- Introduction
All over the world, the apex court serves as the final arbiter of disputes, interpreting and enforcing the law and upholding the Constitution. The function of an apex court is to provide the final interpretation of the law and to ensure that justice is delivered. This involves hearing appeals and deciding cases that have been brought before it. Apex courts are responsible for ensuring that the decisions of lower courts are in line with the law and the Constitution. Additionally, they are responsible for setting legal precedents that lower courts must follow and for resolving conflicts between lower courts.
Apex courts have the power to review the decisions of lower courts. In the Kenyan context, the Supreme Court has appellate jurisdiction in questions of constitutional interpretation and application and matters certified as questions of general public importance. This means the primary responsibility of the Supreme Court, being an apex court, is to uphold the Constitution and ensure that the laws of the land are being enforced. This includes protecting individual rights and freedoms, ensuring that the government is acting within its constitutional limits and providing a check on the power of the executive and legislative branches of government.
Apex courts have a role in promoting justice in any legal system. This is realized by the court ensuring that the rule of law is upheld, individual rights are protected and disputes are resolved fairly and impartially. By enforcing the law, providing a check on government power, protecting the rights of vulnerable populations, setting legal precedents and ensuring access to justice, courts help to ensure that justice is served and that the rule of law is upheld.
When a court commits injustice, it can be a very troubling situation. The court system is meant to be a fair and impartial arbiter of justice and when it fails in this noble task, it can erode people’s trust in the entire justice system. It has been argued that there can be several reasons why a court may commit an injustice. These can include bias which manifests when judges or other court officials allow their personal biases to influence their decisions. This can lead to decisions that are unfair or unjust; in some cases, lack of evidence may inhibit the court from making a fair and just decision. This can result in an unjust outcome for the parties involved; the third issue is legal technicalities which have to be followed in court cases. Sometimes, a court may make a decision based solely on a technicality rather than on merits of the case. This can result in an injustice; lastly a court may be influenced by corrupt practices. This can include bribery or other forms of influence that can sway the decision in favor of one party over the other.
The Supreme Court in determining Law Society of Kenya versus Communication Authority of Kenya & 10 others[1] decided to declare war on substantive justice thereby leading to malfeasance. The apex court decided to follow an interpretive methodology rooted in amoral legalism disregarding various constitutional dictates regarding matters realizing access to justice in Kenya.
This paper seeks to critique the decision of the Supreme Court (Law Society of Kenya vs. Communication Authority of Kenya & 10 others).[2] The paper is divided into three parts. The first part lays the background to the case. The second part delves onto the textual examination of the decision, highlighting four mistakes that the court made in determining the case. Then lastly, the paper ends with a conclusion.
- An overview of the Supreme Court decision
The major bone of contention in this suit was about proposed installation of a device management system on mobile networks by the Communication Authority of Kenya. The Law Society of Kenya aggrieved by the decision of Court of Appeal delivered on 24th April 2020 which gave a go-ahead to the Communication Authority of Kenya to continue developing the Device Management System hereinafter referred to as DMS on condition that the guidelines or regulations on its installation be subjected to public participation.
The backcloth of this case is as follows: In 2011, the East Africa Communications Organization, in a bid to counter the global theft of mobile devices and the proliferation of counterfeit or illegal devices recommended that the mobile service operators in the member countries would implement an Equipment Identification Register (EIR) which is an International Mobile Equipment Identification (IMEI). Following various stakeholder consultations, the Communication Authority of Kenya (hereinafter CAK) implemented the first phase of its strategy to deal with stolen and counterfeit devices. [3] Consequently, Mobile Service Providers, handset vendors and CAK entered into a Memorandum of Understanding on Verification of Genuine Mobile Handsets in Kenya which resulted in the switch off of 1.89 million illegal mobile handsets by 30th September 2012.
Undeterred by the initial phase’s success, counterfeit phone vendors grew more sophisticated and according to the submissions of the CAK this necessitated a more robust strategy to deal with the issue. In 2016, the CAK rolled out steps towards the implementation of the Device Management System (DMS) which is a centralized Equipment Identification Register that would have access to the International Mobile Equipment Identification database by mobile network operators. In undertaking the implementation of the Device Management System, the CAK engaged with Mobile Network Operators on various dates and had a series of meetings to discuss the process of implementation.
In the High Court, Okiyah Omtatah was of the view that the DMS proposed by the CAK would allow Government to eavesdrop on its citizen’s private conversations, spy on calls and texts and examine all mobile money transactions. To buttress his claims, he cited that the CAK had violated a number of constitutional rights and freedoms: that the installation of the DMS would threaten the right to privacy under Article 31, violate consumer rights under Article 46 and the right to fair administrative action under Article 47. He was also keen to note that the public wasn’t involved.
The CAK in opposing the petition contended as follows: that the Petition was premature and hypothetical and that under the Kenya Information and Communications Act, it is mandated to monitor compliance and that the DMS was not a new policy but a continuation of a 2011 policy to stop the proliferation of counterfeit or illegal devices into the country. In a rather cunning manner, CAK denied violation of any rights asserted by Okiyah Omtatah.
The High Court allowed the petition to this end: the move by CAK was inconsistent with the provisions of the Constitution, Section 5 (2) of KICA and the Statutory Instruments Act, hence the said decision, policy and or regulation is null and void for all purposes; an order of prohibition prohibiting the CAK, its servant or agents from implementing its decision to implement the DMS system to establish connectivity between the DMS and the first, second and third Interested Parties system to access information on the IMEI, IMSI, MSISDN and CDRs of their subscribers on their network. Another petition by Kenya Human Rights Commission challenging the implementation of DMS by Communication Authority of Kenya was similarly delivered the same day that the above case was delivered.
Indignant of the judgment of High Court, the CAK filed an appeal before the Court of Appeal which framed five issues for determination as follows: whether the suit was hypothetical and or premature; whether there was adequate public participation in the proposed design and installation of the DMS; whether the installation of the DMS threatened the consumer’s rights to privacy and therefore a breach of the Constitution; whether the pleadings disclosed any violation of the respondents’ or consumers’ rights or the Judge construed a different cause of action; and whether the mandate of the appellant as the communications. The appeal was determined thus allowing the appeal before the Supreme Court for the Court of Appeal dismissed all the orders made by the High Court.
Before the Supreme Court, the appellant (Law Society of Kenya) aggrieved by the decision of the Court of Appeal filed an appeal before the Supreme Court. In filing the Petition of appeal, the appellant relied on Articles 22 and 258 of the Constitution and Rule 36 of the Supreme Court Rules which provides that “any person” who intends to make an appeal and is not limited to parties to the initial cause. The appellant prayed for the Supreme Court to set aside the orders of Court of Appeal and reinstate the orders of High Court. As well they prayed that there be no order for costs. (I will revisit this while critiquing the decision of the judges)
The CAK in opposing the appeal contended that the Petition is a nullity for having wrongfully invoked the jurisdiction of this Court under Article 163 (4)(a) of the Constitution. Further, the grounds of appeal neither involve constitutional interpretation or application nor have they taken a constitutional trajectory as provided for in Article 163 (4) (a) of the Constitution.
Over and above that, the CAK argued that the grounds of appeal are premised on factual findings by the Court of Appeal and that wrong standard of review, misapprehension of the principles of epistolary jurisdiction, and the laws of judicial notice were not matters canvassed before the High Court and Court of Appeal.
Okiyah Omtatah filed a Memorandum of Cross Appeal dated 3rd August 2022. He prayed for the Court of Appeal judgment to be set aside and for the Court to allow both the appeal and cross-appeal. The cross-appeal intended to challenge the Court of Appeal’s decision on the grounds that the learned judges erred in holding that the Petition was hypothetical despite the provisions of Articles 22 and 258 of the Constitution, in failing to find that the DMS could access information on the IMEI, IMSI, MSISDN and CDRs of subscribers whereby this would constitute a threat to the right to privacy; and failing to hold that the limitation on the right to privacy was not by law, did not pursue a legitimate aim, and was not the least restrictive measure.
CAK filed an opposition to the cross-appeal by contending that it was a nullity by the virtue that it failed to properly invoke the jurisdiction of the Supreme Court. Further, CAK contended that all the grounds of the cross-appeal do not arise from a trajectory of constitutional interpretation or application taken by the Court of Appeal in its conclusion. It argued that the grievances raised on the grounds of the cross-appeal were canvassed by the Court of Appeal under the question of ripeness of the Petition at the High Court which is a question of fact that was determined based on the evidence before that court. Lastly, the CAK argued that the Court’s finding that the DMS was still in its architectural or configuration design stage, and that consultations were still ongoing cannot be faulted, as the same was based on evidence and averments of parties.
When the matter came for hearing, the learned counsel of CAK raised a preliminary objection on the jurisdiction of the court. CAK stated that the appellant (LSK) wrongfully invoked the jurisdiction of this Court, stating it was not a proper party before the Court and that even where the appellant claimed it is exercising its statutory mandate, a reading of the Supreme Court Act and regulations show that the Appellant does not constitute ‘a person’ who has locus.
The Appellant opposed the preliminary objection and filed written submissions on the same. The Appellant submitted that Article 22 and 258 of the Constitution was not only applicable to the High Court but also to the Supreme Court. The Appellant argued there was a wide-ranging locus provided for in Rule 36 of the Supreme Court Rules, that allowed for its participation in the appeal. Additionally, the Appellant submitted that no law forbids a non-party like the Appellant from appealing a judgment in rem in public interest litigation. Counsel for the appellant further asserted that the petition which challenges the rights to privacy, is admissible under Article 163(4)(a) of the Constitution.
The findings of the Supreme Court were as follows: the judges rightly noted that the appeal raised constitutional issues; on whether the party adjudicating the matter was properly before the court, the learned judges observed that LSK wasn’t a party to the proceedings in the Court of Appeal thus it didn’t have the locus to adjudicate the matter in dispute. In the end, it was held that the court didn’t have jurisdiction to hear and determine the petition. In like manner, the cross-appeal was dismissed for the mother case flopped. This decision is going to be the subject to this paper. This paper is of the view that this decision of the Supreme Court isn’t praiseworthy for the various problematic findings that will be addressed in subsequent sections of this paper.
- A Critique of the Judgment
3.1.Does the decision perpetuate the legacy of the infamous Wangari Maathai decision albeit at the appellate stage?
Over time (maybe till now) Kenya has been adhering to the tents and traditions of common law.[4] Accordingly, most procedural rules meant to give effect to substantive legal provisions are largely based on common law. Of present interest are the procedural rules on access to court which proffer mechanisms through which actionable meaning is given to substantive environmental provisions. One such mechanism is locus standi which refers to the procedural capacity to litigate in court. The common law position on locus standi requires prospective applicants to have a personal relationship with, or a proprietary interest in, the subject-matter of the suit. This reflects the notion espoused in Gouriet, according to which a cause of action arises from the private rights and entitlements of an individual or a group of individuals.[5] [6]In Gouriet, the court emphasized that the only admissible exceptions were those arising from representative suits or a “relator action.”
For this reason,[7] the common law position on locus standi is restrictive regarding the determination of procedural competence to litigate: it imposes a high threshold of proximate interest in, or relationship with, the subject matter of the relevant claim.[8] For a long time the strictures of the common law rule on locus standi impeded successful actions regarding public interest environmental claims in Kenya.[9] In most instances, the courts were loath to uphold private action seeking to enforce public interest environmental rights, and their rulings exhibited great reluctance to recognize that such rights vest in private persons.[10]
A locus classicus is the interpretation of locus standi adopted in Wangari Maathai v Kenya Times Media Trust.[11] The applicant sought on her own behalf, to restrain the respondent from constructing a proposed complex in a recreational park in Nairobi. Relying on the restrictive interpretation, the court disallowed Maathai’s application, inter alia, because “only the Attorney General can sue on behalf of the public”.[12]
The High Court infamously held that she would be no more affected than any other resident of Nairobi by the proposed construction.[13] Norbury Dugdale J. emphasized that “it is not alleged that the Defendant Company is in breach of any rights, public or private, in relation to the plaintiff nor has the company caused damage to her nor does she anticipate any damage or injury”.[14]
With the exception of[15] the court’s highly restrictive interpretation and subsequent dismissal of the applicant’s locus standi, the Wangari Maathai judgment also reveals disregard for other no less important considerations. In addition to briskly dismissing the applicant’s locus standi, the court also downplayed the criticality of public participation and consultation; this adversely influenced subsequent actions of a similar nature. Dugdale J held, in relevant part:
“The plaintiff has strong views that it would be preferable if the building of the complex never took place in the interests of many people who had not been directly consulted. Of course many buildings are being put up in Nairobi without many people being consulted. Professor Maathai apparently thinks this is a special case. Her personal views are immaterial. The Court finds that the Plaintiff has no right of action against the defendant company and hence she has no locus standi.[16]”
A replica of the above interpretation showed its ugly ahead once again when Wangari Maathai sued the City Council of Nairobi[17] (hereinafter Wangari Maathai 2). In the Wangari Maathai 2 judgment the court ratiocinated that, [18]while a public authority may bring an action explicitly to protect the environment remained for a private applicant to seek remedy in respect of a private injury. It therefore upheld the respondents’ objection that the Attorney General’s sanction was essential to the procedural propriety of the private enforcement of public rights. Ole Keiwua J stated categorically that: “Constitution of [Kenya] has wisely entrusted the privilege with a public of and has not allowed it to be usurped by private individuals.” By the same token, [19]the court emphasized that, in any event, any environmentally protective benefit arising from private action would be purely incidental. The implication this judgment (taken here as representative of the restrictive common law interpretation of locus standi) to public interest environmental litigation at the time, was twofold. First, it meant that the perceived essential nature the Attorney General’s express sanction severely hobbled public interest litigation, and secondly that environmental benefits flowing from such litigation were merely secondary to other considerations.[20]
In the Law Society of Kenya case that is subject of this paper, one can definitely answer affirmatively that the court by all means seemed to be hell bent towards ensuring that the legacy of two above cited cases lives on. This is definitely contrary to the constitutional provision regarding who can institute a case on public interest grounds. This was the reasoning of the Supreme court:
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this Court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the Superior Courts. A person in this context should therefore be a party with locus standi in the matter.[21]
The Supreme Court not to mention relied on High Court in Kingori vs. Chege & 3 Others where it was held: “A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognizable in the Court of law being an interest, which the Court will enforce.[22]” The Supreme Court judges then proceeded to observe as follows:
We agree with these observations of the superior courts regarding this issue of who can be a proper party before a Court. Therefore, while we recognize the objectives of the appellant as provided for in section 4 of the Law Society of Kenya Act, 2014, we find that it is not and cannot be a proper party in this appeal.[23]
In that manner, Law Society of Kenya was denied the locus standi to act in that particular case thereby leading to the court dismissing the suit at the preliminary stage without delving into the substance of the case. One can be right when he observes that the Supreme Court either directly or indirectly decided to let the spirit of the infamous Wangari Maathai case be perpetuated albeit at the appellate stage.
3.2. Erroneous finding on a party who can appeal
The learned judges decided to go textual by adopting this view in paragraph 34 and paragraph 35 of the Judgment:
The appellant relied on Rule 36 of the Supreme Court Rules which provides wide locus for any party to institute an appeal before this Court. Rule 36 stipulates that; ‘A person who intends to make an appeal to the Court shall file a Notice of Appeal within fourteen (14) days from the date of judgment or ruling is which is the subject of appeal.’ The scope of who ‘a person’ is, should mirror the jurisdiction of this court. Article 163(3)(a) and (b) of the Constitution provides that the jurisdiction of the court shall be exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the President and appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this Court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the Superior Courts. A person in this context should therefore be a party with locus standi in the matter.[24]
The reasoning of paragraph 35 of the decision is too simplistic, shallow, without depth, narrow and out of touch with rudiments of interpretation. In this era, it would have been better that the Supreme Court could be making very well reasoned decisions. According to judges, solely parties to a suit can appeal a decision. This presents a question, what happens when a decision affects masses at large? Should they just rest their laurels? Or should they be able to appeal on that issue or issues affecting them? It is as well hard to decipher that the judges chose to adopt an escapist model of evading duty for it will be hard to grant reliefs if a matter isn’t appealed by a proper party. This is the moment to be transfixed, mesmerized and perplexed in equal measure. Aren’t judges not aware of the fact that matters are decided on case by case basis and reliefs granted reflect the ingredients of a particular matter at hand.
It might be interesting that the Court of Appeal have interpreted this issue and developed a more mature and progressive jurisprudence. I say it is interesting for I have been on record castigating Court of Appeal for being textualists and more inclined to hand maiden justice.[25] The decision made by Court Appeal in Nairobi Law Society versus Law Society of Kenya is progressive and I proceed to quote it:
23. Turning to the constitutional provisions cited on both sides, Article 3(1) of the Constitution obligates every “person” to respect, uphold and defend the Constitution. Article 260 of the Constitution defines “person” as including a company, association or other body of persons whether incorporated or unincorporated. Article 22 (1) guarantees a right to every person to institute proceedings to protect Fundamental Rights or Freedoms, while Article 258(1) on the other hand guarantees a right to any person to institute proceedings to protect the Constitution. Article 258 (2) goes further and mandates a person acting on behalf of another person who cannot act in their own name, a person acting as a member of, or in the interests of a group or class of persons, a person acting in the public interests, or an association acting in the interests of one or more of its members to institute court proceedings.
24. The Supreme Court in the Mumo Matemu case(supra) has provided guidelines on the interpretation of the above Articles which we find prudent to highlight:-
[67] It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general. In John Wekesa Khaoya V. Attorney General, Petition No. 60 of 2012’ [2013] eKLR the High Court thus expressed the principle (paragraph 4):
“…the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…”
…….
[71] Articles 22 and 258 of the Constitution provide that every person has the right to institute proceedings claiming that the Constitution has been contravened; and “person” in this regard, includes one who acts in the public interests.”
…….
“The intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to this Court for the enforcement of their fundamental rights and freedoms. Similarly, Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened.”
25. It seems to us from that interpretation that the issue as to who has locus standi before a court of law has now been crystallized. It is any aggrieved party.
26. This brings us to the applicability of Rule 75 of the Rules of this Court. It provides:
“75 (1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in duplicate with the Registrar of the superior court.” [Emphasis added]
27. The Rule is specific about “a person who desires to appeal” and not a party to the impugned decision. Halsbury’s Laws of England’s 4th Edition Para. 49 page 52, has this to state on locus standi:
“In order to maintain proceedings successfully, a plaintiff or applicant must show not only that the court has power to determine the issue, but also that he is entitled to bring the matter before the court…..
In other contexts, locus standi depends primarily on the nature of the remedy or relief sought ………….a right of appeal………is frequently confined to a “ person aggrieved” or a person who claims to be or feels aggrieved….”
28. Paragraph 66 page 92 of the same treatise defines an aggrieved party as follows:-
“The meaning of a person aggrieved may vary according to the context. However, as a matter of general principle, any person who has a decision decided against him (particularly in adversarial’ proceedings) will be a person aggrieved for the purposes of appealing against that decision unless the decision amounts to an acquittal of aspiral criminal offence.”
29. When Rule 75 as well as the above extracts from Halsbury’s Laws of England are read in conjunction with the Supreme Court’s interpretation of Articles 22, 258 and 260 of the Constitution, this creates no doubt in our minds that a person, association, body corporate or an unincorporated body, have the locus standi, not only to institute original proceedings but also appellate proceedings provided that such a party is aggrieved by the decision intended to be challenged. The respondent branches asserted that they were aggrieved by the impugned decision as the same had impacted negatively on their legal practice in particular and the general welfare of their members. In our view, such an assertion was sufficient justification for them to intervene irrespective of its ultimate outcome[26].
In similar vein, the Court of Appeal adopted the above reasoning in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others[27]. It was submitted by one of the parties who filed a motion seeking orders for striking out the notices of appeal that since the impugned judgment arose from the proceedings in Malindi Constitutional Petition, to which the respondents were not parties in their individual capacities, no right of appeal accrued to them to file appeals as of right; that it is the Law Society of Kenya which had a right of appeal because it entered appearance and then filed a statement supporting the respondents.
Moreover, that the respondents as branches of LSK and as such, they have no mandate to take a view contrary to that taken. It was submitted that Rules 75 of the Court of Appeal Rules and Article 22, 159, 258,259 and 260 of the Kenya Constitution 2010 do not in any way aid the respondents for these refer to institution of proceedings and not appeal. To fortify the above cases an array of cases[28] were cited to support the view that the respondents as unincorporated societies have no legal capacity to sue and/or to be sued; that the respondents ought to have applied to be joined in the petition for them to have locus standi to impugn the judgment.
The Court of Appeal judges took this Solomonic view in adjudicating on the issue:
19. [29]We have given due consideration to the rival submissions and the provisions of the law cited before us. In our view, only one issue falls for our consideration that is; whether the respondents have any locus standi to challenge the impugned judgment on appeal in their own right, not having been party to the petition giving rise to the said judgment.
20. It is not in dispute that the respondents were not parties to the petition whose proceedings gave rise to the impugned judgment; that LSK was party to the said petition and filed a statement supporting the petition; that both the LSK and the respondent branches are creatures of the same statute; that the LSK itself is established under Section 3 of the Act a body corporate with perpetual succession and a common seal to discharge the mandate provided for under Section 4 of the Act; and that Section 24 of the Act creates branches, while Section 15 designates them as part of the organs of the Law Society of Kenya.
…….
22. We have construed the above provision on our own and find nothing either in sections 15 or 24 (2) of the Act to suggest that the branches are not autonomous in their own sphere of influence. There is no inbuilt mechanism in those provisions that requires LSK to sanction each and every action executed by the branches for and on behalf of their respective members. We therefore agree with the submission of the respondents that the branches are semi-autonomous, if not autonomous. Further, the issues raised by the said branches of LSK are in line with the provisions of Section 24 (2) (a) of the Act as they relate to practice within their centres.
23. Turning to the constitutional provisions cited on both sides, Article 3 (1) of the Constitution obligates every person to respect, uphold and defend the Constitution. Article 260 of the Constitution defines ‘person’ as including a company, association or other body of persons whether incorporated. Article 22 (1) guarantees a right to every person to institute proceedings to protect the Constitution. Article 258 (2) goes further and mandates a person acting on behalf of another person who cannot act in their own name, a person acting as a member of, or in the interests of a group or class of persons, a person acting in the public interests, or an association acting in the interests of one or more of its members to institute court proceedings.
24. The Supreme Court in the Mumo Matemu case has provided guidelines on the interpretation of the above Articles which we find prudent to highlight:-
[67] It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. Articles 2 and 258 have empowered every person, whether corporate or non-incorporated, to move the courts, contesting any contravention of the Bill of Rights, or the Constitution in general. In John Wekesa Khaoya v. Attorney General, Petition No. 60 of 2012 the High Court thus expressed the principle:
“….the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…”
………..
[71] Articles 22 and 258 of the Constitution provide that every person has the right to institute proceedings claiming that the Constitution has been contravened; and person in this regard, includes one who acts in the public interest.
……..
‘The intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to this court for the enforcement of their fundamental rights and freedoms. Similarly, Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened.’
25. It seems to us from that interpretation that the issue as to who has locus standi before a court of law has now been crystallized. It is any aggrieved party.
26. This brings us to the applicability of Rule 75 of the Rules of this Court. It provides:
‘75 (1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the Registrar of the superior court.’ [Emphasis added]
27. The rule is specific about “a person who desires to appeal” and not a party to the impugned decision. Halsbury’s Laws of England’s 4th Edition Paragraph 49, page 52, has this to state on locus standi:
“In order to maintain proceedings successfully, a plaintiff or applicant must show not only that the court has power to determine the issue, but also that he is entitled to bring the matter before the court……..
In other contexts, locus standi depends primarily on the nature of the remedy or relief sought ………a right of appeal….is frequently confined to a “person aggrieved” or a person who claims to be or feels aggrieved…”
28. Paragraph 66, Page 92 of the same treatise defines an aggrieved party as follows:-
“The meaning of a person aggrieved may vary according to the context. However, as a matter of general principle, any person who has a decision decided against him (particularly in adversarial proceedings) will be a person aggrieved for the purposes of appealing against that decision unless the decision amounts to an acquittal of a spiral criminal offence.”
29. When Rule 75 as well as the above extracts from Halsbury’s Laws of England are read in conjunction with the Supreme Court’s interpretation of Articles 22,258 and 260 of the Constitution, this creates no doubt in our minds that a person, association, body corporate or an unincorporated body, have the locus standi, not only to instate original proceedings but also appellate proceedings provided that such party is aggrieved by the decision intended to be challenged. The respondent branches asserted that they were aggrieved by the impugned decision as the same had impacted negatively on their legal practice in particular and general welfare of their members. In our view, such an assertion was sufficient justification for them to intervene irrespective of its ultimate outcome.
30. In the result, and for the reasons stated above, we decline the request to strike out the impugned notices of appeal. Accordingly, the application is dismissed.[30]
It was expected the two above reasoning perhaps could be adopted by Supreme Court while adjudicating on that particular issue. However, it seems that they decided to be rather technical, formalistic and legalistic. This formalism exhibited by the Supreme Court judges is puzzling, to say the least. Judges play a critical role in any justice system. They are responsible for interpreting and applying the law to the cases that come before them. The approach used by Supreme Court with regards to a party who can appeal a matter is more of strict adherence to the text of the law and disregarding other extraneous factors which include but not limited to constitutional provision, policy considerations or social context. Courtesy of formalism, the judges adjudicated on the issue leading to unjust outcome.
Criticism of formalism has been penned by many scholars. One scholar argued thus:
Formalism can be inflexible and slow to adapt to changing circumstances. The law is not static; it evolves over time in response to changing social, economic and technological conditions. Formalist judges, however, are less likely to take these changes into account when interpreting the law, as they are focused primarily on the text of the law as it exists at the time of the case. This can result in rulings that are out of step with current societal norms and expectations and that fail to address the unique challenges posed by new technologies, emerging industries and changing cultural values. Formalism ignores the human element of the justice system. Judges are not just arbiters of the law; they are also human beings who must make decisions that have a profound impact on the lives of the people who come before them.
I did argue in one of my papers that:
Judges should not be formalist because the law is not a set of abstract rules that can be applied mechanically. The law is a complex and evolving system that is deeply embedded in the social and cultural context in which it operates. A formalist approach to interpreting the law can lead to a narrow and inflexible interpretation that fails to take into account the broader social and cultural implications of a decision.
Judges have a responsibility to interpret the law in way that reflects the underlying values and principles of society. This requires a nuanced and contextual approach that takes into account the social and cultural context in which the law operates. A formalist approach to interpreting the law can result in decisions that are out of touch with the values and needs of society.
In addition to everything else, a formalist approach to the law can perpetuate systemic inequalities and injustices. Laws and legal procedures are not neutral; they reflect the biases and power structures of society. A formalist approach to interpreting the law can reinforce these biases and power structures, rather than challenging them.
Therefore, judges should adopt a contextual and flexible approach to interpreting the law that takes into account the broader social and cultural context in which it operates. This approach is more likely to lead to decisions that are just and equitable.[31]
Somebody should just wake up the apex, beholding formalism is nauseating, soul-destroying, a dime a dozen, bog standard, mind-numbing, dry as dust, wishy-washy, stodgy, suburban and nothing to write home about.
3.3 Glaring mistake of Supreme Court in dismissing Okiya Omtatah’s cross appeal
Simply put, cross-appeal refers to a request by a party to review the decision of a lower court after the appellant filing an appeal. One who files cross-appeal must at all times contend how he or she wishes that a decision of a lower court the either varied or reversed to the extent and in a manner and on the grounds that he or she sets out.[32] Moreover, the party must also be keen on proposing for the court to give a favourable order. Put differently, a party has to specify the grounds of the contention and nature of the order which he or she proposes to ask the Court to make, or to make in that event, as the case may be.[33]
Cross appeals are integral because they allow each party in a legal case to challenge the portions of the trial court’s ruling that were unfavorable to them. When one party files an appeal, the other party can file a cross appeal to challenge different aspects of the same ruling. This can be a powerful tool for parties to ensure that all issues are thoroughly examined and resolved in their favor.
By filing a cross appeal, a party can seek additional relief or modify the relief granted by the former court handling the issue. Cross appeals can also help parties protect their rights and interests by ensuring that all issues are fully addressed on appeal. In some cases, cross appeals can also help promote settlement by encouraging both parties to negotiate a resolution that takes into account the strengths and weaknesses of their respective positions on appeal. Overally, cross appeals can be an important tool for litigants seeking to obtain a favorable outcome on appeal and for ensuring that all relevant issues are fully adjudicated.
Cross-appeals can also help to clarify the law and establish important precedents. When both parties raise issues on appeal, the appellate court has the opportunity to consider multiple perspectives and potential outcomes. This can lead to a more nuanced and comprehensive decision that takes into account a broader range of legal principles and considerations[34]. Cross appeals can be an effective way for parties to pursue their interests and ensure that their rights are protected. By allowing both parties to participate fully in the appeals process, cross-appeals can help to promote fairness, clarity and justice in the legal system.
It is evident that Okiyah Omtatah’s cross-appeal wasn’t considered to bit. Yet the persons sitting were a good number. How all of them came to the same decision of denying a party justice should be just another wonder of the world. In the cross-appeal, Senator Okiyah Omtatah raised very vital issues that if it were well ought to have been determined by the apex court. However, they decided to squander that opportunity.
In the cross appeal, he intended to challenge the holding of the Court of Appeal on the grounds that the learned judges erred in holding that the Petition was hypothetical despite the provisions of Article 22 and 258 of the Constitution, in failing to find that the DMS could access information on the IMEI, IMSI, MSISDN and CDRs of subscribers whereby this would constitute a threat to the right to privacy; and failing to hold that the limitation on the right to privacy was not by law, did not pursue a legitimate aim, and was not the least restrictive measure.
From my honest view courts should generally not dismiss cross appeals because doing so could deprive the parties of a fair and complete resolution of their legal dispute. Cross appeals are paramount tools that allow both parties to challenge aspects of a lower court’s decision that were not in their favor. By filing a cross-appeal, a party is essentially asking the higher court to consider additional legal issues or arguments that were not raised by the other party. Parties have a right to be heard and to fully present their case in court, and dismissing a cross-appeal could unfairly limit this right. Allowing cross-appeals ensures that both parties have an equal opportunity to present their arguments and evidence and to challenge the decision of the lower court.[35]
Forbye, he expostulated that the Court of Appeal erred by failing to hold that, contrary to Article 10, the Communication Authority of Kenya had failed to engage the public on the decision to acquire, install and implement the DMS, failing to hold that the decision to implement DMS was subject to the Statutory Instruments Act, failing to hold that the claimed goal of the DMS to combat counterfeit and illegal devices was outside the statutory mandate of the CAK. Further, the learned judges of Appeal failed to determine the question of consumer rights raised in the appeal and find that CAK’s conduct amounted to unfair administrative action.[36]
These legal issues couldn’t get the audience of the court just by virtue that the LSK case failed. I then ask why they couldn’t let Okiyah’s cross-appeal to appreciate sunlight. It is time for the learned judges to appreciate that when the main suit fails, a cross-appeal can stand on its own as it is a substantive appeal in its own right. Thus, with that Okiyah Omtatah should have been determined.
If a court were to dismiss a cross-appeal without considering its merits, it could result in an incomplete or unfair outcome for the parties. For example, if a defendant appeals a lower court’s ruling that they are liable for damages, but the plaintiff also filed a cross appeal challenging the amount of damages awarded, a court that dismisses the cross-appeal would effectively leave the plaintiff without any recourse to challenge the damages award. This could result in an unjust outcome for the plaintiff.
In the bargain, dismissing a cross-appeal could set a negative precedent by discouraging parties from raising legitimate legal issues or arguments in the appeals process. If parties believe that their cross-appeals will be dismissed without consideration they may be less likely to pursue them, which could lead to incomplete or inaccurate legal decisions. Me thinks, courts should be cautious about dismissing cross-appeals and should generally consider them on their merits to ensure that all parties have a fair opportunity to present their legal arguments and achieve a just resolution to their dispute. Dismissing cross-appeals is contrary to the principles of fairness, due process, and comprehensive review that are central to the functioning of the legal system.
3.4 The implication of the decision on Public Interest Litigation Space in Kenya
According to Professor Bernard Murumbi Sihanya alias “The Oracle in the Shrine”, he is of the view that public interest litigation is made up of generally four terminologies which are maverick. He argues, [37] “PIL consists of at least four independent concepts or terminologies, namely “public, ‟interest,” “litigation” and “Lawyering”.[38] Public interest refers to a matter that is of concern to the public and is in need of protection or recognition. And litigation is the process of filing and prosecuting or defending a lawsuit. Lawyering loosely refers to a much broader practise of law[39].”
Brian Sang on the other argues as follows;
The phrase “public interest” indicates the common well-being of the public in general or public welfare, while the word “litigation” refers to the action and process of initiating or defending a contested legal claim with a view to enforcing a right or seeking a remedy for an alleged violation. Thus, public interest litigation refers to the institution by public spirited individuals, interest groups or communities of legal proceedings in order to enforce the public interest. Public interest litigation is also known as social interest litigation or cause litigation, and has featured prominently in respect of environmental and social grievances affecting the general welfare of the public. It has also been instrumental in the broader process of foregrounding the rights of, and asserting affirmative action in respect of, vulnerable groups in society[40].
It has been observed by a myriad of persons to the effect that the case of Albert Ruturi & 2 Others v The Minister of Finance & Attorney General and Central Bank of Kenya[41] did usher in new dawn for public interest litigation in Kenya. In the decision, the court pronounced itself as follows:
“In constitutional questions, human rights cases, public interest litigation and class actions…any person or social action groups, acting in good faith, can approach the court seeking judicial redress for a legal injury cased or threatened to be caused to a defined class of persons represented or for a contravention of the Constitution, or injury to the nation. In such cases the court will not insist on such a public spirited individual or social action group espousing their cause, to show his or their standing to sue in the original Anglo-Saxon conception…………..
Many people…whose fundamental rights are violated may not actually be in a position to approach the Court for relief, for instance, because they are unsophisticated and indigent, which in effect means that they are incapable of enforcing their fundamental rights, which then remain merely on paper…When large numbers of persons are affected in this way, there is merit in one person or organization being able to approach the court on behalf of all those persons whose rights are allegedly infringed.[42]”
The above cited decision was delivered in 2002. In the current constitutional dispensation, it has been argued that two articles of the Constitution give a legal foundation for public interest litigation. Article 22 of the Constitution of Kenya provides that:
1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.
2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by –
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
d) an association acting in the interest of one or more of its members[43].
Article 258 is similar – clause (1) provides that:
“Every person has the right to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention[44].”
Article 258 (2)[45] is identical to Article 22(2) cited above.
In the case of Brian Asin & 2 Others v. Wafula W. Chebukati & 9 others,[46] the courts stated as follows regarding public interest litigation:
“The Public Interest Litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file Public Interest Litigations just for the publicity and those with vested political interests. The courts therefore, need to keep a check on the cases being filed and ensure the bona fide interest of the petitioners and the nature of the cause of action, in order to avoid unnecessary litigations. Vexatious and mischievous litigation must be identified and struck down so that the objectives of Public Interest Litigation aren’t violated. The constitution envisages the judiciary as ‘a bastion of rights and justice. Public interest litigation is a highly effective weapon in the armory of law for reaching social justice to the common man. It is a unique phenomenon in the Constitutional Jurisprudence that has no parallel in the world and has acquired a big significance in the modern legal concerns.[47]”
Despite Public Interest litigation being regarded highly care must taken in line with the Indian Supreme Court decision, AshokKumar Pandey v. State of West Bengal[48] where it was held that:
“Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta.[49]”
Dr. Willy Mutunga in, “A New Bench-Bar Relationship: The Vision of the 2010 Constitution of Kenya[50],” comments as follows on public interest litigation in Kenya:
Many of the procedural innovations in public interest litigation are already enshrined in our Constitution and the types of jurisprudence that the courts have been so creative in developing are already part of our Constitution. These are protection of the environment, recognition of rights of communities especially in land affirmative action, rights of persons with disability, right to education, health and food, and redress of past injustices.
The first President of the South African Constitutional Court, Arthur Chaskalson said of their constitution what can be said of ours:
We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and in a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and quality, lies at the heart of our new constitutional order.
Further, our appointment process is designed to give us independence of the executive and the legislature so that we can, if necessary, force other institutions of governance to do what they are supposed to do. Upendra Baxi wrote of public interest litigation (PIL):
“The Supreme Court of India is at long last becoming…the Supreme Court for Indians. For too long the apex court had become “an arena of legal quibbling for men with long purses.” Now increasingly, the court is being identified by the Justices as well as people as “the last resort of the oppressed and bewildered.”
Our society is no different from that of South Africa and India and the development of new jurisprudence must be a collaborative effort between the bench and the bar. The judiciary has generally embraced PIL by allowing applications for amici curiae, interveners, and interested parties. The judiciary has additionally suo moto inviting individuals and institutions to join in proceedings as amici curiae. It can and it must take a central role in public interest litigation by spearheading a social movement to enforce the rights enshrined in our Constitution. It has the resources and needs to build capacity to undertake pro bono specific PIL briefs in a consistent and continuous manner. It has been encouraging to see the LSK appear as amici curiae in several cases that are of general public importance. However, the bar can do more. The bar can tap into the expertise of its more experienced members to spearhead the strategic cases while pairing them up with newly admitted lawyers who will in turn gain invaluable experience while receiving much needed mentorship. The bar can also coordinate the activities of other civil society groups working on public interest litigation and appear as an interested party or as amici curiae. The success of our implementation of the Constitution directly correlates with the quality of the input from the bar and the bench.[51]
Going by the decision of the Supreme Court perhaps former Chief Justice Willy Mutunga can be an embarrassed man. Why is this so? The Supreme Court in their own wisdom decided to make orders that the appellants which in this case is the Law Society of Kenya to bear the costs of the appeal. This order is enough to make departed legal paragons of good standing to turn in their graves.
It must be borne to the mind the reason as to why public interest litigation is enshrined in the law. I find it mind-boggling that Supreme Court had such audacity. The original purpose of Public Interest Litigation has been to make justice accessible to the poor and the marginalized. In equal measure it is an important tool in making sure that human rights reach unto those whose rights have been denied. It as well aids in judicially monitoring state institutions.[52]
The effect of the order is that it is likely to be replicated by other courts below the apex courts. This will make public spirited litigants to be slapped with hefty costs that they can’t be able to pay. This will hinder those who feel like litigating matters in courts of law to coil for they do know that in the case that their matters flop then they will have to pay costs. Such cases will be deemed to be a financial risk. This could have a chilling effect on the ability of individuals and groups to bring important social, environmental or human rights issues to the attention of the courts. In addition, the possibility of costs being awarded could deter potential defendants from settling or cooperating in such cases, as they may view the potential financial risk as too great.
Public Interest litigation was meant, and it is still meant to be a mechanism to litigate on any infringement of human rights or any other laws of the land. You know it is interesting that in this case that Law Society of Kenya indicated that it was acting in the public interest. By all means, that order should be relooked lest it is a stumbling block to public interest litigation in Kenya. The courts should choose not to award costs so as to promote access to justice and encourage the pursuit of important public interest issues.
In defiance of my hard stance, I am reminded of this:
Public interest lawyers ought to prepare and present their cases in court in a manner that demonstrates the public interest dimension of their cases, and appeal to the court to consider declining to award costs in the event that they lose their cases. Kenyan courts have tended not to award costs when they have determined that a matter was in the public interest. However, it must be clear that in Kenya there is no rule that insulates litigants from having costs awarded against them by the court. Therefore, PIL practitioners should ensure that their actions are not deemed frivolous in nature, since this could trigger award of costs. In order to limit exposure to costs, public interest lawyers should ensure that the issues they pick up are realistic, and work efficiently and effectively during the litigation process. Diligence in litigation is often a mitigating factor against the award of costs. If costs are assessed by the court some may be disallowed as unnecessary. It is interesting to note that in some jurisdictions, such as the US, Canada and the UK, courts have, in some public interest cases, awarded costs with the aim of compensating litigants for the cost of carrying litigation[53].
Let me end this segment with the following immortal words of Justice Yatindra Singh: “PILs are like alarm clocks. They tell the government: don’t sleep, please get up.’’[54] The chilling effect of the order costs seems to contradict what the learned Justice has observed. For all one knows, the Supreme Court just wants the government to sleep and add another duvet yet the plight of citizens is being threatened.
Conclusion
The Supreme Court definitely made an array of problematic findings that have the effect of altering the progressive jurisprudence that has been overtime churned by the various courts of the land. It is imperative to note that, this treatise does not in any way agree with the findings made the Court of Appeal.
By the dint of Supreme Court being the apex court of the land, there are high expectations that the court should strive as much as possible to be a leading light in administering disputes from a liberal dimension as per the tenets of the law. Maybe just maybe there should be a bottom-up alteration of the Superior Courts of the land for the High Court seems to be relatively doing better in getting basic questions right. In spite of that, the Supreme Court has an opportunity to redeem itself. For the problematic issues that this paper has highlighted at length, I find the decision of the court wanting.
Justice is naked, blind and open for everyone to see. So is injustice meted out by courts.
Jerameel Kevins Owuor Odhiambo is a law student at University of Nairobi, Parklands Campus.
[1] Law Society of Kenya vs. Communication Authority of Kenya & 10 others.
[2] Ibid
[3] Petition No. 8 of 2020
[4] Brian Sang, Tending Towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects Within the New Constitutional Order, Journal of African Law , 2013, Vol. 57, No. 1 (2013), pp. 29-56; See also, DM Chirvva “Liberating Malawi’s administrative justice jurisprudence from its common law shackles” (2011) 55(1) Journal of African Law
[5] Gouriet v Union of Postal Office Workers [1977] AC 435 at 500
[6] Ibid
[7] Ibid, See also, MO Odhiambo “Legal and institutional constraints to public interest litigation as a mechanism for the enforcement of environmental rights and duties in Kenya” (paper presented to the Fifth International Conference on Environmental Compliance and Enforcement in Monterey, California, November 1998 and included in conference proceedings) 265 at 267; 3; Jack Ojwang’ “The role of the judiciary in promoting environmental compliance and sustainable development” (2007) 1(19) Kenya Law; G Sahu “Implications for Indian Supreme Court’s innovations for environmental jurisprudence” (2008) 4(1) Law, Environment and Development Journal 1 at 5; See also MR Anderson “Individual rights to environmental protection in India” in AE Boyle and MR Anderson (eds) Human Rights Approaches to Environmental Protection (1998, Oxford University Press)
[8] GL Peiris “Public interest litigation in the Indian subcontinent: Current dimensions” (1991) 40(1) International and Comparative Law Quarterly
[9] MO Makoloo et al Public Interest Environmental Litigation in Kenya: Prospects and Challenges (2007, ILEG) at 2
[10] Supra
[11] HCK civil case no 5403 [1989] KLR
[12] HCK civil case no 5403 [1989] KLR
[13] Ibid
[14] Ibid
[15] Brian Sang, Tending Towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects Within the New Constitutional Order, Journal of African Law , 2013, Vol. 57, No. 1 (2013), pp. 29-56
[16] Ibid
[17] Wangari Maathai and Others v City Council of Nairobi and Others, HCK civil case no 72 of 1994
[18] Ibid
[19] Ibid
[20] Brian Sang, Tending Towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects Within the New Constitutional Order, Journal of African Law , 2013, Vol. 57, No. 1 (2013), pp. 29-56
[21] Petition no. 8 of 2020
[22] Kingori vs. Chege & 3 Others [2002] 2 KLR 243
[23] Ibid
[24] Supra
[25] Jerameel Kevins, The Unholy Alliance between Court of Appeal and the Handmaiden of Justice: An Examen of Court of Appeal Decisions in Adjudicating Public Procurement Disputes (7th April 2022) Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4074813 Accessed on 2nd May 2023
[26] Nairobi Law Society v. Law Society of Kenya
[27] Law Society of Kenya Nairobi Branch v. Malindi Law Society & 6 others [2017] eKLR
[28] Football Kenya Federation vs. Premier League Limited & 4 Others [2015]
Olive Mwihaki Mugenda & another vs. Okiya Omtatah & 4 others 2016
JMK vs. MVM & Another [2015]
Invesco Assurance Co. vs. MW (minor suing thro’ next friend and another [2016]
[29] Ibid
[30] Civil Appeal 287 of 2016
[31] Jerameel Kevins, The Unholy Alliance between Court of Appeal and the Handmaiden of Justice: An Examen of Court of Appeal Decisions in Adjudicating Public Procurement Disputes (7th April 2023) Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4074813 Accessed on 5th May 2023
See also, Joshua Malidzo, Uncommonly Silly Law’ and Hollow Men: A Critique of the Legalistic Interpretation of Time-Limit Clause by the Kenyan Court of Appeal’, (2021) 64 The Platform for law, justice & Society 27-36. He argues;
The Court of Appeal found the High Court judgment to be a nullity having been rendered outside the mandatory 45 days as required in section 175 and proceeded to award costs to the appellant. By so holding, the Court of Appeal adopted a strict interpretation of the statutory provision and thereby reduced themselves to mere slot-machines whose only resort is the adoption of a formal technical or mechanistic reasoning rather than substantive or purposive reasoning. By holding that the decision of the High Court was a nullity merely because it was rendered outside the 45 days, the Court restrained their role to mechanists whose only role was to recite the statutory provision as a poem and do nothing more.
Put it differently, by choosing not to consider the statutory provision alongside the aspirations of the Constitution, the Court of Appeal chose to render a decision that fits John Dugard’s description of being ‘inert, imagination less and generally craven’. In rather simpler terms, the judges adopted a reasoning that Jerome Frank described as “word worship” and “verbal mania”. The judges chose literal interpretation which is known as the voice of strict constructionists.
A reasoning that was only based on the words of the statutory provision and nothing else (not even the fact that the judiciary is understaffed).
Whereas in pre-2010, judges would make decisions by claiming to be giving effect to the so called ‘intention of the legislature’, the demands imposed on judges today do not countenance such reasoning. Simply, the leitmotiv of the Constitution prohibit any form of interpretation that only seeks to give effect to the intention of the legislature. The constitution demands that judges engage in an activity that seeks to discover a deeper constitutional logic than the crude absolute of statutory omnipotence. Judges are therefore duty bound to avoid a ‘mechanical or phonographic view of judicial function’. This is because, when judges consider statutory interpretation to mean an activity that only involves giving effect to the intention of the legislature and a value-neutral discovery devoid of realizing the constitutional aspirations, they commit an unforgivable judicial sin.
This is primarily on two legs; Firstly, the duty of a judge in legal interpretation goes beyond giving effect to the intention of the legislature and requires a judge to consider whether a statutory provision gives effect to the constitutional values. Horn considers this obligation in his interpreting the Interpreters and affirms that “a transformative constitutionalism, or a value judgment, leans more towards a broader interpretation to uphold the spirit of constitutional values.” When understood this way, the role of a judge cannot be reduced to a mechanic and the judge should ensure that the constitutional values must drive the enquiry into the adequacy of all laws and not the legislature intent. This is the point that Justice Rawal (as she then was) makes when she stated that although courts should be mindful to the legislative intent and give due deference to it, judges must be aware that the constitution does not represent ‘mere body or skeleton without a soul or spirit of its own’ and as such courts must consider the constitutional values and rights.
Apart from the fact that judges should ensure that every statute gives effect to the constitutional values, the other important factor for rejecting the idea that statutory interpretation only involves giving effect to the intention of the legislature is that the Constitution declares its supremacy and requires every law to conform to it. It is therefore no longer business as usual but a new canon of statutory interpretation.
Du Plessis expresses this point in a fancy way as follows:
Constitutional supremacy as both “a constitutional fact” and a value has dealt the dominance of the literalist-cum-internationalist theory of interpretation – in the areas of statutory and constitutional interpretation at least – a decided blow. Nowadays a statutory provision is first and most importantly to be understood not as the legislature supposedly intended it, but in conformity with the Constitution.
The point here is that judges should only prefer a meaning that is compatible with the Constitution. While rejecting the argument that judges should adopt a form of statutory interpretation that only gives effect to the intention of the legislature, Justice foreman expressed himself as follows:
The interpretative notion of ascertaining “the intention of the Legislature” does not apply in a system of judicial review based on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the Legislature.
]Unlike in Pre-2010, judges should no longer be allowed to escape moral responsibility by blaming the parliament or rather be allowed to hide in the concept ‘judicial restraint’. Judges should understand that they have a primary responsibility of giving effect to the constitutional value.
[32] Rule 95 of Court of Appeal Rules 2022
[33] Rule 47 (1) of Supreme Court Rules 2020
[34] Robert Stern, When to Cross-Appeal or Cross-Petition: Certainty or Confusion? Harvard Law Review , Feb., 1974, Vol. 87, No. 4 (Feb., 1974), pp. 763-780
[35] Petition No 8 of 2020
[36] Petition No 8 of 2020
[37] Ben Sihanya (forthcoming 2023) “Lawyers, Public Interest Lawyering, and Constitutional Democracy in Kenya and Africa,” in Ben Sihanya (2023) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya
[38] Ibid
[39] Ibid
[40] Brian Sang, Tending Towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects Within the New Constitutional Order, Journal of African Law , 2013, Vol. 57, No. 1 (2013), pp. 29-56
[41] Albert Ruturi & 2 Others v The Minister of Finance & Attorney General and Central Bank of Kenya, 2002
[42] Albert Ruturi, JK Wanywela & Kenya Bankers’ Association v The Minister of Finance & Attorney General and Central Bank of Kenya
[43] Article 22 of the Constitution of Kenya
[44] Article 258 (1) of the Constitution of Kenya
[45] Article 258 (2) of the Constitution of Kenya
[46] Brian Asin & 2 Others v. Wafula W. Chebukati & 9 others
[47] Ibid
[48] AshokKumar Pandey v. State of West Bengal
[49] AshokKumar Pandey v. State of West Bengal
[50] Willy Mutunga, “The 2010 Constitution of Kenya: Its Vision of a New Bench-Bar Relationship” in The Legal Profession and New Constitutional Order in Kenya edited by Yash Pal Ghai and Jill Cottrell Ghai. Retrieved from https://www.kas.de/c/document_library/get_file?uuid=56ba9291-7c05-98d5-96b1-8161785ff854&groupId=252038 Accessed on 2nd May 2023
[51] Willy Mutunga, “The 2010 Constitution of Kenya: Its Vision of a New Bench-Bar Relationship” in The Legal Profession and New Constitutional Order in Kenya edited by Yash Pal Ghai and Jill Cottrell Ghai. Retrieved from https://www.kas.de/c/document_library/get_file?uuid=56ba9291-7c05-98d5-96b1-8161785ff854&groupId=252038 Accessed on 2nd May 2023
[52] See Ellen Sward & Burton Wersbrod (1980) “Public Interest Law: Collective action in an International Perspective, Urban Law and Policies, Vol. 3, at 59-98. Cf. Mauro Cappelleti (1976) “Vindicating the public Interest through the court: ‘ a comparative contribution’ Buffallo Law Review Vol. 25, at 643-690.
[53] Supra
[54] Kenyans for Peace with Truth and Justice (KPTJ), Africa Centre for Open Governance (AfriCOG) and the Katiba Institute, A guide to Public Interest Litigation in Kenya. Available at https://katibainstitute.org/download/guide-public-interest-litigation-in-kenya/ Accessed on 2nd May 2023
