[2022] KEHC 11999 (KLR)

Nairobi City County v Samson Masaba Munikah t/a Munikah & Co. Advocates (Miscellaneous Application E011 of 2019) [2022] KEHC 11999 (KLR) (Commercial and Tax) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11999 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E011 of 2019

A Mshila, J

June 17, 2022

Between

Nairobi City County

Applicant

and

Samson Masaba Munikah t/a Munikah & Co. Advocates

Respondent

Ruling

Background 1. The notice of motion dated November 19, 2021 was brought under article 22 and 23 of the Constitution of Kenya, rules 13, 19, 23(1) & (2) and 24 of Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules of 2013. The applicant sought orders that;a.The application be heard in priority to the preliminary objection since it will be rendered nugatory if the preliminary objection is heard before as scheduled.b.The proceedings in the matter be stayed pending the hearing and determination of this application for empanelment of a bench of at least three judges in line with article 165 (4) of the Constitution of Kenya 2010. c.The matter be placed before the Honourable Chief Justice to constitute a bench of uneven number of judges not being less than three to hear and determine the matter including the pending preliminary objection on a priority basis.d.Costs of this application be in the cause.

2. The application was supported by the sworn affidavit of Robert Mutembei Koomewho stated that the manner in which this matter has been handled whereby it has been previously through two judges who left at the point of ruling raises concerns that the applicant will not get justice being pursued.

3. That this matter concerns protection of public interest in the use of public funds and there is need for the preliminary objection to be heard by a bench of uneven judges. The matter including the pending preliminary objection touches on a weighty question of the law on whether the county government can challenge misuse of public funds by previous administration after effluxion of time

4. This matter further concerns protection of devolution in Kenya and strengthening of public accountability in the use of public funds and therefore needs urgent consideration by the court.

5. The respondent filed grounds of opposition dated December 7, 2021 in response to the application on the grounds set out hereunder inter alia: -a.The motion application has not disclosed any grounds or basis to justify or warrant the drastic orders sought.b.The applicant is attempting to circumvent the strict procedures and express limitation periods which have been placed by the applicable statute law on filing of a reference and which the applicant has never complied with.c.The notice of motion application is totally lacking in merit both in fact and/or in law and is a gross abuse of the due process.d.There is no provision under the applicable provisions of the law on taxation to warrant the orders sought by the applicant.e.The application is merely intended to obstruct, delay and detract the court from the real and germane issues before this honourable court.f.The application is motivated by in ulterior motives and intended to obfuscate, delay and detract this honourable court from the real issues appertaining to this matter.g.The applicant has voluntarily admitted liability to the claim in this matter and made partial settlement of the same.h.The certificate of taxation issued by the High Court of Kenya has never been reviewed, varied and/or set aside by any competent court of law and consequently the pleadings by the applicant have not laid any basis for questioning or challenging the said document.i.The application is incompetent, bad in law and absolutely defective and the same ought to be dismissed and/or disallowed with costs.

Applicant’s Case 6. It was the applicant’s case that the application is mainly grounded on the provisions of article 165 (4) of the Constitution of Kenya 2010, which provides as follows:(4)Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

7. The applicant submitted that this matter raises a substantial question of law for the following reasons:a)The unique facts of this matter warrants a hearing by more than one judge.b)The outcome of the matter will go beyond the parties involved and affect the administration of public funds at the county level generally now and in the future especially regarding payment of legal fees.c)County governments have been riddled with a significant debt owing to suppliers and the use of public funds has been put to test.

8. The applicant explained that this matter is unique and its history should be considered in determining this question. In the case of Del Monte Kenya Ltd V County Government of Muranga & 2others(2016) eKLR, the court remarked that circumstances and unique facts of the case should be considered in determining whether there exists a substantial question of law to be determined.

9. It was noted by the applicant that from the court record, Hon Justice Tuiyott had noted how the counsel on record for the respondent at the time had made an attempt to visit him in his chambers in a manner that was not in tandem with proper court procedures and suspect considering that there was a ruling pending. In the circumstances, the applicant submitted that it is in the interests of justice that the arising issues be considered by a bench of uneven number for assurance of the outcome of the final determination by the court in the interests of perception of justice being done. The outcome of the matter will go beyond the parties involved.

10. The respondent is seeking to enforce an erroneous payment of a colossal sum of money amounting to more than Kshs 800 million and which is meant to come from public coffers. The amount would not have evoked interest if it was being paid rightfully.

11. The payment of the said amount of money will be precedent setting, considering that it will be payment for a matter which the advocate handled at the city court. It is absurd that such an amount of money is sought to be spent from public money in wanton wastage for a matter that was already fully settled at Kshs 6 million several years back.

12. The outcome will have an impact on devolution in Kenya, considering that the fees sought arose from the previous system of governance, whereby Nairobi county government inherited debts from the previous local administration. This is a similar scenario in several other county governments and the pronouncement of the court will be far reaching.

13. The county government of Nairobi is the applicant in this case and represents the interests of the people of Nairobi. The county government was installed to be accountable to the public and therefore a dispute of this nature, which has emanated from the wrongful acts of the previous administration, ought to be given the attention it deserves as it elicits significant concern of the members of the public including oversight agencies such as the office of the Auditor General. A possible payment of Kshs 800 million, from public coffers, which is not warranted and based on misinterpretation of the law goes beyond the county government and the firm of advocates who are parties to this suit.

14. This matter raises a substantial question of law by evoking great public interest especially in the county of Nairobi. The issue for determination in the pending suit is whether an advocate can be paid twice for a matter after it has been resolved. The amount in question (Kshs 800 million) elevates this matter to become a matter of public importance considering that members of the public pay taxes which form government revenue and are therefore interested in how such money is being utilized.

15. Further, there has been an unexplained part payment of Kshs 250 million when the matter was still pending ruling before Hon Justice Tuiyott, evoking further public interest in how this transaction has been handled and the ease with which public money is being used without explanation or due process being followed. It is not a mere contractual matter between parties but a matter that involves the utilization of public funds and which should be accorded its due public importance status.

Respondent’s Case 16. The respondent submitted that it is trite law that the decision whether or not to empanel a bench of more than one judge ought to be made where it is absolutely necessary and in strict compliance with the relevant constitutional and statutory provisions. (See; Martin Nyaqa & others v Speaker County Assembly of Embu & 4 others &Amicus Curiae [2014] eKLR). This takes into account the fact that judicial resources, especially judicial officers, are scarce and that empanelment of a bench usually results in a delay thus increasing the backlog of cases.

17. A reading of article 165 of the Constitution reveals that the only constitutional provision that expressly permits the constitution of bench of more than one High Court judge is article 165(4). In all other cases, a single judge is properly constituted to hear and determine any matter that falls within the jurisdiction of the High Court under the said express provision, for the matter to be referred to the Chief Justice for the said purpose the High Court must certify that the matter raises a substantial question of law under article 165 (3) (b) of (d).

18. It was the respondent’s position that the Constitution of Kenya does not define, 'substantial question of law.' It is left to the individual judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine the matter. In Harrison Kinyanjui v Attorney General &another [2012] eKLR the court held that the meaning of "substantial question" must take into account the provisions of the Constitution as a whole and the need to dispense justice without delay particularly given specific fact situation.

19. In this case it is not alleged that the applicants' rights or fundamental freedoms in the bill of rights have been denied, violated, infringed or threatened. It is also not alleged that there is anything that has been done under the authority of this Constitution or of any law which is inconsistent with, or in contravention of, this Constitution, what is alleged is that there was a purported delay in delivering a ruling in an application to set aside a certificate of taxation dated August 7, 2012 arising from an advocate-client bill of costs, several judges were transferred and the application was to be canvassed a fresh on account thereof and that the respondent has a pending notice of preliminary objection.

20. Further, it is clear that this is a private dispute between an advocate (the respondent) and his client (the applicant) arising from a contract for the provision of legal services for a monetary payment, which services were indeed rendered but the payment not made, thus necessitating the advocate-client bill of costs that was taxed some 9 years ago and a certificate of taxation issued on August 7, 2012. Consequently, it is the respondent's position that the applicant has not met the threshold for this petition to be referred to the Chief Justice under article 165(4) of the Constitution.

Issues for Determination 21. The court has carefully considered the application, grounds of opposition and the written submissions before it and the only issue for determination is;a.Whether the issues raised in this matter warrant the empanelment of a bench?

Analysis 22. The only constitutional provision that expressly permits the constitution of bench of more than one High Court judge is article 165(4). Under that provision, for the matter to be referred to the Chief Justice for the said purpose the High Court must certify that the matter raises a substantial question of law in the following instances:1. Whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened; or2. That it involves a question respecting the interpretation of the Constitution and under this is included(i)the question whether any law is inconsistent with or in contravention of the Constitution;(ii)the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the 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.(4)Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

23. In the case of Kenya Medical Research Institute v Attorney General & 3 others [2014] eKLR, it was held that:“Article 165(4) of the Constitution stipulates circumstances under which the Chief Justice can exercise his powers under that article. It is a requirement that the substantial question of law which justifies the invocation of the said provision must either be where the court is required to make a determination of the question whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened or a determination in respect of a question respecting the interpretation of the Constitution. It is therefore clear that article 165(4) can only be invoked in specific and limit”

24. The question to be addressed is whether the instant application raises a substantial question of law warranting certification for empanelment of a bench under article 165(4) of the Constitution. It is clear that the empanelment of a bench under article 165(4) arises when circumstances are special and the jurisdiction to be exercised is not ordinary.

25. The term “substantial question of law” was defined inSantosh Hazari v Purushottam Tiwari [2001] 3 SCC 179 as follows:“A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lives.”

26. In Chunilal V Mehta v Century Spinning and Manufacturing Co AIR 1962 SC 1314, it was held that:“A substantial question of law is one which is of general public importance or which directly and substantially affects the rights of the parties and which have not been finally settled by the Supreme Court, the Privy Council or the Federal Court or which is not free from difficulty or which calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the questions are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial.”

27. The applicant argued that the respondent is seeking to enforce an erroneous payment of money amounting to more than Kshs 800 million and which is meant to come from public coffers. The payment of the said amount of money will be precedent setting, considering that it will be payment for a matter which the advocate handled at the city court. The money sought to be spent is from public money which is wanton wastage for a matter that was already fully settled at Kshs 6 million several years back. That the outcome will have an impact on devolution in Kenya.

28. It is clear that the dispute before this court is between an advocate (the respondent) and his client (the applicant) arising from a contract for the provision of legal services for a monetary payment, which services were indeed rendered but the payment not made, thus necessitating the advocate-client bill of costs that was taxed.

29. This court finds that the issues raised by the applicant do not raise any substantial question of the law. The applicant is upset by the figure of the money it owes the respondent and does not in any way bring out any question of law. Further, the applicant itself also duly noted in its submissions that the amount would not have evoked interest if it was being paid rightfully. The applicant does not dispute that there was an amount owing by it to the respondent, therefore the manner in which certain amounts were paid does not amount to a substantial question of law.

30. From the above mentioned provisions of the Constitution and the decisions quoted above; the conclusion to be made is that a question of law will be a substantial question of law if it directly and substantially affects the rights of the parties and that in order to be substantial it must be such that there may be some doubt or difference of opinion or there is room for difference of opinion in its interpretation.

31. In light of the above, this court is satisfied that the applicant has not satisfied the threshold laid down by the Constitution and decided cases for certification under article 165 (4) of the Constitution for the hon the Chief Justice to empanel a bench of uneven number of judges to hear and determine this application. This Court is of the view that the present matter can be handled ably by a single judge of the High Court.

32. The court acknowledges that there has unfortunately been a delay in the delivery of the ruling which issue can be resolved as the matter has now been properly assigned to this court for its determination.

Findings and Determination 33. From the afore-going reasons this court makes the following findings and determinations that;i.This court finds that the application does not meet the threshold laid down by the Constitution and decided cases for certification under article 165 (4) of the Constitution for the Hon the Chief Justice to empanel a bench of uneven number of judges to hear and determine this application.ii.The application is found to be devoid of merit and is hereby dismissed.iii.The costs shall abide the outcome of the matter;iv.Mention on June 30, 2022 for directions.

34. Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 17TH DAY OF JUNE, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Mwangi holding brief for Mr. Gatheru Gathemiawith Kanjama Advocates for the RespondentsNo appearance for the ApplicantsLucy-------------------------Court Assistant