interest nature of the litigation

Appeal allowed; each party was to bear its own costs.
LAW OF TORTS

Standards for reporting allegations and the duty of verification in publication

Headnote:The consolidated appeals arose from a defamation suit brought by Judge Anne Omollo against members of a political taskforce and a media publication, “The Star,” for publishing defamatory content in a report and newspaper article. The Court of Appeal upheld the High Court's ruling, awarding damages to the plaintiff and ordering an apology from the media publication, confirming that both the taskforce and the media outlet were liable for defamation.

Ongwen & 5 others v Omollo & 6 others (Civil Appeal 133 & 150 of 2018 (Consolidated)) [2023] KECA 1444 (KLR) (24 November 2023) (Judgment)
Neutral Citation: [2023] KECA 1444 (KLR)
Court of Appeal at Kisumu
F Tuiyott, PO Kiage, and M Ngugi, JJA

Reported by John Ribia

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Law of Torts – defamation – elements of defamation – where a claimant was not referred to directly in a defamatory statement - what were the ingredients of defamation - whether a defamatory statement can be deemed to have been made where the claimant/victim was not referred directly by name - whether a defamatory statement that did not refer to the claimant by name but inescapably points to the claimant as the person of interest was defamatory - Defamation Act (cap 36) sections 5 (1)(a) and 7(1)
Law of Torts – defamation – responsible journalism – defamation vis-à-vis responsible journalism - elements of responsible journalism – where a newspaper reported on a taskforce that made a report containing defamatory statements – duty to verify information - what were the elements of responsible journalism - whether a taskforce investigating a public officer had a duty to verify allegations before publishing a report, especially when such allegations involved serious accusations against a public figure - whether the Orange Democratic Movement Taskforce members acted within their mandate in publishing allegations of corruption against a Judge without verifying the accuracy of the information - whether the Orange Democratic Movement Taskforce report publication of unverified defamatory statements against a judge constituted defamation against the respondent - whether a journalist who, after offering the individual a chance to comment, went beyond simply reporting third-party allegations and made specific references to the individual, had fulfilled the duty of care required to avoid making a defamatory statement - whether "The Star" newspaper adhered to the principles of responsible journalism when it republished the allegations from the Orange Democratic Movement Taskforce report, including the respondent’s name and position as a judge, without independently verifying the accuracy of the claims - whether "The Star" newspaper’s reliance on the Orange Democratic Taskforce report and inclusion of the respondent’s denial in the publication was sufficient to constitute responsible journalism - whether the general damages awarded for defamation were appropriate, taking into account the failure of both the taskforce and the media to exercise responsible journalism and the harm caused to the respondent’s reputation - Defamation Act (cap 36) sections 5 (1)(a) and 7(1)

Brief facts:
Anne Omollo, a judge, claimed defamation after the ODM party's taskforce published a report suggesting that money had been deposited into her account, linking her to alleged corruption involving Kisumu County officials. The claim was later republished by "The Star" newspaper. She denied receiving any funds, stating she did not know the people mentioned in the report. The appellants, members of the taskforce, argued that the taskforce acted within its mandate and the media only republished content from the report. The trial court found the statements defamatory and awarded damages against both the taskforce members and the media publication.
The trial ordered for the appellants to be jointly liable for damages of Kshs. 6,000,000. Aggrieved the appellants filed the instant appeal.

Issues:

  1. What were the ingredients of defamation?
  2. Whether a defamatory statement can be deemed to have been made where the claimant/victim was not referred directly by name.
  3. Whether a defamatory statement that did not refer to the claimant by name but inescapably points to the claimant as the person of interest was defamatory.
  4. What were the elements of responsible journalism?
  5. Whether a taskforce investigating a public officer had a duty to verify allegations before publishing a report, especially when such allegations involved serious accusations against a public figure.
  6. Whether the Orange Democratic Movement Taskforce members acted within their mandate in publishing allegations of corruption against a Judge without verifying the accuracy of the information.
  7. Whether the Orange Democratic Movement Taskforce report publication of unverified defamatory statements against a judge constituted defamation against the respondent.
  8. Whether a journalist who, after offering the individual a chance to comment, went beyond simply reporting third-party allegations and made specific references to the individual, had fulfilled the duty of care required to avoid making a defamatory statement.
  9. Whether "The Star" newspaper adhered to the principles of responsible journalism when it republished the allegations from the Orange Democratic Movement Taskforce report, including the respondent’s name and position as a judge, without independently verifying the accuracy of the claims.
  10. Whether "The Star" newspaper’s reliance on the Orange Democratic Taskforce report and inclusion of the respondent’s denial in the publication was sufficient to constitute responsible journalism.
  11. Whether the general damages awarded for defamation were appropriate, taking into account the failure of both the taskforce and the media to exercise responsible journalism and the harm caused to the respondent’s reputation.

Held:

  1. The mandate of a first appellate Court was to re- evaluate the evidence afresh and to draw its own conclusion having regard to the fact that, unlike the trial court, it did not see or hear the witnesses testify.
  2. The character witnesses did not create a nexus between the words in the taskforce report and the words in the article, the claim for an award of damages should have failed.
  3. The respondent was a Judge of a superior court in Kenya and had been an advocate of the High Court of Kenya for over 27 years having been admitted to the Bar in 1996. She undoubtedly would be a senior jurist. The respondent was the Senior Jurist referred to in the task force report.
  4. By reporting that the Judge referred to in the ODM taskforce report had denied the contents of the report, the Star had not distorted the taskforce report. It aligned with the position of the taskforce members that the Justice Anne Omollo referred to in their report was the respondent, although they did not say so explicitly in the report.
  5. The mandate of the taskforce was wider than investigating financial irregularities. It included making recommendations on what needed to be done to ensure that the Assembly was functional, implementing the party manifesto and performing its role of oversight over the County Government. Yet the portion of the report which touched on the respondent was under the heading: “The involvement of the speaker in misappropriation of Assembly resources and misuse of office.” In so far as the Star publication was an accurate reflection of a portion of the task force report but also merely added the Judge’s denial then the two were inseparable.
  6. The ingredients of defamation were that; a statement was made concerning the plaintiff, the statement was defamatory and the statement was false. It was not essential that the claimant be referred to by name. All that the claimant was required to establish was that the offending publication inescapably points to the claimant as the person referred to.
  7. There was ample evidence placed before the trial court that proved that the person referred to as Anne Omollo in the taskforce report and the newspaper publication was the respondent. A member of the taskforce thought that the Anne Omollo was the jurist and that the taskforce was at one time minded to seek a reaction from her to the accusations made. It was unequivocal that the publication concerned the respondent.
  8. The publication before the Nation and Standard Newspaper was not put in evidence and so it was not possible to know if the two newspaper reports referred to Anne Omollo, a jurist. Second, however the publication in the two newspapers, at least two people who called the respondent thought the publications referred to her. The respondent’s evidence regarding the Nation and Standard newspapers did not bolster the 1st to 4th appellants’ defence, or absolve them.
  9. No money was paid by Factor Connect to the respondent. The statement was false. There was sufficient evidence by the character witnesses summoned by the respondent that whilst they disbelieved the contents of the publication after the respondent told them that it was untrue, the respondent had still been exposed to contempt or ridicule. The trial court could not be faulted for reaching the conclusion that the essentials of the tort of defamation had been established.
  10. Responsible journalism had two facets. The need to verify the information and, in certain instances, the duty to give the claimant an opportunity to comment. The extent and scope of the responsibility must turn on the circumstances of each case. The matters to be taken into account in weighing whether the standards of responsible journalism had been reached were: (the list is not exhaustive).
    1. The seriousness of the allegation. The more serious the charge, the more the public was misinformed and the individual harmed, if the allegation was not true.
    2. The nature of the information, and the extent to which the subject-matter was a matter of public concern. The source of the information. Some informants had no direct knowledge of the events. Some had their own axes to grind, or were being paid for their stories.
    3. The steps taken to verify the information.
    4. The status of the information. The allegation may have already been the subject of an investigation which commanded respect.
    5. The urgency of the matter. News was often a perishable commodity.
    6. Whether comment was sought from the plaintiff. He may have information others did not possess or had not disclosed. An approach to the plaintiff would not always be necessary.
    7. Whether the article contained the gist of the plaintiff's side of the story.
    8. The tone of the article. A newspaper could raise queries or call for an investigation. It need not adopt allegations as statements of fact.
    9. The circumstances of the publication, including the timing.
  11. A more involved verification of information would be required where the impugned allegations were made, or at least adopted, by the publisher as opposed to where the publisher simply reports the allegations made by a third party without seeking to adopt or endorse them. Investigative journalism would fall in the first category while the latter was reportage.
  12. The 6th appellant took that as a denial and proceeded to publish the impugned taskforce report with the denial but without doing more. Yet the article published was not simply a reportage. The taskforce report did not state that the jurist was a Judge but in the article the publication was that a Judge denied she received Kshs.1.6 M cited in Kisumu task force report.
  13. It had to be assumed that the reporter had verified that the jurist mentioned in the taskforce report was Justice Anne Omollo. In choosing to go the extra mile, the reporter placed on himself a duty of verifying whether or not the money was actually paid to the judge. Having elected to do more than just a reportage, he could not be heard to complain that a more elaborate verification was either unreasonable or an onerous task. Sending the plaintiff an SMS to comment though affording her an opportunity to respond was not enough.
  14. In principle, damages against two or two sets of defamers could be separated. Yet, for such segregation to be justified it must be shown that the two played distinct and disproportionate roles in the tort without requiring the court to carry out an artificial and intricate dissection of which tortfeasor did what. The objective of separating the damages would be to apportion damages in a manner that accorded with the culpability of each tortfeasor.
  15. There were two sets of offending publications, one which was solely attributable to the taskforce. The defamatory context of that report became more the clearer in the manner in which it was published by the Star but which publication, was not a distortion of the contents of the taskforce report. The manner in which the Star published the article breached the rules of responsible journalism. It w not easy to differentiate or dissect the blame and there could be no justification to punish the taskforce members more than the Star and its reporter or vice versa.
  16. The Star was just as culpable as members of the task force under the repetition rule. The policy of the rule was that repeating someone else’s libellous statement was just as bad as making the statement directly. By failing to observe responsible journalism, the Star ended up repeating the libellous report of the taskforce as though it had made the report itself.
  17. The latitude of an appellate court interfering with an award of damages by a trial court was circumscribed. It was not the business of the court to interfere with an award of damages simply because the court may think that it may have arrived at a different award from that of the trial court.
  18. The appellants did not demonstrate why a global sum of Kshs.6,000,000 was excessive. The instant court was unable to see any reason why that award was excessive or unreasonable for a sitting Judge who had been blatantly defamed as corrupt.
  19. Regarding the order to publish an apology, the Star had waited to be compelled to publish an apology when it had a chance to do so even before the suit was filed against it. Instead, it chose to ignore the 1st respondent’s demand for an apology. While it was true that considerable time had passed between the date of the publication of the offending article and the date when judgment was handed down at trial, the court was not told how an apology would prejudice the Star. The apology was to be published in Star’s own newspaper and Star had not demonstrated that that would be an onerous or costly exercise. On the other hand, the respondent strongly feels that an apology is imperative and may have the effect of restoring her reputation, however late it was in coming.
  20. The idea underpinning court-ordered apologies was to restore the claimant’s reputation in the minds of the people who were misinformed by the defamatory statement or publication by compelling the defendant to take back his injurious words and apologize for spreading them. An award for damages years after a defamatory speech was published could hardly restore the plaintiff’s reputation. Publication of a court-ordered apology, reaching the same audience as the one to whom the original material was addressed, was more likely to achieve that result.
  21. The respondent’s standing was important enough that a court ordered apology was essential in restoring her reputation and there could be no reason to deny her that remedy, more so because publishing such apology was neither inconvenient nor expensive to the Newspaper.
  22. All who would publish words of and concerning others must do so while mindful not to defame. The duty to respect and uphold the reputation of our fellows was a reasonable one in a free and rational society. To publish with scant regard to truth and in the process injure another’s reputation must invite tortious consequences.

Consolidated appeals dismissed.