[2014] KEHC 6296 (KLR)
The court found that neither the gravity of the case nor the alleged divergence of judicial opinion on the retrospective application of the Constitution of Kenya 2010 justified referral to the Chief Justice for empanelment of a bench under Article 165(4). The Supreme Court's decision in Samuel Kamau Macharia and...
Source-derived case information.
- Citation
- [2014] KEHC 6296 (KLR)
- Parties
- Applicant: Rahimkhan Afzalkhan Rahimkhan; Applicant: Shamshad Begum Afzalkhan Rahimkhan; Applicant: Daniel Mwangi; Applicant: Pauline Kavinya Mwongela; Applicant: Sayed Mushtaq Hussain; Respondent: Chief Land Registrar; Respondent: Attorney General; Respondent: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 47 of 2012
- Procedural Posture
- Constitutional Petition / Direction on Application to Refer Matter to Chief Justice for Empanelment of Bench
- Outcome
- Application for referral to the Chief Justice for empanelment of a bench dismissed. Petition to proceed before a single judge.
- Judges
- EM Muriithi
- Legal Topics
- Retrospective Application of Constitution, Substantial Question of Law, Empanelment of Bench, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rahimkhan Afzalkhan Rahimkhan
Applicant
Shamshad Begum Afzalkhan Rahimkhan
Applicant
Daniel Mwangi
Applicant
Pauline Kavinya Mwongela
Applicant
Sayed Mushtaq Hussain
Applicant
Chief Land Registrar
Respondent
Attorney General
Respondent
Commissioner of Lands
Respondent
Procedural Posture
Constitutional Petition / Direction on Application to Refer Matter to Chief Justice for Empanelment of Bench
Legal Issues
- 1 Whether the gravity of the case or divergence of judicial opinion warrants referral to the Chief Justice for empanelment of a bench under Article 165(4) of the Constitution.
- 2 Whether the issue of retrospective application of the Constitution of Kenya 2010 constitutes a substantial question of law requiring a bench.
Ratio Decidendi
The court found that neither the gravity of the case nor the alleged divergence of judicial opinion on the retrospective application of the Constitution of Kenya 2010 justified referral to the Chief Justice for empanelment of a bench under Article 165(4). The Supreme Court's decision in Samuel Kamau Macharia and subsequent High Court authorities have settled the issue of retrospective application, removing any substantial question of law. Therefore, the petition should proceed before a single judge to ensure expedited disposal.
Court Disposition
Application for referral to the Chief Justice for empanelment of a bench dismissed. Petition to proceed before a single judge.
Orders
- The petition will proceed to hearing before one judge of the court on a date to be fixed in consultation with the parties.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 47 OF 2012
RAHIMKHAN AFZALKHAN RAHIMKHAN …..................................... 1ST PETITIONER
SHAMSHAD BEGUM AFZALKHAN RAHIMKHAN …..................... 2ND PETITONER
DANIEL MWANGI …................................................................................ 3RD PETITIONER
PAULINE KAVINYA MWONGELA …....................................................... 4TH PETITONER
SAYED MUSHTAQ HUSSAIN …............................................................... 5TH PETITIONER
VERSUS
CHIEF LAND REGISTRAR …..................................................................... 1ST RESPONDENT
ATTORNEY GENERAL …......................................................................... 2ND RESPONDENT
COMMISSIONER OF LANDS …............................................................. 3RD RESPONDENT
DIRECTIONS
Counsel for the Respondent has sought that the Petition herein be referred to the Hon the Chief Justice under Article 165 (4) of the Constitution for His Lordship to constitute a bench of three judges to hear and determine the petition. Counsel has cited the gravity of the case and the difference of opinion among High Court Judges on the issue whether the new Constitution of Kenya 2010 could be applied retrospectively.
Article 165 (4) allows for the reference by the court to the chief justice for constitution of a bench of three or more judges where the court certifies a matter to involve a substantial point of law 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.”
I do not find in the gravity of the case as reason for referring the matter to the Hon the Chief Justice. The same can be dealt with, and it is in the interest of expedited disposal that the hearing proceeds before a single judge of the Court.
As regards alleged divergence of opinion as to retroactivity of the Constitution of Kenya 2010, the matter is governed by the authority of the Supreme Court of Kenya in Samuel Kamau Macharia and Anor v. Kenya Commercial Bank Ltd. and 2 Ors.(2012) eKLR and there can therefore be no reason to refer the matter to the Chief Justice on that account. See also Duncan Otienov AG (2012)eKLR; Thomas Musyoki Mutuse v. AG(2013) eKLR; and Milkah Wanjiku Kinuthia & 2 Ors v. AG (2013) eKLR applying the old constitution to events occurring before the promulgation of the new Constitution.
Accordingly, I direct that the petition will proceed to hearing before one judge of the court on a date to be fixed in consultation with the parties.
Dated signed and delivered the 27th February 2014
EDWARD M. MURIITHI
JUDGE
In the presence of: -
Miss Amina for Muriithi for the Petitioners
Mr. Ngari for the Respondents
Miss Lilnda - Court Assistant