Commission on Administrative Justice v Attorney General & another [2013] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.284 OF 2012

BETWEEN

COMMISSION ON ADMINISTRATIVE JUSTICE...................PETITIONER

AND

THE HON. ATTORNEY GENERAL......................................RESPONDENT

AND

LAW SOCIETY OF KENYA........................................INTERESTED PARTY

JUDGMENT

Introduction

1. The Petitioner is a Commission established pursuant to Article 59(4) of the Constitution as read
with the provisions of the Administrative Justice Act, No.23 of 2011 and in its Petition dated
6th July 2012, it raises the following questions for determination;

i) Whether Section 14(1) of the Supreme Court Act, 2011 is ultra vires Article 163(3), (4)
and (5) of the Constitution to the extent that it arrogates new or extended jurisdiction other than that
contemplated under the Constitution.

ii) Whether Section 16(1) and (2) (b) of the Supreme Court, 2011 is ultra vires Article 163 of
the Constitution to the extent that it adds to the jurisdiction of the Supreme Court to determine appeals
where the Court is satisfied that it is in the interests of justice for the Court to hear and determine the
proposed appeal or where a substantial miscarriage of justice may have occurred or may occur unless
the Appeal is heard.

iii) Whether Section 23(2) of the Supreme Court Act is ultra vires the Constitution to the
extent that it provides that any two judges may act as the Court.

iv) whether the consequent provisions of the Supreme Court Rules namely Rules 17, 41, 42
and 43 are unconstitutional.

http://www.kenyalaw.org - Page 1/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

Case for the Petitioner

2. The Petitioner filed written submission on 7/5/2013 and its case is as follows;

3. That it has an obligation and the standing under Articles 159(2)(d) and 258(1) and (2) of
the Constitution, 2010 to bring the present proceedings and that under Article 165(1)(d) of the
said Constitution, the High Court has jurisdiction to hear and determine whether any
law is inconsistent with or in contravention of the Constitution.

4. That the Supreme Court is created by Article 163 of the Constitution and under Article 163(9),
Parliament is granted the power to make further provision for the operationalisation of the Court
but Parliament in doing so, has no powers to expand the constitutional jurisdiction of the Court
and that any legislation enacted in that regard should not depart from the jurisdiction specifically
conferred by the Constitution.

Article 14 of the Supreme Court Act

5. The Petitioner has admitted that the constitutionality or otherwise of the above Article was settled
on 23/10/2012 by the Supreme Court when it declared as follows;

“Flowing from the foregoing, we hold that Section 14 of the Supreme Court Act is
unconstitutional insofar as it purports to confer “special jurisdiction” upon the Supreme Court,
contrary to the express terms of the Constitution. Although we have a perception of the good
intentions that could have moved Parliament as it provided for the “extra” jurisdiction for the
Supreme Court, we believe this, as embodied in Section 14 of the Supreme Court Act, ought to
have been anchored under Article163 of the Constitution, or under Section 23 of the Sixth
Schedule on “Transitional Provisions.”

The above finding was made in the case of Samuel Kamau Macharia & Anor vs Kenya
Commercial Bank Limited & 2 Others, Petition No.2 of 2012.

I need not go further than stating that this Court is bound by the decision of the Supreme Court
by dint of Article 163(7) of the Constitution which states as follows;

“All courts, other than the Supreme Court, are bound by the

decisions of the Supreme Court. ”

6. There is nothing more to say and the first question, for avoidance of doubt, must therefore be
answered in the affirmative and Rule 17 of the Supreme Court Rules like Section 14 aforesaid
are declared to be unconstitutional.

Section 16(1) and (2) (b) of the Supreme Court Act

7. Section 16 of the Supreme Court Act provides as follows;

“(1) The Supreme Court shall not grant leave to appeal to the Court unless it is satisfied that it is
in the interests of justice for the Court to hear and determine the proposed appeal.

(2) It shall be in the interests of justice for the Supreme Court to hear and determine a

http://www.kenyalaw.org - Page 2/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

proposed appeal if—

(a) the appeal involves a matter of general public importance; or

(b) a substantial miscarriage of justice may have occurred or may occur unless the appeal is
heard.

(3) The Supreme Court shall not grant leave to appeal against an order made by the Court of
Appeal or any other court or tribunal on an interlocutory application unless satisfied that it is
necessary, in the interests of justice, for the Supreme Court to hear and determine the proposed
appeal before the proceedings concerned is concluded.

(4) The Supreme Court may grant leave to appeal subject to such conditions as it may
determine.

(5) The Supreme Court may, on application, vary any conditions imposed under subsection (4) if
it considers it fit.”

8. The Petitioner's complaint in this regard is that the provisions above purport to unilaterally and
unconstitutionally extend the appellate jurisdiction of the Supreme Court to include areas where the
Court is satisfied that the matter is in the “interests of justice” and “where a substantial miscarriage of
justice may have occurred or may occur” which are situations that were and are not contemplated by the
Constitution. That in fact the Constitution only recognises “a matter of general public importance” as the
basis for admission of an appeal for hearing by the Supreme Court and therefore the wide powers given
by the Act are ultra vires Article 163(4) of the Constitution and to that extent are unconstitutional and
should be so declared.

Section 23 of the Supreme Court Act

9. Section 23 of the Act provides as follows;

“(1) For the purposes of the hearing and determination of any proceedings, the Supreme Court
shall comprise five Judges.

(2) Any two or more judges of the Supreme Court may act as the Court—

(a) to decide if an oral hearing of an application for leave to appeal to the Court should be held,
or whether the application should be determined solely on the basis of written submissions; or

(b) to determine an application for leave to appeal to the Court.”

10. The Petitioner takes issue with the above provision and submits that under Article 163(2) of the
Constitution, the Supreme Court “shall be properly constituted for purposes of its proceedings
if it is composed of five judges.” That the unwritten principle in that regard is that at no time
should the Court have an even number of judge and to that extent any legislation that creates a
bench of two judges in the Supreme Court is unconstitutional and should be so declared.

Rules 17, 41, 42 and 43 of the Supreme Court Rules

11. The above Rules all flow from the impugned Section 14 of the Supreme Court Act but for

http://www.kenyalaw.org - Page 3/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

clarity of issues, they provide as follows;

“Rule 17

(1) The Court may in proceedings under Section 14 of the Act call for fresh evidence.

(2) A party seeking to adduce fresh, evidence under this rule, may apply orally in Court.

(3) The Court may call for or receive from any Court or Tribunal any record on any matter
connected with the proceedings before it.”

“Rule 41

(1) An application under Section 14 of the Act, shall be by petition in Form D set out in the
First Schedule.

(2) The applicant shall serve the petition upon the Attorney- General and the parties to the
proceeding in which the judgment or decision was made.

“Rule 42

(1) The Court may, on its own motion, call for any judgment or decision made by a
judge who has resigned or has been removed form office and upon hearing the parties review the
judgment or decision.

(2) The Registrar shall issue a notice, to the Attorney-General and the parties to the
proceedings in which the judgment or decision was made, inviting them to attend the Court for
directions as to the mode and date of hearing.”

“Rule 43

A two Judge Bench shall, before hearing the petition under this part, conduct a preliminary
inquiry to determine the admissibility of the matter inviting them to attend the Court for
directions as to the mode and date of hearing”

The Petitioner's point is that once the substantive provisions of the Act are declared
unconstitutional, any rule that is made pursuant to those provisions must suffer the same fate.

Case for the Respondent

12. The Attorney-General as Respondent has urged the point that the issue raised regarding
Section 14 of the Act was settled in the Samuel Macharia case (supra) and with regard to
Section 16 aforesaid, that the Petitioner's arguments are self-defeating because whereas it
claims to be the primary custodian of the right to fair administrative action, it is also saying that
the interests of justice and substantial miscarriage of justice are not matters of general public
importance. That the argument made is not sustainable in any democratic State that has
respect for the values of justice, rule of law, equity and human rights. In any event, that the issue
was addressed by the Supreme Court in Hermans Phillipus Steyn vs Giovanni Guecchi
– Ruscone [2013] eKLR when it explained what constitutes a matter of general public
importance and acknowledged that it is a general principle of rendering justice as contemplated

http://www.kenyalaw.org - Page 4/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

by Article 159(2) of the Constitution.

13. On Article 23, the Respondent's answer to the Petitioner's contention is that the issue was
settled in the case of Erad Supplies & General Contractors Ltd vs National Cereals and
Produce Board, Petition No.5 of 2012 where the Supreme Court overruled arguments made
that two judges of the Court could not sit to determine simple applications made before the Court.

14. The Respondent further states that whereas the Petitioner qua Commission has the standing to
institute the present proceeding, it questions the fact that in its view the Chairman of the
Commission is the one who brought the Petition but I will quickly dismiss that argument
as it is not borne out by the record.

In any event, the Respondent seeks that the Petition be dismissed with costs.

Case for the Interested Party

15. The Law Society of Kenya was enjoined to these proceedings as an Interested Party and its
position is that the Petition is frivolous and without merit because;

i) The impugned provisions of the Supreme Court Act must be looked at in the circumstances
under which the Constitution 2010 was enacted including the apparent perception, real or imagined,
that the Judiciary was generally corrupt, inept and lacked independence and fairness and that it
generally disregarded the public interest in its decision-making processes.

ii) Sections 14 and 16 of the Supreme Court Act were intended to ensure that persons who may
have suffered injustices in the past because of the conduct of judicial officers receive justice in the
ultimate and that the provisions are therefore meant to serve theends of justice and are in the general
interests of the public.

iii) The Petitioner on the other hand is acting contrary to the public interest and its interpretation of
the Constitution is narrow, technical and in contravention of Article 259 of the
Constitution.

Determination

16. At the beginning of this judgment, I disposed of issue No.1 above in limine for reasons that I have
given. Before I go to the remaining questions however, it is imperative to clarify a number of
issues that have arisen albeit in passing.

17. The first is the jurisdiction of this Court to interprete the Constitution and to determine the legality
and/or constitutionality of any legislation passed under it.In that regard Article 165(3)(d) (i) is
clear. It provides as follows;

“3)Subject to Clause 5, the High Court shall have-

a) …

b) …

c) ...

http://www.kenyalaw.org - Page 5/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

(d) jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this
Constitution”.

18. The principles applicable in exercising the above jurisdiction are also well set out in various
Articles of the Constitution 2010 and they include;

“Article 2

(1) This Constitution is the supreme law of the Republic and Supremacy of this binds all
persons and all State organs at both levels of government.

(2) No person may claim or exercise State authority except as authorised under this
Constitution.

(3) The validity or legality of this Constitution is not subject to challenge by or before any
court or other State organ.

(4) Any law, including customary law, that is inconsistent with this Constitution is void to
the extent of the inconsistency, and any act or omission in contravention of this Constitution is
invalid.

(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under
this Constitution”

“Article 10

(1) The national values and principles of governance in this Article bind all State organs,
State officers, public officers and all persons whenever any of them––

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include––

(a) patriotism, national unity, sharing and devolution of power, the rule of law,
democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-
discrimination and protection of the marginalised;

(c) good governance, integrity, transparency and accountability; and

http://www.kenyalaw.org - Page 6/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

(d) sustainable development”.

“Article 159

(1) Judicial authority is derived from the people and vests in, and shall be exercised by,
the courts and tribunals established by or under this Constitution.

(2) In exercising judicial authority, the courts and tribunals shall be guided by the
following principles—

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation, mediation,

arbitration and traditional dispute resolution mechanisms shall be promoted,subject to clause
(3)

(d) justice shall be administered without undue regard to

procedural technicalities; and

(e) the purpose and principles of this Constitution shall be protected and
promoted.

(3) Traditional dispute resolution mechanisms shall not be used in a way that—

(a) contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that are repugnant
to justice or morality; or

(c) is inconsistent with this Constitution or any written law. ”

“Article 160 (1)

In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be
subject only to this Constitution and the law and shall not be subject to the control or direction of
any person or authority.”

“Article 259(1)

(1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in
the Bill of Rights;

(c) permits the development of the law; and

http://www.kenyalaw.org - Page 7/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

(d) contributes to good governance. ”

19. The above provisions in the context of the present case must also be viewed from the premise that
the High Court is a Court subordinate to the Supreme Court and therefore bound by the provisions of
Article 163(7) which I have reproduced elsewhere above.

20. Further, the appellate process set out in the Constitution is such that decisions of this Court may
well be conclusively affirmed or overturned by the Supreme Court and in that regard, this Court cannot
purport to sit on appeal over matters already determined by the Supreme Court and that is why Article
165(5)(a) provides that;

“1) …

2) …

3) …

4) ...

The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court

under this Constitution; or

(b) …”

21. In that context, one of the aspects of jurisdiction conferred on the Supreme Court is appellate
jurisdiction under Article 163(4)(a) which is relevant to the matter at hand.

22. The second issue, minor as it may seem, is still important to address; whether the Petitioner is
blowing hot and cold by claiming that while it is the primary custodian of the right to fair administrative
action as protected by Article 47 of the Constitution, by filing this Petition it is stifling the realisation
of the fruits of the Constitution, 2010 and the need to ensure that the ends of justice and the public
interest are met at every instance.

That point need not take my time because it is the merits of the Petition that I shall focus on and
not the Petitioner's real or perceived failings in the execution of its mandate under the Constitution and
the enabling Act as seen in the eyes of the Respondent and Interested Party.

23. Regarding Section 16 of the Supreme Court Act, I am in agreement with the Respondent that
the Supreme Court has also settled the meaning to be attributed to the terms “a matter of general public
importance”. This was in the case of Hermans Steyn (supra) where the Supreme Court gave clear
guidance in the following words;

“58. The foregoing comparative survey, in our opinion, sheds sufficient light on the
position to be taken by this Court, as contemplated by the terms of Article 163(4)(b) of the
Constitution. Before this Court, “a matter of general public importance” warranting the exercise
of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and
consequences are substantial, broad-based, transcending the litigation-interests of the parties,

http://www.kenyalaw.org - Page 8/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

and bearing upon the public interest. As the categories constituting the public interest are not
closed, the burden falls on the intending appellant to demonstrate that the matter in question
carries specific elements of real public interest and concern.

59. From the research material availed to this Court, it is clear that a matter of general
public interest may take different forms: in instances, an environmental phenomenon involving
the quality of air or water may not affect all people, yet it affects an identifiable section of the
population; a statement of law may affect considerable numbers of persons in their commercial
practice, or in their enjoyment of fundamental or contractual rights; a holding on law may affect
the proper functioning of public institutions of governance, or the Court's scope for dispensing
redress, or the mode of discharge of duty by public officers.

60. In this content, it is plain to us that a matter meriting certification as one of general
public importance, if it is one of law, requires a demonstration that a substantial point of law is
involved, the determination of which has a bearing on the public interest. Such a point of
law, in view of the significance attributed to it, must have been raised in the Court or Courts
below. Where the said point of law arises on account of any contradictory decisions of the Court
below, the Supreme Court may either resolve the question, or remit it to the Court of Appeal with
appropriate directions. In summary, we would state the governing principles as follows;

(i) for a case to be certified as one involving a matter of general public importance, the intending
appellant must satisfy the Court that the issue to be canvassed on appeal is one the
determination of which transcends the circumstances of the particular case, and has a
significant bearing on the public interest;

(ii) where the matter in respect of which certification is sought raised a point of law, the
intending appellant must demonstrate that such a point is a substantial one, the
determination of which will have a significant bearing on the public interest;

(iii) such question or questions of law must have arisen in the Court or Courts below, and must
have been the subject of judicial determination;

(iv) where the application for certification has been occasioned by a state of uncertainty in
the law, arising from contradictory precedents, the Supreme Court may either resolve the
uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;

(v) mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower
superior courts, is not a proper basis for granting certification for an appeal to the Supreme
Court; the matter to be certified for a final appeal in the Supreme Court,must still fall within the
terms of Article 163(4)(b) of the Constitution;

(vi) the intending applicant has an obligation to identify and concisely set out the specific
elements of “general public importance” which he or she attributes to the matter or which
certification is sought;

(vii) determination of fact in contests between parties are not, by themselves, a basis for
granting certification for an appeal before the Supreme Court.”

24. I am wholly guided and I am bound by the above decision but there is then the language of
Section 16 which introduces the words, “in the interests of justice”, and “substantial miscarriage of

http://www.kenyalaw.org - Page 9/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

justice” over and above that of “a matter of general public importance”. Section 16(2) uses the word
“or” to denote that “substantial miscarriage of justice” is an alternative to proof of “a matter of general
public importance” as a criteria for leave to appeal to the Supreme Court.

25. In Steyn's case, the Supreme Court addressed the words “miscarriage of justice” in passing and in
an obiter dictum, it stated thus;

“61. Beyond the reliance on the provisions of law for a review of the Court of Appeal's
certification, the applicant calls in aid the general principle of the rendering of justice, as
contemplated in Article 159(2) of the Constitution of Kenya, 2010: he avers that “the intended
appeal is necessary as a substantial miscarriage of justice might have occurred or may occur
unless the said appeal is heard”.

62. “Miscarriage of justice” is thus defined in Black's Law Dictionary, 8th ed (2004)
(atp.1019): “A grossly unfair outcome in a judicial proceeding, as when a defendant is
convicted despite lack of evidence on an essential element of the crime …..... also termed
failure of justice.”

26. In that judgment, the words “in the interests of justice” were never addressed. Those words in any
event are only important to the extent that the word “justice” is the operative word.

27. The entire Court system in Kenya is however obligated to operate from and within the principles in
Article 159(2)(a)(b) and (d) in that;

i) Justice shall be done to all irrespective of status.

ii) Justice shall not be delayed.

ii) Justice shall be administered without undue regard to technicalities.

28. But what is “justice”" Elusive as the term may seem, it is simply “thefair and proper administration
of the Law” - See Black's Dictionary, (Ninth Edition). The “interests of Justice” would therefore simply
mean in the “interests of fair and proper administration of the law” which is what Article 159 above lays
down and which Courts are routinely expected to do.

29. With that background, I can only say this; clearly the more fundamental issue to be addressed is
whether the addition of the words “substantial miscarriage of justice” is an affront to Article 163 (4)
(b) of the Constitution.

30. In Steyn (ibid), the Supreme Court did not make a firm declaration whether those additions were
unconstitutional but reading between the lines, it is obvious where it was headed.

31. I have also elsewhere above stated that this Court is properly clothed with the jurisdiction to go
beyond the obiter dictum of the Supreme Court and by this Petition it is being called to rise to the
occasion and address the issue squarely.

32. In that regard, the Supreme Court itself in the Macharia case (supra) set the test to be applied
when a Court is considering the constitutionality of a Statute. It stated thus;

http://www.kenyalaw.org - Page 10/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

“A Court's jurisdiction flows from … the Constitution or legislation or both. Thus, a Court
of law can only exercise jurisdiction as conferred by the Constitution or other written law. It
cannot arrogate to itself jurisdiction exceeding that which isconferred upon it by law. We agree
with counsel for the first and second respondents … that the issue as to whether a Court of law
has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes
to the very heart of he matter, for without jurisdiction, the Court cannot entertain any
proceedings … Where the Constitution exhaustively provides for the jurisdiction, of a Court of
law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction
through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law
beyond the scope defined by the Constitution.”

33. Further, declaring Section 14 of the Supreme Court to be unconstitutional and guided by the
above principles, the Court rendered itself as follows;

“The Act contemplated by Article 163(9) is operational in nature … Such an Act was never
intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the
Constitution...

Flowing from the foregoing, we hold that Section 14 of the Supreme Court Act is
unconstitutional insofar as it purports to confer 'special jurisdiction' upon the Supreme Court,
contrary to the express terms of the Constitution. Although we have a perception of the good
intentions that could have moved Parliament as it provided for the 'extra' jurisdiction for the
Supreme Court, we believe this, as embodied in Section 14 of the Supreme Court Act, ought to
have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth
Schedule on 'Transitional Provisions'.”

In addition to the above, the principles applicable when determining the constitutionality of a statute
are now settled. For example in Hamrardda Wakhama vs Union of India AIR 1960 at 554, it was
stated as follows;

“When an enactment is impugned on the ground that it is ultra vires and unconstitutional
what has to be ascertained is the true character of the legislation and for that purpose regard
must be had to the enactment as a whole to its objects and purpose and true intention and
the scope and effect of its provisions or what they are directed against and what they aim at”.

The same proposition was expounded on in Republic vs Big M Drug Mart Ltd [1985] I S.C.R.
295 where the Court stated thus;

“Both purpose and effect are relevant in determining constitutionality; either an

unconstitutional purpose or an unconstitutional effect can invalidate a legislation. All legislation
is animated by an object the legislature intends to achieve.This object is realised through impact
produced by the operation and application of the legislation.Purpose and effect respectively, in
the sense of the legislations object and its ultimate impact, are clearly, linked, if not indivisible.
Intended and achieve effects have been looked to for guidance in assessing the legislation's
object and thus the validity”

The High Court has approached the question in a similar fashion –see for example Murang'a Bar
Operators & Anor vs Minister of State for Provincial Administration and Internal Security and
Others, Petition No.3 of 2011 per Musinga, J.

http://www.kenyalaw.org - Page 11/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

34. I am duly guided and looking at Section 16 of the Act, it is obvious that the addition of the words
“a substantial miscarriage of justice” serves to grant the Supreme Court an extra criteria and jurisdiction
to hear and determine applications for leave to appeal to that court.I need not say more than that
because the glaring addition is blinding enough.

35. I have chosen to take the above path because the truth of the matter is that the Petitioner's
argument can hardly be challenged and the Respondents failed to point to the constitutionality of the
said provisions.

In the instance, there being no other decision on the subject by either the Court of Appeal or the
Supreme Court, then this Court will proceed and invoke its jurisdiction under Article 165 (3)(d)
(ii)and declare that Section 16(2)(b) of the Supreme Court is unconstitutional and it is so declared.
As for the truth, justice non povit patrem nec matrem; solum verrtatem spectat justitia (justice knows
neither father nor mother; justice looks to the truth alone) and so whether the Supreme Court is in a
sense the mother of all courts, the truth of the unconstitutionality of Section 16 aforesaid must be
directed at it.

36. Turning to Section 23 of the Act, I will spend very little time with it because on 6/2/2013 the
Supreme Court settled the Applicant's complaint in dismissing the argument made that two
judges of that Court cannot constitutionally constitute a panel for the purposes of
determining certain matters that may be placed before. They stated as follows in Rai vs Rai,
Petition No.4 of 2012 (Tunoi, Ojwang,Ndungu, Ibrahim and Wanjala, SCJJ)

“By Article 163(2) of the Constitution, the Supreme Court membership comprises seven
judges; and this Court is properly composed for normal hearings only when it has a quorum of
five judges. We take judicial notice that, for about a year now, the Court has had a vacancy of
one member, and also that half of the current membership were previously in service in other
superior Courts – and so having the possibility of having heard matters which could very well
come up now before the Supreme Court.Recusal, in these circumstances, could create a quorum-
deficit which renders it impossible for the Supreme Court to perform its prescribed
constitutional functions.”

37. Ibrahim, SCJ, in a separate but concurring opinion was even more emphatic on the question at
hand when he stated as follows;

“Article 163(1) establishes the Supreme Court comprising of seven judges. Sub-article 2
states that the Supreme Court shall be properly constituted for the purposes of its proceedings if
it is composed of five judges. The total number of the Supreme Court judges that this
Country can have at any given time under the Constitution is seven. The minimum that must sit
and determine a matter is five.This means that the only allowance given by the Constitution of
the judges who may be away for whatever reason, including illness or worse still, death, is two.If
one of the remaining five is required to disqualify him/herself, it may be argued that out of
necessity the judge would have to sit to ensure that there will be no failure of justice due to the
bench being below the quorum set by the Constitution.”

38. I will say no more because the elucidation of the law by the learned judges is not a matter for any
opinion on my part save to stand guided by their eloquent exposition of it.

39. Having addressed the three main questions for determination and having found in favour of the
Respondent and Interested Party in three out of four of them, it follows that issue No.(iv) must

http://www.kenyalaw.org - Page 12/13

 Commission on Administrative Justice v Attorney General & another [2013] eKLR

also be answered in the affirmative with respect to Rules 17, 41, 42 and 43 of the Supreme
Court Rules. They all flow from Section 14 of theAct which has been declared unconstitutional
and similarly those Rules are so declared.

40. The conclusion I must therefore necessarily reach is that the following orders must be issued in
favour of the Petitioner;

i) That Section 16(2) (b) of the Supreme Court Act 2011 is declared to be ultra vires the
Constitution, 2010 to the extent that it adds to the jurisdiction of the Supreme Court to determine
appeals where the Court is satisfied that a substantial miscarriage of justice may have occurred or may
occur unless the Appeal is heard.

ii) All other prayers in the Petition are hereby dismissed.

iii) To costs both the Petitioner and the Respondents are organs of State and have no funds of
their own. To burden one with costs against the other would be unfair to them and the tax payer. In the
event, there shall be no order as to costs.

41. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 19TH DAY OF SEPTEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Mwihuri holding brief for Mr. Regeru for Interested Party

Mr. Wamotsa for Respondent

No appearance for Petitioner

Order

Judgment duly read.

ISAAC LENAOLA

JUDGE

While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons
Attribution-ShareAlike 4.0 International, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions.
Read our Privacy Policy | Disclaimer

http://www.kenyalaw.org - Page 13/13

Powered by TCPDF (www.tcpdf.org)