Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR
High Court at Nairobi
Miscellaneous Civil Cause No. 706 Of 2017
G V Odunga,J
February 26, 2018.
Reported by Kakai Toili
 

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Judicial Review – judicial review proceedings – applicable law – Civil Procedure Act - whether the Civil Procedure Act was applicable to judicial review proceedings – Civil Procedure Act; Fair Administrative Action Act, 2015, section 9(2), (3) and (4)
Jurisdiction – jurisdiction of the High Court – setting aside of orders - setting aside of leave and stay orders issued by the same court -whether the High Court had jurisdiction to set aside leave and stay orders granted by the same Court  in judicial review proceedings
Judicial Review – judicial review proceedings – orders - setting aside of ex parte orders - what were the circumstances in which a court would set aside ex parte orders
Jurisdiction – jurisdiction of the High Court – jurisdiction to entertain a dispute where an alternative remedy was provided by an Act of Parliament - whether the High Court could entertain a dispute where an alternative remedy was provided by an Act of Parliament – Constitution of Kenya, 2010, article 159 (2) (c)
Jurisdiction – Jurisdiction of the High Court – limitation of the High Court’s jurisdiction – Acts of Parliament - whether the High Court’s jurisdiction could be limited by an Act of Parliament - Constitution of Kenya, 2010, article 165
Jurisdiction – jurisdiction of subordinate courts - jurisdiction to deal with questions respecting the interpretation of the Constitution - whether subordinate courts had jurisdiction to deal with questions respecting the interpretation of the Constitution- Constitution of Kenya, 2010, article 23 (1) & (2)
Constitutional Law – Parliament – role of Parliament -  conferring powers upon itself - powers not conferred to Parliament by the Constitution - whether Parliament could confer upon itself powers not conferred to it by the Constitution
Jurisdiction – Jurisdiction of the High Court – scope -what was the scope of the High Court jurisdiction to inquire into Parliament’s failure to abide by its standing Orders – Constitution of Kenya, 2010, articles 93 (2) and 124(1)
Constitutional Law – fundamental rights and freedoms – breach of fundamental rights and freedoms – suits on breach of fundamental rights and freedoms – dismissal of suits on breach of fundamental rights and freedoms – where parties had not been heard - whether a court could dismiss a case that raised issues of breach of fundamental rights and freedoms at an interlocutory stage before parties to the case had been heard - Constitution of Kenya, 2010, article 24
Constitutional Law – separation of powers - doctrine of separation of powers-arms of government - relationship between the different arms of government – judiciary and the legislature – where there was an on going parliamentary process - whether a court could intervene in an ongoing Parliamentary process before both parties were heard- Constitution of Kenya, 2010, article 24
 
Brief Facts:
The ex parte Applicants were elected Members of the National Assembly representing various constituencies and were all members of the Jubilee Party having been elected on its ticket. The Applicants were nominated and consequently approved by the House as members of the Labour and Social Welfare Committee, Agriculture and Livestock Committee, Environment and Natural Resources Committee and Parliamentary Broadcasting and Library Committee in the National Assembly. The ex parte Applicants expressed interest in being considered as leaders of their respective Committees and were elected as the Chairpersons of the said committees on December 20, 2017.
On December 21, 2017 the ex parte Applicants were served with notices from the 3rd Respondent notifying them of their intended discharge from the said departmental committees. Subsequently the 1st Respondent discharged them from their various departmental committees. Aggrieved by the decision to discharge them, the ex parte Applicants sought leave of the Court to institute judicial review proceedings, the Court granted leave to the Applicants to commence judicial review proceedings and directed that the said leave operate as a stay of the decision of the 1st and 3rd Respondents to discharge the Applicants from their various departmental committees pending the hearing and determination of the substantive motion.
Aggrieved by the Court’s decision the 1st and 2nd Respondent filed an application seeking several orders among them that the judicial review proceedings commenced by the ex parte Applicants be dismissed and that the ex parte Applicants be referred to the appropriate forum for the adjudication of the dispute. The 3rdRespondent subsequently filed a Preliminary Objection on the grounds that the Court lacked jurisdiction to determine the proceedings.

Issues:

  1. Whether the Civil Procedure Act was applicable to judicial review proceedings.
  2. Whether the High Court had jurisdiction to set aside leave and stay orders granted by the same Court in judicial review proceedings.
  3. What were the circumstances in which a court would set aside ex parte orders?
  4. Whether the High Court could entertain a dispute where an alternative remedy was provided by an Act of Parliament.
  5. Whether the High Court’s jurisdiction could be limited by an Act of Parliament.
  6. Whether a subordinate court had jurisdiction to deal with questions respecting the interpretation of the Constitution.
  7. Whether Parliament could confer upon itself powers not conferred to it by the Constitution.
  8. What was the scope of the High Court jurisdiction to inquire into Parliament’s failure to abide by its standing Orders.
  9. Whether a Court could dismiss a case that raised issues of breach of fundamental rights and freedoms at an interlocutory stage before parties to the case had been heard.
  10. Whether a court could intervene in an ongoing Parliamentary process before both parties were heard.

Relevant Provisions of the Law: 
Constitution of Kenya, 2010 
Article 23 – Authority of courts to uphold and enforce the Bill of Rights 
(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

Article 93- Establishment of Parliament 
(2) The National Assembly and the Senate shall perform their respective functions in accordance with this Constitution.

Article 124 - Committees and Standing Orders
(1)Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.

Article 159 –Judicial authority 
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

Article 165 - High Court 
(1)There is established the High Court, which—

(a)shall consist of the number of judges prescribed by an Act of Parliament; and
(b)shall be organised and administered in the manner prescribed by an Act of Parliament.

(2)There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
(3)Subject to clause (5), the High Court shall have—

(a)unlimited original jurisdiction in criminal and civil matters;
(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(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;
(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv)a question relating to conflict of laws under Article 191; and

(e)any other jurisdiction, original or appellate, conferred on it by legislation.

(4)Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
(5)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)falling within the jurisdiction of the courts contemplated in Article 162 (2).

(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

Section 40 - Jurisdiction of Tribunal 
(1)The Tribunal shall determine—

(a)disputes between the members of a political party;
(b)disputes between a member of a political party and a political party;
(c)disputes between political parties;
(d)disputes between an independent candidate and a political party;
(e)disputes between coalition partners; and
(f)appeals from decisions of the Registrar under this Act;
(fa) disputes arising out of party primaries.

(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

Held:

  1. The provisions of the Civil Procedure Act as well as the Rules made thereunder did not ordinarily apply to judicial review proceedings since the Civil Procedure Act was expressed to be an Act of Parliament to make provision for procedure in civil courts. Judicial review jurisdiction was a special jurisdiction which was neither civil nor criminal and the Civil Procedure Act did not apply
  2. The Court had jurisdiction to set aside leave and stay granted in judicial review proceedings. That was a very limited jurisdiction and would be exercised very sparingly and on very clear-cut cases. The Superior Court did not grant leave as a matter of course. Unless the case was an obvious one, such as where an order of certiorari was being sought and it was clear to the Court that the decision sought to be quashed was made more than six months prior to the Applicant coming to court and there were no prospects at all of success, practitioners were discouraged from routinely following the grant of leave with applications to set leave aside. Such applications were rare and the mere fact that an applicant could in the end have great difficulties in proving his case was no basis for setting aside leave already granted.
  3. Where a party at the ex parte stage of an application failed to disclose relevant material to the Court and thus obtained an order by disguise or camouflage the Court would set aside the ex parte orders so obtained. Where there was an efficacious remedy provided by law, the same ought to be resorted to first. Where a statute provided a remedy to a party, the Court had to exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute.
  4. Under article 165(2)(a) as read with articles 162(2) and 165(5) of the Constitution the Court had unlimited jurisdiction in Criminal and Civil matters save for matters reserved for the exclusive jurisdiction of the Supreme Court and matters relating to employment and labour relations, the environment and the use and occupation of and title to land. However, under article 2 of the Constitution, sovereign power which was delegated to inter alia the judiciary was to be exercised in accordance with the Constitution. Article 47 of the Constitution as read with article 165(6) donated to the Court supervisory powers with respect to decisions of the Subordinate Courts and inferior tribunals or bodies. Pursuant to article 47 Parliament enacted the Fair Administrative Action Act, 2015, section 9(2), (3) and (4) thereof provided for the procedure for judicial review
  5. The onus was upon the Applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. A remedy by judicial review should not have been made available where an alternative remedy existed and should only have been made as a last resort.
  6. Where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it was only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it was necessary for the Court to look carefully at the suitability of the statutory appeal in the context of the particular case.
  7. If there was a particular procedure provided under the Constitution or any written law the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom, which was in existence before the enactment of the Fair Administrative Action Act, ought not to have been invoked if the invocation would amount to contravention of the provisions of an Act of Parliament passed by the Legislature. Accordingly, where there was an alternative remedy provided by an Act of Parliament which remedy was effective and applicable to the dispute before the Court, the Court ought to have ensured that that dispute was resolved in accordance with the relevant statute. Where an obligation was created by statute and a specific remedy was given by that statute, the persons seeking the remedy were deprived of any other means of enforcement. It was not only the Constitution that could limit or confer jurisdiction of the Court but that any other law could by express provision confer or limit that jurisdiction
  8. Alternative dispute resolution processes were complementary to the judicial process and by virtue of article 159(2)(c) of the Constitution, the Court was obligated to promote those modes of alternative dispute resolution. The Court was entitled to either stay the proceedings until such a time as the alternative remedy had been pursued or bring an end to the proceedings and leave the parties to pursue the alternative remedy. The Court’s jurisdiction under article 165 of the Constitution could be limited and restricted by an Act of Parliament.
  9. Any provision that purported to limit the jurisdiction of the Court had to derive its validity from the Constitution and it had to do so expressly and not by implication unless the implication was necessary for the carrying into effect the provisions of the Act.
  10. In cases where the alternative remedy was in addition to the right to access the Court, to interpret the provisions in such a manner as to render the provision for alternative remedy illusory, would defeat the whole purpose of making provisions for alternative remedies. Therefore where the alternative route did not necessarily lock out judicial process the alternative remedies being a route provided under the relevant Act ought to have been adhered to unless circumstances militated against that route.
  11. The Applicant would not be required to resort to some other procedure if that other procedure was less convenient or otherwise less appropriate. Where a remedy provided was made illusory with the result that it was practically a mirage, the Court would not shirk from its constitutional mandate to ensure that the provisions of article 50(1) of the Constitution were attained with respect to ensuring that a person’s right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body was achieved
  12. The law is a living thing. The law could be thought to have failed if it could offer no remedy for the deliberate acts of one person which caused damage to the property of another.
  13. Section 40 of the Political Parties Act provided for the jurisdiction of the Political Parties Disputes Tribunal. The Constitution under article 169(2) empowered Parliament to enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1) which clause established subordinate courts. Under article 169(1)(d) subordinate courts were Magistrate’s Courts, Kadhi’s Courts, Courts Martial and any other court or local tribunal as could be established by an Act of Parliament, other than the courts established as required by article 162(2) of the Constitution.
  14. The Political Parties Tribunal (the Tribunal) was established pursuant to section 39 of the Political Parties Act. Pursuant to article 169(2) the jurisdiction, functions and powers of the subordinate court were conferred by the respective Acts of Parliament establishing the particular subordinate Court. In other words subordinate courts being creatures of the statute had to only exercise the powers conferred upon them by the statute creating them pursuant to the Constitution.
  15. Article 23(1) and (2) of the Constitution provided for jurisdiction in matters dealing with applications for redress of a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. Subordinate Courts could only be empowered by Parliament in appropriate cases to deal with applications seeking redress of a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. Parliament determined the parameters of the appropriate cases since it was left to Parliament to enact the legislation conferring jurisdiction on the subordinate courts. The people of Kenya in their wisdom did not expressly empower Parliament to enact legislation empowering subordinate Courts to deal with questions respecting the interpretation of the Constitution. It had to be presumed that the people of Kenya had a good reason for that.
  16. Article 20(4) of the Constitution only applied where the Bill of Rights was being applied in a matter in which the Tribunal was seized of jurisdiction. Subordinate courts were entitled to apply the Constitution in matters which they ordinarily had jurisdiction. To set out to place before a subordinate court what in effect was a constitutional petition when the Act of Parliament creating the Tribunal did not clothe it with such jurisdiction was to embark on a futile mission.
  17. Standing order No. 176 of the National Assembly Standing Orders provided for a discharge of a member from a committee. Article 93(2) of the Constitution enjoined the National Assembly and the Senate to perform their respective functions in accordance with the Constitution and in so doing they were enjoined by article 124(1) to make Standing Orders for the orderly conduct of their proceedings. Parliament had to comply with its own procedures
  18. In a jurisdiction such as Kenya’s in which the Constitution was supreme, the Court had jurisdiction to intervene where there had been a failure to abide by Standing Orders which had been given constitutional underpinning under article 124 (1). However, the Court had to exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.
  19. Whether by the fact that the ex parte Applicants were not just elected by the members of the Jubilee Party but by the whole House hence their discharge could not be treated just like an internal party affair could not be determined in a summary manner. That was a matter that required arguments before the Court could make a determination.
  20. The alternative dispute resolution mechanism prescribed by section 40 of the Political Parties Act could not be said to be a more convenient, beneficial and efficacious remedy. While the Court appreciated the importance of party discipline amongst its members, it had to be appreciated that party membership did not necessarily imply that a member of a political party by virtue of such membership surrendered or ceded his or her inalienable constitutional rights to the political party.
  21. Political parties were vehicles through which one’s freedom of association and political rights under articles 36 and 38 respectively of the Constitution were enjoyed, fulfilled and realised. They were not cemeteries or graveyards where such rights and ambitions were interred, extinguished or dimmed.
  22. Article 19(3) of the Constitution provided for rights and fundamental freedoms. The State or in the instant case political parties did not grant rights and fundamental freedoms to any person. That was necessarily so because human rights are generally universal and inalienable rights of human beings. A constitution simply recognised the natural and original human rights of mankind which any and every human being should have in order to lead a dignified life till his or her natural death. Rights contained in the Constitution were not the only rights to be enjoyed by persons but were just examples of the same.
  23. The rights and fundamental freedoms were not favours dished. The only avenue via which those rights and fundamental freedoms could be limited was pursuant the provisions of article 24 of the Constitution. In the instant case the parties had not been heard, it was inappropriate and premature at that stage to make such a determination. Whereas the Court could arrive at a decision after hearing the parties that the proceedings ought not to have been commenced before the Court at that stage. Based on the material before the Court it was highly inappropriate to do so when not all the facts had been placed before the Court and when the window for filing further documents had not yet been closed.
  24. In matters where a violation or threatened violation of the Constitution was alleged the Court ought to have been slow to summarily terminate such proceedings unless it was clear beyond paradventure that the matter was beyond resuscitation, that was not the case in the instant proceedings. It was not appropriate to reverse the decision of the Court at that stage. The parties had to expedite the hearing of the Motion so that the matter could be heard and determined on its merits.
  25. The National Assembly was subject to the supremacy of the Constitution. It was an organ of state and therefore was bound by the Bill of Rights. All its decisions and acts were subject to the Constitution and the Bill of Rights. Parliament could no longer claim supreme power subject to limitations imposed by the Constitution. It was subject in all respects to the provisions of the Constitution. It had only those powers vested in it by the Constitution expressly or by necessary implication or by other statutes which were not in conflict with the Constitution. Parliament could not confer on itself or on any of its constituent parts, including the National Assembly, any powers not conferred on them by the Constitution expressly or by necessary implication
  26. Courts had the competence to pronounce on the compliance of a legislative body with the processes prescribed for the passing of legislation. When a parliamentary process was challenged on the grounds that Parliament did not adopt it in accordance with the provisions of the Constitution or the Standing Orders, the Court had to consider whether in its proceedings in question Parliament gave effect to its constitutional obligations or the provisions of the Standing Orders and should the Court hold that it did not do so, the Court was obliged by the Constitution to say so and such determination though an intrusion into the domain of the legislative branch of government was nevertheless an intrusion mandated by the Constitution itself. When it was appropriate to do so, courts could and if need be had to use their powers to make orders that affected the legislative process.
  27. While the importance of the doctrine of separation of powers was an important one in Kenya’s constitutional democracy, it could not be used to avoid the obligation of a court to prevent the violation of the Constitution since that right and duty of protecting the Constitution were derived from the Constitution and the Court could not shirk from that duty. In such event, the legitimacy of an order made by the Court did not flow from the status of the institution itself but from the fact that it gave effect to the provisions of the Constitution.
  28. Whether the Court ought to have intervened in an ongoing Parliamentary process depended on the facts of each case and preferably after the cases for both sides were heard. Any political party’s constitutive instruments in so far as they purported to limit or restrict the rights and fundamental freedoms of their members, had to satisfy the provisions of article 24 of the Constitution.
  29. When the legislative and executive powers were united in the same person or in the same body of magistrates, there could be no liberty. There was no liberty if the power of judging was not separated from the Legislature and Executive, there would be an end to everything, if the same man or the same body were to exercise those three powers.

Applications dismissed, costs to the ex parte Applicants.