The Privatisation Act, 2023 and the Decision to Privatise the Kenya International Conference Center was Unconstitutional
Headnote: the main issue involved the constitutionality of the Privatisation Act and the decision to privatise the Kenya International Conference Center. The court found that the National Assembly did not conduct reasonable, meaningful, adequate and or and effective public participation before passing the Privatisation Act, 2023, hence the entire Privatisation Act, 2023 was, unconstitutional, null and void. In addition, the decision to privatise Kenyatta International Conference Centre, (Kenyatta International Convention Centre) a national monument, contravened Article 11(2) of the Constitution as read with the provisions of the Monuments and Heritage Act and was, therefore, unconstitutional, unlawful null and void.

Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others (Constitutional Petition E491 of 2023 & E010 & E025 of 2024 (Consolidated)) [2024] KEHC 11494 (KLR) (Constitutional and Human Rights) (24 September 2024) (Judgment)
Neutral citation: [2024] KEHC 11494 (KLR)
High Court at Nairobi (Milimani Law Courts)
EC Mwita, J
September 24, 2024
Reported by Robai Nasike Sivikhe
Download the Decision

Constitutional Law –
constitutionality of statutes – constitutional validity of a statute – enactment of a statute – public participation during enactment of a statute – whether there was reasonable, meaningful and efficient public participation during the legislative process leading to the enactment of the Privatisation Act – Constitution of Kenya, 2010, article 10 (2) and 118
Constitutional Law – constitutionality of statutes – constitutionality of the Privatisation Act – where the Privatisation Act provided that a privatization programme was considered as ratified if the National Assembly delayed to ratify the same, on expiry of 90 days – whether the provision that a privatization programme was considered as ratified if the National Assembly delayed to ratify the same, on expiry of 90 days, overlooked the National Assembly’s oversight role – whether a provision that side stepped the oversight role of the National Assembly was unconstitutional
Constitutional Law – constitutionality of statutes – constitutionality of the Privatisation Act – where the Privatisation Act provided for Privatisation of entities considered as national monuments – whether the privatization of KICC (Kenya International Conference Center), a national monument and cultural heritage, was Constitutional – Constitution of Kenya, 2010, article 11 (2) (a)
Constitutional Law – legislation – law-making process – Bills that required the concurrence of the Senate before enactment – where the process of the Privatisation Act did not involve the Senate, even though some of the entities to be privatized were located in counties – whether it was necessary to seek concurrence of the senate during enactment of the Privatisation Act

Brief Facts
On October 9, 2023, the President assented to the Privatisation Bill, 2023 as the Privatisation Act, 2023 (the Act) with a commencement of October 27, 2023. The Act repealed the Privatization Act, 2005. The Cabinet Secretary for Treasury and Planning (CS Treasury) then published a privatization programme, (the programme), identifying 10 public entities for privatization, under section 21 of the Act. Members of the public were invited to submit their views on the programme. The entities identified for privatisation were; Kenyatta International Convention Centre (KICC); Kenya Pipeline Company (KPC); the New Kenya Cooperative Creameries (New KCC); Kenya Literature Bureau (KLB); National Oil Corporation of Kenya (NOCK); Kenya Seed Company Limited (KSC); Mwea Rice Mills Ltd (MRM); Western Kenya Rice Mills (WKRM); the New Kenya Cooperative Creameries Limited (NKCC); Numerical Machining Complex Limited (NMC) and Kenya Vehicle Manufacturers Limited (KVM). The proposed privatisation programme generated intense public interest and three petitions, which were consolidated, were filed challenging the constitutionality of the Act as well as a number of sections the Act. The main issues identified for determination, were: whether there was meaningful and effective public participation during the legislative process and whether the impugned sections were constitutionally invalid.

Issues:
  1. Whether there was reasonable, meaningful and efficient public participation during the legislative process leading to the enactment of the Privatisation Act.
  2. Whether a provision that side stepped the oversight role of the National Assembly was unconstitutional
  3. Whether it was necessary to seek concurrence of the senate during enactment of the Privatisation Act
  4. Whether the privatization of KICC (Kenya International Conference Center), a national monument and cultural heritage, was Constitutional
Held
  1. The legislative process leading to enactment of the Privatisation Act fell within the ambit of Article 10 and for that reason, the 4th respondent was bound to comply with the requirement of public participation. Further, Article 118 also required Parliament (in the instant case the 4th respondent), to conduct its business in an open manner. Its sittings and those of its committees must also be open to the public and it should facilitate public participation and peoples’ involvement in the legislative process and other business, including the business of the committees.
  2. Once the petitioners attacked the legislative process on grounds that it did not meet the constitutional threshold of public participation, the burden fell on the 4th respondent to show to the satisfaction of the Court, that the legislative process complied with the constitutional requirements. That was because it was the 4th respondent’s constitutional obligation to ensure that there was public participation during the conduct of its business and those of its committees: a constitutional burden that the 4th respondent must discharge.
  3. The 1st and 4th respondents argued that National Assembly Standing Orders gave guidelines on how the 4th respondent should conduct public participation which was complied with when invites were sent out on 15th August 2023. Standing Orders were procedural rules which guided and informed how the 4th respondent should, at a minimum, conduct its business, including public participation. Standing Orders did not, however, override the Constitution and were not a substitute to constitutional edict on public participation as expounded by courts. The 4th respondent should facilitate public participation that was reasonable, meaningful and effective both qualitatively and quantitatively.
  4. To facilitate public participation would mean and include taking deliberate positive measures and steps that would make it possible for the public to attend and, thereafter, accord them an opportunity to contribute their views on the Bill. When conducting public participation, the 4th respondent was not doing a favour to the public but fulfilling a constitutional command. In that respect, the 4th respondent was required to disseminate information to the public about the Bill; invite those interested to know about the Bill and give them reasonable opportunity to participate and have a say on it. There was no evidence for example, that information was disseminated before the notice was put out in the newspaper on June 12, 2023, inviting members of the public to submit memoranda. The 1st and 4th respondents merely stated that that the Bill was published.
  5. The copy of the Bill attached to the replying affidavit was the one that was published in the Kenya Gazette and was in English Language. Similarly, the notice dated June 12, 2023 and published in the Daily Nation of the same day calling on members of the public to submit memoranda, was in English language. It was not clear whether there was a Kiswahili version of that Bill and the notice at least for those who did not understand English language for effective dissemination of information. For that reason and from the report, only six memoranda were received and out of those six, three were from institutions affiliated to the government.
  6. The 4th respondent seemed to have put more focus on a few specific and targeted stakeholders, not more than six, without explaining the reasons why and how they were selected. In other words, the 4th respondent reduced public participation on such an important legislation to selected few at round table discussion and completely ignored and shut out members of the public who may not have heard about the Bill or could not send memoranda by post or email, but would still have had something to say on the legislation if they had been given a reasonable opportunity to do so. Failing to indicate to the public that it would hold a session for public participation was a significant omission on the part of the Committee.
  7. It was possible to argue, and it was understandable, that not every member of public had to attend and give views during public participation. However, the Constitution contemplated that the public had totake centre stage in governance issues. They had to, therefore, be given a reasonable opportunity to participate in the affairs that affect them, including legislative processes. Public participation must not be reduced to a ritual meant to merely fulfil a constitutional requirement. It must be real, meaningful and effective so that it can influence that legislative process: Anything less, if accepted, would make the whole essence of public participation a farce.
  8. The 4th respondent had not demonstrated that the primacy of Articles 10 and 118(1) (b) of the Constitution was met during the legislative process leading to enactment of the impugned Act. Limiting public participation to selected few stakeholders, and four participants to be precise, majority of them representing government institutions could not, by any stretch of imagination, be considered reasonable, meaningful and effective public participation both quantitatively and qualitatively as envisioned by the Constitution and elaborated in court pronouncements.
  9. In dispersing power among State organs, the Constitution conferred on Parliament the exclusive mandate to make laws. In that regard, the 4th respondent was not beyond the reach of national values and principles in Article 10(2) read with Article 118. The 4th respondent was bound to conduct reasonable, meaningful and effective public participation that met the constitutional threshold before enacting laws.
  10. The impugned legislation, as important as it was to the country, did not meet an important constitutional threshold of public participation. The 4th respondent failed in its constitutional obligation to conduct real, reasonable, meaningful and effective public participation during the legislative process. The National Assembly violated an important constitutional step in the legislative process thus, the Act failed the constitutional validity test.
  11. There was a general, but rebuttable presumption principle that a court should presume a statute enacted by the legislature to be constitutional, unless the law was clearly unconstitutional or a fundamental right was violated. The burden was, however, on the person alleging unconstitutionality to prove the invalidity. That was because it was assumed that the legislature, as the people’s representative, understood the problems people face and, therefore, enacted legislations with the intention of solving the problems.
  12. The court should examine the purpose or effect of a statute. The purpose of enacting a legislation, or the effect of implementing such legislation, may lead to nullification of the statute or its provision if found to be inconsistent with the constitution.
  13. Section 6(a) of the Privstisation Act merely stated the objects of privatisation so as to encourage people or entities outside government to take active role and participate in the economy by changing production and services to the private sector rather than the government-public. That was, turning ownership of public entities from the government to the private sector, including private individuals. Under section 6(c), the object was to reduce the demand for government resources in the entities to be privatised. While under section 6(g), the object was to improve the efficiency of the economy by making it more responsive to market forces. The petitioners’ argument that section 6(a), (c) and (g) established purposes that were not in line with the Bill of Rights more so, Article 43(1) was not correct.
  14. Where a petitioner argued that a provision contravened the Constitution, he must show, prima facie, that indeed that was the case. The petitioners had not shown how section 6(a), (c), and (g) violate Article 43(1), namely: the right to highest attainable standard of health, access to adequate housing, and reasonable sanitation, freedom from hunger and adequate food of acceptable quality, clean and safe water, social security and education.
  15. Privatisation meant that the government would be shedding off its ownership or part of it in public entities. The objects and purposes of privatisation as stated in section 6 could not be said to contravene Article 43(1) as read with Article 19 of the Constitution as the petitioners perceived it. In any event, the petitioners had not shown that without the purposes of privatisation in section 6, the rights under Article 43(1) were achievable.
  16. Article 201 of the Constitution was on the principle of public finance generally. Article 201 (c) stated that the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations. The petitioners had not demonstrated how the purposes in the impugned sections violate the principle in that Article. The fact that burdens and use of resources be shared equitably would also mean the losses incurred by those entities be shared equitably. At that stage, there was no evidence that any would be resources from privatisation would not be used in accordance with Article 201(c).
  17. Provisions of section 7 of the Privatisation Act were different from those in section 9 of the same Act. Whereas the role of the Cabinet Secretary was mainly on policy formulation, the functions and or role of the Authority was on implementation of the Act. There wasn’t any real or potential tension between sections 7 and 9 that would render the sections unconstitutional.
  18. The purpose of seeking ratification under the Act, was to give the 4th respondent, as the people’s representative, an opportunity to check whether the proposed privatisation was in the public interest. Although the intendment of section 22(3) was to ensure that the 4th respondent made a prompt decision on the request to ratify the privatisation programme without delay, the effect of section 22(5) to deem ratification to have been given on expiry of ninety days, was to side step the role of the National Assembly to check whether the privatisation programme was really in the best interest of the people. During the hearing, counsel for the respondents were at pains to explain why ratification should be deemed to have been given and not declined.
  19. It could not be gainsaid that the 4th respondent exercised a constitutional mandate in oversighting State organs. Further, section 22(3) of the Act affirmed that role and assigned to the 4th respondent the discretion to ratify the privatisation programme or not. Purporting to deem ratification to have been given was to run away from the 4th respondent’s critical constitutional role which was against Kenya’s constitutional philosophy.
  20. It was also inconceivable and unfathomable that the 4th respondent easily acquiesced to ceding one of its core constitutional mandates at the altar of expeditious privatisation. The Constitution did not contemplate a situation where Parliament would not oversight a State organ for whatever reason. It was, therefore, a dereliction for the 4th respondent to purport to leave privatisation of public entities in the hands of the executive branch without any oversight by the very institution the people entrusted that role with.
  21. Legislation, or a provision whose purpose may be constitutional would still fail constitutional validity and would not be saved if its effect was offensive to the Constitution. Section 22(5) defied the doctrine of separation of powers and undermined one of the key constitutional mandates of the 4th respondent to oversight the executive. Section 22(5) thus, fails the constitutional test of validity.
  22. Section 29 provided for the methods of privatisation which had to include—initial public offer of shares; sale of shares by public tender; sales resulting from the exercise of pre-emptive rights; or such other method determined by the Cabinet. Those methods were inconclusive. The petitioners had not demonstrated how those methods would result into discrimination and, therefore, violate Article 27. Initial Public Offers (IPOs) were used before in the privatization of public entities without any questions being raise. There was no constitutional infringement.
  23. It was clear from both the long title to the Act and section 6, that the Act dealt with privatisation of public entities belonging to the national government and not county governments. In that regard, it was the national government that would be shedding off its hold in those entities and not the county governments. The fact that some, if not all the entities, were domiciled within counties and while some may have something to do with devolved functions, what was to be privatised was ownership and not the functions. There was no reason for faulting the legislative process in excluding the Senate’s concurrence.
  24. Sections 30 and 31, dealt with privatisation proposals and approvals respectively and, therefore, nothing much turned on their being constitutionally invalid. Section 45 merely provided an opportunity to object to determinations of the privatisation or implementation of the privatisation programme. Section 46 on the other hand, afforded a party aggrieved with the decision of the Authority on the objection, to appeal to the Review Board established under section 47. To the extent that section 45 gave an opportunity to lodge an objection before the Privatisation Authority, was not a limitation of rights. Hence, there was no contravention of or inconsistency with, the Constitution.
  25. The National Assembly might delegate legislative authority and, in the instant case, delegated that authority to the Cabinet Secretary. While exercising that authority, the Cabinet Secretary had to be alive to the principles in Article 10 and the Statutory Instruments Act. Such delegation of authority had not contravened the Constitution. In any case, decisions made by the Authority were appealable before the Review Board whose decisions were further reviewable by the High Court.
  26. Section 48 provided for the composition and qualifications of members of the Review Board. The Review Board established under the Act (section 48) was not a tribunal contemplated by the Constitution. It did not, therefore, fall within the ambit of Article 159 of the Constitution which vested judicial authority in courts and tribunals and its members were appointed by the Judicial Service Commission. In that respect, section 48 had not infringed on the independence of the judiciary and the mandate of the Judicial Service Commission to appoint members of tribunals within the judiciary.
  27. Section 64 was in tandem with Article 94(6). There was limitation of its scope in that the regulations be in the Act and for the effective implementation of the provisions therein and nothing more. Furthermore, the Constitution itself was clear that law and policy-making must comply with the principles in Article 10. The making of regulations must also comply with the provisions of the Statutory Instruments Act. In the circumstances, there was no irreconcilable tension between section 64 and Article 94(6) of the Constitution.
  28. Some of the entities identified for privatization were of strategic value to the country. However, whether to privatise or not, was an executive decision. The court would only intervene if it was demonstrated that the privatisation programme violated the Constitution and or the law.
  29. KICC was a monument thus, a cultural heritage that must be conserved and protected as required by the Act. KICC was a national monument and formed part of the country’s cultural heritage. The government held KICC in trust for the people and had an obligation to preserve and protect it for their use and enjoyment. The Constitution required the State to promote national heritage. In that regard, privatising KICC was not the same as promoting that heritage. The Privatisation Act could not, therefore, override both the Constitution and the National Museums and Heritage Act.
  30. The purported privatization of KICC, including the statue of the founding President, was a violation of the government’s obligation under Article 11(2)(a) of the Constitution read with the Monuments and Heritage Act.
Petition allowed.
Orders
  1. A declaration was issued that the National Assembly did not conduct reasonable, meaningful, adequate and or and effective public participation before passing the Privatisation Act, 2023. The entire Privatisation Act, 2023 was, therefore, unconstitutional, null and void.
  2. A declaration was issued that section 22(5) of the Privatisation Act, 2023 was inconsistent with the Constitution and was unconstitutional, null and void.
  3. A declaration is hereby issued that the decision to privatise Kenyatta International Conference Centre, (Kenyatta International Convention Centre) a national monument, contravened Article 11(2) of the Constitution as read with the provisions of the Monuments and Heritage Act and was, therefore, unconstitutional, unlawful null and void.
  4. Each party will bear own costs
Kenya Law
Case Updates Issue 018/2024-2025
Case Summaries  

   
LAND LAW The Power of the Deputy Chief Justice to Empanel a High Court Judge Bench

Headnote: The main issue was whether the Deputy Chief Justice had power to empanel a High Court Bench. The court held that the Deputy Chief Justice could assign Judges under Article 165(4) of the Constitution whenever he/she was discharging any of the constitutional functions on behalf of the Chief Justice. In the instant case, there was no fault in the DCJ assigning Judges to sit in the instant bench.

Gachagua & 7 others v Speaker, National Assembly & 5 others; Law Society of Kenya & another (Interested Parties) (Petition 565 (Nrb), (Kerugoya) E013, E014 & E015 of 2024 (Consolidated)) [2024] KEHC 13752 (KLR) (Constitutional and Human Rights) (23 October 2024) (Ruling)
The High Court at Nairobi (Milimani Law Courts)
EKO Ogola, AC Mrima & FG Mugambi, JJ at Machakos
October 23, 2024
Reported by Robai Nasike Sivikhe

Download the Decision

Constitutional Law-– judiciary – function of the Deputy Chief Justice – the scope of the powers of the Deputy Justice - power of the Deputy Chief Justice to empanel a High Court Bench – whether the function of the Chief Justice could be performed by the Deputy Chief Justice – whether the Deputy Chief Justice could exercise the power of assigning and empaneling expanded Benches of the High Court – Constitution of Kenya, articles 161, 163, 165 (4) and 171
Constitutional Law-interpretation of the Constitution – principles of interpretation of the Constitution – application of the principles of interpretation in determining the scope of the functions of the Deputy Chief Justice – Constitution of Kenya, articles 20 (4), 259 (1) and 259 (3) (b)
Civil Practice and Procedure -orders – orders and directions of court - orders issued outside the normal working hours of the Court – where the e-filing system allowed real-time operations – where applications could be processed almost in real-time – the discretion of the Court to issue orders or directions without the attendance of advocates or parties – whether the High Court sat and considered an application by the respondent on a Saturday, outside official court hours – High Court Practice Directions, 2022, Practice Direction 19(a)
Words and phrases -definition – administrative act – an act made in management capacity; esp., an act made outside the actor’s usual field (as when a judge supervises court personnel)– Black’s Law Dictionary, 9th Edition
Words and phrases-definition – judicial power – the authority vested in courts and judges to hear and decide cases and make binding judgments on them; the power to construe and apply the law when controversies arise over what has been done or not done under it – Black’s Law Dictionary, 9th Edition
Words and phrases - definition – sitting – a formal occasion when the Court convenes to conduct its business – Black’s Law Dictionary
Brief facts:
The primary issue in the application stemmed from the decision of the Deputy Chief Justice (DCJ) to empanel a bench to determine the substantial constitutional questions raised within the matter. According to the applicant, it was unconstitutional for the DCJ to appoint a bench at night, especially given that, in past cases involving abductions, the Chief Justice had not appointed benches during the night or authorized judicial proceedings to take place on weekends. Furthermore, the applicants contended that other cases filed earlier than the instant matter, have been excluded, with no bench yet empanelled to hear them. They deposed that the selective empanelling suggested bias on the part of the DCJ, who, they alleged, favoured the Government of Kenya, the Attorney General, the National Assembly, and the Senate. The applicants argued that such bias undermined the impartiality of the judicial process and contravened the principles of fairness enshrined in the Constitution.

Issues:

  1. Whether the function of the Chief Justice could be performed by the Deputy Chief Justice.
  2. Whether the Deputy Chief Justice could exercise the power of assigning and empanelling expanded Benches of the High Court.
  3. Whether the High Court sat and considered an application by the respondent on a Saturday, outside official court hours. Read More..

Held :

  1. The Constitution provided for its own theory of interpretation, in Articles 20(4) and 259(1). Article 20(4) required Courts while interpreting the Bill of Rights to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom and the spirit, purport and the objects of the Bill of Rights. Article 259(1) commanded Courts to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance.
  2. The Constitution directs that it shall be interpreted in line with the doctrine of living constitutionalism. The doctrine held that a constitution was a living document meant to evolve over time to reflect societal changes, contemporary realities, and shifting values. It further recognized that the law was dynamic and adaptable to evolving circumstances, often encapsulated in the maxim that "the law is always speaking." It underscored that constitutional provisions were not static or frozen in time but had to be understood as applying to current circumstances, regardless of their original context. The interpretive approach ensured that the Constitution remained relevant and effective in guiding the governance and legal frameworks of a modern, dynamic society.
  3. The doctrine that "the law is always speaking" aligned with the purposive approach to constitutional interpretation, as endorsed by courts in various jurisdictions. Under that approach, Courts were required to interpret constitutional provisions in a way that gave effect to their underlying purpose and objectives, rather than adhering to a rigid or literal reading. Further, Courts had emphasized the need for a flexible and forward-looking interpretation of the Constitution to meet the needs of a modern state.
  4. A constitutional mandate of the Chief Justice could be judicial, administrative or political. The constitutional mandate exercised by the Chief Justice under Article 165(4) of the Constitution was a constitutionally-administrative function.
  5. Article 161 of the Constitution established the office of the Chief Justice as the Head of the Judiciary and that of the DCJ as the Deputy Head of the Judiciary. Article 163 of the Constitution created the Supreme Court and designated the Chief Justice as the President of the Court. The DCJ served as the Deputy to the Chief Justice and was also the Vice-President of the Court. Article 171 of the Constitution then established the Judicial Service Commission (JSC) as one of the Chapter 15 Commissions. The Chief Justice was the Chairperson of the Commission. In that scenario, and unlike the constitutional architecture in Articles 161 and 163, the DCJ was not the Vice Chairperson of the Commission.
  6. There was a deliberate scheme by the drafters of the Constitution for the DCJ to deputize the Chief Justice as Deputy Head of the Judiciary and as the Vice-President of the Supreme Court, but not in the Commission. There was an emphasis on the various manifestations of the constitutional duties bestowed upon the Chief Justice and the DCJ. As such, the prevailing legal position was that the DCJ could deputize the Chief Justice in discharging judicial functions and in the administration of the Judiciary, as an arm of Government, but could not do so in the Commission.
  7. Article 259(3)(b) of the Constitution established three tiers through which constitutional functions could be exercised: by the substantive office holder, by an individual acting in that capacity, or by a person otherwise performing the duties of the office at a given time. In line with the doctrine of continuity in governance, the drafters of Kenya’s Constitution were deliberate in ensuring that the administration of duties and application of constitutional provisions remained uninterrupted. They recognized the necessity of maintaining the functions of public offices, even during transitions or exceptional circumstances and ensuring administrative efficiency so that all constitutional responsibilities were carried out seamlessly without disruption. That interpretation avoided technicalities, absurdities, or gaps that could hinder the functioning of State offices or public institutions. It ultimately promoted administrative efficiency and upheld the principles of good governance, accountability, and constitutional integrity.
  8. The functions of Article 165(4) in as far as the same related to the office of the Chief Justice also included the DCJ acting in the capacity of the office of Chief Justice or discharging its functions in an interim, acting, or auxiliary role. The Chief Justice empaneled the instant bench on October 14, 2024 to deal with six Constitutional Petitions that inter alia challenged the 1st petitioner’s impeachment process in the National Assembly. The Petitions were still current. On October 18, 2024, the DCJ empaneled the same bench to deal with Constitutional Petitions challenging the impeachment of the 1st petitioner in the Senate.
  9. It was beyond peradventure that the DCJ could assign Judges under Article 165(4) of the Constitution whenever he/she was discharging any of the constitutional functions on behalf of the Chief Justice. In the instant case, there was no fault in the DCJ assigning Judges to sit in the instant bench, more so when the Chief Justice had not raised any red flag.
  10. An issue was raised concerning the directions issued by the three-judge bench and transmission of the files in Nairobi Petition E565 of 2024, Kerugoya Petitions E013 and E014 of 2024 (consolidated) and E015 of 2024. The High Court took great exception to the petitioner’s conduct that when favorable to the petitioners, orders issued outside the normal working hours of the Court raised no concern. However, when the same Court acted in an instance where it had been properly moved by other parties and likewise proceeded to deal with an application at hand in the same vein, the petitioners showed their indignation.
  11. Petition E015, was filed on October 18, 2024. Following the directions issued by the Court, the instant Bench was empaneled on October 18, 2024, to hear all the three petitions, that was (E 565/2024; E013/2024; E014/2024 and E015/2024). It was evident that the real-time interaction between counsel and the courts was not a new development but a well-established practice that counsel was accustomed to. The Case Tracking System (CTS) continued to enable both counsel and the courts to transcend traditional time limitations, allowing for real-time operations. With the advent of CTS, it was increasingly common for courts to issue directions within hours of an application being filed, or even outside regular working hours, when necessary. That evolution in court practice had continued to enhance judicial efficiency and ensure timely access to justice.
  12. In raising the issue of improper sitting, the applicants omitted a crucial fact which was that the court had been moved by the respondents in petitions E565/24 and E015. As such, the court did not convene suo motu, but rather in response to the applications before it. The applicants repeatedly referred to that convening as a 'sitting' of the court, a term that required clarification and demystification. It was a matter of judicial notice that since the onset of the COVID-19 pandemic and the introduction of the CTS, the tradition of dealing with certificates of urgency had since evolved. That was reflected in Practice Direction 19(a) of the High Court Practice Directions of January 11, 2022.
  13. While the Practice Directions also stipulated that the applications filed after 12:00 pm could be considered the next working day, the full adoption of the e-filing system across the judiciary had largely rendered that provision obsolete. Applications could be processed almost in real-time, a fact well known to the justice users across the country. Furthermore, Practice Direction 19(b) conferred discretion upon the Court to issue orders or directions without the attendance of advocates or parties.
  14. The issue had been raised that the High Court allegedly sat and considered an application by the respondent on a Saturday, outside official court hours. No such formal sitting occurred. No evidence or proceedings had been presented before the Court to support the claim that a formal sitting took place. The Bench merely conferred and issued directions electronically, in line with established practice and the procedural rules as expressly permitted under Practice Direction 19(b). That was markedly different from a court session in which the bench was convened to hear and determine a matter. Accordingly, it was only fair and reasonable for the parties to dispel any notion that the instant bench convened to hear arguments from any party ex parte before issuing directions.
  15. The High Court recommended that the current Practice Directions and relevant statutes such as the High Court Administration and Organization Act be amended so as to` provide the much-needed further clarity on that subject. Moreover, out of all the prayers sought, by the applicants, including a prayer to be heard outside of the ordinary office hours of the Court, only prayer (i), which sought to have the matter certified as urgent, was granted. No other reliefs were granted at that time.
  16. The High Court was fully cognizant of both the urgency of the matter and the potential repercussions that granting any further ex parte orders could have had on the prevailing status quo. With that understanding, and in an effort to balance the scales of justice, the bench issued the directions that were presently being challenged, so as to give an opportunity for both parties to be heard on the applications. There was nothing unconventional in the manner in which the bench dealt with the two applications filed under certificate of urgency.
  17. The arguments by the applicants appeared to insinuate that the bench ought to have retained the dates. For clarity purposes, that date had been given prior to the empanelment of the bench. However, upon empanelment of the bench, applications under certificate of urgency were filed, which applications were dealt with and rightly so. Being seized of the matter, the bench retained the discretion to issue appropriate directions, depending on developments and in light of its mandate, as it did, having been moved by parties.
  18. With respect to the claim of discriminatory transmission of files to the bench, it must be emphasized that the bench had no role or control in the administrative processes that occurred prior to its empanelment. Concerns were raised about delays in the transmission of certain files, but it was crucial to clarify that 'transmission' might not necessarily refer to the physical transfer of documents.
  19. In the context of modern judicial processes, particularly with the advent of digital systems, transmission might very well refer to the electronic movement or assignment of case filed within the judiciary’s digital infrastructure. CTS, all filed documents were available in real-time across the judiciary, eliminating the need for physical file movement. Practice Direction No. 41(a)(ii) provided that Advocates and litigants shall have access to the court information electronically. While the Court could not speculate on the causes of any delays in file transmission, there was no basis for concluding that such delays amounted to any form of procedural omission on the part of the bench, as no such evidence had been presented.
  20. The applicants attempted to cast aspersions on the proceedings of the High Court, in their submissions. One of the Senior Counsels went further by intimating that an exercise akin to the 'radical surgery' could be forthcoming, a statement which the High Court perceived as a veiled attempt at intimidation. Coming from a Senior Counsel, such remarks were regrettable and wholly inappropriate and irrelevant in the proceedings. The Bench remained firm in its duty and could not be swayed or influenced by any form of intimidation, regardless of its source.
  21. The petitioners appeared to have selectively focused on aspects that favored their position, while conveniently disregarding the fact that the same petitioners were benefiting from final conservatory orders issued by the High Court and which the bench upon conferring found it wise to maintain. Notably, there was a pending application by the respondents seeking to lift those conservatory orders, which further underscored the urgency and significance of the proceedings.
  22. Having obtained the conservatory orders, it was apparent to the bench that the petitioners no longer perceived the urgency in the matter. Instead, they sought to cast aspersions on the High Court for addressing the matter with the necessary expedition. Such conduct was contradictory and undermined the very urgency the petitioners initially invoked. The issues raised in the instant and the other petitions had, on various occasions and before different Judges, consistently been certified as urgent and as involving substantive constitutional questions. That underscored the gravity and significance of the matters at hand.
  23. It was insinuated that the bench was part of a conspiracy to violate the petitioners' rights to a fair hearing under Article 50 of the Constitution. Those submissions were without foundation and wholly without merit. The court had not issued any rulings or directions that would suggest such an intent. The High Court remained fully committed to upholding the Constitution and the rule of law. The accusations made by the petitioners against the bench were entirely without merit.
  24. There was a close twining of the functions of the Deputy President with those of the President. The 1st petitioner had been impeached under article 145 of the Constitution, marking the first instance of such an event in Kenya’s history. The impeachment of the petitioner had garnered significant public interest, and the court proceedings represented a direct challenge to that impeachment. The legal proceedings were of paramount concern to the citizens of the country. To suggest, as the applicants had, that the matter lacked urgency and did not warrant prompt adjudication was disingenuous and dismissive of its far-reaching implications.
  25. A matter was of public interest if the holding on law affected a considerable number of people in the society; if the holding of law involved government and/or government agencies; if the holding of law affected the proper functioning of public institutions of governance, of the Court’s scope for dispensing redress; and if the holding of law affected the mode of discharge of duty by public officers.
  26. The proceedings raised enormous public interest and it was in the interest of that public that those proceedings were heard and finalized most expeditiously. Therefore, the aspersions cast by the applicants concerning the directions for the hearing of the applications before the Court on October 22, 2024 lacked basis. They were dismissed.
  27. There was a pressing need for clear practice directions regarding the procedure and process for handling virtual and online directions and proceedings. The High Court directed the Deputy Registrar of the Division to transmit a copy of the Ruling to the Chief Justice. The bench, acting in fidelity to its oath of office and in strict adherence to the dictates of the Constitution, remained resolutely committed to the fair and just determination of the issues before it.

Application dated October 22, 2024, was disallowed with costs in the cause.

  1. Leave to appeal was granted.
  2. Certified copies of the proceedings and the Ruling shall be availed upon payment of the requisite court fees as the case may be.
CONTRACT LAW Whether the Courts could stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges

Headnote: the main issue was whether the Courts could stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges. The court held that the 5-judge bench was being accused of bias and working towards an undisclosed predetermined outcome. The Bench was strongly persuaded that its further participation in the instant proceedings would not serve the ends of justice, at least in the eyes and perception of the appellants/applicants. Consequently, and inevitably, each member of the Bench thereby recused him/herself from further participation in the hearing and determination of the appeal dated April 25, 2023 and filed on April 26, 2023.

Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 58 (KLR) (11 October 2024) (Ruling)
The Supreme Court of Kenya
PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & W Ouko, SCJJ
October 11, 2024
Reported by Robai Nasike Sivikhe

Download the Decision

Civil Practice and Procedure stay of proceedings – application for orders of stay of proceedings – where an application for stay of proceedings required a Bench to stay proceedings pending determination of a complaint filed against it before the Judicial Service Commission – whether Courts could stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges
Judicial Officers recusal of a judicial officers – bias and impartiality – claim that a Bench was impartial – application for stay of proceedings, pending determination of a complaint against a bench – where a Bench was strongly persuaded that its further participation in the proceedings would not serve the ends of justice – whether the doctrine of necessity could not be available in the face of the accusations of impropriety and bias, levelled against an entire Bench of the Court

Brief Facts:
The applicants applied for orders to stay the proceedings before the Supreme Court, awaiting the conclusion and determination of a complaint they had filed at the JSC against the Five-Judge Bench constituted to hear and determine their Appeal. According to the applicant, the jurisdictional issues raised in the appeal transcended the parties’ case and the Court’s determination was binding on all the courts below. It was averred that the Court (specifically Lady Justice Philomena Mwilu (DCJ & VP), Justice Mohammed Khadar Ibrahim, Justice (Dr.) Smokin Wanjala, Lady Justice Njoki Ndungu and Justice William Ouko, SCJJ), ignored important and pertinent matters and procedures that were directly relevant and integral to the main issues in the appeal. It was the appellants/applicants’ case that the five Judges conducted themselves in a manner that was impartial and departed from the basic expectations of a court of law; that the Court had fallen short of its mandate under the Constitution; that the Judges’ conduct fell short of the required standard of conduct under the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and the Judicial Service Act; and that the impugned actions and omissions necessitated the filing of the complaint against the five Judges to the JSC.
Consequently, it was their case that once the complaint was heard and determined, the Judges would have a chance to introspect, recalibrate and appreciate the impact of their decisions and the JSC would give proper directions on the hearing of the main appeal. In the foregoing, it was only fair to first allow the complaint before the JSC to run its course, and as such, it was just and equitable that the instant application be determined on a priority basis.

Issue:

  1. Whether Courts could stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges
  2. Whether the doctrine of necessity could not be available in the face of the accusations of impropriety and bias, levelled against an entire Bench of the Court Read More..

Held :

  1. The appellants/applicants were seeking a stay Order from the Supreme Court in the most unusual, strange, and disingenuous strategy. Through the application, they were moving the Court to stay the proceedings awaiting the conclusion and determination of a complaint that they had filed at the JSC against the Five-Judge Bench constituted to hear and determine their Appeal. In their Petition before the JSC, the appellants/applicants brazenly accused the five Judges of impropriety and misconduct. They alleged that the Court was working towards a predetermined outcome.
  2. The appellants/applicants were not seeking a stay of the Judgment of the Court of Appeal. Instead, they were seeking a stay of their own appeal pending the determination of a complaint they had filed against the five-judge Bench at the JSC. As such, the principles established for grant of stay by the Supreme Court in Gatirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Others [2014] eKLR were not applicable to the instant application. In the same vein, it did not require superlative archival effort to discover that there existed no provision of the Constitution, the Supreme Court Act, or Rules of the Court as would entitle a litigant to make such an application.
  3. What was undeniable, was the fact that by resorting to that course of action, the applicants were unequivocally accusing the Bench of lack of impartiality, fairness, and integrity. Such an accusation against a Judge went beyond the very core of their oath of office. Coming from a party to ongoing proceedings, such an allegation, had to strongly persuade the Judge to recuse him/herself from further participation in the proceedings. Indeed, the honourable recourse by the litigant was to seek the recusal of the Judge. That was precisely what had happened to the instant Bench, save that instead of applying for its recusal, the applicants would rather that the Court stayed the proceedings until the JSC determines their complaint, a very strange move, to say the least.
  4. The 5-judge bench was being accused of bias and working towards an undisclosed predetermined outcome. The Bench was strongly persuaded that its further participation in the instant proceedings would not serve the ends of justice, at least in the eyes and perception of the appellants/applicants. Consequently, and inevitably, each member of the Bench thereby recused him/herself from further participation in the hearing and determination of the appeal dated April 25, 2023 and filed on April 26, 2023.
  5. In taking the instant decision, the court was keenly aware of its consequences on the appeal before them, given the constitutional provisions as to quorum of the Instant Court. Indeed, such a decision was one that ought only to be taken very sparingly, on a case-by-case basis, and in the most compelling circumstances. However, in the face of the accusations of impropriety and bias, levelled against an entire Bench of the Court, even the doctrine of necessity could not be available to the appellant/applicants. Furthermore, what would become of the administration of justice in the Country, if courts of law, leave alone the Supreme Court, were to be required to stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges?

Application dismissed.
Orders

  1. Declaration that the shares held by the 1st and 3rd respondents in the 4th - 7th respondents were held in trust for the 1st appellant or its nominees.
  2. The Notice of Motion dated May 16, 2024, is hereby dismissed.
  3. The Judgment of the Court of Appeal dated April 20, 2023, shall stand until it was either affirmed, or reversed by a competent Bench of the Court.
  4. Each party shall bear its own costs.