Githu Muigai Appointed Attorney General

Githu Muigai, Attorney General courtesy of Capitalfm

I would be remiss if I did not mention that the distinguished law professor, Githu Muigai has been appointed the Attorney General succeeding the long serving Amos Wako.  Professor Muigai's credentials are impeccable and it is not surprising that he is the only survivor of the ill fated legal trio whose nominations were sunk by the court. Prof.  Muigai is expected to be sworn in today.

Supreme Court Judges Sworn in, High Court Judges Appointed

(Sitting Left to Right) Njoki Ndung'u, JSC, Dr Willy Mutunga, CJ, President Kibaki, Nancy Barasa, DCJ, Mohammed Ibrahim, JSC, (Standing Left to right)  Philip Tunoi, JSC, Dr Smokin Wanjala, JSC, Glady Boss-Shollei, Chief Registrar, Prof. Jackton Ojwang', JSC

The 1st Anniversary of the Constitution is here.   Changes abound and reform continues ...... 

Supreme Court Judges

After dismissal of the case filed by FIDA on Thursday, 25th May, the Supreme Court Justice were sworn in the next day Friday.   The Supreme Court, which is the apex court in the judicial hierachy is expected to be the final arbiter of the contentious legal issues of the day.   It is important to point out that the court has no original jurisdiction to hear constitutional cases. Similarly, the court will have to decide the extent of its advisory jurisdiction after the Court of Appeal declined to express its view on the matter by declining jurisdiction.  The main agenda for the court now will now be the promulgation of its rules under Article 163(9).

High Court Judges

The Judicial Service Commission (JSC) announced the appointment of 28 High Court judges. Prof Ngugi Joel Mwaura, Ngugi Grace Mumbi (Ms.), Mutava Joseph Mbalu, Muriithi Edward Muthoga, Nyamweya Pauline (Ms.), Kimondo George Kanyi, Majanja David Amilcar Shikomera, Githua Cecilia Wathaiya (Mrs.), Jaden Thuranira Beatrice Nthiori (Mrs.), Korir Weldon Kipyegon, Grace Lidembu Nzioka (Mrs.), Meoli Christine Wanjiku (Mrs.), Ong’undi Hedwig Imbosa (Mrs.), Mutuku Stella Ngali (Ms.), Wakiaga James, Ougo Rose Edwina Atieno (Mrs.), Ogola Erick Kennedy Okumu, Odunga George Vincent, Stella Munai Muketi (Mrs.), Havelock Jonathan Bowen, Chemitei Hilary Kiplagat, Makau James Aaron,Tuiyot Francis, Korir Roseline Cherotich Lagat (Mrs.), Mwongo Richard Mururu,Mabeya Alfred, Achode Lydia Awino (Mrs.)  and Mshila Abigail (Mrs.).   The Chief Justice described the choices as "excellent", saying the JSC was guided by the constitutional values of transparency, openness and fidelity to the law. "We have picked candidates from rich diversities decreed by the Constitution and law, including gender, ethnicity, county, generation, minorities and other forms of marginalisation. We have recruited 14 women, two Kenyans in the Diaspora, a Kenyan European, a woman with albinism, 11 serving magistrates and this representation is also from various countries."  The judges are expected to be sworn in on 30th August 2011.

Chief Registrar of the Judiciary

The JSC also announced the appointment of Gladys Boss-Shollei as the Chief Registrar of the Judiciary.  She takes over from Ms Lydia Achode who is now a High Court judge.   The Chief Registrar of the Judiciary is an office established under Article 161(2)(c) of the Constitution and is designated as the chief administrator and accounting officer of the the judiciary.  The Chief Registrar is also the secretary of the JSC and administrator of the Judiciary Fund.

South Africa President nominates Chief Justice 

In the meantime, President Zuma nominated Justice Mogoeng Mogoeng', a judge of the Constitutional Court, as his nominee for the position of Chief Justice of South Africa.  The Judicial Service Commission is set to hold public hearings next month.  The nomination has stirred controversy and more details can be found here.

Land Disputes Tribunal Act to be repealed.

The proposed Land and Environment Court Bill, 2011 proposes to repeal the Land Disputes Tribunal Act (LDTA).   I think the LDTA was a political palliative for the wananchi.  The thinking at the time was that the wananchi would be happy to have their disputes resolved by the wazees rather than the courts which were considered.   This Part III of the Magistrates Court Act was thus repealed to pave way for the Land Disputes Tribunals.    I don’t think the Act was useful in resolving land problems because it turned out that the High Court held, in several judicial review cases, that the Tribunals had no jurisdiction to deal with matters affecting title to land.  The repeal of the land jurisdiction of the Magistrates Court, merely meant that the High Court took up most of the cases relating to land.  Repeal of the Land Disputes Tribunal Act without more will put enormous pressure on the proposed Environment and Land Court.  This provision should be accompanied by a suitable amendment to the Magistrates Court Act enabling subordinate courts to deal with a defined class of land cases..

Some cases and comment.

Authority to commence prosecution for Anti-Corruption Offences

Under the provisions of Anti-Corruption and Economic Crimes Act, sections 35, 36 and 37, the Kenya Anti-Corruption Commission (KACC) must report its investigation to the Attorney General and its report, it may recommend prosecution of a person for corruption or economic crimes. The AG may, in turn, either accept or regret the recommendation to prosecute.  Where the AG rejects the recommendation to prosecute, his report to the National Assembly shall set out the reasons for not accepting the recommendation.  

In the case of Nicholas Muriuki Kangangi –vs- The Attorney General Nairobi Civil Appeal No. 331 of 2010 (unreported), the Court of Appeal considered the case where the accused, charged under the provisions of the Anti-Corruption and Economic Crimes Act, challenged his prosecution on the basis that the prosecution was conducted in violation of the Act.  The accused, after investigation by KACC, was charged through the Kenya Police for offences under the Act.   The Court of Appeal held that the charges were ultra vires the Act as it was clear that the procedure prescribed by the Act was not followed.    In essence, the court held that KACC cannot circumvent the provisions of the Act, by enlisting the Kenya Police to prosecute the matter where the Attorney General has not accepted the recommendation to prosecute the accused for charges under the Act.

The proposed Independent Ethics and Ant-Corruption Bill, 2011 seeks to grant the successor commission power to prosecute any matter within its mandate.  

Legal Contortion and Stay of an injunction

The Court of Appeal has been criticized for its formal and legalistic approach to issues. One of the controversial issues that comes up from time to time is whether the court in exercise of its jurisdiction under Rule 5 (2) (b) of the Court of Appeal Rules can stay an order of injunction issued by the High Court.  Though the court has been divided on this issue the preponderance of authority is that it cannot do so because the effect of such an order would be to dissolve the injunction before hearing of the appeal. In the case of Interim Independent Electoral Commission &Another –vs- Paul Mwangi [2011] EKLR, the Court of Appeal held that the overriding objective  principle under enacted by sections 3A and 3B of the Appellate Jurisdiction Act entitled it to consider the peculiar circumstances of the case and issue an order “suspending the operation of the injunction issued by the High Court.” The order was issued under prayer D of the Motion which prayed, “that court issue, such further, other and consequential orders this Honourable Court deems fit and just. “  In a warning reminiscent of Bush –vs- Gore the court stated, "We must caution however, that it is not in all cases that an omnibus prayer as couched in “prayer [D]” would attract independent orders. As stated earlier, this is a peculiar case.”   The court actually struck out all the substantive prayers for injunction.  But for the overriding objective the application would have had no legs to stand on.

Appellate Jurisdiction and the Courts of High Court Status

In the case of the Interim Independent Electoral Commission & Another vs Paul Waweru Mwangi Civil Application No. NAI 130 of 2011 (unreported) (eKLR) (the Kamukunji By Election Case), the Court of Appeal had this to say about its jurisdiction, “The jurisdiction of the Court of Appeal as provided in Section 164(3) of the Constitution is not different form its jurisdiction under Section 64(a) of the former Constitution. It is limited to “hear appeals from the High Court” and in any other Court which Parliament may prescribe….” The Constitution at Article 164(3) provides that the Court of Appeal has jurisdiction to hear appeals from (a) the High Court and (b) any other court or tribunal as prescribed by an Act of Parliament. Accordingly, then the scope and exercise of appellate jurisdiction must be in accordance with the provisions of the statute. At common law a court has no jurisdiction to hear an appeal against a decision of another court. It can only do so if that authority is conferred on it by the statute under which it is constituted, and then it must function in terms of that statute.

Section 16 of the Environment and Land Court Bill, 2011 provides that “Appeals from the Court shall lie to the Court of Appeal against any judgment, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution.” This kind of provision is not helpful as it merely re-states the power of the Courts to hear appeals. Appeals from the High Court exercising civil and criminal jurisdiction are regulated by the Civil Procedure Act and the Criminal Procedure Code. As a general rule, where the High Court exercises original jurisdiction, there is a direct right of appeal and to the Court of Appeal. Where the High Court exercises appellate jurisdiction, the second appeal is usually limited to matters of law.  Interlocutory appeals are limited by way of provision for leave from either court.

As drafted section 16 means that the Court of Appeal will be inundated with appeals on both final and interlocutory matters. These provisions negate one of the principles of the overriding objective that interlocutory appeals must be kept at a minimum. The general trend is to limit the scope of interlocutory appeals as these have the effect of delaying litigation but also increasing costs.

 

The Employment and Labourt Court Bill, 2011 takes a different approach.  Section18 provides that any party to any proceeding may appeal to the Court of Appeal against any final judgment, award or order of the Court.  Section 18(2)  further provides that the appeal shall be limited to matters of law only.  Two issues are  to be noted; First, interlocutory appeals are excluded completely from the scope of appeals and second, whether the appeal is from an original or appellate judgment, award or order the appeal will be only on a matter of law.

It is imperative the right of appeal  in both bills  be harmonized with that provided for in the High Court exercising general jurisdiction in order to ensure equality of litigants.

 

 

Weekend Miscellany

Meanwhile  a round up of some stuff going on legal circles while I was away ......


Vetting of Judges and Magistrates Board Members nominated

The President in consultation with the Prime Minister has nominated Sharad Rao as the Chairman of the Vetting of the Judges and Magistrates Board.  Other members include Justus Munyithya, Roseline Odede, Ngotho wa Kariuki, Meuludi Iseme and Abdirashid Abdullahi.  They shall be appointed once approved by the Parliament.

Sharad Rao was appointed to the position of Director of Public Prosecution in the 1980 under the then Attorney General Charles Njonjo.   Justus Munyithya and Roseline Odede are members of the Council of the Law Society of Kenya.

Subordinate Court Jurisdiction on employment and labour matters

The Chief Justice by Gazette Notice No. 9243  dated 27^th July 2011 has now designated all Courts in the 47 Counties presided over by magistrates of the rank of Senior Resident Magistrate and above as Special Courts to hear and determine employment and labour relations cases within their respective areas of jurisdiction.  The matters relate to the following specific areas; work injury related matters, offences under the Labour Institutions Act, 2007,  offences under the  Employment Act, 2007, offences under Occupational Safety and Health Act, 2007 and offences under the Labour Relations Act, 2007.

Section 12(1) of the Labour Institutions Act grants exclusive jurisdiction to the Industrial Court to deal with all disputes between employers and employees. This situation had created practical problems in the filing of claims as the Industrial Court only sits in Nairobi and the ordinary civil courts have turned away litigants who seek to file suits.  To deal with this problem the Deputy Chief Justice issued the circular dated 27th  June 2011 instructing heads of stations and deputy registrars as follows, " Kindly note that claims arising out of employer/employee relationship that are of tortuous nature are not labour disputes and therefore fall within the jurisdiction of the courts and should be filed in the court not in the industrial courts.   Kindly,  note this clarification in order that litigants of this king are not any more sent away from the courts."

The practice direction has now been superseded by the Notice issued by the Chief Justice. I have discussed  the issue of exclusivity and criminal jurisdiction of the Industrial Court and I now hope this issue can now be laid to rest.

Court allows Kamkunji By Election to proceed

On 29th July 2011, the Court of Appeal issued an orders suspending the orders of the  High Court stopping the Kamukunji by-election. Relying on its own previous decisions, the court noted, "We nevertheless appreciate too the right of the people and electorate of Kamukunji Constituency to participate in national debate through a lawfully elected representative, particularly at this crucial time ....   There must therefore be a delicate and  proportionate balance to achieve a just result.  There is no telling when the applicants and the respondent will finalise their battle in court."   The date for the by-election has now been set for 18th August.

President appoints member of the JSC

The President has nominated Dr Samuel Kobia to be a member of the Judicial Service Commission.  He replaces Bishop Anthony Muheria who resigned.   The nomination is subject to parliamentary approval. 

Extension of term of South Africa Chief Justice unconstitutional

In a ringing endorsement of the principle of judicial independence, the Constitutional Court of South Africa declared that the purported extension of the term of the Chief Justice of South Africa, Justice Sandile Ngcobo by President Zuma was unconstitutional.   By the time the court rendered its decision the Chief Justice had in fact indicated to the President that he would be leaving office by 14th August 2011.   The President must now appoint a new Chief Justice by 15th August.

Reflections on the end of Term

Naked Justice, Supreme Court, Nairobi

Another court term has come to an end. Time for reflection and accounting.   I am afraid my court report is not good.  My performance is below par as there is little turnover of cases heard and determined.  The promise of the new rules and the overarching "Overriding Objective" is yet to be felt or implemented.  In order to move forward, I think, there must be a concerted effort to clear backlog which can only be done with sufficient judges and magistrates and co-operation of counsel.  

I also think that implementation of the "overriding objective" requires a change of attitude and a level of pro-activeness by the court and practitioners.   The implementation of the O2 principles relies on control of proceedings by the court.  Thus, the  first plank of implementation is intensive training of  judges and magistrates on the application of the new rules.   I have just seen, in the newspapers,  a request for expression of interest for a consultancy to develop a curriculum for training on the Civil Procedure Rules, 2010 and Court of Appeal Rules, 2010 for the Judicial Training Institute. I hope this signals an investment in training of court officers.

Without judicial control, the second plank of the O2 principles is unlikely to be achieved.  Part of the problem of delay and backlog is attributed to the manner in which advocates prepare and try cases.   Court insistence on meeting timelines and sanctioning advocates with costs for non compliance with directions will assist the court in meeting the overriding objective. I hope that the LSK CLE programme will be an avenue for education and training.  Good trial advocacy is indispensable if the overall objective of expeditious, fair and just disposal of suit is to be achieved.

The third plank for success is investment in appropriate technology.  I believe that a substantial amount of time spent on manual recording of proceedings will be saved by instant and computerized recording.   This must be implemented as soon as possible.  Technology will also assist in tracking of cases and allocating resources where they are required.  In fact without appropriate technology, it will be difficult to make any headway in speedy determination of cases.

Another issue that must be dealt with is the 3-judge High Court Bench.  The constitution of a three judge bench to hear a matter for one, two or three days has a horrendous effect on other cases in the High Court.   The Constitution requires that where a matter raises substantial issues of law are raised in a matter of enforcement of the Bill of Rights or interpretation of the Constitution then the matter will be heard by a minimum of three judges.   It is now apparent that the High Court is facing a deluge of constitutional cases which demand quick resolution yet there must be had, regard to the scarcity of judicial resources to deal with all the cases   I would suggest that the Chief Justice issue a practice direction, where possible to determine what constitutes "substantial issue of law."

I still lament the death of the commercial court!