[2022] KEHC 13769 (KLR)

Ali v Mohammed & 3 others (Constitutional Petition 1 of 2020) [2022] KEHC 13769 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13769 (KLR)

Republic of Kenya

In the High Court at Lodwar

Constitutional Petition 1 of 2020

JK Sergon, J

October 13, 2022

Between

Abdirahman Ali

Petitioner

and

Khalif Abdullahi Mohammed

1st Respondent

Kadhis Court at Kakuma

2nd Respondent

Officer in Charge Lodwar GK Prison

3rd Respondent

Attorney General

4th Respondent

Ruling

1. The petitioner had sought leave of the court, by a notice of motion dated May 13, 2021, to amend the petition dated May 20, 2020; which application was allowed and leave granted. Through an amended petition dated May 13, 2021, together with a supporting affidavit dated evenly and sworn by Mr Luale Jamahi Abduaziz, as well as a further affidavit sworn on May 21, 2020, the petitioner instituted this matter.

2. The petitioner contended that he is the father to Ms Aisha Abdirahman Ali who was the petitioner in Kakuma KCMC 14 of 2019 Aisha Abdirahman Ali v Khalif Abdullahi Mohammed at Kadhi’s Court. That in KCMC 14 of 2019 Case (supra), the Senior Resident Kadhi, Hon TJ Kunyuk delivered a judgment on July 26, 2019; amongst the orders made was to the effect that, the therein petitioner or her parents/guardians shall pay 6,000 US Dollars to the respondent within six (6) months.

3. Consequently, and that despite not being a party in the KCMC 14 of 2019 Case (supra), the judgment delivered on July 26, 2019; the petitioner was committed to civil jail in alleged execution of the decree of the Kadhi’s Court. The petitioner contends that contrary to the principles of natural justice, he has been condemned unheard by the 2nd respondent.

4. The amended petition is based on article 10, 22(1), 23(1), 28, 35, 40, 47, 50, 159(2)(e) of theConstitution; and section 4(2) and 6 of Fair Administrative Action Act. In the main, the amended petition sought for the following orders:a.A declaration that the judgment by Hon TJ Kunyuk (Senior Resident Kadhi) dated and delivered on July 26, 2019 violates the petitioners right to a fair trial under article 47 and 50 of theConstitution.b.The decision by Hon TJ Kunyuk (Senior Resident Kadhi) requiring the parents and or guardians of Aisha Abdirahim Ali to pay the sum of 6,000 USD to the 1st respondent be quashed.c.General damages.d.Cost of the suit.e.Any other or further orders that the honourable court may deem it fit to grant.

5. The petitioner was represented by the law firm of Anyoka & Associates Advocates; the 1st respondent was represented by the law firm of Henry Oduor and Company Advocate; while the 2nd, 3rd and 4th respondents were represented by the Hon Attorney General by Learned Counsel Leting’.

6. The respondents did not actively participate in this matter, despite service effected on them. They have not filed their responses to the amended petition, nor their written submissions.

7. In advancing his case, the petitioner submitted that the following as issues for determination:1. Was the Kadhi's Court right in ordering the petitioner to pay the sum of 6,000 US dollars to the 1st respondent?2. Was the petitioner entitled to be heard before any adverse orders were made against him by the Kadhi?3. Was any decree extracted in Kakuma KCMC No 14 of 2019?4. What orders should the court make?

8. On the issue one, the petitioner holds the position that the Kadhi's Court erred in ordering him to pay the sum of 6,000 US dollars. That the Kadhi did not cite any requirement under Islamic law that obligates the parents of Ms Ali (the petitioner therein) to repay any amount that had allegedly been gifted to them - as an appreciation for allowing their daughter to get married to the respondent. The petitioner contended that under Islamic law, dowry is paid to the bride and she is the person who should refund the same upon dissolution of her marriage, not other parties.

9. On the issue two, the petitioner asserts that he was not granted an opportunity to be heard, before the adverse orders were made against him, by the Kadhi. He asserted that the right to be heard is an irreducible minimum before a decision is made against anyone. That the Kadhi's Court made a finding of fact that the petitioner had received 6,000 USD without offering him an opportunity to respond to the same; and thus such an outcome cannot stand. Reliance was placed on article 25, 47, and 50(1) of theConstitution; as well as section 4(3) and (4) of the Fair Administrative Action Act (No 4 of 2015).

10. The petitioner posited that it is not clear why the Kadhi deemed it necessary to make orders against the him, without according him an opportunity to respond to the allegation of having received the sum of 6,000 USD from the 1st respondent. That the order against the petitioner is a classic example of miscarriage of justice. That if the 1st respondent had any claim against the petitioner, he should have filed a claim on the same. The petitioner averred that no evidence, no matter how overwhelming, would justify a person who is not party to proceedings to be condemned unheard.

11. It was the petitioners position that committing him to civil jail amounted to cruel, inhuman or degrading punishment. That article 25 of theConstitution is explicit as to the rights and fundamental freedoms that cannot be limited, including the right to a fair trial, which cannot be limited. The petitioner relied on the Court of Appeal case at Nyeri Civil Appeal No 133 of 2012 Andrew Meme M'Mwereria v Land Registrar Igembe South District & another, and the Court of Appeal case at Mombasa Civil Appeal No 15 of 2015 JMK v MWW & another.

12. On the issue three, the petitioner submitted that the warrant of committal to civil jail was made pursuant to order 22 rule 8 of the Civil Procedure Rules. Wherein, the said rule is titled; 'Application for attachment of movable property not in judgment-debtor's possession.’ That the rule makes no mention of committal to civil jail.

13. That it is under order 22 rule 31 which gives the court discretionary power to summon a judgment debtor, to show cause why he should not be arrested. That in the instant case, the petitioner cannot be termed as a judgment debtor. That even if he was a judgment debtor, the procedure that was used to commit him to civil jail appears to be flawed. At the very least, the 1st respondent ought to have served the decree, if any, upon the petitioner before seeking to have him committed to civil jail.

14. I have considered the materials on record before this court. The following issues for determination arises:a.Whether the petitioners rights and fundamental freedoms as to fair administrative action and/or fair hearing were violated/infringed by the adverse orders issued against him.b.Whether the order requiring the parents and or guardians of Aisha Abdirahim Ali to pay the sum of 6,000 USD to the 1st respondent ought to be quashed.c.Whether the petitioner is entitled to damages, if any.

15. Before I analyse the specific issue, looking at the petition through the lenses of Anarita Karimi Njeru v The Republic(1979) eKLR, and the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, this court finds and hold that the petition has sufficient detail and was crafted with precision on the rights and fundamental freedoms allegedly violated as to invoke this court jurisdiction to consider the Petition on merit.

16. On the first issue, this court is guided by the case of Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another [2022] eKLR, where the court observed that,“37. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.”

17. Article 47 (1) of the Constitution states that;“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair” while Article 47(2) states that“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

18. Article 50(1) provides that,“every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.”

19. As to the right to fair hearing, in the case of Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR, the court stated that:The petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge v Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.Halsbury Laws of England, 5th Edition 2010 Vol 61 at para 639 on the right to be heard states that:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”

20. Flowing from the above discussion, and in the instant circumstances, to my mind article 47 of theConstitution does not apply to this case as the impugned decision was not an administrative action but a judicial decision. Section 2 of the Fair Administrative Action Act, 2015 defines "administrative action" to include– (i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

21. From the evidence on record, the petitioner was not listed as a party to the divorce Petition Kakuma KCMC 14 of 2019 Aisha Abdirahman Ali v Khalif Abdullahi Mohammed. From the resultant judgment, the trial court made adverse orders against the Petitioner herein, who was neither a party to the suit, nor given an opportunity to state his case. Further, the Petitioner was only involved in the case after the matter was concluded. I find it to be against the rules of natural justice. It is clear that the Petitioner’s right to fair hearing as guaranteed under Article 50(1) were violated.

22. On the second issue, flowing from the findings of the first issue, the order by the Kadhi’s Court as to the extent of the petitioner herein is illegal, for being against rules of natural justice, and the reasons discussed above. To that end, the orders should not stand as regarding the petitioner, and for clarity, the parents or guardians, but not the petitioner therein, Aisha Abdirahman Ali, in this case.

23. The case of Msagha v Chief Justice & 7 others Nairobi HCMCA No 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553, the court held that:“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.

24. On the third issue, regarding damages, this court take cognisance of article 23(3) of theConstitution which provides that in any proceedings brought under article 22, a court may grant appropriate relief, which includes but is not limited to declaration of rights, injunction, conservatory order, a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24, an order for compensation; and an order of Judicial review.

25. The Court of Appeal in Gitobu Imanyara & 2 others v Attorney General Civil Appeal No 98 of 2014 [2016] eKLR stated that: -“… award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements.” (Emphasis)

26. The application of the rationality and proportionality principle in coming up with awards largely depend on the conduct of the impugned party. In this case, that party is the 2nd respondent.

27. The Supreme Court of Canada established a consideration on when a remedy in a Constitutional violation case is “just and appropriate” in Doucet-Boudreau vs Nova Scotia (Minister of Education), 2003 SCC 62 to include, a remedy that will: (1) meaningfully vindicate the rights and freedoms of the claimants;(2)employ means that are legitimate within the framework of our constitutional democracy;(3)be a judicial remedy which vindicates the right while invoking the function and powers of a court; and(4)be fair to the party against whom the order is made.

28. Notably, the Court of Appeal in the case of Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR), the court stated that, “The guiding principle to be gleaned from these decisions is that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case, and can indeed be granted as compensation for proven loss.”

29. From the above discussions, and notwithstanding the fact that this court particularly found that the petitioner’s right to fair hearing - as guaranteed under article 50(1) of theConstitution - were violated; In the circumstances of this case, and in exercise of this court’s discretion, the prayer for general damages is unmerited and thus declined.

30. Therefore, flowing from the above discussion, this court makes the following orders:i.A declaration is hereby made that the petitioner’s right to a fair trial under article 50 of theConstitution was violated.ii.That the order of the Senior Resident Kadhi, requiring the parents and or guardians of Aisha Abdirahim Ali to pay the sum of 6,000 USD to the 1st respondent is hereby quashed.iii.The petitioner’s prayers for general damages is hereby declined.iv.Each party to bear their own costs of the petition.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF OCTOBER, 2022. ...........................J. K. SERGONJUDGE...................For the Petitioner..........for the 1st Respondent..........for the 2nd Respondent..........for the 3rd Respondent......... for the 4th Respondent