[2025] KESC 7 (KLR)

Julius v Chief Registrar of the Judiciary & 14 others (Application E001 of 2025) [2025] KESC 7 (KLR) (14 March 2025) (Ruling)

Neutral citation: [2025] KESC 7 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application E001 of 2025

MK Koome, CJ, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ

March 14, 2025

Between

Miiri Julius

Applicant

and

Chief Registrar of the Judiciary

1st Respondent

Ahmednassir Maalim Mohamud

2nd Respondent

Ali Osman Mohamud

3rd Respondent

Peter Muchoki Gichuru

4th Respondent

Cohen Kyampene Amanya

5th Respondent

Irene Jelagat Koech

6th Respondent

Esther Amboko Wanga

7th Respondent

Khadija Said Ali

8th Respondent

Elizabeth Wangui Mungai

9th Respondent

Tony Kiprotich Towet

10th Respondent

Mohammed Billow Abdi

11th Respondent

Jerioth Muthoni Gatere

12th Respondent

Omar Athman Mwarora

13th Respondent

Jemimah Aileen Masudi

14th Respondent

Hilda Mulwa Ndulu

15th Respondent

Ruling

A. Introduction 1. This Court on 18th January 2024 sent communication to Mr. Ahmednasir Abdullahi SC, to the effect that he had relentlessly and unabashedly conducted a campaign in the broadcast, print and social media aimed at scandalizing, ridiculing and out-rightly denigrating the Court and that action would therefore be taken against him.

2. Subsequent to the above communication, the Court, on 23rd January 2024, made an Order wherein all the seven (7) judges of the Court recused themselves from hearing Zehrabanu Mohammed S.C. (Suing as the executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi & Anor vs Nathaniel K. Lagat & 4 Others SC Petition No. 17 (E021) of 2022 as consolidated with Petition No. 24 (E027) of 2022 as long as Mr. Ahmednasir Abdullahi, SC was appearing either by himself, through an employee of his firm, or any person holding his brief, or acting pursuant to his instructions. Similar orders were issued on 25th January 2025 in Fatuma Athman Abud Faraj vs Rose Faith Mwawasi & 2 Others SC Petition No. E035 of 2023 where the firm of M/s Ahmednasir Abdullahi Advocates LLP was acting for the appellant.

3. It is in light of the above circumstances that the applicant herein moved this Court, through a Notice of Motion dated 3rd January 2025 and filed on 4th February 2025 anchored on Articles 2, 3(1), 10, 19, 20 (1), (2) & (3), 22 (1) & (2), 25, 47, 48, 50 (1), 163 (7), 258 & 259 of the Constitution of Kenya 2010, Sections 3, 14 (5) and 21 (7) of the Supreme Court Act No. 7 of 2011 and Rules 3, 20, 32 of the Supreme Court Rules seeking the following reliefs:“a……Spentb.That the recusal decision made by this Honourable Court dated January 23rd, 2024 and January 22nd 2025 be and is hereby reviewed and set aside as against the 2nd Respondent to 15th Respondent. IN (THE) ALTERNATIVE, the recusal decision made by this Honourable Court dated January 23rd, 2024 and January 22nd 2025 be and is hereby reviewed and set aside as against the 3rd to 15th Respondents.c.That any consequential administrative communication dated 18th January 2024 by the 1st Respondent be and is hereby reviewed and set aside as against the 2nd Respondent to 15th Respondent”.

B. Applicant’s Case 4. The application is supported by the sworn affidavit of Miiri Julius of even date to the Motion wherein he avers that being a practicing advocate, he has locus standi to bring these proceedings for the reasons that he has a direct and substantial interest in the subject matter of litigation, to wit, the recusal of the entire bench of this Court and how it affects the role of advocates in the representation of their clients. That this Honourable Court also has inherent and residual jurisdiction to deal with recusal of judges which is a sui generis matter akin to contempt of court. That this furthermore Court retains post decisional jurisdiction to change any of its decisions for good cause just like the jurisdiction conferred on it to act should a contemnor purge his/her action found to be in contempt of court and, the Court therefore has jurisdictional powers to review its decision in exceptional circumstances so as to meet the ends of justice. That the application is thus brought to correct the misconception and misunderstanding created by the general public that this Court also intended to punish the 3rd to 15th respondents.

5. The applicant further avers that the net effect of the Court’s decision is that the 2nd to 15th respondents have been restricted from appearing before the Supreme Court and the order has also limited advocates who may later join the firm from ever practicing before the Apex Court. The Court in effecting the recusal order against the 2nd respondent thus affected all advocates in the firm and vicariously distributed liability to the 3rd to 15th respondents together with their clients for actions attributed to the 2nd Respondent.

6. The applicant has also contended that, since the firm of M/S Ahmednasir Abdullahi Advocates is registered as an LLP and has other partners who have the power and/or authority to receive instructions and appear in their personal capacities, the other partners can therefore also issue instructions to advocates to hold their briefs before courts. The decision to decline to give audience to the 3rd to 15th respondents is thus disproportionate to the alleged infractions committed by the 2nd respondent and it affects clients who might have little to do with the 2nd respondent. The associates and partners of M/S Ahmednasir Abdullahi Advocates LLP have also demonstrated, as shown in the decision of this Court dated 22nd January 2025, that they have the capacity to handle cases on their own away from Advocate Ahmednasir Abdullahi, SC.

7. Upon filing of the application, the Court on 5th February 2025, certified the matter as urgent and directed the same to be served upon the respondents and the respondents, upon service, do file their responses and submissions within five (5) days. The firm of M/S Ahmednasir Abdullahi Advocates LLP did not file any formal response to the Motion but instead sent a letter dated 7th February 2025 highlighting that they have serious issues with the procedural flaws and in the manner in which the Motion was instituted before the Court, and that they were even more perturbed by the directions of the Court requiring the 2nd to 15th respondents to file responses before it, bearing in mind the “ban” the Court has issued against them. That therefore and in light of the subsisting “ban” against the 2nd to 15th respondents, they were incapacitated from making any responses to the Application.

8. The applicant filed a supplementary affidavit sworn on 17th February 2025 in response to the letter dated 7th February 2025 wherein he averred that the recusal order does not bar the 2nd to 15th respondents from participating in the proceedings that seek to set aside the impugned orders of 23rd January 2024. That the orders do not also ban the 2nd to 15th respondents from appearing in Court where they have been sued personally in their individual capacity; the recusal order only relates to them when they are representing the firm of the 2nd respondent in Court. As for the procedural flaws, the applicant averred that a miscellaneous application is the right route to follow where a collateral issue has no bearing or does not concern the main suit.

9. The applicant also filed submissions and list of authorities dated 4th February 2025 wherein he submitted that Articles 22 and 258 of the Constitution have expanded the scope of persons to institute proceedings alleging violation of the Bill of Rights and such person need not be generally affected or have a direct stake in a matter and one can therefore do so in public interest. In this respect he cites the Court’s decisions in Matemu vs Trusted Society of Human Rights Alliance & 5 Others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) (9 December 2014) (Ruling), Law Society of Kenya Nairobi Branch vs Malindi Law Society & 6 Others, Civil Appeal 287 of 2016; [2017] eKLR. He further argued that, unlike the decision of the Court in Kaluma vs NGO Coordination Board & 5 Others (Application E011 of 2023) [2023] KESC 72 (KLR), this application does not seek to review the merits of the underlying cases but review of a miscellaneous process that would affect legal representation by lawyers in general.

10. To urge that the Court has an obligation to resort to its inherent powers to review its decision on recusal of judges and ensure that the ends of justice are met, the applicant cited the Court's decisions in Geoffrey M. Asanyo & 3 Others vs Attorney General Sup. Ct. Pet No. 21 of 2015 [2018] eKLR, Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai Estate & 4 Others; SC Petition No. 4 of 2012 [2013] eKLR, and the United Kingdom decision in Re Pinochet [1998] [1999] HL where a five judge bench decision was reviewed by a different set of five judges. On the inherent jurisdiction on recusal matters, the applicant submits that a court may become functus officio with respect to substantive issues in a case, yet still retain the administrative capacity to issue directives regarding the procedural management of a case. A court thus retains the duty and powers to handle other issues facilitative to the matter citing Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, Mitu- bell Welfare Society vs Kenya Airports Authority & 2 Others [2021] eKLR, the persuasive authority of the High Court in Silvanus Kizito vs Edith Nkirote Mwiti [2021] eKLR and of the Court of Appeal in Equity Bank Limited vs West Link Mbo Limited [2013] eKLR. To this point he posited that the recusal decision of the Court, unlike a merit decision, is an exception to the general rule of functus officio.

11. As to whether the review is warranted, he opined that, given the amorphous nature of the term ‘special circumstances’ or ‘exceptional circumstances’, a court, while exercising its discretion in dealing with an application for review on recusal, must consider all relevant factors, evidence and determine whether the circumstances of an exceptional or special nature exist which justify the review. That there are exceptional circumstances in this case and the Court is obligated to resort to its inherent powers, to ensure that the ends of justice are met. The applicant relied on this Court’s decision in Fredrick Otieno Outa vs Jared Odoyo Okello & 3 Others SC Petition No. 6 of 2014 on exceptional circumstances to vary the Court’s decisions, the South African decisions in S vs Bruintjies 2003 (2) SACR 575 (SCA), Lieschieng and Others vs S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC) (29 August 2018) on the meaning of exceptional circumstances and the Indian Supreme Court decision in Manohar Lal Chopra vs Bahadur Rao Raja Seth Hairalal (1962) SC 527 on a court resorting to its inherent powers to meet the ends of justice.

C. Issues for Determination 12. Upon considering the Motion, the affidavit in support, the supplementary affidavit and the submissions of the applicant, we find the following issues are pertinent for our consideration:a.Whether the Motion as filed is procedurally flawed.b.Whether a non- party to proceedings has the legal standing to seek a review of the Court’s decisions.c.Whether the Motion meets the threshold for granting the orders sought.

D. Analysis a. Whether the Motion as filed is procedurally flawed 13. The applicant has opined that the filing of a ‘miscellaneous application’ is the right route to take where a collateral issue has no bearing or does not concern a main suit. The Supreme Court Rules 2020 is however specific as to the mode of filing interlocutory applications before this court. Rule 31 provides that:31. Interlocutory applications1. Every interlocutory application to the Court shall be filed together with written submissions and shall be determined by way of written submissions.2. An interlocutory application shall not be originated before a petition of appeal or a reference is filed with the Court.3. An interlocutory application together with written submissions shall be served within seven days of filing.4. A response to the interlocutory application together with written submissions shall be filed and served within seven days.5. The applicant, upon service of the response, shall file a rejoinder which may include supplementary submissions within seven days.6. An interlocutory application shall be by way of a Notice of Motion.” [Emphasis Ours]

14. A reading of Rule 31 is clear that an interlocutory application ought to be anchored on a petition or appeal filed. The Rule does not contemplate the filing of a miscellaneous application outside existing proceedings as suggested by the applicant. Further, the Motion as filed seeks to review certain decisions made by this Court. Section 21A of the Supreme Court Act in that context anticipates the filing of an application against a decision sought to be reviewed. The Section specifically provides:“21A.Review of own decisionThe Supreme Court may review its own decision, either on its own motion, or upon application by a party in any of the following circumstances—a.where the judgement, ruling or order was obtained through fraud, deceit or misrepresentation of facts;b.where the judgement, ruling or order is a nullity by virtue of being made by a court which was not competent;c.where the court was misled into giving a judgement, ruling or order under the belief that the parties have consented; ord.where the judgement, ruling or order was rendered on the basis of repealed law, or as a result of a deliberate concealment of a statutory provision.’’ [Emphasis Ours]

15. In this instance, the applicant has not filed the application in the matters where the decision for recusal was made by the Court, to wit the case of Zehrabanu Mohammed S.C. (Suing as the executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi & Anor vs Nathaniel K. Lagat & 4 Others SC Petition No. 17 (E021) of 2022 as consolidated with Petition No. 24 (E027) of 2022 or in the case of Fatuma Athman Abud Faraj vs Rose Faith Mwawasi & 2 Others SC Petition No. E035 of 2023 where the firm of M/s Ahmednasir Abdullahi Advocates LLP was acting for the appellant. From a concise reading of Section 21A of the Supreme Court Act and Rule 31 of the Supreme Court Rules therefore, the applicant ought to have anchored his review application on these two specific appeals.

16. Having stated as above, and while we are mindful that Article 159 (d) of the Constitution mandates that justice ought to be administered without undue regard to procedural technicalities, where there exist clear constitutional and statutory guidelines as to the filing of pleadings before the Court, a deviation of the same cannot warrant the protection afforded under Article 159 (d). This Court in Aramat & another v Lempaka & 3 others [2014] KESC 21 (KLR), for example held that the filing of election petitions within the 28-day requirement was a constitutional imperative that stood out by itself and as such Article 159 would not apply, as this was not an ordinary issue of procedural compliance. Similarly, in Odinga & 5 othersv Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) this Court, while interpreting the provision of Article 159 (d), held as follow- at paragraph 218:…The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course. The time-lines for the lodgement of evidence, in a case such as this, the scheme of which is well laid-out in the Constitution, were in our view, most material to the opportunity to accord the parties a fair hearing, and to dispose of the grievances in a judicial manner. Moreover, the Constitution, for purposes of interpretation, must be read as one whole: and in this regard, the terms of article 159(2)(d) are not to be held to apply in a manner that ousts the provisions of article 140, as regards the fourteen-day limit within which a petition challenging the election of a President is to be heard and determined.’’

17. Flowing from the above and even in our expanded procedural space, this Court cannot invoke its inherent jurisdiction to correct a deviation from clear and well laid out procedure. We therefore find and hold that the filing of the miscellaneous application before us is procedurally flawed.

b. Whether a non- party to proceedings has the legal standing to seek a review of the Court’s decision 18. In Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR the Court held that the issue of locus standi raises a point of law which touches on the jurisdiction of the Court, and it should be resolved at the earliest opportunity. The applicant in this case, we reiterate, was neither a party to the proceedings, the subject of which he has raised respective arguments in this application nor has he sought to be enjoined to those proceedings. The issues pertinent to the review orders sought only relate to the 2nd to 15th respondents. Those respondents on their part have not filed an application seeking review of the Court’s recusal orders in the two matters above, a right available to them if they are minded to invoke it. They have equally not filed pleadings in support of nor in opposition to the present application. Their letter of 7th February 2025 is not a pleading and remains mere correspondence to the court and is of no value in determining the application on its merits or otherwise.

19. In Law Society of Kenya vs Communications Authority of Kenya & 10 others [2023] KESC 27 (KLR) we defined that a person seeking to file an appeal only extended to a party who was aggrieved by a decision issued against him by the Court of Appeal and wished to prefer an appeal to the Supreme Court. A person in that context should therefore be a party with locus standi in the matter. The definition did not open the door for any passer-by who was disgruntled with a decision delivered by the appellate court to approach the court. That finding also applies to matters relating to public interest and there was difficulty in the Law Society of Kenya matter in granting relief at the appellate stage to a party who did not litigate those issues before the Superior Courts.

20. The Court in the above matter further held that a proper party must have a designed, subsisting, direct and substantive interest in the issues arising in the litigation which interest would be recognizable in a court of law being an interest, which the court would enforce. While the court therefore recognized the objectives of the Law Society as provided for in Section 4 of the Law Society of Kenya Act, it was not and could not be a proper party in that appeal. Further that, while Article 22 of the Constitution provided a pathway for parties to contest the denial, violation or infringement of a right or fundamental freedom, the proper point of entry for such a party would be at the High Court which the Constitution has granted jurisdiction to determine questions of denial, violation or infringement of a right or fundamental freedom. The Supreme Court did not therefore have the jurisdiction to hear and determine an appeal originated before it by a party who had not appeared at the High Court or Court of Appeal.

21. Similarly and applying our determination in LSK vs CAK (supra) we find that the applicant, while well intentioned, had no locus standi to bring the miscellaneous application that is before us.

c. Whether the Motion meets the threshold for granting the orders sought. 22. Having arrived at the determination that the application as filed is procedurally flawed and that the applicant lacks the locus standi to file the same, we must reach the inescapable conclusion that the application as filed is incurably defective and must be struck out.

23. Given that none of the respondents filed a substantive response to the application and guided by our decision in Jasbir Singh Rai & 3 other v. Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR we make no orders as to costs.

24. For the aforestated reasons we make the following orders:i.The Notice of Motion dated 30th January 2025 and filed on 4th February 2025 is hereby struck out.ii.There shall be no orders as to costs.

25. Orders Accordingly.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MARCH 2025. …………………………………………………………M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT OF KENYA…………………………………………P.M. MWILU M.DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT OF KENYA…………………………………………K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………S. C. WANJALA……………………………………………NJOKI NDUNGUJUSTICE OF THE SUPREME COURT…………………………………………I. LENAOLAJUSTICE OF THE SUPREME COURT……………………………………………W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA