The Good, The Bad & The Dictum

Exorcising the Ghost of Anarita Karimi v Republic

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 Introduction

When High Court judges Edward Trevelyan and Alan Robin Winston Hancox sat on the 29th day of January 1979 to read their decision in the petition filed by Anarita Karimi Njeru against the State, it is doubtful that they could have imagined that one sentence in their decision would enjoy such an enduring legacy and shape constitutional adjudication in Kenya for more than 40 years.

The following passage from their judgment in Anarita Karimi Njeru v Republic – Miscellaneous Criminal Application 4 of 1979 has now become the locus classicus for the proposition that constitutional petitions must be drafted with reasonable precision:

“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

These remarks have seen increased usage in recent years by state lawyers keen to oppose constitutional petitions and some judges have readily acceded to these requests. This article argues that even though the proper drafting of pleadings is important, the hallowed status that the decision in Anarita Karimi enjoys is unwarranted due to the political context in which the decision was made, and the fact that the decision does not stand for the proposition that constitutional petitions should be drafted with reasonable precision. This mistaken – yet popular – belief has resulted from a failure by our courts to read the entire decision and to place the often-quoted paragraph within its proper context. It concludes by calling on our courts to re-examine those remarks within the context of the entire decision and to place the judgment within its proper historical and political context in order to determine its true precedential value. In the end, the paper calls for a new approach to questions regarding constitutional petitions that resonates more with our current constitutional dispensation.

A trip back in time will help illustrate this: I have taken the liberty to present the full facts and to reproduce generously the relevant portions of the decision to illustrate these observations.

An Extra-Ordinary Case MS Anarita Karimi Njeru was the Headmistress of St Mary’s Girls’ Secondary School in Egoji before she resigned to run for the Meru Central Parliamentary seat in the 1974 General Election. Having come a distant 4th in that election, she returned to her teaching job and was posted by the Teachers Service Commission to Nkabune Technical High School. A few months later, the seat was declared vacant after a successful petition that challenged the win by Kabeere M’Mbijjiwe.1 She resigned from TSC once more to contest in the 1975 by-election, this time emerging the winner against 5 candidates.2 This earned her the rare distinction of being one of only five women elected to the 3rd Parliament.3

While serving in Parliament in 1978, she was arrested and tried at the Resident Magistrate’s Court in Meru with two charges of stealing by a person employed in the public service. An audit initiated while she was in Parliament reportedly revealed that she had misappropriated some KSh.56,000 during her tenure as Headmistress at St Mary’s. In an interview with The Standard in 2019, she indicated that the audit and the charges were politically motivated after she became an outspoken champion of the people in Parliament.4 Her prosecution was conducted by State Counsel Kihara Muttu who had been based in Nairobi but was dispatched to Meru by Attorney General Charles Njonjo and Deputy Public Prosecutor James B. Karugu for this case.

When she was put on her defence, she applied for witness summons for the school’s external auditor to testify in her defence. Although the summonses were issued, they were returned unserved and the witness did not testify. The Petitioner applied for an adjournment to enable the auditor and two other witness to testify but the Court declined the application. At this point the trial concluded with the Petitioner being convicted. In a rather unusual turn, she was sentenced to serve two years without the option of a fine, and this meant that she lost her Parliamentary seat under the provisions of the Constitution.6

In the meantime, her appeal against the conviction was dismissed when her application to file the appeal out of time was rejected by the High Court. She then opted to file a human rights Petition alleging that the refusal by the trial court to adjourn so she could call her witnesses violated Section 77 of the Constitution of Kenya (now repealed).

When the hearing of that Petition was scheduled to commence, the State Counsel on record raised a Preliminary Objection claiming that the petition was incompetent for two reasons: firstly, that it was too late for the Petitioner to seek redress for violation of her right to fair trial because she could and should have moved to the High Court during the trial proceedings in the subordinate court. Secondly, the State objected to the petition on the grounds that having appealed or sought to appeal to the High Court against her convictions and sentences, she should not be allowed to return to the same Court for what was in effect the same purpose. On this second ground, the State argued that the Petitioner was attempting – under the guise of a Constitutional reference – to get the High Court to resolve grounds of appeal which the Court had said it would not entertain due to the late filing.

Before hearing arguments on these points, the Court – acting on its own motion – invited Counsel for the Petitioner to provide further and better particulars on two issues raised in the petition that were not so clear. Firstly, one of the grounds raised in the Petition was that the trial court had refused to grant an adjournment to enable the accused to call three witnesses. However, the Petitioner’s counsel had informed the trial court that the only witness to be called was the external auditor and the High Court observed that the constitutional petition could only be founded on the denial of an adjournment to call this one witness.

Secondly, the Court invited counsel for the Petitioner to clarify which of the 15 paragraphs of Section 77 of the Constitution had been infringed during the lower court proceedings as this was not clearly indicated in the Petition. Rather than confirm which of the provisions had been infringed, Counsel produced judicial precedents regarding Sections 77(2)(c) and 77(2)(e)7 of the Constitution and left it for the court to interpret his actions to mean that the Petition was based on infringement of these paragraphs. The Court remarked that “this was a rather curious manner of bringing a statutory provision to the notice of a court of law” but the Judges were quick to add that they “were prepared to permit [Counsel for the Petitioner] to develop his arguments under both paragraphs.” At the hearing, counsel for the Petitioner focused his submissions only on paragraph 77(2)(e) of the Constitution and the Court took this to mean that he had abandoned his claims under paragraph 77(2)(c).

It is against this backdrop that the Court remarked that it is important that a Petitioner seeking redress before the Constitutional Court “[should] set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” An account of the manner in which the court resolved these questions is captured in the following passage from the decision:

“On the morning of the commencement of the hearing before this Court Mr Muttu representing the Republic raised a preliminary objection. After hearing it, we then invited Mr Mwirichia to give us further and better particulars of precisely that which he is alleging under the second head of his complaint, that is to say that the applicant was not given facilities to procure the attendance of witnesses other than Mr Mase. In the event he did not do so; and in our opinion he could not validly do so, for he is on record as having said to the magistrate, after he had returned to conduct the applicant’s defence, that the only evidence the defence wished to call was that of Mr Mase. Accordingly, in our view, the only complaint that can lie of an alleged refusal to afford the defence such facilities (and we accept that this means “reasonable facilities” under section 77(2) (e) of the Constitution) is as respects Mr Mase. We mention that we also sought to be enlightened as to which of the paragraphs of section 77 of the Constitution were thereby alleged to have been infringed, and Mr Mwirichia referred to his list of authorities ( filed on to the day preceding the hearing) which mentioned both paragraphs ( c) and ( e) of subsection (2) of that section. This was a rather curious manner of bringing a statutory provision to the notice of a court of law, but, at all events, we were prepared to permit Mr Mwirichia to develop his arguments under both paragraphs. In the event, on the second day of the hearing before us, Mr Mwirichia abandoned the position he had previously taken up under paragraph (c). We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. After expressing the above views, the Court proceeded to address the arguments raised in the Preliminary Objection. These views and the rest of the judgment in Anarita Karimi have enjoyed a mixed legacy in our jurisprudence in the 40 years since the judgment was delivered. The following sections shift focus to The Good that the came from the decision, The Bad bits that have since been abandoned, and The Dictum that continues to shape our constitutional adjudication to date.

The Good

The first limb in the Preliminary Objection opposed the Petition on the grounds that having neglected to lodge her petition during her trial at the lower court, the Petitioner should be barred from petitioning the court after the conclusion of her trial. In taking this stance, the State reasoned that constitutional petitions arising from trial court proceedings had to be filed exclusively under Section 84(3)8 and not Section 84(1)9 under which general violations could be raised. On this basis, the State took the view that petitions arising from trial court proceedings had to be raised in strict accordance with Section 84(1) which provided that an individual undergoing trial could file a reference to the constitutional court in the course of his trial and the trial would stand suspended as the High Court resolved the constitutional question. Consequently, the State argued that the petition was time barred on the basis that it was not filed in the course of the trial.

The Court disagreed with this contention and took the position that the right to seek redress available under Section 84(1) covered all persons and all rights, including persons alleging the violation of their constitutional rights during trial. As such, forcing such petitioners to move the constitutional court during the trial proceedings and not anytime thereafter was an unreasonable limitation on the general right to seek redress that is enshrined in Section 84(1). To the Judges, such limitations would be antithetical to the Constitution since it would not be fair “that in a document enshrining the rights and freedoms of the individual it was seen fit to limit to a single moment that time when redress must and can only be sought for the contravention of such rights.”

This bit of the decision was credited for being “the first High Court case not only to act under the unqualified jurisdiction conferred by section 84, but also give it a detailed analysis.”10 The High Court also acted on the view that section 84(1) was operative and ruled that the threshold matter of jurisdiction was conferred without qualification.

This outcome is to be celebrated since it came at a time when the High Court was involved in what was termed “an ultra vires tradition from which the courts either abdicate[d] from jurisdiction, [denied] locus standi, or [were] evasive and hostile toward binding precedent.”11 Indeed, some ten years later, the High Court reversed course when it held in Maina Mbacha v. Attorney General12 and Kamau Kuria v. Attorney General13 that it could not exercise its jurisdiction to adjudicate over fundamental rights cases in the absence of operative statutory provisions and procedural rules governing the enforcement of Section 84(1) of the Constitution.

In all fairness, therefore, this bit of the holding from Anarita Karimi should be celebrated for the manner it expanded access to the constitutional court for those seeking redress for violation of their fundamental rights, especially where the violations arose in the course of trial in subordinate courts. Unfortunately, that is where The Good ends.

The Bad Even though the Court held that a petitioner could move the constitutional court after the conclusion of the trial court proceedings, it was quick to limit that right by insisting that such a person had to choose either to appeal against the conviction or to lodge a constitutional petition. Unfortunately for the petitioner, the court agreed with the second limb of the Preliminary Objection and held that a Petitioner can only obtain redress for a violation of his Constitutional rights if he has never had or has not already utilized such other action as was lawfully available to him.

The Court reached this determination by reading the phrase “without prejudice to any other action with respect to the same matter is lawfully available” to mean that an individual who had gone through trial had to elect whether to appeal against her conviction, or to lodge a constitutional petition alleging the violation of fundamental rights during the trial process.

In the present case, the court found that the petitioner could not lodge a fundamental rights petition given that she had attempted to raise the same issues in her appeal, and it did not matter that the appeal had been rejected as it was filed out of time.

Even though the Judges upheld the Preliminary Objection, they proceeded to address substantive arguments on the merits of the Petition. The Court ruled against the Petitioner on the grounds that she had herself taken too long to request summons to call her witness when she knew all along that she would need that witness to support her defence. Furthermore, the Court held that she should not have waited to be put on her defence before requesting witness summons, and that there was adequate time to serve the summons and the witness to travel to the hearing.14 Given that it was her own delay in calling for witness summons that led to the failure of the witness to attend, she could not blame the trial court for the manner in which it exercised the discretion to deny the adjournment. As such, the petition was dismissed – both on a technical ground and on its substance. Her appeal suffered a similar fate. Following another Preliminary Objection by the State, the Court of Appeal held that it had no jurisdiction to hear appeals from the High Court on matters of enforcement of the Bill of Rights.15 The Court of Appeal heard arguments on this point before delving into a detailed analysis of the historical and statutory origins of the appellate court. In the end, it concluded that the appellate court had no jurisdiction to entertain appeals from the High Court when exercising its human rights jurisdiction.16

The position that one cannot lodge a constitutional petition after filing or attempting to file an appeal was the law for 14 years until the High Court took an about-turn in Harun Thungu Wakaba v Attorney General.17 This position was recently confirmed as good law by the Court of Appeal in Peter M. Kariuki v Attorney General18 where Kiage, M’Inoti & J. Mohamed JJA expressed the view that:

“Although section 84(1) was, on the face of it, abundantly clear, it was, from the early days of post-independence Kenya constitutional litigation, interpreted in a rather pedantic and constrictive manner that made nonsense of its clear intent. Thus, in decisions like ANARITA KARIMI NJERU V REPUBLIC (NO. 1), (1979) KLR 154, the High Court interpreted the provision narrowly so as to deny jurisdiction to hear complaints by an applicant who had already invoked her right of appeal. By that decision which held sway for a number of years, a party was forced to elect between invoking section 84 of the Constitution, or any other remedy that was available to him. Yet the words of section 84 were clear enough that the remedy available under the provision was “without prejudice” to any other remedies that the applicant might have.” The ruling by which the Court of Appeal declined to exercise jurisdiction over fundamental rights appeals was only undone when the Constitution of Kenya Amendment Act 1997 came into force in November 1997.19 Before these changes were made, Ms. Anarita Karimi enjoyed a unique and unenviable legacy in our jurisprudence as judgments bearing her name were routinely used in the following years to shut out persons seeking the enforcement of fundamental rights both at the trial and appellate stage. I now turn to the statements on particularity in pleading constitutional violations which have enjoyed a much longer legacy.

The Dictum The enduring legacy of the High Court judgment in Anarita Karimi was built on the remarks that were made regarding the need for reasonable precision in the drafting of constitutional petitions. While the holding denying access to the constitutional court where an applicant had appealed was undone by a subsequent decision in 1992, the Appellate Court holding refusing jurisdiction in human rights cases was equally undone by constitutional amendment in 1997. However, the dictum on particularity in the drafting of constitutional petitions continues to hold sway to date.

Whereas it would be challenging to count all judgments in which our courts have relied on Anarita Karimi in the 40 years since it was decided, a survey on eKLR picked up 2,300 citations of the decision as of 2019.20 Due to the continuing reliance on Anarita Karimi Njeru v Republic, many significant cases have been thrown out of the constitutional court on the basis that the petitions were not drafted with reasonable precision.

We started down this path in 1990 when veteran politician Kenneth Matiba was arrested and detained under the provisions of the Preservation of Public Security Act21 for planning a political meeting on July 7, 1990 at the Kamukunji Grounds.22 During his detention, Matiba attempted to lodge a petition challenging the constitutionality of the Act but the police denied him an opportunity to meet with his advocate so he could sign the mandatory affidavit required to support the petition. He later lodged a petition alleging that the denial of an opportunity to meet with his lawyer so he could sign the affidavit violated his rights under Sections 70 to 83 of the Constitution. In the resulting judgment in Kenneth Njindo Stanley Matiba v. Attorney General,23 a Court that was not keen on resolving the petition dismissed it on the basis that it had no jurisdiction to handle the case. This was based on grounds, among others, that the petitioner had not indicated with reasonable precision the provisions of the Constitution that were allegedly violated. The decision in Anarita Karimi provided easy justification for this. The High Court (Bosire & Mango, JJ) held that: “the applicant did not indicate at all the provisions of the Constitution he considers which have been infringed by the detaining authority in relation to him. Nor can we infer the provision he alleges has been infringed in relation to him. It is none of those stated in section 84(1). The language of section 84(1) does not permit a construction to include grounds other than those stated therein. The section has clear and unambiguous language. An applicant must allege in his application a violation of any of the provisions of sections 70 to 83 (inclusive) before the Court can have jurisdiction to entertain his complaint. …

As was stated in the Anarita Karimi Njeru case he must state the complaint he has, the provisions of constitution which he considers [have] been infringed in relation to and the manner in which be believes they have been infringed. The allegations of contravention, in our minds, must relate to any or all of the provisions of section 70 to 83 (inclusive) of the Constitution before the court can have jurisdiction under section 84 to intervene.”

Kamau Kuria lamented that this rule “[established] a new and higher standard of pleading for section 84 applications to invoke successfully the High Court’s jurisdiction” adding that it “[went] beyond the ordinary civil pleading requirements for a concise statement of facts and the provisions of the constitution on which the cause of action is based.”24 While acknowledging that the petition filed by Matiba was overly broad as the applicant sought to enforce all his rights under Sections 70-83 of the Constitution, he thought nonetheless that the petition was “sufficiently reasonable to enforce his constitutional rights and the pleading could have been remedied rather than the resulting absolute denial of jurisdiction.”25

Matiba v Attorney General was one of the first cases in which the dictum in Anarita Karimi was taken as the holding, and it has been applied unquestionably thenceforth as if that is the law emanating from the original decision. It is highly likely that without this decision, the dictum, said so casually, in Anarita Karimi would not have enjoyed any relevance beyond 1979. As fate would have it, the prevailing political situation in the 1990’s presented more opportunities to further cement the position that had been enunciated in Matiba v Attorney General.

Following protracted agitations by university lecturers for labour rights from 1992 to 1994, their proposed union – the University Academic Staff Union – was denied registration the Office of the Attorney General. Their interim officials led by Dr. Korwa Adar were also arrested following their calls for a nationwide strike by university lecturers to demand the registration of the union.26 When they filed a case alleging violation of their fundamental rights, the Court relied on Anarita Karimi as adopted in Matiba v Attorney General for the position that the Applicants could not succeed because they had failed to show that the alleged contraventions were personal. The court held in Korwa Adar & Others v Attorney General & Others27 that the right to bring the action belonged with the Union which was seeking registration and not with the union officials.

Modern Usage & Relevance The decision in Anarita Karimi has received renewed significance since the promulgation of the Constitution of Kenya 2010 which expanded access to the constitutional court and resulted in a dramatic increase in constitutional petitions. Like it did during the KANU regime, the decision has offered ready ammunition for the Attorney General and other respondents who readily, almost reflexively, cite it in opposition to constitutional petitions.

The renewed focus on Anarita Karimi began with the High Court decision in Mumo Matemu28 and the resulting decision from the Court of Appeal.29 When the respondent urged the High Court to dismiss the petition on the grounds that it was not elegantly drafted, High Court Judges Prof. Joel Ngugi, J. V. Odunga and Mumbi Ngugi declined that invitation, taking the view that in light of the 2010 Constitution, there is no need for mathematical precision in the drafting of constitutional petitions provided it can be shown that the opposing side is aware of the allegations in the petition. Their position is captured in the following passage from the decision:

We must point out that Anarita Karimi Njeru was decided under the Old Constitution. The decision in that case must now be reconciled and be brought into consonance with the New Constitution. In our view, the present position with regard to the admissibility of Petitions seeking to enforce the Constitution must begin with the provisions of Article 159 on the exercise of judicial authority. Among other things, this Article stipulates that:

justice shall be administered without undue regard to procedural technicalities; and the purpose and principles of this Constitution shall be protected and promoted. We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the Court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against Respondents in a constitutional petition are fashioned in a way that gives proper notice to the Respondents about the nature of the claims being made so that they can adequately prepare their case. Having said this, the High Court observed that it was quite evident that the Respondents had a proper understanding of the petition given that they were able to file detailed responses to the allegations therein, and they should not be heard to argue that the petition was poorly drafted. The judges said:

While the present Petition might not be the epitome of precise, comprehensive, or elegant drafting, our view is that the complaints raised by the Petitioner are concrete enough to warrant substantive consideration by the Court: The Petitioner complains against the appointment of the Interested Party to the Commission; and thinks that the appointment, at a minimum, violates Article 73 of the Constitution as far as integrity and suitability of the Interested Party for the appointment to the position is concerned. That much seems not to be in doubt. Indeed, both the Respondents and the Interested Party have proceeded from this understanding. They have sought to explain at length the contours of Article 73 and Chapter Six of the Constitution in response to the Petitioner’s allegations. If one needed evidence that these parties understood the claim facing them, it is to be found in their various papers filed in Court and the oral submissions made in Court. This being a constitutional issue of immense public importance and interest, we refuse to worship at the altar of formal fetishism on this issue and hold that the controversy at issue has been defined with reasonable precision to warrant a proper judicial determination on merits.Like the High Court in Mumo Matemu, Judges who have cautioned against the use of Anarita Karimi in deciding current cases have generally done so on the basis that the decision was made under the repealed Constitution. In Kenya Society for The Mentally Handicapped (KSMH) V Attorney General & 5 Others [2012] eKLR, Majanja J. held that:

“[The] principle [in Anarita Karimi Njeru] is correct, however, I think the gloss put on it by the Trusted Society of Human Rights Alliance v Attorney General and Other Nairobi Petition 229 of 2012 (Unreported) is more appropriate. In that case the court went further and noted that it was not necessary to set out the violations with mathematical precision but in a manner that will enable the respondent have notice of the allegations and defend himself or herself and to enable the court adjudicate the violation. In light of the general principles of access to justice, the Court is obliged to go further and inquire about the petitioner’s grievance and see whether a case was been made out to warrant relief.” Similarly, in David Ngige Tharau & 128 others v Principal Secretary Ministry of Lands, Housing and Urban Development & 2 others [2016] eKLR, Odunga J cautions against “adopting the decision in Karimi Case line, hook and sinker” in light of Section 7(1) of the Transitional and Consequential Provisions of the Constitution of Kenya which provides that “All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.” Odunga J. went on to state that “In my view, where it is apparent to the Court that the Bill of Rights has been or is threatened with contravention, to avoid to enforce the Bill of Rights on the ground that the supplicant for the orders has not set out with reasonable degree of precision that of which he complains has been infringed, and the manner in which they are alleged to be infringed where the Court can glean from the pleadings the substance of what is complained of would amount to this Court shirking from its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues.

 Where there is a conflict between procedural dictates and constitutional principles especially with respect to the provisions relating to the Bill of Rights it is my view and I so hold that the later ought to prevail over the former.” Beginning with the High Court in Mumo Matemu, courts have been gnawing away at Anarita Karimi but have not succeeded in altogether exorcising the ghost of that decision. Instead, the High Court decision in Mumo Matemu unwittingly led to the boldest restatement of Anarita Karimi since 2010. Following an appeal by Mumo Matemu, the Court of Appeal (Kihara Kariuki, PCA, Ouko, Kiage, Gatembu Kairu & Murgor, JJA) held that:We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point. However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

(44) We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below

 

to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent.

Judgments that came after the High Court and Court of Appeal decisions in Mumo Matemu have generally followed one of two paths: there are those who have cited the modification – or gloss – added to Anarita Karimi by the High Court decision while there are those who have cited the absolute restatement and reaffirmation of the original decision by the Court of Appeal. In either case, Anarita Karimi has remained the reference point whenever issues of precision in drafting of constitutional petitions have arisen. While High Court Judges have been more lenient in their application of the rule, the Court of Appeal has been quite unforgiving.

In Communications Authority of Kenya v Okiya Omtata Okoiti & 8 others,30 the Court of Appeal (Ouko, (P), Koome & Musinga, JJ. A) came close to dismissing a petition on reliance on Anarita Karimi. The only saving grace was that other parties to the petition had introduced material that clarified and solidified the consolidated case.

The Problems with Relying on Anarita Karimi As has been mentioned above, Judges who have cautioned against the use of Anarita Karimi in deciding current cases have generally done so on the basis that the decision was rendered under the repealed Constitution. Whereas this is an important point, it is not sufficient to say simply that a decision was made under the repealed Constitution and should therefore be read with circumspection. It would be much more useful to undertake a thorough review of the circumstances under which the decision was made in order to justify the calls to be circumspect with the decision. It also requires a detailed reading of the case to understand the facts, issues, rationales, and outcome as this might also help avoid the common pitfall of relying on ancillary dicta. Perhaps the failure to loosen the tight grip this decision enjoys to-date can be blamed on the failure on the part of our courts to independently review the entire judgment and not just the sound-bite that it is famous for. In this section, the article argues that the decision in Anarita Karimi should be disregarded, firstly, due to the political context in which it was made and secondly – and more importantly – because the oft-cited remarks were mere dicta.

The Political Context of Anarita Karimi Even though the decision in Anarita Karimi was arguably not the worst from its time,31 the fact that we are now relying on this precedent to lock people out of the constitutional court demonstrates a failure to acknowledge the challenging circumstances under which the decision was made. The judgment came at a time when courts were generally averse to fundamental rights petitions due to the prevailing political situation.32 This period was characterized by an oppressive executive and an Attorney General who was keen to do the government’s bidding at all costs. In the circumstances, both the AG and the courts were more than happy to cherry pick the infamous lines from Anarita Karimi to justify the summary dismissal of fundamental rights petitions as demonstrated in the Matiba case.

The decision in Anarita Karimi is a relic of the oppressive KANU regime, and it should not be used as the yardstick for measuring the admissibility of constitutional petitions in our courts today. As already mentioned, Ms. Anarita Karimi was arrested and tried while serving as a Member of Parliament in what were perceived as politically motivated charges. Upon her conviction, she was sentenced to serve two years in prison without the option of a fine, for an offence which was punishable by fine or imprisonment in default. Denying her the option to pay a fine can be interpreted as a deliberate part of a scheme to send her to prison so that her seat could be declared vacant under the provisions of the repealed constitution. Her fortunes in the appeal process were likely part of this scheme. At the next election following her unsuccessful appeals, the seat was quickly snapped up by a powerful individual who would proceed to serve in various dockets in Moi’s cabinet.33 For these reasons, the court proceedings and any jurisprudence therefrom must be weighed with great caution.

Additionally, her case was decided contemporaneously with more notorious cases like Maina Mbacha v. Attorney General34 and Kamau Kuria v. Attorney Generall35 in which the High Court held that it had no jurisdiction to handle human rights cases in the absence of operative statutory provisions and procedural rules governing the enforcement of Section 84(1) of the Constitution.36

Due to these challenges, the petitioner in Wanyiri Kihoro v Attorney General opted to file a Plaint instead of an Originating Summons to avoid the procedural difficulties others had faced due to the demonstrated unwillingness of the High Court to entertain human rights petitions.37 Although this ingenuity earned him his day in court, a more iingenious Judge (Rauf J.) invented a new standard of proof and concluded that his case did not match that standard.

Whereas the entire Judiciary was emasculated at this point, these cases were routinely handled by contract Judges of British origin such as Trevelyan and Hancox who were particularly exposed. As noted by Stanley D. Ross, “the denial of human rights [was] sometimes facilitated by expatriate judges on fixed-term contracts, with most of their remuneration paid by the British Government. They [had] no allegiance to Kenya, according to Eugene Cotran, a former expatriate judge, who alleged that they [brought] down judgements favorable to the Government in order to protect their position, status and security.”38

Using examples like Hancox and Dugdale who decided Maina Mbacha v Attorney General, Makau Mutua also writes that “Contract judges, predominantly British citizens, were literally hired guns who needed no encouragement to do the government’s bidding.”39 He adds that “In general, contract expatriate judges had ruled in favor of the government and KANU in matters where their actions were challenged as undemocratic, unconstitutional, or illegal. Contract judges who…exhibited any measure of independence [were] either summarily terminated or punished by the Chief Justice through some administrative device, such as a transfer to a remote location or removal from hearing particular matters.” Additionally, courts were not expressly mandated by constitutional edict to dispense substantive justice without undue regard to procedural technicalities. In the absence of such provisions, substantive justice was subservient to procedural technicalities and important cases were routinely dismissed due to non-compliance with obscure procedural rules. Coupled with the deliberate clampdown on the Judiciary that was geared towards undermining the protection of human rights, this resulted in many of the notorious cases in which the courts abdicated their responsibility to safeguard the safety and liberty of the Kenyan people during this era.

One would expect, therefore, that the Judges handling the petition by Anarita Karimi would have dismissed it the moment they deemed it as imprecise. However, they resisted this urge and proceeded to consider the other objections  that had been raised by the State. Whereas the High Court in Anarita Karimi resisted the urge to dismiss the petition on this ground, their unwitting remarks on precision in drafting were subsequently adopted in a number of cases where petitions were dismissed on that ground.

As already illustrated, the case by Kenneth Matiba marked the turning point at which this rule ascended to the realm of unassailable precedent. The oppression that Kenneth Matiba underwent in the hands of the KANU regime is not a matter for debate. The High Court (Lenaola J., as he then was) recently recognized this oppression and awarded him nearly one billion Shillings for the violation of a host of fundamental rights, including unlawful detention and torture as well as the resulting loss of business.41 The decision by Lenaola J is also the perfect illustration of the mixed legacy of Anarita Karimi v Republic: whereas Bosire & Mango, JJ relied on Anarita Karimi as they denied Matiba audience before the High Court in 1990, Lenaola J cited the same decision as he held that Matiba now had audience to prove before his court the alleged violation of his constitutional rights.

That said, our Courts were part of Matiba’s oppression as they systemically denied him access to justice during the peak of his harassment. This was done in part through legal sophistry and disingenuous interpretation of statutes and case law, and it is submitted that the adoption of the dictum in Anarita Karimi as if it was the law was a deliberate part of this odious scheme. Unfortunately, Kenyan courts have ignored this history as they readily recite the dictum in Anarita Karimi to dismiss constitutional petitions.

In concluding his historic judgment in Kenneth Stanley Njindo Matiba v Attorney General,42 Lenaola J reminds us that “The huge democratic space that Kenyans are presently enjoying, the opening of the temple of justice to victims of historical injustices and the acceptance by today’s leadership that such injustices indeed occurred, must remain lessons for Kenya not to return to those dark days.” Borrowing from these wise words, our courts should not return to the same rules through which the past Judiciary was complicit in the torture of Kenneth Matiba and others who unsuccessfully sought the protection of the courts as they suffered gross violations of their fundamental rights. Instead, the Judiciary should purge itself of this legacy by turning its back on the dictum in Anarita Karimi v Republic.

It should be remembered that the situation at the time these decisions were made was starkly different from the contemporary Judiciary where Judges enjoy security of tenure in addition to other broad protections of judicial independence. Additionally, our courts are now expressly mandated to keep an eye on substantive justice rather than procedural technicalities. It is an irony, therefore, that contemporary courts still look up to Anarita Karimi as the yardstick for measuring and dismissing crucial constitutional petitions. This is compounded by the fact that contrary to popular belief, the decision does not actually stand for the proposition that constitutional petitions ought to be drafted with reasonable precision.

What the Decision Stands For A close analysis of the judgment reveals numerous other problems beyond the simple fact that it was decided under the old constitution. To start with, it should be noted that the Respondent did not raise any objections regarding the clarity of the petition. On the contrary, the court made the oft-quoted remarks after inviting the petitioner suo motu to provide further and better particulars on certain aspects of the petition. The only concerns raised by the Respondent were that the Petitioner should have filed her constitutional reference in the course of the lower court proceedings, and that she should not have filed the petition after attempting to file an appeal which had been dismissed. Consequently, no submissions from opposing sides were made on the question of clarity of the petition.

It is generally accepted that court pronouncements should only be given such weight after both parties have made arguments on a point before the court then decides on the question.

Secondly, it is worth noting that whereas the Judges indicated that constitutional references should be drafted with a reasonable degree of precision, they did not dismiss the petition on that basis. Instead, they invited the petitioner to clarify the issues that were not clear and to argue her substantive case before proceeding to determine the Petition on its merits.

It is not what the judges said in passing about poorly drafted petitions that should count – we should look more to what they actually did when presented with an unclear petition. Consequently, it is a fundamental error to state that the decision in Anarita Karimi stands for the proposition that constitutional petitions must be drafted with reasonable precision.43

It may well be argued here that the only reason the Court did not dismiss the petition on the grounds that it was poorly drafted was because the Respondent did not seek such orders in its application. However, the manner in which the Judges invited the petitioner to clarify her petition and the way they resolved the preliminary questions that were directly in issue are a clear signal that even if the Respondent had made such an application, the Court could not have dismissed the Petition on this ground.

The general attitude of the court towards procedural rules vis-à-vis the need for substantive justice in constitutional adjudication can be gleaned from the manner in which the Judges responded to the request to dismiss the petition on the grounds that the Petitioner should have filed her petition in the course of the trial court proceedings. Whereas other courts had taken this route,44 the court  here held that insisting that human rights petitions could only be filed in the course of the lower court proceedings would be antithetical to the Constitution, arguing that it would not be fair “that in a document enshrining the rights and freedoms of the individual it was seen fit to limit to a single moment that time when redress must and can only be sought for the contravention of such rights.” In saying this, the Court was deliberate to downplay technicalities so as to ensure access to the human rights court by anyone seeking redress.

In all fairness, Trevelyan and Hancox should be criticized for dismissing the Petition on the grounds that the petitioner had attempted to file an appeal before moving to the constitutional court. Given that her appeal was not heard on its merits, the constitutional court should have given her audience to ventilate her case. But even as we criticize them on this point, we should acknowledge the fact that the Judges acted on their own motion to give the petitioner room to clarify her petition instead of dismissing it.

Given the considerable lengths to which the court went to ensure the petitioner had her day in court, it is an irony that we now use this same decision to limit access to the constitutional court for persons seeking to enforce their fundamental rights.

Having gone to great lengths to analyse the facts, issues, rationales and result of Anarita Karimi v Republic, this article argues that whereas the oft-quoted phrase on its face supports the position that constitutional petitions must be drafted with reasonable precision, the case itself does not stand for that position. As already stated, these remarks from Anarita Karimi were made as a by the way yet no subsequent court has acknowledged them as such. The only questions that were addressed by the court after hearing opposing arguments were on the Preliminary Objection. Consequently, the decision in Anarita Karimi should not be cited on any point beyond what was stated in answer to the Preliminary Objection.45

The Problem with Dicta While cautioning against the conflation of dicta and holdings, Judith Stinson observes that “a court is simply more likely to be right when all the arguments relevant to a particular point are articulated, when a judge thoroughly considers all of those arguments, and when the point is essential to the outcome or decision.”46

She states further that whereas “Everyone agrees that subsequent courts are bound only by a prior case’s holding [as opposed to dicta]” it happens “too often [that] lawyers argue for, and judges treat, extraneous statements made in a prior case—that is, dicta—as holding. This ratcheting up of persuasive law into binding law is problematic on a number of fronts. To the extent that courts treat dicta as holding, they are more likely to reach incorrect decisions, to exceed their judicial authority, and to generate illegitimate results.”47

Stinson blames the persistent reliance on dicta on a number of reasons. One of them is “the recursive nature of the legal system, which essentially causes a “ripple effect.” This happens when “Judges are confused by lawyers’ arguments characterizing holding as dicta and vice versa. Similarly, lawyers are confused by court opinions that fail to delineate the distinction, as well as by courts’ treatment of dicta as holding (or holding as dicta).”48

She also blames the persistent reliance on dicta on “the overemphasis on words, phrases, and quotations to the exclusion of legal principles.” She argues that lawyers and judges increasingly rely on the words found in judicial opinions rather than the underlying components of those judicial decisions, that is, the facts, issues, holdings, and outcomes. This is because “Holdings are rarely presented in neatly packaged statements. To determine the holding of a case, the reader must analyze the facts, issues, rationales, and result of that case. In contrast to the difficult task of determining a case’s holding, it is often easy to locate language in an opinion that, on its face, supports a particular position, even when the case itself does not stand for that proposition. This reliance on words, phrases, and quotations increases the likelihood that dicta will be confused for a court’s actual holding.”49

This is true in Kenya where many in the legal profession know the principles espoused in several landmark cases without fully appreciating the facts in those cases to understand the background to those principles. While nearly all Kenyan lawyers will readily recite the famous words of Nyarangi JA in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd50 and the principles for the granting of temporary
injunctions as laid down in Giella v. Cassman Brown,51 there is no telling how many have a corresponding grasp of the circumstances under which those principles were laid. Our legal education which requires students to cram and regurgitate in end term examinations the bottom-line from tons of judicial precedents contributes in a large part to this challenge. Law students carry this habit into practice, and eventually onto the bar.

Judge Pierre Leval laments that lawyers and judges routinely drop quotations into their briefs and opinions, often without explanatory notes or any other means of providing context for the reader. Without understanding the facts, issue, and holding of the prior case, it is difficult to understand how the quotation should apply to the case at hand.52

Part of the reason why this is the case is that “We have become a “sound bite society,” characterized by short attention spans and multitasking” and that this makes it “hardly surprising that in this environment, a short quotation is often preferable to a lengthy discussion of a case’s facts, issues, and holding.” Stinson also states that “Society’s growing reliance on sound bites and the ever- decreasing attention span of its members contribute to the inability of lawyers, judges, and law students to distinguish between holding and dicta. We refuse to engage in the deep thinking necessary to determine a particular case’s holding. It is simply easier to find and quote some appealing language, even when the quoted phrase has little or nothing to do with the court’s holding.”53

Another reason is the heavy workload that undermines judges’ ability to thoroughly interrogate each decision that is cited before them. Yet another factor is reliance by Judges on law clerks and researchers who lack deep legal knowledge, and who compensate for it by producing copious amounts of quotations in their draft opinions, often without proper context. Additionally, Stinson argues that the reliance on the internet for legal research tends to produce these sound- bite type of results since lawyers are able to get quick results without the need to read multiple judgments in full.

Reliance on dicta presents numerous challenges. Among them is the fact that lawyers – and judges – who are keen on a particular outcome will scour through the law reports for decisions that support that outcome and where there is none, they will cling on dicta from some case, often without acknowledging that the phrases they rely on to support their arguments were mere dicta. This is how the High Court relied on the dictum in Anarita Karimi to dismiss the petition filed by Kenneth Matiba. Working backwards from the desired outcome, they found solace in Anarita Karimi v Republic but when it became clear that the remarks that supported the desired outcome were mere dicta, they simply restated them as the law. From that point, both decisions have provided the Attorney General with easy fodder for opposing constitutional petitions, particularly where there are no solid grounds to oppose the petition. Unfortunately, some judges have played along, whether deliberately or by accident, and a number of significant constitutional petitions have been dismissed on this basis.

While contemporary courts have invariably lacked the same nefarious intent, they have been led down this same path and the persistent use of the dictum from Anarita Karimi as if it were the reasoned holding can be blamed entirely on the failure by the bar and the bench to interrogate the decision in its entirety. This is not to say that obiter dicta have absolutely no precedential value. But even when they state an important rule, dicta can only be of persuasive value. Additionally, lawyers and courts relying on by the way remarks to buttress their arguments must clearly distinguish those remarks as dicta.

This is because it is generally accepted that court pronouncements should only be given such weight where a court decides on a question after both parties have made arguments on the point. US Chief Justice Marshall expressed the reason for this as follows:

“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”54 Closer home, Mativo J. stated in Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others,55 that:The doctrine of precedent decrees that only the ratio decidendi of a judgment, and not obiter dicta, have binding effect. The fact that obiter dicta are not binding does not make it open to courts to free themselves from the shackles of what they consider to be unwelcome authority by artificially characterizing as obiter what is otherwise binding precedent. Only that which is truly obiter may not be followed. But, depending on the source, even obiter dicta may be of potent persuasive force and only departed from after due and careful consideration.”

The Supreme Court has taken a similar view with the apex court judges agreeing with Mativo J’s holding that the Supreme Court’s pronouncements on hypothetical questions posed by the Attorney General in the Raila Odinga 2013 case were orbiter dicta, and thus, not binding on other Courts.56

In his ruling in Republic v Kenya Revenue Authority Ex-Parte Stanley Mombo Amuti,57 Mativo J draws from authorities which emphasize the need to rely only on the holding as opposed to dicta, and concludes by making a passionate plea for courts “to keep the path of justice clear of obstructions which could impede it.” Reliance on the dictum of the High Court in Anarita Karimi is a huge obstruction that impedes access to justice in the constitutional court, and it is time our courts knocked down that obstruction.

The challenges highlighted above call for a re-examination of the decision in Anarita Karimi to loosen the grip it continues to hold in our constitutional adjudication. The case should pave the way for the development of a new approach – rather than a new test – for resolving questions regarding constitutional petitions that are not drafted with precision at the time of filing. I use the word ‘approach’ deliberately because ‘test’ denotes a framework where petitions will either pass or fail at the preliminary stage even where they raise weighty issues that deserve substantive resolution by the court.

A New Approach? Whereas the dictum of the High Court in Anarita Karimi is a sensible proposition, it should not be taken as laying any hard and fast rule unique to constitutional adjudication. There is no denying that parties to a court case deserve to be given fair notice of the case against them so they can respond adequately. This is as important in constitutional petitions as it is in ordinary civil and criminal cases.

Problems arise when, like the Biblical Pharisees, we interpret this rule to demand that a petition alleging the violation of the Constitution must be elegantly drafted before it is filed. This should not be the case. Instead of throwing out the baby with the bathwater, Courts should readily allow petitioners to clarify their cases to enable respondents to file their answers before the case is set for substantive hearing.

The Court of Appeal has twice come close to completely exorcising the ghost of Anarita Karimi, but it remains beholden to this old decision. The Court of Appeal judges were on the right path when they stated in Mumo Matemu that “although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated.” They remained on course to a just resolution of this question when they acknowledged that “the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication,” and – more importantly – that “to demand exactitude ex ante is to miss the point.”

Rather than end on this high point, they took a quick about turn and stated that the High Court should not have proceeded to hear a petition which it had characterized as imprecise, noncomprehensive and inelegant without requiring the petitioner to remedy the drafting. In doing so, the appellate court failed to acknowledge the fact that even though the petition at the High Court was not elegantly drafted, the trial Court had noted that the Respondents were able to file detailed responses which evidenced a clear understanding of the allegations therein. As such, they suffered no prejudice whatsoever when the petition was resolved as drafted. This is evident from the fact that even as the Respondents complained of inelegant drafting, the parties and the courts in both instances readily identified the issues and addressed them accordingly. Indeed, the Respondents at the High Court turned Appellant at the Court of Appeal were able to make such forceful submissions on the substantive questions that the Court of Appeal was convinced that they had a better case on the substantive questions! In the circumstances, it can reasonably be concluded that the allegations that the petition was not drafted with reasonable precision were raised simply because the decision in Anarita Karimi offered that defence, yet the Court of Appeal latched onto this low hanging fruit to dismiss what was otherwise a weighty petition.58

In Communications Authority of Kenya v Okiya Omtata Okoiti & 8 others,59 the Court of Appeal was prepared to dismiss the petition that had been filed by Okiya Omtata because it was not elegantly drawn. However, it refrained from taking this drastic action on three grounds: firstly, the appellate court stated that rather than apply Anarita Karimi strictly, it was taking a broader view of the matter given that the primary petition had been augmented by affidavits sworn by other parties who had joined the petitioner. Indeed, the Court of Appeal proceeded on the basis that this new affidavit formed the basis of the petition and not the original filings by the petitioner. Secondly, the Court noted that it was evident that the Respondent would not suffer any prejudice since it had responded extensively to the affidavits introduced by these parties. Thirdly, the Court indicated that it was “[taking] into account the overarching principle in the administration of justice that is to do substantive Justice which provisions are awash in our laws.”

While these remarks demonstrate some willingness to depart from the strict application of Anarita Karimi, the appellate court had invoked the age-old principle that parties are bound by their pleadings as a basis for its own restatement of the 40-year-old decision. The Court stated that it was “conscious of the cardinal rule in construction of pleadings, especially in our adversarial system of litigation that a party is bound by their pleadings, which is meant to protect the other party who should not be ambushed with new claims in the course of a hearing.”

However, Constitutional cases are not adversarial in the traditional sense. Unlike civil cases which seek to vindicate private interests, constitutional petitions seek to enforce the most fundamental of human rights as well as compliance with the foundational instrument upon which all our laws and governance structures are founded. As such, we should not import into this realm of adjudication the principles that govern ordinary adversarial cases. Instead, we should follow the example of High Court Judges Trevelyan and Hancox who granted the petitioner the opportunity to clarify certain aspects of her petition to ensure it was determined on merit. There would be no prejudice whatsoever with this approach as it would give both parties the opportunity to ventilate their respective cases with the Respondent enjoying the chance to disprove the substantive allegations against it. On the contrary, there would be immense injustice if a petitioner who might otherwise have a genuine complaint were to be thrown out of the constitutional court on such a preliminary point.

Conclusion

It is often said that a lie can be told so many times that it becomes the truth. It is quite unfortunate that the dictum in Anarita Karimi has been retold so many times that it has become accepted as “trite law.” On the face of it, the reliance on Anarita Karimi to reject constitutional petitions is a  failure to acknowledge that its history is steeped in KANU era machinations that saw the Judiciary serve the needs of  the oppressive regime. This is how words that would have remained as harmless dictum in one decision ascended to the realm of binding precedent. Reliance on this decision is also a mockery of the 2010 Constitution which has numerous provisions that were deliberately included to expand access  to substantive justice given the experiences of the Kenyan people with the Judiciary under the KANU regime. More fundamentally, this article argues that the oft-quoted remarks from Anarita Karimi were mere dicta that should not be given the prominence they now enjoy. With all their flaws, Justices Trevelyan and Hancox did not dismiss the petition despite making observations on the need for particularity in the drafting of constitutional petitions. Even though the question regarding the drafting of the petition was not adjudicated in the original case, the decision has been cited in many subsequent decisions on this point, thereby denying litigants the chance to litigate on the principle from a clean slate. By looking up to this case as the True North, courts have failed to chart a new path in line with the dictates of the Constitution of Kenya 2010.

In the process, the case has had a pervasive and negative impact on constitutional adjudication in recent years, much like it did during the KANU era. The decision has been cited matter-of-factly as courts dismiss a number of key petitions that have raised fundamental questions that deserve substantive resolution. Attempts by the Mutunga Rules60 to ease procedural technicalities for the filing of constitutional petitions were dealt a fatal blow by the persistent reference to Anarita Karimi as the minimum unassailable standard for the drafting of constitutional petitions. Rather unfortunately, the Mutunga Rules and the provisions of Article 159 of the Constitution now play second fiddle to the dictum in this old decision.

Even though this article argues for the dictum in Anarita Karimi to be placed in its proper context, this is not to say that constitutional petitions should be drafted slovenly. Properly drafted petitions help the opposing side to respond adequately to the allegations while enabling the court to understand the dispute so as to craft appropriate remedies. However, the yardstick for the admissibility of constitutional petitions cannot be based on a precedent that developed from KANU-era machinations that saw the courts misapply dictum as the holding so as to abdicate from their responsibility to enforce the Bill of Rights. It is time for our courts to develop a new approach to this question, based on the 2010 Constitution.

The Supreme Court lost the opportunity to clarify the relevance of Anarita Karimi in our new constitutional order when it failed to hear substantive arguments in the appeal61 from the decision of the Court of Appeal in Mumo Matemu. In BAT Kenya, PLC ( formerly BAT Kenya Ltd) v Cabinet Secretary for the Ministry of Health & 2 others,62 the Respondent invited the Supreme Court to determine whether the original petition had meet the test in Anarita Karimi but the Supreme Court omitted the question in the final list of issues that were framed for determination. Similarly, while submissions were made on this point in Anami Silverse Lisamula v Independent Electoral & Boundaries Commission & 2 others,63 Hussein Khalid & 16 Others v Attorney General & 2 others,64 and Joseph Ndung’u Njau v Margaret Magiri Mbuki,65 the Supreme Court did not address the question in its final determinations.

Fortunately, the Supreme Court might soon be called upon to resolve another appeal where the question may well come up. In the case pitying activist Okiya Omtata against the Communications Authority, the Court of Appeal relied on Anarita Karimi as it held that the petition challenging the installation of the Device Management System was not elegantly drawn.

When the matter gets to Supreme Court, I hope the apex court will re-examine the entire decision so as to place the oft-quoted remarks in their proper context. I also hope the Supreme Court will consider the decision within its unique historical and political context as it evaluates its relevance in light of the 2010 constitution. Even if the Supreme Court finds value in the sensible proposition in the decision, it should – at a minimum – treat them as persuasive dicta and assign them the commensurate precedential value. At best, the Supreme Court should altogether establish a new approach that resonates more with our current Constitution.

As we think about this new approach to resolving questions regarding the drafting of constitutional petitions, we should not apply a standard contained in remarks that were mere dicta and were completely at variance with what the court actually did in Anarita Karimi v Republic. Instead of adopting this pharisaical approach, we should acknowledge – firstly – that constitutional petitions are not adversarial cases in the traditional sense. They serve a higher purpose and we shouldn’t import into this realm of adjudication the same rules that govern ordinary adversarial cases. Secondly, reasonable precision in drafting should not be required for the sake of it. It serves the dual purpose of giving the other party fair notice of the case while defining the boundaries of the dispute to be determined by the court. As such, it should not be open for respondents to allege that a petition is not drafted with reasonable precision when they have also filed comprehensive answers that demonstrate a clear understanding of the allegations in the same petition. Courts should certainly not dismiss petitions on this point alone when there is evidence that the respondent understood the petition, has filed detailed responses that deal blow by blow with the allegations therein, and will not suffer any prejudice if the petition proceeds to substantive hearing. Finally, where allegations of poor drafting are made, constitutional courts should give the petitioner the chance to restate their cases to ensure clarity for the respondent and the court. It is only where a Petition as restated “raises  Ms. Anarita Karimi Njeru by blocking access to the human rights court in her name. It is time our courts turned their backs on the dictum by Trevelyan and Hancox so that we can draw the curtains on this unsavory chapter in her illustrious life, and there is no better time to begin this discourse than July 2020 when she turns 80.

 

issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy” that the drastic option of summary dismissal may be taken. Such a course of action resonates both with the Constitution of Kenya 2010 which mandates courts generally to dispense substantive justice and with the unique and extraordinary nature of constitutional adjudication.

Ken Ogutu, LL.B. (Nairobi), LL.M. (Harvard), Tutorial Fellow – Department of Private Law, University of Nairobi School of Law. I am very grateful to Sam Ngure whose ideas, comments and criticisms of an initial draft greatly enriched the final paper.

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