[2019] KESC 5 (KLR)

Okoiti & another v Attorney General & another (Civil Application 1 of 2019) [2019] KESC 5 (KLR) (Civ) (20 December 2019) (Ruling)

Okiya Omtatah Okoiti & another v Attorney General & another [2019] eKLR

Neutral citation: [2019] KESC 5 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Civil Application 1 of 2019

I Lenaola, SCJ

December 20, 2019

IN THE MATTER OF: AN APPLICATION TO A SINGLE JUDGE OF THE SUPREME COURT OF KENYA FOR REVIEW OF THE DECISION OF THE HON. OLE KEIWUA, DEPUTY REGISTRAR, DATED 27TH NOVEMBER 2018, DECLINING TO ADMIT THE APPLICANTS’ APPLICATION DATED 26TH NOVEMBER 2018, WHICH APPLICATION URGES THE SUPREME COURT TO DEPART FROM ITS FINDINGS AND HOLIDNG IN ADVISORY OPINION NO. 2 OF 2012 THAT THE TWO-THIRDS GENDER PRINCIPLE APPLIES TO THE COMPOSITION OF THE SENATE AND THE NATIONAL ASSEMBLY CONTRARY TO THE EXPRESS PROVISIONS OF ARTICLES 97 AND 98 OF THE CONSTITUTION IN THE MATTER OF: RULE 4A (2) OF THE SUPREME COURT RULES, 2012

Between

Okiya Omtatah Okoiti

1st Applicant

Nyakina Wycliffe Gisebe

2nd Applicant

and

The Hon Attorney General

1st Respondent

The Parliament of Kenya

2nd Respondent

Ruling

1. Before this Court is the Application by the Applicants brought pursuant to the provisions of Rule 4A (2) of the Supreme Court Rules, 2012. The Applicants seek inter alia, an order of review and setting aside of the decision of the Deputy Registrar dated 27th November 2018.

2. The grounds upon which the Application is premised are that the decision by the Deputy Registrar to decline to admit pleadings was ultra vires, a political decision that was meritless, unreasonable, arbitrary and offensive. They further argue that the decision was made contrary to the principle of natural justice and violates the Applicants’ right to access to justice pursuant to Articles 48 and 50(1) as read with Article 163(7) of the Constitution.

3. The Application is further supported by the affidavit of the 1st Applicant sworn on 14th January 2019. In the affidavit, the Applicants aver that their right of access to justice and access to this Court under Articles 48, 50(1) and 163(7) were violated by the impugned decision of the Deputy Registrar.

4. Further to averments made in the grounds in support of the Application, the Applicants contend that in their main cause they seek to challenge the validity of this Court’s advisory opinion in Advisory Opinion No. 2 of 2012 In the Matter of the Principle of Gender Representation in the National Assembly and the Senate; [2012] eKLR because in High Court Constitutional Petition No. 288 of 2015 Okiya Omtatah Okoiti & another v Attorney General & 2 others; [2015] eKLR, the High Court had declined to hear the matter on the grounds that it lacked jurisdiction to do so following the Advisory opinion aforesaid.

5. In the submissions dated and filed on 12th July 2019, the Applicants reiterate their arguments in the pleadings, and further submit that, no adverse action, such as the one taken by the Deputy Registrar to strike out pleadings, should stand without a fair hearing. They also submit that the decision by the Deputy Registrar constitutes misadministration of justice and the abrogation of all the Articles of the Constitution relating to the right of access to justice and fair hearing.

6. They furthermore submit that the decision by the Deputy Registrar did not pass constitutional muster, and that the Deputy Registrar is not vested with the judicial power to dismiss or strike out pleadings at the nascent stage of any proceedings, or at all. They, in addition, contend that the Deputy Registrar has no powers to interrogate any pleadings and make a determination whether or not the pleadings offend the law on the merits.

7. The Applicants also submit that the decision by the Deputy Registrar was not reasoned, and that it merely restated the provisions of Rule 4A(1)(b) of the Supreme Court Rules. They relied on the decision in Civil Appeal No. 37 of 1978 D.T Dobies & Co. (K) Ltd v Joseph Mbaria Muchina & another; [1980] eKLR in which the Court held that no suit ought to be summarily dismissed unless it appears not to disclose any reasonable cause of action. They also relied on the cases of Luka Kipkorir Kigen v National Oil Corporation Limited [2014] eKLR, Elijah Sikona & another on behalf of the Trusted Society of Human Rights Alliance v Mara Conservancy & 5 others [2014] eKLR and Transcend Media Group Limited v Independent Electoral & Boundaries Commission [2015] eKLR for the submission that striking out of a pleading is a jurisdiction that ought to be exercised sparingly and in clear and obvious cases. And that the present case did not merit that draconian action.

8. The 2nd Respondent filed its Notice of Appointment of Advocate dated 11th March 2019 on 12th March 2019. The 1st Respondent did not enter appearance. Both Respondents did not file any pleadings in support of or in objection to the Application.

9. Having carefully considered the pleadings and the submissions made by the Applicants, the following issues arise for determination;(a)Whether this Court has jurisdiction to review the decision of the Deputy Registrar; and(b)Whether the decision made by the Deputy Registrar warrants a review.(a)Whether this Court has the jurisdiction to review the decision of the Deputy Registrar.

10. In the above context, Rule 4A (1)(b) provides:“The role of the Registrar shall be to−(a)…(b)decline to admit pleadings that are not in accordance with the Constitution, the Act, the relevant rule or the Court’s practice Directions for filings”

11. Rule 4A (2) of the Rules then reads;“Any party aggrieved by the decision of the Registrar made under this rule may apply to a single Judge of the Court for a review of the decision.”

12. The decision by the Deputy Registrar made on 27th November 2018 reads in part as follows:“It is clear that the application stands in conflict with the terms of the Constitution and the Supreme Court of Kenya Act, as well as the Court Rules. In the circumstances, I decline to admit it under Rule 4A(1)(b) of the Supreme Court Rules 2012. ”

13. From a concise reading of the Deputy Registrar’s Ruling, it is not in doubt what provisions he relied upon in making his decision and it is self-evident from the decision itself that he invoked Rule 4A(1)(b) in doing so. The merits of his decision will be shortly addressed. Without belaboring the point therefore, we hold that this Court is vested with the requisite jurisdiction to hear and determine the present Application which seeks to review and/or set aside the impugned decision of the Deputy Registrar.

(b) Whether the decision made by the Deputy Registrar warrants a review 14. The roles of the Registrar are provided under Rule 4A of the Supreme Court Rules. One such role under Rule 4A(1)(b) is to decline to admit pleadings that are not in accordance with the law. These roles may be referred to as case management, or the administrative roles of the Registrar and they are also set out broadly in Rule 7 of the Rules. These roles, in addition, extend to the maintenance of the register under Rule 7B and the filing of documents under Rule 7E.

15. Under Rule 4A(1)(b), the role of the Registrar is limited to declining to admit documents that are yet to be filed and are therefore not on the record. The ‘not on record’ role is similar to that provided under Rule 7E (2) of the Rules which reads;“The Registrar may refuse to accept any document that does not comply with the Act or these rules and may issue an order rectifying the pleadings so that the document complies with the Act or these Rules.”

16. The dissimilarity however between the two provisions i.e. 4A(1)(b) and 7E is that Rule 7E provides for a remedy in the event that the Registrar finds that a document that a party seeks to file does not comply with the Act or the Rules, i.e. issue an order rectifying the pleadings so that they are in conformity with the Act or the Rules. The power to issue such orders is discretionary as the Rule also states that the Registrar “may” issue such orders. It is a power that the Registrar may, in carrying out her obligations, choose to either exercise or not. This discretion is not provided under Rule 4A(1)(b) which is worded in strict terms once the pleadings do not meet the muster of the law.

17. Did the Deputy Registrar therefore act or issue an order that was unreasonable or arbitrary? It is not in dispute in that regard that the powers exercised by the Deputy Registrar were delegated powers from the Registrar, and as such, and in exercise of these delegated powers, acted as provided in the Rules, and in particular within Rule 4A(1)(b). However, the Applicants nonetheless contend that the decision was bereft of reasons or merit, and therefore, in contravention of Articles 48, 50(1) and 163(7) of the Constitution which speak to the right to access to justice and fair trial.

18. The Applicants also contend that the Deputy Registrar sought to delve into the merits of the Application, and struck out the pleadings before the same could be interrogated on their merits. They argue in that regard that the striking out of pleadings is a power that should be cautiously exercised, and only so exercised in the most deserving and clear of cases. They however also admittedly contend that the decision made by the Deputy Registrar was an administrative decision, stating in their submissions that the power to dismiss pleadings and the power to decline to admit pleadings are distinguishable, with the former being a judicial function, while the latter is an administrative function.

19. The above is an important observation that was made by the Applicants and which is germane to the instant Application, and in determining whether the Deputy Registrar struck out or refused to admit pleadings.

20. From the record, the Deputy Registrar in refusing to admit the pleadings of the Applicants, issued a short decision, in which he stated that the pleadings that the Applicants sought to be admitted were not in accordance with the Constitution, the Act, the Rules or Practice Directions.

21. The Applicants fault the Deputy Registrar for making the above decision which, their opinion, was bereft of reasons. We note in that regard that Rule 4A(1)(b) of the Rules, generally provides the reasons for declining to admit pleadings; that the pleadings are not in accordance with the Constitution, the Act, the relevant Rules or Practice Directions. Any one of these reasons therefore suffices at a general level as to why the Deputy Registrar may have refused to admit the Applicants’ pleadings. However, it is also our view that specific reasons needed to be adduced with specific references to the parts of the Constitution and the Supreme Court Act that the pleadings were afoul of. It is not enough to cite the relevant Rule without giving details of the specifics thereof.

22. Further, while the Deputy Registrar had the opportunity to review and consider the documents that the Applicants intended to be admitted, caution and precaution had to be observed to ensure that the reasons given would then clearly and specifically separate a decision on the merits of the pleadings as opposed to a mere administrative action. Not giving reasons and merely restating the applicable law and rules is an action that may lead to mis-justice. We say so because it is indeed trite that any decision that affects the rights of parties must, at the very least, have reasons that are cogent and explanatory of the decision made.

23. It is also our view that, Rule 4A(1)(b) is not a mere administrative provision. It calls upon the Registrar/Deputy Registrar to consider the pleadings sought to be filed against the expectations of the Constitution, the Supreme Act, the Supreme Court Rules and Practice Directions and apply his/her legal mind to the question whether the said pleadings are in accord with specific provisions of the said Laws and Directions. Where they are not, justice demands that reasons, predicated on specific provisions of the Laws and Directions, ought to be given to an Applicant as being locked out of the seat of justice, more so at the apex Court, is a serious matter indeed.

24. With respect therefore, and without going into the merits of whatever issues the Applicants has sought to place before the Court, the decision of the Deputy Registrar is one for review and setting aside.

25. As to costs, the Respondents did not make any attempt at filing any pleadings in support or in objection to the Application. As such, the Application was uncontested, even though the 2nd Respondent entered appearance and intimated that it intended to file its pleadings. In accordance with Rule 46(1)(a) of the Rules, any costs payable shall be assessed by the Court when making its decision. Since this is an uncontested Application, it would only be prudent that no order as to costs be made.

26. The upshot of our findings above is that the following orders are issued;(a)The Notice of Motion dated 14th January 2019 is hereby allowed and the Ruling of the Deputy Registrar made on 27th November 2018 is hereby reviewed and set aside.(b)There shall be no order as to costs.

27. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2019. ........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalRegistrarSupreme Court of Kenya