[2021] KEHC 5236 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI LAW COURT

CONSTITUTION AND HUMAN RIGHTS DIVISION

PETITION NO. E356 OF 2020

IN THE MATTER OF ARTICLES 1(3), 2, 3, 6(1) & (2), 10, 23, 93(2), 94(4), 95, 101, 131(b), 165(3)(d), 174, 175(b), 179(1), 183, 186, 201(a) (b)(ii), (d) &(c), 202(2), 203, 205(1), 217, 218, 258, 259 & 261 OF THE CONSTITUTION

AND

IN THE MATTER OF THE FIFTH SCHEDULE TO THE CONSTITUTION

BETWEEN

KENNEDY MWAURA KIBEBE.............................................1ST PETITIONER

SAMUEL WAWERU WANJIKU............................................2ND PETITIONER

JOHN KAMAU MUTHONI....................................................3RD PETITIONER

KEVIN KIOGORA NGOORO...............................................4TH PETITIONER

VERSUS

HON. ANNIE WANJIKU KIBEH................1ST RESPONDENT/ APPLICANT

THE HONOURABLE SPEAKER OF

THE NATIONAL ASSEMBLY..............................................2ND RESPONDENT

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION...................................3RD RESPONDENT

CLEMENT KUNG’U WAIBARA..........................................4TH RESPONDENT

RULING

THE PETITION

1. Through the Petition dated on 2nd November 2020, the Petitioners seek the following reliefs:-

a)The Stay Orders issued by the Court of Appeal when the Gatundu North Parliamentary seat had become vacant by operation of the Law to wit Article 101 (4) (a) of the Constitution were unconstitutional and in contravention of the Constitution by dint of Article 2 (4).

b)A declaration that the Petitioner’s rights have been denied, infringed, violated and/or threatened, as they are voters in Gantundu North Constituency.

c)An order directing the Speaker of the National Assembly to comply with the strict guidelines of the Constitution under Article 101 (4) (a).

d)Any other order, declaration, writ or remedy or redress the Honourable Court may deem fit and convenient taking all the circumstances of this case into account.

e)Costs of the suit to be provided for.

1ST RESPONDENT’S APPLICATION

2. The Notice of Motion and Supporting Affidavit dated 15th December 2020 brought under Article 160 (5) and 165 (6) of the Constitution, 2010; Section 6 of the Judicature Act (Cap 8, Laws of Kenya); Section 45 of the Judicial Service Act, 2011;and Order 2 Rule 15 of the Civil Procedure Rules, 2010 seeks the following orders:-.

a) THAT this Motion be heard and determined in lime, in priority over the Petitioners’ Petition and Application dated 2nd November 2020.

b) THAT the Petitioners’ Petition and Application dated 2nd November 2020 be struck out in their entirety for want of jurisdiction and abuse of process; and

c) THAT the 1st Respondent be awarded the costs of this Application and the entire proceedings, on an indemnity basis.

3. The Application is premised on several grounds amongst which the Applicant aver that the Honourable Court lacks the jurisdictional competence to impugn/ quash/ vary or in any way question the decision of the Court of Appeal; which decisions are binding upon this Court. The Applicant contended that in the view of the judicial hierarchy and Article 165 (6) of the Constitution, this Court lacks the jurisdictional competence to entertain any challenge on the Court of Appeal’s stay Ruling.

4. The Applicant further averred that in so far as the Petitioners allege that the Court of Appeal (whose judges the Petitioners fail to enjoin) violated their rights, in issuing stay orders, these proceedings are bad in law as no such cause of action can be sustained in this court. Moreover, it is urged that, in so far as the Petitioners seeks a Declaration that the stay orders issued by the Court of Appeal were unconstitutional on account of the Honourable Judges’ alleged ‘misdirection’, these proceedings are in violation of Article 160 (5) and 165 (6) of the Constitution, 2010; section 6 of Judicature Act (Cap 8, Laws of Kenya); and Section 45 of the Judicial Service Act, 2011.

5. It is asserted that this Court is therefore prevented from hearing or determining this matter as proceedings are pending before the Court of Appeal and Supreme Court on the 1st Respondent’s election.

THE 1ST RESPONDENT’S APPLICANT’S SUBMISSIONS

6. The 1st Respondent/Applicant filed her Written Submission dated 27th January 2021 in support of her ‘Sticking Out’ Motion dated 15th December 2020. It is submitted that the issues for determination are:-

I. Jurisdiction

II. Absence of a cause of action; and

III. Abuse of process

7. On the issue of jurisdiction, it is submitted that this Honourable Court lacks supervisory jurisdiction over the Court of Appeal, the latter being the superior Court, and therefore lacks the jurisdiction to entertain the Petitioners’ cause.

8. The 1st Respondent’s/Applicant averred that the principal relief of the Petitioners is grounded on the spurious allegation that the Court of Appeal ‘misdirected’ itself. The Applicant relies on a number of cases most notably the decisions in Peter Nganga Muiruri v Credit Bank Limited & 2 others [2008] eKLR; Kenya Hotel Properties Limited v Attorney General & 5 others [2018] eKLR; Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR where it was determined that the High Court has jurisdiction to strike out or reverse the decisions of the Court of Appeal.

9. On the second issue, the 1st Respondent/Applicant asserted that no cause of action exists against her, in so far as the Petitioners fault the Court of Appeal and seek orders against the Court of Appeal, no cause of action can be sustained or even conceived against the 1st Respondent/Applicant.

10. The 1st Respondent/Applicant further stated that in view of the principle of judicial immunity, as guaranteed under Articles 160 (5) of the Constitution, Section 6 of the Judicature Act (Cap 8) andSection 45 of the Judicial Service Act, 2011, no cause of action exists against the Court of Appeal judges against whose Ruling/ Decision the Petitioners seek a finding of unconstitutionality.

11. Finally, on the abuse of process, the 1st Respondent/Applicant submitted that in the absence of jurisdiction or cause of action, the Petition is a frivolous, vexatious pleading without any jurisdictional foundation or lawful and logical backgrounds. Thirdly the institution of the present proceedings can only be termed as an abuse of this court’s process. Reliance is placed on the decisions in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR; and Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR.

SUBMISSIONS IN OPPOSITION OF

1STRESPONDENT’S/APPLICANT

12. The Petitioners did not file submissions in opposition of the 1st Respondent’s/Applicant’s, Preliminary Objection.

ANALYSIS AND DETERMINATION

13. I have carefully considered the pleadings herein, the responses and the 1st Respondent’s/Applicant application and submission and from the same only one issues, arise for determination thus:-

a) Whether the High Court has jurisdiction to reverse the decision of the Court of Appeal.

14. It is trite that the jurisdiction of a Court can neither be implied nor conferred by agreement of parties, by judicial craft or legal sophistry, it must be expressly provided for in the Constitution or in statute. This is holding of Supreme Court in the case of, Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where it held, that:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”(Emphasis added)

15. It therefore follows that the jurisdictional remit of the High Court is anchored in Article 165(3) of the Constitution which states:-

“Subject to clause (5), the High Court shall have-

a) Unlimited original jurisdiction in criminal and civil matters;

b) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened:

c) Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

d) Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of-

i) The question whether any law is inconsistent with or in contravention of this Constitution;

ii) The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.

iii) Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

iv) A question relating to conflict of laws under Article 191; and

e) Any other jurisdiction, original or appellate, conferred on it by legislation.

16. It is clearly expressed under Article 165(5) as follows:-

“(5) The High Court shall not have jurisdiction in respect of matters— (a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”

17. Further under Article 165(6) of the Constitution it is stated as follows:-

“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

18. The Supreme Courts are defined under Article 162 of the Constitution, as Supreme Court, the Court of Appeal, the High Court and specialized Court (Environment and Land Courts and Employment Labour Relations Court) as established pursuant to Article 162(2) of the Constitution.

19. The subordinate Court on the other hand are described, at Article 169(1) of the Constitution, as the Magistracy, the Kadhis Courts, Courts Marital, and other courts or tribunals established by Acts of Parliament. The Specialized Courts established by Article 162(2) are expressly omitted from this definition.

20. Clear reading of provisions of Article 165(6) of the Constitution confirms in no uncertain terms that this Honourable Court lacks Supervisory Jurisdictionover the Court of Appeal; the latter being a Superior Court, ranking higher in the judicial hierarchy. I find that in so far as the Petitioners (incompetently) invoke this Court’s supervisory jurisdiction, over the decision of the Court of Appeal (dated 28th October 2020), this Court lacks the jurisdiction to entertain the Petitioners’ cause. This Court cannot purport to have supervisory jurisdiction over that no novel litigation path is being charted by Petitioner, in their setting this Honourable Court to avoid the decision of its colleagues with concurrent or superior judicial powers. Many Petitioners attempted to do the same; but they were all rebuffed by the Courts. The situation has since never changed and the law has stood the time and test.

21. On decision issued by courts of concurrent jurisdiction or other “Division of the High Court” reliance was placed in the case of Robert Alai Onyango v Cabinet Secretary in Charge of Health & 7 others [2017] eKLR, in which the Petitioner challenged the decision of the Labour Court. This Court, in striking out the Petition, opined as follows:

“There seems to be a general misconception among some legal practitioners, litigants,and a section of members of the public that this court, sitting as Constitutional and Human Rights Division of the High Court, has special jurisdiction to supervise superintend or direct other superior courts. Granted, the High Court has jurisdiction under Article 165 (6) to supervise subordinate courts and any person, body or authority exercising a judicial or quasi–judicial functions. The court also has jurisdiction to redress violation and infringement of fundamental rights under the Bill of Rights. However, sub Article (6) is clear that the High Court has no supervisory jurisdiction over superior courts. Superior courts in terms of Article 162 (1) are the Supreme Court, Court of Appeal, High Court and Courts of Equal status. Courts of equal status are those courts mentioned under Article 162(2); that is; Employment and Labour Relations Court and Environment and Land Court.

The High Court draws its jurisdiction from the constitution. It has wide jurisdiction to deal with allegations of violation and/or infringement of fundamental rights. It also has jurisdiction of supervisory nature but that supervisory jurisdiction is limited. It cannot be exercised over superior courts. Article 23(1) is also clear that the court must exercise the jurisdiction given under Article 165. Looking at the prayers in the petition, the court is being asked to assume a supervisory role and stay proceedings pending before a superior court as well as stop execution of orders issued by that superior court. Taking such a step would amount to this court exercising jurisdiction it does not have, and which is excluded.(Emphasis Added)

22. Looking and perusing the Petitioners’ Petition, it is revealed that the Principle relief sought by the Petitioners is framed in the following terms:-

“the Stay Order issued by the Court of Appeal when the Gatundu North Parliamentary seat had become vacant by operation of the law to wit article 101(4) (a) of the Constitutional were unconstitutional and in contravention of the Constitution by dint of Article 2 (4).”

23. The above quoted plea is grounded on the allegations that the Court of Appeal “misdirected” itself.

24. Similarly the Court of Appeal, in disabused any contents that there existed a constitutional court in our Republic, a Court that could assert /exercise its jurisdiction over other Supreme Courts. In the case of Peter Nganga Muiruri v Credit Bank Limited & 2 others [2008] eKLR,it was opined that:-

“We want to set the law straight on the jurisdiction of what the learned Judge called “the Constitutional Court”. The part of the Constitution which deals with the establishment and jurisdiction of courts in Kenya is headed “The Judicature”. Section 60 of the Constitution establishes the High Court with “unlimited original jurisdiction in Civil and Criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or nay other law”. Although the Constitution stipulates that the jurisdiction of the High Court in Criminal and civil matters is unlimited it is circumscribed by rules of practice and procedure to enable the Court to function side by side with Courts and tribunals subordinate to it and to guide it in the manner ofexercising its jurisdiction and powers. Section 64 of the Constitution establishes the Court of Appeal with such “… jurisdiction and powers in relations to appeals from the High Court as may be conferred on it by law”. On the basis of this provision the Court of Appeal cannot directly entertain an appeal from any other court other than the High Court. Sections 65 and 66 of the Constitution establish courts subordinate to the High Court which are Magistrates Courts and Kadhi Courts, and also Courts Martial. Each of those courts exercises such jurisdiction and powers as “may be conferred on it by law.” There is no provision in the Constitution which establishes what Nyamu J. referred to as Constitutional Court. In Kenya we have a division of the High Court at Nairobi referred to as “Constitutional and Judicial Review” Division. It is not an independent Court but merely a division of the High Court. The wording of Section 67 of the Constitution which donates the power to the High Court to deal with questions of interpretation of sections of the Constitution or parts thereof does not talk about a Constitutional Court. Instead it talks about the High Court. With regard to protective provisions Section 84 of the Constitution does not in any of its sub-sections talk about the Constitutional Court. Instead it talks about an application being made to the High Court. In view of what we have stated above, it is quite clear that Nyamu J.’s remarks which we earlier reproduced were based on the mistaken belief that the Constitution had created a court called the Constitutional Court with supervisory powers over all other courts. The Hon. the Chief Justice must have been aware that no such Court is established under the Constitution and that, we think, would explains why he created a Constitutional Division and not a Constitutional Court. The creation of the Constitutional and Judicial Review Division was an administrative act with the sole object of managing the cause list. The Chief Justice would have no jurisdiction to create a constitutional court as opposed to creating a division of the High Court. Any single Judge of the High Court in this country has the jurisdiction and power to handle a constitutional question. The fact that a Constitutional Division was established did not by such establishment create a court superior to a single Judge of the High Court sitting alone. It would be a usurpation of power to push forward such an approach and whatever decision which emanates from a court regarding itself as a Constitutional Court with powers of review over decisions of Judges of concurrent or superior jurisdiction such decision is at best a nullity.

.... Moreover, if Nyamu J.’s views were to be accepted, it will create an absurd situation. Appeals from the High Court lie to this Court. If this Court’s decisions will be subject to a review by the so called “Constitutional Court”, an appeal from that court will lie to this Court for a second time, and if any of the parties feels any of his fundamental rights has been violated by this Court he will have recourse to the “Constitutional Court” whose decision thereon will be appealable to this Court.

…The High Court has no Jurisdiction whatsoever to review this Court’s decisions and for any Judge of the High Court to state otherwise is an affront to the doctrine of precedent. (Emphasis added)

25. I find that though the pronouncement was made during the previous (or repealed) constitutional epoch, the ratio still stands as clearly evidence in the present constitutional dispensation. It is noted that the Petitioners herein are challenging the decision of not just Judges of a superior Court but Judges of Superior rank in the “judicial pecking order”.

26. I note that is not the first attempt as similar attempts have been made in the past without success. To buttress this, reliance is placed in the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2018] eKLR, where the Petitioner sought the nullification of a decision of the Court of Appeal (and a subsequent de novo hearing of its appeal) on the ground that one of the judges in the Court of Appeal bench that heard its appeal had been removed from office by the Judges Magistrates & Vetting Board, following a complaint on how he handled the Appeal.

27. The Court proceeded to reject the Petitioner’s contention and dismissed the Petition. In so doing, the Court pointed out that it was bound by the decisions of the Court of Appeal and that acceding to the Petition would amount to judicial heresy and an upheaval of the hierarchy of the Courts. In so doing, Justice E. C. Mwita held:-

“Based on the above analysis, can this Court answer the Petitioner’s grievance in the affirmative and annul a decision of the Court of Appeal taking into account the pecking order of the superior courts in this Country” An can this Court issue an edict to the Court of Appeal directing that court to reopen a closed appeal and hear it de novo” My answer to the above questions must be in the negative. If what the Petitioner asks of this Court were to happen, it would certainly amount to under mining the authority of the Court of Appeal by another superior Court but inferior to it. It would be against clear words of Article 165(6).

…To my mind, it would amount to the highest degree of judicial mockery to grant the reliefs as the constitution contemplates no such action form this court..”(Emphasis added)

28. The above decision was appealed to Court of Appeal. In its decision in Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, the Court of Appeal affirmed the High Court’s decision and dismissed the Appeal. The Court took the view that:-

“Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts. Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rightsis really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.

It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere.”(Emphasis added)

29. Further, the appellant undeterred by the judge of the High Court and the Court of Appeal in (Kenya Hotel Properties Ltd) appealed to the Supreme Court. While the Appeal awaits determination, the Apex Court weighted in, at an interlocutory stage, on whether the Appellant was deserving of an injunction/Stay. By its ruling, in Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR – Civil Application 27 of 2020, the Supreme Court considered the ‘arguablity’ of the appellant’s appeal and opined:-

“While the above finding [S. K. Macharia case] was made in relation to the Supreme court, it applies even more emphatically to the High Court which we are certain has no jurisdiction to reopen cases finalized by the apex Court (the Court of Appeal at the time and this Court, today).”(Emphasis added)

30. Upon considering the constitutional provisions, and authority relied upon by the 1st Respondent /applicant, I am satisfied that the Honourable Court lacks the jurisdiction to entertain this Petition nor can it proceed to issue the various orders sought by the Petitioners or to in any way, vary the ruling of the Court of Appeal; I further find that by operation of the doctrine of stare decesis and clear and ambiguous constitutional edicts, this Honorable Court is bound by decisions of Court of Appeal and Supreme Court and cannot purport to vary their decisions nor set them aside.

31. I now turn to consider whether the Petitioner have raised a “cause of action”against the 1st Respondent. “A cause of action” is defined as, per the Black’s Law Dictionary as: “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitled one person to obtain a remedy in court from another person.”

32. In order to determine whether a cause of action has been established the Court is under obligation to consider the party’s pleadings, to find out whether a cause of action exists against the Respondent. Upon consideration of the Petition, it is clear that it faults the Court of Appeal and seeks orders against the Court of Appeal. There is no claim against the 1st Respondent nor is 1st Respondent faulted in any way for the decision of the Court of Appeal. I find from the pleadings as drawn and filed, that no cause of action, has been established against the 1st Respondent. Further there is no cause of action that can be sustained or even conceived from the pleadings against the 1st Respondent.

33. In addition thereto, in view of the principle of Judicial immunity, as guaranteed under Article 160(5) of the Constitution, Section 6 of the Judicature Act (Cap 8)and Section 45 of the Judicial Service Act, 2011, no cause of action exists against the Court of Appeal judges against whose Ruling/Decision the Petitioners seek a finding of un-constitutionality.

34. I find that in absence of legal cause of action against any of the Respondents or parties herein, whether cited or not cited in these proceeding, the Petition as drawn and filed in incompetent and an abuse of Court process and is for striking out.

35. On abuse of the Court process, I start by considering the definition of “Abuse of Process”, The Black’s Law Dictionary describes ‘abuse of process’ as “the improper and tortious use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’ scope."

36. The Supreme Court described “abuse of process” in the case of Kenya Section of the International Commission of Jurists v Attorney-General and 2 others [2012] eKLR, in the following terms:-

“The concept of “abuse of the process of the Court: bears no fixed meaning, but has to do with the motives behind the guilty party’s actions: and with a perceived attempt to maneuver the Court’s jurisdiction in a manner incompatible with the goals of justice.

The bottom line in the case of abuse of Court process is that, it “appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption...” [D. T. Dobbie & Company (Kenya) Ltd. V. Muchina [1982] KLR 1 – per Madan, JA at p.9]. Beyond that threshold, lies an unlimited range of conduct by a party that may more clearly point to an instance of abuse of Court process.”(Emphasis added)

37. I find in view of absence of jurisdiction or cause of action as already found herein above, the Petition and the application herein are frivolous, and vexatious pleadings without any jurisdictional foundation or lawful and logical backing. I find that the institution of the present proceedings, can only be termed as an abuse of this Court’s process. This Court is behooved to zealously protect its process and where an issue of abuse of process is raised, it has inherent powers to make a finding of abuse, terminate proceedings and impose appropriate sanctions on the deserving party or his advocate.

38. Having found that the Petition was instituted in a Court that lacks jurisdiction, I find that there is lack of good faith or a cognizable lawful cause of action. I further find that both the Application and Petition to be frivolous and vexatious and that, in my view, is an abuse of Court process.

39. The upshot is that the 1st Respondent’s Notice of Motion dated 15th December 2020 is meritorious. I allow the same in the following terms:-

a) The Petitioners Application and Petition dated 2nd November 2020 be and are hereby struck out in their entirely for want of jurisdiction and abuse of Court process.

b) The 1st Respondent is awarded costs of the application and the Petition, on an indemnity basis.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF JULY, 2021.

.........................

J. A. MAKAU

JUDGE