[2022] KEHC 2676 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.71 OF 2018

OKIYA OMTATAH OKOITI...........................................PETITIONER/RESPONDENT

VERSUS

THE PARLIAMENT OF KENYA.....................................RESPONDENT/APPLICANT

AND

THE PARLIAMENTARY SERVICE COMMISSION....... 1ST INTERESTED PARTY

HON. BETH MUGO............................................................. 2ND INTERESTED PARTY

HON. ADAN KEYNAN.........................................................3RD INTERESTED PARTY

RULING

1. The Petitioner vide a petition dated 26th February, 2018 seeks the following orders:

(i) A DECLARATION THAT Members of Parliament are eligible to be appointed to serve as commissioners of the Parliamentary Service Commission for a single non-renewable term of five (5) years.

(ii) AN ORDER QUASHING the respondent's appointment of the Hon. Beth Mugo, MP, and the Hon. Adan Keynan, MP, to serve as commissioners of the Parliamentary Service Commission beyond the five (5) year limit.

(iii) AN ORDER COMPELLING the respondent to pay the costs of this suit.

(iv) Any other relief the court may deem just to grant.

2. Amidst the filing of responses to the petition the respondent (Parliament of Kenya) filed a Notice of Motion dated 28th January, 2019 seeking the following:

(i) That this Honourable Court be pleased to certify the Application (sic) herein raises substantial questions of law and refer the Petition to his Lordship the Chief Justice for appointment of a bench of an uneven number of judges being not less than three (3) pursuant to Article 165(4) of the Constitution.

(ii) That costs of this Application be in the cause.

3. The application is supported by the grounds on its face, plus the supporting affidavit dated 28th January, 2019 by Michael Sialai the clerk of the National assembly which point out that the petition raises weighty and substantive questions of law concerning the nomination and appointment of members of the Parliamentary service commission as provided for in Article 127(c) of the constitution. That interpretation of Article 127(c) (i) and (ii) as read with Article 250(6) (a) of the Constitution is a substantial question of law yet to be considered by the courts.

4. The respondent further argues that the issues raised are of importance to both Parliament and general public as they concern the composition of Parliamentary service commission. For that reason the respondents urges this court to refer this matter to the Honourable Chief Justice to empanel a bench of an uneven number to hear the petition.

5. The application was opposed by the petitioner vide his replying affidavit of 29th January, 2019. He avers that the respondent has failed to demonstrate how the petition raises a substantial question of law. According to him the respondent was bent on buying time to cause delay in the hearing and determination of this matter. He is unhappy that his application seeking conservatory orders was abandoned to enable the court to hear the petition which is yet to happen.

6. The interested parties did not file any responses to the said application. On 21st December, 2021 counsel for the 1st and 3rd interested parties informed the court that they were in support of the application, by the respondent.

7. The respondent did not file any submissions in respect of its application.

8. The petitioner filed submissions dated 29th January, 2019 in opposition to the said submissions. He has referred to Article 165(3) and (4) of the Constitution and cited several definitions of the word “substantial”. Besides this he heavily relied on the case of Sir Chumilal V Mehta & Sons Ld. V. Century Spinning and Manufacturing Co. Ltd. Air 1962 SC/314 to define the word “substantial” and to also determine whether the present petition raised any substantial issue/issues.

9. He submits that under Article 165(4) where a matter is largely a question of the application of the Constitution rather than its interpretation, no substantial question of law should apply. His view is that the petition herein does not turn on this court’s seminal interpretation of the Constitution. It thus, does not meet the test in the Sir Chumilal Vs. Mehta and Sons Ltd case (supra) he argues.

10. The Petitioner referred to the case of Harrison Kinyanjui Vs. the Attorney General and Judicial Service Commission and 19 others HCC at Nairobi Petition No.74 of 2011, where Justice Majanja while referring to the case of Chumilal V. Mehta (supra) held as follows:

“If I were to accept the above dicta, then it would follow, that every question concerning our constitution would be substantial question of Law. Each case that deals with the interpretation of the Constitution or our expanded Bill of Rights would be a substantial question of law as it is a matter of public interest, affects the rights of the parties, is fairly novel and has not been the subject of pronouncement by the highest Court. This would burden judicial resources to the extent that the value of obtaining justice without delay under Article 159(2) (b) would be imperiled."

11. After filing the replying affidavit and his submissions the petitioner did make an about turn on 14th and 21st December 2021 and told the court that he no longer opposed the application for empanelment of a bench with an uneven number of judges. The reason he gave is that he was doing this for expediting the hearing and determination of the petition herein. The record herein speaks for itself. Despite the changed position by the petitioner this court has a duty to hear the application and make a determination based on the law. The consent of the parties on this is not binding, on the court.

Analysis and determination.

12. I have considered the application, affidavits, submissions and the law plus decided cases. The Notice of Motion dated 28th January, 2019 was filed under Article 165(4) of the Constitution of Kenya which provides:

“(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.”

13. Article 165 (3) (b) of the Constitution provides:

(3) subject to clause (5) the High Court shall have:

(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;

14. Under Article 165(4) of the Constitution, matters to be referred to the Honourable the Chief Justice are those matters raising substantial questions of law. The term substantial is not defined in the Constitution of Kenya. It all depends on the facts disclosed and the law applicable.

15. In the case of Community Advocacy Awareness Trust and Others Vs. The Attorney General and others High Court Petition No. 243 of 2011 it was stated 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.”

16. In determining whether a matter raises a substantial question of law a number of factors must be considered, one cannot pick only one of the factors and run with it to claim that it raises a substantial issue and makes a determination for empanelment of a bench of an uneven number of Judges.

17. Majanja J in the case of Harrison Kinyanjui V. Attorney General and Another [2012] eKLR 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. In other words each case must be considered on its merits by the Judge certifying the matter. I must also be remembered that each High Court Judge has authority under Article 165 of the Constitution, to determine any matter that is within the jurisdiction of the High Court. Further and notwithstanding the provisions of Article 165(4) the decision of a three judge bench is of equal force to that of a single judge exercising the same jurisdiction. A single judge deciding a matter is not obliged to follow a decision of the court delivered by three judges.”

I wholly agree with this finding by the honourable judge.

18. Having said the above I proceed to examine the petition and the motion dated 28th January, 2019. The issue at hand is the interpretation of Article 127(2) as read with Article 250(6). It is not disputed that this issue has not been addressed before. Is that in itself a good reason for the empanelment of a bench of an uneven number of judges? My answer would be in the negative.

19. The respondent also argues that the determination of this petition is of importance to the parliament of Kenya and the general public as they concern the composition of the Parliamentary service commission. That a decision made herein is likely to serve as a precedent to aid political parties and parliament in their exercise of nomination of persons to the said position. Precedents are not only set by benches, as every judge has the mandate to interpret the Constitution of Kenya plus other statutes, in rendering their decisions.

20. The upshot is that the respondent has failed to satisfy this court of the need for empanelment of a bench of an uneven number of judges to hear this petition. I therefore disallow the application dated 28th January, 2019. Each party to bear his own costs.

Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 3RD DAY OF FEBRUARY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.

HEDWIG ONG’UDI

JUDGE OF THE HIGH COURT