[2023] KECA 1468 (KLR)

International Human Rights Defenders & another v Chebukati & another; Maina & 3 others (Interested Parties) (Civil Appeal 391 of 2018) [2023] KECA 1468 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KECA 1468 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal 391 of 2018

S ole Kantai, M Ngugi & PM Gachoka, JJA

December 8, 2023

Between

International Human Rights Defenders

1st Appellant

Carewell Society

2nd Appellant

and

Wafula Chebukati

1st Respondent

Independent Electoral & Boundaries Commission

2nd Respondent

and

Consolata Nkatha Maina

Interested Party

Margaret Mwachanya

Interested Party

Paul Kurgat

Interested Party

Attorney General

Interested Party

(An appeal from the order of the High Court of Kenya at Nairobi (E. C. Mwita, J.) delivered on 4th September 2018 in J.R. Misc. Appl. No. 362 of 2018 Petition 160 of 2018 )

Judgment

Judgment Of The Court 1. On August 31, 2018, the appellant filed a Misc. Application No 362 of 2018, International Human Rights Defenders & ant. v Wafula Chebukati & ant. in the Constitutional and Human Rights Division, High Court Nairobi. Contemporaneously with the petition, the appellant filed a chamber summons seeking leave to institute judicial review proceedings against the respondent.

2. Upon hearing the application ex-parte, the Judge (Mwita, J.) struck out the application in the following terms:“I have read the application dated August 31, 2018, the supporting affidavit and annexures. I have also seen the grounds of urgency relied on.There is a Petition No 160 of 2018 – Okiya Omtatah, Consolata Maina, Margaret Mwachoya, Paul Kurgat and IEBC which is party in the Constitutional & Human Rights Division. In that petition, there are subsistence orders restraining the interested parties herein from accessing their former offices.For that reason, this application is a counter to that Petition and is uncalled for. The applicant herein can join the Constitutional Petition instead of having parallel proceedings.In that regard, the application is struck out with no orders as to costs.”

3. Aggrieved by the ruling, the appellant filed this appeal citing a whopping 22 grounds. The grounds are repetitive and we take the liberty to summarize them as follows:that the Judge failed to address himself to the fundamental questions of law on locus standi and whether it would be in the public interest to allow the application; that the appellant had made a prima facie case warranting grant of leave; that the Court took into account irrelevant considerations; and that as a result the Judge failed to exercise his discretion in a fair manner. They also fault the Judge for tying their suit to other parallel suits and demonstrating prejudice and bias.

4. When the matter was called out for hearing on September 25, 2023 through the online GO TO Platform, neither the appellant nor the respondents were in attendance. The Court noted that all the parties were served with the hearing notice through their respective addresses.

5. The Court further noted that the appellant had filed written submissions dated 29th January 2019. Equally, the respondents had filed written submissions dated 26th February 2019.

6. We note that the gravamen of the petition before the High Court was the question whether the 1st, 2nd and 3rd interested parties had resigned or vacated offices in accordance with Article 251 of theConstitution. The learned Judge observed that there was a pending petition; Constitutional Petition No 160 of 2018 - Okiya Omtatah, Consolata Maina, Margaret Mwachoya, Paul Kurgat and IEBC in which the court had restrained the 1st and 3rd interested parties from accessing their offices. The court held that the appellants were at liberty to join that petition instead of filing parallel proceedings.

7. We have carefully considered the appeal, the supporting documents and the rival submissions. In our view, the only issue for determination is whether the Judge exercised his discretion properly in line with the provisions of Order 53 of the Civil Procedure Rules 2010. It is noteworthy, that when a Judge is making a decision on whether to grant leave or not, it is ultimately an exercise of discretion.

8. As correctly submitted by the respondents, this Court in Uwe Meixner & another v Attorney General [2005] eKLR had this to say on the question of granting of leave:“The leave of the court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion. This Court can only interfere with the discretion of the learned Judge denying the appellants leave to apply for judicial review on the firmly established principles stated in Mbogo v Shah [1968] E.A. 93. ”Again in the case of Patriotic Guards Ltd v James Kipchirchir Sambu[2018] eKLR, this Court pronounced itself as follows:“The sole issue for consideration in this appeal is whether or not the trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment. It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit. Chief Justice, John Marshall, the 4th Chief Justice of the United States, delivered himself in Osborn V. Bank of the United States, 22 U. S. 738 [1824] on the issue as follows;“Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”The Supreme Court of India, Civil Appellate Jurisdiction in Civil Appeal No9047 of 2014; K. Praksh v B.R. Sampath Kumar, quoting with approval the King’s Bench in Rookey’s Case, 77 ER 209, described exercise of discretion as follows;““The King’s Bench in Rookey’s Case [77 ER 209; (1597) 5 Co.Rep.99] it is said: “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to 16 Page 17 be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by theConstitution entrusted with.”

9. Upon consideration of all the grounds of appeal, it is clear that all the appellant is challenging is how the Judge exercised his discretion. As already stated, the Judge observed that the application before him was a duplication of proceedings, and therefore an abuse of the court process.

10. We do not see how the Judge misdirected himself in reaching this conclusion. On the contrary, we note that he made the correct decision. The applicants did not demonstrate and there is nothing to show that the Judge exercised his discretion wrongly thus causing a miscarriage of justice.

11. At the risk of repetition, we reiterate that where the court, at the stage an application for leave is made, reaches a decision that the application is frivolous, the court can in the exercise of its discretion strike out such an application. This was one such case.

12. Accordingly, we are of the view and we do hold that the Judge exercised his discretion correctly and this appeal has no merit. We dismiss the appeal and since no party appeared at the hearing, each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. S. OLE KANTAI......................................JUDGE OF APPEALMUMBI NGUGI......................................JUDGE OF APPEALM. GACHOKA CIArb, FCIArb......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR